COURT OF APPEAL FOR ONTARIO

CITATION: Ahmad v. Ahmed, 2018 ONCA 536

DATE: 20180611

DOCKET: C65016

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Nadeem Ahmad

Appellant

and

Samina Ahmed

Respondent

Nadeem Ahmad, acting in person

Robert A. Fernandes, for the respondent

Heard: June 8, 2018

On appeal from the
    judgment of Justice Thomas A. Bielby of the Superior Court of Justice, dated August
    24, 2017.

REASONS FOR DECISION

[1]

Mr. Ahmad, who is self-represented, appeals from the trial judgment
    granting the respondent, Ms. Ahmed sole custody of the three children with
    regular access to Mr. Ahmad on alternate Saturdays and Wednesdays, and other
    reasonable access at times they can agree to. The judgment also orders Mr.
    Ahmad to pay $622 per month in child support based on an imputed income of
    $31,600. Finally, the judgment orders Mr. Ahmad to make an equalization payment
    to Ms. Ahmed of $211,220.17.

[2]

The background to this appeal arises out of the marriage between Mr.
    Ahmad and Ms. Ahmed in August 2000 in Pakistan. They have three children from
    the marriage. They commenced immigration to Canada with the three children in
    2010 and arrived in August 2013. Days later, Mr. Ahmad left Canada. Ms. Ahmed
    and the three children remained, which the trial judge found to be the date of
    separation.

[3]

Mr. Ahmad returned to Canada some two years later in July 2015. In
    September 2015 he commenced Family Law proceedings seeking a divorce, custody,
    support, and equalization of the net family property. Ms. Ahmed in response
    made her own claims against him.

[4]

As we read Mr. Ahmads factum, as amplified in his oral submissions, the
    issues he raises in this appeal relate to either alleged errors of fact, or
    errors of fact and law. Mr. Ahmad does not appear to argue that the trial judge
    made any errors of law. Rather, he seems to be arguing that the trial judge
    made palpable and overriding errors of fact.

[5]

Specifically, Mr. Ahmad submits that the trial judge erred by: (i) not
    including certain hours for religious/festive occasions in his access time;
    (ii) including his Pakistan pension, and/or over-valuing this pension; and,
    (iii) attributing real property in Pakistan and jewelry for equalization
    purposes. He also appears to be alleging the trial judge was biased in favour
    of Ms. Ahmed.

[6]

We are not persuaded by Mr. Ahmads submissions. In our opinion he has not
    satisfied the standard of review necessary to warrant appellate intervention.
    That is to say, he has not demonstrated any palpable and overriding error
    regarding a material fact found by the trial judge.

[7]

We will first address the issues of Mr. Ahmads access to the children,
    the trial judges inclusion and valuation of his Pakistan pension to impute his
    income, and the inclusion and valuation of Pakistan property and jewelry to
    determine equalization of net family property. Here Mr. Ahmad must satisfy us
    that the trial judge made palpable and overriding errors that are sufficiently
    significant to vitiate his findings of fact. He must demonstrate to us that the
    error goes to the root of the trial judges finding of fact such that the fact
    cannot safely stand in the face of that error. He has failed to do so.

[8]

The trial judges conclusions regarding custody and access were made in
    the best interests of the children. His imputing the amount of income to Mr.
    Ahmad was necessary, in part, because the trial judge found Mr. Ahmad to be
    less than forthright in his evidence, thus requiring the trial judge to use the
    best evidence available to the court. Finally, the trial judges equalization
    findings, once again because of the lack of credibility he found in Mr. Ahmad,
    required the trial judge to look to third party confirmation. Neither the trial
    judges approach to his assessment, nor his findings of fact on these issues
    amount to errors on his part.

[9]

The trial judges analysis on all the issues was thorough, reasonable
    and grounded in the evidence available to him. We can find no reason to
    interfere with the proper exercise of his discretion. These grounds of appeal
    are dismissed.

[10]

As
    for Mr. Ahmads assertion of trial judge bias in favour of Ms. Ahmed, a review
    of the trial transcript and record reveals no evidence to support this. Indeed,
    it is apparent to us that the trial judge was careful to ensure that Mr. Ahmad
    had every opportunity to present his case. The trial judges conclusion that
    Ms. Ahmed was a more credible witness does not translate into bias.

[11]

Assessing
    the credibility of witnesses is within the strict realm of any trial judge,
    which affords any findings he made in this regard a high degree of deference on
    review. The test to demonstrate bias or any apprehension of bias is extremely
    high. Mr. Ahmad has not pointed us to anything that gives this court any reason
    to interfere with the trial judges findings. Stated simply, there was no bias
    demonstrated or any apprehension of bias.

[12]

The appeal is dismissed. The respondent is entitled to
    her costs of the appeal fixed at $6,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: B&M Handelman Investments Limited v. Drotos,
    2018 ONCA 581

DATE: 20180625

DOCKET: M49307 (C65474)

Paciocco J.A. (Motion Judge)

In the Matter
    of the Bankruptcy of Christine Drotos, of the City of Toronto, in the Province
    of Ontario

BETWEEN

B&M Handelman Investments Limited
, Flordale
    Holdings Limited, M. Himel Holdings Inc., 1530468 Ontario Ltd., Maxoren
    Investments, and Sheilaco Investments Inc.

Applicants (
Responding Party
)

and

Christine Drotos

Respondent

Eric Golden, for the moving party, Rosen Goldberg Inc.

P. James Zibarras, Leslie Dizgun, and Caitlin Fell, for
    the responding party, World Finance Corporation

David Preger, for the responding party, B&M
    Handelman Investments Limited

Adam J. Wygodny, for the responding party, Money Gate
    Investment Corp.

Miranda Spence, for the purchaser, Frederic P.
    Kielburger

Heard: June 13, 2018

On a motion for directions and leave to appeal from the
    order of Justice Sean F. Dunphy of the Superior Court of Justice, dated June 1,
    2018.

Paciocco J.A.:

OVERVIEW

[1]

Rosen Goldberg Inc. is the receiver (the Receiver) of property known
    municipally as 4 Birchmount Avenue, Toronto (the Birchmount Property). At all
    material times, the Birchmount Property was registered to Ms. Christine Drotos
    (the Debtor).

[2]

On June 1, 2018, Dunphy J. made an Approval and Vesting Order approving
    the Receivers sale of the Birchmount Property (the Order). The Order
    authorizes the transfer of the Birchmount Property to Mr. Frederic P.
    Kielburger (the Purchaser) free and clear of all mortgages.

[3]

On June 7, 2018, World Finance Corporation (World Finance), a
    mortgagee of the Birchmount Property, filed a notice of appeal challenging the
    Order. In its notice of appeal, World Finance asserts that its appeal was as of
    right pursuant to s. 193(b) of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B-3 (
BIA
). In the alternative, it sought leave to
    appeal the Order pursuant to s. 193(e).

[4]

If World Finance was appealing as of right, the Order would have
    automatically been stayed pending World Finances appeal pursuant to
BIA
,
    s. 195. This stay would have prevented the Receiver from completing the sale of
    the Birchmount Property, which was set to close on June 14, 2018.

[5]

On June 11, 2018, the Receiver brought the instant motion on an urgent
    basis seeking directions regarding World Finances appeal. The Receiver took
    the position that s. 193(b) did not apply and that no leave to appeal should be
    granted under s. 193(e). The Receiver sought an order declaring that the Order
    was not stayed by World Finances notice of appeal and approving the closing of
    the sale on June 14, 2018.

[6]

After denying an adjournment motion brought by World Finance, I abridged
    the time for service and heard the Receivers motion on June 13, 2018. At the
    conclusion of the hearing, I held that World Finance does not have an appeal as
    of right pursuant to s. 193(b). I denied leave to appeal pursuant to s. 193(e).
    And I also approved the sale pursuant to the Order. I indicated that reasons
    for my decision would follow in writing. These are my reasons.

THE
    RECEIVERSHIP AND THE APPLICATION FOR THE APPROVAL AND VESTING ORDER

[7]

The Birchmount Property is a partially constructed 12,900 square-foot
    home located in the Scarborough Bluffs neighborhood. At all material times, the
    Birchmount Property was vacant, in need of repairs, and unfit for occupancy.
    There were three mortgages on title

[8]

The first mortgagee, Pillar Capital Corporation (Pillar), claims that
    as of May 29, 2018 it was owed $2,534,582.27 under its mortgage.

[9]

The second mortgage is held by a group of corporations comprising the
    applicants in the proceedings below. B&M Handelman Investments Limited
    (B&M) is one of the second mortgagees. It claims that as of June 11,
    2018, $1,164,755.78 was owing under the second mortgage, excluding legal fees.

[10]

The
    third mortgage is held 69.9% and 30.1% by World Finance and Money Gate Mortgage
    Investment Corporation (Money Gate), respectively. World Finance alleges that
    the total amount owing under this third mortgage was approximately $6.7 million
    as of May 14, 2018.

[11]

On
    April 10, 2018, B & M applied, pursuant to BIA s. 243(1), for the
    appointment of a receiver. On April 13, 2018, the requested Appointment Order
    was made, appointing the Rosen Goldberg Inc. as receiver over the Debtors
    lands and premises, including the Birchmount Property.

[12]

The
    Appointment Order contains the usual Model Order clauses granting the Receiver
    the power to engage consultants and appraisers, market the property, and
    negotiate the terms and conditions of sale. The Appointment Order also permits
    the Receiver to report to, meet with, and discuss with affected Persons (as
    defined in the Appointment Order) as the Receiver deems appropriate and to
    share information subject to confidentiality terms. It permits the Receiver to
    sell the Birchmount Property with court approval and to apply for a vesting
    order to convey the property to a purchaser free and clear of encumbrances.

[13]

After
    obtaining the Appointment Order, the Receiver secured an appraisal of the
    Birchmount Property which set the value at $3.2 million. The Receiver
    considered different sale options and determined that an MLS listing process
    was the optimal method. After reviewing various listing proposals, it entered
    into a 90-day listing agreement with Chris Kelos of Re/Max Corbo & Kelos
    Realty Ltd. (Kelos). Kelos listed the Birchmount Property on the MLS on April
    30, 2018 at a sale price of $3.8 million.

[14]

On
    May 3, 2018, an unconditional offer to purchase for $2.5 million was submitted.
    The Receiver did not accept this offer.

[15]

On
    May 8, 2018, the Receiver received an unconditional offer to purchase from the
    Purchaser. Following negotiations, the Purchaser increased his offer to $3.45
    million, an amount higher than the appraised value. Nonetheless, it was evident
    that insufficient proceeds of sale would be generated by this offer to fully
    retire the encumbrances. In fact, B&M would suffer a shortfall and World
    Finance would recover nothing. The Receiver accepted this offer subject to
    court approval.

[16]

The
    Receiver then brought an application before Dunphy J. in the instant Debtors bankruptcy
    proceedings, seeking approval of the sale of the Birchmount Property. At the
    same time, the Receiver also applied for approval of the sale of four other
    properties from the separate bankruptcy proceeding of Comfort Capital. The sale
    approvals raised similar issues, but the two bankruptcies involve different
    debtors and different subsequent mortgagees. World Finance claims to be
    interested in both of the bankruptcies. Although the Receiver brought both
    applications at the same time, no formal consolidation order was made linking or
    joining the two applications. The form of receivership order in both cases is effectively
    identical.

[17]

With
    respect to the instant Debtors bankruptcy proceedings, the parties disputed
    who had the authority to speak in respect of the third mortgage on the Birchmount
    Property. World Finance appeared and opposed the Receivers application. Money
    Gate appeared and supported the Receivers position.

[18]

World
    Finances key complaint before Dunphy J. was that the Receiver failed to
    consult World Finance about the sale and marketing process and the listing
    price. In its view, had the Receiver discharged its duty, a higher purchase
    price would have resulted. In support of its assertion that the property was
    undervalued, World Finance relied on the opinion of a realtor who states that
    he would have listed the Birchmount Property at between $4 million to $4.5
    million, and would not have accepted an offer of $3.4 million.

THE DECISION OF DUNPHY J.

[19]

Dunphy
    J. granted the Order respecting the Birchmount Property. He considered the
    criteria in
Royal Bank of Canada v. Soundair Corp.
(1991), 4 O.R. (3d)
    1 (C.A.), [1991] O.J. No. 1137 and the procedure adopted by the Receiver in selling
    the property:

In each case, the first step the
    Receiver took was to seek appraisals. These are a necessary pre-condition to a
    Receiver having a sense of what the property being marketed is worth. The
    Receiver obtained two appraisals in respect of the High Point property, one
    appraisal in respect of the Bridge property, one appraisal for the Loyalist
    property, two for the Caldwell property, and one for the Birchmount property.

The Receiver also consider [
sic
] how best to market
    these properties. In considering that question, the Receiver had to have regard
    to the state of these properties. At least two of them were in a very
    challenging state [] The Birchmount property is a partially constructed shell
    with a roof that has a hole in it and has become a home for wild animals.

Among other things, the Receiver also had to consider the
    carrying costs of these properties in terms of accrued reality [
sic
]
    taxes, which are in arrears on many of the properties, and the state of the
    market and other relevant considerations.

After considering the matter, the Receiver determined that
    proceeding to market through the MLS process was the optimal process to follow
    in relation to the five properties that are the subject matter of these
    motions.

The Receiver also considered
    possible listing agents and in considering that question looked at the
    experience of the brokers considered, looked at their experience in the areas,
    considered their recommendations as to listing price and considered that in
    relation to appraisals

[]

In the case of the B&M receivership,
    which is to say the Birchmount property, an information package was prepared,
    there were online and advertising and email blasts, open houses, newspaper
    coverage was arranged

[20]

Justice
    Dunphy concluded that fair market value had been obtained. He referred to the realtors
    opinion of value that World Finance relied upon to support its position that a
    higher value could be obtained, stating that while this report had some helpful
    comments, it did not have any solid valuation evidence that I can attach
    weight to in it. Justice Dunphy concluded that the Receivers business
    judgment had been applied and informed by the appraisals responsibly sought.

[21]

He
    applied the
Soundair
principles to the argument that the Receiver
    failed to consult World Finance. He was not prepared to accept the criticism
    that the Receiver acted too quickly. In his view, the MLS marketing process was
    designed to obtain offers as soon as reasonably practicable and in each case
    multiple offers were received. Nor was Dunphy J. persuaded that the Receiver failed
    to consider the interests of all parties. He stated:

There has been some confusion about who those other parties are
    and how much their claims are. Who is entitled to speak for them has also been
    an issue in this case. Ultimately, however, the interests of all of the parties
    is the same. Their interest is in obtaining the highest and best price
    reasonably available.

[22]

Justice
    Dunphy dismissed the specific complaint that World Finance ought to have been
    consulted on the marketing process and given a greater degree of input,
    concluding as follows:

This objection runs into a number of factual walls. Firstly,
    the appraisals were obtained in this case and they were available to the
    creditors if they chose. The receivership order allowed the Receiver to share
    information with creditors subject to appropriate NDAs. At least some of the
    stakeholders did obtain the appraisals and signed NDAs. I cannot say that this
    was not available to others. Nobody in this case contacted the Receiver until
    the time came to begin the process of seeking court approval, which does not
    speak well for the level of interest they had in seeking to shape the process.

THE ISSUES

[23]

The
    issues on this motion are: (1) whether the proposed appeal of the Order is as of
    right pursuant to s. 193(b);
[1]
and (2) alternatively, whether leave to appeal should be granted pursuant to s.
    193(e). If the appeal is not as of right, and leave is not appropriate, the
    Receiver asks this court to approve the sale to the Purchaser, as provided for
    in the agreement of purchase and sale.

[24]

Section
    193 of the
BIA
provides, in relevant part:

Unless otherwise expressly provided, an appeal lies to the
    Court of Appeal from any order or decision of a judge of the court in the
    following cases:

[]

(b) if the order or decision is likely to affect other cases of
    a similar nature in the bankruptcy proceedings;

[]

(e) in any other case by leave of a judge of the Court of
    Appeal.

ANALYSIS

(1)

Subsection 193(b) does not apply

[25]

World
    Finance contends that it has the right to appeal the Order under s. 193(b). It
    claims that any order made in connection with its appeal of the Approval and
    Vesting Order related to the Birchmount Property will likely affect other cases
    of a similar nature relating to Approval and Vesting Orders made in the Comfort
    Capital bankruptcy.

[26]

World
    Finance contends that although there are two separate bankruptcies involved, in
    substance the application to approve the sale of the five properties was only
    one bankruptcy proceeding within the meaning of s. 193(b). It notes that the Receiver
    brought the applications together before the same judge. Each application raised
    the same course of conduct by the Receiver. And one set of reasons was
    provided. World Finance argues that it would be met with an issue estoppel
    argument if it raises the same issues in subsequent proceedings to approve
    vesting orders on other properties. It contends that s. 193(b) should be
    interpreted purposively, giving World Finance an appeal as of right so that it
    is not left, unfairly, without an avenue to challenge the Order.

[27]

First,
    I do not agree that s. 193(b) should be interpreted in the expansive manner
    that World Finance submits. In
Downing Street Financial Inc. v. Harmony
    Village-Sheppard Inc.
, 2017 ONCA 611, 49 C.B.R. (6th) 173, at para. 20,
    Tulloch J.A. described the clear direction in recent case law in favour of a
    narrow construal of the rights to appeal in ss. 193(a) to (d) of the
BIA
,
    citing
Re En Route Imports Inc.
, 2016 ONCA 247, 35 C.B.R. (6th) 1, at
    para. 5. This narrow construal is incompatible with World Finances position,
    and there are good reasons for it.

[28]

In
2403177 Ontario Inc. v. Bending Lake Iron Group Ltd.
, 2016 ONCA 225,
    396 D.L.R. (4th) 635, at para. 49, Brown J.A. explained that initially the
BIA
provided only for appeals as of right. The inclusion in 1949 of a leave to
    appeal provision removed the need for a broad interpretive approach to ss. 193(a)
    to (d). More importantly, the appeal as of right provisions should be read
    harmoniously with the
Companies Creditors Arrangement Act
, R.S.C.
    1985, c. C-36, which requires leave for all appeals from orders made under the
    statute.
[2]
Reading s. 193s appeal as of right subsections narrowly avoids disharmony
    between the two insolvency regimes.

[29]

In
Bending Lake
,

Brown J.A. explained at para. 32 that s. 193(b)
    applies where there is a real dispute that is likely to affect another case in
    the
same
bankruptcy proceedings. The Order that
    World Finance proposes to appeal was made in the instant Debtors bankruptcy
    and pertains only to this bankruptcy proceeding. The fact that the outcome of the
    proposed appeal could affect cases arising out of the Comfort Capital bankruptcy
    is insufficient to give rise to an appeal as of right. There is no appeal as of
    right in this case under s. 193(b).

[30]

Second,
    this outcome does not operate to unfairly deny World Finance an opportunity to
    challenge the Order that it says will likely affect other cases it will be
    involved in. This is because a party whose interest are likely to be affected
    in other case of a similar nature arising in other bankruptcy proceedings can
    move to protect those interests by seeking leave to appeal, where an appeal as
    of right is not available. Where leave is warranted in the circumstances, it
    will be granted.

[31]

I
    turn, then, to World Finances alternative position that leave to appeal should
    be granted under s. 193(e) in this case.

(2)

Leave to appeal should not be granted

[32]

The
    granting of leave to appeal under s. 193(e) is discretionary and contextual. The
    test for leave described by Blair J.A. in
Business Development Bank of
    Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115 O.R. (3d) 617, at
    para. 29, was adopted by a panel of this court in
Impact Tool & Mould
    Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of)
, 2013 ONCA
    697, at para. 3. The proposed appeal must:

a)

raise an issue that is of general importance to the practice in
    bankruptcy/insolvency matters or to the administration of justice as a whole,
    and is one that this [c]ourt should therefore consider and address;

b)

be
prima facie
meritorious; and

c)

[not] unduly hinder the progress of the bankruptcy/insolvency proceedings.

[33]

As
    Doherty J.A. noted in
Ravelston Corp. (Re)
, [2005] O.J. No. 5351
    (C.A.), 24 C.B.R. (5th) 256, at para. 28, the leave inquiry should begin with some
    consideration of the merits of the proposed appeal, for if the appeal cannot
    possibly succeed, there is no point in granting leave to appeal regardless of
    how many other factors might support the granting of leave to appeal.

[34]

World
    Finance argues that its proposed appeal is
prima facie
meritorious. It
    contends that the Receiver failed to consider World Finances interests, and that
    the process used was unfair because the Receiver did not consult with World
    Finance on the marketing process, or the price at which the Birchmount Property
    would be listed. It urges that Dunphy J. misapplied the
Soundair
principles
    in finding otherwise.

[35]

Specifically,
    World Finance claims that Dunphy J. erred in law when finding that the Receiver
    had considered World Finances interests by assuming that all parties had the
    same interest, namely, obtaining a higher sale price. It further submits that
    he erred in law in finding the process to have been fair by considering irrelevant
    or improper explanations for the Receivers failure to consult with World
    Finance about the marketing process and listing price.

[36]

In
    my view, World Finances grounds of appeal are not legitimately arguable points.
    They do not present a realistic possibility of success and therefore lack
prima
    facie

merit.

[37]

First,
    there is no reasonable prospect that fault could be found in Dunphy J.s
    conclusion that, in seeking the highest and best price reasonably available,
    the Receiver was considering the shared interest of all of the parties. World
    Finances argument that, as a fulcrum creditor, it had unique interests in the marketing
    strategy and list price that were not considered has no traction. Marketing
    strategy and list price are means to an end, namely, achieving the highest and
    best price reasonably available, the very thing that Dunphy J. considered.

[38]

World
    Finances claim that Dunphy J. considered irrelevant and improper explanations
    for the Receivers failure to consult directly with World Finance about the
    marketing and listing price for the Birchmount Property is also without merit.

[39]

World
    Finance has not presented any authority for the proposition that a receiver has
    a positive obligation to consult with subsequent mortgagees as to a particular
    sales process and the listing price.

[40]

Indeed,
    the Appointment Order in this case expressly permits the Receiver to report to,
    meet with, and discuss with affected Persons as the Receiver deems appropriate
    and to share information subject to confidentiality terms. The Receiver had
    discretion under the order to proceed as it did.

[41]

Moreover,
    even if a general duty to consult applied in this case, Dunphy J. was clearly
    entitled to come to the decision he did, for the reasons he expressed.

[42]

As
    he pointed out, in this case there was confusion as to the secured creditors
    true identities and who represented their interests. There were also fraud
    allegations at play, which explained why the Receiver was not more proactive in
    its dealings with certain creditors. Moreover, those creditors previously
    showed a low level of interest in seeking to shape the process. In these
    circumstances, Dunphy J. found that making the appraisals available to those
    creditors who chose to consult them was sufficient.

[43]

None
    of these factors are irrelevant or improper considerations. Dunphy J. was
    entitled to consider them. As Blair J.A. pointed out in
Regal Constellation
    Hotel Ltd. (Re)
(2004), 71 O.R. (3d) 355 (C.A.), [2004] O.J. No. 2744, at
    para. 23, courts exercise considerable caution when reviewing a sale by a
    court-appointed receiver and will interfere only in special circumstances. Moreover,
    defence is owed to the decision Dunphy J. made: 22.

[44]

Finally,
    I accept the Receivers submission that World Finances proposed appeal lacks
    merit for the simple reason that even if the Birchmount Property were to sell
    for the amount World Finance claims it could have achieved, World Finance would
    still receive nothing. World Finances process-based complaint is therefore an idle
    appeal. There is no material wrong it can complain of.

[45]

Even
    if World Finances proposed appeal had
prima facie

merit, I
    still would have denied leave to appeal, as neither of the other two leave to
    appeal requirements are satisfied.

[46]

World
    Finances proposed appeal does not raise an issue that is of general importance
    to the practice in bankruptcy matters or to the administration of justice as a
    whole. It is a fact-specific dispute about the propriety of this particular
    sale transaction.

[47]

In
    my view, granting leave to appeal would also unduly hinder the bankruptcy
    proceeding. If the sale was delayed, additional interest and costs payable on
    the first mortgage would have continued to accrue, serving only to further
    denude the second mortgagees position.

[48]

Moreover,
    the agreement of purchase and sale provided specific timelines for the
    obtaining of court approval and for the closing of the sale. It permitted
    postponement of the closing date for only 60 days after the original closing
    date. The sale transaction was originally scheduled to close on June 11, 2018 and
    was postponed until June 14, 2018. If leave to appeal had been granted, the
    additional delay required for the disposition of the appeal could have resulted
    in the loss of this transaction.

[49]

Accordingly,
    I denied leave to appeal pursuant to s. 193(e).

[50]

I
    granted the Receivers request to approve the sale under the agreement of
    purchase and sale because Dunphy J. found that the Receiver made efforts to
    obtain the best price and achieved the offer to purchase after considering the
    interests of all parties in a fair process that had integrity. Moreover, postponement
    of the sale would have created the prejudice described above.

DISPOSITION

[51]

For
    these reasons, I granted the Receivers motion. I declare that World Finance
    does not have an appeal as of right pursuant to s. 193(b) and hold that leave
    to appeal pursuant to s. 193(e) of the
BIA
should not be granted. The
    Order approving the closing of the sale to the Purchaser on June 14, 2018 is also
    approved.

[52]

Costs
    are assessed by a judge of the Superior Court of Justice, Commercial List in
    insolvency proceedings. I will not interfere with that judges discretion to do
    so, and therefore will make no costs order relating to the costs claimed by the
    Receiver and B&M.

[53]

Money
    Gate was not served with the motion but appeared and exercised its right of
    standing, as its interests were at stake. World Finance will pay costs, on a
    partial indemnity basis, to Money Gate in the amount of $2,000, inclusive of
    HST and disbursements.

[54]

The
    Purchaser also requested nominal costs. It did not play an active role in the
    proceedings. In my view, a costs award in favour of the purchaser is not
    warranted so I decline to make one.

Released: June 25, 2018 (D.M.P.)

David M.
    Paciocco J.A.

[1]
While World Finance raised the potential application of s. 193(c) in
    its factum, it did not seek to rely on that subsection in oral argument. In any
    event, reliance on that subsection would not have been tenable given World
    Finances emphasis on process-related errors:
2403177 Ontario Inc. v.
    Bending Lake Iron Group Ltd.
, 2016 ONCA 225, 396 D.L.R. (4th) 635, at para.
    54.

[2]

See also
Century Services Inc. v. Canada
    (Attorney General)
, 2010 SCC 60, [2010] 3 S.C.R. 379, at para. 24, where a
    majority of the Supreme Court held that the
BIA
and the
CCAA
should be read harmoniously to the extent possible.


COURT OF APPEAL FOR ONTARIO

CITATION: Beam (Re), 2018 ONCA 532

DATE: 20180608

DOCKET: C64494

Lauwers, Benotto and Miller JJ.A.

IN THE MATTER OF:  Michael Beam

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen F. Gehl, for the appellant, Michael Beam

Logan Crowell, for the respondent, Ontario Shores Centre
    for Mental Health Sciences

Justin Reid, for the respondent, Attorney General for
    Ontario

Heard: June 7, 2018

On appeal against the disposition of the Ontario Review
    Board dated, September 20, 2017, with reasons dated October 11, 2017.

REASONS FOR DECISION

[1]

The appellant appeals a disposition of the Ontario Review Board, in
    which the Board found the appellant to remain a significant threat to the
    safety of the public and ordered the appellant discharged subject to certain
    conditions. The appellant argues that the finding that he poses a significant
    threat to the safety of the public is unreasonable, and seeks an absolute
    discharge.

[2]

For the reasons that follow, we do not agree that the Boards finding
    was unreasonable and dismiss the appeal.

[3]

In 2007, the appellant was found not criminally responsible on account
    of mental disorder (NCR) on the charge of assault with a weapon. He had
    experienced auditory hallucinations telling him his father was a threat to the
    family, and had advanced on his father with a butcher knife. This was one
    incident in a pattern of threatening behaviour towards others. He was diagnosed
    with schizophrenia in 2004, and has also been diagnosed with cannabis use,
    polysubstance abuse, and narcissistic personality disorders. He has remained under
    the jurisdiction of the ORB since the index offence.

[4]

Since his initial disposition, the appellant has progressed from
    detention in secure units to a conditional discharge. The terms of the
    conditional discharge were relaxed in the most recent disposition, to require
    the appellant to report to Ontario Shores Centre for Mental Health Sciences
    (the Hospital) once a month and submit urine samples for the purpose of
    determining whether he had ingested drugs. The appellant argues this
    disposition was in error, as he no longer possesses a significant threat to the
    safety of the public.

[5]

It is common ground that in recent years the appellant has not engaged
    in violent or threatening behaviour. Earlier incidents of aggressive or abusive
    conduct (such as in 2009) were not linked directly to psychotic illness. His
    history of placements in community living have gone well. Although he has been
    returned to hospital on occasion, it has been because of drug use and never
    because of threatening or violent behaviour.

[6]

The basis for the Boards conclusion that he remains a threat to public
    safety is this: the Board found that were the appellant to be discharged
    absolutely, he would likely discontinue his antipsychotic medications, increase
    his cannabis use, and rapidly decompensate into a psychotic state. This would
    likely lead to a recurrence of violence similar to the index offence.

[7]

The appellant disagrees, and argues that it is speculative to conclude
    that, were he discharged absolutely, his use of cannabis would increase, leading
    to decompensation and a recurrence of violence.

[8]

However, there is a basis in the evidence for the Boards conclusion.
    Unlike the appellant in
Re Wall
, 2017 ONCA 713, the appellant has no
    insight into his need for medication. He has stated that he believes he does
    not require antipsychotic medication. He has not committed to continuing to
    take medication if not required to do so. In the opinion of his treating
    psychiatrist, it likely that the appellant would, in the absence of an order,
    discontinue medication and become psychotic in a short time frame.

[9]

The appellants use of cannabis is an additional complication. The
    evidence of the treating psychiatrist is that if he discontinues medication,
    the use of cannabis will accelerate the onset of psychosis. In fact, the
    evidence is that if the appellant increases his cannabis use to a daily basis,
    this will be a risk factor for decompensation and psychosis even if he does not
    discontinue medication. The conclusion that the appellant would likely increase
    his use of cannabis is supported in the evidence. He has said as much himself,
    and has a long history of failed drug use tests and is suspected of tampering
    with drug tests.

DISPOSITION

[10]

The
    appeal is dismissed.

P. Lauwers J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Berg v. Marks, 2018 ONCA 595

DATE: 20180628

DOCKET: C64185

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Terence Berg and Matilda Berg

Plaintiffs (Respondents)

and

Marilyn Susan Marks

Defendant (Appellant)

Allan Rouben, for the appellant

Eric O. Gionet and Joshua A. Valler, for the respondents

Heard: May 23, 2018

On appeal from the judgment of Justice Mary E. Vallee of
    the Superior Court of Justice, dated July 26, 2017, with reasons reported at
    2017 ONSC 4520.

Pepall J.A.:

[1]

The trial judge declared that the respondents had a right of way in, over,
    and upon a portion of the appellants property.  The appellant, who was self-represented
    at the trial of this Simplified Procedure action, asserts that the trial judge erred
    by failing to provide her with adequate assistance.  In addition, she submits
    that the trial judge improperly interpreted the scope of the easement and that,
    as a result of these errors, the judgment should be set aside.  For the reasons
    that follow, I would dismiss the appeal.

Background

[2]

The appellant and the respondents are neighbours.

[3]

The appellant has owned 7 Mill Street East in New Tecumseth, Ontario, since
    1991, first as co-owner and then as sole owner since 1995.  She carries on a
    restaurant/bar business at the premises.

[4]

The respondents have owned 9 Mill Street East since 1997.  Their
    property consists of a pizza shop in the front, an upper level apartment, and
    three apartment units in the back.

[5]

A laneway runs between the two properties.  It is described as Part 5 on
    the Reference Plan.  It abuts the building at number 7 on the east and number 9
    on the west.  At the end of the laneway lies a catch basin, which is connected
    by a lateral pipe that runs north to Mill Street East and connects to a
    municipal storm sewer.  The catch basin was built in approximately 1980.

[6]

The appellant owns the laneway, but the respondents have a right of way
    in, over and upon the laneway.  It is undisputed that the respondents have a
    right of way for ingress and egress to their property.  What is in dispute is
    the extent of the easement.  Does it extend to permit the respondents to maintain
    the existing drainage infrastructure, including a catch basin and a drainage
    pipe, to be located under the surface of the laneway?  The trial judge found
    that it did.

[7]

The parties had been living in a state of peaceful co-existence until
    2006, when Harold Clifford, the appellants partner, prevented Terence Berg,
    one of the respondents, from attempting to repair parts of the catch basin.
    Things got worse in 2010 when Clifford poured a concrete pad over the catch
    basin.  Apparently, the appellant was worried that the catch basin was a safety
    hazard due to an ill-fitting lid and that it exposed her to potential liability
    for personal injury, hence the decision to cover it with concrete.

[8]

Not surprisingly, the concrete pad rendered the catch basin inoperable.
    The respondents property experienced flooding.  Water pooled in the rear
    parking area and the laneway and entered the building that housed the three
    apartment units in the back.

[9]

In 2011, the respondents commenced an action against the appellant under
    the Simplified Procedure seeking a declaration of entitlement to a right in,
    over, and upon Part 5 and damages for the cost of reinstating the catch basin,
    the cost of repair work for the basement apartment, and loss of rental income.

Pre-Trial Proceedings

[10]

The
    action proceeded to trial but not before the parties had participated in five
    pre-trials.  On April 14, 2015, Master Brott addressed various pre-trial issues
    including ordering the respondents to deliver will-say statements.  She also
    directed that an engineer be retained to report on the optimal solution for the
    location of the catch basin to eliminate the pooling of water on the parties
    property.

[11]

The
    parties retained an engineer, William Heywood, who prepared a report, dated
    August 18, 2015.

[12]

At
    a subsequent pre-trial on November 2, 2015, Master Brott ordered that the
    respondents undertake certain work on their property to minimize the ponding.

[13]

Prior
    to the trial of the action that began on May 16, 2017, the appellant brought a
    motion for disclosure of certain documents and production of the respondents
    affidavit of documents.  In an endorsement, dated May 15, 2017, McCarthy J.
    dismissed the motion.  He wrote that affidavits of documents had been served,
    and discoveries had taken place.  He also wrote that undertakings were given and
    answered, and the action had been pre-tried five times.

[14]

Master
    Brott had ordered that the mode of trial be by ordinary rather than the summary
    trial procedure.

Trial Judges Reasons for Decision

[15]

In
    considering whether the respondents easement included drainage infrastructure,
    the trial judge considered the applicable legal principles and the history of
    the creation of the right of way.

[16]

She
    noted that in 1980, the Village of Tottenham (which has since been amalgamated
    and now forms part of the Town of New Tecumseth) created an easement by grant,
    being a right of way in, over and upon Part 5 for itself and the benefit of
    the owners of Parts 1, 6, and 12.  Thus, the respondents, being the owners of
    Part 6 (9 Mill Street East), had a right of way over Part 5.

[17]

The
    mechanics associated with the creation of the right of way consisted of two
    deeds, dated July 15, 1980, in which 341949 Ontario Limited transferred
    ownership of Part 5 to the Village.  341949 Ontario was the owner of Part 5,
    and its signing officers were Anne Golden and Peg Feehely, the spouse of James Feehely,
    the lawyer who prepared the legal documents creating the right of way.  On the
    same date, the Village transferred back to 341949 Ontario Limited Part 5 but
    reserved a right of way in favour of the [Village] for municipal purposes, in,
    over and upon Part 5 and subject to a right of way in favour of the owners
    from time to time of Parts 1, 6, and 12 in, over and upon Part 5.  Mr.
    Feehely registered the documents on August 7, 1980.

[18]

The
    trial judge relied on evidence of Mr. Feehely.  Mr. Feehely has practised law
    in Tottenham/New Tecumseth since 1975, and his office is located at 5 Mill
    Street East, next door to the appellant.  He testified that the right of way
    was granted to provide access to parking at the rear of numbers 5, 7, and 9
    Mill Street East.  Those properties required drainage because the level of the
    land at the rear was lower than that of the street.  Mr. Feehely obtained
    municipal permission to have a catch basin and lateral pipe installed in the
    laneway that would connect to the municipal storm sewer on Mill Street East.
    He had been the lawyer for the Town of New Tecumseth since 1991, and he
    believed there to be no written record of the work done in 1980.

[19]

By
    1995, the co-owners of 7 Mill Street East, which included Part 5, were the appellant
    and the appellants husband at the time, Mr. J. Marks.  On January 25, 1995, he
    transferred the property to the appellant, subject to the right of way.  Mr.
    Feehely was the appellants lawyer on the transaction.

[20]

Mr.
    Feehely testified that he saw the catch basin in the laneway working for its
    intended purpose because, in the early 1980s, he often used the laneway to
    access the back of his property for parking.  Water drained to the catch basin
    from the rear of numbers 5, 7, 9 and possibly 11 Mill Street East, and it had
    been a collecting point for water since 1980.  At the time of trial and with
    the advent of the concrete pad, the catch basin area had become a little pond,
    and he would no longer drive on it for fear of what might be under the water.

[21]

The
    trial judge concluded that the laneway was used to access parking, and the
    catch basin and lateral pipe located within the laneway provided drainage from approximately
    1980 until 2006, when Mr. Clifford first prevented the respondents from doing
    repairs.

[22]

The
    trial judge also interpreted the language of the grant using a contextual
    approach.  She determined that in, over and upon provided for the drainage
    infrastructure to be located under the surface of the laneway.  Similarly, she
    also concluded that the language upon permitted the owner of 9 Mill Street East
    to use the laneway to make repairs to the west side of the building and to
    access the apartments.

[23]

The
    trial judge then addressed whether the appellant had substantially interfered
    with the respondents right to use the laneway.  She traced the history and
    described how Mr. Clifford had first covered the catch basin lid with gravel in
    2009 and then, in November 2010, poured a concrete slab on top of it.  She
    found that he intended to make the catch basin inoperable for surface drainage
    from the respondents property and that he substantially interfered with the
    respondents right to use the laneway.  She found that his interference began
    in 2006 when he ordered the respondent, Terence Berg, to stop doing work that
    was required to maintain the laneway and catch basin and that the interference
    lasted for 11 years.

[24]

She
    therefore granted a declaration that work be performed to reinstate the catch
    basin so that the drainage function was restored and a declaration that the
    appellant not block the laneway.  She also awarded $211,491.60 in damages to
    the respondents.  As the action was commenced as a Simplified Procedure action,
    the damages were limited to $100,000.

Grounds of Appeal

[25]

The
    appellant advances two main grounds of appeal, which I will address in turn.

(a)

Procedural Fairness

[26]

First,
    she submits that the trial judge erred in failing to provide adequate
    assistance to her as a self-represented litigant, and as such, she was denied a
    fair trial.  The appellants procedural fairness argument is two-fold.

(1)

Mr. Feehely

(i)

The Appellants Position

[27]

First,
    the appellant asserts that the trial judge erred in permitting Mr. Feehely to
    testify, thus subjecting the appellant to a trial by ambush.

[28]

The
    appellant submits that under r. 76.03(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
governing
    affidavits of documents in Simplified Procedure actions, a party may not call
    as a witness a person whose name has not been disclosed in the partys
    affidavit of documents, unless the court orders otherwise.  Mr. Feehely was not
    disclosed in Schedule D of the respondents affidavit of documents.  That
    Schedule is to list the names of persons who might reasonably be expected to
    have knowledge of the matters in issue.  He was listed in Schedule D of the
    appellants initial affidavit of documents but not in the appellants fresh as
    amended affidavit of documents delivered at trial.  The appellant was alerted
    by counsel for the respondents some two weeks before trial that Mr. Feehely
    might be called as a witness at trial.

[29]

The
    appellant raised the issue of Mr. Feehelys evidence and the respondents
    failure to comply with rr. 76.03(2) and (3) at the commencement of trial and
    again on day two of the trial.  The trial judge indicated that she would
    address the appellants objection, but she never did.  The appellant submits
    that she suffered prejudice as a result.

[30]

Moreover,
    the appellant submits that Master Brott had ordered the respondents to deliver
    will-say statements by October 26, 2015 and that no will-say statement for Mr.
    Feehely, or indeed any other witness, was ever delivered.  The trial judge
    relied heavily on the evidence of Mr. Feehely, particularly with respect to
    determining the scope of the right of way.

[31]

The
    appellant also submits that much of Mr. Feehelys evidence was hearsay with no
    documentary evidence in support.  Had she known that he would be testifying,
    she could have obtained information from the Town, which is now the subject
    matter of her fresh evidence application.  It is her position that the evidence
    of Mr. Feehely ought to have been excluded.

(ii)

The Respondents Position

[32]

The
    respondents acknowledge that, although they served an affidavit of documents,
    Mr. Feehely was not listed in any Schedule D.  That said, they submit that the
    appellant was already aware prior to trial that Mr. Feehely was a person who
    might reasonably be expected to have knowledge of matters in issue in the
    action.  He was the author of the registered instruments that created the
    right of way; he was, at the time of her purchase of the property, the
    appellants own lawyer; and he was listed in Schedule D of the appellants original
    affidavit of documents.

[33]

Moreover,
    on May 1, 2017, two weeks prior to the commencement of the trial, the respondents
    had advised the appellant of anticipated witnesses, which included Mr.
    Feehely.  There was no surprise.

[34]

As
    for the will-say statements, the respondents submit that although directed to
    do so, neither of the parties exchanged will-say statements.  The matter was
    pre-tried three more times after Master Brotts direction, and the issue was
    never raised again.  Master Brott does not refer to will-say statements in any subsequent
    pre-trial conference reports.  The respondents note that the first time the appellant
    raised any complaint regarding the absence of will-say statements was in her
    appeal materials.

(iii)

Analysis

[35]

I
    am not persuaded that the appellant was denied a fair trial as a result of the
    admission of Mr. Feehelys evidence.

[36]

The
    Simplified Procedure rules are designed to reduce the cost of litigating claims
    of modest amounts by reducing the amount of procedure available in such cases: Derek
    McKay & Michael McGowan, eds.,
Watson & McGowans Ontario Civil Practice
    2018
(Toronto: Thomson Reuters, 2018), at p. 1503.  An affidavit of
    documents under the Simplified Procedure requires a list of the names and
    addresses of persons who might reasonably be expected to have knowledge of
    transactions or occurrences in issue in the action.  Rule 76.03(3) provides that
    at the trial of the Simplified Procedure action, a party may not call as a
    witness a person who has not been disclosed in the partys affidavit of
    documents or any supplementary affidavit of documents, unless the court orders
    otherwise.  With a summary trial under the Simplified Procedure, the examinations-in-chief
    of witnesses are provided by affidavit, and cross-examinations and oral
    argument are time limited.  Typically, a summary trial takes one day.  A
    Simplified Procedure action may also proceed by ordinary trial, as it did in
    this case.

[37]

For
    the Simplified Procedure Rules to operate effectively, it is imperative that parties
    comply with r. 76.  Due to the failure to include Mr. Feehely as a witness in
    Schedule D of the respondents affidavit of documents, there was non-compliance
    with the rule.

[38]

Arguably,
    this might be fatal.  However, as I will explain, given the circumstances
    surrounding the admission of Mr. Feehelys evidence and the lack of any real
    prejudice, there was no miscarriage of justice.

[39]

Counsel
    for the respondents understood that the respondents former counsel had advised
    the appellant of the witnesses in anticipation of the November 2016 trial
    sittings.  At the commencement of the trial in May 2017, he so advised the
    trial judge and indicated that he would endeavour to produce evidence of this
    on day two of the trial.  He confirmed that he himself had sent the appellant a
    list of witnesses two weeks before the May 2017 trial commencement date.

[40]

Certainly,
    the appellant knew that Mr. Feehely was a person who had knowledge of the
    subject-matter of the action as she included his name in her original affidavit
    of documents.

[41]

Prior
    to the trial resuming on day two, the respondents counsel had a discussion
    with the appellant and Mr. Clifford.  When the trial resumed, counsel advised
    the trial judge that the appellant was ready to proceed and to finish with Mr.
    Feehelys evidence.  In these circumstances, counsel did not file any evidence
    of any advice by the respondents prior counsel that was given to the appellant.
     In any event, no such correspondence forms part of the trial record.  When the
    appellant again raised the issue of notice with the trial judge, the trial
    judge asked the appellant to remind her after the appellant completed her
    cross-examination of Mr. Feehely as a witness and we can address it then.
    The appellant never raised the issue again during the remainder of the trial
    nor in her closing submissions.  Neither did the trial judge.

[42]

It
    would have been preferable had the trial judge reminded the appellant of the
    issue.  That said, the appellant never said she needed more time to prepare and
    her willingness to proceed with the examination of Mr. Feehely on day two
    suggests that an adjournment was not required.  More importantly, based on the
    transcript, it would appear that the appellants desire had been to obtain
    discovery rights against the respondents witnesses including Mr. Feehely, a
    right which was unavailable to her in any event.

[43]

Furthermore,
    there was no real prejudice that arose from Mr. Feehely being a witness.

[44]

As
    stated by this court in
MacKenzie v. Matthews
(1999), 46 O.R. (3d) 21
    (C.A.), at para. 8, [T]he grant of an easement includes a grant of ancillary
    rights which are reasonably necessary to the use and enjoyment of the easement
    which was contemplated by the grantor. In that case, the court found that both
    the installation and maintenance of a dock and parking were ancillary rights
    that were reasonably necessary to the use and enjoyment of a right of way.

[45]

In
    this case, the grant of the easement was for self-evident ingress/egress along
    the laneway and to access parking spaces.  A submerged laneway a right of way
    does not make. Maintaining an operational driveway easement that is unimpeded
    by significant pools of water is an ancillary right that is reasonably
    necessary to the use and enjoyment of the easement.  As such, the drainage
    infrastructure, including the catch basin and lateral drainage pipe, would
    similarly constitute an ancillary right that was reasonably necessary for the
    use and enjoyment of the right of way.

[46]

Moreover,
    the language of the grant in favour of the respondents  in, over and upon  is
    broad and allows for such a construction.  See
Kendrick v. Martin
, 2012
    ONCA 711, 23 R.P.R. (5th) 1. Similarly, the trial judge found that the language
    of the grant upon permitted the owner of 9 Mill Street East to use the
    laneway to make repairs to the west side of the building and to access the
    apartments.

[47]

Mr.
    Feehelys evidence was not essential to reach any of these determinations.  Accordingly,
    quite apart from the fact that the appellant knew Mr. Feehely was a person who
    might reasonably be expected to have knowledge of the matters in issue as she
    had originally included him in Schedule D of her Affidavit of Documents, the
    appellant suffered no prejudice from the failure to include Mr. Feehelys name
    in the respondents Affidavit of Documents.

[48]

The
    trial judge also cannot be faulted for failing to deal with the absence of any
    will-say statements because this was never mentioned at trial and she did not
    possess the Masters order that addressed this issue.  There would have been no
    reason for the trial judge to raise this issue with the appellant, and
    furthermore, the appellant herself had also not delivered any will-say
    statements.

[49]

I
    also reject the submission that the trial judge improperly relied on hearsay
    evidence from Mr. Feehely.  Mr. Feehely testified on his personal observations
    and discussions in the drafting and registration of the easement; his
    involvement with the construction of the catch basin; and his personal
    experience with the laneway.

[50]

In
    conclusion, I do not accept this element of the appellants procedural fairness
    ground of appeal.  The trial judge tried to assist the appellant in this
    Simplified Procedure action.  Indeed, the trial took ten days to complete, and
    much time was consumed in providing guidance to the appellant.

(2)

Master Brotts orders

[51]

The
    second issue relating to procedural fairness is the appellants assertion that
    the trial judge erred in her treatment of Master Brotts pre-trial orders.

(i)      The
    Appellants Position

[52]

The
    appellant asserts that the respondents failed to undertake the work ordered by
    Master Brott, and when the appellant sought to introduce Master Brotts orders
    into evidence, the trial judge refused the request and declined to consider
    them.  The trial judge also declined to permit the appellant to cross-examine
    the respondent, Mr. Berg, on Master Brotts orders.

(ii)     The Respondents Position

[53]

The
    respondents position was that the Masters orders were made with a view to
    settlement and therefore inadmissible.

(3)

Analysis

[54]

The
    trial judge accepted the respondents position.  The trial judge had concerns
    that the orders were made to help the parties reach a settlement and, as such,
    should not form part of the record.  This was a reasonable concern.  In her
    November 2, 2015 report, the Master ordered that the case be removed from the
    trial list, stating, The parties are taking steps over the next 6 months to
    try to resolve their differences.  She then proceeded to outline remedial and
    maintenance work the parties were to undertake on their properties and she appointed
    an engineer to report on the optimal solution for the location of the catch
    basin so as to eliminate the pooling of water.  The trial judge determined that
    the Master did not have authority to appoint an expert to testify at trial, and
    so she assumed that he was appointed to assist the parties in settling the
    matter.  At trial, the appellant acknowledged that Master Brott was attempting
    to get the parties to resolve the matter.

[55]

Recognizing
    that the appellant was self-represented and that she had expected the engineer,
    Mr. Heywood, to testify at trial, the trial judge felt that there would be
    trial unfairness if Mr. Heywood was not permitted to testify.  She therefore
    permitted Mr. Heywood to give evidence on what he considered to be the optimal
    solution for the catch basin.  Mr. Heywood did deliver a report; he did testify
    at trial; and he did provide his engineering opinion regarding the question
    that Master Brott had requested that he answer, namely, the optimal location
    for the catch basin.

[56]

In
    addition, as a reasonable compromise, the trial judge permitted the appellant
    to conduct extensive cross-examinations of the respondent (Terence Berg), the
    respondents expert (Mr. Kuntze), and Mr. Heywood on the work that the
    respondents did or did not do to enhance the condition of the respondents
    property but all without reference to the specifics of the Masters orders.

[57]

In
    her submissions, the appellant stressed that she relied on Mr. Heywoods
    evidence.  In his testimony, Mr. Heywood agreed that Mr. Kuntzes approach
    would provide positive drainage from the easement to drain the water.  And when
    asked what the optimal solution was, he responded, [T]he simplest solution is
    Mr. Kuntzes connection of a catch basin to the towns sewer.  He was then
    asked:

Q.      And taking all the circumstances, not just the
    simplest, but looking at the contours, the topography, the existing catch
    basin, taking those considerations into account, is Mr. Kuntzes proposal the
    optimal solution in all the circumstances of this case?

A.      Yes.

[58]

Accordingly,
    even if one accepted that the trial judge ought to have permitted evidence of
    Master Brotts orders, they would have had no impact, in that Mr. Heywoods and
    Mr. Kuntzes opinions were the same: the optimal solution was to keep the catch
    basin in the existing location with connection to the Towns sewer.

[59]

In
    conclusion, I do not accept the appellants submissions on trial fairness as
    they relate to Master Brotts orders.

(b)

Interpretation of Easement

[60]

The
    second issue raised by the appellant is that the trial judge erred in failing
    to recognize that the criteria for establishment of the right of way that
    includes a right to drainage have not been met.  She submits that the dominant
    and servient owners were not separate.

[61]

I
    see no error on the part of the trial judge.  The evidentiary record
    established that, when the right of way was created, the dominant and servient
    owners differed.  Furthermore, this defence was never pleaded.

Fresh Evidence

[62]

I
    would also dismiss the fresh evidence application.  The appellant proffers fresh
    evidence from the Village to show an absence of evidence surrounding the 1980
    transactions with the Village of Tottenham.  Mr. Feehely testified that there
    was no written record and that, with the amalgamation, many documents were lost.
    The tests in
Palmer v. R.,
[1980]
    1 S.C.R. 759;
and
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208,
are not met.
    The information would have no impact on the outcome of the appeal.

Disposition

[63]

For
    these reasons, I would dismiss the appeal with costs of $35,000, inclusive of
    disbursements and applicable tax, to be paid by the appellant to the
    respondents as agreed.

Released:

SEP                                                 S.E.
    Pepall J.A.

JUN 28 2018                                    I agree K.
    van Rensburg J.A.

I
    agree David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bertolli v. Toronto (City), 2018 ONCA 601

DATE: 20180628

DOCKET: C64833

Simmons, Huscroft and Miller JJ.A.

BETWEEN

John P. Bertolli, Norma K. Bertolli and

Kathleen R. Tomlinson

Plaintiffs

(Appellants)

and

City of
    Toronto and

John Doe
    Maintenance Company

Defendants

(Respondents)

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Heard and released orally: June 22, 2018

On appeal from the order
    of Justice Lederer of the Superior Court of Justice, dated December 15, 2017.

REASONS FOR DECISION

[1]

Following the expiry of the limitation period for damages arising from
    an accident caused by alleged non-repair of a highway (a pothole), a Master
    permitted the respondents to amend their Statement of Claim to substitute the
    Regional Municipality of York and Brennan Paving and Construction Ltd. (the substituted
    defendants) for the originally named defendants (the City of Toronto and John
    Doe Maintenance Company) based on misnomer.

[2]

Although the site of the accident as identified in the Statement of
    Claim was not particularized beyond alleging that it occurred on McCowan Road
    in the City of Toronto, the Master concluded that the substituted defendants
    would have known they were the intended defendants upon reading the Statement
    of Claim. He assumed that the substituted defendants would have knowledge of a Notice
    of Claim delivered to them within days of an alleged accident, which identified
    the precise location of the alleged accident at a particular point on McCowan
    Road, which was in the Regional Municipality of York.
[1]
(McCowan Road traverses both the City of Toronto and Regional Municipality of
    York.)

[3]

Relying on assumed knowledge of the Notice of Claim and misnomer, the Master
    permitted the amendment.

[4]

On appeal to the Superior Court by Brennan, the motion judge set aside
    the Masters order in its entirety. The respondents appeal from the motion
    judges order.

[5]

The appeal is dismissed. The delivery and content of the Notice of Claim
    were facts extraneous to the original accident, and not a record made by a participant
    or observer at the time of the accident who was in some way connected to the
    substituted defendants. Moreover, even when read in combination, the Notice of
    Claim and Statement of Claim were not capable of supporting an inference that
    the substituted defendants were the intended defendants. Absent reference to
    the pothole in the Notice of Claim and absent particulars of the precise location
    of the accident alleged in the Statement of Claim, the reasonable reader could
    not
know
, without further inquiry, that the documents referred to the
    same accident. Put simply, the Masters inference that the substituted
    defendants would know they were the intended defendants was not available on
    any reasonable view of the evidence. The Masters order was properly set aside.

[6]

Further, the motion judge did not err in setting aside the Masters
    order as against the Regional Municipality of York at the request of Brennan.
    Evidence on the motion indicated Brennan is contractually bound to defend and
    indemnify the Regional Municipality of York from claims such as this.

[7]

The appeal is dismissed.

[8]

Costs of the appeal are to Brennan, on a partial indemnity scale fixed
    in the amount of $6,000, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.

[1]
The Notice of Claim identified the City of Markham as the relevant
    municipality. Markham forwarded the Notice to the Regional Municipality of York
    who, in turn, forwarded it to Brennan.


COURT OF APPEAL FOR ONTARIO

CITATION: Boodhoo v. Manuel, 2018 ONCA 603

DATE: 20180628

DOCKET: C64184

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Alana Boodhoo and Janet
    Boodhoo

Plaintiffs/Appellants

and

Marivic
    Manuel, Albert Manuel and

Fernando
    Padilla

Defendants/Respondents

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Heard and released orally: June 22, 2018

On appeal from the
    judgment of Justice Laura Bird of the Superior Court of Justice, dated July 17,
    2017.

REASONS FOR DECISION

[1]

The trial judge dismissed the Boodhoos claims against their neighbours,
    the Manuels, arising from the Manuels installation of a furnace and a hot
    water heater with venting on the side of the Manuels house. Among other things,
    the Boodhoos claimed that emissions from the side venting are: (1) obnoxious;
    (2) created fumes and vapours that caused one of the Boodhoos to feel ill; (3)
    caused an ice buildup on their walkway; and (4) had the potential to cause a
    future danger to the siding of their house.

[2]

The proceeding was commenced by application but converted by order to an
    action. Prior to the delivery of the Statement of Claim, the Manuels moved the
    venting to the back of their house.

[3]

The trial judge analyzed the Boodhoos claims as a claim in nuisance.
    She found that the Boodhoos complaints did not rise to the level of being a
    substantial interference with the Boodhoos enjoyment of their property. In
    particular, she found that: (1) the Boodhoos expert had not conducted any
    testing concerning carbon dioxide and other gas emissions; (2) the claims of
    feeling ill, were bald and not supported by medical evidence; (3) any ice
    buildup was not significant; and (4) the claims about future damage to the
    exterior of the house were speculative. She dismissed the action.

[4]

The Boodhoos do not appeal the dismissal of their claim for damages.
    Rather, they appeal from the dismissal of their claim for a mandatory order
    requiring the Manuels to move the venting to the top of their house.

[5]

We see no merit in this appeal. To the extent that the legal basis for
    the appellants claim rested in nuisance, the trial judge made no errors in law
    or palpable and overriding errors of fact in assessing their claim. Absent a
    finding of nuisance, the appellants failed to demonstrate any legal basis for
    issuing a mandatory order. On our reading of the trial judges reasons, the
    issues in the order directing the trial of an action were subsumed within her reasoning
    and finding that nuisance was not established.

[6]

The appeal is dismissed.

[7]

Costs of the appeal are to the respondents, on a partial indemnity scale
    fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brozmanova v. Tarshis, 2018 ONCA 523

DATE: 20180608

DOCKET: C64570

Brown, Huscroft and Trotter JJ.A.

BETWEEN

Eva Brozmanova

Plaintiff (Appellant)

and

Lorne Marvin Tarshis and Jennifer Brown

Defendants (Respondents)

Richard Parker, for the appellant

Andrew Kalamut, for the respondents

Heard: May 18, 2018

On appeal from the order of Justice Patrick J. Monahan of
    the Superior Court of Justice, dated November 1, 2017, with reasons reported at
    2017 ONSC 6559.

BROWN J.A.:

I.

OVERVIEW

[1]

The appellant, Eva Brozmanova, appeals from the order of the motion
    judge striking out her statement of claim, without leave to amend, on the basis
    that her action was commenced beyond the applicable limitation period and
    disclosed no reasonable cause of action.

[2]

In her statement of claim, Ms. Brozmanova sought damages of $1.1 million
    from the respondents, Dr. Lorne Tarshis, a plastic surgeon, and Jennifer Brown,
    the daughter of Dr. Tarshis and an employee in his medical practice. Ms.
    Brozmanova had been employed for several years as a laser technician in Dr.
    Tarshis practice.

[3]

Ms. Brozmanova pleads that Dr. Tarshis performed surgical procedures on
    her, for which she paid him directly as the services fell outside of those
    covered by the Ontario Health Insurance Plan (OHIP). However, she alleges that
    in 2009 she learned Dr. Tarshis had submitted to OHIP charges for treating her
    for two conditions: ataxia and ptosis. Ms. Brozmanova pleads that she never
    suffered from those conditions and the claims submitted by Dr. Tarshis for them
    were fraudulent. She contends that she contacted OHIP in 2009 and was told the entries
    for those conditions would be removed from her medical record.

[4]

According to the statement of claim, in April 2015 Ms. Brozmanova learned
    from OHIP that the two entries remained on her medical record. She pleads that
    as a result of Dr. Tarshis submitting these fraudulent claims sometime before
    2010, she has not been able to obtain health insurance to travel outside of
    Canada. She seeks damages for the resulting pain and suffering and punitive
    damages. Further, she alleges Ms. Brown aided and abetted Dr. Tarshis in filing
    the fraudulent charges with OHIP.

[5]

The respondents moved under rules 21.01(1)(a) and (b) to strike out the
    statement of claim. No evidence was filed on the motion.

[6]

The motion judge granted the motion to strike on two grounds: (i) under
    rule 21.01(1)(a), on the basis that the action was commenced outside the
    applicable limitation period, which began to run in 2009, and therefore had no
    chance of success should it proceed to trial; and (ii) under rule 21.01(1)(b),
    on the basis that the claim disclosed no reasonable cause of action because Ms.
    Brozmanova had failed to plead a constituent element of the tort of civil fraud
     i.e., that she had acted or failed to act on the basis of representations by
    Dr. Tarshis.

[7]

Ms. Brozmanova appeals. She submits that the motion judge erred in his
    assessment of the law of limitations and the test for civil fraud.

[8]

For the reasons that follow, I would dismiss the appeal.

II.

THE PROCESS ADOPTED BY THE RESPONDENTS

[9]

Before dealing with the merits of the appeal, some comments are in order
    about the procedure adopted by the respondents to strike out Ms. Brozmanovas
    claim under rules 21.01(1)(a) and (b).

[10]

The
Rules of Civil Procedure
make available two sets of procedural devices
    by which a party can seek to dispose finally of a proceeding on a contested
    basis.

[11]

One
    set is evidence-based, under which the parties adduce evidence by various means,
    on the basis of which the court decides whether to grant or dismiss a
    proceeding. The
Rules
permit or offer several standard evidence-based procedural
    devices by which to obtain such a final adjudication on the merits: (i) the
    conventional trial; (ii) the hybrid trial; (iii) two forms of summary judgment
     rules 20.04(2)(a) and 20.04(2)(b); and (iv) a rule 38 application.

[12]

The
    second set of procedural devices enables a party to ask the court to determine
    a question of law that may dispose of all or part of a proceeding. These
    law-based devices include: (i) a rule 22 special case; (ii) rule 21.01(1)(a),
    where a question of law is raised by a pleading; and (iii) rule 21.01(1)(b),
    where a pleading discloses no reasonable cause of action or defence.

[13]

The
    law-based character of the devices available under rules 21.01(1)(a) and (b) is
    reinforced by the limits placed on the use of evidence on motions brought under
    those rules. No evidence is admissible on a no reasonable cause of action
    motion; nor is evidence admissible on a question of law motion, except with
    leave of the judge or on consent of the parties: rule 21.01(2).

[14]

The
    rationale for these prescriptions is a simple one: the allegations asserted in
    the pleading, which the court must accept as provable at trial, are sufficient
    to determine the question of law or whether the pleading discloses a cause of
    action or defence recognized by law: see
Hunt v. Carey Canada Inc.
,
    [1990] 2 S.C.R. 959, at pp. 980, 988 and 990-991. No further facts are required
    to determine the legal sufficiency of the claim.

[15]

In
    the present case, Dr. Tarshis was sued for conduct as a medical practitioner.
    He and Ms. Brown are represented by a law firm with long experience in
    representing medical practitioners. They sought to dismiss Ms. Brozmanovas
    action relying on two law-based rules: 21.01(1)(a) and (b).

The question of law under rule 21.01(1)(a)

[16]

The
    question of law the respondents raise under rule 21.01(1)(a) is that Ms.
    Brozmanova commenced her action outside of the two-year limitation period.

[17]

Relying
    on rule 21.01(1)(a) to advance a limitation period defence is a problematic use
    of the rule. Some decisions of this court characterize the issue of whether a plaintiff
    has commenced a proceeding within the limitation period as one involving a
    question of fact:
Pepper v. Zellers Inc.
(2006), 83 O.R. (3d) 648
    (C.A.), at para. 19; and
Arcari v. Dawson
, 2016 ONCA 715, 134 O.R.
    (3d) 36, at para. 9, leave to appeal refused, [2016] S.C.C.A. No. 522. Others
    describe it as involving a question of mixed fact and law:
Salewski v.
    Lalonde
, 2017 ONCA 515, 137 O.R. (3d) 762, at para. 45; and
Ridel v.
    Goldberg
, 2017 ONCA 739, at para. 12. Regardless, it does not involve a
    question of law.

[18]

In
    the basic case, the court must ascertain the day on which the claim was
    discovered:
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, s. 4
    (the
Limitations Act
). This, in turn, requires making two findings
    of fact: (i) the day on which the person first knew of the four elements
    identified by s. 5(1)(a)(i)-(iv) of the
Limitations Act
;
[1]
and (ii) under s. 5(1)(b), the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in s. 5(1)(a). The earliest of the two
    dates is the date on which the claim is discovered: s. 5(1).

[19]

The
    analysis required under s. 5(1) of the
Limitations Act
generally
    requires evidence and findings of fact to determine. It does not involve a
    question of law within the meaning of rule 21.01(1)(a).

[20]

Yet,
    here the respondents invoked a law-based rule to establish a largely fact-based
    defence. I recognize, as respondents counsel submits, that some jurisprudence exists
    that has allowed a defendant to resort to rule 21.01(1)(a) to determine its
    limitations defence where it is plain and obvious from a review of a statement
    of claim that no additional facts could be asserted that would alter the
    conclusion that a limitation period had expired: see the commentary on rule
    21.01(1)(a) in Todd. L. Archibald, Gordon Killeen & James C. Morton,
Ontario
    Superior Court Practice, 2018
(Toronto: LexisNexis Canada, 2017), at p.
    1128. See also Paul M. Perell & John W. Morden,
The Law of Civil
    Procedure in Ontario
,

3d ed. (Toronto: LexisNexis Canada, 2017),
    at p. 611.

[21]

However,
    courts must always remember that permitting a defendant to move under
    21.01(1)(a) to establish a limitations defence could prove unfair to a
    plaintiff, especially a self-represented one. By selecting rule 21.01(1)(a) as
    the procedural means to adjudicate its fact-based limitations defence, a
    defendant puts a plaintiff in the position where she cannot, as of right, file
    evidence to explain when she discovered her claim. Instead, she must seek leave
    of the court.

[22]

A
    plaintiff who risks the dismissal of her action on the basis of a limitations
    defence should not have to ask a court for permission to file evidence on the
    issue of when she discovered her claim. She should be entitled to do so as of
    right. It is unfair for a defendant to attempt, tactically, to deprive her of
    that right and put her to the unnecessary expense (and risk) of asking
    permission to do so.

[23]

Notwithstanding
    the jurisprudence that opens the rule 21.01(1)(a) door to some efforts to prove
    a limitations defence, in my respectful view such an approach risks working an
    unfairness to a responding plaintiff. Requiring a defendant to move under an
    evidence-based rule  either rule 20 (summary judgment) or rule 51.06(2) (concerning
    admissions of the truth of facts in a pleading)  avoids such potential
    unfairness and is to be preferred.

No reasonable cause of action under rule 21.01(1)(b)

[24]

The
    respondents also invoked rule 21.01(1)(b) to dismiss Ms. Brozmanovas claim. As
    noted, the motion judge accepted their submission that Ms. Brozmanova had
    failed to plead a constituent element of the tort of civil fraud  i.e., that
    she had acted or failed to act on the basis of representations by Dr. Tarshis.

[25]

Rule 21.01(1)(b) focuses on the
legal
sufficiency of a plaintiffs pleading. As described
    by Perell & Morden
,
at p. 614:

The focus of the motion is the substantive legal adequacy of
    the claim or defence. The essence of the motion is that the defendants
    wrongdoing as described in the statement of claim is not a violation of the
    plaintiffs legal rights, with the result that the plaintiff is not entitled to
    a remedy even if he or she were able to prove all the material facts set out in
    the statement of claim. [Footnotes omitted.]

[26]

Put
    another way, rule 21.01(1)(b) enables a defendant, before pleading over, to
    move to strike out a claim on the basis that it is plain and obvious that the
    plaintiff is not advancing a legally sufficient claim, even if all the facts
    she pleads can be proved at trial. As a result, the appropriate time for a
    defendant to move under the rule usually is before filing its statement of
    defence. That is because by filing a statement of defence, a defendant usually
    signals that the plaintiff has advanced a legally sufficient claim which the
    defendant intends to resist on the grounds set out in the statement of defence.
[2]

[27]

In
    the present case, the respondents delivered a statement of defence, to which
    Ms. Brozmanova replied. In their defence, the respondents denied, at some
    length and in considerable detail, Ms. Brozmanovas allegations of fraud.

[28]

The
    respondents did not plead that Ms. Brozmanova had failed to allege a
    constituent element of the tort of civil fraud. On the contrary, in paras. 23
    and 24 of the statement of defence, Dr. Tarshis denied that he made any representation
    to Ms. Brozmanova or that he intended for her to act upon or otherwise rely on
    any of the billing forms submitted to OHIP. That is to say, the respondents
    joined issue with Ms. Brozmanova on the allegations she asserted and denied
    them, as a matter of fact. Their statement of defence did not call into
    question the legal sufficiency of her pleading.

[29]

In
    those circumstances, the respondents reliance on rule 21.01(1)(b) was
    inappropriate  they were disputing the material facts alleged by Ms.
    Brozmanova, not the legal sufficiency of her claim.

III.

ANALYSIS

[30]

Given
    that the respondents joined issue with Ms. Brozmanova in their pleading and
    advanced fact-based, not law-based, arguments to dismiss her claim, their
    selection of rule 21.01(1) procedural devices was misplaced. The respondents
    were essentially seeking summary judgment dismissing the action without
    resorting to rule 20, which would have required them to file some evidence and
    allowed Ms. Brozmanova to file her own in response.

[31]

That
    said, Ms. Brozmanova was represented by counsel on the motion. Although Ms.
    Brozmanova raises some concerns about the process below, she does not advance
    as a stand-alone ground of appeal any irregularity in the respondents use of
    rule 21.01(1) to strike out her statement of claim. In those circumstances and
    given the content of her statement of claim, I see no substantial wrong or
    miscarriage of justice resulting from the respondents reliance on rule
    21.01(1) to challenge Ms. Brozmanovas claim.

[32]

I
    reach that conclusion because in her statement of claim, Ms. Brozmanova
    pleaded, at paras. 8-9 and 15-16:

In 2009, as a result of a fractured ankle, the Plaintiff was
    contacted by her Insurance company who wanted her medical history.

Upon obtaining her medical history, she found that charges had
    been submitted to OHIP claiming that she had Ataxia and Ptosis and was treated
    for [same] by Tarshis.

When the Plaintiffs insurance company learned of these two
    conditions, they claimed that her broken ankle was caused due to her droopy
    eyes and inability to walk properly. This was not true.

The Plaintiff immediately contacted OHIP to complain to this
    and to ask that these conditions be removed from her record at which time that
    OHIP said that they would do so.

[33]

In
    addition, she pleaded, at para. 12, that [t]he Defendant Tarshis fraudulently
    submitted claims to OHIP for treating these conditions and was paid for same by
    OHIP while knowing that he was committing fraud by so doing.

[34]

The
    material facts pleaded by Ms. Brozmanova at paras. 8-9 and 15-16 of her
    statement of claim were admissions of the truth of certain facts. She clearly
    pleaded that in 2009, as a result of dealing with an insurance company on a
    matter regarding her ankle injury, she discovered that her OHIP record
    contained entries for billings by Dr. Tarshis, which she alleges were
    fraudulent.

[35]

Given
    the admissions in her pleading, it would have been open to the respondents to
    move on those admitted material facts to dismiss the claim on the basis that
    Ms. Brozmanova had discovered it in 2009 and therefore the action was
    statute-barred: rules 20 or 51.06(2).
[3]
In 2009, she knew that some damage had occurred within the meaning of s.
    5(1)(a) of the
Limitations Act
because she knew that her actual
    position was worse than her position before:
Hamilton (City) v. Metcalfe
    & Mansfield Capital Corporation
, 2012 ONCA 156, 290 O.A.C. 42, at
    para. 42. That the damage she discovered in 2009 was not the same damage for
    which she sought recovery in her action  her alleged inability in 2015 to
    purchase travel insurance  does not matter. Knowledge of some damage is
    sufficient for the cause of action to accrue and to start the limitation
    period:
Hamilton
, at para. 61.

[36]

In
    this regard, I see no error in the following conclusions of the motion judge expressed
    at paras. 13-14 of his reasons:

In my view, the
    Claim expressly pleads that Ms. Brozmanova was aware in 2009 of any alleged
    fraud committed by Dr. Tarshis. As the Claim states, she was made aware in 2009
    that Dr. Tarshis had submitted claims to OHIP for reimbursement for procedures
    that had allegedly been performed for her benefit and that, as a result,
    certain medical conditions were identified on her medical record. She was
    further aware of the fact that the identification of these medical conditions
    on her record could impede her ability to obtain benefits or services,
    including insurance services. Indeed, the information regarding the claims
    submitted by Dr. Tarshis was brought to her attention in 2009 following an
    inquiry from her own insurance company. Thus, as Ms. Brozmanova pleads in her
    factum submitted on this motion, any fraud committed by Dr. Tarshis had
    crystallized by 2009.

Nor can Ms. Brozmanovas reliance on OHIPs representations
    regarding the removal of the conditions, or OHIPs failure or inability to act
    on those representations, create, or recreate, a cause of action against Dr.
    Tarshis. Those representations were made by OHIP, not Dr. Tarshis. Nor does the
    timing of Ms. Brozmanovas application for travel insurance create, or recreate,
    a cause of action against Dr. Tarshis. As Ms. Brozmanova pleads in her factum,
    any loss resulting from Dr. Tarshis actions consisted of the listing of
    certain medical conditions on her medical history. This loss occurred at the
    time the claims for reimbursement were submitted to and paid by OHIP, and Ms.
    Brozmanova was aware of these facts in 2009.

[37]

That
    was a sufficient basis to strike Ms. Brozmanovas statement of claim on the
    admitted facts contained in her pleading.

[38]

Ms.
    Brozmanova submits that the motion judge erred in not permitting her to amend
    her statement of claim. I am not persuaded by her submission. Ms. Brozmanova
    does not argue that she was mistaken in pleading the facts contained in paras.
    8-9 and 15-16 of her statement of claim. She does not seek to withdraw them.
    Instead, she argues the events in 2009 did not amount to knowledge by her of an
    injury, loss or damage within the meaning of s. 5(1)(a) of the
Limitations
    Act
. As noted, the motion judge rejected that submission and I see no
    error in him so doing. Consequently, no amendment to her pleading could cure
    that defect in the tenability of her action.

IV.

DISPOSITION

[39]

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

[40]

In
    accordance with the agreement of the parties on costs, the respondents are
    entitled to their costs of the appeal in the amount of $10,000, inclusive of
    disbursements and applicable taxes.

Released: DB Jun 8 2018

David Brown J.A.
I agree. Grant Huscroft J.A.
I agree. G.T. Trotter J.A.

[1]
Section 5(1) states: A claim is discovered on the earlier of,

(a) The day on which the
    person with the claim first knew,

(i)
    that the injury, loss or damage had occurred,

(ii)
    that the injury, loss or damage was caused by or contributed to by an act or
    omission,

(iii)
    that the act or omission was that of the person against whom the
    claim is made, and

(iv)
    that, having regard to the nature of the injury, loss or damage, a proceeding
    would be an appropriate means to seek to remedy it; and

(b) the day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

[2]

See also rule 2.02(b), which
    states: A motion to attack a proceeding or a step, document or order in a
    proceeding for irregularity shall not be made, except with leave of the court
    (b) if the moving party has taken any further step in the proceeding after
    obtaining knowledge of the irregularity.

[3]
Rule

51.06(2) states: Where
    an admission of the truth of a fact or the authenticity of a document is made
    by a party in a pleading or is made or deemed to be made by a party in response
    to a request to admit, any party may make a motion in the same proceeding to a
    judge for such order as the party may be entitled to on the admission without
    waiting for the determination of any question between the parties, and the
    judge may make such order as is just.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Language Leadership Centre - CLLC Inc. v.
    20 Eglinton Commercial Centre Inc., 2018 ONCA 604

DATE: 20180629

DOCKET: C64013

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Canadian Language Leadership Centre  CLLC Inc.

Plaintiff (Appellant)

and

20 Eglinton Commercial Centre
    Inc.

Defendant (Respondent)

Jerome R. Morse and David M. Trafford, for the appellant

Alanna P. Brogan, for the respondent

Heard: May 24, 2018

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated June 7, 2017, with reasons for judgment
    reported at 2017 ONSC 3542.

REASONS FOR DECISION

[1]

The appellant, Canadian Language Leadership Centre  CLLC Inc. (CLLC),
    sued its commercial landlord, the respondent, 20 Eglinton Commercial Centre
    Inc. (20 Eglinton), for damages arising from water leaks that originated in
    the buildings roof, and from a non-functioning gas line. There were two
    agreements between the parties that are material to CLLCs lawsuit: (i) an
    Agreement to Lease that was effective between the parties on August 22, 2012;
    and (ii) a 5 year Office Lease executed on October 16, 2012, for a term
    commencing September 1, 2012 (Lease).

[2]

20 Eglinton sought and obtained summary judgment dismissing CLLCs
    action on the basis that it disclosed no genuine issue requiring a trial.

[3]

CLLC seeks, on appeal, to have this summary judgment set aside.

[4]

We are of the view that this appeal must be allowed and the summary
    judgment set aside. CLLCs claim for damages arising from the leaking roof
    required the motion judge to determine whether CLLC assumed the risk of damage,
    if sustained. Clause 9.02 of the lease provided:

9.02 Tenants Insurance

(a) The Tenant shall, throughout the period that the Tenant is
    given possession of the Premises and during the entire Term, at its sole cost
    and expense, take out and keep in full force and effect and in the names of the
    Tenant, the Landlord, and the Landlords mortgagee (if required), as their
    respective interests may appear, the following insurance

[5]

The reasons disclose no real examination by the motion judge of the
    commencement of CLLCs obligation to insure.

[6]

There were material factual contests between the parties that presented
    genuine issues requiring a trial that were not resolved by the motion judge. The
    disputed factual issues relevant to the application of clause 9.02 included when
    CLLC took possession of the premises, and when water leaks caused damage to
    CLLC. The parties disagreed about whether the premises were insurable in light
    of the water leaks. This is an important fact given 20 Eglintons concession
    that if the premises were not insurable when CLLCs obligation to insure arose,
    then CLLC could not be bound by clause 9.02.

[7]

The motion judge did not address these crucial factual issues. He opened
    his reasons, at para. 4, by noting that this is not a case where intensely
    fact-specific matters are in issue. Rather, he said it was a quintessentially
    document-based case, suggesting that he saw no need to resolve the factual
    disputes identified above.

[8]

Only two passages in the motion judges reasons could reflect relevant factual
    findings.

[9]

The first, at para. 13 of the reasons, is ambiguous:

Counsel for the Defendant responds that the entirety of efforts
    apparently made by the Plaintiff is one casual phone call, not followed up by
    anything in writing or an inquiry to any other company. Furthermore, to state
    the obvious, had the Plaintiff obtained insurance at the outset of its tenancy
    as it was supposed to do, this problem would not have arisen. The Plaintiff
    signed a covenant to insure; no one who really intends to purchase insurance
    coverage waits until the damage already occurs. It was the Plaintiffs
    obligation to obtain insurance when it was available, and not to roll the dice
    with a wait-and-see position in respect of the need for coverage.

[10]

It
    is not clear whether, in para. 13, the motion judge was summarizing arguments
    made by 20 Eglinton or making his own determinations. Given the organization of
    his reasons, it would appear that these were the submissions advanced by 20
    Eglinton rather than the motion judges factual findings.

[11]

The
    second, at para. 16 of the reasons, is also unclear:

In any event, counsel for the Defendant points out that the
    Plaintiffs business had indeed already commenced at the time of the roof
    leaks. It had an administration in place, it had hired personnel who had
    started working, it had students registered for its language school, etc. The
    language classes themselves had not yet started, but the Plaintiffs business
    itself was up and running.

[12]

This
    paragraph, made in the context of considering CLLCs argument that what
    occurred was business delay and not business interruption, is ambiguous. Does
    it contain a finding of fact, or a summary of arguments made? If it is a
    finding of fact, it fails to address when the roof leaks started, and whether CLLCs
    business was up and running
in the leased premises
at the time the
    roof leaks commenced.

[13]

In
    our view, the motion judge erred by failing to consider and resolve these
    factual disputes in finding that there was no genuine issue requiring a trial.
    Indeed, the motion judge never invoked his fact-finding powers under rr.
    20.04(2.1) or (2.2) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194 to make findings of fact or to resolve factual disputes on summary
    judgment.

[14]

The
    motion judge committed a further extricable legal error in finding that the damage
    claims linked to the defective gas line were clearly without merit because of
    the as is provisions of the Lease.

[15]

In
    arriving at that conclusion, the motion judge appears not to have considered other
    language in the Lease that confines the as is clause to the Premises.
    Premises is defined in the Lease in clause 1.01(o), in contrast to Building,
    which is defined in clause 1.01(d). The motion judge merged these distinct terms
    in his reasons, commenting at para. 20: The entire point of this kind of
    clause is that the landlord is not detailing for the tenant each and every
    defect or non-working system in the premises or the building. This is a
    material error in determining the scope of the application of the as is
    provisions of the Lease.

[16]

Moreover,
    the as is clauses are found in both Schedules D and E to the Lease.
    Schedule D merely declares acknowledgment by CLLC that the 5
th
Floor premises is being transferred on an as is basis. Schedule E
    describes items that are included in the as is status, including, but not
    limited to, the status of its HVAC, duct work, makeup air, plumbing and
    electrical systems, incomplete washrooms, any equipment, facilities, and
    leasehold improvements. CLLC argues that the omission of gas line in this
    list of inclusions is significant, while 20 Eglinton argues that the gas line,
    which was important for the HVAC system, was contemplated in Schedule E as part
    of the HVAC, duct work and makeup air systems.

[17]

Yet
    the motion judge referred only to Schedule D in his decision. He appears not
    to have considered the impact of Schedule E, if any, on 20 Eglintons
    responsibility.

[18]

In
    both of these respects  the failure to note the difference between the Premises
    and Building as defined in the contract, and the disregard of Schedule E
    when applying the as is clause  the motion judge committed extricable errors
    of law in interpreting the contract.

[19]

Finally,
    there was evidence that the gas line was not connected. Whether the connection
    problem was at the fifth floor, and therefore within the premises, or elsewhere
    in the building, and therefore arguably outside of the premises, was a genuine
    issue that ought to have been considered. This factor ought to have been considered
    by the motion judge.

[20]

We
    therefore allow the appeal and set aside the motion judges summary judgment,
    including the costs order made below.

[21]

We
    grant costs of this appeal to the appellant on a partial indemnity basis in the
    amount of $20,000, inclusive of disbursements and applicable taxes.

S.E. Pepall J.A.

K. van Rensburg J.A.

David M. Paciocco J.A.