COURT OF APPEAL FOR ONTARIO

CITATION: Trezzi v. Trezzi, 2019 ONCA 978

DATE: 20191213

DOCKET: C65835, C65855 & C65979

Sharpe, Hourigan and Jamal JJ.A.

In the Estate of Peter Trezzi, deceased

BETWEEN

DOCKET: C65835

Alfrida Gina Trezzi, personally,
    and in her capacity as estate trustee of the
Estate of Peter Trezzi

Applicant (Respondent)

and

Albert Trezzi
, in his personal capacity,
    and in his capacity as estate trustee of the
Estate of Peter Trezzi, Emily Trezzi, Bianca Trezzi, Across Canada
Construction Ltd., Trezzi Construction Ltd., and
Alberto Trezzi Sr.

Respondents (
Appellant
)

AND BETWEEN

DOCKET: C65855

Alfrida Gina Trezzi,
    personally, and in her capacity as estate trustee
of the Estate of Peter Trezzi

Applicant (Respondent)

and

Albert Trezzi
, in his personal capacity and
    in his capacity as estate trustee of the Estate of Peter Trezzi,
Emily Trezzi,
    Bianca Trezzi
, Across Canada Construction
Ltd., Trezzi Construction Ltd., and Alberto Trezzi Sr.

Respondents
(
Appellants
/
Respondent
)

AND BETWEEN

DOCKET: C65979

Alfrida Gina Trezzi,
    personally, and in her capacity as estate trustee of the
Estate of Peter Trezzi

Applicant (Appellant)

and

Albert Trezzi
,
    in his personal capacity, and in his capacity as estate trustee of the
Estate of Peter Trezzi, Emily Trezzi, Bianca Trezzi, Across Canada
Construction Ltd., Trezzi Construction Ltd., and
Alberto Trezzi Sr.

Respondents (
Respondent
)

AND BETWEEN

Albert
    Trezzi, (aka Alberto) in his personal capacity and in his capacity as Estate
    Trustee

Applicant in the Cross-Application

and

Alfrida Gina Trezzi, personally, and in
    her capacity as estate trustee of the
Estate of Peter Trezzi

Respondent in the Cross-Application

Craig Ross and Krystyne Rusek, for Emily Trezzi and Bianca
    Trezzi

Danielle R. Joel and Ewa Krajewska, for Alfrida Gina
    Trezzi

Symon Zucker and Laney Paddock, for Albert Trezzi

Heard: October 2, 2019

On appeal from the orders of Justice Herman J. Wilton-Siegel
    of the Ontario Superior Court of Justice, dated August 2, 2018 (C65835 and
    C65855), with reasons reported at 2018 ONSC 4710, 42 E.T.R. (4th) 322, and
    September 4, 2018 (C65979) with reasons reported at 2018 ONSC 5180.

Jamal J.A.:

I.

Introduction

[1]

These three related appeals arise in connection with the will of the
    late Peter Trezzi, who died on January 8, 2016.

[2]

Peter and Gina Trezzi were married for 25 years. They had two daughters together,
    Bianca and Emily Trezzi. Peter also had a son from a previous marriage, Albert
    Trezzi, who was 13 years old when Peter and Gina married.

[3]

Peter operated a successful construction business through two Ontario corporations,
    Across Canada Construction Ltd. (ACC) and Trezzi Construction Ltd. (Trezzi
    Construction).

[4]

There is no dispute that Peter was the sole shareholder of Trezzi
    Construction. But there is a dispute as to whether Gina owned half of the
    shares of ACC, and also as to other issues under Peters will. On one side of
    the dispute is Albert; on the other side are Gina, Bianca, and Emily.

[5]

For present purposes, the relevant aspects of Peters will are as
    follows:

·

Gina
    and Albert were named as joint executors and trustees of Peters will.

·

Albert
    was gifted: (i) all of Peters interest in ACC; (ii) real property located at
    220 Regina Road, Woodbridge (which was owned by Trezzi Construction); and (iii)
    all the equipment and chattels owned by Trezzi Construction.

·

Gina,
    Albert, Emily, and Bianca were each gifted equal shares of: (i) all other real
    property owned by Peter; (ii) all other assets owned by Trezzi Construction; and
    (iii) the residue of Peters estate.

[6]

In two comprehensive endorsements, the application judge concluded that:

1.

Peter could bequeath assets held by Trezzi Construction to Albert. Gina,
    Bianca, and Emily had challenged these bequests on the basis that Peter did not
    own those assets, as they were owned by Trezzi Construction, and therefore Peter
    could not give what he did not own.

2.

Gina had not established that she owned 50% of the shares of ACC. The application
    judge left for a future determination whether Peter owned any shares of ACC.

3.

Gina was entitled to an extension of time to file a surviving spouses
    election under s. 6(1) of the
Family Law Act
, R.S.O. 1990, c. F.3

(
FLA
),
    in order to choose whether to receive her bequests under the will or under her
    statutory entitlement as a surviving spouse pursuant to s. 5(2) of the
FLA
.
    Because of the ongoing litigation as to Ginas entitlements under the will, the
    application judge ruled that it would be fair to grant Gina this extension to allow
    her to make an informed decision regarding her election.

[7]

Bianca and Emily, with Ginas support, now appeal the first conclusion;
    Gina appeals the second conclusion; and Albert appeals the third conclusion.

[8]

For the reasons that follow, I would dismiss all three appeals.

ANALYSIS

(1)

Did the application judge err in concluding that Peter Trezzi could effectively
    bequeath corporate assets held by his construction company, Trezzi Construction
    Ltd.?

[9]

The first issue is whether the application judge erred in concluding
    that Peter could effectively bequeath assets held by his construction company,
    Trezzi Construction, of which he was the sole shareholder.

[10]

The
    clauses of Peters will that are impugned by Gina, Bianca, and Emily, are as
    follows:

·

Clause 3(d), which gave Albert [a]ll equipment and chattels owned
    by Trezzi Construction Ltd..

·

Clause 3(e), which gave Albert [t]he real property municipally
    known as 220 Regina Road, Woodbridge, which was owned by Trezzi Construction.

·

Clause 3(m), which gave [a]ll other assets owned by Trezzi Construction
    Ltd. in equal shares to Gina, Albert, Emily, and Bianca.

[11]

Gina,
    Bianca, and Emily assert that these gifts are invalid because a shareholder of
    a corporation owns only the shares of that corporation (which the shareholder can
    bequeath), but does not own the corporations assets (which the shareholder cannot
    bequeath). They claim that upholding these gifts would involve disregarding the
    separate corporate personality of Trezzi Construction, and that because these
    gifts are invalid, they fall into the residue of the estate.

[12]

I
    disagree. I conclude that Peter did effectively bequeath the assets of Trezzi
    Construction.

[13]

I
    agree with the application judge that the courts task in interpreting a will is
    to determine the testators actual or subjective intention as to how he intended
    to dispose of his property. This involves construing the will in light of all
    the surrounding circumstances to determine the testators true intention and
    the court placing itself in the position of the testator at the time that the
    will was made: see
Re Burke
, [1960] O.R. 26 (C.A.), at p. 30;
Re
    Kaptyn Estate
, 2010 ONSC 4293, 102 O.R. (3d) 1, at paras. 30-38; and
Halsburys
    Laws of Canada
,
Wills and Estates
,
    (Toronto: LexisNexis Canada, 2016 reissue), at HWE 63.

[14]

In
    this case, the application judge concluded that Peters actual or subjective
    intention was to give all of the assets owned by Trezzi Construction to Gina,
    Albert, Emily, and Bianca, such that Trezzi Construction would be left without assets
    of any kind, and that this in turn indicated that Peter intended Trezzi
    Construction to be wound-up. As the application judge found: the testator has
    made provision for all of the assets of Trezzi [Construction], not merely the
    assets to go to Albert. In my view, this indicates that the testator
    effectively turned his mind to, and directed, a winding-up of Trezzi and an
in
    specie
distribution of the assets as set out in clauses 3(d), 3(e), and
    3(m) of the will. The
in specie
or in kind distribution of assets of
    Trezzi Construction to Peters beneficiaries would, of course, be subject to
    Trezzi Constructions liabilities to any creditors.

[15]

These
    findings of the application judge interpreting Peters will to determine his
    subjective intention in light of all the surrounding circumstances are findings
    of fact and of mixed fact and law that are entitled to appellate deference. Just
    as the interpretation of a contract in light of its surrounding circumstances
    is now subject to review (absent an extricable error of law) only for palpable
    and overriding error, in my view, the same is true for the interpretation of a
    will in light of its surrounding circumstances: see
Hicklin Estate v.
    Hicklin
, 2019 ABCA 136, 46 E.T.R. (4th) 1, at paras. 10, 94-95;
Zindler
    v. The Salvation Army
, 2015 MBCA 33, 6 E.T.R. (4th) 34, at para. 10; and
Sattva
    Capital Corp. v. Creston Moly Corp
.
, 2014 SCC 53, [2014] 2 S.C.R.
    633, at para. 50.

[16]

In
    my view, there is no palpable and overriding error in the findings of the
    application judge to justify this courts intervention.

[17]

Nor
    are those findings infected by any extricable error of law. In my view, the application
    judge correctly held that the executors of Peters will have two independent sources
    of authority to implement his intention to wind-up Trezzi Construction: (a) their
    general powers under corporate law; and (b) their powers under clause 3(a) of
    the will.

[18]

With
    respect to the executors general powers under corporate law, s. 193(1) of the
Business
    Corporations Act,
R.S.O. 1990, c. B.16, provides that [t]he shareholders
    of a corporation may, by special resolution, require the corporation to be
    wound up voluntarily. Section 67(2)(a) of the
Business Corporations Act
provides that an executor or estate trustee of the estate of a deceased
    security holder may exercise all the rights that the deceased security holder had
    before their death. Thus, while he was alive Peter had the corporate authority,
    as the sole shareholder of Trezzi Construction, to wind-up the corporation.
    Upon his death, that authority devolved to his executors or estate trustees. As
    a result, under Ontario corporate law Peters executors have the power to implement
    his intention to wind-up Trezzi Construction.

[19]

With
    respect to the executors powers under the will, the application judge found that
    clause 3(a) of Peters will also provides the executors with the necessary
    powers to implement Peters wish to have Trezzi Construction wound up. Clause
    3(a) states in relevant part:

3.       I GIVE, DEVISE AND BEQUEATH all my property of every
    nature and kind wheresoever situate, including any property over which I may
    have a general power of appointment, to my said Trustees upon the following
    trusts, namely:

(a) To use their discretion in the realization of my estate,
    with the power to my Trustees to sell, call in and convert into money any part
    of my estate not consisting of money at such time or times, in such manner and
    upon such terms, and either for cash or credit or for part cash and part credit
    as my said Trustees may in their uncontrolled discretion decide upon,

[20]

While
    this clause does not refer expressly to a power to wind-up Trezzi Construction,
    but rather refers only to converting the estates assets into money, I conclude
    that the gifts do not fail on this basis. As the application judge correctly noted,
    the executors power to wind-up the corporation already exists under corporate
    law. I also agree with him that the executors implicitly have this authority in
    their discretionary power to convert the estates assets into money. Because Peters
    shares in Trezzi Construction were part of his estate not consisting of money,
    clause 3(a) of his will authorizes his executors to take any steps that may be
    needed to sell, call in, and convert those shares into money. This would include
    winding-up the corporation. As such, I agree with the application judge that
    Peters will conferred on his executors the authority to wind-up Trezzi
    Construction.

[21]

Because
    of these two independent sources of authority for Peters executors to wind-up
    Trezzi Construction, I would reject Ginas contentions that the gifts of the
    assets of Trezzi Construction fail because Peter did not directly own those
    assets and that upholding these gifts would disregard Trezzi Constructions
    separate corporate personality. While it is true that Peter, as the sole
    shareholder of Trezzi Construction, did not directly own the corporations
    assets, that does not complete the analysis. In substance, Peters shares in
    Trezzi Construction became part of the estate, and Peter effectively directed his
    executors to wind-up the company and to distribute its assets in accordance
    with his will, even though he did not own those assets directly. As already
    noted, the key question thus boils down to whether this was indeed Peters subjective
    intention in his will: see
Re Kaptyn Estate
, at paras. 126-144. For
    the reasons stated above, I conclude that the application judge did not err in
    concluding that this was Peters intention.

[22]

It
    follows that I also do not agree with the conclusions reached in the Saskatchewan
    and Alberta cases relied on by Gina, Bianca, and Emily, to the extent that those
    cases can be read as holding that a sole shareholder of a corporation can never
    effectively gift corporate assets because they are owned by the corporation:
    see
Re Thornton Estate
(1990), 85 Sask. R. 34 (Surr. Ct.), at paras.
    4-5;
Earl v. Wilhelm
, 2000 SKCA 1, 183 D.L.R. (4th) 45, at para. 12,
    leave to appeal refused, [2000] S.C.C.A. No. 124;
Re Meier (Estate of)
,
    2004 ABQB 352, 366 A.R. 299, at paras. 16-22; and
Oryshchuk Estate
,
    2009 ABQB 688, 485 A.R. 379, at para. 35. As noted, the principle of corporate
    separateness does not complete the analysis of whether a testator who is the
    sole shareholder of a corporation can effectively gift corporate assets. The court
    must go on to consider whether that authority exists under corporate law or under
    the terms of the relevant will. I agree with the application judge that because
    both sources of authority are present in this case, Peter could effectively
    bequeath assets held by Trezzi Construction.

[23]

I
    acknowledge that it would have been preferable had Peters will been more explicit
    in referring to the trustees authority to deal with his corporations property.
    In this regard, the Law Society of Ontarios
The Annotated Will 2019
(January 16, 2019), at p. 1-79, provides the following helpful model language that
    would further clarify an executors power to deal with the assets of a
    corporation in which a testator is the sole shareholder:

If at any time my Trustees hold in my estate any investment in
    or in connection with any company or corporation, my Trustees may join in or
    take any action in connection with this investment or exercise any rights,
    powers and privileges that at any time may exist or arise in connection with
    this investment to the same extent as I could if I were living and the sole
    owner of this investment.

[24]

For
    these reasons, I conclude that the application judge did not err in concluding
    that Peter could effectively gift corporate assets held by his construction company.

(2)

Did the application judge err in finding that Gina Trezzi did not own 50%
    of the shares of Across Canada Construction Ltd.?

[25]

The
    second issue is whether the application judge erred in finding that Gina did not
    establish that she owned 50% of the shares of ACC.

[26]

As
    the application judge correctly noted, this issue raises essentially a factual
    matter. It turns on the application judges evaluation of the evidence that
    Gina had adduced to establish her claimed ownership of 50% of ACCs shares. The
    application judge correctly noted that, in order to establish this, Gina has
    the onus of proof on a balance of probabilities.

[27]

The
    evidence that Gina adduced to support her claim included the following:

·

First,
    organizational documentation in the minute book of ACC prepared in 1993 showed two
    shareholders, namely, Peter and Gina, each owning 50 shares. Two share
    certificates, apparently created at the same time, also reflected Peter and
    Ginas ownership of shares. A reporting letter dated September 14, 1993 from
    Peters lawyer, Enzo Zeppieri (Zeppieri), stated that Peter and Gina were
    shareholders of ACC.

·

Second,
    in 2011 Peter engaged a solicitor, Cosimo Crupi (Crupi), to implement a reorganization
    of the business carried on under the name Across Canada Construction &
    Paving. In 2012, Crupis law clerk advised Gina that she was a 50% shareholder
    of ACC. However, the reorganization was ultimately aborted.

·

Third,
    Gina relied on a letter dated July 12, 2017 from Zeppieri to her legal counsel
    advising that Gina and Peter were each 50% shareholders of ACC.

·

Fourth,
    Gina claimed that she and Peter ran the business Across Canada Construction
    as equal business partners for 27 years.

[28]

Albert
    countered with other evidence that suggested that Gina never owned any shares
    in ACC. The application judge found as follows:

·

First,
    none of the corporate documentation prepared in 1993 or 2011 purportedly supporting
    the claim that Peter and Gina were equal shareholders of ACC was ever executed.
    Nor was Gina ever given a share certificate evidencing her claimed shareholding.

·

Second,
    the evidence of Crupi and his law clerk falls short of establishing that
    shares were allotted and issued to Gina. Crupis evidence was to the effect
    that he and his law clerk would have relied on documents and information
    provided to them by others. Crupi acknowledged that he did not focus on the
    question of whether Gina was a shareholder until this litigation.

·

Third,
    Zeppieris reporting letter of September 14, 1993 did no more than report on
    the preparation of organizational documentation that appears to have never been
    executed. Zeppieris letter of July 12, 2017 merely repeated what appeared earlier
    in the minute book. In any event, these letters were contradicted by the declarations
    of Gina made on October 16, 2015 (while Peter was alive) and Zeppieri made on July
    19, 2016 (shortly after Peters death), which confirmed that Peter was the only
    shareholder, officer, and director of ACC. These declarations were delivered in
    connection with union certification proceedings involving ACC before the
    Ontario Labour Relations Board.

·

Fourth,
    Ginas claimed involvement in the business of ACC did not on its own constitute
    evidence of her 50% shareholding interest. The application judge noted that
    arguments based on unjust enrichment were beyond the scope of the present
    proceeding.

[29]

Based
    on his evaluation of all the evidence, the application judge concluded that
    Gina had not met her onus of showing that she owned 50% of ACCs shares. He summarized
    his conclusions as follows:

In summary, there is unsigned documentation in the ACC minute
    book that, if executed, and if consideration had been paid for the shares,
    would have constituted each of Gina and Peter the holders of fifty common
    shares of ACC. At its highest, such documentation may reflect Peters
    consideration at the time of incorporation of ACC of an equal shareholding
    arrangement. However, there is no evidence that Peter ever implemented such a
    shareholding arrangement, that is, there is no evidence that the shares were
    ever issued. There is also some evidence that suggests that they were not issued
    and that Peter ultimately decided to carry on as the sole shareholder.
    Ultimately, Ginas case rests on an alleged presumption in her favour which, in
    my view, is not available in the present circumstances. Based on the foregoing,
    I conclude that Gina has failed to establish, on a balance of probabilities,
    that she is the owner of any common shares of ACC.

[30]

These
    are conclusions of fact and mixed fact and law that are owed substantial deference
    by this court and may be set aside only by showing palpable and overriding
    error. In my view, based on the evidence that was before the application judge,
    Gina has shown no such error.

[31]

In
    addition, Gina asserts that the application judge erred in law in three respects.

[32]

First,
    she asserts that the application judge decided an issue that was never pleaded.
    She says that the issue to be determined was whether she and Peter each owned
    50 common shares of ACC, not whether ACC had ever issued any shares. She says that
    neither she nor Albert ever pleaded that ACC had not issued any shares.

[33]

I
    disagree with this submission. Gina placed squarely before the application
    judge the issue of whether she owned 50% of the shares of ACC, and he
    determined that issue against her. It was entirely open to the application
    judge to make ancillary factual findings in the course of addressing this
    question.

[34]

Second,
    Gina claims that the application judge has left the corporate status of ACC in
    limbo and that he improperly bifurcated this proceeding by declining to address
    whether any shares were issued to Peter.

[35]

I
    also disagree with this submission. The application judge emphasized that the
    only issue before him was the evidence and law regarding Ginas alleged
    ownership of shares in ACC. He immediately added that [i]t does not
    necessarily follow from [this determination] that Peter owned the shares of
    ACC. In my view, it was open to the application judge to determine the nature
    and scope of the issues that he was prepared to address at this stage, in view
    of the discrete issues that were scheduled to be heard before him, the relief
    that Gina had sought, and the evidence adduced.

[36]

I
    appreciate that this means that further proceedings will likely be required before
    the issues arising under Peters will are resolved. However, in my view, this does
    not provide a basis for this court to intervene with the application judges findings.
    Moreover, the parties should be able to resolve the remaining issues without
    resorting again to litigation.

[37]

Finally,
    Gina claims that the application judge erred in his treatment of the statutory
    presumption created by s. 266(3) of the
Business Corporations Act
.
    Gina argued that an unexecuted Shareholders Register listing her as a
    shareholder in ACC was presumptive proof of her share ownership pursuant to s.
    266(3), which provides as follows:

An entry in a securities register of, or a security certificate
    issued by, a corporation is, in the absence of evidence to the contrary, proof
    that the person in whose name the security is registered or whose name appears
    on the certificate is the owner of the securities described in the register or
    in the certificate, as the case may be.

[38]

The
    application judge rejected this argument. He found that the unexecuted Shareholders
    Register did not qualify as a securities register for purposes of s. 266(3)
    because it did not meet the requirements for a securities register under s. 141(1)
    of the
Business Corporations Act
.
Section 141(1) requires a
    corporation to prepare and maintain at its registered office, or at any place
    in Ontario designated by the directors, a securities register in which it
    records the securities issued by it in registered form. The application judge
    found that Gina had not established that ACC had issued any securities in
    registered form under s. 141(1) because he concluded that the unexecuted
    share certificates in the minute book in the names of Gina and Peter are not
    securities issued in registered form. Rather, the application judge found that
    proving that securities had been issued in registered form would require properly
    issued executed share certificates of ACC and evidence of the actual issuance of
    shares.

[39]

In
    my view, given the application judges factual finding that no shares had been issued
    by ACC in registered form, he did not err in concluding that the Shareholders
    Register did not qualify as a securities register under s. 141(1), and consequently
    that the statutory presumption under s. 266(3) did not apply. While the
    statutory presumption might be relied upon to evince share ownership in the
    absence of an executed share certificate, in my view it must first be established
    that the document presented as a securities register is truly such. In this
    case, there was insufficient evidence that this document was a record of shares
    that had been issued in registered form. As a result, I conclude that the application
    judges findings are owed substantial deference by this court.

[40]

For
    these reasons, in my view the application judge did not err in finding that
    Gina did not own 50% of ACCs shares.

(3)

Did the application judge err in exercising his discretion to provide Gina
    Trezzi an extension of time to file a surviving spouses election under s. 6(1)
    of the
Family Law Act
?

[41]

The
    third and final issue is whether the application judge erred in exercising his
    discretion to provide Gina with an extension of time to file a surviving
    spouses election under s. 6(1) of the
FLA
until after the estates
    assets are valued, in order to allow Gina to make an informed decision
    regarding that election. Albert appeals the decision of the application judge to
    grant the extension.

[42]

The
    relevant statutory provisions are as follows:

·

Section
    5(2) of the
FLA
provides that when a spouse dies, if the net family
    property of the deceased spouse exceeds the net family property of the
    surviving spouse, the surviving spouse is entitled to one-half the difference
    between them.

·

However,
    s. 6(1) of the
FLA
provides that when a spouse dies leaving a will,
    the surviving spouse shall elect to take under the will or to receive the entitlement
    under s. 5.

·

Section
    6(10) of the
FLA
requires the surviving spouses election to be in a
    prescribed form and filed with the Estate Registrar for Ontario within six
    months after their spouses death.

[43]

Peter
    died on January 8, 2016, and therefore the six-month filing deadline prescribed
    by s. 6(10) of the
FLA
expired on July 8, 2016. Gina applied for an
    extension on December 22, 2017, about 18 months after the deadline had expired
    for her to file a surviving spouses election.

[44]

Section
    2(8) of the
FLA
provides that the court may extend the time for filing
    a surviving spouses election if it is satisfied that: (a) there are apparent
    grounds for relief; (b) relief is unavailable because of delay that has been
    incurred in good faith; and (c) no person will suffer substantial prejudice by
    reason of the delay.

[45]

The
    application judge readily granted Gina an extension because he found that she
    met the statutory test. He concluded that: (a) Gina has a right to elect for an
    equalization payment under the
FLA
, but it is not possible to determine
    the amount (if any) of that payment until the court determines the entitlement
    and valuation issues under the will. It would therefore be unfair to require
    Gina to make an election before these critical ownership and valuation issues
    are resolved; (b) any delay had been incurred by Gina in good faith; and (c) nobody
    would be prejudiced by the delay.

[46]

In
    his costs ruling, the application judge added that [t]here was no legal basis
    for Alberts opposition to this motion:
Trezzi v. Trezzi
, 2019 ONSC
    3464, 47 E.T.R. (4th) 288, at para. 28.

[47]

The
    application judges discretionary decision to grant Gina an extension of time
    under s. 2(8) of the
FLA
in order to elect whether to file a surviving
    spouses election is entitled to substantial deference:
Katz v. Nimelman
,
    2009 ONCA 445, 73 R.F.L. (6th) 288, at para. 3. The party seeking to challenge
    such a decision must show an error in the application of the principles
    relevant to the exercise of the discretion:
Hutchinson v. Hutchinson
(2001), 11 R.F.L. (5th) 297 (Ont. C.A.), at para. 6.

[48]

In
    seeking to meet this burden, Albert argues that the application judge made numerous
    legal and factual errors in granting Gina the extension.

[49]

First,
    Albert contends that the application judge erred in finding apparent grounds
    for relief. He claims that s. 2(8) of the
FLA
requires Gina to
    establish that she is entitled to receive an equalization payment of net family
    property.

[50]

I
    do not agree. The relief in issue for purposes of s. 2(8) of the
FLA
is not the right to the equalization payment itself, but rather the right to
    elect for an equalization of net family property: see
Scherer v. Scherer
(2002), 59 O.R. (3d) 393 (C.A.), at para. 16. To require a surviving spouse to
    prove a right to an equalization payment in order to obtain an extension under
    s. 2(8) to make an election would defeat the remedial purpose of the
FLA
:
    it would deprive a surviving spouse of the right to choose the more favourable
    financial outcome as between a will and under the
FLA
simply because
    they lack information necessary to make an informed choice between the two.

[51]

Here,
    as a surviving spouse, Gina clearly has a right to elect for an equalization
    payment. She has therefore met her burden of showing apparent grounds for the
    relief sought for which she seeks an extension of time.

[52]

Nor
    do I accept Alberts argument that the application judge improperly determined
    that an extension should be granted in all circumstances where a will is
    contested. The application judges ruling was not so sweeping. Rather, it was
    rooted firmly in the circumstances of this case. He simply ruled that Gina had
    an apparent right to elect for an equalization payment, and that in the context
    of this ongoing litigation it was not possible for her to make an informed
    choice regarding her surviving spouses election because of the current state
    of information regarding the estates assets and her entitlements under the
    will.

[53]

I
    therefore see no error in principle in the application judges decision on the
    first prong for the discretion to extend under s. 2(8) of the
FLA
.

[54]

Second,
    Albert contends that the delay in issue was not incurred by Gina in good faith.
    The application judge rejected this argument, as would I.

[55]

The
    good faith requirement in s. 2(8) of the
FLA
merely requires the
    applicant for an extension to show that they acted honestly and with no
    ulterior motive:
Hart v. Hart
(1990), 27 R.F.L. (3d) 419 (Ont.
    U.F.C.J.), at p. 432, cited in
Scherer
, at para. 24.

[56]

Here,
    the application judge found that Gina met this threshold. He found that there
    was no evidence that Gina was aware, or reasonably ought to have been aware, of
    her rights before May 2017, when she consulted with a family law lawyer. This
    was not a reversal of the onus to prove good faith. The application judge was simply
    satisfied on the record before him that Gina did not know about her rights before
    May 2017.

[57]

The
    application judge also accepted Ginas evidence that she initially refrained
    from applying for an extension while her counsel obtained information that
    would allow her to make an informed choice, but she then did so when it became
    clear that issues involving the estate would not be resolved consensually. The
    delay incurred was between May 2017 (when Gina became aware of her rights) and
    December 22, 2017 (when Gina applied for the extension). The application judge
    found that this delay was not unreasonable, especially because Ginas counsel had
    communicated to Alberts counsel her intention to apply for an extension in the
    future, if appropriate. He also found that Gina was not required to apply immediately
    to the court for an extension of time simply to protect her right to file an
    election, because she might never need to exercise that right.

[58]

These
    factual findings were available to the application judge given the evidence. I
    see no basis for this court to intervene.

[59]

Third,
    Albert contends that the application judge erred in finding that no person will
    suffer substantial prejudice by reason of the delay. The application judge
    rejected this argument because: (a) there had been limited administration of
    the estate to date, largely because of the acrimony between Albert and Gina,
    for which he found both parties responsible; (b) the estate would not be in a
    position to make a distribution until the ownership and valuation issues are
    resolved; and (c) of the four equal residual beneficiaries, only Albert opposed
    the extension request. Further, the application judge found that while Albert claimed
    that he was prejudiced by the delay in obtaining a judicial declaration regarding
    the issues involving the estate, any such prejudice was not because of the
    delay in Ginas application for an extension of time to make an election under
    the
FLA
.

[60]

It
    was again entirely open to the application judge to reach these conclusions on
    the evidence before him. Once again, I see no basis for this court to
    intervene.

[61]

I
    would therefore dismiss Alberts appeal from the application judges decision to
    grant Gina an extension to file an election under s. 6(1) of the
FLA
.

COSTS

[62]

In
    my view, two considerations are relevant to costs for these appeals.

[63]

First,
    success was divided: Albert succeeded on the first and second issues, while
    Gina succeeded on the third issue.

[64]

Second,
    I have concluded that this is not an appropriate case for costs to be paid from
    the estate. The modern approach to costs in estate litigation provides that
    the court is to carefully scrutinize the litigation and, unless it finds that
    one or more of the relevant public policy considerations apply, it shall follow
    the costs rules that apply in civil litigation:
Sawdon Estate v. Water
    Tower Bible and Tract Society of Canada,
2014 ONCA 101, 119 O.R. (3d) 81,
    at paras. 84-86. The relevant public policy considerations are: (1) the need to
    give effect to valid wills that reflect the intention of competent testators;
    and (2) the need to ensure that estates are properly administered. These
    considerations apply to costs awards made on appeal: see
Sawdon
at
    paras. 101-7.

[65]

On
    appeal, the parties were litigating in their personal capacities as
    beneficiaries, not in their capacities as trustees concerned with the proper
    administration of the estate. And whatever might have been said about any public
    policy considerations at first instance, I conclude that they were largely absent
    on appeal. In my view, allowing costs for these appeals to be paid from the
    estate would give rise to a danger that the estate would be unreasonably
    depleted because of unwarranted or needlessly protracted litigation:
Sawdon
    Estate
, at para. 84.

[66]

Having
    regard to these considerations, I have concluded that all parties should bear their
    own costs of the appeals.

DISPOSITION

[67]

I
    would dismiss the appeals without costs.

Released
:
RJS   DEC 13 2019

M. Jamal J.A.

I agree. Robert J.
    Sharpe J.A.

I agree. C.W. Hourigan
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tridelta Investment Counsel Inc. v. GTA Mixed-Use
    Developments GP Inc., 2019 ONCA 967

DATE: 20191206

DOCKET: M50889 (C67118)

Lauwers, Paciocco and Fairburn JJ.A.

BETWEEN

Tridelta Investment
    Counsel Inc., Tridelta Fixed Income Fund

and
    Tridelta High Income Balanced Fund

Applicants (Respondents/Moving
    Parties)

and

GTA Mixed-Use
    Developments GP Inc., Mixed-Use Developments

(Ontario) GP Inc. and
    Wasaga Developments

and
    Infrastructure GP Inc.

Respondents (Appellants/Responding
    Parties)

Christopher Naudie and Louis Tsilivis, for the moving
    parties

Simon Bieber and Michael Darcy, for the responding
    parties

Heard and released orally: November
    29, 2019

REASONS FOR DECISION

[1]

The moving parties brought an application under the
Limited
    Partnerships Act
, R.S.O. 1990, c. L.16 to compel the responding parties to
    provide financial information. The application judge granted the relief they
    sought and the responding parties appealed the order. The moving parties seek
    to quash the appeal on the basis that the application judges order was
    interlocutory not final.

[2]

We disagree with that characterization. The application judges order
    brought to an end the moving parties application and finally determined their
    entitlement to financial information under the
Limited Partnerships Act
.
    The fact that the parties are engaged in other litigation has no bearing on
    this basic fact. The old and clear principle in
Buck Brothers Ltd. v. Frontenac
    Builders Ltd.
(1994),
19
    O.R. (3d) 97 (C.A.) captures the case perfectly.

[3]

The motion is dismissed for oral reasons given plus costs at $5,000, all
    inclusive.

P. Lauwers J.A.

David M. Paciocco
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Walker (Re), 2019 ONCA 957

DATE: 20191205

DOCKET: C65778

Watt, Miller and Fairburn JJ.A.

IN THE MATTER OF:  David Walker

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Amy Alyea, for the respondent, the
    Attorney General of Ontario

Janice E. Blackburn for the respondent,
    Person in Charge of Waypoint Centre for Mental Health Care

Heard: September 13, 2019

On appeal against the disposition of the
    Ontario Review Board dated, June 29, 2018, with reasons dated July 27, 2018.

REASONS FOR DECISION

[1]

The appellant committed a violent sexual assault
    and was found not criminally responsible because of mental disorder (NCR) in
    1981. He came under the authority of the Ontario Review Board. On May 31, 1997,
    while on a community pass from his forensic hospital, the appellant committed
    another violent sexual assault. He was convicted of offences including sexual
    assault with a weapon, robbery, uttering threats and unlawful confinement. He
    was subsequently declared a dangerous offender on February 16, 1999, and has
    been in the penitentiary since his initial placement hearing. He is subject to
    a disposition from the Review Board that he be detained at Waypoint Centre for
    Mental Health Care (Waypoint) should he cease to be subject to a term of
    imprisonment.

[2]

The appellant is therefore a dual status
    offender as defined by s. 672.1(1) of the
Criminal Code
, meaning that
    he is subject to a sentence of imprisonment in respect of one or more offences
    and a custodial disposition (detention order) under s. 672.54(c) in respect of
    others.

[3]

The single issue on this appeal is whether the
    Review Board erred in its interpretation of the
Criminal Code
provisions requiring it, on application of the offender, to hold a placement
    hearing to determine whether the current place of custody of the offender is
    inappropriate to meet that offenders mental health needs or to safeguard the
    well-being of other persons.

[4]

The Review Boards position is that s. 672.69(2)
    requires it to schedule a placement hearing on application by a dual status
    offender if  and only if  the Review Board is satisfied that there has been a
    significant change in the offenders circumstances. The Review Boards position
    is that although it has the authority to conduct a placement hearing together
    with a review hearing  as was its former common practice  an offender can
    only trigger the scheduling of a placement hearing after the Review Board has
    first determined that there has been a significant change in circumstances.

[5]

The appellant objects to this bifurcated
    approach to a placement hearing and argues that the Review Board had an
    obligation to order a placement hearing in the circumstances of the appellant.

[6]

For the reasons that follow, we disagree.

Background

[7]

In a pre-hearing conference on May 15, 2018,
    held prior to his annual review hearing, the appellant advised that he wished
    to be moved from prison to Waypoint, and would make that request at the June
    27, 2018 review hearing. The appellant was advised that the June 27 hearing
    would likely be a disposition review only, but that if the evidence at the review
    hearing established a significant change in the appellants circumstances that
    would warrant a placement hearing, the Review Board would likely order a
    placement hearing to take place at a later date and before a different panel.

[8]

At the June 27 review hearing, the appellant
    argued that that the Review Board had an obligation to review the appellants
    placement on its own motion, which did not depend on the existence of a
    significant change in circumstances. In the alternative, the appellant contended
    that the evidence heard by the Review Board in the review hearing established
    that there had been a significant change in the appellants circumstances,
    necessitating that a subsequent placement hearing be scheduled.

[9]

In its reasons, the Review Board did not address
    the submission that it was obligated to review the appellants placement on its
    own motion.

[10]

Considering the alternative submission, the
    Review Board found there was insufficient evidence to establish a significant
    change in circumstances. It was therefore not obligated to schedule a placement
    hearing. In reviewing the evidence said to establish a significant change in
    circumstances, the Review Board noted:

·

There is no recent evidence to counter the 2008
    Forensic Psychiatric Report of Dr. Hucker, concluding that the appellant had
    access to a much better coordinated regimen of sex offender programming within
    CSC than within the Ontario Forensic Mental Health System, which, of necessity,
    focusses mainly on the management of chronic psychosis. Furthermore, the
    appellant was not being treated with anti-psychotic medications and there was
    no evidence that he suffered from psychosis.

·

With respect to the argument that the
    appellants participation and engagement in programming has improved since
    2008, the Review Board concluded that the 10 years of criminogenic programming did
    not alter the risk he poses as a dangerous offender.

·

With respect to the argument that the
    appellants risk to the safety of the public has been reduced and he can now be
    managed at Waypoint, the Review Board highlighted a 2017 Correctional Plan that
    concluded (t)here have been minimal gains made in this case that could be seen
    as mitigating risk.

·

With respect to the argument that the treatment
    of the appellants criminogenic needs would be better addressed within a
    forensic mental health facility such as Waypoint, the Review Board accepted the
    evidence of Dr. Tapscott that the appellants mental heath needs are met at the
    Bath Institution. The Review Board also noted the absence of any evidence of
    augmented (or any) treatment for sex offenders within Ontarios Forensic Mental
    Health System.

ANALYSIS

The statutory scheme

[11]

The statutory scheme for dual status offenders
    is set out in ss. 672.67 to 672.71 of the
Criminal Code
. It sets out
    the approach for prioritizing two custodial orders: one made pursuant to the
    sentencing provisions of Part XXIII of the
Criminal Code
, and one made
    pursuant to the mental disorder provisions of Part XX.1 of the
Criminal
    Code
.

[12]

Section 672.67(1) of the
Criminal Code
provides that where a court imposes a sentence of imprisonment on a dual status
    offender, that sentence takes precedence over any prior custodial disposition,
    pending any placement decision by the Review Board. The scheme therefore
    prioritizes the most recent custodial order, presumably on the basis that the
    most recent order best reflects the offenders current state of psychiatric
    health. Where the criminal conduct was found to have been committed wilfully
    and resulted in a conviction, it is more likely that the offenders mental
    disorder was not acute at that time.

[13]

Nevertheless, s. 672.68(2) enables the Review
    Board to make a change to the offenders placement in order to better meet the
    offenders mental health needs, or to better safeguard other persons. Section
    672.68(2) provides the Review Board with the authority to make a placement
    determination after giving notice to the offender and the Minister, where the
    Review Board is of the opinion that the place of custody of a dual status
    offender pursuant to a sentence or custodial disposition made by the court is
    inappropriate to meet the mental health needs of the offender or to safeguard
    the well-being of other persons.

[14]

Additionally, s. 672.69(2) provides a dual
    status offender with the power to apply for a placement hearing: (t)he Review
    Board shall hold a hearing as soon as practicable to review a placement decision,
    on application by the Minister or the dual status offender who is the subject
    of the decision, where the Review Board is satisfied that a significant change
    in circumstances requires it.

[15]

Section 672.69(3) further provides that (t)he
    Review Board may of its own motion hold a hearing to review a placement
    decision after giving the Minister and the dual status offender who is subject
    to it reasonable notice.

The appellants argument

[16]

The appeal is centred on the statutory
    interpretation of the above provisions. The appellant argues that the Review
    Board erred in not carrying out its statutory obligation to review placement
    whenever it reviews an offenders disposition.

[17]

The appellant submits that placement decisions
    are inextricable from dispositions, in that they both require the Review Board
    to consider the present circumstances of the offender, and that the
    appropriateness of placement is always in issue on a disposition review. The
    Review Board is said to have erred in following a bifurcated approach  to not
    schedule a placement hearing unless significant change is established in the review
    hearing. The appellant contends that is, placement is an essential element of
    disposition, such that placement must always be considered whenever disposition
    is reviewed. The appellant refers to this as the holistic approach, which it
    contrasts with the bifurcated approach followed by the Review Board in this
    case.

[18]

The appellant draws support from the former
    practice of the Review Board, which was to conduct a placement review when it
    conducted an annual disposition review, and to give notice of both hearings
    simultaneously.

[19]

In the alternative, the appellant argues that
    even if placement review is not inherently an aspect of a disposition review,
    the Review Board in this case fettered its jurisdiction by not considering
    whether to order a placement review on its own motion. The appellant advances
    an interpretation of s. 672.69(3) that would require the Review Board to order
    a change in placement so as to make the least restrictive disposition
    consistent with public safety.

Application

[20]

We are not persuaded by either of the appellants
    arguments.

[21]

As a preliminary matter, with respect to the
    standard of review, the Review Board is interpreting the provisions of its home
    statute and is presumptively entitled to deference. With this in mind, the fact
    that the Review Board formerly interpreted the provisions of the
Code
differently does not establish that the present interpretation is unreasonable.

[22]

On the Review Boards interpretation of the
Code
,
    a significant change in the circumstances of the offender is a prerequisite to
    the Review Board granting a request to schedule a placement hearing on the
    offenders application. The Review Board is interpreting its home statute and
    its interpretation is entitled to deference. The appellant has not identified
    any basis on which we could interfere with the Review Boards interpretation of
    its obligations under the
Code
.

[23]

With respect to the appellants argument that
    the Review Board was necessarily required to conduct a placement review as a
    part of a disposition review, we disagree. The interpretation advanced by the
    appellant conflates the two independent review schemes established in the
Code
and the distinct criteria appropriate to each. The fact that there will be
    some commonality in the factors assessed in each review does not provide, in
    the face of statutory language to the contrary, any warrant to combine them.

[24]

With respect to the second argument, we do not
    agree that the Review Board fettered its discretion. The fact that the Review
    Board has the jurisdiction to schedule a placement review on its own motion
    does not establish that it was required to do so in the circumstances of the
    appellant, or that its failure to do so was the result of the adoption of an
    invariable policy. There was no evidence before the Review Board to suggest that
    a change in placement would advance the goals of the statutory scheme. We are
    not persuaded by the appellants argument that he was not in a position to
    adduce evidence in this regard because of his incarceration. It would not have
    been difficult for the appellant, through counsel, to have sought information
    from Waypoint as to what therapeutic programming  if any  was available at
    Waypoint to meet what the appellant asserts are his therapeutic needs. The
    evidence before the Review Board was that the appellant has no therapeutic
    needs that are not met in his current placement at the Bath Institute, and that
    Waypoint does not provide programming for sex offenders. The Review Board made
    no error in not scheduling a placement hearing.

DISPOSITION

[25]

The appeal is dismissed.

David
    Watt J.A.

B.W.
    Miller J.A.

Fairburn
    J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: 1418885 Ontario Ltd. v. 2193139 Ontario Limited,
    2018 ONCA 54

DATE: 20180124

DOCKET: C64034

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

1418885 Ontario Ltd.

Plaintiff (Appellant)

and

2193139 Ontario Limited

Defendant (Respondent)

David Goodman, for the appellant

Charles Chang, for the respondent

Heard:  January 19, 2018

On appeal from the judgment of Justice Mario Faieta of
    the Superior Court of Justice sitting without a jury, dated June 12, 2017.

REASONS FOR DECISION

[1]

The plaintiff appeals from the judgment
    of the motion judge that dismissed the appellants motion for summary judgment
    against the respondent and also dismissed the appellants action.

[2]

The background facts are as
    follows.  The respondent was the owner of property municipally described as 9196
    Sixth Line, Milton, Ontario (the Property). On or about April 19, 2016, the appellant
    entered into an agreement of purchase and sale (the APS) to buy the Property
    from the respondent.

[3]

The closing date was scheduled to
    be June 15, 2016.  Two deposits were paid, the first in the sum of $50,000.00,
    and the second in the sum of $100,000.00.

[4]

The Property had been advertised
    for sale as containing a pub-style restaurant with patios, a nine hole golf
    course, 12 residential apartments, a two-storey home, and a banquet hall.  By
    the terms of the APS, the appellant was allowed until May 30, 2016 to make
    requisitions on title and until five days prior to completion to satisfy itself
    that the use of the property could be lawfully continued.

[5]

An issue arose respecting the
    residential apartments and whether they were a permitted use under the existing
    zoning by-law applicable to the Property.  On May 30, 2016, the lawyer for the
    appellant submitted a requisition that required the respondent to provide on
    or before closing an amendment to the local zoning by-laws to permit the
    current use to continue legally after closing.  The lawyer for the respondent rejected
    this requisition and advised that the residential apartments were a legal
    non-conforming use.

[6]

Subsequent to this reply to the
    requisition, the lawyer for the appellant made certain inquiries of the Niagara
    Escarpment Commission which has jurisdiction over the zoning applicable to the
    Property.  The Commissions response to these inquiries suggested that there might
    indeed be a problem regarding the residential apartments.  On June 9, 2016, the
    lawyer for the appellant sent a letter to the lawyer for the respondent that,
    among other things, referred to the advice that he had received from the
    Niagara Escarpment Commission and expressed the view that the residential
    apartments were clearly non-conforming.  The lawyer for the appellant then
    suggested that if a resolution could not be reached, the deposits had to be
    returned.

[7]

Nonetheless, the parties moved
    towards the closing date by exchanging draft documentation and related
    material.  However, on the day set for closing, the lawyer for the appellant
    advised the lawyer for the respondent that the appellant would not be closing
    the purchase because of the issue over the residential apartments.

[8]

This claim was then commenced by
    the appellant for the return of the deposits.  After pleadings were exchanged,
    the appellant brought a motion for summary judgment for the amount of the
    deposits.  The motions judge dismissed that motion.  The motion judge also
    dismissed the appellants action.  In doing so, the motion judge made the
    following findings:

(i)

that the issues raised by the motion were appropriate to be determined
    by way of summary judgment;

(ii)

that the respondent had failed to establish that the residential
    apartments were a legal non-conforming use;

(iii)

that the fact that the residential apartments were not a legal
    non-conforming use was a legitimate objection raised by the appellant to the
    use of the Property and, if the respondent could not remedy that objection, the
    terms of the APS would bring the APS to an end unless the appellant waived the
    objection;

(iv)

that the appellant had, by its conduct, waived the objection.

[9]

No real issue is taken with
    respect to the first three findings made by the motions judge.  In any event, the
    evidence in the record would clearly substantiate the second and third
    findings.  The central issue is whether the finding that the appellant had
    waived the objection is a proper one based on the evidence.

[10]

The motion judge cited this
    courts decision in
Technicore Underground Inc. v. Toronto (City)
,
2012 ONCA
    597 respecting the requirements to establish that a party has waived a right
    under a contract.  More specifically, the motion judge referred to the
    following observation of Gillese J.A., at para. 63:

Waiver occurs when one party to a contract (or proceeding)
    takes steps that amount to foregoing reliance on some known right or defect in
    the performance of the other party. It will be found only where the evidence
    demonstrates that the party waiving had (1) a full knowledge of the deficiency
    that might be relied on and (2) an unequivocal and conscious intention to
    abandon the right to rely on it. The intention to relinquish the right must be
    communicated. Communication can be formal or informal and it may be inferred
    from conduct. The overriding consideration in each case is whether one party
    communicated a clear intention to waive a right to the other party.

[11]

There is no doubt in this case that the appellant had
    full knowledge of the deficiency, that is, that the residential apartments were
    not a legal non-conforming use under the zoning by-law applicable to the
    Property.  The issue was whether the appellant had communicated an unequivocal
    and conscious intention to abandon that deficiency.  The motion judge held that
    it had.  With respect, we find that the motion judge erred in so holding.

[12]

The motion judge relied on three
    facts in support of his finding that the appellant had waived the deficiency.
    Those three facts are:

(i)

on May 18, 2016 the appellant agreed to amend the APS to provide that it
    would assume all existing tenants on closing;

(ii)

the appellant asked the respondent to obtain an amendment to the local
    zoning by-law, prior to closing, to permit the current use (i.e. the
    residential apartments) to continue legally after closing;

(iii)

the appellant advised, in its lawyers June 9, 2016 letter, that it was
    prepared to continue with the purchase, despite its concerns related to the
    current use, if the respondent provided satisfactory rental and golf course
    documentation.

[13]

With respect, none of those facts,
    either individually or collectively, establish an an unequivocal and conscious
    intention to abandon the deficiency.  The first fact is entirely consistent
    with completing the purchase if the deficiency can be overcome.  The second
    fact would have cured the deficiency but the respondent never obtained the
    amendment nor did it ever say that it would do so.  The third fact suggests
    that the appellant might have been prepared to waive the deficiency, if it
    received another benefit or advantage, but that never happened.

[14]

The respondent places considerable
    reliance on the fact that the appellant proceeded right up to the date of
    closing as if it would close the transaction.  Correspondence was exchanged
    between the lawyers for the parties finalizing various matters necessary for
    the closing.  Further, on the day set for closing, the appellants lawyer communicated
    that the appellant would be signing the closing documents and delivering the
    closing funds.

[15]

None of this conduct amounts to
    an unequivocal act constituting waiver.  It is consistent with the appellant
    placing itself in a position to close the transaction if, in the end result, it
    decided to waive the deficiency or some other solution came about.  That never
    happened.

[16]

There was a deficiency arising
    from the APS.  It was never waived by the appellant.  In accordance with the
    express terms of the APS, given that deficiency, the APS came to an end and the
    deposits had to be returned.  That is the conclusion to which the motion judge
    ought to have come.  The appellant was entitled to summary judgment as claimed.

[17]

The appeal is therefore allowed,
    the judgment below is set aside, and in its place judgment should issue in
    favour of the appellant for the amount of the deposits, namely, $150,000 plus pre-judgment
    interest.  The appellant is entitled to its costs of the motion in the amount
    of $15,000 inclusive of disbursements and HST and its costs of the appeal which
    we fix in the agreed amount of $10,000 inclusive of disbursements and HST.

Janet Simmons J.A.

Lois Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ali v. Fruci, 2018 ONCA 41

DATE: 20180122

DOCKET: C62500

Strathy C.J.O., Hourigan and Miller JJ.A.

BETWEEN

Lorilee Ali

Plaintiff

(Appellant)

and

Mary Fruci and Robert David Willis

Defendants

(Respondents)

Christopher McClelland, for the appellant

Robert Budgell and Lisa Thompson, for Mary Fruci

Kenneth Garland, for Robert David Willis

Heard: January 15, 2018

On appeal from the judgment of Justice P.R. Sweeny of the
    Superior Court of Justice, dated June 30, 2016.

REASONS FOR DECISION

[1]

The appellant, Lorilee Ali, appeals the
    judgment of the trial judge dismissing her action seeking to have certain wills
    of Florence Louisa Blackburn declared invalid.

[2]

Ms. Ali was the great-niece of Ms.
    Blackburn, who died in June 2007. Over the course of a five-year period between
    1998 and 2003, Ms. Blackburn executed three wills and two codicils.

[3]

In Ms. Blackburns 1998 will and two
    codicils executed in 1999, Ms. Ali was an estate trustee and the residual
    beneficiary. In wills created in 2000 and 2003, Ms. Ali was neither estate
    trustee nor beneficiary. Instead, in the 2000 will the respondents Mary Fruci
    and Robert Willis were beneficiaries and were respectively the estate trustee
    and alternate estate trustee. Pursuant to the 2003 will, Ms. Fruci was the
    residual beneficiary and Mr. Willis was the estate trustee. Mr. Willis was also
    entitled to the transfer of Ms. Blackburns home upon her death.

[4]

Ms. Ali commenced an action seeking to
    invalidate the 2000 and 2003 wills on the basis of lack of testamentary
    capacity, lack of knowledge and approval of contents, and undue influence.
    After a six-day trial Ms. Alis action was dismissed. The trial judge made a
    costs award in which he ordered Ms. Ali to pay Ms. Frucis costs in the amount
    of $42,000 and Mr. Willis costs in the amount of $40,000.

[5]

On appeal, Ms. Ali submits that the trial
    judge misapprehended the medical evidence regarding the issue of Ms.
    Blackburns testamentary capacity. Further, she submits that the trial judge
    erred in failing to distinguish between Ms. Blackburns capacity to manage property
    and financial affairs and her testamentary capacity.

[6]

The appellant acknowledged that the trial
    judges findings of mixed fact and law are entitled to deference, absent a
    palpable and overriding error.

[7]

The trial judge found that Ms. Ali failed
    to establish the existence of special circumstances and, therefore, the
    presumption of testamentary capacity was not rebutted. We are not persuaded
    that the trial judge erred in making that finding.

[8]

In considering the issue of testamentary capacity,
    the trial judge carefully and thoroughly examined the evidence, including the
    evidence of Ms. Blackburns doctor and other professional witnesses who
    testified as to her capacity.  His conclusion that Ms. Blackburn had testamentary
    capacity was fully supported by the evidence, including the evidence of the
    respondents, which he accepted.  We are not persuaded that there is any basis
    for appellate interference with that conclusion.

[9]

We also see no error in the trial judge
    making reference to Ms. Blackburns capacity to manage her property and
    financial affairs in his analysis of her testamentary capacity. That was
    relevant evidence that he was entitled to rely upon. The trial judge identified
    the correct legal test for testamentary capacity and properly applied it to the
    evidence.

[10]

The appeal is dismissed. Ms. Ali shall
    pay the costs of the appeal to Ms. Fruci and Mr. Willis jointly in the all-inclusive
    total amount of $12,000. Those costs are not payable from the estate.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

B.W. Miller J.A


COURT OF APPEAL FOR ONTARIO

CITATION: Andrews v. Andrews, 2018 ONCA 81

DATE: 20180130

DOCKET: C63757

Pepall, Hourigan and Brown JJ.A.

BETWEEN

Jayne Andrews

Applicant

(Respondent in Appeal)

and

Douglas Allen Andrews

Respondent

(Appellant in Appeal)

Anthony Semaan, for the appellant

Luigi Di Pierdomenico, for the respondent

Heard and released orally: January 26, 2018

On appeal from the judgment of Justice Renee Pomerance of
    the Superior Court of Justice, dated April 28, 2017.

REASONS FOR DECISION

[1]

This appeal is part of a
    lengthy and acrimonious family law proceeding. The appellant appeals the order
    of the motion judge dismissing his motion. The motion judge found that he did
    not have standing before the court as a result of his non-compliance with an
    earlier order made by Hebner J.

[2]

For the reasons that follow,
    we dismiss the appeal.

[3]

Hebner J. ordered that as a condition precedent of the appellant taking
    part in the proceedings he was to pay the sum of $17,803 by December 31, 2016,
    to bring his child support ordered by King J. into good standing, failing which
    his Answer and affidavits would be struck. The appellant was also ordered to
    make disclosure regarding proof of his income and to pay costs of the motion in
    the amount of $1,750. The appellant did not pay the required amount by December
    31, 2016, nor did he appeal the order of Hebner J. Instead, he brought a motion
    to set aside that order before Pomerance J.

[4]

The appellant submits the motion judge erred in not considering the
    appropriate test for striking pleadings in a family law proceeding. There is no
    merit in this submission. The motion judge did not strike the appellants Answer;
    Hebner J. ordered it struck. That order is not under appeal. In any event, Hebner
    J. carefully considered the evidence and determined that the appellant
    purposely breached the order of King J. That finding was open to her on the
    evidence, and she properly applied the test for striking pleadings. There is no
    basis for appellate interference with the order of Hebner J.

[5]

Justice Hebner also afforded the appellant an opportunity to continue to
    participate in the proceeding. The appellant did not avail himself of that
    opportunity by the deadline in her order and did not appeal the order. The
    motion judge properly found in these circumstances that the appellant had no
    standing in the proceeding.

[6]

The appeal is dismissed, with costs to the respondent in the amount of
    $7,500, inclusive of disbursements and all applicable taxes.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bank of Montreal v. Serpa, 2018 ONCA 94

DATE: 20180131

DOCKET: M48041 (C55748)

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Bank of Montreal

Respondent/Plaintiff

and

Paul Emilio Serpa

Applicant/Defendant

Paul Serpa, in person

Christopher Staples, for the respondent

Heard and released orally: January 17, 2018

REASONS FOR DECISION

[1]

The moving party requests a review of the decision of a motion judge in
    this court refusing to set aside a dismissal of an appeal for delay.

[2]

The moving partys appeal of a judgment dated June 20, 2012 (which was
    apparently filed by his mother while the moving party was out of the country),
    was dismissed for delay on December 7, 2012.  Among other things, the judgment
    ordered the moving party to pay the amount owing on a collateral mortgage
    securing payments on a line of credit.

[3]

On June 8, 2017, the motion judge dismissed the moving partys request
    to reinstate his appeal.  He found that the moving partys renewed interest in
    the appeal was the result of the bank seeking recovery against the second
    property the moving party owns following the sale of the property subject to
    the mortgage.

[4]

However, the motion judge also found that the moving partys explanation
    for his delay was not convincing  as the moving party had an obligation to
    mind his affairs while out of the country  and that the merits of the appeal
    are weak.

[5]

In all the circumstances, the motion judge declined to set aside the
    dismissal for delay at this late stage.

[6]

We see no basis on which to set aside the motion judges order.  The
    moving party has failed to identify any error in the motion judges reasons.
    The moving partys allegations in relation to the merits are vague and
    unsubstantiated.  As noted by the motion judge, there is no adequate
    explanation for the inordinate delay.

[7]

The review motion is dismissed.  Costs of the review motion are to the
    bank on a partial indemnity scale fixed in the amount of $5,000 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bennett v. Bennett Estate, 2018 ONCA 45

DATE: 20180122

DOCKET: C63622

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Darlene Bennett

Plaintiff (Appellant)

and

The Estate of Joyce Margaret Bennett, Deceased,
    Alan Leslie Soles, Bertram Shaun Soles and A. Miron Topsoil Ltd.

Defendants (Respondents)

William V. Sasso, for the appellant

Christopher Statham, for the respondent A. Miron Topsoil
    Ltd.

No one appearing for the respondents the Estate of Joyce
    Margaret Bennett, Deceased, Alan Leslie Soles and Bertram Shan Soles

Heard: November 9, 2017

On appeal from the judgment of Justice Edward J. Koke of
    the Superior Court of Justice, dated March 21, 2017, with reasons reported at
    2017 ONSC 1811.

CIVIL  Contract interpretation - right
    of first refusal - failure to grant specific performance of right of first
    refusal

Huscroft J.A.:

OVERVIEW

[1]

The Bennett brothers  Dennis, George, Donald,
    and John  divided a large parcel of land given to them by their father into
    separate properties, and entered into an agreement establishing a right of
    first refusal in the event of a sale of any of the properties by any of them.
    Donald Bennett died in 2006 and is survived by his wife Darlene Bennett. John
    Bennett died in 2009, and his property was transferred to his wife Joyce and
    her sons, Bertram Shaun Soles and Alan Leslie Soles.

[2]

In 2012, Joyce and her sons proposed to sell
    their property to Miron Topsoil Ltd. The agreement of purchase and sale acknowledged
    the right of first refusal agreement and specified that the sale to Miron was
    conditional upon George Bennett, Dennis Bennett, and the Estate of Donald Bennett
    failing to exercise their right of first refusal. Notice of the offer to
    Miron was given by the vendors lawyer to the surviving brothers, Dennis and
    George, as well as to Darlene Bennett. The notice acknowledged that the
    property was subject to the first right agreement in favour of George Bennett,
    Dennis Bennett and Donald Bennett, and advised the recipients that they had 21
    business days in which to exercise their right to acquire the property on the
    same terms and conditions as Mirons offer.

[3]

The two surviving Bennett brothers did not seek
    to exercise the right, but Darlene Bennett did. She provided notice that she
    was exercising the right to purchase the property and provided the required
    deposit.

[4]

Both Miron and Darlene Bennett took the position
    that they were entitled to purchase the property. Neither proposed sale of the
    property closed. Darlene Bennett brought a motion for summary judgment
    requesting an order of specific performance granting her the right to purchase
    the property. Miron responded with its own motion for summary judgment,
    requesting an order dismissing Darlene Bennetts claim on the basis that she
    was not entitled to exercise the right of first refusal. The vendors of the
    property  the Estate of Joyce Bennett, and Allan and Bertram Soles  were
    prepared to sell to whomever was entitled to purchase the property.

[5]

The motion judge found that the right of first refusal
    agreement was not ambiguous. He found that it clearly limited the right of first
    refusal to parties to the agreement  a right that did not extend to family
    members of the parties  and that this interpretation was neither unfair nor
    absurd.

[6]

Darlene Bennett could not exercise the right of
    first refusal because she was not a party to the agreement. The motion judge
    rejected evidence concerning the parties intentions in drafting the agreement
    and concluded that she had no enforceable rights under the contract. Although the
    parties agreed that Donald Bennetts estate was entitled to exercise the right
    of first refusal, Darlene Bennett had not brought her claim on behalf of the estate.
    She based her claim on her status as a family member, and as such she was not
    entitled to exercise the right. The motion judge granted summary judgment to
    Miron.

[7]

Darlene Bennett appeals. She submits, in
    essence, that she in fact exercised the right of first refusal on behalf of
    Donald Bennetts estate.

[8]

In her factum on the motion below, Darlene
    Bennett submitted that Donald Bennetts estate
would have had the right
    of first refusal in respect of the property.
However, her
    ability to act on behalf of Donalds estate was never established in evidence. The
    focus of the motion was her claim that she was entitled to exercise the right
    of first refusal on the basis that she was a family member under the
    agreement, and her claim was properly rejected by the motion judge on this
    basis.

[9]

I would dismiss the appeal for the reasons that
    follow.

THE RIGHT OF FIRST REFUSAL

[10]

The right of first refusal agreement made by the
    Bennett brothers provides, in relevant part, as follows:

IN CONSIDERATION of the sum of ONE DOLLAR
    ($1.00) now paid by each party to the other, the receipt whereof is by each
    party acknowledged, each party grants unto the other parties a first right of
    refusal to acquire ownership of that partys real estate herein identified upon
    the terms and conditions herein.

[11]

Article II (c) of the agreement provides:

If a selling
    party receives a
bona fide
offer to purchase his lands or part of his lands described in the
    appendix hereto which he is willing to accept, then the selling party shall
    give written notice of the offer to each of the other parties by presenting
    them with a photocopy of such offer. The other parties shall have a right
    during the next twenty-one (21) business days after receiving such notice, by
    written notice to the selling party to elect to purchase the lands offered to
    be sold for the same price and on identical terms as contained in the offer
    presented to them. [Emphasis in original.]

[12]

The agreement also provides that a party may
    transfer his lands to a family member  defined under the agreement as a
    son, daughter or spouse, or any combination of them of any party  without observing
    the requirements of Article II, but any such transferee would become bound by
    the provisions of the agreement. The agreement was to operate for 23 years.

THE POSITIONS OF THE PARTIES

[13]

The appellant submits that the motion judge
    erred in deciding the claim outside the boundaries of the pleadings and in
    concluding that there was no genuine contractual issue to be decided on the
    motion. The parties agreed that Donald Bennetts estate was entitled to
    exercise the right of first refusal, and neither the vendors nor the respondent
    disputed that the appellant was entitled to exercise the right on behalf of the
    estate. The appellant points to the fact that the vendors offer inviting the exercise
    of the right was made directly to her and the surviving parties to the
    agreement.

[14]

In essence, the appellant contends that the
    vendors extension of the offer to purchase the land to her  her inclusion
    among the parties with a right of first refusal  establishes her right to
    accept it. There was no genuine contract interpretation issue to be determined,
    but in any event the motion judge erred in failing to interpret the contract in
    accordance with the intentions of the parties drafting it, and in precluding
    the appellant from exercising the right of first refusal on the basis of the
    privity of contract doctrine.

[15]

The respondent submits that the appellants
    entitlement to exercise the right of first refusal was put in issue by the
    pleadings and does not accept that the appellant was entitled to act on behalf
    of the estate. The respondent submits that there was no basis in the evidence
    to establish the appellants authority to act for the estate and notes that the
    appellant specifically refused to provide proof of her capacity to do so when
    given an opportunity.

DISCUSSION

[16]

It is clear from the motion judges decision
    that he was alive to the distinction between the appellants claims to exercise
    the right of first refusal on behalf of the estate, on one hand, and as a
    family member under the agreement, on the other hand. He set out the
    appellants position on the motion as follows:

The schedule attached to the agreement of
    purchase and sale to Miron which accompanied the November 16, 2012 Notice of
    Sale from Mr. Hardy refers to the right of the estate of Donald Bennett to
    purchase the property.
The parties agree that Donalds estate is entitled
    to exercise this right. However, Darlene does not make her claim on behalf of
    the estate of her late husband. Instead, she bases her claim that she has a
    right to purchase the property on the fact that she is a family member, as
    defined in the first right agreement
. [Emphasis added.]

[17]

The motion judge then summarized the appellants
    submission concerning her entitlement to exercise the right as a family
    member:

The preamble and paragraphs 11. (a) and 11.
    (c) of the first right agreement purports to grant the right of first refusal
    to the other parties or to the remaining parties. Darlene submits that
    these paragraphs should be construed in such a way that this right is not
    restricted to the four brothers who signed the first right agreement but should
    be construed broadly to include family members as defined in the first right agreement.
    Since she was the spouse of Donald she falls within the definition of a family
    member and is therefore also entitled to exercise this right of first refusal.

[18]

I will consider these two possible claims in
    turn.

(1)

Darlene Bennetts purported entitlement as
    estate trustee

[19]

The appellant may well have been able to
    establish an entitlement to exercise the right of first refusal on behalf of
    the estate, but she did not do so. Her entitlement to exercise the right of
    first refusal was put in issue by the respondent in its statement of defence
    and counterclaim dated February 7, 2014. The respondent disputed that the
    appellant had validly exercised the right of first refusal, and specifically
    requested documentary evidence to support her purported authority to act on
    behalf of the estate in a letter dated August 5, 2014. The appellant did not
    provide such evidence.

[20]

The respondent brought a motion for an order requiring
    the appellant to produce a further and better affidavit of documents. This was
    opposed by the appellant, and when that motion was heard a different motion
    judge declined to rule on the issue, leaving it to be dealt with by the court
    in Parry Sound, where the action had been transferred (from Windsor).

[21]

The appellant baldly asserts her entitlement to
    act on behalf of the estate in a footnote in her appeal factum, stating:

If the issue of the Appellants status to act
    on behalf of Donalds Estate had been put in issue, the Appellant was appointed
    sole Estate Trustee and was sole beneficiary under Donalds last will and testament.
    The Appellants certificate of appointment of Estate Trustee with a will is
    dated August 21, 2006.

[22]

The appellant did not bring a fresh evidence
    application in this court in an attempt to establish her entitlement to act on
    behalf of the estate, either at the time of Donald Bennetts death or at the
    time of the prospective purchase, several years later. Counsel for the
    appellant simply asserted in oral argument that evidence as to her ability to
    act for the estate could easily be adduced.

[23]

The appellant had many opportunities to
    establish the facts on which she seeks to rely but chose not to do so. As a
    result, there was no evidence before the motion judge  and no evidence before this
    court on appeal  concerning the appellants ability to exercise the right of
    first refusal on behalf of the estate. The vendors simple act of extending the
    offer to the appellant did not establish her legal entitlement to accept it on
    behalf of the estate, as the appellant asserts, nor did the respondents
    statement that the appellant

purported

to exercise the right of first refusal constitute an
    admission that she had done so in accordance with the agreement.

[24]

The motion judge was asked to determine the appellants
    entitlement on the basis that she was a family member. He cannot be faulted
    for having done so.

(2)

Darlene Bennetts entitlement as a family
    member

[25]

The motion judges interpretation of the
    agreement is entitled to deference. First, it was open to the motion judge to
    find that the agreement was not ambiguous. On its face, the right of first
    refusal is limited to parties to the agreement.

[26]

The motion judge found that the evidence of the
    parties intention relied on by the appellant had little or no probative value
    and ran afoul of the parol evidence rule in any event. However, even assuming
    that the evidence of the lawyers involved in preparation of the agreement was
    not parol evidence, taken at its highest it does no more than establish that the
    appellant and the lawyers who drafted the agreement clearly understood that
    the estate of a deceased Bennett brother would be entitled to exercise the
    First Right in the event of a death of that contracting party.  The problem
    for the appellant, as noted above, is that she failed to establish her ability
    to act on behalf of Donald Bennetts estate.

[27]

The motion judge also did not err in his
    analysis of the privity of contract doctrine. The doctrine applies only where
    the contract in question confers the relevant benefit on a third party. The
    motion judges finding that the agreement did not confer a right of first
    refusal on anyone but the parties to the agreement is determinative of this
    analysis. In the absence of a benefit conferred on a third party, recent
    caselaw ameliorating the strictures of the privity doctrine and allowing third
    parties to enforce contractual provisions for their benefit  see e.g.
London
    Drugs Ltd. v. Kuehne & Nagel International Ltd.,
[1992] 3 S.C.R. 299,
    and
Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd.
,
    [1999] 3 S.C.R. 108  is irrelevant and cannot assist the appellant.

[28]

I see no legal error in the motion judges
    analysis, nor did he make any palpable and overriding error that would allow
    this court to intervene.

CONCLUSION

[29]

I would dismiss the appeal.

[30]

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

Released: January 22, 2018 (K.F.)

Grant Huscroft J.A.

I agree. K. Feldman J.A.

I agree. J.C. MacPherson J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Berkley Insurance Company v. Rob Piroli
    Construction Inc., 2018 ONCA 74

DATE: 20170129

DOCKET: C63915

Laskin, Sharpe and Fairburn JJ.A.

BETWEEN

Berkley Insurance Company

Applicant (Respondent)

and

Rob Piroli Construction Inc.

Respondent (Appellant)

Myron Shulgan, for the appellant

Sonny Ingram, for the respondent

Heard: January 25, 2018

On appeal from the order/judgment of Justice Perell of
    the Superior Court of Justice, dated May 25, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellants principal submission is that the motion judge erred in
    finding that damages were an inadequate remedy. We disagree. The respondent bargained
    for security and security differs from damages.

[2]

We agree with the reasons of the motion judge, and especially his
    analysis at para. 11 of his decision. The appeal is dismissed with costs in the
    agreed amount of $7,500 all in.