COURT OF APPEAL FOR ONTARIO

CITATION: Dzelme v. Dzelme, 2018 ONCA 1018

DATE: 20181212

DOCKET: C64822

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Arnis Raimonds Dzelme

Respondent (Respondent)

and

John Dzelme

Applicant (Appellant)

John Dzelme, acting in person

Jason Little, for the respondent

Heard: December 6, 2018

On appeal from the judgment
    of Justice James A. Ramsay of the Superior Court of Justice, dated December 5,
    2017.

REASONS FOR DECISION

[1]

The appellant, John Dzelme, appeals from the motion
    judges dismissal of his request for an order that his brother, the respondent,
    Arnis Dzelme, disclose information about the assets of his parents, Ritvars and
    Elvira Dzelme, and account for their property and finances under a power of
    attorney for property.

[2]

John clarified at the hearing that he no longer
    seeks relief in respect of his mothers financial affairs; he limits his appeal
    to the dismissal of relief requested about his late fathers financial affairs.

[3]

The motion judge held that the only basis on
    which John would have standing to apply for the relief sought would be under s.
    42(4)6 of the
Substitute Decisions Act, 1992
,
    S.O. 1992, c. 30 (the
SDA
), which provides
    that [a]ny other person may apply for a passing of accounts of an attorney of
    property with leave of the court.

[4]

John submits the motion judge erred in so
    finding. John argues that since he was one of his fathers attorneys for
    personal care and his father was incapable at the time of the hearing below, he
    had the standing to apply for a passing of accounts under
SDA
s. 42(4)1.

[5]

Arnis concedes that the motion judge erred and
    John could apply under s. 42(4)1 for a passing of accounts without leave.

[6]

However, on our reading of his reasons, the
    motion judge would have refused Johns request in any event.

[7]

Section 42(1) of the
SDA

states: The court
may
, on application, order that all or a specified part of the accounts
    of an attorney or guardian of property be passed (emphasis added). Even if a
    person has standing to apply under s. 42(4) of the
SDA
, it remains in the discretion of the court to order a passing of
    accounts:
McAllister Estate v. Hudgin
(2008),
    42 E.T.R. (3d) 313, at para. 13;
Lacroix v. Kalman
, 2015 ONSC 19, at paras. 32 and 40. Factors a court takes into
    account in exercising its discretion include the extent of the attorneys
    involvement in the grantors financial affairs and whether the applicant has
    raised a significant concern in respect of the management of the grantors
    affairs to warrant an accounting:
McAllister Estate
, at para. 13.

[8]

In the present case, the motion judge made
    several key findings of fact: (i) both parents - Ritvars and Elvira - were
    capable when on May 3, 2016, they executed written instructions to Arnis not to
    produce any financial information about their affairs to John; (ii) Elvira
    maintained this position in response to Johns motion; (iii) a September 30,
    2017 capacity assessment of Elvira found that she was capable of making her own
    decisions; (iv) a third brother, Ivan, corroborated Arnis evidence that he was
    following his parents wishes; (v) the application judge had no doubt that
    Arnis was following his mothers wishes; and (vi) the application judge had no
    reason to suspect that Arnis was not acting properly, including in respect of
    the survivorship designation on his mothers tax-free savings account. We are
    not persuaded the motion judges findings are tainted by any palpable and
    overriding error.

[9]

Given those findings of fact, we see no error in
    the motion judges dismissal of Johns request for an order that his brother
    pass accounts in respect of his fathers finances.

[10]

The appeal is dismissed.

[11]

To the extent John seeks leave to appeal the
    award of substantial indemnity costs made against him by the motion judge, we
    do not grant leave. We see no error in principle by the motion judge. Paras. 3,
    4 and 5 of the motion judges cost endorsement support his award of substantial
    indemnity costs.

[12]

Arnis seeks substantial indemnity costs of the
    appeal against John. We are not persuaded that costs at an elevated level are
    merited. Arnis waited until the hearing to concede that the motion judge made a
    mistake about Johns standing. An earlier concession was warranted; it would
    have narrowed the issues on the appeal. John shall pay Arnis partial indemnity
    costs of the appeal fixed in the amount of $7,500, inclusive of disbursements
    and applicable taxes.

R.G.
    Juriansz J.A.
David Brown J.A.
L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    1023

DATE: 20181213

DOCKET: C65851 and C65955

Pepall, Hourigan and Trotter JJ.A.

BETWEEN

Larry Philip Fontaine in his personal capacity
    and in his capacity as the Executor of the estate of Agnes Mary Fontaine,
    deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter,
    Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster,
    Rhonda Buffalo, Ernestine Caibaiosa-Gidmark, Michael Carpan, Brenda Cyr, Deanna
    Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his
    personal capacity and in his capacity as the Executor of the Estate of Agnes
    Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey,
    Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque,
    Jane McCullum, Cornelius McComber, Veronica Pauchey, Stanley Thomas Nepetaypo,
    Flora Northwest, Norma Pauchy, Camble Quatell, Alvin Barney Saulteaux,
    Christine Semple, Dennis Smokeyday, Kenneth Sparview, Edward Tapiatic, Helen
    Winderman and Adrian Yellowknee

Plaintiffs

and

The Attorney General of Canada, The Presbyterian Church in
    Canada, The General Synod of the Anglican Church of Canada, The United Church of
    Canada, The Board of Home Missions of the United Church of Canada, The Womens
    Missionary Society of the Presbyterian Church, The Baptist Church in Canada,
    Board of Home Missions and Social Services of the Presbyterian Church in Bay,
    The Canada Impact North Ministries of the Company for the Propagation of the
    Gospel in New England (also known as the New England Company), The Diocese of
    Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the
    Presbyterian Church in Canada, The Incorporates Synod of the Diocese of Huron,
    The Methodist Church of Canada, The Missionary Society of the Anglican Church of
    Canada, The Missionary Society of the Methodist Church of Canada (also known as
    The Methodist Missionary Society of Canada), The Incorporated Synod of The
    Diocese of Algoma, The Synod of the Diocese of Quebec, The Synod of the Diocese
    of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the
    Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of
    the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church in Canada, The Board Of Home Missions And
    Social Service of The Presbyterian Church of Canada, The Women's Missionary
    Society of The United Church of Canada, Sisters of Charity, A Body Corporate
    Also Known As Sisters of Charity of St. Vincent De Paul, Halifax, Also Known As
    Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax,
    Les Soeurs De Notre Dame Auxiliatrice, Les Soeurs De St. Francois D'assise,
    Institut Des Soeurs Du Bon Conseil, Les Soeurs De Saint-Joseph De
    Saint-Hyacinthe, Les Soeurs De Jesus-Marie, Les Soeurs De L'assomption De La
    Sainte Vierge, Les Soeurs De L'assomption De La Saint Vierge De L'alberta, Les
    Soeurs De La Charite De St.-Hyacinthe, Les Oeuvres Oblates De L'Ontario, Les
    Residences Oblates Du Quebec, La Corporation Episcopale Catholique Romaine De
    La Baie James (The Roman Catholic Episcopal Corporation of James Bay), The
    Catholic Diocese of Moosonee, Soeurs Grises De Montreal/Grey Nuns if Montreal, Sisters
    of Charity (Grey Nuns) of Alberta, Les Soeurs De La Charite Des T.N.O,
    Hotel-Dieu De Nicolet, The Grey Nuns Of Manitoba Inc. Les Soeurs Crises Du
    Manitoba Inc., La Corporation Episcopale Catholique Romaine De La Baie D'Hudson
    - The Roman Catholic Episcopal Corporation of Hudson's Bay, Missionary Oblates
    Grandin Province, Les Oblats De Marie Immaculee Du Manitoba, The Archiepiscopal
    Corporation of Regina, The Sisters of The Presentation, The Sisters of St.
    Joseph of Sault St. Marie, Sisters of Charity Of Ottawa, Oblates of Mary
    Immaculate -St. Peter's Province, The Sisters of Saint Ann, Sisters of
    Instruction of The Child Jesus, The Benedictine Sisters of Mt. Angel Oregon,
    Les Peres Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole,
    The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation
    Sole, Order of The Oblates of Mary Immaculate In The Province of British
    Columbia, The Sisters of Charity of Providence of Western Canada, La
    Corporation Episcopale Catholique Romaine De Grouard, Roman Catholic Episcopal
    Corporation Of Keewatin, La Corporation Archiepiscopale Catholique Romaine De
    St. Boniface, Les Missionnaires Oblates Sisters De St. Boniface-The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Episcopale Catholique Romaine De Prince Albert, The
    Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
    Ca, Archdiocese of Vancouver - The Roman Catholic Archbishop Of Vancouver, Roman
    Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt. Angel
    Abbey Inc.

Defendants

(Respondent)

and

Chief Adjudicator Indian
    Residential Schools Adjudication Secretariat

Respondent

(Appellant)

Proceeding
    under the
Class Proceedings Act,
1992, S.O. 1992, C.6

Joseph Arvay and Andrew Faith, for the appellant

Catherine Coughlan and Brent Thompson, for the
    respondent, the Attorney General of Canada

Heard: November 23, 2018

On appeal from the orders of Justice Paul M. Perell of
    the Superior Court of Justice, dated September 5, 2018 and September 27, 2018,
    with reasons reported at 2018 ONSC 5197 and 2018 ONSC 5706.

By the Court:

A.

Overview

[1]

These appeals arise in the context of the administration of the Indian
    Residential School Settlement Agreement (IRSSA). The appellant, the Chief
    Adjudicator for the Independent Assessment Process (IAP) under the IRSSA, is
    the subject of two directions issued by the Eastern Administrative Judge for
    the IRSSA. The appellant seeks an order setting aside both directions. These
    reasons explain why we have concluded that the appeal should be allowed and an
    order granted setting aside the directions.

B.

FACTS

(1)

IAP Administration

[2]

The Ontario Superior Court of Justice is one of nine provincial and
    territorial superior courts that in December 2006 and January 2007, on
    substantially identical terms, approved the IRSSA. On March 8, 2007, the courts
    issued orders governing the IRSSAs implementation, again on substantially
    identical terms (the Implementation Orders).

[3]

Schedule D to the IRSSA establishes the IAP, a claims adjudication
    process that acts as a means of providing compensation to individuals who
    suffered abuse at Indian residential schools.  The Chief Adjudicator is
    responsible for ensuring the proper implementation of the IAP.

[4]

The IAP provides for, among other things, an Oversight Committee.  One of
    its duties is to recruit and appoint, and if necessary terminate the
    appointment of, the Chief Adjudicator. However, in the Implementation Orders,
    the power of the Oversight Committee to appoint a Chief Adjudicator has been
    expressly limited and made subject to court approval. There is no concurrent
    limitation imposed in the Implementation Orders regarding the power of the
    Oversight Committee to terminate the Chief Adjudicator.

[5]

The Chief Adjudicators duties are also delineated in
    Schedule D of the IRSSA. They include putting into effect training programs and
    administrative measures, assigning hearings to adjudicators, and assigning and
    conducting reviews. Pursuant to Schedule D, the Chief Adjudicator is also obliged
    to
prepare annual reports to the Oversight Committee on the functioning
    of the adjudicative process under the IAP. In the Implementation Orders, an
    additional reporting obligation is imposed on the Chief Adjudicator. Paragraph
    7 provides:

THIS COURT ORDERS that in addition
    to any other reporting requirements, the Chief Adjudicator shall report
    directly to the Courts through the Monitor not less than quarterly on all
    aspects of implementation and operation of the IAP. The Courts may provide the
    Chief Adjudicator with directions regarding the form and content of such
    reports.

[6]

The Implementation Orders created two other positions
    that are relevant in these appeals. A Court Counsel was appointed and charged
    with assisting the courts in their supervision of the implementation and
    administration of the IRSSA. A Court Monitor was also appointed and, as per
    para. 4 of the Implementation Orders,
is obliged to
    communicate with, take directions from and report to the courts upon the
    implementation and administration of the Agreement in such manner and at such
    times as the Courts direct.

[7]

In addition to the foregoing, the Implementation
    Orders established a process (the Court Administration Protocol) in which a
    party, counsel or other entity with standing in respect of the Agreement may
    file a Request for Direction (RFD) with the supervising courts relating to
    the implementation of the IRSSA: see the Court Administration Protocol, at
    para. 2.
The Court Administration Protocol
designates
    two administrative judges from among nine supervising judges, who determine
    whether a case management conference and a hearing are required.

[8]

Finally, pursuant to para. 23 of the Implementation
    Orders, courts are permitted to make further ancillary orders as necessary to
    implement and enforce the provisions of the IRSSA.

[9]

The IAP has been in operation since 2007 and is now
    substantially complete. As of September 9, 2018, 37,826 of 38,255 claims have
    been resolved. Of claims that go to a hearing or result in a negotiated
    settlement, 89% of claimants are successful in obtaining compensation. The IAP is
    not expected to wind-up before March 31, 2021.

(2)

The Impugned Directions

(a)

The First Direction

[10]

On
    September 5, 2018, the Eastern Administrative Judge, on his own motion and
    without notice to any party, issued a direction (the First Direction)
    prohibiting the appellant from continuing his participation in three appeals
    (the Impugned Appeals), one before the Supreme Court of Canada and two before
    the British Columbia Court of Appeal . The Eastern Administrative Judge found
    the appellant was insubordinate and in defiance of the supervising courts.

[11]

In
    reaching this conclusion, the Eastern Administrative Judge pointed to: (a) the
    appellants overtly partisan positions, based on the content of his facta in the
    Impugned Appeals, (b) the appellants failure to describe his participation in
    the Impugned Appeals in a report via the Monitor to the courts, and (c) the
    appellants efforts to hold re-review adjudications in abeyance, pending the
    outcome of an appeal considering issues of procedural fairness in the IAP:
Fontaine
    v. Canada (Attorney General)
, 2018 ONSC 5197.  He directed the appellant
    to withdraw from the Impugned Appeals and remove his facta from the Supreme
    Court of Canada and British Columbia Court of Appeal registries. In addition,
    the Eastern Administrative Judge ordered that the Chief Adjudicators future
    legal fees had to be authorized by
Court
    Counsel
.

[12]

One
    of the Impugned Appeals was to be argued before the Supreme Court of Canada on
    October 10, 2018. The appellant filed a Notice of Appeal against the First
    Direction in this court and moved for a stay pending the hearing of the appeal.
    Sharpe J.A. granted that stay on September 12, 2018. Following a case
    management conference call, Sharpe J.A. directed that the appeal against the
    First Direction be heard on November 23, 2018.

(b)

The Second Direction

[13]

On
    September 27, 2018, the Eastern Administrative Judge issued another direction
    (the Second Direction), again on his own motion and without notice to any
    party. The Second Direction purports to rescind the First Direction and directs
    a different path that will provide for a fuller opportunity to canvass this
    Supervising Courts underlying concerns and provide the Chief Adjudicator
    with a full hearing with due process, as he submits is his due:
Fontaine
    v. Canada (Attorney General)
, 2018 ONSC 5706, at para. 4.

[14]

The
    Second Direction appoints
amicus curiae
and directs him to bring a RFD
    to be considered at a hearing to be held before two other supervising judges,
    one from the Supreme Court of Yukon and the second from the Superior Court of
    Québec. The Second Direction specifies five issues for the RFD to address and
    lists the materials to be considered. The issues to be addressed reflect
    similar concerns to those that motivated the First Direction, namely, whether
    the appellant has taken partisan positions before courts without proper
    instructions from supervising courts or advice from the Oversight Committee,
    and failed to properly report his activities to the supervising courts: at
    para. 7. The issue of whether the appellant complied with a specific order
    issued by the supervising judge for British Columbia is also included in the
    list of matters to be considered.

[15]

The
    appellant filed a Notice of Appeal against the Second Direction on October 5,
    2018 and then moved for a stay pending determination of the appeal, which was
    granted by Sharpe J.A. on October 17, 2018. He further ordered that the two
    appeals be heard together. Prior to the hearing of the appeals, counsel had
    raised concerns about the evidentiary record. No argument was advanced to limit
    the materials before us and we see no reason to address this issue any further.

C.

issues

[16]

These
    appeals raise the following issues:

(1)

Should the First Direction be set aside?

(2)

Should the Second Direction be set aside?

(3)

Should this court adjudicate the issues raised in the
    directions?

(4)

If the answer to issue 3 is no, how should the issues
    raised in the directions be determined?

D.

analysis

(1)

First Direction

(a)

Was the appellant owed procedural fairness?

[17]

The
    appellant submits that the First Direction amounted to a finding against him of
    serious misconduct akin to contempt of court. Accordingly, the appellants
    position is that the strict procedural protections of contempt proceedings
    ought to have been afforded to him. He submits that instead of being provided
    with the procedural protections he was entitled to, he was given no notice that
    the First Direction was in contemplation, no opportunity to be heard, and no
    opportunity to contribute to the accuracy of the facts as found by the Eastern
    Administrative Judge. Indeed, no one ever brought concerns about his conduct to
    his attention before the issuance of the First Direction. This, he argues,
    amounts to a breach of procedural fairness and natural justice, which was
    further compounded by entrusting Court Counsel with the authority to deny the
    Chief Adjudicator funding for counsel.

[18]

In
    response to this argument, the respondent, the Government of Canada, asserts
    that no duty of procedural fairness or natural justice was owed to the
    appellant. It relies on the courts supervisory jurisdiction over the IRSSA, as
    confirmed by the Supreme Court of Canada in
Fontaine v. Canada (Attorney
    General)
, 2016 ONCA 241, 130 O.R. (3d) 1, at para. 172, affd 2017 SCC 47,
    [2017] 2 S.C.R. 205.

[19]

The
    respondent submits that the Eastern Administrative Judge is always entitled to
    raise concerns about the Chief Adjudicators activity, particularly in order to
    ensure that the objectives of the IRSSA are met. Moreover, because the Chief
    Adjudicator is court appointed, the supervising courts must be afforded
    substantial latitude to direct his activities and, where the courts determine a
    need, they may intervene and provide direction. In these circumstances, the
    respondent argues, no duty of procedural fairness or natural justice is owed to
    the appellant.  Instead, the court can simply issue directives when and how it
    sees fit.

[20]

We
    will consider below the respondents arguments regarding the extent of the
    courts supervisory powers and how those powers may be exercised. For present
    purposes, we note that the First Direction contained findings made by a judge of
    the Superior Court that cast aspersions on the appellants professional
    judgment and competence. Further, the First Direction ordered him to take
    certain actions, failing which he was at risk of being terminated from his
    position.

[21]

Contrary
    to what the respondent argues, it is precisely because the Eastern
    Administrative Judge was exercising his judicial functions that he owed the
    appellant an elevated duty of procedural fairness and natural justice. Of the
    many principles underlying the Canadian judicial system, generally those who
    will be subject to an order of the court are to be given notice of the legal
    proceeding and afforded the opportunity to adduce evidence and make submissions:
A.(L.L.) v. B.(A.)
, [1995] 4 S.C.R. 536, at para. 27.  It is our view,
    therefore, that the Eastern Administrative Judges power to supervise must be
    exercised in a manner that conforms to the principles of natural justice and
    respects the rights of the appellant to procedural fairness.

(b)

Was the standard of procedural fairness satisfied?

[22]

After
    determining that the appellant was owed a duty of procedural fairness, the next
    step in our analysis is to determine whether the appellant was afforded rights
    to procedural fairness aligned with the principles of natural justice. While
    not conceding that a duty of procedural fairness applies, the respondent
    advances two arguments in support of its contention that the appellant was
    dealt with fairly.

[23]

First,
    the respondent notes that, before the issuance of the First Direction, Court
    Counsel engaged in a dialogue with the Chair of the Oversight Committee,
    wherein he raised the Eastern Administrative Judges concerns regarding the
    appellants conduct. In our view, those interactions only serve to underscore
    the lack of procedural fairness in this case. After some initial discussions
    between Court Counsel and the Chair, a request was made by the Chair to permit
    her to consult with the members of the Oversight Committee about the concerns
    raised by Court Counsel at their next meeting six days hence. The response to
    that request came the following day in the form of an email from Court Counsel
    attaching the First Direction.

[24]

We
    fail to see any urgency that would justify this arbitrary termination of
    discussions. These interactions demonstrate a rush to judgment unimpeded by
    even the most basic measures of procedural fairness and natural justice.

[25]

The
    second argument advanced by the respondent is that the First Direction included
    a procedure to permit the appellant to respond to the allegations of misconduct
    made against him. Counsel for the respondent is referring to the provision in
    the First Direction, that if the appellant did not comply with what he was
    directed to do by the deadline cited therein, he shall appear before me on
    September 20, 2018 to show cause why the Order approving his appointment as
    Chief Adjudicator should not be rescinded: at para. 61.

[26]

We
    do not read this provision as affording the appellant any measure of procedural
    fairness or natural justice. It does not contemplate the appellant being able
    to make submissions to reverse the decision of the Eastern Administrative
    Judge. Rather, it amounts to nothing more than a warning that unless all the
    orders in the First Direction were implemented by the deadline mandated by the
    Eastern Administrative Judge, the appellant would have to explain why he should
    not be terminated from his position as Chief Adjudicator. Further, as noted above,
    the power to terminate the Chief Adjudicator resides with the Oversight
    Committee, not the Eastern Administrative Judge.

[27]

In
    our view, the appellants rights to procedural fairness were not respected in
    the present case. The appellant was afforded no opportunity to participate in
    the Eastern Administrative Judges fact-finding process, given no warning that
    his activities were being impugned, and was deprived of the opportunity to
    adduce evidence and make submissions. It must be remembered that the appellant
    occupies a significant role in the administration of a multi-billion dollar class
    action settlement. The First Direction compromised the appellants professional
    reputation and his ability to carry out his mandate as Chief Adjudicator. No
    person occupying such an important public position should be the subject of
    adverse judicial findings regarding the exercise of his or her duties without
    being granted some measure of procedural fairness and natural justice.

[28]

In
    summary, the First Direction was issued in a manner that denied the appellant
    the most basic elements of procedural fairness and natural justice. It must be
    set aside, and we so order.

(2)

Second Direction

[29]

The
    Eastern Administrative Judge issued the Second Direction in the same manner as
    the First Direction. The appellant was afforded no opportunity to make
    submissions or participate in the process. Accordingly, the Second Direction must
    also be set aside on the grounds of lack of procedural fairness and breach of
    natural justice.

[30]

The
    appellant raises an additional ground for setting aside the Second Direction.
    He submits that the Second Direction violates the law of
functus officio
.
    We accept that submission.  We also note that the respondent takes no position
    on this submission. Once the First Direction was issued, the Eastern Administrative
    Judges jurisdiction over the matter was exhausted. While the First Direction
    was under appeal, he had no authority to rescind and replace it with the Second
    Direction.

[31]

The
    principle of
functus officio
addresses the very harm at issue in these
    appeals, namely that a lower court must not interfere with the jurisdiction of an
    appellate court:
Doucet-Boudreau v. Nova Scotia (Minister of Education)
,
    2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 75-79. Pursuant to the principle of
functus
    officio
, courts do not have the power to amend an order except in limited
    circumstances, which have no application in this case. The Second Direction
    purports to entirely rescind and replace the First Direction for the express
    purpose of avoiding appellate review. In addition, the Eastern Administrative
    Judge further held that the appeal of the First Direction was largely moot as
    a result of the first stay order made by Sharpe J.A.: at para. 3. The Eastern Administrative
    Judge had no jurisdiction to make that finding. In so doing, he violated the
    principle of
functus officio
,
and did so in a way that usurped
    the jurisdiction and function of this court by purporting to decide an issue
    under appeal.

(3)

Hearing in this Court

[32]

The
    appellant has filed evidence on these appeals addressing the substantive
    concerns raised by the Eastern Administrative Judge regarding his conduct. It is
    his position that this court should determine these issues. We decline to do so
    for two reasons. First, as will be discussed below, the IRSSA provides a
    process for adjudication for such issues and that process should be followed.
    Second, even if we had jurisdiction, given how this proceeding unfolded, we are
    not confident that there is a proper evidentiary record to determine these
    issues.

(4)

Adjudication of the Issues

[33]

Given
    our conclusion that this court should not determine the substantive issues
    raised in the First Direction and Second Direction, what remains outstanding is
    a question as to how these issues should be adjudicated. To answer this
    question, we turn to the RFD process and further ask whether supervising courts
    can commence proceedings on their own initiative.

[34]

A
    RFD to the supervising courts is the process mandated by the Implementation
    Orders for applications regarding the administration of the IRSSA
. Where a hearing is required, the administrative
    judges determine the jurisdiction in which the hearing should be held. Where
    the issues will affect all jurisdictions, the hearing may be directed to any
    court supervising the IRSSA.

[35]

There
    is nothing in the Court Administration Protocol that permits the courts to
    initiate their own process. Instead, it is contemplated that it is the parties that
    bring RFDs to the courts. If the respondent has a concern about that conduct,
    there is nothing preventing it from bringing a RFD. Engaging in the RFD process
    would permit all parties to adduce evidence, make submissions, and to receive
    the direction of the court.

[36]

The
    question that remains is whether the supervising courts can initiate their own
    proceedings, such as the one contemplated in the Second Direction, to review
    the conduct of the Chief Adjudicator? The respondent advances two arguments in
    support of that right.

[37]

The
    first argument is that because the appellant is court appointed, he is subject
    to orders made by the court on its own motion. We reject that submission on the
    ground that any such general power is limited by the terms of the constating
    documents. The IRSSA, the Implementation Orders, and the Court Administration
    Protocol provide a detailed procedure regarding the adjudication of issues that
    arise in the administration of the IAP. That process must be respected. While the
    courts have a supervising role, it is one that must be guided by the IRSSA and
    the Implementation Orders. The supervising courts are not free to graft on
    their own processes to the mandated RFD process.

[38]

The
    respondents second argument is based on the language in para. 7 of the
    Implementation Orders that the Courts may provide the Chief Adjudicator with
    directions regarding the form and content of his quarterly reports. It submits
    that this provision grants supervising courts the authority to provide
    directions regarding how the Chief Adjudicator is undertaking his duties,
    beyond the execution of his reporting obligation. For example, in the present
    case, the respondent argues this provision granted the Eastern Administrative
    Judge the authority to sanction the appellant for his participation in the
    Impugned Appeals.

[39]

In
    our view, this submission reads into para. 7 of the Implementation Orders
    sweeping powers that its language cannot reasonably bear. While there is no
    doubt that the supervising courts may enforce their limited power regarding the
    form and content of reports, that provision does not permit the type of
    comprehensive review of the Chief Adjudicators performance as found in the
    First Direction.
In that regard, we note that this limited
    reporting duty contrasts sharply with the relationship between the Court
    Monitor and the
supervising
courts, which requires the
    Court Monitor to not only report but also take direction from the
supervising
    courts.
The obligations of the Chief Adjudicator to the
    supervising courts, and the corresponding authority of the
supervising
courts, is much more limited.

[40]

In
    addition, any such limited review conducted by the supervising courts regarding
    the Chief Adjudicators reports must be carried out in a procedurally fair
    manner. The provision relied on by the respondent does not permit the supervising
    courts to issue sweeping unilateral declarations impacting the operation of the
    IAP and the actions of the Chief Adjudicator.

E.

disposition

[41]

We
    order that the First Direction and the Second Direction be set aside. It is
    open to any party to bring a RFD regarding the issues canvassed in the directions.
    Given the Eastern Administrative Judges involvement described above and his
    views expressed regarding these issues, we order that any such RFD be conducted
    by a different supervising judge. This order should not be interpreted as
    impeding the supervising courts from taking such steps as they deem necessary
    to provide the appellant with directions regarding the form and content of his
    reports, provided that the process for those directions is conducted in a
    procedurally fair manner and the directions are limited in scope to the form
    and content of the reports. Again, we are of the view that the Eastern
    Administrative Judge should not participate in that process.  Further, if the
    parties cannot agree on the costs of these appeals, they may make brief written
    submissions.

[42]

Finally,
    we make these observations. The IRSSA was designed to give some measure of
    redress to victims of a dark chapter in Canadian history.  Since its
    implementation, tens of thousands of victims have been compensated and billions
    of dollars have been dispersed. That accomplishment is attributable in no small
    measure to the many people who are part of the IAP, including the appellant and
    the Eastern Administrative Judge. As noted above, this ground breaking process
    is nearing completion.  It is hoped that the parties can work together in the
    spirit of cooperation that underlies the IRSSA to resolve any concerns regarding
    the appellants performance of his duties. To the extent that the parties are
    unable to resolve outstanding issues, we would encourage them to seriously
    consider mediation.

Released: S.E.P. December 13, 2018

S.E. Pepall J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ford v. Windsor (City), 2018 ONCA 992

DATE: 20181205

DOCKET: M49841 / M49633

Lauwers J.A. (Motions Judge)

BETWEEN

Matthew Ford

Moving Party (Applicant)

and

The Corporation of the City of Windsor

Responding Party (Respondent)

Matthew Ford, in person

David Reiter and Dillon Collett, for the respondent

Heard: November 29, 2018

REASONS FOR DECISION

[1]

The appellant, Mr. Ford, is seeking leave to appeal from the costs
    decision of Pomerance J., dated July 5, 2018, in which she awarded $121,892,
    inclusive of disbursements and HST, to the City of Windsor. Because Mr. Fords
    motion for leave to appeal is still pending in this court, r. 63.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194,
the rule staying the enforcement of the order automatically is
    not in effect.

[2]

Mr. Ford asks for an order staying the Citys efforts to collect the
    costs award pending disposition of the leave application.

[3]

The City seeks to take advantage of the absence of the automatic stay in
    order to subject Mr. Ford to a judgment debtor examination. The City asks that
    Mr. Fords motion be dismissed or, in the alternative, that a term be added to
    allow the City to conduct a judgment debtor examination of Mr. Ford and to take
    any further steps that may be necessary to preserve the
status quo
pending disposition of the leave motion.

[4]

The reason for the Citys concern is that just before starting the
    action against the City of Windsor, Mr. Ford transferred his interest in the
    matrimonial home to his wife. The City takes the position that this could be a
    fraudulent conveyance designed to defeat Mr. Fords creditors, in particular
    the City. The City has remedies outside of this appeal, but it does not want to
    pursue them. It is not the function of this court to grant a form of
    pre-judgment execution.

[5]

I see no reason not to grant Mr. Ford the stay he seeks. If this court
    grants him leave to appeal, then the automatic stay will come into effect. If
    the court does not grant leave to appeal, then the City will be free to pursue
    enforcement of the costs award.

[6]

I order that the enforcement of the costs award be stayed pending
    determination of Mr. Fords motion for leave to appeal to this court.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Friday Harbour
    Village Inc. v. 2138746 Ontario Inc., 2018 ONCA 1047

DATE: 20181219

DOCKET: C64844

Doherty, Miller and Paciocco JJ.A.

BETWEEN

Friday Harbour Village Inc.

Plaintiff/Defendant by
    counterclaim

(Respondent/Appellant
    by cross-appeal)

and

2138746 Ontario Inc.

Defendant/Plaintiff
    by counterclaim

(Appellant/Respondent by
    cross-appeal)

AND BETWEEN

2138746 Ontario Inc.

Objector/Appellant

(Appellant/Respondent
    by cross-appeal)

and

Friday Harbour Village Inc.

Applicant/Respondent

(Respondent/Appellant
    by cross-appeal)

Patrick Flaherty and Brendan Brammall, for the appellant
    2138746 Ontario Inc.

Ronald Slaght, Kelly Hayden and Jeffrey Shankman, for the
    respondent Friday Harbour Village Inc.

Heard: December 11, 2018

On appeal from the judgment of Justice Margaret Eberhard
    of the Superior Court of Justice, dated December 15, 2017, with reasons
    reported at 2017 ONSC 7444, and from the costs judgment of Eberhard J., dated
    April 5, 2018, with reasons reported at 2018 ONSC 2104.

Paciocco J.A.:

[1]

2138746 Ontario Inc. (213) is the registered owner of Block C on Plan
    1021. Block C is a strip of land, informally divided into two sections, the
    Western Strip and the Marina Strip. The Marina Strip stands between parcels of
    land owned by Friday Harbour Village Inc. (Friday Harbour) used for a marina and
    resort business on Lake Simcoe.

[2]

213 and Friday Harbour are engaged in a dispute relating to Block C. That
    dispute was brought before a judge (the trial judge). She heard together an
    appeal by way of a trial
de novo
by 213 of a decision of the Deputy
    Director of Titles, and an action brought by Friday Harbour concerning the
    property.

[3]

213 appeals the trial judges decision that Friday Harbour has acquired legal
    and beneficial ownership of the Marina Strip by adverse possession, has not
    abandoned its titled right of way over the Marina Strip, has a prescriptive
    easement over the Marina Strip, and that no action in trespass lies against
    Friday Harbour for its occupation and use of the Marina Strip.

[4]

Friday Harbour is cross-appealing a finding that its right of way over
    the Western Strip has been abandoned.

[5]

213 also seeks leave to appeal the costs order made by the trial judge.

[6]

I would dismiss all of the appeals.

[7]

I see no errors with the trial judges finding of adverse possession over
    the Marina Strip.

[8]

The trial judge recognized there is a heavier onus on a party claiming
    adverse possession of property over which it also has a right of way. The party
    must prove that its use of the property was not simply an exercise of the right
    of way. She found, however, that the evidence demonstrated that the between 1963
    and 1975, and since then, Friday Harbours predecessors in title exercised such
    complete dominion, control and possession over the Marina Strip that they
    effectively, and with intention, excluded 213 and 213s predecessors in title
    from use of the Marina Strip.

[9]

I do not agree with 213s submission that the trial judge misapprehended
    the evidence by failing to appreciate that the true owner was able to use the Marina
    Strip during the period of adverse possession. She was entitled on the evidence
    before her to conclude that the titled owner only used the Marina Strip in the
    same capacity as other marina patrons, and that the titled owner was excluded
qua
owner. She committed no legal errors in making these findings.

[10]

I
    would also reject 213s submission that the evidence is incapable of supporting
    the trial judges conclusion that there was an impassable barrier across Block
    C, depriving the titled owner of access to the Marina Strip. Ample evidence
    supports this finding, including the gate that had been constructed across
    Block C, the adjoining fence, and the testimony of Mr. Williams that the whole
    gate area was overgrown and it would be tough to get through the vegetation.

[11]

The
    other means of access to the Marina Strip relied upon by 213 to oppose the
    adverse possession finding are irrelevant. 213 cannot rely upon means of access
    that would have required trespassing over other Friday Harbour land to defeat Friday
    Harbours adverse possession claim. Nor does the fact that during the relevant
    time it was possible to climb over the gate or use water access defeat the
    claim. What is relevant is whether the titled owner was able to access the
    disputed land in the ordinary manner:
Marshall v. Taylor
, [1895] 1 Ch.
    641 (Eng. C.A.), at p. 645.

[12]

In
    my view, uncertainty over who had originally installed the gate across Block C does
    not undermine the trial judges conclusions:
Raso v. Lonergan
(1996), 13
    O.T.C. 230 (Gen. Div.), at para. 5, affd (1998), 114 O.A.C. 335 (C.A.). On the
    evidence, at all relevant times all parties knew about and acquiesced to the impassable
    barrier that prevented 213s predecessors in title from accessing the Marina
    Strip.

[13]

Nor
    do I accept that the trial judge erred by finding adverse possession without
    making a finding about the intended use of the Marina Strip by 213s
    predecessors in title. The trial judge was entitled to find that the dominion
    exercised by Friday Harbours predecessors would, by its nature, defeat any use
    that a titled owner could make of the land. It necessarily follows from this
    finding that whatever uses 213s predecessors in title might possibly have
    intended would be defeated.

[14]

In
    any event, there is merit in Friday Harbours submission that given the right
    of way, the only permissible use the titled owner could make of the Marina
    Strip would be to gain access to the other lot owners land and the water, and
    that this use was entirely defeated by the impassable barrier preventing access
    to the Marina Strip.

[15]

Finally,
    I do not agree that the trial judge erred by not treating title documents
    executed by Friday Harbour or its predecessors as acknowledgements of title
    defeating the adverse possession claim. Certainly, the title documents do not constitute
    acknowledgements that deem the true owner to be in possession pursuant to
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, s. 13. The title
    documents, which include within the descriptions of title a right of way over
    Block C, were not executed for the purpose of acknowledging the title of
    another, nor were they delivered to 213 or its predecessors as an
    acknowledgment of title:
Grygorcewicz v. Agar
, 1998 CanLII 7141 (Ont. C.A.),
    at para. 3. To the extent that the common law allows the execution of these title
    documents to be relied on as evidence inconsistent with claimed adverse
    possession, the trial judge considered this evidence and was entitled to give it
    the weight she did.

[16]

I
    would therefore deny 213s appeal from the trial judges adverse possession
    finding.

[17]

Given
    that Friday Harbour has acquired title by adverse possession, it necessarily
    follows that I would also deny the appeals from the trial judges decision that
    Friday Harbour did not abandon its right of way over the Marina Strip, was
    entitled to a prescriptive easement, and did not commit an actionable tort of
    trespass. As 213 conceded before us, these outcomes follow automatically from a
    finding of Friday Harbours acquisition of title by adverse possession.

[18]

Nor
    would I accept Friday Harbours cross-appeal from the trial judges decision
    that its right of way over the Western Strip has been abandoned. While she does
    comment on the imbalance that would arise in finding otherwise, this was not
    the basis for her decision. In my view, she was saying no more than that given
    Friday Harbours adverse possession claim over the Marina Strip, Friday Harbour
    and its predecessors cannot be found to have been exercising their right of way
    when using the Marina Strip.

[19]

Her
    conclusion that Friday Harbours right of way over the Western Strip has been
    abandoned is amply supported by evidence that Friday Harbour and its
    predecessors acquiesced for many years to the impassable barrier that prevented
    them from accessing and using the right of way over the Western Strip, and by the
    decision to build an alternative roadway. I would not allow the cross-appeal.

[20]

Finally,
    I would not grant leave to 213 to appeal the costs order. The trial judges
    conclusion that Friday Harbour emphatically won, and her interpretation of the
    scope of the offer to settle, were hers to make. Nor do I accept 213s
    submission that even though it asked for almost as much in costs as were
    ordered against it, the stakes were higher for 213, making the costs claimed by
    Friday Harbour unfair and unreasonable.

[21]

This
    is not an obvious case where there are strong grounds to believe the trial
    judge erred in exercising her discretion:
Brad-Jay Investments Ltd. v.
    Village Developments Ltd.
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 92; and
Feinstein v.
    Freedman
, 2014 ONCA 205, 119 O.R. (3d) 385, at para. 52.

DISPOSITION

[22]

I
    would therefore dismiss 213s appeal and deny it leave to appeal the costs
    order. For the reasons given, I would also dismiss Friday Harbours cross-appeal.

[23]

As
    agreed between the parties, I would fix costs of the appeal in favour of Friday
    Harbour in the amount of $45,000, inclusive of disbursements and HST, and fix costs
    of the cross-appeal in favour of 213 in the amount of $15,000, inclusive of
    disbursements and HST.

Released: December 19, 2018 (D.D.)

David M. Paciocco J.A.

I agree. Doherty J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Ghawar (Re), 2018 ONCA 1008

DATE: 20181211

DOCKET: C65353

Hoy A.C.J.O., Feldman and Fairburn JJ.A.

IN THE MATTER OF: Muneeb Ghawar

AN APPEAL UNDER PART XX.1 OF THE
CODE

Janani Shanmuganathan and Erin Dann, for the appellant

Dominic Bell, for the Attorney General of Ontario

Heard: December 5, 2018

On appeal from the disposition of the Ontario Review
    Board, dated February 20, 2018.

REASONS FOR DECISION

[1]

The appellant has been under the jurisdiction of
    the Ontario Review Board (the Board) since 2014. His index offences involve
    the near lethal knife attack on an acquaintance who the appellant believed was
    going to hurt him. He was found not criminally responsible of aggravated
    assault, fail to stop for the police and breach of a probation order.

[2]

In March 2017, the appellant received a
    conditional discharge with various conditions, including that he live at his
    parents home. At his yearly review in February of this year, the Board concluded
    that the appellant remains a significant threat to the safety of the community.
    While the Board continued the conditional discharge, it removed a number of the
    conditions that had previously bound the appellants conduct.

[3]

The appellant maintains that the Board erred in
    failing to grant him an absolute discharge. He argues that the Board made three
    errors, all of which we see as intertwined. The appellant contends that at the
    hearing: (a) the evidence demonstrated that he no longer presents a significant
    threat to public safety; (b) there was no positive evidence that he remains a
    significant threat to public safety; and (c) the Board reversed the burden of
    proof, requiring the appellant to prove that he was not a significant threat to
    the safety of the public.

[4]

We disagree.

[5]

Although the appellants long-time psychiatrist
    testified in a way that supported an absolute discharge, the appellant fairly
    acknowledges that his psychiatrists opinion was not binding on the Board.

[6]

In our view, the Boards conclusion that the
    appellant continued to pose a significant threat to public safety fell within a
    range of reasonable outcomes based on the positive evidence before it. For
    instance, in coming to the conclusion that the appellant remains a significant threat,
    the Board relied upon the appellants established insufficient concern about
    his threat to public safety when psychotic, the fact that he showed initial
    reluctance to accept case management, and his refusal to switch to long-acting
    injectable antipsychotic medication. These are only some examples of the kinds
    of positive evidence relied upon by the Board in determining that the appellant
    remains a significant threat to the public. These were legitimate concerns,
    especially in light of the particularly serious nature of the index offences.

[7]

As the Board found, the appellant is dangerous
    when ill, and extremely dangerous when psychotic. In light of the whole of the
    evidence, it was open to the Board to conclude that the appellants threat of
    future serious violence was foreseeable and real, particularly in light of the
    increased stress that may result from the appellants commendable desire to
    return to university. The Board had particular regard to this courts
    jurisprudence regarding what constitutes a significant threat to public
    safety, citing
Sokal (Re)
, 2018 ONCA 113

and
Wall (Re
), 2017 ONCA 713, 417 D.L.R. (4th) 124.

[8]

We see no error in their approach.

[9]

Having decided that the appellant remained a
    significant threat to public safety, the Board considered the necessary and
    appropriate disposition, concluding that a conditional discharge was
    appropriate, while removing some of the earlier conditions, including that the
    appellant live with his family. This allowed for continued monitoring of the
    appellant while simultaneously respecting the need to ensure the least onerous
    and restrictive disposition possible.

[10]

Read contextually, the Board relied upon
    positive evidence in arriving at the conclusion that the appellant remains a
    significant threat to the safety of the public. There was no reversal of the
    burden of proof.

[11]

Accordingly, the appeal is dismissed. Like the
    Board, we acknowledge the appellants progress and encourage him to continue on
    this path to success.

Alexandra Hoy A.C.J.O.
K. Feldman J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gionet v. Pingue, 2018 ONCA 1040

DATE: 20181217

DOCKET: C65767

Sharpe, Paciocco and Harvison Young JJ.A.

BETWEEN

Guy Gionet

Applicant (Respondent)

and

Franca Pingue

Respondent (Appellant)

Serena Lein, for the appellant

Guy Gionet, acting in person via teleconference

Heard: November 23, 2018

On appeal from the order of Justice Linda M. Walters of
    the Superior Court of Justice, dated January 9, 2017.

Harvison Young J.A.:

OVERVIEW

[1]

Franca Pingue appealed a judgement settling the division of matrimonial
    property, including a matrimonial home. At the end of her hearing on November
    23, 2018, her appeal was denied, with reasons to follow. These are those reasons.

[2]

The appellant Franca Pingue (Ms. Pingue) and the respondent Guy Gionet
    (Mr. Gionet) were married on August 10, 2003 and separated on September 2,
    2013. Ms. Pingue worked as a teacher throughout the relationship. Mr. Gionet
    was employed at the beginning of the marriage but at a later point, he left his
    employment to devote his full-time efforts to the parties family enterprise of
    buying, fixing and selling real estate properties. There is no dispute that Ms.
    Pingue earned a higher income for most of the marriage. At the heart of her
    position at trial, and her arguments on appeal to this court, was the view that
    because she had contributed more to the assets of the marriage, she should be
    entitled to a greater share than Mr. Gionet.

[3]

The only issue at trial was the equalization of net family property
    (NFP) which turned mainly on the value of the matrimonial home and whether it
    was held beneficially by both parties, or whether Ms. Pingue was the sole owner
    because she alone was on title as the owner. This was important to the parties
    because had the home been solely owned by Ms. Pingue, Mr. Gionet would not have
    been entitled to share in any post- separation date appreciation of the
    matrimonial home. As was evident from the record at trial, the matrimonial home
    increased in value significantly between the parties separation in September,
    2013 and the trial in August, 2016.

[4]

While Mr. Gionet was represented at trial, Ms. Pingue was not. After a
    six day trial, the trial judge found that Mr. Gionet was a beneficial owner of
    the matrimonial home. She accepted the evidence of Mr. Gionet as to the value
    of the matrimonial home on the date of trial. In the result, Mr. Gionet was
    ordered to pay Ms. Pingue an equalization payment of $59,535.98. The trial
    judge awarded costs against Ms. Pingue in the amount of $50,000.

THE ISSUES ON APPEAL

[5]

Ms. Pingue submits that the trial judge erred:

1.

in finding that Mr. Gionet was a beneficial owner of the matrimonial
    home;

2.

in failing to grant an adjournment requested by Ms. Pingue four days
    into the trial;

3.

in failing to meet her duty to assist Ms. Pingue as a self-represented litigant;

4.

in failing to award Ms. Pingue an unequal division of the net family
    property pursuant to s. 5(6) of the
Family Law Act
, R.S.O. 1990, c. F. 3
    (the Act).

[6]

I find no merit to any of the grounds raised and I would dismiss the
    appeal for the following reasons.

[7]

At the outset I note that the standard of review is well established:
    see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 33, at
    paras. 8-9;
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at paras. 10-11.

ANALYSIS

The finding that Mr. Gionet was a beneficial owner of the
    matrimonial home

[8]

Ms. Pingue argues that the trial judge misapplied the law in finding
    that she had failed to rebut the presumption of a resulting trust in favour of Mr.
    Gionet. While Ms. Pingue concedes that the governing law is well summarized
    in
Korman v. Korman
, 2015 ONCA 578, 126 O.R. (3d) 561, she argues that
    the trial judge incorrectly applied
Korman
, because in that case, the
    husband had transferred his half interest in the matrimonial home to his wife
    in order to defeat creditors, a fact not present in this case.

[9]

Here, the matrimonial home was purchased solely in Ms. Pingues name. This
    fact, and the fact that she contributed a disproportionate share of the
    mortgage and carrying costs should have been sufficient, according to Ms.
    Pingue, to demonstrate that the parties intended from the outset that she would
    be the sole beneficial and legal owner of the matrimonial home. Ms. Pingue
    acknowledged that the date of separation value of the matrimonial home would be
    equalized in any event. However, while the post-separation value of the house
    would accrue entirely to Ms. Pingue in the absence of a resulting trust, it
    would be shared with Mr. Gionet if he was, as the trial judge held, a
    beneficial owner.

[10]

I
    do not agree that the trial judge misapplied
Korman
. She accurately
    set out the principles of
Korman
, and explained their application to
    the facts of this case.

[11]

She
    began by correctly stating that the first step towards calculating any
    equalization payment is the determination of each partys net family property,
    which includes resolving all questions of title to property including any trust
    claims advanced (para. 30).

[12]

The
    trial judge correctly referred to
Korman
and s. 14 of the Act,

which
    states that:

[t]he rule of law applying a presumption of a resulting trust
    shall be applied in questions of the ownership of property between spouses, as
    if they are not married

[13]

The
    trial judge correctly applied s. 14 and went on to consider whether Ms. Pingue had
    rebutted the presumption of a resulting trust in favor of Mr. Gionet and that
    he had gifted his interest in the property to her. The trial judge found, at
    para. 35, that Ms. Pingue had not rebutted the presumption:

the historic property dealings between these two parties from
    the date of marriage is inconsistent with any other conclusion but that they
    were involved in a joint financial venture. Mr. Gionet testified that they
    would purchase, fix and then sell properties, hopefully at a profit. Title to
    the properties was taken in the name of one or both or a company
    interchangeably. Funds to purchase the properties came from joint sources.

[14]

There
    was ample evidence at trial to ground this conclusion and I see no basis for
    intervention by this court.

[15]

At
    trial, Ms. Pingue argued that she should be entitled to an unequal and larger division
    of the value of the matrimonial home (as well as the value of all family
    assets) during the marriage and up to the date of separation because she had
    earned more and contributed more in the course of the marriage. This position
    was clearly at the heart of her position at trial and in this appeal.

[16]

As
    the trial judge quite properly noted in her reasons, at para. 11:

[T]he court does not conduct itself with how parties conduct
    their affairs while cohabiting. I have not accepted [Ms. Pingues] attempt to
    claim a greater portion of family assets based on a higher percentage of
    contribution by her during the 10-year relationship.

[17]

The
    trial judges conclusion on this point is entirely consistent with the purpose
    of equalization under the Act, as expressed in s. 5(7):

The purpose of this section is to recognize that child care,
    household management and financial provision are the joint responsibilities of
    the spouses and that
inherent in the marital relationship there is
    equal contribution
, whether financial or otherwise, by the spouses to
    the assumption of these responsibilities, entitling each spouse to the
    equalization of the net family properties, subject only to the equitable
    considerations set out in subsection (6). [Emphasis added.]

[18]

The
    Act thus requires that the net family property of each spouse be shared equally
    upon marriage breakdown, based on a presumption that the spouses contributed
    equally during the marriage. This approach to the division of property reflects
    a clear policy choice on the part of the Ontario legislature:
Best v. Best
,
    [1999] 2 S.C.R. 868, at para. 3. In giving effect to the legislatures intent,
    it is not the role of the court to weigh the actual contributions made by each
    spouse or to alleviate every situation that may be viewed as in some ways
    unfair or inequitable:
Ward v. Ward,
2012 ONCA 462, 111 O.R. (3d) 81,
    at para. 25. Rather, equalization is mandatory, subject only to the exception
    set out in s. 5(6) of the Act, which I will discuss below, and to the
    provisions of any applicable and valid domestic contract between the married
    spouses pursuant to s. 2(10).

The trial judges refusal to grant an adjournment

[19]

Ms.
    Pingue submits that the trial judges denial of her request for an adjournment
    resulted in an unfair trial. She says an adjournment was warranted for the
    purpose of calling her expert, Mr. Ellwood, to testify as to the current value
    of the matrimonial home.

[20]

The
    scope for appellate intervention with respect to a trial judges denial of an
    adjournment is limited. The decision to deny an adjournment is discretionary,
    and will only be interfered with if the trial judge failed to take account of
    relevant factors and exercised his or her discretion unreasonably, such that
    the decision is contrary to the interests of justice:
Boaden Catering
    Limited v. Real Food for Real Kids Inc.,
2017 ONCA 248, at para. 17.

[21]

There
    is no reason in this case to interfere with the trial judges decision to refuse
    to adjourn the trial. Ms. Pingue had ample notice of the trial dates, and
    elected to call one expert witness, Mr. Lewis, to testify in the area of
    chartered accounting. This demonstrates that she was aware of the need to
    ensure her witnesses were available for trial.

[22]

When
    asked on the first day of trial if she intended to call Mr. Ellwood as a
    witness, Ms. Pingue was equivocal:

THE COURT: And you will be calling Mr. Ellwood?

FRANCA PINGUE: I, I did ask. I said should the other party want
    to cross-examine you, I did ask, I had him sign the, all the forms and so forth
    early on, and then as of recently because hes been away a lot, I asked him
    should the other party need to cross-examine you, when and will you be
    available. So I'm waiting to hear back from him. Hes not the easiest man to
    track down.

[23]

Later
    that day, she confirmed that she did not intend to call Mr. Ellwood:

THE COURT: So I guess  are you, do you plan on calling him,
    yes or no?

FRANCA PINGUE: I, I emailed him and I said you may be, you may have
    to come in as a witness....

THE COURT: This is your case.

FRANCA PINGUE: I know.

THE COURT: Mr. Shapiro is saying its not up to him.

FRANCA PINGUE: Oh, okay.

THE COURT: He is not going to call him as a witness. Its your
    case. In your case, do you plan on calling him as a witness?

FRANCA PINGUE: No.

THE COURT: All right. That's fine. Then I'm not going to permit
    the question. Go ahead.

[24]

On
    the fourth day of trial Ms. Pingue changed her mind. She sought not only to
    call Mr. Ellwood, but to obtain a two-week adjournment for this purpose. The
    trial judge, who had previously advised the parties of the courts
    unavailability until October 2016, denied the adjournment request but allowed Ms.
    Pingue to call Mr. Ellwood on one of the remaining days of trial:

THE COURT: That is why I asked is do you have the witness here
    that you can call, so he can be cross-examined by Mr. Shapiro. I asked you that
    a few days ago. You are certainly free to call him now, and your case is not
    completed. You can call him.

A. I know, but he can't be here for two weeks.

THE COURT: I'm sorry. That is your evidence. Somebody  and
    that is, this is the trial. I am not adjourning the trial for two weeks. You
    knew when your trial date was. You knew to be prepared for trial. This is not a
    surprise. You have to be  have your witnesses lined up. You cannot just file
    the documents.

A. Okay....

[25]

Considering
    Ms. Pingues equivocations on calling Mr. Ellwood, the late timing of her adjournment
    request, and the significant delay an adjournment would cause given the judges
    own availability, the trial judges exercise of her discretion to deny the request
    was neither unreasonable nor contrary to the interests of justice.

[26]

Moreover,
    Ms. Pingue was not prejudiced by the refusal of this adjournment request
    because the trial judge did take the experts valuation report into
    consideration. However, she did not accept the value set out in the valuation
    report because it gave only a 2014 value ($508,000) for the matrimonial home,
    while Mr. Gionets expert, Ms. Evans, opined that its value as of July 2016 was
    $690,000.

[27]

In
    addition, while Ms. Pingue submits that the trial judge overvalued the
    matrimonial home, she has adduced no evidence to show that the valuation was
    wrong or that her expert would have offered a lower value. She could have
    sought to do so with a motion to adduce fresh evidence on appeal, but she did
    not. In these circumstances, it would be entirely speculative for us to order a
    new trial on this issue.

[28]

There
    is no merit to this ground of appeal.

The duty to assist a self-represented litigant

[29]

Ms.
    Pingue submits that the trial judge erred in failing to provide her the
    assistance she was owed as a self-represented litigant. Ms. Pingue points to
    instances where the trial judge limited the scope of Ms. Pingues examination
    of opposing witnesses on the basis that the questions were either irrelevant or
    repetitive. She also cites instances where the trial judge refused to admit
    documentary evidence that Ms. Pingue wished to file.

[30]

The
    duty of a trial judge to assist self-represented litigants was canvassed most
    recently by this court in
Dujardin v. Dujardin Estate
, 2018 ONCA 597:

it is well-accepted that trial judges have special duties to
    self-represented litigants, in terms of acquainting them with courtroom
    procedure and the rules of evidence:
Davids v. Davids
(1999), 125
    O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It
    does not entail bending the rules of evidence in an attempt to compensate for
    the lack of representation. The fair trial rights of opposing parties must be
    respected. As Brown J.A. said in
Sanzone v. Schechter
, 2016 ONCA 566,
    402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that
    a claim of liability brought against it will be decided by the same rules of
    evidence and substantive law whether the plaintiff is represented by counsel or
    self-represented."

[31]

In
    ensuring that a self-represented litigant has a fair trial, the trial judge
    must treat the litigant fairly and attempt to accommodate their unfamiliarity
    with the trial process, in order to permit them to present their case:
Davids
    v. Davids
(1999), 125 O.A.C. 375, at para. 36.

[32]

A
    review of the transcript of proceedings belies Ms. Pingues submissions on this
    ground. The trial judge made significant and sustained efforts throughout the
    course of trial to assist her. The trial judge provided detailed answers to Ms.
    Pingues questions, explained various aspects of trial procedure and the rules
    of evidence, and allowed for brief adjournments to facilitate settlement
    discussions and document review.

[33]

The
    trial judges decision to focus Ms. Pingues often lengthy examinations was an
    appropriate exercise of her trial management powers. The trial judge went to
    great lengths to provide appropriate assistance to Ms. Pingue while ensuring
    that the trial was also fair to Mr. Gionet and that it was managed as
    efficiently as possible.

[34]

This
    ground of appeal is therefore also without merit.

Did the trial judge err in rejecting Ms. Pingues claim for an
    unequal division of the NFP pursuant to s. 5(6) of the Act?

[35]

Finally,
    Ms. Pingue argues that the trial judge erred in failing to award her an unequal
    division of the NFP pursuant to s. 5(6) of the Act. I find no merit in this
    submission.

[36]

It
    is clear from the case law interpreting s. 5(6) that the test to be applied in
    ordering an unequal division of NFP is not mere unfairness but a shock to
    the conscience:
Ward
, at para. 36
.
    This is not such a case. Rather, the gravamen of Ms. Pingues arguments at
    trial and at this appeal is her view that because she contributed more to the
    assets acquired in the course of marriage, she should be entitled to more now. As
    I have explained above, and as the trial judge recognized, this view is
    antithetical to the scheme of marital partnership in the Act.

CONCLUSION

[37]

For
    these reasons, I would dismiss the appeal. Mr. Gionet did not ask for costs and
    accordingly, there will be no order as to costs.

Released: RJS Dec 17 2018

Harvison Young J.A
I agree. Robert J. Sharpe J.A.
I agree.
David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hart v. Balice, 2018 ONCA 1065

DATE: 20181220

DOCKET: C65657

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Melissa Hart and
    Patricia Hart

Appellants/Plaintiffs

and

Victoria Balice

Respondent/Defendant

Melissa Hart, acting in person

Ashley Ferguson, for the respondent

Heard and released orally: December 18, 2018

On appeal from the judgment of Justice Beth A. Allen of
    the Superior Court of Justice, dated July 13, 2018.

REASONS FOR DECISION

[1]

The appellants claim, commenced in 2017, is that the respondent
    wrongfully issued and enforced a lien (apparently a writ of seizure and sale)
    against her property. The motion judge dismissed her claim on summary judgment
    for two reasons: 1) the claim was statute-barred because the appellant, by her
    own admission, was aware of the lien in 2009; and 2) the appellant provided
    no evidence that the alleged lien caused her any damage.

[2]

The appellant has not demonstrated that the motion judge made any error
    in her assessment of the evidence. She concedes in this court that there was no
    evidence before the motion judge that the alleged lien was in any way connected
    with the sale of her property under a mortgage. Indeed, there is no evidence
    that the respondent benefitted in any way from the alleged lien.

[3]

The motion judges finding that the claim was time-barred was based on
    an admission in the appellants reply, and the appellant has not demonstrated
    any error in that conclusion.

[4]

For these reasons, the appeal is dismissed with costs to the respondent
    in the amount of $1,500, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hatami v. 1237144 Ontario Inc., 2018 ONCA 1061

DATE: 20181219

DOCKET: C65058

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Shahnaz Hatami

Applicant (Appellant)

and

1237144 Ontario Inc.

Respondent (Respondent)

Elena E. Mazinani, for the appellant

J. Anthony Caldwell, for the respondent

Heard and released orally: December 12, 2018

On appeal from the judgment of Justice P.J. Monahan of
    the Superior Court of Justice dated January 26, 2018, with reasons reported at
    2018 ONSC 668.

REASONS FOR DECISION

[1]

The appellant appeals a summary judgment dismissing her claim for
    recovery of a $200,000 deposit she paid for the purchase of a property at 291 Eglinton
    Avenue East in Toronto. The property was zoned R4 Az4, a residential zoning in
    which office space is permitted, and had been used by the respondent as
    commercial office space.

[2]

These proceedings were commenced as an application. Pursuant to interlocutory
    orders, the matter proceeded to a hearing by way of summary judgment with the
    motion judge hearing oral evidence from three witnesses. The motion judge
    dismissed the appellants claim that the respondent had misrepresented the
    zoning of the property. He further concluded that there was no breach of
    agreement by the respondent and he also found that there had been anticipatory
    breach by the appellant that entitled the respondent to retain the deposit.
    Finally, he rejected the appellants argument that it was unconscionable for
    the respondent to retain the deposit.

[3]

On appeal, the appellant does not take issue with the motion judges
    conclusion on unconscionability. The appellant argues first that the motion
    judge erred in failing to find that the respondents agent negligently
    represented that the property was zoned commercial when in fact it was zoned
    residential. In her submission, the negligent misrepresentation was such that
    the respondent could not rely on the agreement of purchase and sale and could
    not therefore retain the deposit. We disagree.

[4]

The motion judge found as a fact that the agent never represented the
    property as being zoned commercial. This finding was available on the record
    before the motion judge. We do not accept that the motion judge committed a palpable
    and overriding error in so finding. In making his finding, he considered all of
    the relevant evidence, including the text message that the appellant seeks to
    rely on in her argument before this court.

[5]

The appellant further argues that the motion judge erred in failing to
    find that the respondent was not ready, willing and able to close the
    transaction, which is a requirement in order for the respondent to retain the
    deposit. We disagree.

[6]

At the motion for summary judgment, the appellant argued that the respondent
    was in breach of the agreement of purchase and sale by failing to respond to
    its requisitions to certify on or before closing that the transaction was not
    subject to HST and to provide a survey. The motion judge rejected this argument.
    He concluded that the agreement of purchase and sale did not impose such
    obligations and that the failure to respond to the requisitions in respect of
    these matters would not have relieved the appellant of its obligation to close
    the transaction.

[7]

In any event, the motion judge was satisfied on the evidence that the
    respondent had provided a survey and that it had properly refused to sign a
    certificate that HST was not applicable. He found that due to the use of the
    property, the respondent believed that HST was payable on the sale. These
    findings and conclusions are fully supported by the evidence. The motion
    judges analysis at paragraphs 43-50 of his reasons explain his findings and
    conclusions. These are unassailable.

[8]

Finally, the appellant argues that the motion judge erred in finding
    that the appellants anticipatory breach entitled the respondent to retain the
    deposit. She maintains that the respondent chose to keep the agreement alive
    and, thereafter, breached the agreement by failing to set a new closing date
    and by making a defective tender. We disagree.

[9]

Contrary to the appellants submissions, the motion judge found that in
    response to the appellants repudiation, the respondent clearly elected to
    terminate the agreement for breach of contract, retain the deposit and preserve
    its right to sue for damages. This was clear from the email sent late on the
    day of closing by the respondents counsel. The respondents tender the next
    day was, as found by the motion judge, simply done out of an abundance of
    caution and was not necessary.

[10]

For
    these reasons, the appeal is dismissed. Costs to the respondent fixed in the
    amount of $9,000 inclusive of disbursements and HST.

Paul Rouleau J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Haworth v. Haworth, 2018 ONCA 1055

DATE: 20181220

DOCKET: C65157

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Brenda Winnifred Haworth

Applicant (Appellant)

and

John David Haworth

Respondent (Respondent)

Brenda Haworth, in person

Mark A.B Frederick, for the respondent

Heard: November 29, 2018

On appeal from the
    order of Justice Timothy Minnema of the Superior Court of Justice, dated January
    9, 2018, with reasons reported at 2018 ONSC 159.

REASONS FOR DECISION

(I) Overview

[1]

The parties separated in 1985 after a 17-year marriage. They agreed on minutes
    of settlement in 1991. Their agreement is reflected in a divorce judgment from
    that same year.

[2]

The respondent brought a motion to vary the divorce judgment, but the appellant
    did not appear. The respondent asked for changes to various provisions,
    including clauses relating to insurance and security for payment of spousal
    support. The motion was granted and the divorce judgment varied accordingly on
    October 5, 2015 (the 2015 order).

[3]

In the fall of 2017, the respondent brought a further motion to change
    the 1991 divorce judgement. This time he asked to be relieved of his spousal
    support obligations. The appellant opposed that motion and, at the same time,
    sought to have the 2015 order varying the divorce judgment set aside. This is
    an appeal from the order: (1) dismissing the appellants motion to have the
    2015 order set aside; and (2) granting the respondents motion, decreasing the
    spousal support from $4,000 to $1 per month.

(II) The Motion to Set Aside the
    2015 Order

[4]

The appellant claims that the motion judge erred in dismissing her
    request to have the 2015 order set aside. She advances the same argument in
    this court that she did before the motion judge. She says that she did not
    receive procedural fairness given that she had no notice of the original motion
    to change.

[5]

The motion judge gave numerous reasons for refusing to set aside the
    2015 order. He was satisfied that the appellant knew about the hearing long
    before it occurred and was properly served with all motion materials. Moreover,
    the motion judge found that the appellant did not have an arguable defence on
    the merits. Nor did she move promptly to have the judgment set aside.

[6]

In our view, the motion judge considered all relevant criteria and
    provided convincing reasons for why the 2015 order should not be set aside. We
    see no error in his approach.

(III) The Motion to Decrease
    Spousal Support

[7]

The appellant also appeals from the motion judges decision to vary the
    respondents support obligation. The divorce judgment arose from minutes of
    settlement that had been reached by the parties. They had agreed upon the
    respondents support obligations to the appellant. That agreement had been
    endorsed by the court in the 1991 divorce judgment, requiring the respondent to
    pay spousal support in the amount of $4,000 per month until the [appellant]
    dies.

[8]

The appellant argues that there is no basis upon which this agreement,
    distilled into a court order, can be changed and, therefore, the motion judge
    erred in varying the support from $4,000 to $1 per month. The appellant
    contends that, even in the face of a material change in circumstances, an agreement
    is an agreement and the support obligation cannot be altered.

[9]

Although we disagree that the support obligation in this case was not
    susceptible to change, we find that the motion judge erred in two ways in
    arriving at the change from $4,000 to $1 per month: (a) in considering what
    constitutes a material change in circumstances; and (b) in failing to give any
    deference to the original order of support.

(a) Threshold of Material Change
    in Circumstances

[10]

The
    respondent had a successful 49 year dentistry practice. When the parties
    entered into their minutes of settlement and the divorce judgment issued in
    1991, the respondent was earning between $250,000 and $300,000 per year. As
    retirement approached, the respondent put the appellant on notice that he would
    eventually seek to have the spousal support terminated. Once he was retired,
    and the respondents income had dropped to $65,000 per year (not including
    interest and investment income), the respondent brought the motion. That motion
    was ultimately decided when the parties were 73 years of age.

[11]

In
    deciding to change the spousal support from $4,000 to $1 per month, the motion
    judge concluded that there had been two material changes in circumstances. He
    found that the most significant material change was the appellants decision
    not to seek employment since the separation. Although the motion judge said
    that there was no obligation on the appellant to become self-sufficient, there
    was an obligation on her as a spousal support recipient to make reasonable
    efforts to contribute to her own support. She had not done so. Indeed, as
    pointed out by the motion judge, the appellant admitted in her motion materials
    that she had stopped working after the birth of their second child and that she
    was certain that the settlement would provide enough income for her to
    structure her post-divorce life as wanted.

[12]

The
    motion judge concluded that the second material change in circumstances arose
    from the respondents retirement and the corresponding substantial decrease in his
    annual income. Given that the respondent was 72 years of age when he retired,
    this was not a situation where the payor spouse took an early retirement to
    avoid support obligations. Rather, the respondent retired at a reasonable age
    and his new $65,000 base income was to be derived from RRIF withdrawals and his
    CPP and OAS entitlements. Even if one were to add the amount that may be
    derived from the husbands investments, at an annual rate as high as five
    percent, his income would not approach his earnings in 1991 dollars.

[13]

We
    disagree that the appellants failure to seek employment since 1991 constitutes
    a material change in circumstances. The clear wording of the divorce judgment was
    that spousal support would continue to death. The appellant was entitled to
    rely upon that judgment. The respondent waited far too long to raise the
    appellants decision not to seek gainful employment until an age when she was effectively
    precluded from correcting the situation.

[14]

We
    would, however, agree with the motion judge that the respondents substantial
    decrease in annual income does meet the threshold for variation: while the
    agreement specified support for life for the appellant, it also expressly
    contemplated a salary level far exceeding what the respondent will receive in
    retirement. As in
Schulstad v. Schulstad,
2017 ONCA 95, 91 R.F.L.
    (7th) 84, while retirement may have been within the parties contemplation at
    the time, the effect of that retirement was not considered in fixing the amount
    of support. Again, as in
Schulstad
, it would not have been possible
    for the parties, or the judge making the original order, to know what the
    respondents financial circumstances would be at retirement some 25 years
    later.

(b) Deference to the Original Support
    Order

[15]

Having
    found material changes in circumstances, the motion judge went on to consider
    the four objectives that apply to a variation of spousal support under s. 17(7)
    of the
Divorce Act
, R.S.C., 1985, c.3 (2
nd
Supp.)
.
He
    concluded as follows:

a)

Any economic disadvantages to the appellant arising from the marriage
    breakdown had long passed. Indeed, the motion judge concluded that the wife had
    structured her post-divorce life in a way that allowed her to live life to the
    fullest and not work.

b)

The appellant had suffered no adverse financial consequences as a result
    of the childrens care.

c)

To the extent that the appellant was experiencing any financial
    hardship, it did not arise from the marriage but from her own decision not to
    work.

d)

Although the motion judge acknowledged that there was no expectation
    that the wife would obtain employment now that she is in her 70s, he concluded
    that she could rearrange or manage her assets, including residences in France
    and Panama, to secure an increased income stream if desired.

[16]

Having
    regard to those factors, the motion judge reduced the spousal support from
    $4,000 to $1 per month. This effectively amounted to a rescission of the support
    order.

[17]

In
    our view, the motion judge erred in that approach to the variation.

[18]

Conspicuously absent from his reasons is an acknowledgement that the
    original support order  assumed to itself be in compliance with the
Divorce
    Act
objectives  expressly provided for spousal support for
    life: each and every month thereafter until the [appellant] dies.

[19]

As Bastarache and Arbour JJ. said in
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at para 62
:
    judges making variation orders under s. 17 limit themselves to making the
    appropriate variation, but do not weigh all the factors to make a fresh order
    unrelated to the existing one, unless the circumstances require the rescission,
    rather than a mere variation of the order. (See also:
L.M.P. v.
    L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 47.) The
    fact is that the spousal support order
reflected what had been agreed
    upon by the parties and that order was only one component of a larger
    agreement.

[20]

When
    the minutes of settlement, as endorsed by the divorce judgment, are read
    contextually, the parties agreement on support for life makes more sense. Using
    the original support order as the starting point, it is apparent that the
    on-going support amount of $4,000 per month was not just for compensatory support.
    Indeed, another provision in the order set out $40,000 expressly for
    compensatory support. This suggests that the monthly support provision
    contemplated at least some non-compensatory entitlement.

[21]

The variation to spousal support had to be considered against the
    backdrop of the original order which was arrived upon in the context of a
    broader agreement. This was not a case that required a rescission of the
    original support order. Instead, the motion judge should have used the original
    support order and varied it only to the extent required by the change:

Pustai v. Pustai
, 2014 ONCA 422, 47 R.F.L. (7th) 56,
    at para. 26. The respondents decreased income, combined with the motion judges
    finding that the appellant does not face economic hardship, were relevant
    considerations in determining the extent of the variation.

[22]

Accordingly,
    we would reduce the previously ordered spousal support in proportion with the
    respondents decreased income. Although the
Spousal Support Advisory
    Guidelines
(
SSAG
s) became available long after the time of the
    parties agreement, they still provide some insight into the level of agreed
    upon support back then. Applying the
SSAG
s to the parties respective
    incomes helps put the original support order in context. Taking into account
    the 17-year marriage, the parties ages, an earned income of $275,000 per year
    for the respondent at the time (to use the mid-point of his salary range) and attributing
    no income to the appellant, yields roughly $6,000-8,000 per month for the appellant
    for approximately 8.5  17 years.

[23]

Looked
    at in this way, the original order was for a low amount of support, i.e. only
    $4,000, but for a potentially much longer period of time, i.e. the appellants lifetime.
    Now that the respondents income has decreased to the equivalent of an earned
    income of $65,000 plus a return on his investment estimated at 27,000 per year (3%
    on one half of his jointly owned open investments of $1.8 million), and the
    appellants income has increased to $32,000 per year, the amount of support should
    be varied accordingly. Given that the original support constituted
    approximately two thirds of the low end of the SSAGs, we would continue with
    that same formula, but based upon current income. Having regard to the parties
    current income, today the low end of the SSAGs would be $1,275. Two thirds of
    that amount is $850 per month for life.

(IV) Conclusion

[24]

We would set aside the order reducing the spousal support to $1
    and make a new order reducing the spousal support from $4,000 per month to $850
    per month for life.

[25]

Given the appellants mixed success on appeal, we would vary the
    trial judges costs order, requiring that the appellant pay the respondent $8,000
    (instead of $26,000) in costs.
In light of the mixed success
    on appeal, no costs will be ordered.

Doherty J.A.
B.W. Miller J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hosseinzadeh v. Pringle, 2018 ONCA 1020

DATE: 20181212

DOCKET: C65330

Feldman, van Rensburg and Nordheimer JJ.A.

BETWEEN

Daryoush Hosseinzadeh

Plaintiff (Appellant)

and

Nancy Ann Pringle
and Century 21 Leading
    Edge Realty Inc.

Defendants (
Respondent
)

Robert Hine and Maryam Shahidi, for the appellant

Jordan Potasky, for the respondent

Heard: November 29, 2018

On appeal from the judgment
    of Justice Patrick J. Monahan of the Superior Court of Justice, dated March 29,
    2018, with reasons reported at 2018 ONSC 1947.

REASONS FOR DECISION

[1]

The appellant appeals from the summary judgment order that dismissed his
    action for the return of the $100,000 deposit he paid on a real estate
    agreement and ordered that the deposit be forfeited to the respondent.

[2]

The respondent owned 38 Alder Road, Toronto, Ontario (the
    "Property"). The Property comprises a detached two-story residential
    home on an irregular corner lot. On or about January 9, 2017, the Property was
    listed for sale on the Multiple Listing Service ("MLS") at a price of
    $1,288,888. In order to list a property on the MLS, the lot dimensions must be
    included in the listing.

[3]

The respondent did not have a survey of the Property. Consequently, the
    respondents real estate agent consulted the Municipal Property Assessment
    Corporation's ("MPAC") database to obtain the lot dimensions. The
    MPAC database had a frontage for the Property but not a depth. The real estate
    agent therefore attended at the Property and did his own measurement of the
    depth. Both this measurement and the frontage from the MPAC database were
    placed into the MLS listing.

[4]

The appellant made an offer for the Property at about 9 p.m. on January
    26, 2017. In the offer, he included the dimensions from the MLS listing,
    namely, he described the Property as having a frontage of 87.64 feet more or
    less by a depth of 100 feet more or less. At 12:03 a.m. on January 27, 2017, the
    respondent signed back the appellants offer. Included in the changes made to
    the offer was the addition of the words To be verified, manually inserted into
    the offer above the depth of 100 feet.

[5]

At 12:45 a.m. on January 27, 2017, the appellant accepted the
    respondents counteroffer and subsequently provided the respondents real
    estate agent with a deposit in the amount of $100,000.00.

[6]

Thereafter the appellant investigated the actual dimensions of the Property
    since he intended to subdivide the Property. The appellant became concerned
    about the dimensions of the Property when he consulted a program called GEOwarehouse,
    which showed the Property as having dimensions of 78.3 feet x 69.17 feet x
    145.17 feet.

[7]

On February 14, 2017, the appellant took the position that because of
    the discrepancy between the lot dimensions as described in the Agreement of
    Purchase and Sale and those contained in the GEOwarehouse program, he would
    only close the transaction if the purchase price were reduced to $1,050,000.
    The respondent refused to abate the purchase price and the transaction failed
    to close on February 15, 2017.

[8]

The appellant then brought this action for return of the deposit. The
    matter proceeded for determination by summary judgment, with the agreement of
    both parties.

[9]

The motion judge made a number of findings. First, he found that there
    was a significant inaccuracy in the description of the Propertys dimensions in
    the Agreement of Purchase and Sale. Second, he found that a discrepancy of that
    magnitude fell well outside the more or less language in the standard form
    agreement.

[10]

In
Bouskill v. Campea
(1976), 12 O.R. (2d) 265 (C.A.), at p. 266, this
    court held that a discrepancy too substantial to be encompassed by the words
    more or less will allow a purchaser to resile from the transaction and obtain
    the return of their deposit.

[11]

Third,
    the motion judge found that only the addition of the phrase To be verified,
    which he referred to as the proviso, distinguished the case from other cases
    referred to by the parties, including
Bouskill
.

[12]

Here,
    the motion judge identified the issue as the interpretation and effect of the proviso.
    He found that the proviso put the purchaser on notice that it was his
    responsibility to verify the accuracy of the lot dimensions, and that if he was
    unwilling to accept that responsibility, he should not have accepted the
    contract. Finally, the motion judge found that the effect of the proviso was to
    put the risk of any inaccuracy in the lot dimensions on the purchaser.

[13]

The
    motion judge was interpreting a manual addition to a standard form contract.
    While the standard of review of the interpretation of the parties addition
    would normally be the deferential standard, following
Sattva Capital Corp.
    v. Creston Moly Corp.
, 2014 SCC 53, [2014] S.C.R. 633, the fact that the
    alteration was to the standard form real estate board form of agreement of
    purchase and sale imports the principle from
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at
    para. 21, which suggests that the correctness standard would apply. Because we
    conclude that the decision must be set aside, either on the basis that the
    motion judges interpretation is incorrect or tainted by palpable and
    overriding error, it is not necessary to decide the applicable standard of
    review in this case.

[14]

In
    our view the motion judge erred in his interpretation of the proviso by finding
    that it imposed an obligation on the purchaser, before the agreement was signed
    by both parties and became binding, to verify the dimensions of the property to
    his satisfaction.

[15]

The
    proviso did not become a term of the contract until it was signed by both
    parties. Nor did the proviso say To be verified
by the purchaser
. Therefore,
    the proviso could not be interpreted as imposing an obligation on the purchaser
    to verify the dimensions before the agreement was signed and accepted. Rather,
    the proviso must be interpreted as simply saying that the depth dimension of
    100 ft., which all parties knew had not been taken from a survey, had to be
    verified. Its accuracy was not to be taken as a representation by the vendor
    (or the agent).

[16]

Further,
    there is nothing in the phrase which says that its intent or effect was to
    transfer the risk of the inaccuracy of the depth dimension to the purchaser, or
    to remove the effect of the words more or less, which remained in the
    agreement.

[17]

Based
    on the finding of the motion judge that without the proviso the discrepancy was
    outside the more or less flexibility of the contract, the purchaser is
    allowed to resile from the agreement and receive the return of his deposit.

[18]

Therefore
    the appeal is allowed. The order granting summary judgment to the respondent is
    set aside and in its place judgment will issue in favour of the appellant for
    $100,000, that is, the return of the deposit, along with applicable interest.

[19]

The
    respondent will pay to the appellant the costs of the appeal fixed in the
    agreed amount of $10,000, inclusive of disbursements and HST. The appellant is
    also entitled to the costs of the motion for summary judgment that the motion
    judge fixed at $27,015.68, also inclusive of disbursements and HST.

K.
    Feldman J.A.

K. van
    Rensburg J.A.

I.V.B.
    Nordheimer J.A.