COURT
    OF APPEAL FOR ONTARIO

CITATION: Bennett v. Bennett, 2019 ONCA 772

DATE: 20190930

DOCKET: C65764

Huscroft, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Gary A.
    Bennett

Applicant (Respondent on Appeal)

and

Dawn M.
    Bennett, Grace Bennett, Roy Bennett, Karen Bennett, Mississauga Law Chambers
    Inc., Bennett Law Management Inc. and Bennett Law Chambers Professional
    Corporation

Respondents (Appellants on Appeal)

Micheal Simaan, for the appellants

Mark A. Ross and Sarah Walker, for the
    respondent

Heard and released orally: September
    27, 2019

On appeal from the order of Justice Lucy
    McSweeney of the Superior Court of Justice, dated July 20, 2018 with reasons
    reported at 2018 ONSC 4318.

REASONS FOR DECISION

[1]

The appellants appeal from the judgment granted
    by the application judge that enforced a term of Minutes of Settlement entered
    into between the parties.

[2]

The Minutes of Settlement dealt with various
    proceedings that were outstanding between the parties, all of which arose out
    of a failed business arrangement between the parties. The business arrangement,
    in turn, arose of a failed law practice shared between the principals Gary and
    Dawn Bennett.  Gary and Dawn are siblings.  Roy and Grace are their parents and
    Karen is another sibling.

[3]

Two principal issues are raised by the
    appellants.  One is that the application judge erred in refusing to grant them
    an adjournment of the hearing of the application. The other is that the
    application judge erred in concluding that paragraph one of the Minutes of
    Settlement was a separate enforceable term. The appellants contend that the
    Minutes of Settlement must be read as a whole and that the respondent is not
    entitled to enforce one term of the Minutes of Settlement when he is
    (allegedly) in breach of other terms.

[4]

We do not accept either of the appellants
    arguments. It is a matter of discretion for the presiding judge to decide
    whether or not to grant an adjournment requested by a party:
Toronto-Dominion
    Bank v. Hylton
, 2010 ONCA 752 at para. 36. In this case, the issue of
    whether the respondent was entitled to enforce paragraph one of the Minutes of
    Settlement was a separate threshold issue, a fact acknowledged by counsel for
    Dawn. It was within the purview of the application judge to conclude, given
    that fact, that an adjournment for the purpose of filing material was
    unnecessary in order to properly determine that threshold issue.

[5]

In terms of the decision on the merits, we agree
    with the application judge that paragraph one of the Minutes of Settlement was
    a separate enforceable obligation that did not depend on other issues that may
    have arisen between the parties.  The Minutes of Settlement expressly provided
    that the sum in question would be paid by the appellants to the respondents
    lawyer in trust by a set date. Those monies were then to be released to the
    respondent once he transferred certain shares, which he did. The Minutes of
    Settlement expressly contemplated the respondent being able to separately
    enforce that obligation. The fact that the appellants contend that the
    respondent owes them other amounts does not impact on the appellants
    obligation to make the payment required by paragraph one.

[6]

That said, in reaching our conclusion, we wish
    to make it clear that we are not expressing any views on the application
    judges analysis regarding equitable set-off nor with respect to her conclusion
    regarding the impact on a claim being made for equitable set-off in the absence
    of any counterclaim by the appellants.  Even if equitable set-off could be
    properly raised, in the factual circumstances of this case, it would be
    inequitable to deny payment of the separate obligation for which the parties
    contracted.

[7]

The appeal is dismissed.  The respondent is entitled
    to his costs of the appeal fixed in the amount of $
10,000
, inclusive of disbursements and HST.

Grant Huscroft J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Broutzas v. Rouge Valley Health
    System, 2019 ONCA 751

DATE: 20190925

DOCKET: M50521 (C66226)

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Elia
    Broutzas and Meagan Ware

Plaintiffs

and

Rouge Valley Health System,
    C.S.T. Consultants Inc., Knowledge First Financial Inc., Global Resp
    Corporation, Nellie Acar, Shaida Bandali, Esther Cruz, Gavriel Edry, Polina
    Edry, Munish Sethi and Subramaniam Sulur, Jane Doe A, Jane Doe B, John Doe
    Registered Education Savings Plan Corporation and Jane Doe C

Defendants

BETWEEN

Anne
    Kouvas

Plaintiff

and

Scarborough
    and Rouge Hospital, Global Resp Corporation, Esther Cruz and Nellie Acar

Defendants

Michael A. Crystal and Norman
    Mizobuchi, for the plaintiffs, Elia Broutzas and Anne Kouvas

Evan Kopiak, for the defendants, C.S.T.
    Consultants Inc.

Nicole Henderson, for the defendants, Knowledge
    First Financial Inc.

Daniel Girlando, for the defendants,
    Scarborough Health Network

Heard: September 20, 2019

APPEAL BOOK ENDORSEMENT

[1]

The order is clear and unequivocal. The motion
    judge dismissed the certification motion. He made no order dismissing any of
    the claims before him. Under s. 30 of the
Class Proceedings Act
, an
    appeal from an order refusing to certify a proceeding lies to the Divisional
    Court. The appeal to this court is quashed without prejudice to the appellant
    proceeding with the appeal in the Divisional Court.

[2]

Costs to the respondents in the amount of $2,500
    each, including disbursements and all relevant taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Carey v. Carey, 2019 ONCA 729

DATE: 20190919

DOCKET: M50434 (C66897)

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Robert
    Carey, Lydia Carey-Patel and David Aello

Applicants (Respondents in Appeal)

and

Douglas Carey, Arthur Carey,
    Jennie Carey and the Office of the Public Guardian and Trustee

Respondents (Respondents in Appeal)

Olando Vinton, for Edward Carey and
    David Carey

Richard Watson, for Robert Carey, Lydia
    Carey-Patel and David Aello

Yonatan Lipetz, for Arthur Carey and
    Douglas Carey

Heard and released orally: September 16, 2019

REASONS FOR DECISION

[1]

We have decided, I may say reluctantly, to grant
    this adjournment. We are prepared to do so in light of the respondents consent
    to the adjournment request made by the appellants.

[2]

The adjournment is granted on the following
    terms.

[3]

Counsel will attend at the office of the Civil
    Appeals Trial Coordinator to obtain a date for the hearing of this appeal. That
    date is peremptory to the appellants (the date has now been set (November 28,
    2019)). The appeal is to take 45 minutes. Thirty minutes for the appellants and
    15 minutes for the respondent.

[4]

The appellants must perfect this appeal in
    accordance with the rules within 21 days of today. The respondent must file the
    respondents factum within 10 days of the receipt of the appellants perfected
    appeal.

[5]

We award costs to the respondent of todays
    appearance in the amount of $1,500, payable by the appellants and payable
    within 21 days.

[6]

If counsel have any problems complying with any
    of the terms set out above, or meeting any of the deadlines, they must arrange
    a case management conference call with me. The failure to comply with any part
    of this order, including the costs order, may result in the dismissal of this
    appeal as an abandoned appeal.

Doherty
    J.A.

Harvison
    Young J.A.

J.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chapadeau v. Devlin, 2019 ONCA 767

DATE: 20190930

DOCKET: C66212

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Remi
    Chapadeau and Shawn Henderson

Applicant (Appellants)

and

Siobhan Mary
    Devlin, Kathryn Prud'Homme, Donald Murphy, Jacques Ferron, Suzanne Ferron, Dale
    Sheehan, Carol Sheehan, Meredith Porter, Paulus Christianus Maria Wubben,
    Robert Stanley Smith, Paula Smith, Brian Grant, Tushara Williams, Michel
    Carbonneau, Stephane Rose, Paul Makdissi, Myra Yazbeck, Allan Taylor, Richard
    Gourgon, Una Couture, Chris Dean, Brent

Taylor, Risa
    Taylor,
Michel Duhamel
, Christine Bray-Duhamel, Melvin Hartman, Joan Rosenberg-Hartman,
    Wladyslaw Danielak, Maria Danielak, Brian Woodland, Gayla Woodland, Patricia Lamontagne,
    Marie Athala Bordeleau, Timothy McCunn, Barbara Carol Janik, Jamie Daniel, Joseph
    Turcotte, Deborah Lisa Turcotte, Polly Mary Eden-Walker,
Kathleen Lundgren
, Steve Furr, Joseph Victor Derraugh, Patricia Mac Allan, David
    Edward Seibel, Jerzy Jurewicz, Zofia

Orlowska-Jurewicz,
    Julie Elizabeth Anne Hopkins, Dusan Madric, Stanica Karadzik, James Thomas
    Strang, Barbara Strang, Michael Harrison, Virginia Harrison, Alvin Beltram,
Emma Christina Verdun
, David James Tappin, Roger Paul, Jocelyne Lemery-Paul, Sandra
    Lee-Morvai, Johanne D'Auray,
Catherine
    Barnes
, Lionel Lobo, Paulette Martel, Richard
    Martel, Ronald Benson, Linda Benson, Eric MacMillan, Susan Major-MacMillan Francois
    Gagnon, Suzanne

Simard, Jerry
    Valihora, Judith Cornell, Elizabeth Lynn Johnson, Anthony John White, Simonne White,
    Jack Hugues, Nicole Butcher, Kevin Goodhue, Monica Goodhue, Artur Oldak, Dorota
    Oldak, Louise Larocque, Suzanne Marie Catherine Lapensee, Louise Maguire
    Wellington, Mirza Mansukh Jahani, Paul Douglas Dickson, Andrew William McCauley,
    Sylvana Maria Gatto, Estelle Heron, Addo Boafo, and Nouhad Hamad

Respondents (
Respondents
in Appeal)

Remi Chapadeau, self-represented

Christy Allen and Melinda Andrews, for
    the respondents, Michael Duhamel, Emma Verdun and Catherine Barnes

Heard and released orally: September 20, 2019

On
    appeal from the judgment of Justice Robyn M. Ryan Bell of the Superior Court of
    Justice, dated January 10, 2019.

REASONS FOR DECISION

[1]

We are in substantial agreement with the reasons
    of the application judge on the application. We are satisfied that she
    accurately identified the applicable legal principles, properly considered
    those authorities as they applied to this case, and did not, in our view, err
    in the manner in which she applied them to the facts before her. The provision
    in question (s. 6.2) is enforceable. The appeal from the order dismissing the
    application is dismissed.

[2]

In respect of the application for leave to
    appeal the costs order made against the appellants, we accept the respondents
    argument that the application judges interpretation of the combined effect of
    s. 3.7 and s. 11 of the Shared Property Agreement was a reasonable one. On that
    interpretation, the members of the committee were entitled to indemnification
    of legal costs from the Common Fund (s. 3.7). As other owners, they were
    entitled to indemnification of costs caused by the acts of the appellants, who
    were also owners (s. 11). On the application judges interpretation, which we
    accept as a reasonable one, the costs order cannot be challenged. The
    respondents were entitled to costs on a substantial indemnity basis. We would
    not grant leave to appeal the costs order.

[3]

The appeal is dismissed and leave to appeal the
    costs order is refused.

[4]

We are satisfied that the respondents are
    entitled to their costs in this court on the same basis that they were entitled
    to their costs below. They are entitled to costs on a substantial indemnity
    basis as a result of the terms of the Shared Property Agreement referred to
    above. However, we are not satisfied at this point that we can determine the
    appropriate amount of those costs. Consequently, the costs will have to be
    assessed on a substantial indemnity scale.

Doherty
    J.A.

Harvison
    Young J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Childs v. Childs, 2019 ONCA 717

DATE: 20190911

DOCKET: M50451 (C61581)

Lauwers, van Rensburg and
    Roberts JJ.A.

BETWEEN

Peter
    Childs

Moving Party

and

Michael Childs, Andrew Childs, Caroline Childs,

Eileen Vera Childs and Wendy Griesdorf, and BMO Trust Company and

the Ontario Public Guardian and Trustee

Responding Parties

Peter Childs, self-represented

Michael Childs, Andrew Childs and
    Caroline Childs, self-represented

Debra Stephens, for Wendy Griesdorf

Heard: In writing

REASONS FOR DECISION

[1]

This is a matter involving four children of
    Eileen Vera Childs. We refer to them by their first names for clarity and
    without any sense of disrespect. Peter brings a motion to this court pursuant
    to r. 59.06(2) to vary or quash this courts order of June 20, 2017, disposing
    of the appeals in C61581 and C62716 (the Appeals).

[2]

In accordance with this courts advice in
Hoang
    v. Mann Engineering Ltd.
, 2015 ONCA 838, at para. 15, the r. 59.06 notice
    of motion was screened by the court. Peter and those he named as respondents to
    the motion were given notice of the proposed making of an order staying or
    dismissing the motion under rule 2.1.02 of the
Rules of Civil Procedure
and were invited to make written submissions. Rule 2.1.02 provides that the
    court may, on its own initiative, stay or dismiss a motion if it appears on its
    fact to be frivolous or vexatious or otherwise an abuse of the process of the court.

[3]

Peter and Caroline, who were the appellants in
    the Appeals, made written submissions asking that the r. 59.06 motion not be
    dismissed. Michael, a respondent to the Appeals, and Wendy Griesdorf, who had
    acted as counsel for Mrs. Childs under s. 3 of the
Substitute Decisions Act
,
    1992, S.O. 1992, c. 30 (the Section 3 Counsel) in the litigation and was an
    intervenor in the Appeals, asked the court to dismiss the motion under r.
    2.1.02.

[4]

It is unnecessary to recite here the full history
    of the litigation that led to the Appeals, and the issues that were in dispute
    between the parties, which are set out in detail in the courts reasons in the
    Appeals. It is sufficient to note that the litigation involved the competing
    guardianship applications of two pairs of siblings in respect of the personal
    care and property of Mrs. Childs, arising out of her incapacity.

[5]

By the time the applications were heard in the
    Superior Court, there was an agreement, facilitated by the Section 3 Counsel,
    to the appointment of BMO Trust Company (BMO) as guardian of property. The
    only outstanding matter in dispute, apart from costs, was how much Caroline would
    be paid for the care of Mrs. Childs. The applications judge made an order
    appointing Caroline guardian for personal care and providing for her
    compensation. A letter from Carolines counsel shortly after the application
    decision was released precipitated a motion under r. 59.06 by Section 3 Counsel.
    Ultimately the applications judge ordered that Michael and Caroline were to be
    joint guardians of Mrs. Childs personal care in accordance with a guardianship
    plan filed by Michael and he increased Carolines compensation going forward.
    There was also an unsuccessful motion by Peter, supported by Caroline, to compel
    the passing of accounts by BMO and the Section 3 Counsel. Costs orders were
    made by the applications judge and the motion judge, requiring, among other
    things, that Peter and Caroline pay part of the costs of the other parties from
    their expected inheritance from Mrs. Childs estate.

[6]

Before the Appeals were heard, Simmons J.A.
    considered a number of motions, including motions by Peter and Caroline for
    leave to appeal the costs orders. Among other things, Simmons J.A. deemed
    struck all submissions and evidence in Peter and Carolines appeals
    documentation relating to the quantum of costs awarded to Section 3 Counsel and
    BMO and relating to any submissions and evidence not made or filed in the court
    below. And, in granting leave to appeal costs, Simmons J.A. precluded their
    challenge to the quantum of the costs awarded.

[7]

Peter and Caroline moved to set aside or vary
    the Simmons Decision, including to permit them to argue the quantum of the
    costs awarded to Section 3 Counsel and BMO. Their review motion was heard in
    conjunction with and considered at the outset of the hearing of the Appeals.

[8]

The Appeals and the review motion were dismissed
    with reasons reported at 2017 ONCA 516. Among other things, in disposing of the
    review motion, the court upheld Simmons J.A.s refusal to permit Peter and
    Caroline to pursue any appeal respecting the quantum of costs awarded in favour
    of Section 3 Counsel and BMO, and her decision to strike Peter and Carolines
    documentation relating to the quantum of costs below. In disposing of the
    Appeals, this court stated in its reasons, at para. 50:

In our view, there is no merit to these
    appeals. They are the culmination of unnecessarily protracted litigation that
    has depleted Mrs. Childs estate, wreaked havoc on the emotional and financial
    health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully
    impugned the applications judge. It is past time for the litigation over Mrs.
    Childs to end.

Leave to appeal to the Supreme Court
    of Canada was refused in May 2018: 2018
CanLII 48390
.

[9]

Peter now moves to reopen the Appeals. He
    asserts that, after the disposition of the Appeals, new information became
    available that had been deliberately concealed by other parties to the
    litigation, which, if known, would reasonably have changed the decision of this
    court in the Appeals. The new information consists of quarterly reports of
    Mrs. Childs property guardian for the period April 2015 to December 2016 that
    were released on September 21, 2017, which reveal a $43,000 payment by BMO (as
    property guardian) to Section 3 Counsel for appeal work on February 24, 2016,
    and a transfer from Nesbitt Burns to BMO of $442,000 on May 19, 2016
    (incorrectly referred to in some places in Peters materials as having occurred
    on May 19, 2015).

[10]

Peter contends, among other things, that the
    $43,000 payment speaks to an inappropriate relationship between Section 3
    Counsel and BMO, and, with respect to the $442,000 transfer he does not allege
    that there is any money missing but questions what legal instrument was used
    for the transfer from Nesbitt Burns to BMO. He alleges that the former Section
    3 Counsel was implicated in the transfer to BMO (although she was released as
    Section 3 Counsel before the transfer was made), and that this again suggests
    an inappropriate relationship and litigation agreement. Peter makes a number
    of other allegations about an undisclosed and improper litigation agreement
    between BMO, Section 3 Counsel and other parties to the litigation, including
    the fact that the parties communicated with one another in respect of the issue
    of costs.

[11]

Submissions were received from Peter and
    Caroline, opposing a r. 2.1.02 order, and from Michael and the former Section 3
    Counsel, supporting such an order.

[12]

In his submissions, Peter argues that the new
    information suggests that BMO, Michael and Section 3 Counsel were party to an
    undisclosed litigation agreement, breached their fiduciary duty to Mrs. Childs
    and misled the courts to achieve favorable decisions. Caroline repeats several
    of Peters allegations about an alleged improper relationship between Section 3
    Counsel and BMO and misconduct by the Section 3 Counsel.

[13]

Michael asks that Peters motion be dismissed
    under r. 2.1.02. He contends that it is part of ongoing litigation by Peter to allege
    a sinister conspiracy between Section 3 Counsel, BMO and himself. He contends
    that the new information was known to everyone at the time of the Appeals,
    except for the fact that Section 3 Counsel, who had submitted dockets for her
    appeal work of $44,000, (which according to Caroline were in the record before
    this court) had in fact been paid $43,000 by the time the Appeals were heard. As
    Mrs. Childs litigation guardian, Michael is pursuing this issue, which he
    describes as an oversight and other omissions and problems in BMOs passing
    of accounts. Peter was recently denied standing in those proceedings, his Notice
    of Objection was struck, and he was found to be a vexatious litigant in the
    proceedings, with the primary objective to re-litigate issues which are the
    subject of previous final court orders: 2019 ONSC 2637.  That order is under
    appeal to this court in Court File C66915.

[14]

The former Section 3 Counsel supports the
    dismissal of Peters motion under r. 2.1.02. Responding to the specific
    allegations, she asserts that the alleged new information is neither new nor
    relevant and that Peter continues to attempt to re-litigate matters related to
    Mrs. Childs.

[15]

Having considered Peters notice of motion and
    the submissions filed in response to the Registrars notice, we have determined
    that an order under r. 2.1.02 is not only warranted, but essential in the
    circumstances of this case. Peter is relying on information that is not new
    (except for the oversight of failing to disclose a payment to Section 3
    Counsel for which she had already submitted dockets), and that could not
    conceivably have affected this courts decision in the Appeals.

[16]

The motion is a transparent attempt to continue
    to wage war against the former Section 3 Counsel. Her alleged misconduct is a
    matter that was soundly rejected by this court on its merits, but also on the
    basis that Peter and Caroline had never appealed the order of the applications
    judge striking the parts of their affidavits in which they impugned Section 3
    Counsels conduct (at paras. 90 to 100).

[17]

As such the motion under r. 59.06 to vary or
    quash this courts order dated June 20, 2017, is an abuse of the process of
    this court, and frivolous and vexatious. Pursuant to s. 2.1.02 of the
Rules
    of Civil Procedure

the motion is accordingly dismissed. No further
    motions shall be filed by the moving party in an attempt to reopen or otherwise
    in respect of the Appeals.

P. Lauwers J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Damiani v. QSR Group Inc., 2019
    ONCA 725

DATE:  20190916

DOCKET: C66499

Hoy A.C.J.O., Nordheimer and
    Jamal JJ.A.

BETWEEN

Lucy
    Damiani

Appellant (Defendant)

and

QSR Group Inc.

Respondent (Plaintiff)

M. Tubie, for the appellant

Cameron D. Neil, for the respondent

Heard and released orally:  September 13, 2019

On
    appeal from the judgment of Justice D. Gray of the Superior Court of Justice,
    dated January 10, 2019.

REASONS FOR DECISION

[1]

The appellant appeals the judgment of Gray J.,
    dismissing her motion to set aside her noting in default and granting default
    judgment to the respondent. She argues that Gray J. erred in his assessment of
    the merits of her defence.

[2]

On March 5, 2019, Harvison Young J.A. dismissed
    the appellants motion for a stay pending appeal. In her endorsement, she
    comprehensively reviewed the background of this matter and, in considering
    whether the appellant had demonstrated that there was a serious issue to be
    tried, addressed the arguments the appellant makes on this appeal.

[3]

We agree with Harvison Young J.A.s analysis of
    the appellants arguments. We conclude that this appeal is without merit. There
    is no basis to interfere with the discretionary decision of Gray J.

[4]

Accordingly, this appeal is dismissed. We award
    costs of the appeal, fixed in the amount of $4,600, to the respondent.

Alexandra
    Hoy A.C.J.O.

I.V.B.
    Nordheimer J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Davidoff v. Sobeys Ontario, 2019 ONCA 684

DATE: 20190904

DOCKET: C65664

Tulloch,
    Benotto and Huscroft JJ.A.

BETWEEN

Alexander Davidoff

Plaintiff (Appellant)

and

Sobeys Ontario

Defendant (Respondent)

Alexander Davidoff, acting in person

Zohaib I. Maladwala and Rachel Laurion, for the
    respondent

Heard: May 23, 2019

On appeal from the order of
    Justice Meredith Donohue of the Superior Court of Justice, dated June 20, 2018.

Tulloch J.A:

[1]

Mr. Davidoff appeals the striking of his Statement of Claim
    by the court below for wrongful termination under r. 21.01(1)(a) of the
Rules
    of Civil Procedure
: R.R.O 1990, Reg. 194. For the reasons
    that follow, I would dismiss the appeal.

I.

FACTS

[2]

Mr. Davidoff issued a Statement of Claim on November
    1, 2017, intending to sue Sobeys Ontario for wrongful termination. He claims
    that he was wrongfully dismissed after he discovered fraud on the part of two
    Sobeys managers. Both parties agree that the date of his termination was
    October 6, 2015.

[3]

The parties also agree that the limitation
    period for the wrongful termination claim is two years, as prescribed by s. 4
    of the
Limitations Act
S.O. 2002, c. 24,
    Sched. B. Mr. Davidoff would therefore have needed to issue a Statement of
    Claim or a Notice of Action on or before October 6, 2017.

[4]

On September 29, 2017, Mr. Davidoff mailed a
    letter to Sobeys Director of Human Resources, entitled Notice of Action for
    Wrongful Dismissal and Defamation of Alexander Davidoff. He also emailed the
    letter to Sobeys lawyer at Fasken Martineau DuMoulin LLP. The letter included
    a statement that Mr. Davidoff would commence legal action against Sobeys Inc.
    for wrongful dismissal and defamation.
[1]
The letter did not follow the format prescribed for Notices of Action in r.
    14.03(2) Form 14C

of
    the
Rules of Civil Procedure
.  Among other
    things, the letter was not signed by the local registrar of the Superior Court
    of justice and did not contain the court seal. The letter also stated that a
    legal action
would be

commenced and not that it
had been

commenced as required by Form 14C.

[5]

Mr. Davidoff filed a Statement of Claim on
    November 1, 2017, outside the limitation period for his wrongful termination
    claim. Sobeys Ontario moved to strike the claim under r. 21.01 on the basis
    that it was plain and obvious that the claim was barred by the statutory
    limitation period. In response, Mr. Davidoff opposed the motion on the basis
    that his September 29 letter was a Notice of Action, and therefore he had
    commenced his action within the two year period.

[6]

The motions judge, Donohue J, granted Sobeys
    motion and struck Mr. Davidoffs claim because his September 29 letter did not
    conform to the requirements for a Notice of Action under r. 14.03(2) of the
Rules
    of Civil Procedure
.
She concluded
    that this was a clear case where a wrongful dismissal action was appropriately
    struck under r. 21.01(1)(a) before a statement of defence was filed. She
    reasoned that Mr. Davidoff had not commenced his action within the two-year
    limitation period so it was plain and obvious that his claim was barred by the
Limitations
    Act
.

[7]

Donohue J awarded costs of $5,000 to the
    Respondent. She noted that their actual costs were $11,221.13 and their partial
    indemnity costs were $7,178.44. Recognizing that the Appellant was
    self-represented, she exercised her discretion and awarded cost in the amount
    of $5,000.

II.

ANALYSIS

A.

The September 29 letter was not a Notice of Action

[8]

Mr. Davidoff appeals the striking of his claim. He
    argues that the motions judge erred in her interpretation of the formal
    requirements for a Notice of Action. He specifically argues that r. 14.03(2),
    Form 14C of the
Rules
applies only to online
    filing. He submits that since he served the notice through registered mail and
    not online, he did not have to conform to Form 14C.  I do not agree. A Notice
    of Action commencing a proceeding must meet the requirements in r. 14.03(2).
    Mr. Davidoffs letter did not meet these requirements. Donohue J. did not err
    in her interpretation of the
Rules
or in her
    conclusion that the September 29 letter was not a Notice of Action and could
    not have commenced a proceeding.

[9]

This finding by the motions judge is one of mixed fact
    and law. As such, her ruling attracts deference from this court, absent
    palpable and overriding error or an extricable error in principle in her analysis
    of the law:
Housen v. Nikolaisen,
2002 SCC 33,
    [2002] 2 S.C.R. 235, at paras. 26 to 37; see also
Donnell v. Joseph,
2012 ONCA 240, 94 M.P.L.R. (4
th
) 169, at para. 11.
    Having found that a proper Notice of Action was not filed within the limitation
    period, and that a claim was not commenced by October 6, 2017, the motions
    judge was correct to consider next whether the motion could be disposed of
    pursuant to r. 21.

B.

This is an appropriate case for the limitation period issue to be
    decided on a r. 21.01(1)(a) motion

[10]

This is one of the rare cases in which it is appropriate for the
    limitation issue to be decided on a r. 21.01 motion to strike. The Respondent
    cites
Beardsley v. Ontario
for the proposition
    that in some rare cases limitations issues can be decided on pre-trial motions
    to strike: 57 O.R. (3d) 1.  Since
Beardsley,
this court has elaborated on that principle in a number of other cases,
    including recently, in the decision of
Clark v. Ontario (Attorney
    General)
2019 ONCA 311, leave to appeal to S.C.C
    requested, 38687;
Kaynes v. BP, P.L.C.
, 2018
    ONCA 337, 81 B.L.R. (5
th
) 6; and
Salewski v. Lalonde
2017 ONCA 515, 137 O.R. (3d) 762. However even under the current
    more restrictive rule, it was appropriate to strike Mr. Davidoffs claim on the
    r. 21.01 motion.

[11]

This court in
Salewski
noted that
    the
Beardsley
exception, allowing some claims
    to be struck on a r. 21.01(1)(a) motion based on the expiry of a limitation
    period, may have been overtaken by the
Limitations Act
of 2002. The bar is now higher for allowing a motion to strike
    based on the conclusion that a limitation period has expired. This court reaffirmed
    that consequence of
Salewski
in
Clark
at para. 48.

[12]

The analysis in
Salewski
and
Clark
referred to situations in which the issue of
discoverability
underlying the two-year
    general limitation period in the 2002
Limitations Act
applies. This is clear in the reasoning in
Brozmanova v.
    Tarshis
, referred to in
Clark
at para. 44: A plaintiff who risks the dismissal of her action on
    the basis of a limitations defence should not have to ask a court for
    permission to file evidence
on the issue of when
    she discovered her claim
. 2018 ONCA 523, 81 C.C.L.I.
    (5
th
) 1, at para. 22 (emphasis added).

[13]

In this case, the parties both agree on the date the claim became
    discoverable and the limitation period began, and the court is not required to
    make the findings of fact as discussed in
Brozmanova
and referenced in
Clark
that would
    be relevant to that question. There is no risk of unfairness to Mr. Davidoff on
    the basis raised in
Brozmanova
and
Clark
in the motions judges striking of his claim.

[14]

The situation in this case is more similar to that in
Kaynes
, in which this court did allow a limitation issue to be determined
    under r. 21.01(1)(a). The court in that case noted at paragraph 13: In a case
    such as this where the parties agree that there are no material facts in
    dispute, it is an efficient use of court resources to determine limitations
    defences on a Rule 21 motion. The court in
Clark
distinguished
Kaynes
because,
    unlike in
Clark
, there were no material facts
    in dispute, and [
Kaynes
was] in the context of
    an event-triggered limitation period at para. 45. On those factors, this case
    is more like
Kaynes
than
Clark
. There are no material facts in dispute, including the date on
    which the limitation period was triggered. As in
Kaynes
there is no issue of discoverability.

[15]

The only question to be determined on the r.
    21.01(1)(a) motion to strike was whether the September 21 letter qualified as a
    Notice of Action. Even under
Salewski
and
Clark
, as far as they are applicable to this case, it was appropriate to
    determine that question on the r. 21.01 motion. This is one of the rare
    situations in which there is absolutely no utility in requiring a defence to be
    filed so that pleadings can be noted closed.  The facts are undisputed, the
    matter is far from complex and the additional step would serve no purpose.

C.

The Respondent did not introduce a new material fact in oral argument

[16]

Mr. Davidoff also submits that counsel for the Respondent improperly
    introduced a new material fact during oral submissions and that the
    Respondents position was not clear from their written materials. This
    allegedly new material fact is the Respondents position that the September 29
    letter was not a Notice of Action under the
Rules
. Mr. Davidoff contends that the Respondents written materials only
    refer to the timing of his Statement of Claim and not to his letter. He
    therefore did not have a fair opportunity to respond to their arguments.

[17]

I would not give effect to this submission. Donohue J. had allowed
    Mr. Davidoff to provide the September 29 letter as evidence on the r. 21 motion
    to dismiss. The Respondents position on the letter was a response to evidence
    that Mr. Davidoff himself had introduced and was not a new or unexpected
    addition to the oral argument.

[18]

In all the circumstances this was a clear case
    where a wrongful dismissal action was appropriately struck under r. 21.01(1)(a)
    before a statement of defence was filed.

D.

Costs

[19]

In my view, Donohue J.s order of costs was
    appropriate. Cost awards are discretionary and are entitled to deference. She
    acknowledged the difficulties of the Appellant as a self-represented party, and
    her award was well within the range of what was fair and reasonable.

[20]

Accordingly, I would dismiss the appeal.

Released: MT SEP 4 2019

M. Tulloch J.A.

I agree. M.L. Benotto J.A.

I agree. Grant Huscroft J.A.

[1]

Mr. Davidoff clarified in his submissions to this Court that
    he did not intend to pursue a claim for defamation and focuses on his claim for
    wrongful dismissal.


COURT OF APPEAL FOR ONTARIO

CITATION: Davies (Re), 2019 ONCA 738

DATE: 20190923

DOCKET: C66107

Watt, Tulloch and Lauwers JJ.A.

IN THE MATTER OF: Jacqueline Davies

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti,

for the appellant Jacqueline
    Davies

Gavin MacDonald, for the respondent Her
    Majesty the Queen

Heard: June 25, 2019

On appeal of the
    disposition of the Ontario Review Board

dated September 10, 2018, with
    reasons released on October 9, 2018.

Lauwers J.A:

[1]

On July 3, 2007, the appellant was found not
    criminally responsible on account of mental disorder on charges of assault with
    a weapon, and aggravated assault. She has been under the Ontario Review Boards
    jurisdiction under
Part XX.1 of the
Criminal Code
since 2007. Her current diagnoses are schizophrenia, polysubstance
    abuse (cannabis, alcohol, opioids), and borderline personality disorder.

[2]

The Board imposed detention orders on the
    appellant annually until 2016, when she was conditionally discharged. She was
    conditionally discharged again on September 19, 2017. The conditions required her
    to live at Mathias Place (a group home), to report to the hospital at regular
    intervals, and to abstain from the non-medical use of alcohol or any other
    non-prescribed drugs.

[3]

In the October 2018 disposition under appeal, the
    Board did not renew the conditional discharge but instead made a detention
    order, which gave the person in charge of the hospital discretion to permit the
    appellant to live in the community in accommodation approved by the person in
    charge.

[4]

As the Board noted in its reasons, the appellant
    did not challenge the determination that she posed a significant threat to the
    safety of the public within the meaning of s. 672.54 of the
Code
.

[5]

The appellant argues that the Boards decision
    to impose a detention order on her in place of the conditional discharge was not
    necessary and appropriate, and was not the least onerous and least restrictive
    disposition, and must be set aside. The court was recently advised that the
    appellants 2019 review was heard by the Board on September 12, 2019.
    Accordingly, the appeal is not quite moot. Having heard full argument, in my
    view the issues raised merit disposition nonetheless.

[6]

For the reasons set out below I would dismiss
    the appeal.

A.

The Factual Context

[7]

The appellant absconded from the group home, Mathias
    Place on July 3, 2018, when she was under the September 2017 conditional
    discharge. Six days later, police apprehended her at a shelter in Toronto and
    returned her to the hospital. She was admitted to the hospital on a Form 1 under
    the
Mental Health Act
, R.S.O. 1990, c. M.7. This changed eventually to
    a Form 3 and then to a Form 4. She remained voluntarily until the detention
    order was made.

[8]

Staff of Mathias Place did not adequately
    supervise the appellant. She was able to gull staff and to elude drug abuse detection
    through drug tests. The appellant admitted using opioids and cannabis, and
    drinking alcohol during her elopement. Personnel found empty absinthe bottles and
    drug paraphernalia in her room at Mathias Place. The appellant admitted that
    during the previous reporting year she had been using substances, contrary to
    the conditions of her discharge. She admitted using flushes to avoid
    detection. She said she wanted to test out the effects of cessation of her
    medication.

[9]

The appellant told the Board that she wanted
    cannabis use included in her disposition because she believes that it helps
    her. She explained that she left Mathias Place because she did not like the effects
    of the long-acting injected medication; her new prescribed medications sedated
    her extremely when mixed with marijuana, which she was intent on using. The
    appellant admitted to consuming alcohol in her room at Mathias Place. She said
    that while she was absent without leave from the residence, she used opioids to
    control tremors in her hands caused by withdrawal from the prescribed
    medications. Since her return to hospital, there have been incidents that
    suggest a decline in her mental state, such as increased irritability, and
    aggressive and threatening behaviour on two occasions.

[10]

Dr. Alatishe, the appellants primary
    psychiatrist, testified that her failure to take the prescribed medications and
    her substance abuse during her elopement, increased her risk profile respecting
    public safety. She had lost insight into her illness. It was therefore essential
    for the hospital to approve her accommodation in the community and to have the
    ability to return her to hospital in a timely manner. He said this could be
    more quickly and reliably accomplished under a detention order than under the
    provisions of the
Mental Health Act
.

B.

The decision under appeal

[11]

The Board accepted Dr. Alatishes statement that
    a detention order was necessary and that continuation of the conditional
    discharge would be insufficient to manage the appellants newly increased risk.
    While the Board was positive about the appellants expressed willingness to
    re-engage in relapse prevention regarding alcohol and opioids, it also noted that
    she must address her cannabis use disorder.

[12]

The Board concluded that the appellant would not
    be able to achieve her goals to live independently and to avoid receiving
    medication by injection until she gains further insight into the harmful impact
    of cannabis on her mental health. She was refusing to take the long-acting
    injectable medication, and this refusal would shorten her time to
    decompensation. Accordingly, the Board found that a detention order was the
    necessary and appropriate disposition required to manage the appellants threat
    to the public while still meeting her needs.

[13]

It appears that Mathias Place is recognized as
    an excellent facility and the hospital wants to return the appellant there once
    she has stabilized, with the understanding that staff there would be more
    rigorous in her supervision.

C.

The Issues

[14]

The appellant seeks a conditional discharge in the same terms as the
    2017 conditional discharge. The argument set against her is that her breaches
    of the conditional discharge and her decompensation justified the Boards
    imposition of a detention order.

D.

The Governing Principles

[15]

Part XX.1 of the
Criminal Code
establishes the legislative regime for NCR accused. The Board is charged with
    the responsibility for determining the necessary and appropriate disposition
    for the NCR accused under s. 672.54, meaning the least onerous and least
    restrictive disposition necessary to protect the public:
R. v. Winko
,
    [1999] 2 S.C.R. 625, at para. 47. Despite a legislative amendment in 2014 that changed
    the language used in s. 672.54, the Board and the courts have considered that
    the new language did not change the applicable test, still commonly expressed
    as: the least onerous and least restrictive' disposition necessary to protect
    the public
:
Esgin (Re)
, 2019 ONCA 155, at para.
    16.

[16]

It is accepted that "the primary purpose of
    the legislative scheme is to protect the public while minimizing any
    restrictions on the NCR accused's liberty interests":
Mazzei v. British
    Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
    [2006] 1 S.C.R. 326, at para 32,

per Bastarache J. The corollary is that, [c]onsistent
    with the Board's need to safeguard liberty as much as possible, the conditions
    included in Board dispositions must also conform to the least onerous and least
    restrictive standard:
Campbell (Re)
, 2018 ONCA 140, 139 O.R. (3d) 401, at
    para. 54, per Fairburn J.A.

[17]

The court owes deference to
    the Board because it is a specialized, expert body:
R. v. Owen
,
2003 SCC 33
,
[2003] 1 S.C.R. 779
, at para. 37. Appellate courts are "'not
    to be too quick to overturn' a review board's 'expert opinion' on how best to
    manage a patient's risk to the public":
R. v.
    Conway
,
2010 SCC 22
,
[2010] 1 S.C.R. 765
,
at para. 95. See also
Owen
, at
    para. 69.

[18]

The issue is whether the Board's decision to
    impose a detention order on the appellant rather than continue the conditional
    discharge fell within a range of reasonable outcomes:
Owen
, at para. 33.
    A decision will be considered unreasonable when the reasons do not "bear
    even a somewhat probing examination":
Saikaley (Re)
, 2012 ONCA 92, 109
    O.R. (3d) 262, at para. 35;
Mazzei,
at para. 17.

[19]

This court has consistently held that, when the
    hospital is required to approve housing, a detention order is the appropriate
    disposition:
Boucher (Re)
, 2015 ONCA 135, at para. 6;
Runnalls (Re)
,
    2012 ONCA 295, at para. 12;
R. v. Simpson
, 2010 ONCA 302, at para. 4;
Runnalls
    (Re)
, 2009 ONCA 504, 251 O.A.C. 284, at para. 15;
Munezero (Re)
,
    2017 ONCA 585, at para. 9;
Ly (Re)
, 2015 ONCA 141, at para. 22.

[20]

However, a conditional discharge can contain a
    provision that obliges an NCR accused to reside in a specific place. For
    example, the 2017 conditional discharge required the appellant to
reside at Mathias Place, 369 Main Street West, Hamilton, Ontario.

E.

The Argument

[21]

Appellants counsel
asserts that the Boards imposition of a detention order on the appellant
    was unreasonable on the evidence, given that the appellant had stable,
    supervised housing in the community and there was no proposal to change it. She
    submits that the Board did not meaningfully consider continuing the appellant
    on a conditional discharge. The carefully crafted conditions in the previous conditional
    discharge mitigated sufficiently any risk to public safety posed by the
    appellant living in the community.

[22]

Although the appellant breached her discharge
    disposition terms by absconding, failing to report as required, and consuming
    illicit substances, the police were able to readily apprehend her and return
    her to the hospital. Once she was transported there, the provisions of the
Mental
    Health Act
were used to manage her detention adequately and to address any
    potential concern for public safety.

[23]

The appellants
    counsel thus presented as positive what the Board saw as negative. She argued
    that t
he evidence the Board relied on to justify a
    detention order actually shows that the conditional discharge functioned
    adequately and should have been retained.

The
    additional reduction in the appellants liberty was therefore not necessary and
    appropriate.

[24]

Accordingly, counsel for the appellant urged this
    court to return this matter to the Board for re-hearing on the issue of whether
    appropriately crafted conditions of a discharge disposition could safeguard the
    public, similar to this courts approach in
Tolias (Re)
, 2018 ONCA 215,
    at para. 20, and
Collins (Re)
, 2018 ONCA 563, at paras. 39-50.

[25]

The hospitals position, as adopted by the
    Board, is that a detention order was necessary to manage the appellants newly
    increased risk because she could more be quickly be returned to the hospital
    and admitted under a detention order than under a conditional discharge
    utilising the provisions of the
Mental Health Act
, so that continuation
    of the conditional discharge would not be appropriate. The mechanics of the
    quicker return under a detention order were explained by Doherty J.A. in
Centre
    for Addiction and Mental Health v. Young
, 2011 ONCA 432,

278 O.A.C. 274, at para. 26. The
    hospital also emphasized the need for the person in charge of the hospital to
    have the ability to approve the appellants accommodation in order to properly
    manage her risk.

F.

The Principles Applied

[26]

On the facts of this case, I would not give
    effect to the appellants argument, for two reasons. First, on the date of the
    hearing, the Board considered that the appellant was not yet ready to be
    released conditionally. She needed to be in the hospital until the person in
    charge determined that she was ready to be placed in the community in an
    approved residence. This disposition could only be imposed under a detention
    order, as noted earlier.

[27]

Second, although the
Mental Health Act
was able to play a useful role in this instance, at the date of the hearing the
    appellant was not ready to be released, and was not yet ready to be returned to
    Mathias Place on a conditional discharge.

[28]

Given the concession that the appellant poses a
    significant threat and risk to public safety, the Board focused its decision on
    whether a conditional discharge or a detention order was the appropriate
    disposition in light of the twin goals of public safety and treatment. The
    Board explicitly addressed the appellants submission that a conditional
    discharge was the appropriate disposition and rejected it. The appellant ceased
    taking prescribed medications and actively used substances in breach of the
    terms of her previous conditional discharge during her elopement. She also
    demonstrated diminished insight into her illness and an ongoing need for
    treatment. These factors led the Board to find that the appellants risk
    profile with regard to the safety of the public had increased. This justified
    the need for a detention order.

[29]

The Board underlined the need for the hospital
    to be able to return the appellant to hospital in a timely manner, and relied
    on Dr. Alatishes evidence about the change in the appellants risk profile and
    the inadequacy of the
Mental Health Act

regime to ensure
    readmission in the event of decompensation.

[30]

The approach taken by the Board in this case is
    not unusual. For example, in
Valdez (Re)
, 2018 ONCA 657, this court
    noted, at para. 21, the limits to relying on ease of readmission to hospital to
    justify a detention order:

[W]e have
    difficulty with the majority's cursory consideration of whether Mr. Valdez's
    risk to the public could be managed under a conditional discharge. The majority
    reasoned that "it is substantially easier to bring about a return to the
    hospital for individuals who are under a Detention Order" and that a
    warrant will always be acted upon to bring a person back to the hospital if necessary.
    However, this would always be true and could always be used to justify the
    refusal of a conditional discharge. But, given the least onerous and least
    restrictive test, something more is required than mere convenience to the
    hospital.

[31]

The mere fact of convenience and expediency is
    not enough to justify a detention order. However, in determining that a
    detention order was the appropriate disposition in this case, the Board reasonably
    accepted Dr. Alatishes evidence that the appellants risk profile had increased.
    The need for the hospital  to have the flexibility provided by a detention
    order was justified by the appellants actions during the reporting year: her
    substance use leading to her pronounced failure of insight, elopement, and
    decompensation.

[32]

The Board is an expert tribunal and is well
    aware of the mechanisms under the
Mental Health Act
, and its
    disposition is entitled to deference. In the circumstances, the Boards
    disposition appears reasonable.

G.

Part XX.1 of the
Criminal Code
and the
Mental
    Health Act

[33]

The appellants argument that the
Mental
    Health Act
provides a good vehicle for making conditional discharges more
    readily available is one this court often hears, and it merits closer
    consideration.

[34]

T
here
is, in my view, a troublesome lack of congruency between the
Criminal
    Code
and the
Mental Health Act
, which shows that the
Mental
    Health Act
does not offer sufficient utility in all reasonably foreseeable
    situations affecting the appellant or a similarly situated NCR accused. On the
    appellants argument, if she had been returned to the hospital by a peace
    officer for breaching a condition of the conditional discharge, but she was
    otherwise showing no signs of psychosis, the hospital would have had no
    authority to detain her under the
Mental Health Act
even though she was
    in breach of the conditional discharge. The hospital would have been obliged to
    release her outright even if her treating doctor was of the view that the
    breaches were the beginning of a cascade of negative effects leading to her inevitable
    decompensation, reviving the threat to public safety. Releasing her in such
    circumstances would defeat the purpose of her being under the aegis of the
    Board and the hospital by delegation, which is to protect both the accused and
    public safety. In short, while the
Mental Health Act
seems to have
    worked in this instance, there are situations involving an NCR accused in which
    it would not work.

[35]

As Doherty J.A. noted in
Young
, at
    paras. 13, 19-21, the provisions of the
Mental Health Act
were designed
    for other purposes than clumsily but fortuitously reinforcing Part XX.1 of the
Criminal
    Code
. The
Code
itself is clumsy, as I note below, and it appears
    that a detention order is becoming somewhat of a default for the Board in order
    to avoid that clumsiness. This has the counterproductive effect under the
Code
of reducing the use of conditional discharges, which is regrettable given the
    hope of progressive improvement that actuates Part XX.1.

[36]

Justice Doherty noted in
Young
, at para.
    32:

As with any breach of
    a provision of a conditional discharge, CAMH would have available to it the
    provisions of ss. 672.91, 672.92 and 672.93. None of those provisions gives
    CAMH the power to have Mr. Young arrested, brought back to CAMH against his
    will and confined there. While the two new terms imposed by the Review Board
    could properly be attached as conditions to a conditional discharge, a breach
    of those conditions triggers the breach provisions and does not give CAMH the
    power to detain Mr. Young.

[37]

To this Doherty J.A. added that Mr. Young could only be confined in
    CAMH following a breach if so ordered by a justice pursuant to s. 672.93(2),
    and attached the following footnote:
Section
    672.92(1)(b) allows a peace officer who has decided to release a person subject
    to a disposition order to deliver the person to the place specified in that
    order. It does not appear to me, however, that the section gives the hospital
    any authority to hold the person so delivered against his or her will.

[38]

In my view, this framework is not particularly functional.  Under s.
    672.92(1), a peace officer can release an accused to the place specified in the
    disposition,
namely the hospital cited in the conditional
    discharge. Yet the
Code
does not permit the
    hospital to do anything with the accused short of talking her into a voluntary
    admission or proceeding under the
Mental Health Act
should that happen
    to be possible. Alternatively, under s. 672.92(3), if a peace officer does not
    release the accused, the distressed NCR accused, who is not yet in so much
    distress as to be eligible to be held under the
Mental Health Act
, would
    need to be brought to temporary perhaps overnight incarceration while awaiting
    a hearing before a justice of the peace under s. 672.93. At the hearing, the
    justice of the peace could then order the accused detained in the hospital.

[39]

From a functional perspective, it would make good sense for the accused
    who is in breach of a conditional discharge to be delivered to the hospital specified
    in the disposition and for the hospital to have the ability to assess and treat
    an accused in breach without having to resort to the
Mental Health Act
. Under
    the current framework, as it has been interpreted, there is a serious gap in
    the legislation: while a peace officer is permitted to release an accused to
    the hospital, unless the
Mental Health Act
fortuitously intervenes, the
    hospitals authority to readmit, even pending a hearing before a justice of the
    peace, is limited. Surely Parliament can do better for people in the position
    of the appellant.

H.

Disposition

[40]

I would dismiss the appeal.

RELEASED: D.W. September 23, 2019

P.
    Lauwers J.A.

I
    agree. David Watt J.A.

I agree.
    M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Dawe v. The Equitable Life Insurance Company of Canada, 2019
    ONCA 744

DATE: 20190920

DOCKET: C65540

Pepall,
    Trotter and Harvison Young JJ.A.

BETWEEN

Michael Dawe

Plaintiff

(Respondent)

and

The Equitable Life Insurance
    Company of Canada

Defendant

(Appellant)

Michael A. Hines and Amanda J. Hunter,
    for the appellant

Andrew F. Camman, Susan A. Toth and
    Sarah Bauer, for the respondent

Heard: February 4, 2019

On appeal from the judgment of Justice
    Donald J. Gordon of the Superior Court of Justice dated May 23, 2018, with
    reasons reported at 2018 ONSC 3130.

Costs endorsement

[1]

This court allowed the appeal of Equitable Life
    in part, reducing the period of reasonable notice. Apart from adjusting Mr.
    Dawes damages for bonus entitlement to accord with the new notice period, it
    dismissed Equitable Lifes other arguments on this issue:
Dawe v. The
    Equitable Life Insurance Company of Canada
, 2019 ONCA 512. The court
    invited submissions on costs, establishing certain deadlines for filing. The
    parties requested and received an extension of time to file these submissions
    as they attempted to settle outstanding matters between them. They were unable
    to settle some or all of their issues.

[2]

The parties sought clarification of this courts
    judgment in terms of damages for Mr. Dawes bonus entitlement. The parties were
    permitted to exchange and file written submissions on the bonus entitlement
    issue and costs.

[3]

On the issue of bonus entitlement, Equitable
    Life submits that Mr. Dawe is not entitled to damages for the bonus that would otherwise
    have been paid to him in early 2018 for the previous year because, as this
    court determined, his notice period ended in 2017. According to Equitable Life,
    Mr. Dawe is not entitled to any damages for bonus entitlements earned in 2017.

[4]

Mr. Dawe submits that the motion judge held that
    he was entitled to be paid damages for bonus payments in full during the
    notice period. Mr. Dawe argues that Equitable Life did not appeal this aspect
    of the motion judges decision and that Equitable is attempting to re-litigate
    issues already decided.

[5]

We agree with Mr. Dawe. The motion judge
    determined that Mr. Dawe was entitled to damages for full bonus payments to
    the end of the notice period. The motion judge intended that Mr. Dawe receive
    damages for earned bonus payments until the end of the notice period (in 2017)
    on a
pro rata

basis and this court determined the bonus issue on
    this basis. We decline to entertain this new issue raised by Equitable Life at
    this stage.

[6]

The parties have agreed on the costs to be paid
    to Mr. Dawe for the motion. It is not necessary for this court to make any
    order on this issue.

[7]

In terms of costs of the appeal, Equitable Life
    claims success and requests $37,612.81, plus disbursements and taxes. Mr. Dawe submits
    that, of the two issues on appeal, the far greater damages value rests in the
    bonus entitlement, not in the notice period. He also submits that he has
    incurred additional costs from Equitable Lifes attempt to raise new arguments
    in the guise of seeking clarification of the courts judgment. He seeks
    $20,000 for the appeal, and a further $5,000 relating to the new arguments
    raised by Equitable Life at this stage.

[8]

We agree with Mr. Dawe. He is entitled to costs in
    the amount of $25,000, inclusive of taxes and disbursements.

S.E. Pepall J.A.

Gary Trotter J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Derakhshan v. Narula, 2019 ONCA
    742

DATE: 20190923

DOCKET: C65731

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Farhad
    Derakhshan

(Applicant) Appellant

and

Seema Narula

(Respondent) Respondent

Farhad Derakhshan, acting in person

Ian C. Vallance, for the respondent

Heard: September 16, 2019

On
    appeal from the judgment of Justice Elizabeth C. Sheard of the Superior Court
    of Justice, dated January 24, 2018.

REASONS FOR DECISION

OVERVIEW

[1]

The application judge dismissed the
    appellant, Mr. Derakhshans application for retroactive spousal support, unjust
    enrichment and consequent constructive trust in twelve properties, a
    declaration that there was a joint family venture in the accumulated value of
    the properties, and an order for the return of his shares in Turtle Island
    Staffing, an Indigenous staffing company.

[2]

On this appeal, Mr. Derakhshan claims the application
    judge made palpable and overriding errors of mixed fact and law. He seeks an
    order to set aside the decision and have the case reheard by a new judge. He
    also claims the application judges reasons were inappropriately copied from
    the written submissions of the respondent
.

ANALYSIS AND
    CONCLUSION

Spousal relationship

[3]

Section 29 of the
Family Law Act
, R.S.O.
    1990, c. F.3 defines a spouse as a married couple or two persons who are not
    married to each other and have cohabited continuously for a period of not less
    than three years, or have a relationship of some permanence, if they are the
    parents of a child.

[4]

Mr. Derakhshan and Ms. Narula met in 2006. There
    was clear evidence of a romantic relationship at some point and the parties
    lived together from the summer of 2011 to September 2012.

[5]

The application judge noted however, that Ms. Narula
    and Mr. Derakhshan had no children together, were never married and referred to
    themselves as single on their tax returns. Moreover, they largely kept
    separate bank accounts and Mr. Derakhshan used many different addresses on his
    drivers licence, car insurance, passport, and income tax returns. They
    maintained separate residences for all but one year.

[6]

Thus, while she accepted that Mr. Derakhshan and
    Ms. Narula were in a romantic relationship at some stage and lived together for
    approximately one year, the application judge found that Mr. Derakhshan failed
    to prove that he and Ms. Narula were in a spousal or common-law relationship for
    three years as required by the provisions in the
Family Law Act
, as I
    cannot conclude that they cohabited for a continuous period of not less than
    three years.

[7]

There was ample evidence to support this
    conclusion.

Unjust enrichment

[8]

In order to prove a claim in unjust enrichment, Mr.
    Derakhshan must prove that Ms. Narula has been enriched, Mr. Derakhshan
    suffered a corresponding loss, and there is no juristic reason for the
    enrichment:
Pettkus v. Becker
, [1980] 2 S.C.R. 834.

[9]

Mr. Derakhshans unjust enrichment claim relates
    to 12 properties in Ottawa. From 2006 to 2012, Ms. Narula bought, renovated,
    and either rented or sold the properties. Mr. Derakhshan, or his companies, did
    much of the renovation work. When they first met, Ms. Narula was a successful
    businesswoman. Mr. Derakhshan admitted at trial that he was poor when he met Ms.
    Narula.

[10]

Ms. Narula testified that she paid Mr. Derakhshan
    $2,192,598.78 between 2006 and 2012. Mr. Derakhshan admitted to receiving
    $1,625,063.35 over the six-year period but claims he was entitled to more.

[11]

Mr. Derakhshan
conceded
    that his records were lacking but called no expert evidence to support the
    value of the work done or his alleged investment of monies into the properties.
    His only proof was before and after photos, evidence of some of his own
    workers, his own spreadsheets, and supplier invoices. It was impossible to
    correlate the invoices with the monies paid to him. Moreover, his claimed
    increase in value of the properties was based on his own assessment.

[12]

By contrast, Ms. Narula signed all the
    agreements of purchase and sale, paid the down payment, and arranged mortgage
    financing in her name alone. Ms. Narula agreed that Mr. Derakhshan had done
    work but asserted that Mr. Derakhshan had been paid for the work he did. She
    backed up her assertion by producing copies of cancelled cheques and T4s
    together with spreadsheets summarizing that documentary evidence. There was no
    evidence that at any time prior to their break up, Mr. Derakhshan asserted any
    claim to be paid for work done either by virtue of a joint venture, unjust
    enrichment, or otherwise.

[13]

The application judge found that Mr. Derakhshan therefore
    failed to prove his claim for unjust enrichment as he was unable to adduce
    evidence to satisfy the court that he was not paid for work that he did or that
    Ms. Narula was unjustly enriched at his expense. There was ample evidence to
    support her findings. At the oral hearing before this court, the appellant
    submitted that the respondent had given false evidence at trial. There is no
    basis for this court to interfere with the application judges findings.

Joint Family Venture

[14]

The question of whether there is a joint family
    venture is a question of fact and must be assessed by having regard to the
    relevant circumstances including:

a.

mutual efforts;

b.

economic integration;

c.

intention of the parties;

d.

priority of the family; and

e.

length of the relationship.

[15]

The use of funds for family purposes or situations
    where one spouse takes all may also indicate a pooling of resources. The more
    extensive the integration, the more likely it is that they have engaged in a
    joint family venture:
Kerr v. Baranow
, 2011 SCC 10, [2011] 1 S.C.R.
    269, at paras. 84-98.

[16]

While a joint family venture claim logically
    becomes stronger when the relationship begins to resemble that of spouses, a
    spousal relationship is not required for there to be a joint family venture. A
    spousal requirement is inconsistent with the doctrine of unjust enrichment
    which developed in response to inequitable outcomes resulting from strict
    definitions of spouses and narrow views of domestic arrangements:
Pettkus
.

[17]

While the application judge held in her reasons
    that, [t]o establish that he and Ms. Narula were engaged in a joint family
    venture he would have had to show that they were in a spousal relationship. He
    did not, this must be read in the context of the two preceding paragraphs
    which provide that:

[
86
] There was no evidence
    or suggestion that Derakhshan was providing services other than services
    directly related to the Properties. The facts in this case are different from
    those in other joint family venture cases, as noted above. With respect to
    the Properties, there was no pooling of funds, no common purse, no financial
    intertwining, and no amassing of a common pool of savings. All of the funds
    came from or through Narula, who took all the financial risk and absorbed any
    losses. Apart from a small ($300.00) joint account opened by Narula in
    India, which she and Derakhshan could access while travelling in India, Narula and
    Derakhshan kept their finances separate.

[
87
] While there may have
    been some financial overlap, not uncommon between couples in a relationship,
    the evidence fell short of showing an economic integration between Derakhshan and
    Narula, a key indication of a joint family venture.

[18]

While a spousal relationship is not a legal
    prerequisite to finding a joint family venture, there was ample evidence to
    justify the application judges conclusion that there was no joint family
    venture in these circumstances.

[19]

There was no evidence that Mr. Derakhshan was
    providing services other than services directly related to the properties. There
    was no pooling of funds or economic integration. At most, there was some
    financial overlap but no economic integration of the sort that indicates a
    joint family venture. For these reasons, we find that the application judges
    reasons provide ample basis to conclude that there was no joint family venture.

Transfer of shares in Turtle Island

[20]

In 2008, Ms. Narula and a third party, Dumont,
    created a business together called Turtle Island Staffing. Ms. Narula used one
    of Mr. Derakhshans inactive numbered corporations, 2093030 Ontario Inc., for
    the company. Dumont held 51% of the shares, Mr. Derakhshan held 49% through his
    company, and Ms. Narula held no shares. Ms. Narula testified that this was done
    because the majority shareholder had to be of Indigenous heritage in order to
    submit tenders for government work.

[21]

The application judge accepted Ms. Narulas
    evidence that it was always their intention that Mr. Derakhshan would transfer
    his shares to Ms. Narula and he eventually did. Ms. Narulas evidence on this
    point was corroborated by the company accountant, Mr. Siddiqi, who was called
    by Mr. Derakhshan.

[22]

In 2011, Mr. Derakhshans shares were
    transferred to Ms. Narula for $1.00. While Mr. Derakhshan claimed that his
    signature was forged, he produced no expert evidence of forgery and the
    accountant testified that Mr. Derakhshan told him he willingly transferred the
    shares.

[23]

The application judge therefore rejected Mr. Derakhshans
    claims that his shares in Turtle Island Staffing were fraudulently transferred
    to Ms. Narula. For reasons more fully explained by the application judge, there
    was evidence upon which the application judge could reasonably conclude the
    shares were not fraudulently transferred.

Were the application judges reasons
    inappropriately copied from the written submissions of the respondent?

[24]

Mr. Derakhshan claims that because the decision
    was rendered more than six months after the hearing, there is reason to suggest
    the application judge relied unduly on the respondents written submissions.

[25]

We do not agree.

[26]

Mr. Derakhshan bears the onus to show that a
    reasonable person, apprised of the relevant facts, would conclude that the
    application judge failed to come to grips with the issues and deal with them
    independently and impartially. He has not done so. The trial was heard over 21
    court days with 24 witnesses being called and 142 documents entered as
    exhibits. Both parties were invited to provide written submissions and did so.
    The reasons for decision is a new document that does not copy Ms. Narulas
    written submissions.

[27]

The application judge carefully reviewed the evidence
    and the law on the issues before her. We find there is no merit to this
    submission.

Conclusion

[28]

There is no palpable and overriding error in the
    application judges findings or in her conclusion dismissing the appellant, Mr.
    Derakhshans claims. On the contrary, her reasons were measured and
    comprehensive.

[29]

For these reasons, the appeal is dismissed.
    Costs to the respondent in the amount of $20,000.

Doherty J.A

Harvison Young J.A.

Thorburn J.A.