COURT OF APPEAL FOR ONTARIO

CITATION:
Aircell
    Communications Inc. v. Bell Mobility Cellular Inc.,  2013 ONCA
    95

DATE: 20130214

DOCKET: C54587

Armstrong, LaForme and Hoy JJ.A.

BETWEEN

Scott & Pichelli Limited, Trustee in
    Bankruptcy for the Estate of Aircell Communications Inc.

Plaintiff (Respondent)

and

Bell Mobility Cellular Inc. and Bell Distribution
    Inc.

Defendants (Appellants)

Brent Arnold, for the appellants

David J. Jackson, for the respondent

Heard: February 8, 2013

On appeal from the judgment of Justice David S. Crane of
    the Superior Court of Justice, dated October 14, 2011.

ENDORSEMENT

[1]

This appeal considers whether a clause in an Independent Dealer
    Agreement between the appellant, Bell Distribution Inc., and Aircell
    Communications Inc. relieving Bell of its obligation to pay unpaid commissions
    to Aircell on termination of the Agreement is void as against Aircells trustee
    in bankruptcy.

[2]

For the reasons below, we agree with the trial judge that the clause is
    not enforceable as against the trustee, and accordingly dismiss this appeal.

[3]

Briefly, the relevant facts are as follows.

[4]

Bell appointed Aircell as an independent dealer of Bells
    telecommunications products and services.  As such, Aircell purchased inventory
    from Bell and was entitled to commissions in relation to services Aircell sold.

[5]

Aircell experienced financial difficulty; it owed Bell $64,000 for
    inventory.

[6]

The Agreement contained a provision entitling Bell to terminate it on
    notice to Aircell if Aircell commenced any proceedings related to Aircell under
    the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3 (the Act).

[7]

In a meeting at which a representative of Bell was present, Aircell
    explored restructuring options. Unbeknownst to Bell, at the time of the
    meeting, Aircell had filed a Notice of Intention to make a proposal under the
    Act. After the meeting, Bell gave notice to Aircell that it would terminate the
    Agreement if Aircell did not pay the outstanding amount within 30 days.

[8]

Aircell was deemed a bankrupt before the expiry of the 30-day notice period,
    and therefore before the effective date of termination of the Agreement.  At
    the time, Bell owed Aircell $188,981 for commissions.  The Agreement provides
    that upon its expiry, or if Bell terminates the Agreement as a result of
    Aircells failure to remedy a default in payment within 30 days after notice of
    default, or otherwise in accordance with the Agreement, all of  Bells
    obligations to pay commissions shall cease immediately.  Bell relied on this
    clause to withhold payment of commissions to Aircells trustee in bankruptcy.
    The trustee brought an action to recover the amount by which the commissions
    owing by Bell exceeded the amounts owing to Bell in respect of inventory.

[9]

The trial judge found that Aircells failure to pay Bell was due to its
    insolvency and that, as against the claim of Aircells trustee in bankruptcy,
    the clause at issue is void both pursuant to
CIBC v. Bramalea Inc.,
1995 CanLII 7420 (ON SC), and under ss. 65.1 and s. 95 of the Act.  He ordered
    Bell to pay the trustee the amount by which the unpaid commissions exceeded the
    amounts owing by Aircell.

[10]

In
CIBC v. Bramalea
, Blair J. considered a clause that permitted a
    non-insolvent partner to purchase an insolvent partners interest at a price
    less than fair market value.  He concluded that a contractual provision
    triggered only in the event of insolvency or bankruptcy which would deprive
    creditors of value otherwise available to them, and effectively divert the
    value to an unsecured creditor, is void.  This principle  sometimes referred
    to as fraud upon the bankruptcy law  violates the public policy of equitable
    and fair distribution among unsecured creditors in an insolvency.  Justice
    Blair determined that the clause at issue was void.

[11]

We
    see no basis for interfering with the trial judges finding of fact that
    Aircells failure to pay Bell was due to Aircells insolvency.

[12]

While
    the clause at issue in this case is triggered upon termination of the agreement
    for any number of reasons, and not only upon insolvency or bankruptcy, it was
    in fact triggered as a consequence of Aircells insolvency.  The clause
    provides a windfall to one of Aircells creditors:  Bell.  In the context of an
    insolvency, the clause is in
equitable.  We agree with the
    trial judge that the principle in
CIBC v. Bramalea
should be extended
    to declare the clause unenforceable as against Aircells trustee in bankruptcy
    as contrary to the overriding public policy that requires equitable and fair
    distribution among a bankrupts creditors.

[13]

Having
    determined that the trial judge did not err in declaring the clause
    unenforceable as against the trustee on the foregoing basis, it is unnecessary
    for us to address the trial judges alternative conclusion that the clause is
    void pursuant to ss. 65.1 and 95(1) of the Act. We note, however, that the
    trustee concedes that these provisions do not apply in the circumstances.

[14]

The
    appeal is accordingly dismissed. The trustee shall be entitled to costs,
    inclusive of disbursements and HST, in the amount of $15,000.

Robert P. Armstrong J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Blue
    Mountain Resorts Limited v. Ontario (Labour) , 2013 ONCA 75

DATE: 20130207

DOCKET: C54427

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Blue Mountain Resorts Limited

Applicant (Appellant)

and

Richard Den Bok, The Ministry of Labour and The
    Ontario Labour Relations Board

Respondents (Respondents)

John Olah, for the appellant

David McCaskill and Kikee Malik, for the respondents
    Richard Den Bok and The Ministry of Labour

Leonard Marvy, for the respondent Ontario Labour
    Relations Board

John Terry and Sarah Whitmore, for the intervenor
    Conservation Ontario

Peter Pliszka, Rosalind Cooper and Andrew Baerg, for the
    intervenor Tourism Industry Association of Ontario

Heard: September 27, 2012

On appeal from the judgment of The Divisional Court (Justices
    Janet Wilson, Katherine E. Swinton, and Wailan Low), dated May 18, 2011, with
    reasons reported at 2011 ONSC 3057, affirming a decision of the Ontario Labour
    Relations  Board, dated March 23, 2009.

R.A. Blair J.A.:

Overview

[1]

On December 24, 2007, a guest at Blue Mountain Resorts died while
    swimming in an unattended indoor pool at the resort.  The issue on this appeal
    is whether Blue Mountain was required to report this guest injury to the
    Ministry of Labour on the basis that it was a death or critical injury incurred
    by a person at a workplace as contemplated by subsection 51(1) of the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1.

[2]

Blue Mountain takes the position that it is not required to report deaths
    or critical injuries to guests at its recreational facility because the
    facility is not predominantly a workplace and a worker was not present at the
    site when the injury incurred.  However, the respondent, Mr. Den Bok  an
    inspector under the Act  took the view that reporting was required, and issued
    an order to that effect, along with other related orders.  The Ontario Labour
    Relations Board upheld the order.

[3]

An application for judicial review from that order was dismissed by the
    Divisional Court.  It found the Boards determination that the swimming pool
    was a workplace to be reasonable.  The Board inferred that employees of Blue
    Mountain must have been present at other times in the pool area in order to
    check and maintain it. Similarly, the Divisional Court accepted that it is
    common ground that the swimming pool is a place where one or more workers work.

[4]

For the reasons that follow, I would set aside the decisions of the
    Divisional Court and the Board.  The interpretations they gave to s. 51(1) of
    the Act would make virtually
every place
in the province of Ontario
    (commercial, industrial, private or domestic) a workplace because a worker
    may, at some time, be at that place.  This leads to the absurd conclusion that every
    death or critical injury to anyone, anywhere,
whatever the cause
, must
    be reported.  Such an interpretation goes well beyond the proper reach of the
    Act and the reviewing role of the Ministry reasonably necessary to advance the admittedly
    important objective of protecting the health and safety of workers in the
    workplace.  It is therefore unreasonable and cannot stand.

[5]

In my view, a proper interpretation of the Act requires that there be some
    reasonable nexus between the hazard giving rise to the death or critical injury
    and a realistic risk to worker safety at that site.  There is no such nexus
    here.

[6]

Sometimes a swimming pool is just a swimming pool.

The Legislative Framework

[7]

The relevant provisions of the Act are the following:

Definitions

(1)  In this Act,

employer means a person who employs one or
    more workers or contracts for the services of one or more workers and includes
    a contractor or subcontractor who performs work or supplies services and a
    contractor or subcontractor who undertakes with an owner, constructor,
    contractor or subcontractor to perform work or supply services; (employeur)

worker means a person who performs work or
    supplies services for monetary compensation but does not include an inmate of a
    correctional institution or like institution or facility who participates
    inside the institution or facility in a work project or rehabilitation program;
    (travailleur)

workplace means any land, premises, location
    or thing at, upon, in or near which a worker works; (lieu de travail)

Notice
    of death or injury

51(1) Where a person is killed or critically
    injured from any cause at a workplace, the constructor, if any, and the
    employer shall notify an inspector, and the committee, health and safety
    representative and trade union, if any, immediately of the occurrence by
    telephone or other direct means and the employer shall, within forty-eight hours
    after the occurrence, send to a Director a written report of the circumstances
    of the occurrence containing such information and particulars as the
    regulations prescribe.

Preservation
    of wreckage

(2) Where a person is killed or is critically
    injured at a workplace, no person shall, except for the purpose of,

(a) saving life or relieving human suffering;

(b) maintaining an essential public utility
    service or a public transportation system; or

(c) preventing unnecessary damage to equipment
    or other property,

interfere with, disturb, destroy, alter or
    carry away any wreckage, article or thing at the scene of or connected with the
    occurrence until permission so to do has been given by an inspector.

Powers
    of inspector

54(1)  An inspector may, for the
    purposes of carrying out his or her duties and powers under this Act and the
    regulations,

(a) subject to subsection (2), enter in or
    upon any workplace at any time without warrant or notice;

(b) take up or use any machine, device,
    article, thing, material or biological, chemical or physical agent or part
    thereof;

(c) require the production of any drawings,
    specifications, licence, document, record or report, and inspect, examine and
    copy the same;

(i) require that a workplace or part thereof
    not be disturbed for a reasonable period of time for the purposes of carrying
    out an examination, investigation or test;

[8]

The word person is not defined in the Act.

Facts

[9]

Blue Mountain Resort Limited owns and operates an all-season resort and
    recreational facility, located on a 750-acre property near Collingwood, Ontario.
    The resort offers 36 downhill ski runs and other recreational facilities
    including mountain biking trails, a golf course, and an indoor swimming pool.

[10]

When
    the deceased guest was first found, a defibrillator was used in an attempt to
    revive him; it showed no electrical signal and Blue Mountain therefore assumed the
    guest had suffered a heart attack.  As it turned out, he had simply drowned
    while swimming in the pool.

[11]

The
    pool was unsupervised and intended for use by resort guests for recreational
    purposes.  No Blue Mountain employees were working there at the time the
    drowning occurred.

[12]

In
    her reasons, the Board member acknowledged that she had heard no evidence as
    to the work done by the employees of Blue Mountain within the enclosed area of
    the indoor swimming pool where the guest drowned  [and no evidence]  as to
    how regularly employees go into this area  or how many employees enter this
    area.  Based on general and common knowledge, however, she inferred that at
    least one and perhaps more Blue Mountain employees must enter the enclosed area
    of the indoor swimming pool in order to clean the pool and check the water at
    least once, and likely more times, each day.  She therefore concluded that
    [t]he swimming pool thus comprises a part of at least one Blue Mountain
    employees workplace, and that [i]t does not cease to be a workplace
    because the employee in question moves from that area of his or her workplace
    to another area of the same workplace.

[13]

Much
    evidence before the Board  and much argument here and below  were dedicated
    to the broader implications of Mr. Den Boks reporting order for Blue
    Mountains ski operations and for recreational facilities in general in the
    province of Ontario.  Conservation Ontario was granted leave to intervene below
    and Tourism Industry Association of Ontario was subsequently granted leave to
    intervene in this Court because of the perspectives they bring to those broader
    concerns.

[14]

Those
    broader implications and concerns are instructive for the interpretation to be
    given to the language used in s. 51(1) because they provide insight into the
    concerns arising from the Ministrys interpretation of the section.  I will
    outline them briefly.

[15]

In
    peak season, Blue Mountain employs 1,750 staff.  In February, it may have as
    many as 16,000 visitors on a Saturday and another 10,000 on a Sunday.  The
    evidence was that there are approximately 1.5 skiing related incidents for
    every 1,000 visitors at Blue Mountain (the industry average is 2 incidents per
    1,000 visitors).  It follows that there could be as many as 39 occasions on a February
    weekend where  if inspector Den Boks approach is to be adopted  Blue
    Mountain could be required to report to the Ministry.  As the appellant and the
    intervenors point out, s. 51(2) of the Act prohibits the employer from
    disturbing or altering the scene of the occurrence until permission is given by
    an inspector.  Therefore, many ski slopes may have to be closed entirely or in
    part until released by a Ministry inspector.

[16]

Mr.
    Den Boks evidence was that in most cases, such a release will be provided by
    telephone but, if not, within a couple of hours if an inspector had to attend
    the site.  However, the evidence was that such closures would create potential
    hazards for skiers and snow boarders using the runs in winter and for mountain
    bikers in the summer, as well as disruptions to Blue Mountains operations
    generally.

[17]

A
    representative of the Ontario Snow Resorts Association testified before the
    Board.  His evidence was that there were approximately 7,000 accidents at ski
    resorts across Ontario during the 2007-2008 ski season.  His concern was that
    ski patrollers do not have the training to diagnose whether an injury is
    critical or not and that, in many cases, there is no way of making that
    determination at the time of the incident.  Failure to report, however, could
    lead to prosecution under the Act.  He repeated the concern that the
    requirement to preserve the accident scene under s. 51(2) would make ski hills
    very dangerous and difficult for resorts to operate.

[18]

The
    Ministrys requirement that resorts report guest injuries is apparently new.
    Blue Mountain has been subject to the Ministrys review for 27 years, but has
    never before been required to report such injuries.  The same is true for other
    resorts.  The Ministry explained its shift in policy by saying it was due to a
    number of resorts appearing in its high risk category.

[19]

Here,
    the guest injury occurred in a swimming pool, not on the slopes.  However, the
    foregoing factors ground the concerns of the tourism and recreation industries
    in Ontario with the potential expansion of the Ministrys role in the
    regulation of their affairs.

Analysis

[20]

The
    Ontario Labour Relations Board is an expert tribunal that was interpreting a
    statute within its mandate and engaging its specialized expertise.  The
    Divisional Court was therefore correct in holding that the standard of review
    of the Boards decisions is reasonableness:
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190; and
Lennox Drum Ltd. v. Ah-Hone et al.
,
    2010 ONSC 4424, 266 O.A.C. 396 (Div. Ct.), at para. 4.

[21]

The
    concept of reasonableness, for administrative law purposes, was described by
    the Supreme Court of Canada in
Dunsmuir
as a deferential standard.
    Reasonableness is concerned mostly with the existence of justification,
    transparency, and intelligibility within the decision-making process.  While tribunals
    have a margin of appreciation within the range of rational outcomes, a
    reasonable decision is also one that falls within a range of possible,
acceptable
    outcomes which are defensible
in respect of the facts and law (emphasis
    added):
Dunsmuir
, at para. 47.

[22]

The
    appellant and the intervenors argue that the Board and the Divisional Court erred
    in conducting an analysis that focused only on end risks without considering
    whether there was, in the circumstances, any reasonable connection between what
    actually happened and a risk to worker safety at the site.  Counsel submits
    this open-ended approach leads to absurd results, rendering the interpretation
    unreasonable.  I agree.

The
    Boards Interpretation is Unreasonable

[23]

The
    language where a person is  critically injured from any cause at a workplace
    in s. 51(1) of the Act is undoubtedly intended to capture a wide range of
    injury-related occurrences affecting the safety and wellbeing of workers.  As
    the Board member correctly observed, the Act is a remedial public welfare
    statute intended to guarantee a minimum level of protection for the health and
    safety of workers.

[24]

Public
    welfare legislation is often drafted in very broad, general terms, precisely
    because it is remedial and designed to promote public safety and to prevent
    harm in a wide variety of circumstances.  For that reason, such legislation is
    to be interpreted liberally in a manner that will give effect to its broad
    purpose and objective:
R. v. Timminco Ltd.
(2001), 54 O.R. (3d) 21
    (C.A.), at para. 22.

[25]

In
Ontario (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d)
    37 (C.A.), at para. 16, Sharpe J.A. reinforced that notion:

The
OHSA
is a remedial public welfare statute intended
    to guarantee a minimum level of protection for the health and safety of
    workers.  When interpreting legislation of this kind, it is important to bear
    in mind certain guiding principles.  Protective legislation designed to promote
    public health and safety is to be generously interpreted in a manner that is in
    keeping with the purpose and objectives of the legislative scheme.  Narrow or
    technical interpretations that would interfere with or frustrate the attainment
    of the legislatures public welfare objectives are to be avoided.

[26]

This
    generous approach to the interpretation of public welfare statutes does not
    call for a limitless interpretation of their provisions, however.

[27]

One
    of the problems with what is otherwise an understandable approach to the interpretation
    of public welfare legislation is that broad language, taken at face value, can
    sometimes lead to the adoption of overly broad definitions.  This can extend the
    reach of the legislation far beyond what was intended by the legislature and afford
    the regulating ministry a greatly expanded mandate far beyond what is needed to
    give effect to the purposes of the legislation.

[28]

Such
    is the case, in my view, with the interpretation given by the Board and the
    Divisional Court to the language of s. 51(1) in this case.

[29]

In
    these circumstances, the principle of statutory interpretation affirming that
    broad language may be given a restrictive interpretation in order to avoid
    absurdity may come into play:
Ontario v. Canadian Pacific Ltd.
, [1995]
    2 S.C.R. 1031, at pp. 1081-82; and
Boma Manufacturing Ltd. v. Canadian
    Imperial Bank of Commerce
, [1996] 3 S.C.R. 727, at para. 109,
per
Iacobucci J.

[30]

The
    central thrust of the Boards reasoning is found at paras. 61 and 75 of its
    reasons:

[T]he purpose of the Act is to provide
    protection to workers  where workers are vulnerable to the same hazards
    and risks as non-workers who attend at a workplace, it is not an absurd result
    for an employer to be required to report when a non-worker suffers a critical
    injury at a workplace.  If the goal is to enhance worker safety by
    alerting the Ministry to hazards in the workplace that could affect workers, a
    provision that requires the reporting of critical injuries suffered by
    non-workers in places where workers work, regardless of whether a worker was
    present at the time and place of the critical injury, is not absurd.

Blue Mountain is a fixed workplace.
    There is a fixed location to which employees regularly report.  The area
    of the resort where the Blue Mountain employees perform their work functions is
    a workplace  The fact that an employee is not physically present within a
    section of that workplace does not mean that that particular section is not
    part of the workplace during the period when no employees are present.

[31]

There
    are some attractive aspects to this reasoning, to be sure.  I do not quarrel
    with the proposition that workers may be subject to the same hazards and risks
    of death or critical injury as non-workers. When this is the case, an employer
    may be required to report when a non-worker dies or suffers a critical injury
    at a workplace in order to give effect to the purpose of the Act.  The
    Divisional Courts comment in this regard is particularly instructive:

Workers and guests are vulnerable to the same hazards.  The
    purposes and intents of the legislation would be undermined
if a physical
    hazard with the potential to harm workers

and non-workers

alike
was not subject to reporting and oversight. [Emphasis added.]

[32]

I
    do not disagree with that observation.  It is anchored in
a hazard or risk
    that has the potential to harm workers.
However, the conclusions of the
    Board and the Divisional Court are founded on an analysis that has no such
    anchor.  It simply assumes that because an accident has occurred at a place
    where a worker may be at some point in time, the accident becomes a workplace
    accident.  This is apparent from the following statement in the reasons of the
    Divisional Court:

The obligation created by s. 51(1) upon employers to report
    when a person is killed or critically injured
is driven by result rather
    than by causation
.  Hence on a plain reading of the subsection, any event
    resulting in death or critical injury,
even if occurring in circumstances
    having no potential nexus with worker safety
, is reportable so long as they
    occur in a workplace. [Emphasis added.]

[33]

Respectfully,
    I do not agree with that conclusion.  The potential results are too far
    reaching.  Indeed, the Divisional Court recognized, at the close of the
    foregoing passage, that the subsection as interpreted by the Board has a
    potential to reach beyond the ambit of the purposes of the statute.  The
    interpretation is unreasonable for that very reason, in my view.

[34]

Why
    do I say that?

[35]

The
    Boards conclusion  found by the Divisional Court to be reasonable  is
    founded on what is, in effect, an entirely location-based analysis.  It would
    trigger s. 51(1) whenever a non-worker dies or is critically injured at or near
    a place where a worker is working, has passed through, or may at some other time
    work, regardless of the cause of the incident.  The ramifications of this
    interpretation go far beyond what the legislature could have intended and
    beyond what is reasonably necessary to give effect to the purpose and objective
    of the Act or the mandate of the Ministry.  Therefore, while at one level the
    decision may exhibit some degree of justification, transparency and
    intelligibility, as the Divisional Court concluded, it fails to meet the test
    of [falling] within
a range of possible, acceptable outcomes which are
    defensible
in respect of the facts and law (emphasis added):
Dunsmuir
at para. 47.

[36]

Section
    51(1) must be read in light of the subsection that follows it. Both the Board
    and the Divisional Court erred, in my opinion, in declining to consider the
    provisions of s. 51(2) in the interpretation context. They appear to have done
    so because no one alleged that Blue Mountain had failed to comply with that
    provision. However, interpreting the two provisions together is instructive in
    showing how an overly broad interpretation of the reporting obligation in s.
    51(1) can lead to consequences beyond the purposes of the Act.

[37]

Section
    51(2) requires that an injury site be preserved  shut down, in effect  until
    released by a Ministry inspector.  There is evidence to suggest that closures
    to recreational sites such as ski and bike-riding slopes may create hazards to
    other skiers, bikers, and workers alike. The significantly intrusive effect of
    s. 51(2), combined with an overly broad interpretation of the notification and
    reporting requirements of s. 51(1), has the potential to give quite expanded
    powers to the Ministry and its inspectors.

[38]

A
    consideration of some possible outcomes will bear this out.  As the Supreme
    Court of Canada confirmed in
Canadian Pacific Ltd.
, at pp. 1044-45, the
    consideration of hypotheticals is useful when interpreting the meaning of
    legislation.

[39]

Counsel
    for the Ministry conceded before the Board that on the Ministrys
    interpretation of the reporting section he could not think of any location in
    the province of Ontario, except perhaps an abandoned woodlot, that would not be
    classified as a workplace.  In this Court, counsel and his client could not
    think of any examples.  That is not a defensible outcome.

[40]

Consider
    the following, as well.

[41]

Mr.
    Den Bok acknowledged that if there were a critical injury to a hockey player or
    a spectator during a Toronto Maple Leaf hockey game at the Air Canada Centre,
    it would have to be reported to the Ministry.  If the injury occurred on the
    ice, the hockey game would have to be shut down  televised or not  until the
    premises were released by a Ministry inspector.  He took the same position with
    respect to a wide variety of other circumstances.  For instance, he took the
    view that reporting to the Ministry would be mandatory in the case of customer
    injuries at a Canadian Tire Store or other retail outlet; in the case of
    injuries sustained by the public on highways patrolled by police (because the
    police or other workers may arrive after the accident, or may have passed by on
    a prior occasion); and in the case of worshippers who may suffer a heart attack
    or other critical injury at a religious institution (whether the services would
    have to be halted pending Ministry release of the place of worship, was left
    unsaid).

[42]

One
    can envision endless examples that would be caught by the Boards interpretation,
    all without any causal relationship with a workplace safety issue.  Would
    parents have to report to the Ministry if their child were injured at home
    because they had hired a nanny?  Does a roller coaster become a workplace
    when a guest is injured while riding on it?  Because hotel employees enter
    guest rooms, does a hotel room become a workplace when a guest dies of a
    heart attack or a drug overdose, or is murdered?

[43]

As
    noted above, where there are competing plausible constructions, a statute
    should be interpreted in a way that avoids absurd results:
Rizzo &
    Rizzo Shoes Ltd
., [1998] 1 S.C.R. 27, at para. 27;
Boma Manufacturing
,
    at para.109; and
Canadian Pacific
, at pp. 1081-82.  In
Rizzo
,
    at para. 27, Iacobucci J. states that [i]t is a well established principle of
    statutory interpretation that the legislature does not intend to produce absurd
    results.

[44]

The
    consequences or results of the Divisional Courts and the Boards decision are
    incompatible with the objects of the Act and the enforcement provisions of s.
    51(1), in my opinion.  Their interpretation extends the scope of the Act and
    has the potential to give the Ministry and its inspectors significantly
    intrusive powers far beyond what is reasonably required to accomplish its
    purpose of preserving and promoting worker safety in the workplace. The
    interpretation is therefore unreasonable.

The
    Proper Interpretation of s. 51(1)

[45]

That
    being the case, it falls to this Court to determine the proper interpretation
    of s. 51(1).  In doing so, we must have regard to the words of that provision
    in their grammatical and ordinary sense and in their context, read harmoniously
    with the scheme of the statute as a whole, the purpose of the statute, and the
    intention of the legislature:
Rizzo
at para. 21;
R. v. Gladue
,
    [1999] 1 S.C.R. 688 at para. 25; and
Bell ExpressVu Limited Partnership v.
    Rex
, [2002] 2 S.C.R. 559 at para. 26.

[46]

As
    I noted earlier in these reasons, the provisions of the Act are to be
    interpreted generously, but a generous approach to the interpretation of public
    welfare statutes does not justify a limitless interpretation of their
    provisions.

[47]

With
    that in mind, I would not interpret the language of s. 51(1) of the Act in a
    way that would give it the almost limitless scope flowing from the
    interpretation adopted by the Board and the Divisional Court.  Nor would I give
    it either the narrow interpretation favoured by the appellant, which would
    limit the application of the notice and reporting requirements only to
    situations where a worker is actually present at the scene of the occurrence,
    or the interpretation that a non-worker can never be a person within the
    meaning of s. 51(1).

[48]

Textually
    speaking, taking the language of s. 51(1) of the Act at face value, the guest
    who died in the swimming pool might be seen as someone who died in a
    workplace.  Blue Mountain has approximately 1,750 employees working at its 750-acre
    complex, and some of them may be in the pool area at some time during the day
    to perform maintenance services.  The language of s. 51(1), read only in its
    grammatical and ordinary sense, is very broad.

[49]

Contextually
    and purposively speaking, however, s. 51(1) is not engaged unless there is some
    reasonable nexus between the hazard giving rise to the injury and a realistic
    risk to worker safety issue at the pool or the resort.

[50]

This
    restricted interpretation is consistent with the oft-cited observation of Lord
    Wensleydale in
Grey v. Pearson
(1857), 29 L.T.O.S. 67, at p. 71
    (H.L.):

In construing wills, and indeed statutes, and all written
    instruments, the grammatical and ordinary sense of the words is to be adhered
    to, unless that would lead to some absurdity or some repugnance or
    inconsistency with the rest of the instrument, in which case the grammatical
    and ordinary sense of the words may be modified, so as to avoid that absurdity or
    inconsistency,
but no further
. [Emphasis added.]

[51]

It
    is also consistent with the principle that broad language in a statute may be
    given a somewhat restricted interpretation where necessary in order to avoid
    absurdity and to give the words their appropriate meaning, having regard to
    their context, the purpose of the Act, and the intention of the legislature.  To
    quote Gonthier J. in
Canadian Pacific Ltd.
, at p. 1082:

One method of avoiding absurdity is through the strict
    interpretation of general words
Driedger on the Construction of Statutes
(3rd ed. 1994) states the relationship between the absurdity principle and
    strict interpretation as follows, at p. 94: Absurdity is often relied on to
    justify giving a restricted application to a provision.

[52]

It
    is within this framework, then, that the words person, from any cause and
    workplace in s. 51(1) must be examined.  In their submissions, the parties
    and intervenors focused on the meaning of the words person and workplace.
    Certainly the contours of these words, particularly workplace, need to be
    drawn.  It seems to me, however, that the potentially all-embracing expression
    from any cause is the core phrase calling for a restrictive interpretation in
    order to give the language of s. 51(1) its proper meaning.

[53]

I
    agree with the Board and the Divisional Court that the word person in s. 51(1)
    is not synonymous with worker.  Had the legislature intended that to be the
    case it would simply have used worker instead of person.  I think it is
    clear that the legislature intended the reporting requirement to extend beyond
    injuries to workers themselves and to encompass  as the Divisional Court
    observed in the passage cited above  physical hazards with the potential to
    harm workers and non-workers alike.  That is consistent with the purposes and
    objectives of the Act.

[54]

But
    it does not follow that any death or critical injury involving any person at a
    place frequented, or sometimes frequented, by workers is caught by s. 51(1).
    To give the words killed or critically injured
from any cause
 such
    an expansive interpretation may well lead to absurd results, as we have seen.
    That is why a reportable occurrence requires that there be some reasonable
    nexus between the hazard giving rise to the death or critical injury and a
    realistic risk to worker safety at the site of the incident.

[55]

This
    somewhat limiting interpretation of the words from any cause is key to the
    interpretation of s. 51(1).  It is broad enough to capture worker safety
    related incidents and to give effect to the purpose of the Act.  Yet it is not
    so broad as to lead to absurd consequences or to engage the intrusion of the
    state where that intrusion is unnecessary to achieve that purpose.  It grounds
    the limiting interpretation of s. 51(1) in cause rather than location.

[56]

That
    said, the death or critical injury with the required nexus to worker safety
    must still occur at a location the Act describes as a workplace.  Once the
    words from any cause have been given their proper meaning, however, the
    meaning of workplace,
as defined in the Act becomes
    clearer.  To reiterate, workplace is defined as any land, premises, location
    or thing at, upon, in or near which a worker works; (lieu de travail).

[57]

The
    Board and the Divisional Court concluded that the word works in that
    expression was not confined to a place where a worker
is working
, but
    could extend to a place where a worker sometimes worked.  I do not disagree
    that s. 51(1) may be engaged where no worker is present at the time the injury occurs.
    I would simply say that when the legislature referred to a place where a
    worker works, it must have intended that place to be one where a worker is
    carrying out his or her employment duties at the time the incident occurs, or one
    where a worker might reasonably be expected to be carrying out such duties in
    the ordinary course of their work.

[58]

This
    is consistent with the view that a workplace may not necessarily be a fixed
    location, but may in some circumstances travel with a worker, a view that makes
    some sense in todays world of mobility, and which the parties appear to accept:
    see
R. v. Port Colborne (City)
, [1992] O.J. No. 2555 (C.J.).

[59]

In
    summary, the notification and reporting requirements of s. 51(1) of the Act are
    engaged where:

a) a worker or non-worker (any person) is killed or
    critically injured;

b) the death or critical injury occurs at a place where (i) a
    worker is carrying out his or her employment duties at the time the incident
    occurs, or, (ii) a place where a worker might reasonably be expected to be
    carrying out such duties in the ordinary course of his or her work (workplace);
    and

c) there is some reasonable nexus between the hazard giving
    rise to the death or critical injury and a realistic risk to worker safety at
    that workplace (from any cause).

[60]

The
    guest drowning in the Blue Mountain swimming pool does not meet the foregoing
    criteria.

[61]

There
    was no evidence that the Blue Mountain guests death in the swimming pool was
    caused by any hazard that could affect the safety of a worker, whether present
    or passing through.  All that is known is that the guest either had a heart
    attack (the first diagnosis) or drowned while swimming (the final report).  The
    purpose of the Act is to further worker safety; it is not to capture death by
    natural causes.  If there is a need for supervision at the pool to ensure the
    safety of Blue Mountains guests, that may raise other issues for Blue Mountain,
    but it does not give rise to considerations of worker safety.  It is highly
    unlikely that a Blue Mountain employee is going to drown while swimming in the
    pool in the course of his or her employment duties.

[62]

The
    interpretation I place on s. 51(1) is consistent with the Acts purpose and
    objective of protecting the health and safety of workers.  It anchors worker
    safety to a hazard with the potential to harm workers, thereby placing some
    constraints on the scope of the notification and reporting requirements of the
    Act. By doing so, it also honours the legislative and external context in which
    those requirements operate.

[63]

Part
    of the context within which s. 51(1) must be interpreted is reflected in the
    history of the legislation.  The
Occupational Health and Safety Act
came into effect in 1978.  It repealed a number of then-existing pieces of
    legislation dealing with the protection of workers in factories and mines and
    on construction sites, and consolidated them into one Act.  The history behind
    the legislation was conveniently summarized by this Court in
R. v. Wyssen
(1992), 10 O.R. (3d) 193 (C.A.), at p. 198-99:

The Act was passed in 1978. Intense public discussion of
    industrial safety was stimulated by the 1976 Report of the Royal Commission on
    the Health and Safety of Workers in Mines (the Ham Report).  Bills relating to
    industrial safety were introduced in the legislature in 1976, 1977 and 1978
    when the Act was finally passed.  The object of the legislative proposals was
    to achieve safety in the workplace and their scope greatly expanded before the
    Act was passed in 1978.

The statute was described by the Minister of Labour as a
    comprehensive omnibus act which would consolidate all existing occupational
    health and safety legislation: Debates, Legislative Assembly of Ontario,
    October 18, 1977, p. 856.  The Act repealed five statutes and parts of two
    others dealing with occupational health and safety.  The statutes, which the
    Act replaced, were limited almost completely to the protection of employees
    with only minimal expansion of protection beyond the common law master and
    servant relationship.

[64]

The
    legislation that the Act replaced focused on the safety of workers in
    workplaces such as factories, shops, offices, mines and construction sites.  While
    I think it is evident that the scope of the present Act is not confined to
    industrial or commercial sites of that nature, it is instructive to keep those
    roots in mind.  In any event, the emphasis of the present Act is clearly on
    protecting the safety of workers in the workplace, a purpose that was confirmed
    by this Court in
R. v. Timminco
, at para. 22:

The broad purpose of the statute is to maintain and promote a
    reasonable level of protection for the health and safety of workers in and
    about their workplace.

[65]

It
    follows that it is not part of the purpose and objective of the Act to protect
    non-workers.  The focus is on the worker, the employer and the workplace, and
    injuries that pose a risk in that connection.

Conclusion and Disposition

[66]

For
    the reasons I have explained, the interpretation given to s. 51(1) of the Act
    by the Board and the Divisional Court was unreasonable.  Therefore it cannot
    stand.  I would interpret s. 51(1) to provide that the Ministry must be
    notified of a death or critical injury at a site, and the requisite report
    provided, where there is some reasonable nexus between the hazard giving rise
    to the death or critical injury and a realistic risk to worker safety at a
    workplace.  A workplace is where (i) a worker is carrying out his or her employment
    duties at the time the incident occurs, or, (ii) where a worker might
    reasonably be expected to be carrying out such duties in the ordinary course of
    his or her work.

[67]

It
    may be that a literal reading of s. 51(1) would suggest a broader
    interpretation.  In spite of that, however, the decisions below would lead to
    absurd results and accordingly do not [fall] within a range of possible,
    acceptable outcomes which are defensible in respect of the facts and law:
Dunsmuir
,
    at para. 47.  The interpretation I adopt conforms to the purpose and objective
    of the Act and is consistent with the provisions of the Act read as a whole,
    even if the words of s. 51(1) alone may suggest the alternative interpretation:
Boma Manufacturing Ltd.
, at para. 109.

[68]

Accordingly,
    I would allow the appeal, set aside the decision of the Divisional Court and allow
    the application for judicial review.  In the result, the order of inspector Den
    Bok requiring Blue Mountain to report to the Ministry the death of the Blue
    Mountain guest in the swimming pool on December 24, 2007, is also set aside.

[69]

The
    appellant is entitled to its costs of the appeal, payable by the respondent
    Ministry of Labour, and fixed in the amount of $5,000 inclusive of
    disbursements and all applicable taxes.  There will be no costs with respect to
    the Board or the intervenors.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree R.P.
    Armstrong J.A.

Released: February 7, 2013


COURT OF APPEAL FOR ONTARIO

CITATION:
Bruinsma v. Cresswell, 2013
    ONCA 111

DATE: 20130222

DOCKET: C55974

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Shane Bruinsma

Plaintiff

and

Kyle Cresswell
, Ronald Cresswell and
CAA Insurance Company (Ontario)

Defendants (
Appellant
) (
Respondent
)

Jonathon A. Schwartzman and James Tausendfreund, for the
    appellant, CAA Insurance Company (Ontario)

Jennifer Chapman, for the respondent, Kyle Cresswell

Heard: January 8, 2013

On appeal from the order of Justice Thomas A. Heeney of
    the Superior Court of Justice, dated August 1, 2012, with reasons reported at 2012
    ONSC 4440, 112 O.R. (3d) 252.

Hoy J.A.:

I.

OVERVIEW

[1]

The plaintiff and the defendant Kyle Cresswell (Cresswell) were
    involved in an automobile accident.  Cresswell was
    driving an uninsured vehicle.

[2]

Ontario requires that all auto insurance policies provide uninsured automobile
    coverage. Therefore, in the normal course, the plaintiffs insurance company
    the defendant CAA Insurance Company (Ontario) (CAA)  would be liable to
    cover any amount that Cresswell is found to owe the plaintiff, up to policy
    limits.  The plaintiff, however, breached the policy by knowingly driving with
    a suspended drivers licence and CAA denied coverage as a result

[3]

The Motor Vehicle Accident Claim Fund (the Fund), Ontarios
    government-operated insurer of last resort, provides compensation to persons
    injured in an automobile accident where there is no other insurance that would
    cover the claim.  The Minister of Finance, which administers the Fund, brought
    a cross-claim against CAA on behalf of Cresswell, seeking a declaration that
    the plaintiff was entitled to coverage despite his breach of the policy. The cross-claim
    was filed more than two years after Cresswell had been served with the
    plaintiffs Statement of Claim.

[4]

This appeal raises two issues.

[5]

The first is whether the insured plaintiffs admitted breach of the
    policy  knowingly driving with a suspended drivers licence  disentitles him
    to uninsured automobile coverage under the policy.  I conclude that it does
    not.

[6]

The second issue is whether the Ministers cross-claim is time-barred by
    virtue of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched B. I
    conclude that the
Limitations Act
applies and therefore the Ministers
    cross-claim is out of time.  However, for the reasons below, I would not give
    effect to the limitation period argument at this time.

[7]

In the result, I would dismiss this appeal.

II.

THE BACKGROUND

[8]

The action arose out of a motor vehicle accident on November 11, 2006.  The
    plaintiff, Shane Bruinsma, drove a vehicle owned and insured by his girlfriend.

[9]

The plaintiffs drivers licence had been suspended as the result of a
    conviction under the
Criminal Code
for driving with more than the
    prescribed limit of alcohol in his blood.  While suspended, he was convicted
    for driving while disqualified, and his suspension was extended.  As a result
    of the suspensions, the plaintiff was unable to obtain insurance for his
    vehicle.

[10]

Subject
    to specified exceptions, a vehicle owners standard automobile insurance policy
    covers persons, in addition to the owner, who use or operate the owners
    vehicle.  The plaintiff accordingly transferred his vehicle to his girlfriend
    for no consideration, and she proceeded to obtain the policy at issue with CAA.
     On the day of the accident, the plaintiffs girlfriend gave him the only set
    of keys to the vehicle, knowing that the plaintiff was disqualified from
    driving.

[11]

The
    plaintiff alleges he suffered injuries as a result of Cresswells negligence.  On
    December 4, 2008, the plaintiff sued Cresswell; the uninsured vehicles owner,
    Ronald Cresswell; and CAA.  In its Statement of Defence and Cross-claim, dated
    May 7, 2009, CAA asserted that the plaintiff was not entitled to coverage because
    he breached the policy by driving without a valid licence.  CAA also cross-claimed
    against Cresswell and Ronald Cresswell.

[12]

On
    May 26, 2011, the Minister brought its cross-claim.

[13]

CAA
    then brought a motion for summary judgment, seeking dismissal of the
    plaintiffs claim for uninsured automobile coverage under the policy and the cross-claim
    brought by the Minister in the name of Cresswell.  CAA argued both that the
    plaintiff was not entitled to coverage under the policy because he knowingly
    drove with a suspended drivers licence and that the Ministers cross-claim on
    behalf of Cresswell was barred by the
Limitations Act
.

[14]

Counsel
    for the plaintiff took no position on the summary judgment motion, and agreed
    to dismiss the action against CAA on a without costs basis.  The only party
    that opposed CAAs motion for summary judgment was the Minister, on behalf of
    Cresswell.

[15]

The
    motion judge concluded that the plaintiff was covered by the policy, and that
    the
Limitations Act
does not apply to a cross-claim made by the
    Minister on behalf of a defendant pursuant to s. 8(2) of the
Motor Vehicle
    Accident Claims Act
, R.S.O. 1990, c. M.41 (the MVACA). He accordingly
    dismissed CAAs motion for summary judgment.

[16]

CAA
    appeals that order.

III.

INTERPRETATION OF THE POLICY

(1)

A  Framework

[17]

The
    interpretation issue involves the interplay of the
Insurance Act
,
    R.S.O. 1990, c. I.8, (the Act);
Uninsured
    Automobile Coverage
, R.R.O. 1990, Reg. 676 (Reg. 676); the Schedule that
    forms part of Reg. 676 (the Schedule); and the auto insurance policy itself.  All
    of these must be considered to determine if the plaintiff is entitled to
    uninsured automobile coverage under the policy.

(a)

The Act, Reg. 676 and the Schedule

[18]

Since
    January 1, 1969, the Act has provided that certain statutory conditions
    including the condition that the insured not drive or operate or permit any
    other person to drive or operate the automobile unless the insured or other
    person is authorized by law to drive or operate it  are deemed to be part of
    certain types of insurance contracts of automobile insurance.

[19]

The
    current iteration of this deeming provision, s. 234(1) of the Act, was enacted
    on January 1, 1994.  It provides:

The conditions prescribed by the regulations made
    under paragraph 15.1 of subsection 121 (1) are statutory conditions and shall
    be deemed to be part of every contract to which they apply and shall be printed
    in English or French in every policy to which they apply with the heading
    Statutory Conditions or Conditions légales,  as may be appropriate.

[20]

Until
    January 1, 1994, the statutory conditions were set out in the Act. Section 121(1)(15.1),
    also enacted on January 1, 1994, provided for the statutory conditions to be
    set out in a regulation to the Act:

The Lieutenant Governor in Council may make
    regulations... for the purpose of section 234, prescribing statutory conditions
    and the types of contracts of automobile insurance to which the statutory
    conditions apply[.]

[21]

O.
    Reg. 777/93, in force on January 1, 1994,  prescribed the following statutory
    condition:

4. (1) The insured shall not drive or operate or
    permit any other person to drive or operate the automobile unless the insured
    or other person is authorized by law to drive or operate it.

[22]

This
    condition is identical to that set out in the
Act
prior to 1994: see R.S.O.
    1990, c. I-8, s. 234(2)(5)(1).

[23]

Significantly,
    on January 1, 1994, s. 234(3) was also enacted:

Except as otherwise provided in the contract
,
    the statutory conditions referred to in subsection (1)
do not apply to the
    insurance required by section 265 or 268.
[Emphasis added.]

[24]

Section
    265 requires uninsured automobile coverage.  Effective March 1, 1980, uninsured
    automobile coverage, which had been optional and limited in scope since 1969,
    became mandatory. The purpose of the provision was to spread the risk of
    uninsured drivers among drivers (through insurance policies) rather than among
    the tax base generally (through the Fund): see
Chambo v. Musseau
(1993), 15 O.R. (3d) 305 (C.A.), at para. 11.  Section 265(1) of the Act
    requires that every contract evidenced by a motor vehicle liability policy
    provide,
inter alia
, for payment to an insured of all sums the insured
    is entitled to recover from the owner or driver of an uninsured automobile as
    damages for bodily injury, subject to the terms, conditions, provisions,
    exclusions and limits as are prescribed by the regulations.

[25]

Section
    1 of Reg. 676 provides that [t]he terms, conditions, provisions, exclusions
    and limits set out in the following Schedule apply to payments under a motor
    vehicle liability policy under subsection 265 (1) of the Act and shall be
    attached to or included in every motor vehicle liability policy, as a Schedule
    in or to the policy. The content of this regulation is unchanged from its
    original enactment as R.R.O. 1980, Reg. 535.

[26]

While
    Statutory Condition 4(1) is not set out in the Schedule, s. 10 of the Schedule
    provides:

In so far as applicable, the general provisions,
    definitions, exclusions and
statutory conditions
as contained in a
    motor vehicle liability policy also apply to payments under the contract under
    subsection 265 (1) of the Act. [Emphasis added.]

[27]

Section
    234(3) of the Act made a substantive change to the existing statutory scheme
    for uninsured automobile coverage on January 1, 1994.  Before it was enacted,
    the Act did not provide that the statutory conditions do not apply to the
    mandatory scheme of uninsured automobile coverage.

(b)

The policy

[28]

The
    policy is in the form known as OAP 1  the Ontario Automobile Policy approved
    by the Superintendent of Financial Services for use as the Standard Owners
    Policy on or after June 1, 2005.

[29]

OAP
    1 is comprised of eight Sections and an introductory summary at the beginning
    of the policy, which provides a summary of each of the Sections.  The summary
    and Sections 1, 5 and 8 are relevant to this appeal.

[30]

The
    summary of Section 1 at the beginning of the policy provides:

Introduction
contains information that applies to the entire policy. In order to understand
    what is covered and what is not covered by each coverage, you should read
    Sections 1 and 2 and the
entire
Section of the policy that deals with
    the specific coverage. [Emphasis in original.]

[31]

Section
    1.4 provides:

If you fail to meet your responsibilities, claims under this
    policy, with the exception of certain Accident Benefits, may be denied.

[32]

Section
    1.4.5  one of two provisions that CAA relies on to deny coverage  specifies:

You agree not to drive or operate the automobile, or allow
    anyone else to drive or operate the automobile, when not authorized by law.

[33]

Section
    5 provides for uninsured automobile coverage. The summary of Section 5 of the policy
    provides:

Uninsured
    Automobile Coverage
describes what we will cover if someone is
    injured or killed by an uninsured motorist or by a hit-and-run driver. [Emphasis
    in original.]

[34]

Section

5.1.1 of the policy provides:

Uninsured Automobile Coverage Schedule

This Section of the policy describes the terms and conditions
    of the coverage set out in the Uninsured Automobile Coverage Schedule under the
    Insurance Act (Ontario). If there is a difference between the interpretation of
    the wording of this Section and the interpretation of the wording in the
    Schedule, the Schedule prevails. However, 5.3.3 in this Section is an addition
    to the coverage provided by the Schedule.

[35]

Section
    5.9.1 provides:

Conditions of This Policy Must be Met

No person has a right to sue us for compensation under this
    Section for injury or damage caused by an accident involving an uninsured or
    unidentified automobile, unless the conditions in this Section of your policy (Uninsured
    Automobile Coverage) have been met.

[36]

The
    summary of Section 8 of the policy provides:

Statutory
    Conditions
lists the conditions required by the Insurance Act
    for all automobile policies in Ontario.
For convenience
, the
    conditions have been included in each Section of the policy where they apply.
    If there is a discrepancy between the Statutory Conditions and the wording in
    the policy, the Statutory Conditions in Section 8 prevail. [Bold in original;
    italics added.]

[37]

CAA
    also relies on the statutory condition at s. 4(1) of Section 8 of the

policy
    to deny coverage:

4.   (1) The insured shall not drive or operate or permit any
    other person to drive or operate the automobile unless the insured or other
    person is authorized by law to drive or operate it.

(2)

The Motion Judges Reasons

[38]

The
    motion judges reasons can be summarized as follows.

[39]

There
    is an irreconcilable conflict between s. 243(3) of the Act and s. 10 of the
    Schedule and where there is a conflict between a regulation and a statute, the
    statute prevails.

[40]

The
    policy does not provide that the statutory conditions are to apply to uninsured
    automobile coverage.  Indeed, section 5.9.1 of the policy provides that no
    person has a right to sue for compensation under Section 5 of the policy unless
    the conditions in this Section of your policy (Uninsured Automobile Coverage) have
    been met.  Only a breach of one of the conditions in Section 5 will take away
    an insureds right to uninsured automobile coverage.  There is no term in
    section 5 which provides for a denial of coverage where the vehicle is driven,
    or permitted to be driven, by a person who is not authorized by law to drive.

[41]

Section
    1.4 of the policy provides that, If you fail to meet your responsibilities,
    claims under this policy, with the exception of certain Accident Benefits,
may
be denied. Section 1.4.5, on which CAA also relies, follows, section 1.4.  A
    clause that states that claims may be denied cannot clearly be found to
    preclude access to uninsured automobile coverage: see
Matt v. Crawford
(2010), 103 O.R. (3d) 715 (S.C.). Moreover, the clause must be included in
    Section 5 of the policy to take away an insureds right to uninsured automobile
    coverage.  Therefore a breach of s. 1.4.5 does not entitle CAA to deny
    coverage.

(3)

Analysis

[42]

I
    agree with the motion judges conclusion that the plaintiff is not disentitled
    to uninsured automobile coverage under the policy because he drove without a
    valid licence, although my reasoning is somewhat different.

[43]

In
    my view, both provisions of the policy CAA relies on to deny coverage  s.
    1.4.5 and s. 4(1) of Section 8  are statutory conditions.  As such, pursuant
    to s. 234(3) of the Act, they do not apply to uninsured automobile coverage
    unless otherwise provided in the contract.  On my reading, the contract at
    issue, OAP 1, does not otherwise provide.  Accordingly, CAA cannot rely on them
    to deny coverage.

(a)

Sections 1.4.5 and 4(1) of Section 8, are statutory conditions

[44]

I
    address first my conclusion that both s. 1.4.5 and s. 4(1) are statutory
    conditions.

[45]

The
    wording of s. 1.4.5 is the same in all material respects to that of statutory
    condition 4(1), and the insurer indicated in its summary of Section 8 of the
    policy that statutory conditions have been included in each Section of the
    policy where they apply, for convenience. Consequently, in my view, s. 1.4.5 is
    a statutory condition included in Section 1 for convenience.

[46]

This
    conclusion makes it unnecessary to embark on the separate analysis of s. 1.4.5
    conducted by the motion judge on the basis that it was a general term of the
    policy, and not a statutory condition.

[47]

I
    will, however, comment that I do not endorse the motion judges reasoning that
    a clause, such as s. 1.4 of the policy, providing that an insurer may deny
    coverage, cannot preclude coverage.  Such an interpretation would render s. 1.4
    meaningless.  To the extent that
Matt v. Crawford
relied on the same
    reasoning, I disagree with that case.

[48]

On
    the basis that s. 1.4.5 was a general provision of the policy, and not a
    statutory condition, CAA argued that the motion judge also erred in concluding
    that the provision had to be included in Section 5 of the policy to take away
    the insureds right to uninsured automobile coverage.  This, it submits,
    ignores this courts decisions in
Ortiz v. Dominion of Canada General
    Insurance
(2001), 52 O.R. (3d) 130 (C.A.); and
Shipman v. Dominion of
    Canada General Insurance Co.
(2004), 73 O.R. (3d) 144 (C.A.).

[49]

In
Ortiz
, this court found that the general provision in the insurers
    standard motor vehicle policy limiting coverage to accidents occurring in
    Canada or the United States applied to the uninsured automobile coverage
    mandated by the Act through the operation of s. 10 of the Schedule.

[50]

In
Shipman
, this court held that the exclusion of coverage where an
    automobile is used without the owners consent, set out in s. 1.8.2 of the
    policy, applied to uninsured automobile coverage.

[51]

This
    case is quite different from both
Ortiz
and
Shipman
.  The
    general provisions considered in those cases were not statutory conditions, and
    neither s. 234(3) nor a comparable provision applied.

(b)

The policy does not otherwise provide that the statutory
    condition is to apply

[52]

The
    next question to be addressed is whether the contract otherwise provides that
    the statutory condition shall apply to the uninsured automobile coverage.

[53]

I
    am not persuaded by CAAs argument that section 10 of the Schedule is part of
    the policy, either by operation of s. 5.1.1 of the policy itself, or by virtue
    of Reg. 676; Section 10 of the Schedule provides that the statutory conditions
    are to apply to uninsured automobile coverage; and the contract therefore
    otherwise provides that the statutory conditions are to apply to uninsured
    automobile coverage.

[54]

As
    indicated above, the motion judge concluded that there was an irreconcilable
    conflict between s. 234(3) of the Act and s. 10 of the Schedule.  The Act
    provides that statutory conditions do not apply to uninsured automobile
    coverage unless the contract otherwise provides; the Schedule to Regulation 676
    provides that in so far as applicable, the statutory conditions apply.  As the
    motion judge noted, it is an established principle of statutory interpretation
    that regulations are subordinate legislation and in the event of conflict with
    the statute, the statute prevails.  Therefore, he reasoned, in light of this
    conflict, the Act prevails over the Schedule, the statutory conditions do not
    apply to uninsured automobile coverage unless the policy otherwise provides,
    and the policy does not otherwise provide.

[55]

My
    reasoning is different.

[56]

If one considers the sequence in which the provisions were
    enacted, the apparent conflict between s. 234(3) of the Act and s. 10 of the

Schedule is resolved, although CAAs position must nonetheless be
    rejected.

[57]

As
    discussed above, in 1969, the legislature first enacted optional uninsured
    automobile coverage.  At the same time, it specified various conditions  the
    statutory conditions  that were deemed to be part of every motor vehicle
    insurance contract to which they applied. In 1980, uninsured automobile
    coverage became mandatory.

[58]

In
    1994, the legislature amended the Act to provide that the statutory conditions
    do not apply to uninsured automobile coverage except as otherwise provided.

[59]

It
    did not amend any part of Reg. 676.

[60]

Significantly, section 10 of the Schedule begins with the
    words In so far as applicable...  In my view, by subsequently enacting a
    statutory provision that specifically provides that [e]xcept as provided in
    the contract the statutory conditions do not apply to uninsured automobile
    coverage, the legislature signified that the statutory conditions are not
    applicable to uninsured automobile coverage unless the contract itself explicitly
    otherwise provides.  Accordingly, statutory condition 4(1) does not apply to
    uninsured automobile coverage under the policy either by operation of s. 5.1.1
    of the policy or by virtue of Reg. 676.

[61]

I
    agree with the motion judge that the policy does not otherwise provide that the
    statutory conditions are to apply to uninsured automobile coverage.

[62]

The
    summary of Section 1 at the beginning of the policy indicates that Section 1
    contains information that applies to the entire policy.  In my view, this is
    not sufficient to override the statutory directive that statutory conditions do
    not apply to uninsured automobile coverage and make s. 1.4.5 applicable to the
    uninsured automobile coverage in Section 5 of the policy.

IV.

THE LIMITATION PERIOD ISSUE

[63]

I
    agree with the appellant that the motion judge erred in concluding that the
    effect of s. 8 of the MVACA

is that the
Limitations Act
does
    not apply to the Ministers cross-claim on behalf of Cresswell.

[64]

Cresswell
    was served with the Statement of Claim on January 27, 2009. Notice of the
    defendant Cresswells default in filing a statement of defence was sent to the
    Minister on November 5, 2009, as required by s. 8(1) of the MVACA. This
    triggered the application of s. 8(2) of the MVACA:

Within thirty days after receiving notice under
    subsection (1), the Minister may file a defence, make payment into court,
    appear by counsel at the trial or take such other action as he or she considers
    appropriate on behalf and in the name of the defendant, and may thereupon, on
    behalf and in the name of the defendant, conduct the defence, and may, where he
    or she considers it advisable to do so, consent to judgment in such amount as
    he or she may consider proper in all the circumstances, and all acts done in
    accordance therewith shall be deemed to be the acts of such defendant.

[65]

After
    receiving notice, the Minister could not intervene immediately on Cresswells
    behalf because he was represented by counsel at the time.  By July 22, 2010, Cresswells
    counsel indicated he would remove himself from the record so that the Minister
    could become involved.

[66]

On
    March 25, 2011, some sixteen and a half months after receiving notice, the
    Minister forwarded a Statement of Defence and Cross-claim on behalf of
    Cresswell to the other parties.  On April 4, 2011, counsel for the Fund filed a
    requisition to have the noting in default of Cresswell set aside.  On May 26,
    2011, the Statement of Defence and Cross-claim was formally filed.

[67]

The
    motion judge found, and it is conceded, that if the
Limitations Act
applies
    to cross-claims by the Minister under s. 8(2) of the MVACA, the cross-claim is time-barred:
    s. 4 of the
Limitations Act
establishes a two-year limitation period,
    and the effect of s. 18(1) of the
Limitations Act
is that the
    limitation period began to run when Cresswell was served with the Statement of
    Claim on January 27, 2009.  It had therefore expired by March 27, 2011 when the
    Statement of Defence and Cross-claim was served.

[68]

Section
    19(1) of the
Limitations Act
provides that the limitation period set
    out in any other Act is of no effect unless the provision establishing it is
    listed in the Schedule to the
Limitations Act
.  The MVACA is not
    listed in the Schedule.

[69]

The
    motion judge concluded that a defendant who is being represented by the
    Minister is treated differently from a regular defendant.  He cited
Levesque
    v. Levesque
, [2002] O.T.C. 843 (S.C.);
Larkman Estate v. Brigshaw
,
    [2007] O.J. No. 1656 (S.C.); and
Van Kooten v. Day
(1981), 31 O.R.
    (2d) 247 (Div. Ct.); for the principle that the Funds rights to defend under
    s. 8(2) of the MVACA cannot be taken away through the default of the defendant
    personally.  He accordingly reasoned that the
Limitations Act
does not
    affect the Ministers right to defend.

[70]

The
    motion judge also concluded that dismissing the cross-claim would allow form
    to triumph over substance. The Fund is an insurer of last resort. Section 22
    of the MVACA provides that no amount shall be paid or payable out of the Fund
    in respect of an amount paid or payable by an insurer by reason of the
    existence of a policy of insurance.  If the cross-claim were dismissed, and the
    plaintiff proceeded to obtain judgment against Cresswell and then seek payment
    out of the Fund pursuant to s. 7(1) of the MVACA, the Fund could assert in
    defence that it did not have to pay because the policy should have responded. The
    issue of coverage would then be determined. Since the identical issue would
    eventually be decided, the motion judge elected to avoid a multiplicity of
    proceedings by finally deciding the issue.

[71]

The
    cases relied upon by the Fund and the motion judge must, in my view, be
    distinguished.  As explained below, none addresses the issue of the application
    of the
Limitations Act
.  Moreover, the limitation argument in this
    case appears to have arisen as a result of delay by the Fund and not through
    any default of the defendant personally.

[72]

Levesque
and
Larkman
held that s. 8(2) permitted the Minister to initiate third
    party proceedings notwithstanding that such proceedings were not mentioned in
    s. 8(2).  Such proceedings were within the Ministers authority to conduct the
    defence.

[73]

Van
    Kooten
held that the Ministers right to defend under s. 8 of the MVACA
    could not be taken away by the inability to produce the defendant for
    discovery.
Larkman
applied that to the Ministers right to bring a
    third party claim.  The issue was whether the Minister could continue to
    conduct a defence and maintain a third party claim in the name of the defendant
    without requiring the defendant to attend an examination for discovery.

[74]

I
    agree with the motion judge that nothing would be gained by permitting CAAs
    summary judgment motion to proceed, to the extent it relies on the
Limitations
    Act
.  However, in my view, given the clear wording of s. 19(2) of the
Limitations
    Act
, it was not open to the motion judge to conclude that the
Limitations
    Act
is not applicable to the Minister under the MVACA.

[75]

I
    would come to the same result as the motion judge by instead staying CAAs
    summary judgment motion to the extent founded on the limitation argument, on
    this courts own initiative pursuant to s. 106 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43.  This section permits a court to stay any proceeding on
    such terms as are considered just.

[76]

In
Penn-Co Construction Canada (2003) Ltd. v. Constance Lake
, 2008 ONCA
    768, 76 C.L.R. (3d) 1, at para. 4, this court observed that the risk of
    multiplicity of proceedings, the avoidance of cost and inconvenience[,] and the
    risk of inconsistent results are factors to be taken into account in the exercise
    of the discretion conferred by [s. 106].  In my view, all of these factors
    strongly militate towards staying the CAAs limitations defence.  To allow it
    to succeed would simply delay the disposition of this case, at the expense of
    judicial economy and expeditious determination of the issues.

V.

DISPOSITION AND COSTS

[77]

In
    the result, I would dismiss the appeal.

[78]

The
    parties agreed that the successful party would be entitled to costs of $7,500,
    inclusive of disbursements and applicable taxes. I would accordingly award Cresswell
    costs in such amount.

Released: FEB. 22, 2013

JL                                                                    Alexandra
    Hoy J.A.

I
    agree John Laskin J.A.

I
    agree H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Butera
    v. Mitsubishi Motors Corporation, 2013 ONCA 99

DATE: 20130215

DOCKET: C56077

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Luciano Butera, 1515404 Ontario Inc. operating as Niagara Mitsubishi and
    Canterra Property Holdings Inc.

Plaintiffs (Appellants)

and

Mitsubishi Motors Corporation, Mitsubishi Motor
    Sales of America Inc., Mitsubishi Motors North America Inc. and Mitsubishi
    Motors Credit America Inc., and Mitsubishi Motor Sales of Canada Inc.

Defendants (Respondents)

David Sterns, Harry Korosis and Peter Nicholson, for the
    plaintiffs/appellants

Brad Hanna and Richard McCluskey, for the defendants/respondents

Heard: February 13, 2013

On appeal from the judgment of Justice P.B. Hambly of the
    Superior Court of Justice, dated August 31, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Without going into the overall merits of the plaintiffs claim, we are
    satisfied that the motion judge was in a position to have a full appreciation
    of the record for purposes of determining  as he did  the factual issue of
    whether, and as of when, the plaintiff knew or ought to have known the basis of
    his claim. The motion judge decided this date was April 11, 2005 at the latest
    and the action was not commenced until October 31, 2007, more then two years
    after the claim was discovered. It is therefore statute barred.

[2]

The appeal is therefore dismissed.

[3]

Costs to the respondent on the appeal fixed, as agreed, at $46,000 all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION:
CIBC Mortgages
    Inc. v. Jankowski, 2013 ONCA 94

DATE: 20130212

DOCKET: C56350

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

CIBC Mortgages Inc.

Plaintiff (Respondent)

and

Jo-Anne Jankowski

Defendant (Appellant)

Kalman Zamkanei, for the appellant

Doug Bourassa, for the respondent

Heard: February 7, 2013

On appeal from the order/judgment of Justice Belleghem of
    the Superior Court of Justice, dated November 21, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the motion judge that there was nothing in the record
    before him that would raise a viable defence. Moreover, it is clearly implicit
    in his reasons that the motion judge considered the interests of justice in
    reaching his conclusion. There is no basis for us to interfere with it.

[2]

The appeal must be dismissed. Costs to the respondent fixed at $3,500
    all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Canada
    (Competition Bureau) v. Yellow Pages Marketing B.V., 2013 ONCA 71

DATE: 20130204

DOCKET: C55403

Epstein, Pepall and Tulloch JJ.A.

BETWEEN

The Commissioner of Competition

Applicant (Respondent in the
  Appeal)

and

Yellow Pages Marketing B.V., Yellow
    Publishing Ltd., Yellow Data Services Ltd., Yellow Business
    Marketing Ltd., Jan Marks,
Steve
    Green
, Brandon Marsh and Backoffice Support SL

Respondents (
Appellant
in the Appeal)

Igor Ellyn, Q.C. and Evelyn Perez-Youssoufian, for the
    appellant, Steve Green

Derek J. Bell and Christopher S. McKenna, for the
    respondent

Heard: January 24, 2013

On appeal from the order of Justice Sidney N. Lederman of
    the Superior Court of Justice, dated March 2, 2012.

ENDORSEMENT

[1]

The respondent, the Commissioner of Competition, brought an application
    for relief under the
Competition Act
, RSC 1985, c. C-34. It arose out
    of alleged misleading business practices by a number of companies (the Yellow
    companies) and individuals associated with those companies, including the
    appellant, Steven Green.

[2]

Lederman J. on the basis of his finding that the Yellow companies were part
    of a common enterprise engaged in business practices contrary to the provisions
    of the Act, made various orders including the imposition of an administrative
    monetary penalty (AMP) against Mr. Green, in the amount of $500,000.

[3]

Mr. Green appeals on the basis that he was deprived of a fair hearing.
    He argues that the application judge should have adjourned the hearing, on his
    own initiative, to allow him to adduce evidence relevant to his defence.  This
    would include evidence showing the appellants lack of involvement in the
    Yellow companies practices and relevant to the factors mandated by the Act in
    determining the quantum of any AMP.

[4]

The appellant relies on what can only be described as ineffectiveness of
    counsel to explain the absence of this evidence.

[5]

Before this court, the appellant also seeks to adduce fresh evidence
    concerning these two issues.

[6]

The appellant chose not to file his own affidavit.  The only defence
    evidence before the application judge was contained in the affidavit of Jan Marks,
    an admitted principal of the Yellow companies.  Among other matters, the Marks
    affidavit addressed the appellants involvement with the Yellow companies and
    his financial circumstances.

[7]

The respondent made repeated unsuccessful requests to cross-examine Mr.
    Marks and the appellant. In these circumstances, it was open to the application
    judge, in the exercise of his discretion under rule 34.15(1) of the
Rules
    of Civil Procedure
, to give little or no weight to the Marks affidavit.

[8]

The appellant further submits that the hearing took place in a manner
    that was unfair to him.  He argues that in the light of the nature and
    potentially serious consequences of the application together with the unsatisfactory
    and limited record, the application judge should have adjourned the hearing to ensure
    that the appellant was aware of his exposure and was given an opportunity to
    protect himself.

[9]

We cannot accept this argument.

[10]

First,
    there is no evidence from anyone who was present before the application as to
    what transpired at the hearing.  The only available inference is that no
    concerns were raised about the state of the evidence and no adjournment was
    requested on the appellants behalf.

[11]

Furthermore,
    we do not agree that the application judge had any independent obligation to
    become involved in the nature and extent of the evidence called by counsel on
    behalf of the appellant.  Communications between counsel and client  meaning
    providing advice and taking instructions on how to present the case  are
    matters within the exclusive domain of client and counsel.  The court is
    entitled to assume that the lawyer is keeping the client informed of the
    developments in the case and their consequences, is providing the client with
    his best professional advice and is following the instructions received.  Other
    than in extraordinary circumstances such as when it is apparent that a conflict
    has arisen between the client and his or her counsel, the court should not, on
    its own accord, become involved in the actual presentation of the case.

[12]

The
    application judges finding of liability against the appellant is
    unassailable.  The appellant knew that the Yellow companies were making false
    and misleading representations to Canadians and was aware of prior efforts to
    obtain compliance with consumer legislation elsewhere, such as in Iowa. The
    Commissioner of Competitions warning in 2010 was specifically drawn to his
    attention. In addition, he decided how to handle the complaints and set up
    another corporation in clear violation of an order of the Superior Court.  The
    appellant was responsible for a significant portion of the activities
    undertaken by the Yellow companies and it was reasonable for the application
    judge to attribute their misrepresentations to him. The findings of the
    application judge that the appellant was integral to this scheme were not just
    reasonable, they were correct.

[13]

We
    now turn to the appellants challenge to the amount of the AMP.

[14]

The
    amount of the AMP has to be considered against the backdrop of the 2009 amendment
    to the Act that allowed for an AMP of up to $750,000 for an individual and the
    application judges findings set out in para. 65 of his reasons that the
    appellant and Mr. Marks ran an enterprise with minimal costs that netted many
    millions of dollars.  These findings of fact made by the application judge are
    entitled to deference.

[15]

At
    para. 70, the application judge considered the 11 factors in paras. 74.1(5)(a)-(l)
    of the Act before determining the extent of the appellants AMP.  This consideration
    included Mr. Marks evidence on the appellants current financial
    circumstances. Among other things, the application judge noted at para. 70 that
    the Yellow companies were only vehicles for their principals, Mr. Marks and the
    appellant. The AMP was expressly aimed at promoting conduct by the appellant
    that was in conformity with the purposes of the Act and not with a view to
    punishment.

[16]

In
    our view, the application judge committed no error in determining the quantum
    of the AMP.

[17]

Finally,
    we find that the fresh evidence should not be admitted.  The appellant has met
    none of the elements of the test for admission of fresh evidence set forth in
Palmer
    v. The Queen
(1979) 50 C.C.C. (2d) 193 and in
Sengmueller
, 17
    O.R. (3d) 208 (C.A.).  We specifically conclude that the proposed fresh
    evidence could not reasonably be expected to affect the result.  Putting this another
    way, admitting the proposed evidence would have no effect on our determination
    of this appeal.

[18]

For
    these reasons, the appeal is dismissed.  The respondent is entitled to its
    costs of the appeal, including the fresh evidence motion, fixed in the amount
    of $16,000 inclusive of disbursements and applicable
    taxes.

Gloria
    Epstein J.A.

S.E. Pepall
    J.A.

Tulloch
    J.A.


COURT OF APPEAL FOR
    ONTARIO

CITATION:
Carrigan v. Carrigan
    Estate, 2013 ONCA 96

DATE: 20130214

DOCKET: C53306

Juriansz, LaForme and Epstein JJ.A.

BETWEEN

Mary Melodee Dianne Carrigan

Plaintiff (Appellant)

and

Melodee Carrigan, in her capacity as Executrix and
    Trustee of the Estate of Ronald Leo Anthony Carrigan, deceased, William Smith,
    alternate Executor and Trustee of the Estate of Ronald Leo Anthony Carrigan,
    deceased and
Jennifer Margaret Quinn

Defendants (Respondent)

Rodney Godard and David Ableser, for the appellant

R.G. Colautti and Kathleen Montello, for the respondent Jennifer
    Margaret Quinn

Heard: April 16, 2012

On appeal from the judgment of Justice Mary J. Nolan of
    the Superior Court of Justice, dated January 24, 2011, with reasons reported at
    2011 ONSC 585.

COSTS ENDORSEMENT

[1]

In its decision, the court fixed the costs of the
    appeal and set aside the trial judges disposition of costs. The court left it
    to the parties to attempt to agree on costs of the trial, and failing
    agreement, to file written submissions regarding those costs.

[2]

The appellant submits that she made an offer to
    settle the litigation on December 3, 2010 and, consequently, is entitled to
    partial indemnity costs to the date of the offer and substantial indemnity
    costs thereafter.

[3]

The respondent takes the position it is premature
    to deal with trial costs. The respondent points out that this court, in an
    Addendum to its reasons, remitted the respondents application under the
Succession
    Law Reform Act
, R.S.O. 1990, c. S.26 (SLRA) to the Superior Court to be
    determined. The trial judge had found it unnecessary to deal with the
    respondents entitlement to support under the SLRA. The respondent submits that
    until her SLRA application is determined, the final outcome of the trial will
    not be known, and consequently it is not as yet possible to say whether the
    appellant achieved a result a trial that is better than her offer of settlement,
    if it complies with the rules.

[4]

We agree. The question of all costs of the entire proceeding
    in the Superior Court is remitted to the judge who hears the respondents SLRA
    application. If, for whatever reason, that application does not proceed, the
    appellant may renew her request for trial costs to this court.

R.G.
    Juriansz J.A.

H.S.
    LaForme J.A.

Gloria
    J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cutting
    Edge Films Inc. v. International Tour Entertainment
    Corporation, 2013 ONCA 78

DATE: 20130205

DOCKET: C55459

Goudge, Simmons and Lauwers JJ.A.

BETWEEN

Cutting Edge Films Inc.

Judgment Creditor (Respondent)

and

International Tour Entertainment Corporation

Judgment Debtor

and

Terry Graham

Garnishee (Appellant)

Jordan Potasky, for the appellant

Frank Bennett and Heather Mitchell, for the respondent

Heard: February 5, 2013

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated April 4, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the conclusion of the motion judge. It was entirely open to him to conclude that the appellant had not established any debt owed to him by the debtor company. All there was was a book entry made several years after the fact and there was no evidence of any business purpose for the entry whatsoever. Moreover, the debt from the appellant to the debtor company on the other hand, was admitted. No offset was proven.

[2]

Nor was it an error for the motion judge to order direct payment to the
    respondent rather than the sheriff. There was evidence that the respondent was
    the only execution creditor. The appeal is dismissed. Costs to the respondent
    fixed at $15,000 all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION:
Fraser v. Logan, 2013
    ONCA 93

DATE: 20130212

DOCKET: C55915

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

Gerald Fraser

Applicant (Appellant)

and

Tracey Logan

Respondent (Respondent)

Gerald Fraser, appearing in person

Cheryl Lean, for the respondent

Dan Goldberg, for the children

Heard: February 7, 2013

On appeal from the order of Justice J.M Johnston of the Superior
    Court of Justice, dated July 11, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view, there is no error in the motion judges dismissal of the
    appellants contempt motion. The judge properly dealt with the critical
    incidents specified by the appellant and there were grounds for his dismissal
    of the application.

[2]

Nor do we see any error in the access order. The children are almost 17
    and 14 respectively. Their best interests require that their wishes be given
    very significant weight. Indeed before us the appellant appears to acknowledge
    this.

[3]

His real complaint before us appears to be that the respondent is not
    actively encouraging more access. We agree with the motion judge that it is in
    the best interests of both boys that they continue to have a meaningful relationship
    with their father.  The mother should not impede this and indeed should
    encourage it. But in the end the motion judge was in our view correct, that the
    best interests of the children are best served by the access order he made that
    respects their views.

[4]

Nothing in the fresh evidence persuades us otherwise.

[5]

As to child support, the appellant has demonstrated no error in the
    motion judges disposition. There is no basis for us to interfere with it.

[6]

The appeal must be dismissed. In our view, this is not a case for costs.
    None are ordered.


COURT OF APPEAL FOR ONTARIO

CITATION:
General
    Electric Canada Real Estate Financing Holding Company v. Liberty
    Assisted Living Inc., 2013 ONCA 119

DATE: 20130222

DOCKET: C55911

Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

General Electric Canada Real Estate Financing
    Holding Company and General Electric Capital Canada Holdings Company

Applicants

and

Liberty Assisted Living
    Inc., 729285 Ontario Limited, Amir Kassam, Rahim Bhaloo
and Meyers Norris
    Penny Limited in its capacity as Receiver and Trustee in Bankruptcy of the
    Estates of 2008777 Ontario Inc., 2004631 Ontario Inc., 912087 Ontario Limited,
    729982 Ontario Limited and 2007383 Ontario Inc.

Respondents/
Respondents to the Appeal

and

Brauti Thorning Zibarras LLP in its capacity as
    former lawyers to certain of the Respondents

Interested Party/Appellant to the Appeal

Karen J. Sanchez, for the appellant

No one appearing for the respondents

Heard: February 21, 2013

On appeal from the order of Justice Peter A. Cumming of
    the Superior Court of Justice, dated July 11, 2012.

APPEAL BOOK ENDORSEMENT

[1]

On December 3, 2012 the Flom firm was removed from the record. No one
    appeared for the respondents and the respondents did not appear personally.

[2]

The appeal is allowed. Having found that the appellant was entitled to a
    lien, the motion judge imposed terms that effectively removed the lien. The
    respondents material does not identify any circumstances, at that point, to
    justify not imposing the lien or justify the terms imposed by the motion judge.

[3]

Further, the respondents failed to point to any efforts they had made to
    pay the outstanding account.

[4]

Finally, the motion judge did not identify any basis for imposing the
    terms that he did.

[5]

Accordingly, the appeal is allowed and the order of the motion judge set
    aside. An order will go declaring that the appellant is entitled to a
    solicitors lien in respect to the clients files for unpaid legal fees. The
    order may issue without approval of the respondents.

[6]

Accordingly, the appeal is allowed with costs fixed at $4,207.89
    inclusive of HST and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ghazvini
    v. Pouramin, 2013 ONCA 101

DATE: 20130215

DOCKET: C54813

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Reza Ghazvini

Plaintiff (Respondent)

and

Hamid Pouramin

Defendant (Appellant)

Andrew Pelletier, for the appellant

Doug LaFramboise, for the respondent

Heard: February 14, 2013

On appeal from the judgment of Justice G.M. Mulligan of
    the Superior Court of Justice, dated November 24, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises three grounds of appeal, asserting tht the trial
    judge erred:

1)

Procedurally, in
    permitting the plaintiff to introduce the original of the Third Promissory Note
    when the original had not been produced prior to trial;

2)

in finding that Mr.
    Pouramin had signed the Third promissory Note: and

3)

in finding that the
    monies had been advanced to Mr. Pouramin personally and not to the corporation
    created by both parties.

[2]

As to 2) and 3) above, there was ample evidence to support the trial
    judges findings with respect to both issues and our attention was not drawn to
    any palpable and overriding error that would justify our interfering with them.

[3]

As to the procedural ground, we would not give effect to it either. A
    photocopy of the Third Promissory Note was produced and, although Mr. Pouramin
    served a notice to produce the original he made no issue of the failure to
    produce it until trial. He did not plead that the Note was forged, only raising
    the issue of fabrication at trial. At no time did Mr. Pouramin ever take the
    position that he needed production of the original Note in order to have it
    examined for purposes of a forgery opinion.

[4]

Finally, although his counsel contested the implications of the original
    at trial, he did not object to its admission or to it being marked as an
    exhibit. The trial judge concluded that the issues surrounding the production
    of the original at trial could best be dealt with in argument and, given the
    way the case had evolved, we see no error in that disposition.

[5]

The appeal is therefore dismissed.

[6]

Costs to the respondent on a partial indemnity basis fixed in the amount
    of $10,000 inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:

Heaney v. Wiznet
    Inc., 2013 ONCA 115

DATE: 20130222

DOCKET: C55153

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Adam Heaney, David Gilbert and Ken Chasse

Plaintiffs (Appellants)

and

Wiznet
    Inc., Wiztel Inc., Fraser Mason, Jeff
    Mason and 1038088 Ontario Limited

Defendants (Respondents)

Daniel Zacks, for the appellants

Cheryl Boyd, for the respondents

Heard and released orally: February 15, 2013

On appeal from the order of Justice James M. Spence of
    the Superior Court of Justice (Commercial List), dated January 20, 2012.

ENDORSEMENT

[1]

The appellants appeal from the order of Spence J. of the Superior Court
    of Justice, dated January 20, 2012, dismissing their statement of claim.  In
    our view, the appeal must be dismissed.

[2]

The record before the motion judge confirmed that the appellants, who
    have been embroiled in this litigation for many years, were given multiple
    opportunities to file affidavit evidence in response to the respondents motion
    to strike their pleading.  They failed to do so.

[3]

The record also established that the appellants had not honoured several
    outstanding costs orders of the Superior Court of Justice and had failed to
    respond to outstanding undertakings in accordance with time limits repeatedly
    set by Superior Court judges.

[4]

These facts, by themselves, amply supported the motion judges key
    holding:

In summary, the Plaintiffs have received considerable
    indulgence from the Court as set out in the materials filed by the Moving
    Parties.  Now, after all this indulgence, they seek further indulgence but they
    do not provide any adequate and reliable reasons for the request.

[5]

It is therefore unnecessary for the disposition of this appeal to address
    the appellants claim that oral evidence from the self-represented appellants
    was improperly received and relied on by the motion judge.  The record itself
    grounded the motion judges ruling to strike the appellants statement of
    claim.  His ruling fully accords with the principles enunciated by this court
    in
1196158 Ontario Inc. v. 6274013 Canada Ltd.
, 2012 ONCA 544.

[6]

Accordingly, we see no basis for appellate interference with the motion
    judges discretionary ruling.

[7]

The respondents are entitled to their costs of this appeal, fixed in the
    total amount of $7,000, inclusive of disbursements and all applicable taxes.
    If the respondents require further direction to enable payment out of court of
    the funds currently held in court to the credit of this appeal, we may be
    spoken to through the Registrar.

E.A. Cronk J.A.

Gloria Epstein
    J.A.

P. Lauwers J.A.