WARNING

The President of the panel
hearing this appeal directs that the following should be attached to the file:

An order restricting
publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
(4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
sections of
the Criminal Code
provide:

486.4(1)       Subject
to subsection (2), the presiding judge or justice may make an order directing
that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in
proceedings in respect of

(a)     any of the
following offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
with in the same proceeding, at least one of which is an offence referred to in
paragraph (a).

(2)     In proceedings
in respect of the offences referred to in paragraph (1)(a) or (b), the
presiding judge or justice shall

(a)     at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and

(b)     on application
made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
subsection (2.2), in proceedings in respect of an offence other than an offence
referred to in subsection (1), if the victim is under the age of 18 years, the
presiding judge or justice may make an order directing that any information
that could identify the victim shall not be published in any document or
broadcast or transmitted in any way.

(2.2) In proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
inform the victim of their right to make an application for the order; and

(b) on application of
the victim or the prosecutor, make the order.

(3)     In proceedings
in respect of an offence under section 163.1, a judge or justice shall make an
order directing that any information that could identify a witness who is under
the age of eighteen years, or any person who is the subject of a
representation, written material or a recording that constitutes child
pornography within the meaning of that section, shall not be published in any
document or broadcast or transmitted in any way.

(4)     An order made
under this section does not apply in respect of the disclosure of information
in the course of the administration of justice when it is not the purpose of
the disclosure to make the information known in the community. 2005, c. 32, s.
15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
person who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
referred to in subsection (1) applies to prohibit, in relation to proceedings
taken against any person who fails to comply with the order, the publication in
any document or the broadcasting or transmission in any way of information that
could identify a victim, witness or justice system participant whose identity
is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. V.L., 2020 ONCA 87

DATE: 20200204

DOCKET: C66807

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her
Majesty the Queen

Respondent

and

V.L.

Appellant

Michael Davies, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally: January 31, 2020

On
appeal from the sentence imposed by Justice M. Z. Charbonneau, of the Superior
Court of Justice, dated December 21, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault
after a trial by judge alone.

[2]

This is a sentence appeal. The issue is a narrow
one. The trial judge imposed a sentence of four years. Counsel for the
appellant submits, based on the case law, that the appropriate range of
sentence in the circumstances was three to five years. He argues that three
years is the appropriate sentence, given the absence of any physical violence
beyond the violence inherent in a forcible rape.

[3]

Counsel submits that the trial judge wrongly
treated the appellants false vilification of the victim in his testimony as an
aggravating factor on sentence. He submits that this error warrants a
re-appraisal of the sentence by this court and the imposition of a sentence of
three years.

[4]

Having regard to the totality of the sentencing
record, it is not entirely clear that the trial judge made the error alleged.
One passage from his reasons for sentence suggests that he did. Assuming he
made that error, we are satisfied it played a minor role in his determination
of the appropriate sentence. The trial judge focused on the inherent
seriousness of the assault, a rape during which the appellant overpowered the
victim, a neighbour and friend, in her own home, and did as he wished. The
trial judge also emphasized the planning that led to the assault.

[5]

In
R. v. Lacasse
, [2015] 3 S.C.R. 1089 (the
leading authority), the majority observed, at para. 44:

In our view, an error in principle, the
failure to consider a relevant factor or the erroneous consideration of an
aggravating or mitigator factor will justify appellate intervention only where
it appears from the trial judges decision that such an error had an impact on
the sentence.

[6]

In our view, the error alleged by the appellant,
assuming it was made by the trial judge, did not have an impact on the
sentence. The aggravating features in this case fully justify the four-year
sentence imposed.

[7]

The appeal is dismissed.

Doherty
J.A.

David
Watt J.A.

C.W.
Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 95

DATE: 20200207

DOCKET: C67005

MacPherson, Sharpe
    and Jamal JJ.A.

BETWEEN

Sleep
    Number Corporation

Plaintiff (Respondent)

and

Maher Sign Products Inc.

Defendant (Appellant)

Mark Adilman, for the appellant

David A. Ziegler, for the respondent

Heard: February 4, 2020

On appeal from the
    order of Justice Paul Perell of the Superior Court of Justice, dated April 23,
    2019, with reasons reported at 2019 ONSC 2478.

REASONS FOR DECISION

[1]

The appellant did not defend an action brought by the
    respondent in Minnesota for damages for the supply of defective goods. The
    respondent obtained default judgment in Minnesota and then brought this action
    in Ontario to enforce the Minnesota judgment. The motion judge granted summary
    judgment enforcing the Minnesota judgment.

[2]

The appellant raises three grounds of appeal.

(1)

Jurisdiction clause

[3]

The appellants central argument is that the motion
    judge erred by refusing to hold that a provision in the initial quotation,
    provided by the appellant for the proposed supply of signs to the respondent,
    ousted the jurisdiction of the courts of Minnesota. The quotation stated that
    the agreement was to be interpreted in accordance with Ontario law and that the
    respondent hereby attorns to the jurisdiction of the Courts of Ontario for the
    purpose of pursuing any legal remedies.

[4]

The motion judge noted that the respondent had
    reasonably strong arguments that the jurisdiction clause in the quotation did
    not apply to any or all of the sales contracts between the appellant and the
    respondent, or if it did, that it did not amount to an exclusive jurisdiction
    clause. He proceeded to find that, even assuming it was an exclusive
    jurisdiction clause, it did not oust the jurisdiction of the Minnesota courts.

[5]

It is well-established that a permissive forum
    selection clause does not deprive another forum of jurisdiction
simpliciter
, but is relevant to whether that other forum should exercise its
    jurisdiction:
2249659 Ontario Ltd. v. Sparkasse Siegen
, 2013 ONCA 354, 115 O.R. (3d) 241, at para. 25. Before us, the
    appellant concedes that if the clause in the quotation does not amount to an
    exclusive jurisdiction clause, the appeal fails.

[6]

We find that the forum selection clause is
    permissive rather than exclusive. As a result, we do not find it necessary to
    decide how this appeal would be decided if the clause did confer exclusive
    jurisdiction on the courts of Ontario.

[7]

The clause bears striking similarity to clauses that
    other courts have refused to characterize as conferring exclusive jurisdiction.
    It provides that the respondent attorns (in other words, accepts, submits or
    yields) to Ontario jurisdiction and says nothing that excludes the jurisdiction
    of another possible forum.
We do not agree that the words in the clause
    applying it to the pursuit of any legal remedies amount to a conferral of
    exclusive jurisdiction. The word any refers to legal remedies and has no
    bearing on choice of forum.
In
Old North State
    Brewing Company Inc. v. Newlands Services Inc.
(1998)
, 58 B.C.L.R. (3d) 144, at para. 35,
    the B.C. Court of Appeal held that an agreement that the parties will attorn
    to the jurisdiction of the Courts of the Province of British Columbia did not
    meet the standard of clear and express language  required to confer
exclusive
jurisdiction and that it would
    have been a simple matter to add the word exclusive if that was what was
    intended. See also
Hollinger International v. Hollinger Inc
.,
2005 CanLII 4582 (Ont. Div. Ct.), to the
    same effect with regard to an agreement that each of the parties hereby
    irrevocably attorns to the jurisdiction of the courts [of Ontario].

[8]

Accordingly, the forum selection
clause
    does not rule out Minnesota jurisdiction. As the motion judge held, it is well
    accepted that there will often be more than one jurisdiction that is entitled
    to assert jurisdiction over a given dispute. The existence of another possible
    forum that has jurisdiction does not deprive the forum selected by the claimant
    of its jurisdiction.

[9]

The appellant did write to the Minnesota court
    to advise that in light of the wording of the quotation, it would not respond
    to the claim. However, the appellant chose not to go before the Minnesota court
    to raise the issue of jurisdiction or to ask the Minnesota court to exercise
    its discretion to decline jurisdiction.

[10]

The respondent argued that the clause did not
    deprive the Minnesota court of jurisdiction. The Minnesota court found that the
    appellant had not taken appropriate steps to respond to the proceeding and took
    jurisdiction. The appellant could have appeared in Minnesota to contest
    jurisdiction without submitting to Minnesota jurisdiction: see Walker,
Canadian
    Conflict of Laws
(6
th
ed) (LexisNexis,
    loose-leaf) at p. 14-20.06. The appellant cannot now complain that the
    Minnesota court should have refused to assume jurisdiction and decide the case.

(2)

Real and substantial connection

[11]

The appellant submits that the motion judge
    erred by holding that there was a real and substantial connection sufficient to
    support the jurisdiction of the Minnesota courts.

[12]

We see no error in the motion judges finding
    that there was a real and substantial connection with Minnesota. The respondent
    is a Minnesota corporation with its principal place of business in that state.
    There is evidence indicating that the appellant went to Minnesota to solicit
    the respondents business. The contract was largely negotiated in Minnesota and
    performed by the delivery of products to Minnesota. The appellants effort to
    repair alleged defects in the products it supplied occurred in Minnesota. The
    motion judge did not err by concluding that those facts satisfy the real and
    substantial connection test.

(3)

Public policy

[13]

Finally, we do not accept the argument that it
    would be contrary to public policy to enforce the Minnesota judgment. The
    public policy defence is a narrow one and does not apply to the decision of a
    foreign court to decline jurisdiction in the face of a venue clause. Nor is it
    contrary to public policy for a court to entertain a case with a real and
    substantial connection to the forum and to apply the forums limitation legislation
    rather than that of another jurisdiction.

Disposition

[14]

Accordingly, the appeal is dismissed with costs
    to the respondent fixed in the amount agreed to by the parties: $20,000
    inclusive of taxes and disbursements.

J.C.
    MacPherson J.A.

Robert
    J. Sharpe J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Stoney Creek Centre Inc. v. 2459437 Ontario Inc.,
    2020 ONCA 119

DATE: 20200213

DOCKET: C66961

Feldman, Brown and Zarnett JJ.A.

BETWEEN

Stoney Creek Centre Inc.

Applicant (Appellant)

and

2459437 Ontario Inc.

Respondent (Respondent)

Brian N. Radnoff and Mordy Mednick, for the appellant

Chris Reed, for the respondent

Heard: January 21, 2020

On appeal from the
    judgment of Justice Janet Leiper of the Superior Court of Justice, dated April
    18, 2019, with reasons reported at 2019 ONSC 2450.

BROWN J.A.:

OVERVIEW

[1]

This appeal concerns the amount the chargor, the appellant Stoney Creek
    Centre Inc. (Stoney Creek), must pay to the chargee, 2459437 Ontario Inc.
    (245), to discharge a mortgage on a commercial property known as the Lewis
    Property. Stoney Creek submits that the application judge erred in holding that
    it was required to pay the chargee,
245,
the $3
    million face amount of the mortgage, together with interest, instead of the
    lesser amount of approximately $2.7 million that had been advanced, plus
    interest.

BACKGROUND FACTS

[2]

Tony Perruzza is the principal of Stoney Creek. Dr. Gillian Stanley is
    the principal of 245. In 2015 and 2016, they and their related companies were
    involved in two overlapping transactions.

[3]

In the first transaction, Perruzza-related companies agreed to purchase
    two properties (the Lakefront Properties) from
245
.
    Under those agreements, the purchasers had two conditional periods totaling 210
    days in which they could end the transactions. Closing was scheduled for mid-2016.

[4]

The second transaction stemmed from efforts by Perruzza in late 2015 and
    early 2016 to obtain financing to purchase the shares of the company that owned
    the Lewis Property. Stanley learned that Perruzza was encountering difficulties
    in securing financing. She expressed an interest in assisting Perruzza to
    finance the share purchase if he would waive the conditions on his acquisition
    of the Lakefront Properties.

[5]

Initially, Stanley planned to source the
    funds to loan to Perruzza from an institutional bank. That source of funding
    did not materialize.

[6]

At that point, the closing date for
    Perruzzas share purchase was approaching. Perruzza introduced Stanley to
    another source of funds, Toronto Capital Corp. Stanley was prepared to borrow
    money from Toronto Capital to provide a bridge loan to Perruzza that would
    enable him to close the share purchase.

[7]

Stanley and 245 accepted a loan
    commitment from Toronto Capital for $3 million, secured in part by mortgages on
    their Lakefront Properties. Under the terms of the Toronto Capital mortgage
    commitment, the net amount advanced, after various deductions, would be close
    to $2.7 million.

[8]

Perruzza received a copy of the Toronto
    Capital commitment letter and was aware of its terms before his company, 218,
    entered into an agreement to borrow money from Stanleys company, 245, to fund
    the share purchase. In the section entitled Use of Proceeds, the Toronto
    Capital commitment letter stated, in part: The proceeds will be used as
    follows: Complete share purchase: 2,703,000.

[9]

After accepting the Toronto Capital
    commitment letter, 245 then entered into a private mortgage financing agreement
    as lender with Perruzzas 218, as borrower (the Mortgage Financing
    Agreement), in respect of the Lewis Property. In a section entitled PURPOSE,
    the Mortgage Financing Agreement stated:
The purpose of this Loan is to
    provide financing for the completion of the Share Purchase Agreement. This Loan
    is conditional upon amongst other things, the waiving of all conditions of the
    Purchase and Sale Agreements of [the Lakefront Properties].

[10]

The other key terms of the Mortgage
    Financing Agreement relevant to the issues on this appeal are:

TYPE OF LOAN: Third Mortgage. Principal and interest.

TERM: 16 Month Term following the date of initial advance.

LOAN AMOUNT: $3,000,000 (Face value of the mortgage charge) is
    based on appraisal provided.

ADVANCE AMOUNT: $3,000,000 less the Lenders financing charges.
    Due on Closing

LENDER FEE: A lender fee of 3% shall be deducted on advanced
    amount.

LEGAL: The borrower/project will pay the Lenders legal fees for
    closing, registration and discharge

[11]

As part of the security for the loan
    transaction, Stoney Creek provided 245 with a mortgage on the Lewis Property
    (the Mortgage). The principal amount of the Mortgage was shown as $3 million.

[12]

As additional security, 218 provided 245
    with a promissory note for $3 million, guaranteed by Stoney Creek.

[13]

The parties agree that $2,711,691.48 was
    advanced by Toronto Capital to 245 on its $3 million loan, net of various
    deductions Toronto Capital was entitled to make pursuant to the terms of its
    commitment letter to 245. The Statement of Advance for the closing of the
    Mortgage Financing Agreement showed the receipt of the $2,711,691.48, from
    which 245 deducted its lender fee, legal costs and title insurance cost,
    leaving a balance disbursed to 218 of $2,604,691.48.

[14]

In 2017, Perruzza sought to discharge the
    Mortgage on the Lewis Property. 245 took the position that the amount required
    to discharge the Mortgage was the face amount of $3 million, together with
    interest. Perruzza took the position that the principal amount due on the
    Mortgage was the $2,711,691.48, plus interest.

[15]

In order to discharge the Mortgage, 218/Stoney
    Creek paid into escrow the difference between the $3 million face amount of the
    Mortgage and the $2,711,691.48, plus interest (the Disputed Amount). The
    Disputed Amount is being held in a lawyers trust account pending determination
    of the dispute.

[16]

The application judge held that the chargee,
    245, was entitled to the Disputed Amount, based on Stoney Creeks obligation to
    pay $3 million, plus interest, to discharge the Mortgage.

ANALYSIS

[17]

The law recognizes that a person may give
    a mortgage for a larger sum in consideration of the loan of a smaller sum where
    there is an actual agreement to that effect:
Edmonds v. The Hamilton
    Provident and Loan Society
(1891), 18
    O.A.R. 347, at pp. 362-63. Stoney Creek submits that in the present case the
    parties did not enter into such an agreement. As a result, Stoney Creek
    contends that in order to discharge the Mortgage it is only required to pay the
    actual amount advanced, plus interest, not the Mortgages face amount of $3
    million.

[18]

Stoney Creek advances three main
    arguments in support of its position.

First Argument

[19]

Stoney Creek submits that the application
    judge erred in her interpretation of the term in the Mortgage Financing
    Agreement that stated: ADVANCE AMOUNT: $3,000,000
less the Lenders financing charges
. Due on Closing (emphasis added) (hereafter the
    Disputed Term). According to Stoney Creek, the application judge erred by:
    (i) interpreting the Disputed Term as evidencing an agreement that Stoney Creek
    would pay all the fees and costs 245 incurred in borrowing the money from
    Toronto Capital that it used to consummate its loan to Perruzzas company, 218;
    and (ii) by rejecting Stoney Creeks argument that the reference to the
    lenders financing charges was the same as the lenders fee on the second
    page of the Mortgage Financing Agreement.

[20]

I am not persuaded by these submissions.
    Stoney Creek has not demonstrated that the application judges interpretation
    of the Disputed Term in the Mortgage Financing Agreement was tainted by
    palpable and overriding error. As she was required to do, the application judge
    interpreted the Disputed Term in light of the factual matrix concerning the two
    related transactions, the provisions of the Mortgage Financing Agreement, and
    the terms of the related documents.

[21]

The material evidence about the factual
    matrix included:

(i)

Stanley and 245 assumed financial risk for the benefit of Perruzza and
    Stoney Creek by mortgaging the Lakefront Properties as security for the funds
    borrowed from Toronto Capital, which they lent to Perruzza as a bridge loan to enable
    him to acquire the shares of the company that owned the Lewis Property;

(ii)

Very
    shortly after 245 and Stanley accepted Toronto Capitals commitment letter,
    they entered into the Mortgage Financing Agreement with Perruzzas company,
    218; and

(iii)

Before his
    company, 218, entered into the Mortgage Financing Agreement, Perruzza knew the
    terms of the Toronto Capital commitment letter which included: (a) a clear
    statement on the face of the commitment letter that $2.703 million of the $3
    million loaned by Toronto Capital would be used to complete the share purchase
    Perruzza wished to consummate; and (b) a description of the deductions from the
    $3 million to arrive at the $2.703 million. In his examination for discovery, Perruzza
    admitted that he knew the advance from 245 would be $2.7 million instead of the
    $3 million.

[22]

As the application judge noted, [t]he
    face value of the mortgage is for $3 million and default on the mortgage makes
    that principal amount due and payable: at para. 35. The Mortgage Financing
    Agreement expressly contemplated that the loan amount, secured by the $3
    million Mortgage, would be greater than the advance amount. Further, the
    related transaction documents executed by and on behalf of Perruzza-related
    companies  the Mortgage, the promissory note, and the guarantee  clearly
    specify that the repayment obligation is for a principal amount of $3 million.
    No transaction document stipulates the repayment of only $2.711 million.

[23]

The application judge rejected Stoney
    Creeks argument that the reference to the lenders financing charges in the
    Disputed Term was the same as the lenders fee described in the Mortgage
    Financing Agreement. The language of the document supports her interpretation.
    The Mortgage Financing Agreement states that the lenders fee shall be
    deducted on advanced amount, that is to say on the amount of $3 million less
    the Lenders financing charges.

[24]

The application judge found that the
    Mortgage Financing Agreement is clear: at para. 35. She was reinforced in
    that conclusion by the surrounding circumstances, stating, at para. 36:

This is a case where the
Edmonds
principle is
    displaced by the express agreement of the parties in the Mortgage Financing
    Agreement. There is no evidence of fraud or oppression in the negotiation of
    the agreement. Both parties were aware of the respondents financing costs.
    Both were represented by counsel on the deal. There were no allegations or
    evidence of any misrepresentations leading to a risk of loss. To the contrary,
    all of the documents contemplated that the respondent would seek financing of
    $3 million and that the agreement with the applicant would be to pay all the
    fees and costs of the respondents financing to consummate the loan to Mr.
    Perruzzas company.

[25]

I see no palpable and overriding error in
    the application judges finding that the parties agreed Stoney Creek would pay
    245 the amounts that 245, in turn, was required to pay Toronto Capital in order
    to obtain the funds used to make the bridge loan to Stoney Creek. That
    agreement was reflected in the language of the Loan Amount term and Disputed
    Term of the Mortgage Financing Agreement. When assessed in light of the
    language of the Mortgage Financing Agreement, the terms of the additional
    security documents, and the factual matrix, the application judges
    interpretation of the phrase the Lenders financing charges was a commercially
    reasonable one. Neither the language used nor the factual matrix support an
    agreement where Stanley would pay Toronto Capital $374,505.38 as well as
    mortgage her Lakeview Properties in order to provide a loan that Perruzza
    needed but could not obtain elsewhere.

[26]

As a result, I agree with the application
    judges conclusion that Stoney Creek was required to pay 245 the amount of $3
    million, plus interest, to discharge the Mortgage.

Second Argument

[27]

Second, I do not accept Stoney Creeks
    submission that the application judge took into account irrelevant evidence
    when considering the factual matrix. The application judges consideration of the
    evidence concerning Perruzzas knowledge of the terms of the loan from Toronto
    Capital to 245 and Stanley did not constitute an impermissible use of one partys
    subjective intention. Instead, by taking that evidence into account, the
    application judge considered the surrounding circumstances known to the
    parties at the time of formation of the contract, as she was required to do by
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47.

Third Argument

[28]

Finally, Stoney Creek contends that the
    application judges order is inconsistent with her decision because she ordered
    Stoney Creek to repay only some, but not all, of 245s borrowing costs. I do
    not accept this argument. The parties completed the discharge of the Mortgage
    on the basis that Stoney Creek would pay into an escrow account the agreed
    Disputed Amount of $374,693.00. The Disputed Amount represents the difference
    between the discharge balance (i) calculated using the Mortgages stated
    principal amount of $3 million and (ii) that arrived at by using the amount of
    $2,711,691, which was the amount loaned by Toronto Capital to 245 and Stanley
    net of its financing charges. In granting judgment in favour of 245, the
    application judge simply ordered that the agreed Disputed Amount, together with
    interest, be released and paid to 245. In those circumstances, I see no merit
    to this submission by the appellant.

DISPOSITION

[29]

For the reasons set out above, I would
    dismiss the appeal.

[30]

245 is entitled to its costs of the
    appeal from Stoney Creek, fixed in the amount of $25,000, inclusive of
    disbursements and applicable taxes.

Released: KF FEB 13 2020

David Brown J.A.

I agree. K. Feldman
    J.A.

I agree. B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sutherland v. Toronto (City), 2020 ONCA 122

DATE: 20200213

DOCKET: C65218

Feldman, Brown and Zarnett JJ.A.

BETWEEN

Ineke Sutherland

Plaintiff/Responding Party (Appellant)

and

City of Toronto, Mark Siboni
and Geoffrey
    R. Newbury

Defendants/Moving Parties (
Respondents
)

Ineke Sutherland, acting in person

Christopher J. Henderson, for the respondents

Heard: January 24, 2020

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated February 27, 2018, with reasons
    reported at 2018 ONSC 1311, 72 M.P.L.R. (5th) 311.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Ineke Sutherland, has engaged in
    a dispute with the respondent, the City of Toronto, over the payment of
    property taxes since she first fell into arrears in 1998. As disclosed in her
    materials, she takes the position that until the City agrees that she does not
    have to pay interest or penalties on her substantial property tax arrears, she
    does not have to pay any tax.

[2]

In 2006, the appellant commenced a Small Claims
    Court action in which she sought an order that her tax account for 2003 had
    been paid in full. The respondent, Mark Siboni, acted for the City in that
    action. The City and Siboni will be referred to as the City Respondents. The
    respondent, Geoffrey Newbury, was the appellants solicitor of record during
    parts of the Small Claims Court proceeding.

[3]

After the commencement of that action, the
    appellant continued to let her property taxes fall further into arrears.

[4]

In 2009, the Small Claims Court action was
    struck from the trial list. In 2016, the action was dismissed for delay. In
    2017, the appellant abandoned her appeal to the Divisional Court.

[5]

About five weeks after abandoning her appeal,
    the appellant started this action (the SCJ Action). In it, she pleads that:
    (i) the Citys tax account for her property has been incorrect since 1998; (ii)
    in 2006, the City, through Siboni, had undertaken not to take any collection
    efforts until the Small Claims Court action had been settled; (iii) Newbury
    negligently handled her Small Claims Court action; and (iv) the Citys efforts
    to collect property tax arrears had caused her damage. In her statement of
    claim, the appellant acknowledged that as of October 2017, the Citys records
    showed her property tax arrears as $102,563.16.

[6]

The City Respondents moved for summary judgment
    dismissing the SCJ Action. Although in July 2016, the City had initiated the
    process to sell the appellants property for arrears of taxes, the process was
    put in abeyance pending the determination of the City Respondents summary
    judgment motion.

[7]

The motion judge granted summary judgment and dismissed
    the SCJ Action against the City Respondents.

[8]

Newbury did not join the City Respondents in
    seeking summary judgment.

[9]

In his reasons, the motion judge: provided a
    meticulous review of the history of the appellants tax arrears dating back to
    1998; closely examined the elements of her claim for damages; and considered
    all of the arguments advanced by the appellant. The motion judge concluded that
    the appellant had no viable cause of action against the City Respondents and
    there was no genuine issue requiring a trial.

[10]

He reached that conclusion for several reasons:

(i)

The root of all of the claims dated back to the 2003, 2004, and 2005
    tax bills, with the result that the issues which are the provenance of this
    dispute happened well outside the two years that preceded the issuance of the
    Statement of Claim: at para. 29. As well, it cannot be said that the
    reasonable person in the position of the Plaintiff would not have discovered
    that, as she continued in her failure to pay any property tax over all the
    years involved, her potential liability was continuing to grow: at para. 32.
    The issues that formed the claim for damages were known to the appellant at
    least by the time she commenced her Small Claims Court action in 2006: at para.
    36. Her SCJ Action therefore was statute-barred;

(ii)

In any event, statute provided a complete code by which the
    appellant could question the amount levied as property tax and the steps taken
    by the City to collect the debt: at para. 37;

(iii)

Notwithstanding that at one point the City had stated that it would
    put its collection efforts on hold until the resolution of the Small Claims
    Court action, in 2012 the City put the appellant on notice that it would resume
    collection efforts. In any event, the dismissal of the Small Claims Court
    action meant that the City was free to collect the very significant arrears
    that the appellant had allowed to build up: at paras. 41-42; and

(iv)The
    issuance of the tax arrears certificate was not capable of amounting to a
    defamatory statement of the appellant: at paras. 45-47.

ANALYSIS

[11]

On appeal, the appellant advances three main
    submissions.

[12]

First, she submits that the motion judge erred
    in reaching his conclusions. The appellant repeats many of the fact-based
    submissions she made before the motion judge. We see no error in law by the
    motion judge, nor has the appellant persuaded us that he made any palpable and
    overriding error of fact. We see no basis to interfere with the motion judges
    conclusion that there was no genuine issue requiring a trial in respect of the
    appellants claims against the City Respondents.

[13]

Second, the appellant submits that comments made
    by the motion judge during the hearing of the motion amounted to oppressive
    conduct that demonstrated a reasonable apprehension of bias on his part. Having
    reviewed the portions of the transcript of the hearing on which the appellant
    relies and which she included in her Appeal Book and Compendium, we see no
    merit in this ground of appeal. The motion judge provided the appellant with
    the assistance owed to a self-represented party, including explaining what the
    summary judgment process involved and the issues he would have to decide. At
    the same time, he ensured that both parties received a fair hearing by ensuring
    that submissions remained focused on the issues requiring his adjudication.

[14]

A few times during the hearing, the motion judge
    expressed frustration at some of the appellants submissions. He also expressed
    frustration at the Citys delay in dealing with the tax dispute. Towards the
    end of the hearing, the motion judge apologized to the appellant for expressing
    his frustration, an apology which she accepted on the record. The appellant
    received a fair hearing from the motion judge.

[15]

Finally, the appellant contends that the motion
    judge should not have granted summary judgment when her claim against Newbury
    remained outstanding. We disagree. The appellant asserted quite different
    claims against the City Respondents and her former solicitor; there is no risk
    of conflicting judgments.

DISPOSITION

[16]

The appeal is dismissed.

[17]

The appellant shall pay the City Respondents their
    costs of the appeal fixed in the amount of $10,000, inclusive of disbursements
    and applicable taxes.

K. Feldman J.A.

David Brown J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Temedio v. Niagara North
    Condominium Corporation No. 6, 2020 ONCA 81

DATE: 20200204

DOCKET: C66339

Paciocco, Harvison
    Young and Zarnett JJ.A.

BETWEEN

Jean Temedio

Applicant

(Appellant
    in Appeal/Respondent in Cross Appeal)

and

Niagara North Condominium Corporation No. 6

and Simpson Wigle Law LLP

Respondents

(Respondents
    in Appeal/Appellants in Cross Appeal)

Benjamin J. Rutherford, for appellant
    in appeal and respondent in cross appeal

Erik Savas, for the respondents in
    appeal and appellants in cross appeal

Heard: August 16, 2019

On appeal from the order of Justice Heather
    McArthur of the Superior Court of Justice, dated December 3, 2018, with reasons
    reported at 2018 ONSC 7214.

COSTS ENDORSEMENT

[1]

The Respondents in Appeal are ordered to pay
    costs to the Appellant in Appeal in the amount of $
5,919.14
, inclusive of taxes and disbursements.

[2]

The costs ordered in the application below are
    set aside, and the Respondents in Appeal are ordered to pay to the Appellant in
    Appeal costs in the application below of
$6,669.02, inclusive of taxes
    and disbursements.

David M. Paciocco J.A.

Harvison Young J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Temedio v. Niagara North
    Condominium Corporation No. 6, 2020 ONCA 82

DATE: 20200204

DOCKET: M50995 (C66339)

Paciocco, Harvison
    Young and Zarnett JJ.A.

BETWEEN

Jean Temedio

Applicant

(Appellant/Responding
    Party)

and

Niagara North Condominium Corporation No. 6

and Simpson Wigle Law LLP

Respondents

(Respondents/Moving
    Parties)

Erik Savas, for the for the moving
    parties

Benjamin J. Rutherford, for the responding
    party

Heard: In writing

COSTS ENDORSEMENT

[1]

The moving parties motion for reconsideration
    was dismissed on January 10, 2020, with reasons reported at 2020 ONCA 17.
The
    moving parties are ordered to pay the responding party costs in the amount of
    $1,500, inclusive of taxes and disbursements.

David M. Paciocco J.A.

Harvison Young J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Temple v. Moorey, 2020 ONCA 148

DATE: 20200221

DOCKET: C67221

Simmons, van Rensburg and Harvison
    Young JJ.A.

BETWEEN

Nicholas Temple and Susan Temple

Plaintiffs (Respondents)

and

Richard Moorey and Charleen
    Moorey

Defendants (Appellants)

Tim Gleason, for the appellants

Mike Maher, for the respondents

Heard: February 18, 2020

On appeal
    from the order of Justice Helen M. Pierce of the Superior Court of Justice, dated
    July 30, 2019 with reasons reported at 2019 ONSC 3723.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge dismissed the appellants r.
    37.14(1)(b) motion to set aside the partial summary judgment because she found
    the appellants defences had no merit.

[2]

In our view, the motion judge erred in isolating
non est factum
and equitable set-off as the only possible defences
    when the pleadings and affidavits raised the legitimacy of the promissory notes
    as a possible defence. In all the circumstances the order below is set aside and
    the partial summary judgment is set aside on the following terms:

1.

The writ of seizure and sale shall remain in
    place pending further order of the Superior Court;

2.

The respondents shall produce any and all documents
    in their possession within 14 days of todays date;

3.

The appellants shall deliver any amended
    statement of defence and counterclaim within 21 days of todays date;

4.

The respondents may move for summary judgment
    thereafter on 21 days notice to the appellants; and

5.

The appellants shall deliver responding materials
    at least 4 days prior to the return date of any summary judgment motion.

Any non-compliance with these terms
    shall be dealt with on the return date of the summary judgment motion.

[3]

No order as to costs of the appeal. Costs of the
    proceeding below are reserved to the judge hearing the summary judgment motion.


COURT OF APPEAL FOR ONTARIO

CITATION: Thistle v. Schumilas, 2020 ONCA 88

DATE: 20200206

DOCKET: C66432

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Jason Michael Thistle

Plaintiff

(Respondent)

and

James Schumilas, Jr.
, WCS Financial Services, Cinaber Financial Inc. and Bridgeforce
    Financial Group Inc.

Defendants

(
Appellant
)

Marie Sydney, for the appellant

Sean Zeitz, for the respondent

Heard: November 29, 2019

On appeal from the order of Justice Catrina D. Braid of
    the Superior Court of Justice, dated December 21, 2018.

Hourigan J.A.:

A.

Introduction

[1]

On June 4, 2009, Equitable Life of Canada issued a life insurance policy
    to the respondents spouse. The policy was in the amount of $600,000. The
    respondent was the sole beneficiary.

[2]

The respondent made a voluntary assignment in bankruptcy, effective June
    25, 2009. He was not discharged from bankruptcy until June 13, 2011.

[3]

The respondents wife died on October 14, 2010. He made a claim under
    the policy. On February 22, 2011, Equitable Life denied the claim on the basis
    that the respondents wife had misrepresented or failed to disclose material
    facts on her application for insurance. Specifically, it was alleged that she
    failed to disclose an existing medical condition.

[4]

The respondent commenced an action against Equitable Life on March 29,
    2011, seeking a declaration that Equitable Life was required to pay $600,000
    under the policy. During that litigation, in approximately December 2012, the
    respondent became aware of a potential claim in professional negligence against
    the appellant, who had acted as his wifes insurance agent when she purchased
    the policy. The respondent commenced a claim against the appellant on February
    11, 2013, seeking damages equivalent to the policys value.

[5]

The appellant brought a motion for summary judgment to dismiss the
    action on the basis that any right to assert a claim against him arose when the
    respondent was an undischarged bankrupt and, therefore, the cause of action
    vested with his trustee in bankruptcy. The respondent brought a cross-motion
    seeking an order
nunc pro tunc
granting him standing to bring this
    action issued February 11, 2013 in his own name and at his own risk and expense,
    notwithstanding his assignment in bankruptcy and subsequent discharge.

[6]

The motion judge found that she had a discretion under the
Bankruptcy
    and Insolvency Act
, R.S.C., 1985, c. B-3 (
BIA
) and/or the
Rules
    of Civil Procedure
,
R.R.O. 1990, Reg. 194
, to
    validate the claim and regularize the proceedings. She relied on s. 187(9) of
    the
BIA,
which
provides that no bankruptcy proceeding shall be invalidated by a formal defect
    or irregularity. According to the motion judge, the order the respondent sought
    was consistent with the interests of justice and would help protect innocent
    third-party creditors and the respondent. To do otherwise, she reasoned, would
    result in a potential windfall for the appellant and a corresponding loss to
    the creditors.

[7]

The motion judge further found that the expiry of the limitation period was
    not an absolute bar to an order
nunc pro tunc
and that the court can
    still exercise its discretion. She determined that the order would not
    undermine the limitation periods purpose because it was a mere procedural
    irregularity and there was no intent to defraud creditors. Further, the appellant
    was aware of the claim within the limitation period, defended the action from
    the outset, and did not take the position that it relied on the limitation
    period or that it had been prejudiced.

B.

Issues

[8]

The appellant raises two grounds of appeal. He submits that the motion
    judge erred in finding that: (1) she had a discretion to make an order
    regularizing the proceeding; and (2) the order could be made on a
nunc pro
    tunc
basis
.

[9]

For reasons I will explain, I am of the view that the motion judge erred
    on ground 2  that is, the motion judge did not have the authority to make the
    order
nunc pro tunc
. I would allow the appeal on that basis. Accordingly,
    it is unnecessary to consider ground 1.

C.

Analysis

(a)

Necessity of the Order Sought

[10]

To
    understand how the motion judge erred in finding that she could make an order
nunc
    pro tunc
, it is first necessary to consider the respondents cross-motion.
    On that cross-motion, the respondent sought an order granting him standing to
    bring the action.

[11]

Was
    that order required? Section 71 of the
BIA
provides that upon an
    assignment in bankruptcy being filed, the bankrupt ceases to have any capacity
    to deal with his or property, which, subject to the
BIA
and the rights
    of secured creditors, immediately passes to and vests in the trustee. As the
    Supreme Court stated in
Wallace v. United Grain Growers Ltd.
, [1997] 3
    S.C.R. 701, at para. 58, [a]n undischarged bankrupt has no capacity to deal
    with his or her property and no distinction is made with respect to whether
    that property was acquired before or after the assignment in bankruptcy.

[12]

The
BIA
makes no provision for the automatic re-vesting
    of the property of a bankrupt in the bankrupt either on his or her discharge or
    on the discharge of the trustee:
Douglas v. Stan Fergusson Fuels Ltd.
,
    2018 ONCA 192, 139 O.R. (3d) 721, at para. 64, leave to appeal refused [2018]
    S.C.C.A. No. 141. Instead, pursuant to s. 40 of the
BIA
, a trustee is
    obligated to return property  that is listed in the bankrupts statement of
    affairs
or
    otherwise disclosed to the trustee, and that is found incapable of realization
     to the bankrupt before the bankrupts discharge
.

[13]

Section 2 of the
BIA

defines
    property as follows:

any type of property, whether situated in Canada or elsewhere,
    and includes money, goods, things in action, land and every description of
    property, whether real or personal, legal or equitable, as well as obligations,
    easements and every description of estate, interest and profit, present or
    future, vested or contingent, in, arising out of or incident to property

[14]

Section 67(1)(c) of the
BIA
states that a bankrupts
    property shall comprise all property wherever situated of the bankrupt at the
    date of the bankruptcy or that may be acquired by or devolve on the bankrupt
    before their discharge. There are only a few prescribed exemptions from this
    definition, as noted in ss. 67(1)(a)-(b.3).

[15]

Here, the parties agreed before the motion judge and this court
    that the cause of action arose during the respondents bankruptcy, constituted property
    under the
BIA
,

and thus vested in the trustee in bankruptcy.

[16]

This panel raised with the parties whether the cause of action vested
    with the trustee, given that the respondent only discovered the cause of action
    after his discharge from bankruptcy. In response, the respondent submitted that
    he was not resiling from his position below that the cause of action vested
    with the trustee. However, the respondent suggested that this court should
    consider importing the concept of cause of action accrual/discoverability as an
    exemption to the automatic vesting of a cause of action pursuant to s. 71 of the
BIA
. He argued that until a bankrupt or a trustee has discovered a
    claim, there is nothing that can be practically done to prosecute a cause of
    action. Finding that a cause of action vests with the trustee regardless of
    discoverability, he submitted, would allow defendants like the appellant to wrongfully
    avoid liability.

[17]

I am not persuaded by this argument. Pursuant to ss. 2 and 67(1)(c) of
    the
BIA
, the bankrupts property is broadly defined and includes a
    cause of action, regardless of whether it has been discovered or not. The
    respondent acquired the cause of action during the currency of his bankruptcy,
    notwithstanding that the running of the limitation period was contingent on
    discoverability. Grafting the concept of discoverability to the vesting procedure
    under s. 71 of the
BIA
would not only create uncertainty, it could
    incentivize bankrupts to avoid learning of and disclosing all assets to their
    trustee.

[18]

The respondents argument also runs contrary to Parliaments intention. The
    Supreme Court in
Saulnier v. Royal Bank of Canada
, 2008 SCC 58, [2008]
    3 S.C.R. 166, at para. 43 has stated that:

The terms of the definition [of property] are very wide.
    Parliament unambiguously signalled an intention to sweep up a variety of assets
    of the bankrupt not normally considered property at common law. This
    intention should be respected if the purposes of the
BIA
are to be
    achieved.

[19]

Parliament also created distinct and narrow exemptions to property, to
    allow the bankrupt to continue a living pending discharge and, when discharged,
    to make a fresh start:
Saulnier
, at para. 17. These limited exemptions
    are not analogous to the respondents proposed exemption based on discoverability.

[20]

Nor am I persuaded that in this case the vesting of the cause of action
    in the trustee works an injustice. The trustee could have been reappointed
    pursuant to s. 41(11) of the
BIA
to prosecute the claim. If the
    trustee determined that it did not want to prosecute the claim, the respondent
    could have arranged to have the cause of action assigned to him. In either case,
    the doctrine of discoverability could be relied on to argue that the claim was
    not statute barred. Thus, the
BIA
does not prevent a claim from being
    asserted or prevent discoverability from operating; all it does is direct that a
    cause of action vests in the trustee.

[21]

Rather than seek an assignment and/or arrange for the reappointment of
    the trustee, in his cross-motion the respondent sought an order granting him
    standing to bring and maintain an action that he said remained vested in the
    trustee. Consequently, to the extent that an order regularizing the proceeding was
    available, the respondent required that it be made on a
nunc pro tunc
basis
. The question is whether the court
    had the capacity to make that order.

(b)

Availability of the Nunc Pro Tunc Order

[22]

To answer this question, regard must be had to the Supreme Courts
    decision in
Canadian Imperial Bank of Commerce v. Green
, 2015 SCC 60,
    [2015] 3 S.C.R. 801 (
Green
). That case considered three appeals (
CIBC
,
IMAX
and
Celestica
) where the respondent plaintiffs claimed
    damages under the common law tort of negligent misrepresentation and pleaded an
    intention to claim damages under the statutory cause of action in s. 138.3 of
    the
Securities Act,
R.S.O. 1990,
    c. S.5
.

[23]

None of the plaintiffs obtained leave to commence the statutory action,
    required under the
Securities Act
, before commencing the class
    proceeding based on the common law cause of action. In all the cases, the
    limitation period for the statutory action, if not suspended, would have run
    out prior to leave being obtained. In
IMAX
,
the motion for leave was filed and argued before the
    expiry of the limitation period; in
CIBC
,
the motion for leave was filed before the expiry of the
    limitation period; and in
Celestica
,
the motion for leave was filed after the expiry of the limitation period.

[24]

An issue arose in
Green
regarding whether the court had
    authority to make a leave order on a
nunc pro tunc
basis. Côté J., at
    para. 85, recognized that courts have a power to make
nunc pro tunc
orders, which she described as essentially backdated orders, noting that rule
    59.01 of the
Rules of Civil Procedure
states: An order is effective
    from the date on which it is made, unless it provides otherwise. She reviewed
    a non-exhaustive list of factors courts have considered in determining whether
    to exercise their inherent jurisdiction to grant such an order. Côté J. then turned,
    at paras. 91 to 93, to the question of whether
nunc pro tunc
orders
    should be permitted where a plaintiff required leave to bring an action but
    failed to seek leave within the applicable limitation period:

Returning to the issue in the cases at bar, there are two
    schools of thought in the jurisprudence on whether a failure to obtain leave within
    a specified limitation period results in the nullity of the action or is merely
    a procedural irregularity. According to one view, a failure to do so results in
    the nullity of the action, which cannot be remedied by a
nunc pro tunc
order, and is therefore an insurmountable obstacle. According to the second
    view, such a failure is merely a procedural irregularity that can be corrected
    by a
nunc pro tunc
order.

In my opinion, van Rensburg J. correctly stated the law on this
    point in
IMAX
. She noted that the courts have been willing to grant
nunc
    pro tunc
orders where leave is sought within the limitation period but not
    obtained until after the period expires (as in
Montego Forest Products
).
    She also noted that, in the cases suggesting that an action commenced without
    leave was a nullity, the applicable limitation periods had expired before the
    application for leave was brought. A
nunc pro tunc
order in such cases
    would be of no use to the plaintiff, as it would be retroactive to a date after
    the expiry of the limitation period.

Thus, subject to the equitable factors mentioned above, an
    order granting leave to proceed with an action can theoretically be made
nunc
    pro tunc
where leave is sought prior to the expiry of the limitation
    period. [Citations omitted.]

[25]

In circumstances where a motion is brought after the expiry of a
    limitation period, a
nunc pro tunc
order cannot be made for the simple
    reason that such an order is of no practical effect. It would only serve to
    backdate the order to the date of the motion, which was already beyond the
    expiry of the limitation period. In
Celestica
, the plaintiffs did not
    file their motion for leave prior to the limitation period expiring.
    Accordingly, on that basis, the Supreme Court denied the granting of a
nunc
    pro tunc
order:
Green
, at para. 111.

[26]

This court followed
Green
in
Douglas
. Like this case,
Douglas
concerned a cause of action that arose when a party was an undischarged
    bankrupt and that was asserted at a time when the cause of action remained
    vested in the trustee. The partys insurer attempted to bring the action in the
    partys name, based on alleged subrogation rights. This court held that the
    party had no capacity to bring the action

because
    an undischarged bankrupt lacks capacity to commence an action in his name, if
    his cause of action vested in the trustee on his assignment or at any time
    before his discharge
:
Douglas
, at paras. 92-93.

[27]

This court refused to make a
nunc pro tunc
order pursuant to
    ss. 38 or 40 of the
BIA
because, among other things, the insurer
    sought a
nunc pro tunc
order almost seven years after the limitation
    period had passed. Citing
Green
, this court ruled that a court has no
    authority to make a
nunc pro tunc
order if the party did not seek an
    order before the relevant limitation period expired:
Douglas
, at
    para. 104.

[28]

This case is analogous to
Douglas
, the only difference being that
    at the time the action was commenced in this case, the respondent was a
    discharged bankrupt. The respondent sought a
nunc pro tunc
order in
    2018, which was well after the expiry of the two-year limitation period
    pursuant to the
Limitations Act

2002
, S.O. 2002, c. 24, Sch. B.
    The limitation period for the respondents claim expired, at the latest, in
    2015, which was two years after the respondent brought his action against the
    appellant. The motion judge thus had no authority to grant the
nunc pro
    tunc
order.

[29]

The motion judge attempted to distinguish
Douglas
by noting
    that, in this case: (1) the respondent was discharged from bankruptcy when the
    cause of action was discovered, and the action commenced; and (2) the trustee
    consented to an order regularizing proceeding. Given that the
nunc pro tunc
order was only sought after the expiry of the limitation period, these factual
    differences are of no consequence in this particular case.

[30]

The motion judge also cited
Montego Forest Products Ltd.

(Re)
(1998), 37 O.R. (3d) 651 (C.A.), to demonstrate that the expiry of the
    limitation period is not an absolute barrier to granting an order
nunc pro
    tunc
. However, this court has noted that the
nunc pro tunc
order
    was properly granted in
Montego Forest Products
because the order was
    sought within the limitation period:
Douglas
, at para. 104; see also
Green
,
    at para. 92.

[31]

Given the decisions in
Green
and
Douglas
, the motion
    judge erred in granting a
nunc pro tunc
order regularizing the
    proceeding for the respondent. She had no authority to make that order and,
    accordingly, it cannot stand.

D.

Disposition

[32]

For the foregoing reasons, I would allow the appeal, set aside the order
    below, and dismiss the respondents claim as against the appellant.

[33]

Regarding the costs below, in my view the appellant is entitled to his
    costs of the motion and cross-motion. If the parties cannot agree on the
    quantum of those costs, they may make brief written submissions to this court.
    The appellant is also entitled to his costs of the appeal, which I would fix in
    accordance with the parties agreement, in the all-inclusive sum of $10,000.

Released: D.W. February 6, 2020

C.W.
    Hourigan J.A.

I agree.
    David Watt J.A.

I agree. G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Okorhi, 2020 ONCA
    89

DATE: 20200205

DOCKET: C65996

Miller, Fairburn and Thorburn
    JJ.A.

IN THE MATTER OF an appeal of a
    committal order pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
    c. 18

BETWEEN

The Attorney General of Canada

(On behalf of the United
    States of America)

Respondent

and

Benard
    Emurhowhoariogho Okorhi

Appellant

Gord Cudmore, for the appellant

Roy Lee, for the respondent

Heard and released orally:
    January 31, 2020

On appeal from the committal order of
    Justice Jonathon George of the Superior Court of Justice, dated September 18,
    2018.

REASONS FOR DECISION

[1]

An order of committal for extradition was issued
    in this case to await surrender to the United States on the offence of fraud.
    The appellant does not dispute the hearing judges articulation of the test for
    committal. Rather, he maintains that the hearing judge erred by finding that
    there was evidence in the Record of the Case and Supplementary Record of the Case
    linking the appellant to a man named Marc Richards and linking Marc Richards
    to the fraudulent scheme.

[2]

We do not agree.

[3]

There is ample evidence of a fraudulent scheme
    resulting in well over $1 million of actual deprivation. There is evidence
    linking the appellant to the name Marc Richards and evidence linking Marc
    Richards to the scheme.

[4]

We do not intend to repeat the trial judges
    reasons for coming to those conclusions, all of which are rooted in the
    evidence before him. The evidence included emails sent to and from the Marc
    Richards email account that made reference to the appellants name, a quote
    that was provided under his name, and a passport photo attached as an Exhibit
    to the Record of the Case that the hearing judge concluded was a representation
    of the appellant.

[5]

Equally, there is evidence linking Marc Richards
    to the fraudulent scheme, including emails between the Richards account and
    other alleged co-actors, which emails refer to the very schemes that form the
    foundation of some of the complaints in this case. The appellant is also linked
    to a corporate interest that received fraudulent proceeds.

[6]

Accordingly, the appeal is dismissed.

B.W. Miller J.A.

Fairburn J.A.

Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ustymenko v. Sadochok Centre Inc. (Sadochok
    Preschool Centre), 2020 ONCA 123

DATE: 20200212

DOCKET: C67046

Simmons, Pepall and Trotter JJ.A.

BETWEEN

Dr. Stanislav Ustymenko and Anna Zelenova

Applicants (Appellants)

and

Sadochok Centre Inc. o/a Sadochok Preschool
    Centre

Respondent (Respondent)

John W. Bruggeman, for the appellants

Derrick M. Fulton and Taras Kulish, for the respondent

Heard and released orally: February 5, 2020

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice, dated May 7, 2019.

REASONS FOR DECISION

[1]

The respondent Sadochok Centre Inc., operating as Sadochok Preschool
    Centre, is a small, non-profit Ukrainian daycare centre. K.K. was hired in 1979
    as an administrator and bookkeeper and in 1989 also became a director. She
    resigned from the latter in 2016 and the former in 2017. The appellants became
    directors in January 2016. By the date of the hearing of the application, the
    appellants were no longer directors and had no other role at the Centre. The
    appellants appeal from the May 7, 2019 order of Ferguson J. dismissing their
    request for leave to commence a derivative action based on allegations that
    K.K. had misappropriated money in her capacity as director and derived personal
    benefit from the Centre.

[2]

Before the application judge, the parties agreed that a derivative
    action could be brought pursuant to equitable principles. Assuming without
    deciding that they were correct in that regard, we see no reason to interfere
    with the application judges decision. The evidence did not disclose that K.K.
    was paid as a director but as an administrator and bookkeeper. The Board of
    Directors investigated the allegations as did the Public Guardian and Trustee
    who decided to take no further material action.

[3]

Moreover, the application judge determined that the action was bound to
    fail. We agree.

[4]

Lastly, as for the application judges costs award, this is not a case
    that warrants the granting of leave to appeal.

[5]

For these reasons, the appeal is dismissed and leave to appeal costs is
    also dismissed. Costs of the appeal are to the respondent on a partial
    indemnity scale fixed in the amount of $15,000, inclusive of disbursements and
    HST.

Janet Simmons J.A.

S.E. Pepall J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Van Nispen v. McCarron &
    Chobotiuk Financial Services Inc., 2020 ONCA 146

DATE: 20200221

DOCKET: C67192

Simmons, van Rensburg and
    Harvison Young JJ.A.

BETWEEN

Robert Van Nispen and Donna Van
    Nispen

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

McCarron & Chobotiuk
    Financial Services Inc.

Defendant/Plaintiff by Counterclaim

(Appellant)

Steven Sands, for the appellant

Lawrence Hansen, for the respondents

Heard: February 18, 2020

On appeal
    from the order of Justice Annette Casullo of the Superior Court of Justice, dated
    June 12, 2019 with reasons reported at 2019 ONSC 3658.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals a summary judgment
    granting judgment on two promissory notes and dismissing its counterclaim.

[2]

As a starting point, we see no error in the
    motion judges discretionary decision refusing leave to the appellant under r.
    39.02 to deliver a further affidavit following cross-examination of one of the respondents.
    The affidavit is not before us and was apparently not filed in the court below.
    In any event, the affidavit was proffered only on the second day of the motion
    and after the moving parties counsel had completed his submissions. The motion
    judge observed that the information sought to be introduced did not stem from
    an issue first raised on cross-examination. She also found admitting the
    affidavit would be unfair. There is no basis to interfere with this exercise of
    her discretion.

[3]

We agree with the motion judge that the evidence
    on the motion did not raise a genuine issue requiring a trial concerning the
    promissory notes or the counterclaim. The respondents led evidence denying they
    had diverted clients away from the appellant. As the motion judge found, the
    appellants assertions to the contrary were bald and unsubstantiated. Promises
    of better evidence at trial do not defeat a motion for summary judgment.

[4]

The proposed fresh evidence does not meet the
    test for its admission. The substance of it was available or could have been
    obtained prior to the motion. Packaging it in a post-motion email to Sun Life
    does not change that reality.

[5]

The appeal is therefore dismissed.

[6]

Costs of the appeal are to the respondents on a
    partial indemnity scale inclusive of disbursements and HST fixed in the amount
    of $8,000.


COURT OF APPEAL FOR ONTARIO

CITATION: Wardlaw v. Wardlaw, 2020 ONCA 286

DATE: 20200204

DOCKET: C67696

(M51076 and M51234)

Roberts J.A.
(Motions Judge)

BETWEEN

Jana Wardlaw

Respondent
    (Appellant)

and

David Shaw Wardlaw

Applicant (Respondent)

Jana Wardlaw, appearing in person

Joshua Goldberg,
amicus curiae

Eva Iacobelli, for the respondent

Heard: January 30, 2020

REASONS FOR
    DECISION

[1]

The appellant and respondent were married for about 17 years and
    separated in July 2017.  She appeals from two orders of Lemay J. who determined
    issues of divorce, possession of the matrimonial home, equalization of
    property, spousal support, and costs.

[2]

While the appellant commenced her appeal in a timely manner from
    Lemay J.s November 28, 2019 order, she was some 43 days late in starting her
    appeal from the trial judges October 8, 2019 order.  She therefore moves for
    an extension of time to appeal from the October 8, 2019 order.

[3]

The appellant clearly had the requisite intention to appeal during
    the relevant period and has adequately explained her delay.  There is no evidence
    of prejudice to the respondent from the delay.  However, the appellants proposed
    appeal does not appear to have any merit.

[4]

The merits of an appeal can be determinative of the extension request.
    A lack of merit alone can justify refusing the request.  See:
Enbridge Gas
    Distribution Inc. v. Froese
, 2013 ONCA 131, at para. 16;
Nguyen v.
    Economical Mutual Insurance Co.
, 2015 ONCA 828, at para. 13.

[5]

For the most part, her notice of appeal repeats the various factual
    and procedural issues that were fully addressed and determined by the trial
    judge in his careful and thorough reasons.  The appellant has not raised any
    arguable issues of reversible error.

[6]

The following review of the appellants main grounds of appeal is
    illustrative.  The appellant has not provided any basis for finding error in
    the trial judges determination that the duplication of documents and clearance
    certificates highlighted by the appellant were at best procedural irregularities
    that had no effect on any of the substantive issues at trial.  Further, the appellant
    again submits, without arguable grounds, that a divorce should not be granted
    until all issues are disposed of.  Without articulating any arguable error in
    the trial judges determination, she reiterates her very serious allegations of
    misconduct against the respondents counsel that the trial judge held were
    entirely unfounded.  She raises new allegations of judicial bias that have no evidentiary
    support in the record simply because the trial judge, as was open to him, found
    her lacking in credibility and reliability.  She takes issue with various
    interlocutory orders that she did not appeal and case conference briefs that
    were not before the trial judge.  She complains about court staff and other lawyers
    with whom she interacted.  She argues, without putting forward any basis for
    appellate intervention, that the trial judge erred in his determination that no
    one was hiding any assets from her, his equalization of property, his granting
    exclusive possession of the matrimonial home to the respondent, his calculation
    of spousal support, and his costs award to the respondent based on his
    successful offers to settle.

[7]

None of these issues have any apparent merit.

[8]

For these reasons, I am not persuaded that the justice of the case
    requires that the requested extension be granted.  I therefore dismiss the appellants
    motion for an extension of time to appeal from the October 8, 2019 order of
    Lemay J.

[9]

While respondents counsel urged me to dismiss the virtually
    identical appeal for the November 28, 2019 order of Lemay J., I have no
    jurisdiction as a single judge to do so.

[10]

The respondent brings a cross-motion to serve
    the appellant by email transmission.  Although the appellant is required to apprise
    the court office and counsel for the respondent of her current address, she has
    not done so.  Since December 2019, she has no longer resided at the matrimonial
    home but is still using that address as her address for service on court
    documents.  The appellant objects to service by email transmission because she
    does not have regular internet access.  During the cross-motion, she provided a
    post office box address.

[11]

I allow the cross-motion and permit the
    respondent to serve the appellant by email transmission provided that the material
    so served is also sent to the appellant at her post office box address.

[12]

Accordingly, order to go dismissing the
    appellants motion and allowing the respondents cross-motion.

[13]

The respondent was successful on these motions and
    is entitled to payment of his partial indemnity costs by the appellant in the amount
    of $4,000.00, inclusive of all disbursements and applicable taxes.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2352392 Ontario Inc. v. Msi, 2020
    ONCA 237

DATE: 20200323

DOCKET: C67245

Feldman, Huscroft and Harvison Young
    JJ.A.

BETWEEN

2352392 Ontario Inc. and Brent Shearer

Plaintiffs/Moving Parties (Respondents)

and

Vusumzi Msi and Vusumzi Msi,
    Professional Corporation

Defendants/Responding Parties (Appellants)

AND BETWEEN

2352392 Ontario Inc., Brent Shearer

Plaintiffs/Moving Parties (Respondents)

and

The Works Gourmet Burger Bistro
    Inc., The Works Realty Corp., Fresh Brands Inc., Andrew OBrien aka Thomas
    Andrew OBrien, Sean Bell, and David Wilson

Defendants/Moving Parties (Respondents)

Jean-Marc Leclerc, for the appellants

Stephany
    Mandin and Steven H. Goldman, for the respondents 2352392 Ontario Inc. and
    Brent Shearer

Jennifer
    Dolman and Sarah McLeod, for the respondents The Works Gourmet Burger Bistro
    Inc., The Works Realty Corp., Fresh Brands Inc., Andrew OBrien aka Thomas
    Andrew OBrien, Sean Bell, and David Wilson

Heard: March 6, 2020

On appeal from the order of Justice
    Shaun S. Nakatsuru of the Superior Court of Justice, dated July 3, 2019, with
    reasons reported at 2019 ONSC 4055.

Feldman J.A.:

[1]

The question of law to be determined in this
    case under ss. 6(2) and 6(3) of the
Arthur Wishart Act (Franchise
    Disclosure)
,

2000
, S.O. 2000, c. 3, is whether a notice of
    rescission of a franchise agreement is sufficient if it is contained in a
    pleading, or, specifically in this case, a third party claim.

Background

[2]

The issue arises in the following circumstances.
    The franchise was not financially successful. The franchisees bank sued the
    franchisee for default on its loan for the acquisition of the franchise. The
    franchisee issued a third party claim against the franchisor claiming damages
    and rescission of the franchise agreement for failure to deliver the required disclosure
    documents under the Act. The franchisor responded that the franchisee could not
    claim rescission under the Act because it had not delivered the required notice
    under s. 6 of the Act.

[3]

Subsequently, the lawyer who drafted the third
    party claim for the franchisee became involved in his personal capacity. New
    counsel for the franchisee issued a new statement of claim against the
    franchisor, taking the position that the third party claim in the bank action
    constituted the required notice under the Act. The franchisee then issued a
    statement of claim against his former lawyer, alleging that he was negligent in
    failing to comply with the requirements of the
Arthur Wishart Act
.

[4]

In a motion within both actions, the franchisor
    and the franchisee each argued that the third party claim did not constitute
    notice under the Act. The motion judge accepted that position. This appeal is
    brought by the lawyer who issued the third party claim, and is opposed by both
    the franchisor and the franchisee.

Legislative context

[5]

Sections 6(2), 6(3), and 6(6) of the Act provide:

6(2)

A franchisee may rescind the franchise agreement,
    without penalty or obligation, no later than two years after entering into the
    franchise agreement if the franchisor never provided the disclosure document.

(3)
Notice of rescission shall be in writing and shall be delivered to the
    franchisor, personally, by registered mail, by fax or by any other prescribed
    method, at the franchisors address for service or to any other person
    designated for that purpose in the franchise agreement.

(6)
The
    franchisor, or franchisors associate, as the case may be, shall, within 60
    days of the effective date of the rescission,

(a) refund to the franchisee any
    money received from or on behalf of the franchisee, other than money for
    inventory, supplies or equipment;

(b) purchase from the franchisee
    any inventory that the franchisee had purchased pursuant to the franchise
    agreement and remaining at the effective date of rescission, at a price equal
    to the purchase price paid by the franchisee;

(c) purchase from the franchisee
    any supplies and equipment that the franchisee had purchased pursuant to the
    franchise agreement, at a price equal to the purchase price paid by the
    franchisee; and

(d) compensate the franchisee for
    any losses that the franchisee incurred in acquiring, setting up and operating
    the franchise, less the amounts set out in clauses (a) to (c).

The motion judges decision

[6]

The motion judge held that a pleading could not
    constitute the notice required under s. 6(3). He referred to a number of cases
    that he acknowledged did not address the issue directly, as well as to the
    decision of the Superior Court in
Ahmed v. Ontario
, [2004] O.T.C. 923
    (S.C.), which held that a pleading can fulfill the notice requirement under s.
    7(1) of the
Proceedings Against the Crown Act
, R.S.O. 1990, c. P.27. In
    that case, Low J. found that the original statement of claim, which was
    ultimately struck out, nevertheless served the purpose of the notice
    requirement of providing the Crown with notice of the claim and was sufficient
    compliance with the Act.

[7]

The motion judge ultimately relied on the
    decision of this court in
2130489 Ontario Inc. v. Philthy McNastys
    (Enterprises) Inc.
, 2012 ONCA 381, 350 D.L.R. (4th) 326. The issue in that
    case was when the cause of action arose for compensatory damages for a
    franchisors failure to comply with the statutory obligations following receipt
    of a notice of rescission under s. 6(6) of the
Arthur Wishart Act
, and
    whether the claim for such damages was commenced within the two-year limitation
    period under s. 4 of the
Limitations Act
, 2002
, S.O. 2002, c.
    24, Sched. B. In that case, the franchisee gave notice of rescission for the
    franchisors failure to provide the disclosure document; after receiving the
    notice, the franchisor failed to comply with s. 6(6) of the Act within 60 days;
    and the franchisee then commenced the proceeding against the franchisor within
    two years of its failure to comply. In concluding that the application was
    commenced in time, the court held that [u]ntil the franchisor decides to not
    fulfil the obligations in s. 6(6), the franchisee has no cause of action for
    compensatory damages: at para. 39.

[8]

Relying on
Philthy McNastys
, the
    motion judge concluded, at para. 40:

Thus, since a notice under subsection 6(3)
    serves a different purpose from a pleading, this Third Party Claim in the case
    at bar cannot constitute such a notice. It is plain and obvious the Third Party
    Claim which is based upon a cause of action dependant upon a failure of the
    franchisor to abide by its obligations under subsection 6(6), cannot constitute
    notice since there is no cause of action until such notice has been given. Logically,
    the Third Party Claim cannot serve the same function as notice.

[9]

At para. 34, the motion judge distinguished the
Ahmed
case on the basis that a notice under [the
Proceedings Against the Crown
    Act
] serves a very different purpose than that under subsection 6(3) of
    the
Wishart Act
and does not carry with it the extraordinary
    consequences that follow service of the notice under subsection 6(3).

Analysis

[10]

In effect, the notice of rescission and the
    claim for rescission were brought contemporaneously in this case. Is there a
    reason to interpret the Act in a way that requires a separate notice, and does
    not allow the third party claim, issued within two years after entering into
    the franchise agreement as required by s. 6(2), to constitute the required notice?
    In my view, there is not.

[11]

As the
Arthur Wishart Act
is remedial
    legislation, it should be interpreted in a generous manner to redress the
    imbalance of power in franchising relationships, while also balancing the
    rights of both franchisees and franchisors:
Mendoza v. Active Tire &
    Auto Inc.
, 2017 ONCA 471, 139 O.R. (3d) 230, at para. 13, leave to appeal
    refused, [2017] S.C.C.A. No. 405;

Salah v. Timothys Coffees of the
    World Inc.
, 2010 ONCA 673, 268 O.A.C. 279, at para. 26;
4287975
    Canada Inc. v. Imvescor Restaurants Inc. et al.
, 2009 ONCA 308, 98 O.R.
    (3d) 187, at para. 40, leave to appeal refused, [2009] S.C.C.A. No. 244.

[12]

Under s. 6(2) of the Act, a franchisee has the
    right to rescind the franchise agreement within two years if the franchisor did
    not provide the statutory disclosure document. To do so, the franchisee must
    provide written notice of rescission. The purpose of the notice is to advise
    the franchisor that the franchisee is rescinding. Its purpose is not as a
    precondition to litigation. In fact, a review of the Hansard debate at the time
    the Act was introduced confirms that s. 6 was intended to allow the parties to
    extricate themselves from the agreement without litigation if the franchisor
    accepts the notice of rescission and complies with all the requirements in s. 6(6)
    within 60 days of receiving the notice: see Ontario, Legislative Assembly,
    Standing Committee on Regulations and Private Bills,
Subcommittee Report:
    Franchise Disclosure Act, 1999, Bill 33
, 37-1, (19 April 2000) at 11:10
    (Joseph Hoffman, Director, Policy and Agency Relations Branch, Ministry of
    Consumer and Commercial Relations).

[13]

Under s. 6(3), the only requirements for the
    notice are that it be in writing and delivered to the franchisor. Although it
    is fair to say that the Act appears to contemplate that notice will be given
    outside the context of litigation, a pleading can comply with the Acts requirements.
    It did in this case. Moreover, it was not the respondents position that the language
    of the third party claim was too imprecise to give notice to the franchisor, as
    was the case in
779975 Ontario Ltd. v. Mmmuffins Canada Corp.
(2009), 62
    B.L.R. (4th) 137 (Ont. S.C.). This was not a case in which the franchisor was
    somehow prejudiced by the manner in which notice was given, nor did the
    respondents submit otherwise. Their position was that no pleading could constitute
    the required notice under the Act.

[14]

The issue identified by the motion judge is that
    the pleading itself may be premature, particularly to the extent that it claims
    the damages and payments provided in s. 6(6) before the 60 days have gone by. However,
    the prematurity of the pleadings is a procedural matter that may have to be
    addressed by the parties, depending what positions they take. In this case, as in
    the
Ahmed
case, the pleading served only as notice and the parties
    subsequently issued new statements of claim. Although this procedure is anomalous,
    and certainly not the ideal or recommended approach, I see no basis to find
    that the third party claim could not constitute the written notice required under
    s. 6(3) of the Act  a finding that would have the effect of denying the
    franchisees right to rescind.

[15]

To conclude, although a written notice of
    rescission delivered by the franchisee to the franchisor before commencing litigation
    is the normal and preferable procedure, to preclude a franchisee from using a
    pleading to provide notice of rescission to a franchisor and to find that such
    a notice cannot comply with the Act when there is no such prohibition in the
    Act itself, would be to favour form over substance and create a barrier to
    enforcement of the rights of franchisees under the Act.

Disposition

[16]

For these reasons, I would allow the appeal with
    costs to the appellant in the agreed amount of $10,000, inclusive of disbursements
    and HST. I would also order costs of $10,000 in the motion below to be paid to
    the appellant.

Released: K.F. March 23, 2020

K. Feldman J.A.

I agree. Grant Huscroft J.A.

I agree. Harvison Young J.A.