COURT OF APPEAL FOR ONTARIO

CITATION: 1100997 Ontario Limited v. North Elgin Centre Inc.,
    2016 ONCA 848

DATE: 20161114

DOCKET: C61621

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

1100997 Ontario Limited

Applicant (Appellant)

and

North Elgin Centre Inc.

Respondent (Respondent on Appeal)

James P. McReynolds, for the appellant

Martin P. Zarnett, for the respondent

Heard: September 20, 2016

On appeal from the order of Justice John R. McCarthy of the
    Superior Court of Justice, dated December 15, 2015

van Rensburg J.A.:

A.

Introduction

[1]

The issue in this appeal is whether, three years after the commencement
    of an application for a declaration that the appellant had a valid and
    subsisting lease, the motion judge erred in refusing to direct a trial of the
    issues and to permit the delivery of a statement of claim for damages for
    wrongful termination of the lease and loss of equipment and inventory. The
    motion judge refused such relief on the basis that the proposed statement of
    claim raised new claims that were statute-barred. For the reasons that follow,
    I would allow the appeal. The claims advanced arise from the same factual nexus
    set forth in the application and do not assert new causes of action.

B.

Facts

[2]

The appellant, 1100997 Ontario Limited (110), operated a convenience
    store in a strip mall on Yonge Street in Richmond Hill in premises owned by
    North Elgin Centre Inc. (North Elgin). In 1997, 110s predecessor (1252795
    Ontario Limited or 125) entered a lease with North Elgin for a five year
    term. In 2003, after the bankruptcy of 125, 110 and North Elgin negotiated a
    lease for a five year term, with an option to renew for a further five year
    term. The 2003 lease was never executed. 110 continued to operate the
    convenience store at the premises, paying rent to North Elgin until 2012.

[3]

In March 2012, following a default in payment of rent, North Elgin gave
    one months notice of termination of 110s tenancy, taking the position that
    110 was an overholding month-to-month tenant.

[4]

110 commenced an application in the Superior Court of Justice seeking,
    among other things, a declaration that it had a lease of the premises. 110
    brought an emergency motion for interim relief from forfeiture. Mullins J.
    dismissed the motion on April 30, 2012, and North Elgin took possession of the
    premises on May 1, 2012.

[5]

Neither party took any further steps in the proceeding until October
    2015, when 110 moved for an order directing a trial of the issues and for leave
    to serve a statement of claim. 110 proposed to seek damages for the termination
    of its tenancy.

C.

Decision Below

[6]

The motion judge concluded that the amendments in the proposed statement
    of claim raised new causes of action that were not asserted in the application
    and that such claims, having arisen more than two years earlier, were
    statute-barred under the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B. When the application was commenced the tenancy was subsisting, and
    the proposed claims were new and discrete causes of action flowing from events
    occurring between April 30, 2012 and August 2012. As such, the new claims were
    not based on the same factual nexus as that found in the application. The
    motion judge also observed that Mullins J. made a real finding, rather than
    an interim finding, that no written lease was in existence.

[7]

The motion judge dismissed the motion and awarded costs against 110 in
    the amount of $3,000. It is from this decision that 110 appeals.

D.

Positions of the Parties

[8]

110 contends that the motion judge erred in concluding that its proposed
    statement of claim raised new causes of action, and in concluding that Mullins
    J. had already determined whether there was a written lease on a final basis.
    110 contends that the remedies it now seeks  damages for North Elgins
    termination of 110s tenancy and re-entry and for loss of its inventory and
    equipment  are based on the very facts that were alleged in its application.
    110 says that, in considering whether the factual nexus is the same, the court
    should compare the facts alleged in the application and its supporting
    affidavit with the proposed statement of claim. An alternative theory of
    liability based on the same factual nexus does not constitute a new cause of
    action that is statute-barred. If the amendments are viable, the court should
    direct a trial of the issues as there are factual issues in dispute.

[9]

North Elgin seeks to uphold the motion judges order. As a preliminary
    point, North Elgin argues that this court should not entertain 110s appeal as
    the order in the court below was interlocutory. Under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, an interlocutory order of the
    Superior Court of Justice is properly appealed to the Divisional Court, with
    leave. Further, North Elgin asserts that, if the motion judge erred in
    concluding that Mullins J. decided the issue of whether there was a lease on a
    final basis, this conclusion had no effect on the decision. North Elgin
    disagrees that 110s proposed amendments should be compared against the
    affidavit delivered in support of its notice of application in this case.
    Finally, North Elgin argues that the judge was correct to observe that the
    facts on which 110 relies for its new claims all arose since the date North Elgin
    re-entered the premises, which was more than two years before 110 brought its
    motion.

E.

Analysis

[10]

I will first dispense with the preliminary issues: first, whether the
    motion judges order is final or interlocutory, and, consequently, whether this
    court has jurisdiction to hear an appeal from that order; and second, whether
    the issue regarding the existence of a written lease had been determined at the
    emergency motion on a final basis.

[11]

I will then turn to the main issue on appeal, namely whether the proposed
    statement of claim seeks to advance new causes of action not arising out of the
    factual nexus pleaded in 110s application. As I will explain, the motion judge
    erred in his analysis of this issue. In determining this matter, I will address
    whether a court can look to affidavit evidence filed in support of a notice of
    application for the purpose of determining what facts were relied upon to found
    the causes of action in the original proceedings.

(1)

This Court Has Jurisdiction to Hear the Appeal

[12]

Orders refusing leave to amend a pleading to add what is determined to
    be a new cause of action outside a limitation period are typically treated as
    final orders, subject to appeal to this court: See for example,
Frohlick v.
    Pinkerton Canada Ltd.
, 2008 ONCA 3, 88 O.R. (3d) 401;
Dee Ferraro Ltd.
    v. Pellizzari
, 2012 ONCA 55, 346 D.L.R. (4th) 624; and
Keparutis v.
    Canamould Extrusions Inc.
, 2012 ONCA 844. The motion judge dismissed the
    motion to direct a trial of the issues because he concluded that 110 proposed
    to pursue new causes of action that did not arise from the factual nexus
    contained in the notice of application and were therefore statute-barred. The
    order is therefore final and this court has jurisdiction to entertain the
    appeal.

(2)

Whether a Written Lease Existed Was Not Determined on a Final Basis

[13]

Next, I turn to the motion judges observation that Mullins J., in the
    interim emergency motion, decided that no written lease was in existence on a
    final basis. The issue before Mullins J. was whether 110 was entitled to relief
    from forfeiture. Mullins J. refused the relief. She did not make a final
    determination as to the rights of the parties, stating with respect to the
    lease: [t]here is no clear definitive evidence that there is a written lease
    between the parties. She considered all of the circumstances in refusing
    interim relief, including that 110 was in arrears of rent and that only by
    mortgaging his home could its principal pay some but not all of the rents
    owing. That she did not purport to decide what was a key issue in the
    application on a final basis is clear from her disposition of costs of the
    motion, which she reserved to the justice hearing the application on the
    merits.

[14]

I therefore agree with 110 that the motion judge erred in concluding
    that Mullins J. found that there was no written lease, and in treating her
    decision as a final determination of this issue. That said, I agree with North
    Elgin that this conclusion did not have any real effect on the motion judges
    decision in this case as his decision did not turn on this issue. Rather, he
    dismissed the motion after finding 110s proposed amendments were new claims
    that were statute-barred.

(3)

The Proposed Amendments Ought to Have Been Permitted

(a)

The Court Can Look to Affidavit Evidence in Support of the Notice of
    Application

[15]

Where a proceeding is commenced by way of application, it is necessary
    to consider both the notice of application and the supporting affidavit
    material referred to therein to determine whether the proposed amendment sets
    forth a new cause of action.

[16]

A notice of application may be amended in the same manner as a pleading:
    r. 14.09. However, a notice of application is not a pleading as it is
    required to state only the precise relief sought, the grounds to be argued and
    the documentary evidence to be used at the hearing of the application: r.
    38.04. It is therefore the supporting affidavit that typically contains the
    relevant facts.

[17]

In
Energy Probe v. Canada (Attorney General)
(1989), 68 O.R.
    (2d) 449 (C.A.), leave to appeal refused 37 O.A.C. 160 (S.C.C.), in determining
    whether a cause of action was disclosed, this court stated that affidavit
    materials on an application are to be considered as the pleadings (at para.
    10). Further, where oppression proceedings commenced by notice of application
    were converted into an action in
Przysuski v. City Optical Holdings Inc.
,
    2014 ONSC 3686, Perell J. refused to strike paragraphs of the statement of
    claim as raising unanticipated claims as an abuse of process because [t]he
    Notice of Application should be read with its supporting affidavits and with
    the evidentiary record for the Application (at para. 11).

[18]

In this case, the affidavit of Manir Yousif (the Yousif Affidavit),
    the principal of 110, was filed in support of 110s notice of application. In
    considering whether 110s proposed statement of claim sought to advance new
    causes of action that are statute-barred, the motion judge ought to have
    considered this affidavit.

(b)

Legal Principles Regarding the Amendment of Pleadings

[19]

A cause of action is a factual situation the existence of which
    entitles one person to obtain from the court a remedy against another person:
Letang
    v. Cooper
, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this
    court in
July v. Neal
(1986), 57 O.R. (2d) 129 (C.A.), at para. 23.

[20]

In
Morden & Perell,
The Law of Civil
    Procedure in Ontario
, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at
    p. 142, the authors state:

A new cause of action is not asserted if the amendment pleads
    an alternative claim for relief out of the same facts previously pleaded and no
    new facts are relied upon, or amount simply to different legal conclusions
    drawn from the same set of facts, or simply provide particulars of an
    allegation already pled or additional facts upon which the original right of
    action is based. [Footnotes omitted.]

[21]

In
Dee Ferraro Ltd. v. Pellizzari
, this court noted the
    distinction between pleading a new cause of action and pleading a new or
    alternative remedy based on the same facts originally pleaded. The appellants
    had commenced an action against their lawyer claiming damages for breaches of
    contract, trust and fiduciary duty and for fraud and negligence. The appellants
    then sought to amend their pleading. This court, in overturning the motion
    judges dismissal of the motion to amend, concluded that the proposed
    amendments, such as claims for a mandatory order and a constructive trust over
    shares, could be made because they flowed directly from facts previously
    pleaded.

[22]

By contrast, a proposed amendment will not be permitted where it
    advances a fundamentally different claim after the expiry of a limitation
    period:
Frohlick v. Pinkerton Canada Ltd.
In that case, the court did
    not permit the plaintiff in a wrongful dismissal action to amend the statement
    of claim to assert a claim for damages for constructive dismissal on the basis
    that the limitation period had expired. This court dismissed the appeal. The
    amendment regarding constructive dismissal related to events that occurred
    prior to the events described in the original statement of claim that were
    unrelated to that claim. The defendant was unaware of the new allegations prior
    to the plaintiff seeking the amendments, and the events were not put in issue
    or encompassed within the original claim.

[23]

Based on the foregoing, an amendment will be refused when it seeks to
    advance, after the expiry of a limitation period, a fundamentally different
    claim based on facts not originally pleaded.

(c)

The Principles Applied

[24]

I turn to consider and to compare what was asserted in the application
    with the facts pleaded and relief sought in the proposed statement of claim.

[25]

The notice of application sought a declaration confirming that 110 had a
    valid and subsisting lease, and a declaration confirming that there had been
    sufficient part performance under the lease to give the lease full force and
    effect as if it had been executed by the parties (and to take it out of the
    scope of s. 1 of the
Statute of Frauds
, R.S.O. 1990, c. S.19). The
    notice of application also sought relief from forfeiture and an interim
    injunction, an order fixing 110s rent at $5,000 per month for the remainder of
    the term of the lease and [s]uch further and other relief as this Honourable
    Court may deem just.

[26]

As grounds for the application, the notice of application set forth the
    fact that 110 was North Elgins tenant; that 110 was occupying the premises
    pursuant to an unexecuted lease; that 110 and its predecessor had continuously
    occupied the premises for 14 years and seven months; that the lease was to
    expire November 30, 2013; that there was an agreed rent of $5,000 per month,
    which had been paid at that rate for the past year; that 110s principal
    shareholder and director drew his sole livelihood from the business and would
    suffer irreparable harm if deprived of that livelihood; and that 110 had over
    $100,000 of inventory on the premises, much of it perishable.

[27]

The Yousif Affidavit expanded on these facts. Of particular importance
    to 110s motion to amend is the affidavits reference to the conduct of the
    landlord suggesting that it recognized the lease was in force (referring to
    obligations under the lease and rent paid thereunder), the leasehold
    improvements that 110 made, the inventory and equipment present at the premises
    and the disastrous consequences to 110 and to Yousif personally if locked out
    of the premises.

[28]

110s proposed statement of claim seeks the same relief sought in the
    notice of application, as well as damages in the amount of $250,000 for breach
    of contract, unjust enrichment, conversion and bad faith, and punitive damages
    in the amount of $50,000.

[29]

A number of facts pleaded in the statement of claim are substantially
    identical to those set forth in the application. For example, the statement of
    claim refers to 110 and its predecessors continuous occupation of the
    premises, its substantial leasehold improvements and substantial part
    performance, as well as the $100,000 of inventory at the premises.

[30]

The statement of claim additionally pleads that, as at May 1, 2012, when
    North Elgin took possession of the premises, the premises contained inventory
    and equipment worth in excess of $200,000, that North Elgin refused 110 access
    to the inventory and equipment and that North Elgin leased the premises to
    another convenience store operator and sold the inventory and equipment without
    110s knowledge. 110 claims a failure to account, and that North Elgins
    actions in terminating 110s lease were motivated by North Elgins dealings
    with a third party, Bulk Barn.

[31]

North Elgin says that at the time of the commencement of the
    application, the tenancy between 110 and North Elgin was subsisting and that
    all of the relief claimed sought the
continuation
of a lease with
    respect to the premises. By contrast, the proposed amendments claim new relief
     including damages and punitive damages  arising out of what happened
subsequently
,
    after North Elgin retook possession of the premises on May 1, 2012. North Elgin
    asserts that the claims for the failure to account to 110 for inventory and
    equipment that remained in the leased premises after the tenancy was
    terminated, and for unjust enrichment, bad faith and conversion in relation to
    North Elgins dealings with the inventory and equipment, are all new
    allegations that could not have been made in the notice of application because
    they took place only after the re-entry. North Elgin says that the motion judge
    was correct to consider the proposed amendments as advancing new, distinct and
    discrete causes of action not pleaded in the original notice of application.

[32]

I disagree with the approach of the motion judge and North Elgin.

[33]

The underlying question is whether, by reason of what was asserted in
    the application, North Elgin had knowledge of the facts underlying 110s
    damages claims. In my view, there is no new cause of action pleaded.

[34]

The application asserts that 110 had rights as a tenant of the premises
    under the unexecuted 2003 lease. It claimed part performance and that North
    Elgin was not entitled to terminate the lease on one months notice. It
    referred to the presence on the premises of valuable inventory and equipment
    and the effect the termination of the lease would have. While the relief sought
    in the notice of application was foreclosed by North Elgins conduct in
    retaking possession, 110s claim for damages arises out of exactly the same
    circumstances that were set forth in the notice of application and supporting
    affidavit, namely the conduct of North Elgin in terminating the lease and
    retaking possession of the premises. The pleading that North Elgins conduct was
    motivated by its dealings with a third party is a new fact, but not one that is
    essential to the causes of action pleaded.

[35]

The actionable fact in the notice of application was the threatened
    termination of 110s tenancy. The notice of application adverted to the harm
    110 would suffer as a result of the termination. The statement of claim is
    based on the same actionable fact: the termination of 110s tenancy. The only
    difference is that 110 pleads additional facts about what transpired after the
    lease was terminated. As such, the claim for damages is simply an alternative
    remedy based on the same factual nexus as originally pleaded in the notice of
    application.

[36]

While the notice of application originally sought only declaratory and
    injunctive relief, 110s damages claim is not a fundamentally different claim
    based on a set of facts not originally pleaded.

[37]

Further, the claims for breach of contract, unjust enrichment and bad
    faith set forth in the statement of claim, but not pleaded in the notice of
    application, are not new causes of action. They are new legal characterizations
    of the wrong that was alleged in the notice of application, and arise out of
    the same factual nexus.

[38]

I therefore conclude that the proposed amendments contained in the
    statement of claim ought not to have been refused on the basis that they raised
    new claims based on new causes of action.

[39]

Since it is clear that there are and will continue to be material facts
    in dispute, it is appropriate to direct a trial of the issues in the
    application and to permit 110 to deliver a statement of claim in the form
    proposed.

F.

Disposition

[40]

For these reasons, I would allow the appeal. Pursuant to r. 38.10, I
    would order that the application proceed to trial, that the proceeding be
    treated as an action, and that 110 have leave to deliver its statement of claim
    in the form attached to its notice of motion.

[41]

I would award costs of the motion in the court below to 110 fixed at
    $3,000, and costs of the appeal to 110 fixed at $5,000, both amounts inclusive
    of disbursements and applicable taxes.

Released: K.M.W. November 14, 2016

K. van Rensburg
    J.A.

I agree K.W. Weiler
    J.A.

I agree R.A. Blair
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1161267 Ontario Ltd. v. Mei, 2016 ONCA 881

DATE: 20161121

DOCKET: C61027

Feldman, Lauwers and Miller JJ.A.

BETWEEN

1161267 Ontario Ltd.

Plaintiff (Respondent)

and

Peter Michael Mei, Dina Mei and Mancuso Motor Car
    Company Ltd.

Defendants (Appellants)

Benjamin Salsberg, for the appellants

Michael Woods, for the respondent

Heard: November 18, 2016

On appeal from the judgment of Justice Steve A. Coroza of
    the Superior Court of Justice, dated August 17, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellants position is that the motion judge should not have granted
    summary judgment based on the written agreement, the affidavits and
    cross-examinations. He should have found a genuine issue for trial based on the
    need to make credibility findings after hearing
viva voce
evidence,
    because of the ambiguities in the agreement.

[2]

We do not agree. The motion judge interpreted the contract based on the
    terms of the agreement and of the security granted pursuant to the agreement. He
    rejected the position of the appellant that he never intended to guarantee the
    principal amount of funds that had been provided by the respondent. He
    considered all of the evidence before him in reaching his interpretation. In
    our view there is no genuine issue for trial that requires any further
    evidence.

[3]

The appeal is dismissed with costs on the substantial indemnity basis in
    accordance with the mortgage terms and the decision of the motion judge on
    costs, in the amount of $10,000 inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: 1186708 Ontario Inc. v. Gerstein, 2016 ONCA 905

DATE: 20161128

DOCKET: C61932

Gillese, Benotto and Roberts JJ.A.

BETWEEN

1186708
    Ontario Inc., 746190 Ontario Limited and 746191 Ontario Limited

Plaintiffs (Appellants)

and

Elliott
    J. Gerstein, Iris L. Gerstein,
Sydney Gerstein
, Attara Developments
    Limited., Bellcrest Builders Limited., Brenthall Apartments Limited., Chelsandy
    Developments Limited., Grover Realty Management (a partnership), Grover Realty
    Cable (a partnership), Lilliana Buildings Limited., Luray Investments Limited.,
    Pauldor Developments Limited., 375685 Ontario Limited., Stan Vine Construction
    Ltd, Kilbarry Holding Corporation, 678678 Ontario Limited.,
Matanah
    Investments Corp.
,
Dawn Trading Ltd.
,
497505 Ontario Inc.
,
781527
    Ontario Inc.
,
781526 Ontario Inc.
,
Richard Mintz and Andrea Mintz
,
Estate Trustees for Saul Mintz
,
Irwin Mintz
,
Howard Mintz
,
Faye Mintz
,
Mintz & Partners (a partnership)
,
Rhonda
    Strasberg
, Estate Of Belle Mernick,
Minkids Holdings (a partnership)
,
Ettie Wosnick
,
Morris Wosnick
,
2135637 Ontario Inc.
,
Lerric
    Investments Corp.
, Mernick Construction Limited and Stanmore Developments
    Limited.

Defendants (
Respondents
)

James Zibarras and David Meirovici, for the appellants

Howard L. Shankman, for the respondents Estate of Saul
    Mintz, Richard Mintz and Andrea Mintz

Deepshikha Dutt and Douglas Stewart, for the respondents
    Irwin Mintz, Faye Mintz (deceased), 2135637 Ontario Ltd., Minkids Holdings, 781526
    Ontario Ltd. and Mintz & Partners LLP

Elaine Perilz, for the respondents Howard Mintz, 781527
    Ontario Inc., Dawn Trading Ltd., 497505 Ontario Inc., Rhonda Strasberg, Ettie
    Wosnick and Morris Wosnick

Linda Galessiere, for the respondents Estate of Sydney
    Gerstein, Matanah Investments Corp. and Lerric Investments Corp.

Heard: November 23, 2016

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated February 24, 2016.

ENDORSEMENT

[1]

Certain of the defendants brought a motion to strike portions of the
    plaintiffs fresh as amended statement of claim.  In response, the plaintiffs
    brought a motion for leave to commence a derivative action
nunc pro tunc
.
    The plaintiffs motion was brought under s. 246 of the
Ontario
Business Corporations Act
,
    R.S.O. 1990, c. B.16 (the
OBCA
).

[2]

The two motions were heard together and disposed of by order of the
    Superior Court of Justice, dated February 24, 2016 (the Order).  Paragraph 1
    of the Order orders that the plaintiffs motion is statute-barred by virtue of
    s. 4 of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sch. B.

[3]

The plaintiffs wish to appeal para. 1 of the Order.  That is, they wish
    to appeal the disposition of the motions judge in respect of their motion
    alone.

[4]

The plaintiffs brought their appeal to this court.  A question arose as
    to the jurisdiction of this court to hear the appeal.

[5]

After hearing oral argument on the issue of jurisdiction, the court
    advised the parties that, in its view, the appeal is in respect of an order made
    under the
OBCA
and, consequently, the proper route of appeal is to the
    Divisional Court.

[6]

In sum, the court reasoned as follows.

[7]

Under s. 6(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, an appeal lies to this court from a final order of a judge of the
    Superior Court of Justice,
except  an order from which
    an appeal lies to the Divisional Court under another Act
 (emphasis
    added).  Under s. 255 of the
OBCA
, [a]n appeal lies to the Divisional
    Court from any order made by the court under this Act.

[8]

There is no dispute that the Order is a final order.

[9]

Paragraph 1 of the Order flowed from a motion for leave to commence a
    derivative action under s. 246 of the
OBCA
.  We acknowledge that the
    claim was found to be statute-barred and leave refused on that basis.  We also
    acknowledge that the determination that the claim was statute-barred was made
    under the
Limitations

Act
,
2002
, not the
OBCA
.
    However, para. 1 of the Order disposed of the motion which was brought under s.
    246 of the
OBCA
.  Given the broad scope afforded to s. 255 of the
OBCA
in this courts jurisprudence, it is our view that para. 1 of the Order is an
    order within the meaning of s. 255 of the
OBCA
: see
Amaranth
    L.L.C. v. Counsel Corp.
(2004), 71 O.R. (3d) 258 (C.A.); and
Ontario
    Securities Commission v. McLaughlin
, 2009 ONCA 280, 248 O.A.C. 54.

[10]

The parties had argued that this court had jurisdiction to hear the
    appeal based on
Buccilli v. Pillitter
, 2016 ONCA 775, 271 A.C.W.S.
    (3d) 323.  However, that case is distinguishable from the present case for
    three reasons.

[11]

First, in
Buccilli
, the underlying motion for summary judgment was
    brought under r. 20 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.  In the present case, the plaintiffs motion was brought under s. 246 of
    the
OBCA
.

[12]

Second, had the relief which the plaintiffs sought been granted in this
    case, it would have been under s. 246 of the
OBCA
.  The fact that leave
    to commence a derivative action was found to be statute-barred does not change
    the nature of the underlying motion.

[13]

Third, at para. 22 of
Buccilli
, the court noted that even if it
    could assume that part of the relief was grounded in an
OBCA
claim, this
    court would nonetheless have jurisdiction to hear the appeal because it could
    be joined to those parts of the appeal of the order not rooted in the
OBCA
.
    In the present case, no other parts of the Order are under appeal, so there is
    nothing to which the plaintiffs appeal can be joined.

DISPOSITION

[14]

Accordingly, as the proper route of appeal is to the Divisional Court, we
    order that this appeal be transferred to the Divisional Court.

[15]

While it is for the Divisional Court to determine whether to expedite
    the hearing of the appeal, the parties have asked this court to urge the
    Divisional Court to schedule the hearing of the appeal as expeditiously as
    possible, because of the tight timeline that has been established for it and
    the time that has been lost in resolving the jurisdictional issue.  We
    respectfully convey that request to the Divisional Court.

E.E. Gillese J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2027707 Ontario Ltd. v. Richard Burnside &
    Associates Ltd., 2016 ONCA 819

DATE: 20161103

DOCKET: C61772

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

2027707 Ontario Ltd.

Plaintiff/Appellant

and

Richard Burnside &
    Associates Ltd.
and John Schnurr

Defendants/
Respondent

Harrison Pensa LLP and Harry Van Bavel

Third Parties/Respondents

Peter B. Cozzi, for the appellant

Matthew Urback, for the respondent Richard Burnside
    & Associates Ltd.

Sean Dewart, for the third parties/respondents Harrison
    Pensa LLP and Harry Van Bavel

Heard and released orally: October 28, 2016

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated January 25, 2016.

ENDORSEMENT

[1]

The appellant appeals from an order staying an action as against a court
    appointed receiver and refusing leave to sue the receiver.

[2]

The appellant puts forward two bases for the appeal. First, it argues
    that the motion judge erred in failing to find that the receiver had already
    consented to the action being commenced against it. Second, it argues that the
    motion judge erred in finding that the appellant did not meet the test for
    granting leave in such matters.

[3]

We reject both these submissions. The receivers consent on which the
    appellant seeks to rely was given before the appellant was even aware of the
    claim being made in the stayed action. We do not agree with the appellants
    submission that this consent is broad enough to encompass the claim for damages
    resulting from the alleged wrongdoing that the appellant now wishes to pursue. The
    consent related only to a list of claims asserted against the receiver in
    matrimonial proceedings (where the receiver also asserted counterclaims). Even if
    read liberally, the consent could not include the proposed claim as it is one
    for conversion arising from an agreement of purchase and sale that was entered
    into after the execution of the consent.

[4]

We also see no basis to interfere with the motion judges refusal to
    grant leave to sue the receiver. This was a discretionary decision. The motion
    judge found that there was no evidence tendered that the appellant suffered
    damages and, having assessed the record before her, she declined to draw such an
    inference.

[5]

We see no error in her conclusion. It was reasonably based on the
    evidence or lack of evidence placed before her on the motion.

[6]

For these reasons, the appeal is dismissed.

[7]

Costs to the third parties/respondents fixed at $8,000 and to the
    respondent Richard Burnside & Associates fixed at $4,000, both inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2224981 Ontario Inc. v. Intact Insurance Company,
    2016 ONCA 870

DATE: 20161118

DOCKET: C61907

Blair, Epstein and Huscroft JJ.A.

BETWEEN

2224981 Ontario Inc. and 2047193 Ontario
    Inc.

Plaintiff
s (Respondents)

- and -

Intact Insurance Company

Defendant
(Respondent)

- and -

Zurich Insurance Company Ltd.

Defendant (Appellant)

Adam Grant, for appellant Zurich Insurance Company Ltd.

Thomas Donnelly, for respondents 2224981 Ontario Inc. and
    2047193 Ontario Inc.

Amelia Leckey, for respondent Intact Insurance Company

Heard:  November 4, 2016

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated March 15, 2016.

ENDORSEMENT

[1]

This is an appeal from the decision of the motion judge on a special case
    stated pursuant to Rule 22 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194.

[2]

The respondent 2224981 (Eco-Lux) conducted its manufacturing
    operations at premises leased from the respondent landlord, 2047193 (the Owner),
    pursuant to a month-to-month lease. A fire largely destroyed the premises on
    February 3, 2012 and Eco-Lux ceased production and stopped paying rent as a
    result. The premises were repaired as of November 1, 2012, some eight months
    later. By that time, Eco-Lux had gone out of business.

[3]

Eco-Luxs  insurer, the respondent, Intact

Insurance Company (Intact) provided coverage to Eco-Lux for lost
    profits pursuant to the property and business interruption policy it
    underwrote. The coverage was based on an estimate of the gross profits Eco-Lux
    would have made, less expenses, including the rent that Eco-Lux would have had to
    pay to the Owner.

[4]

The Owner sought coverage for business losses  in particular, the loss
    of rental income between February 3, 2012 and November 1, 2012  pursuant to
    its policy with the appellant Zurich

Insurance
    Company Ltd. (Zurich). Zurich denied coverage on the basis that Eco-Lux was
    obligated to continue to pay rent during that period, despite the fire.

[5]

Thus, an issue arose as to whether responsibility for the lost rent rested
    with Zurich, under the Owners policy; Intact, under Eco-Luxs policy; or
    Eco-Lux in its own capacity.

[6]

In order to resolve this issue the parties stated the following question
    in the court below pursuant to Rule 22:

Was Zurich entitled to deny coverage on the basis that there
    was no actual rental loss, since, in Zurich's view, Eco-Lux was obligated to
    pay rent to the Owner following the fire loss on February 3, 2012 until October
    31, 2012?

[7]

The motion judge found that the lease between Eco-Lux and the Owner was
    frustrated by the fire; that Eco-Luxs obligation to pay rent ceased as a
    result; and that the Owner suffered business losses covered by the insurance
    policy. He declared that Zurich was required to pay the Owners losses.

[8]

Zurich argues that all of these findings are in error. First, it
    acknowledges that a commercial lease may be frustrated, but submits that this
    lease was not frustrated because the disruption caused by the fire was
    temporary rather than permanent. Second, Zurich submits that Eco-Lux remained
    obligated to pay rent under the lease because the lease did not include an
    abatement provision and Eco-Lux never terminated the lease. Third, Zurich
    submits that the Owners loss was not caused solely by the fire and is not
    covered by the policy as a result. Zurich says that the loss was caused by Eco-Luxs
    failure to pay the rent due under the lease and the Owners failure to take steps
    to enforce payment.

[9]

We reject these submissions.

[10]

The motion judges conclusion that Zurich is required to cover the
    Owners lost rental income as a business loss under the policy is correct, but
    we reach this conclusion for different reasons. In particular, it is not
    necessary to determine whether or not the lease was frustrated.

[11]

As the motion judge noted, apart from the question of causation, Zurich
    admitted that the Owners loss of rental income was covered under its policy. The
    policy provided for business interruption loss (referred to as Time Element
    Loss):

Business Income Loss (at a premises)

We will pay for the actual Business Income Loss you sustain
    during the period of indemnity resulting from the necessary interruption of
    your business activities occurring at a premises if the interruption is
    caused solely by direct physical loss of or damage to covered property.

[12]

It is not disputed that the Owners loss of rental income constitutes a
    Business Income Loss, as set out in other provisions in the policy: where the
    Owners business activities include renting the premises, business income
    includes rental value, and rental value is defined as meaning total
anticipated
    rental income
from tenant occupancy. [Emphasis added]

[13]

Accordingly, the only issues the motion judge was required to determine
    were: (i) whether the loss of rental income resulted from the necessary
    interruption of the business (the unavoidable discontinuation of the business
    activities), and (ii) whether the necessary interruption was caused solely by
    the fire loss.

[14]

There is no dispute that the leased premises were largely destroyed by
    the fire and that Eco-Lux ceased operations as a result.
It
    follows that the necessary interruption was caused solely by the fire.
The
    agreed statement of facts includes the following statement at para. 13:

As a result of the fire, Eco-lux stopped operations at the
    Property and ceased making rent payments to the Owner.

[15]

Thus, the motion judges finding that the interruption of the use of
    the building by Eco-Lux was caused solely by a covered cause of loss, namely,
    the fire, was open on the record that was before him.

[16]

Plainly, the Owner anticipated receiving rental income from Eco-Lux but
    did not receive it. That is sufficient to trigger the coverage for Business
    Income Loss under the policy, which, as noted above, defines rental value as
    including total anticipated rental income from tenant occupancy.

[17]

Zurich was not entitled to deny coverage on the basis that Eco-Lux continued
    to be liable to pay rent for the relevant period, despite the fire. Even
    assuming that Eco-Lux remained legally obligated to pay rent following the destruction
    of the premises  an assumption that may be questionable given the doctrine of
    frustration  the Owner was under no obligation to pursue remedies against
    Eco-Lux before making a claim for business losses under its insurance policy
    with Zurich.

[18]

Zurich was obligated to cover the claim for lost rent under its policy
    with the Owner, and payment of the claim under the policy allows Zurich to pursue
    Eco-Lux for the rent as a subrogated claim if it chooses to do so. The possible
    inability of Eco-Lux to satisfy a judgment does not allow Zurich to shift the
    loss to the insured Owner.

[19]

Accordingly, the appeal is dismissed.

[20]

Zurich shall pay costs of $15,000 to Eco-Lux and the Owner and of $4,500
    to Intact, inclusive of taxes and disbursements.

R.A.
    Blair J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2016 ONCA 823

DATE: 20161104

DOCKET: C61668

Laskin, Sharpe and Huscroft JJ.A.

IN THE MATTER OF:  MOHAMED ABDIKARIM

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Michele Warner, for the respondent the Person in Charge
    of the Centre for Addiction and Mental Health

Alison Wheeler, for the respondent the Attorney General
    of Ontario

Heard: October 25, 2016

On appeal against the disposition of the Ontario Review
    Board, dated December 15, 2015.

ENDORSEMENT

[1]

Mr. Abdikarim appeals the December 15, 2015 disposition of the Ontario
    Review Board. The Board ordered that he be detained in the general forensic
    unit at the Centre for Addiction and Mental Health (CAMH) and restricted his
    permission to live in the community by requiring him to live in
supervised
 accommodation.

[2]

Mr. Abdikarim makes two submissions on his appeal:

i.

The Board erred by failing to consider whether Mr. Abdikarim ought to be
    conditionally discharged on the term that he consent to take any medication
    prescribed for him; and

ii.

Alternatively, the Board erred in attaching to its condition imposed in
    2014  that he be permitted to live in the community in accommodation approved
    by the person in charge  the word supervised.

A.

Background

[3]

Mr. Abdikarim is 32 years old. He has a high school education. The index
    offences of theft and robbery took place over 12 years ago. Mr. Abdikarim did
    not physically harm any member of the public in either offence.

[4]

Mr. Abdikarim was found not criminally responsible in October 2005. He
    has been diagnosed as suffering from bipolar disorder and personality disorder.
    He takes medication for his bipolar disorder.

[5]

Mr. Abdikarim has been in the minimum secure unit of the hospital for
    ten years. Attempts at community living have been tried but have been
    unsuccessful. His 2014 disposition, which was the product of a joint
    submission, continued his detention in the hospital with delegated authority to
    allow Mr. Abdikarim to live in the community.

[6]

At his 2015 hearing, Mr. Abdikarim did not dispute that he remained a
    significant threat to the safety of the public and thus he did not seek an absolute
    discharge. The principal issue before the Board was whether Mr. Abdikarim should
    be maintained on a hospital detention order, or conditionally discharged to
    live with his mother. The Board ordered that he be maintained in the hospital.

[7]

The secondary issue was whether the Board ought to accede to the
    hospitals request to modify the condition delegating authority to live in the
    community to specify supervised accommodation. The Board agreed with the
    hospitals request.

B.

The Issues

(1)

Did the Board err by
    failing to consider a conditional discharge?

[8]

At the 2015 hearing, Mr. Abdikarim requested a conditional discharge.
    His counsel told the Board that Mr. Abdikarim was amenable to taking any
    medication recommended for him as a term of a conditional discharge.

[9]

Although the Boards reasons and disposition implicitly rejected a
    conditional discharge, the Board did not expressly address Mr. Abdikarims
    request. It would have been better had the Board done so. Indeed, but for the
    fresh evidence filed on this appeal, we would have been concerned by the
    Boards failure to address why a conditional discharge was not appropriate.

[10]

However,
    the fresh evidence filed by the hospital, which we admitted at the outset of
    the appeal, shows that Mr. Abdikarim is not yet ready to be conditionally
    discharged. During the past year, he was twice discharged from CAMH to live in
    a supervised residence in the community. On both occasions he had to be
    readmitted to CAMH. We are told that as of August of this year he has again
    been discharged to live in supervised housing in the community.

[11]

The
    fresh evidence shows that before being considered for a conditional discharge,
    Mr. Abdikarim must demonstrate that he is able to live in supervised
    accommodation in the community. At his next review this November, the Board
    will be able to assess whether Mr. Abdikarims recent attempt at community
    living has been successful.

[12]

However,
    we are satisfied that in its 2015 disposition, the Board did not err in
    refusing to order a conditional discharge.

(2)

Did
    the Board err in specifying that the accommodation must be supervised?

[13]

The
    hospital asked that the term allowing Mr. Abdikarim to live in the community
    specify supervised accommodation. It did so for two reasons: to ensure any
    community living was structured; and to eliminate any conflict with Mr.
    Abdikarim, who thought that he could live anywhere.

[14]

These
    reasons seem sensible to us. And the Boards decision to insist on supervised
    accommodation was reasonable. It was supported by the opinion evidence of Dr.
    Chatterjee, and the Board was entitled to rely on her opinion.

C.

Conclusion

[15]

Accordingly,
    the appeal is dismissed.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

Grant Huscroft
    J.A.

APPENDIX A

ENDORSEMENT ON FRESH EVIDENCE APPLICATION

[1]      In our view the test in
Owen
is met. It
    is in the interest of justice, and not more of the same, to have evidence of
    what occurred when the appellant was discharged to reside in supervised
    housing. The Boards reasons make the evidence trustworthy, and we can take
    account of the Boards findings. The fresh evidence is admitted.