COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Lee,
    2014 ONCA 889

DATE: 20141211

DOCKET: C58662

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Rahim
    Khan, a minor by his Litigation Guardian, Bibi Khan, and Zameer

Khan and Bibi Khan
    personally

Plaintiffs (Appellants)

and

Dr. Joseph Lee

Defendant (Respondent)

Gavin MacKenzie and Jennifer A. Whincup, for the
    appellants

Kirk F. Stevens and Jennifer Z. Hunter, for the respondent

Heard: October 15, 2014

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated March 6, 2014, with reasons reported at
    2014 ONSC 1497.

Pardu J.A.:

[1]

This appeal involves an assessment of the level of detail required by rule
    25.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, in a
    pleading alleging negligent medical care.

[2]

Rule 25.06(1) provides:

Every pleading shall contain a concise statement of the
    material facts on which the party relies for the claim or defence, but not the
    evidence by which those facts are to be proved.

Background

[3]

According to the statement of claim, Dr. Lee cared for Bibi Khan during
    her pregnancy, hospitalization and the delivery of her son Rahim Khan, who was
    born on May 15, 1991 following an emergency caesarean section. The claim
    alleged that, because of Dr. Lees conduct, Rahim Khan suffered permanent brain
    damage, resulting in serious mental and physical impairments.

[4]

This matter has a lengthy procedural history. The statement of claim was
    issued on April 5, 2011. Shortly after service of the statement of claim, Dr.
    Lee served a demand for particulars as to exactly how it was alleged that he
    failed to meet the standard of care. He also asked for various hospital and
    clinical records. The plaintiffs undertook to provide him with the relevant
    records, but indicated that they did not have any further particulars to
    provide.

[5]

Dr. Lee then brought a motion to strike the statement of claim on the
    ground that it did not disclose material facts or particulars relating to any
    act or omission on the part of Dr. Lee. He did not swear an affidavit in
    support of his motion stating that he was unable to plead a defence.

[6]

The plaintiffs then obtained a Masters order to examine Dr. Lee under
    oath on his inability to respond to the claim. Dr. Lees appeal from that order
    was dismissed. Dr. Lee admitted during the examination that, while he did not
    specifically remember Ms. Khan, he provided obstetric care to her during her
    pregnancy, hospitalization, and the delivery of her baby. He had also reviewed
    the hospital records and his clinical notes.

[7]

The statement of claim includes the following allegations of negligence:

The plaintiffs allege that their injuries, loss and damage were
    caused or contributed to by the negligence of the defendant, particulars of
    which include the following:

a. He did not use reasonable and proper skill or care in his
    efforts to treat the plaintiff, Bibi Khan, and [Rahim Khan];

b. He failed to exercise the degree of knowledge, skill and
    diligence, which he ought to have possessed and exercised on behalf of the
    plaintiff, Bibi Khan and [Rahim Khan];

c. He failed to follow accepted medical practices in the
    diagnosis and treatment of the plaintiff, Bibi Khan, and [Rahim Khan];

d. He did not carry out any diagnostic tests and procedures
    available to determine the condition of the plaintiff, Bibi Khan, and [Rahim
    Khan] including tests and procedures available to assess fetal growth and
    well-being;

e. He failed to diagnose the condition of the plaintiff, Bibi
    Khan, and [Rahim Khan];

f. He failed to recommend that tests and procedures available
    to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be
    carried out, including tests and procedures available to assess fetal growth
    and fetal well-being;

g. He failed to check and monitor the condition of the
    plaintiff, Bibi Khan, and [Rahim Khan] and failed to respond to same;

h. He failed to prescribe medication and therapeutic procedures
    required to prevent complications from arising;

i. He failed to observe the damage occurring to [Rahim Khan]
    and failed to take any steps to prevent injury or damage;

j. In the treatment he provided, he created and/or increased
    the risk that [Rahim Khan] would sustain injury and damage, and in particular,
    permanent brain damage;

k. He failed to admit the plaintiff, Bibi Khan, to the hospital
    when indicated;

l. He failed to provide for the availability of an immediate [caesarean]
    section when same was indicated;

m. In failing to provide for the availability of an immediate [caesarean]
    section when indicated, he created and/or increased the risk that [Rahim Khan] would
    sustain injury and damage, and in particular, permanent brain damage;

n. He failed to obtain the informed consent of the plaintiffs
    to the treatment and procedures carried out.

Decision of the motion judge

[8]

The motion judge was confronted with conflicting authorities dealing
    with similar pleadings. He adopted the views expressed in
Basdeo
    (Litigation Guardian of)

v.

University Health Network
, [2002]
    O.T.C. 54 (S.C.), leave to appeal to Div. Ct. refused, [2002] O.J. No. 3046, at
    para. 17: Surely the defendants are entitled to have some indication of how
    they failed to exercise reasonable skill and care, what diagnostic steps were
    not taken, what tests were not administered, what medications should have been
    prescribed but were not, and so on. The motion judge observed that the Rules
    do not differentiate between different causes of action in respect of the
    requirements for pleadings, and agreed with the view expressed in
Basdeo
,
    at para. 19: If a plaintiff in a conspiracy claim is required to plead with
    specificity the facts giving rise to the conspiracy, I see no reason why the
    plaintiff in a medical malpractice claim ought not to be required to plead with
    specificity the facts which constitute the malpractice. The motion judge found
    that:

[T]he Plaintiff still cannot say what tests the Defendant
    omitted, what procedures and treatments he should have pursued but did not,
    what indications he overlooked for hospitalizing or preparing Bibi Khan for a [caesarean]
    section, what steps he took or did not take that added to Rahim Khans risk of
    injuries, and what it is that was done without obtaining the Plaintiffs
    consent.

[9]

On this basis, the motion judge found that the pleadings, including the
    following pleadings in paras. 8(d) and 8(f) of the statement of claim, were
    insufficient:

d. [Dr. Lee] did not carry out any diagnostic tests and
    procedures available to determine the condition of the plaintiff, Bibi Khan,
    and [Rahim Khan] including tests and procedures available to assess fetal
    growth and well-being;

f. He failed to recommend that tests and procedures available
    to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be
    carried out, including tests and procedures available to assess fetal growth
    and fetal well-being....

[10]

The
    motion judge accepted the point raised by the appellants counsel that the plaintiffs
    were not required to retain an expert at the pleadings stage of the action, but
    indicated nonetheless that the Defendant must be in a position to know what
    alleged wrongdoing he is required to defend. The motion judge struck the statement
    of claim without leave to amend, given that the plaintiffs acknowledged that
    they had no further particulars to provide.

Analysis

[11]

Each
    of the parties relies on a Superior Court decision. These decisions, dealing
    with similar pleadings, are conflicting. The respondent submits that the motion
    judge was correct to rely on
Basdeo
. The appellants argue that the
    motion judge ought to have applied
Chenier v. Hôpital Général de Hawkesbury
,
    [2006] O.J. No. 1679 (S.C.), which held that similar pleadings were sufficient.

[12]

I
    do not agree with
Basdeo,
and prefer the reasoning in
Chenier
.

[13]

I
    agree with the observation of Aitken J. in
Chenier
,

at para.
    21:

At this early stage in the litigation process, it would be
    placing an unduly onerous burden on the Plaintiffs to describe in detail what
    transpired or did not transpire at all of these points in time. The Defendants
    are in the position of knowing with great particularity what was done or not
    done by way of treatment and intervention. The Plaintiffs will only be able to
    further particularize their allegations once any records that have been
    disclosed to them by the Defendants are further supplemented with responses
    given on discovery. The Plaintiffs cannot be expected to have retained their
    own medical experts to assist in particularizing their allegations regarding a
    breach of a standard of care by the Defendant Physicians before those experts
    would have access to all available information as to what actually happened at
    the time of Sachas birth.

[14]

It
    is noteworthy that the defendant physician did not at any stage swear in an
    affidavit that he was unable to plead a defence.

[15]

Presumably,
    the defendant would be aware of the standard of care at the relevant time. He
    has his office chart and the hospital records, so he would know what he did or
    did not do. His interactions with the patient over the period of the pregnancy
    are discrete and identifiable, over a relatively short period.

[16]

As
    acknowledged by the respondent in oral argument, the effect of the motion
    judges order is to require a plaintiff in a case like this one to obtain an
    expert opinion before pleading, in the absence of full information about the
    case. While getting an early opinion might be useful and prudent, it should not
    be required as a condition of starting an action. Many plaintiffs will not have
    the expertise required to plead with precision the exact tests a defendant
    should have ordered.

[17]

Furthermore,
    a limitation period will begin to run when a plaintiff has sufficient facts
    upon which she could allege negligence, and, in some cases, before the
    plaintiff has expert opinion evidence or knows the precise cause of the injury:
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75, at para. 36.

[18]

In
Lawless
, at para. 36, the court approvingly cited the following
    passage from
McSween v. Louis
(2000), 132 O.R. 304 (C.A.), at para.
    51: the production and discovery process and obtaining expert reports after acquiring
    knowledge through that process, are litigation procedures commonly used by a
    plaintiff to learn the details of how the injury was caused, or even about the
    existence of other possible causes and other potential defendants.

[19]

Rule
    1.04(1) provides that [t]hese rules shall be liberally construed to secure the
    just, most expeditious and least expensive determination of every civil
    proceeding on its merits. To strike a statement of claim in the circumstances
    of this case would significantly impede rather than facilitate access to
    justice, an important value emphasized in
Hryniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87.

[20]

Further,
    I also observe that, contrary to the views expressed by the motion judge, at
    para. 18, and in
Basdeo
, at para. 19, the
Rules of Civil Procedure
do differentiate between causes of action in respect of the requirements for
    pleadings. Rule 25.06(8) provides: Where fraud, misrepresentation, breach of
    trust, malice or intent is alleged, the pleading shall contain full
    particulars.

[21]

In
    my view, the motion judge erred in striking the statement of claim. In the
    circumstances of this case, the pleading contains a sufficient statement of the
    material facts to enable the respondent to deliver a statement of defence.

[22]

Accordingly,
    I would allow the appeal.

[23]

For
    these reasons, the appeal is allowed and the order of March 6, 2014 is set
    aside. The plaintiff is awarded costs of the motion in the sum of $8357.41 all
    inclusive, and costs on the appeal fixed at $15,000 all inclusive.

Released: DEC 11 2014

(JL)
    G. Pardu J.A.

I agree John Laskin J.A.

I agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Korea Data
    Systems (USA), Inc. v. Aamazing Technologies Inc. (Ajay Amazing Technologies
    Inc.), 2014 ONCA 863

DATE: 20141202

DOCKET: M43880, M43941, M44009,

M44015 and M44059 (C55916)

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Korea Data Systems (USA), Inc.

Plaintiff (Appellant)

and

Aamazing Technologies Inc. carrying on business
    as Ajay Amazing Technologies Inc.,
Jay Chiang, a.k.a. Jay
    Tien Chiang a.k.a. Tienchieh Chiang
, Julius Chiang and Christina Chiang
    a.k.a. Christian Chiang a.k.a. Suh Mei Tasi, a.k.a. Suh Mei Tsai a.k.a.
    Christina Suh Mei Tsai, a.k.a. Suh Mei Tasi Chiang, a.k.a. Christina Suh-Mei
    Chiang a.k.a. Suh-Mei Chiang, and Dong Liang a.k.a. Tung Liang

Defendants (
Respondents in Appeal
)

AND BETWEEN:

Mendlowitz &
    Associates Inc. in its capacity as Trustee in bankruptcy of Jay Tien Chiang,
    and
Korea Data Systems (USA), Inc.

Plaintiffs (
Appellant
)

and

Jay
    Tien Chiang, a.k.a. Jay Chiang, a.k.a. Tienchieh Chiang, Christina Chiang, also
    known as Suh Mei Tasi, a.k.a. Christian Chiang a.k.a. Suh Mei Tsai, a.k.a.
    Christina Suh Mei Tsai, a.k.a. Suh Mei Tasi Chiang, a.k.a. Christina Suh-Mei
    Chiang a.k.a. Suh-Mei Chiang
, Chun Chun Wu, Jie Chu Wu, Chen Cheng-Yueh
    Tsai, Yu Chang Chiang also known as Y.C. Chiang, En Fu Chiang, Brenda Chang,
    Samson Chang, David Cheng, Everview Inc., 961266 Ontario Inc., 1204360 Ontario
    Inc., 1243723 Ontario Inc., Aamazing Technologies Inc., Wen Wang Chiang a.k.a.
    Wen Chiang a.k.a. Wen Wang, Crystalview Technology Corp., E.C. Holdings Ltd.,
    Telepower International (Canada), Inc., Best Buy Electronics Inc., Su Feng Tsai
    a.k.a. Tsai Su Feng, Tsai Zheng Li, Tsai Zheng Ying, Asia Pacific Gateway
    (H.K.) Ltd., Century Group Holdings Ltd., Albany Investments Ltd., Mei Huang,
    Winner International Group Limited, Huang Chi Lung, Min Huang, Wainwright
    Ventures Ltd., New Global Investment Limited and Floratino Limited

Defendants (
Respondents in Appeal
)

Scott Hutchison, for the moving party Korea Data Systems
    (USA), Inc. on M44059

Hilary Book, for the moving party Christina Chiang on
    M43941 and M44015

Catherine Francis and Mark A. Freake, for the moving
    party Mendlowitz & Associates Inc. on M43880

J.T. Curry and K.M. Pentney, for moving party Jay Chiang
    on M44009

Heard: August 25, 2014

On motion for directions on the appeal from the order of Associate
    Chief Justice Frank N. Marrocco of the Superior Court of Justice, dated July 9,
    2012.

COSTS ENDORSEMENT

[1]

The appellant Korea Data Systems (USA) was successful on the motion
    heard by this Court on August 25, 2014.

[2]

The issues in the motion were complex and the history was extensive.

[3]

The appellant is awarded costs fixed in the amount of $25,000 -
    inclusive of disbursements and applicable taxes  to be paid jointly by the
    Trustee and Christina Chiang.

David Watt J.A.

M.
    Tulloch J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Larman v. Mount Sinai Hospital, 2014 ONCA 923

DATE: 20141224

DOCKET: C58838

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Elliott Gerald Larman

Plaintiff (Appellant)

and

Mount
    Sinai Hospital, Dr. Oleg Safir, Dr. Olanrewaju

Okusanya and Dr. Aaron
    Nauth

Defendants (Respondents)

J. Brian Johnston, for the appellant

Elizabeth K. P. Grace and Nadia Marotta, for Dr. Safir,
    Dr. Okusanya and Dr. Nauth

Daniel Girlando and Meghan Lindo, for Mount Sinai
    Hospital

Heard and released orally: December 19, 2014

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated April 24, 2014.

ENDORSEMENT

[1]

The appellant appeals from a judgment granted on a Rule 20 motion. The
    motion judge dismissed his action claiming damages as a result of the medical
    treatment he received from the respondents.

[2]

When the motion was first brought, no expert report had been delivered
    by the appellant notwithstanding court ordered timetables requiring him to do
    so. While the appellant is correct in asserting that the focus of the original
    notice of motion was on the lack of an expert report, nevertheless, the motion
    was for summary judgment dismissing the action. It would have been apparent to
    the appellant that simply delivering an expert report, that is,
any
expert report, would not be sufficient to successfully resist the motion.

[3]

The action had been commenced four years before the motion was brought. The
    absence of an expert report, which is acknowledged by the appellant to be
    essential to his success in the action, had been noted and pursued consistently
    by the respondents.

[4]

We agree with the specific findings of the motion judge that there was
    no evidence of causation put forward by the appellant in response to the motion
    and that there was no evidence in the expert report that the hospital and two
    of the doctors fell below the standard of care. The failure to put forward any
    evidence on these essential elements was fatal in this case.

[5]

The appellant contends that he was denied procedural fairness when the
    respondents relied on discovery transcripts at the hearing of the motion. There
    was no denial of procedural fairness. The reason the motion judge granted
    summary judgment was that the appellant failed to meet his obligation to put
    his best foot forward regardless of the moving partys evidence. The failure to
    do so means that there was no evidence to address central elements of the
    appellants claim, including causation, and therefore no issue requiring a
    trial.

[6]

The appeal is therefore dismissed.

[7]

Costs are payable by the appellant to the respondent Hospital in the sum
    of $5,000 inclusive of disbursements and applicable taxes, and in the same
    amount to the other respondents.

Robert
    J. Sharpe J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Matthew Brady
    Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858

DATE: 20141203

DOCKET: C57707

Doherty, Blair and Tulloch JJ.A.

BETWEEN

Matthew Brady Self Storage Corporation

Plaintiff (Respondent)

and

InStorage Limited Partnership and InStorage
    Trustee Corp.

Defendants (Appellants)

Robert Malen and Robert Drake, for the appellants

Clifford Lax, Q.C., and Shaun Laubman, for the
    respondent

Heard: October 29, 2014

On appeal from the order and judgment of Justice Richard
    C. Gates of the Superior Court of Justice, dated July 6, 2012 and August 30,
    2013, respectively, with reasons for the judgment reported at 2013 ONSC 4345,
    35 R.P.R. (5th) 232.

By the Court:

Background

[1]

In 2007 the principals of Matthew Brady Self Storage Corporation (Robert
    and Michael Siskind) agreed with the principal of the InStorage appellants
    (James Tadeson) that they would jointly purchase a vacant factory in Windsor
    and convert it into a self-storage facility.  The InStorage appellants (InStorage)
    were part of a group of corporations in the business of operating self-storage
    facilities and had approximately 50 sites in operation at the time. Matthew
    Brady was incorporated for the purpose of acquiring and converting the property
    for the joint venture.

[2]

The agreement was that each party would provide one-half of the purchase
    price and they would each have an equal interest in the property during the
    period of time it took Matthew Brady to convert it into the self-storage
    facility.  InStorage would then buy the whole property from Matthew Brady and
    operate it as an InStorage location.

[3]

However, InStorage ran into financial difficulties before the purchase
    was to take place, and this led to further negotiations and another arrangement.
    Under the new arrangement, the Siskinds agreed to put up the entire purchase
    price, and Matthew Brady would become the sole owner of the property pending
    completion of the project.

[4]

In addition, the parties entered into an Offer to Purchase and Sell
    Agreement (which we will refer to as the Put/Call Agreement).  Under this
    latter agreement, Matthew Brady could force InStorage to purchase the property
    through a Put and InStorage could force Matthew Brady to sell the property to
    it through a Call, beginning one year following substantial completion of the
    retrofit and for three years thereafter.

[5]

In substance, the Put/Call Agreement provided that, in the event of a
    Put or a Call, the parties would have 15 days to agree on a purchase price.  If
    they did not agree, an appraiser was to be retained to determine the purchase
    price and, in the absence of manifest error, the appraisers determination of
    Fair Market Value, as defined, would bind the parties.  There was not to be
    an exercise of competing expert appraisals.  By agreement, Valco Consultants
    Inc. was named as the appraiser.

[6]

It is the language of the Fair Market Value definition, in conjunction
    with the manifest error caveat that lies at the heart of this appeal.  Fair
    Market Value was defined as follows:

1.1(m) Fair Market Value
means, in respect
    of the Property,
the most probable price which the Property should bring in
    a competitive and open market under all conditions requisite to a fair sale
,
    the buyer and seller each acting prudently and knowledgeably and without
    compulsion and
with the primary consideration being the net cash flow being
    generated from the Property
, and assuming the price is not affected by
    undue stimuli in circumstances where: (i) both parties are typically
    motivated; (ii) both parties are well informed or well advised, and acting in
    what they consider their best interests; (iii) a reasonable time is allowed for
    exposure of the Property in the open market; (iv) payment is made in terms of
    cash in Canadian dollars or in terms of financial arrangements comparable
    thereto; and (v) the price represents the normal consideration for the Property
    sold, unaffected by special or creative financing or sales concessions granted
    by anyone associated with the sale. [Emphasis added.]

[7]

On July 21, 2009  a little more than a year after substantial
    completion  Matthew Brady exercised the Put.

[8]

In the meantime, however, InStorage had been acquired by a large American
    self-storage business, Storage Mart, in a hostile take-over.  Storage Marts C.E.O.,
    Michael Burnham, did not favour the Windsor project and, on the evidence before
    the trial judge, actively sought ways to get out of it and to avoid having to
    comply with the Put/Call Agreement.  He had been advised by his lawyers in both
    Ontario and the United States that he was bound by InStorages obligations
    under the Put/Call Agreement.  He decided, nonetheless, that he would force
    Matthew Brady to sue and that he would negotiate in court.

[9]

Not surprisingly, the parties could not agree on a price.  Valco was
    retained to conduct the appraisal called for under the Put/Call Agreement and James
    Telford of that firm did so.  He concluded that the fair market value of the
    property was $7.3 million.

[10]

InStorage
     now controlled by Storage Mart  refused to accept the appraisal.  Mr.
    Burnham took the position that Mr. Telford had made a manifest error in
    failing to found his conclusion about fair market value on the income approach
    to valuation, thereby ignoring the provision in the Put/Call Agreement that the
    primary consideration in establishing fair market value was to be the net
    cash flow being generated from the Property.
[1]

[11]

Not
    surprisingly, Matthew Brady sued.

[12]

At
    trial, InStorage attempted to introduce the report and evidence of a different
    appraiser, Mr. Bower, who calculated fair market value at less than $5 million,
    using primarily the income approach.  At the conclusion of all of the evidence
    bearing on the manifest error argument, Matthew Bradys counsel moved for an
    order excluding Mr. Bowers report.

[13]

The
    trial judge excluded the evidence, and in the course of his mid-trial ruling on
    the issue he also concluded that Mr. Telford had made no manifest error in
    arriving at his fair market value conclusion.  This ruling effectively took
    manifest error off of the table for further argument at the conclusion of
    trial.

[14]

In
    the end, the trial judge ruled in favour of Matthew Brady and awarded it
    specific performance of the Put/Call Agreement; InStorage is therefore required
    to accept a conveyance of the property and to pay Matthew Brady the $7.3
    million purchase price.  Damages of $728,080.05 were awarded for other matters,
    but they are not the subject of appeal.  In addition, the trial judge awarded
    Matthew Brady costs in the amount of $415,000 plus HST, in part on a partial
    indemnity basis, but also on a substantial indemnity basis from the time of an
    email offer to settle made by a principal of Matthew Brady, Michael Siskind,
    directly to Mr. Burnham on behalf of InStorage.  Matthew Brady bettered this
    offer at trial.

Issues

[15]

On
    appeal, InStorage raises essentially three issues.  It submits that the trial
    judge erred:

a)

in substance, by concluding
    that Mr. Telford had not made a manifest error in his valuation, and
    procedurally, by making that decision mid-trial  in the context of the motion
    to exclude Mr. Bowers evidence  without giving InStorages counsel the opportunity
    to argue the issue more fully at the conclusion of trial;

b)

in awarding Matthew
    Brady specific performance and in finding that Matthew Brady did not have a
    duty to mitigate; and

c)

in awarding costs on a
    substantial indemnity basis and, in any event, awarded costs that were
    excessive.

Discussion

[16]

We
    would not give effect to these grounds of appeal for the following reasons.

Manifest Error

[17]

InStorage
    argues first that the trial judge erred in finding that Mr. Telford had not
    made a manifest error in his valuation. It submits that under the terms of the
    Put/Call Agreement, the appraiser had to use the income approach to valuation
    as at least one of the methods of appraisal and that in failing to do so Mr. Telford
    committed a manifest error.

[18]

We
    disagree that the language of the Put/Call Agreement required the appraiser to
    use the income approach as one method.  Instead, he was required to give that
    approach primary consideration.  Ultimately, however, it was open to the
    appraiser, after considering it, to determine that the income approach was not
    helpful in the circumstances.  Mr. Telford did so and explained why he reached
    the conclusion he did on valuation.

[19]

InStorage
    further argues that the trial judge erroneously determined the manifest error
    issue mid-trial when it was only necessary to determine the admissibility of
    the opinion of its expert appraiser, Mr. Bower. The trial judges determination
    was a procedural failing that deprived InStorage of the opportunity to make
    full submissions on the manifest error point, it submits.

[20]

For
    the purposes of disposing of the appeal, we are prepared to assume that the
    trial judge should not have made a finding that there was no manifest error
    in the Telford appraisal in the course of his ruling as to the admissibility of
    the Bower opinion.  We are also prepared to assume that the trial judge should
    have determined only whether the Bower opinion went to the question of whether
    there was a manifest error but should have left the ultimate determination of
    that issue to the end of the case.

[21]

We
    are also satisfied that it is at least arguable that InStorage did not get a
    full opportunity at trial to address whether there was manifest error in the
    Telford appraisal.  It is accepted that all of the evidence relevant to that
    issue was heard, but counsel for InStorage maintains that, given the way the
    trial judge decided the issue, he never had a full opportunity to argue it. He
    agrees that the Bower report did not address the issue of manifest error
    directly.

[22]

The
    question then becomes whether this procedural failing resulted in any prejudice
    to InStorage at trial.

[23]

InStorages
    prejudice argument rests on the assertion that, had counsel been able to argue
    the manifest error issue at the conclusion of trial, he could have raised
    aspects of the Telford appraisal and aspects of Telfords cross-examination
    which may have convinced the trial judge that the appraiser had made a manifest
    error in not using the income approach.

[24]

Counsel
    provided us with three examples.  We do not propose to examine these examples
    in detail.  We do not agree than any could support a finding of prejudice.  For
    example, while it is true that Telford did not refer specifically to the terms
    of the Put/Call Agreement and, specifically, to the provision relating to the
    determination of fair market value, in his report, in his evidence he made it
    clear that he was fully aware of the terms of the Put/Call Agreement and
    explained his reasons for following the course he did.  The fact that he did
    not mention the terms of the Put/Call Agreement in his report would not provide
    fodder for the kind of argument needed to demonstrate manifest error in the report.

[25]

We
    reject this ground of appeal.

Specific
    Performance and the Obligation to Mitigate

[26]

In
    this case, the arguments relating to specific performance and mitigation are
    intertwined.  If Matthew Brady is entitled to specific performance there can
    have been no duty to mitigate by selling the property and crystallizing its
    claim in damages.  Otherwise, the claim for specific performance would become
    moot.

[27]

The
    issue, therefore, is whether Matthew Brady was justified in pursuing its claim
    for specific performance in the circumstances.  The trial judge found that it
    was and granted specific performance.  We see no basis for interfering with that
    decision.

[28]

As
    Matthew Brady points out in its factum, the trial judge granted specific
    performance because (i) the property was unique, (ii) damages would not be an
    adequate remedy, and (iii) there was a fair, real and substantial justification
    for specific performance.  Although InStorage does not contest that these are
    the appropriate principles, it submits that the trial judge erred in all three
    respects nonetheless. It says that specific performance should not have been
    granted because Matthew Brady is a
vendor
seeking specific performance
    of an agreement for the sale of a non-unique investment property whose losses
    can readily be compensated for in damages.

[29]

In
    its essence, specific performance is a discretionary equitable remedy granted
    where damages cannot afford an adequate and just remedy in the circumstances.  Almost
    200 years ago, the principle was described by Sir John Leach, V.C., in
Adderley
    v. Dixon
(1824), 57 E.R. 239, at p. 240:

Courts of Equity decree the specific performance of contracts,
    not upon any distinction between realty and personalty,
but because damages
    at law may not, in the particular case, afford a complete remedy
.
    [Emphasis added.]

[30]

Although
    specific performance is not in principle granted on the basis of any distinction
    between contracts for the sale of land and contracts involving personal
    property, until relatively recently that distinction has prevailed as a matter
    of course. That is because the law has traditionally viewed land as inherently
    unique such that damages could not sufficiently compensate its prospective
    purchaser.

[31]

In
Semelhago v. Paramadevan
, [1996] 2 S.C.R. 415, the Supreme Court of
    Canada discarded that approach, however. The Court confirmed that specific
    performance was not to be available automatically as the default remedy for
    breach of a contract for the sale of lands absent evidence that the property
    is unique to the extent that its substitute would not be readily available or
    absent a fair, real and substantial justification for the claim to specific
    performance (at para. 22).

[32]

Whether
    specific performance is to be awarded or not is therefore a question that is
    rooted firmly in the facts of an individual case.  In
Landmark of Thornhill
    Ltd. v. Jacobson
(1995), 25 O.R. (3d) 628 (C.A.), at p. 636, this Court
    identified three factors bearing on the exercise of discretion in favour of
    specific performance: (i) the nature of the property involved; (ii) the related
    question of the inadequacy of damages as a remedy; and, (iii) the behaviour of
    the parties, having regard to the equitable nature of the remedy.

[33]

What
    makes this case unusual is that it is the
vendor
rather than the
    purchaser seeking to have these factors reviewed in its favour.  In such
    circumstances, damages will often be an adequate remedy.  Indeed, there is a
    debate about whether the arguments in favour of granting specific performance
    to a vendor are weaker than those in favour of the purchaser: see Robert J.
    Sharpe,
Injunctions and Specific Performance
, looseleaf (Toronto:
    Canada Law Book, 2012), at paras. 8.100 to 8.220;
Dick v. Dennis
(1991), 20 R.P.R. (2d) 264 (Ont. Gen. Div.), at paras. 31-33.

[34]

But
    it will not always be the case that damages are an adequate remedy where the
    vendor is the plaintiff, and there are authorities supporting the granting of
    specific performance in favour of a vendor: see, for example,
Landmark of
    Thornhill
;
Dick v. Dennis
, at para. 38;
Westwood Plateau
    Partnership v. WSP Construction Ltd.
(1997), 37 B.C.L.R. (3d) 82 (S.C.),
    at paras. 148-156, 163; and
Comet Investments Ltd. v. Northwind Logging
    Ltd.
(1998), 22 R.P.R. (3d) 294 (B.C. S.C.), at paras. 35-39.

[35]

In
    an analogous context, where the claim relates to an investment property and any
    unique characteristics can be reflected in the sale price or profits from the
    investment and, therefore, give rise to quantifiable damages, courts have taken
    the position  following the approach taken in
Semelhago
 that there
    is no clear rule one way or the other as to whether specific performance is
    available.  Its availability will turn on the uniqueness of the property and
    whether there is a fair, real and substantial justification for the claim. See,
    for example,
John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd.
(2001), 56 O.R. (3d) 341 (S.C.), at para. 59, affd (2003), 63 O.R. (3d) 304
    (C.A.), at paras. 37-39, 43-44, leave to appeal to S.C.C. refused, (2003) 223
    D.L.R. (4th) vi;
Monson v. West Barrhaven Developments Inc.
, [2000]
    O.J. No. 5209 (S.C.), at paras. 8-9;
1174538 Ontario Ltd. v. Barzel Windsor
    (1984) Inc.
(1999), 29 R.P.R. (3d) 256 (S.C.), at paras. 7-8;
365733
    Alberta Ltd. v. Tiberio
, 2008 ABCA 341, 440 A.R. 177, at paras. 10-12.

[36]

In
    our view, in the context of vendor claims  consistent with the approach taken
    in
Semelhago
 there is no absolute rule, one way or the other.  The
    following passage from the Sharpe text, at paras. 7.210 and 7.220 is
    instructive:

Where the subject-matter of the contract is unique
,
    a strong case can be made for specific performance.
The more unusual the
    subject-matter of the contract
, the more difficult it becomes to assess
    the plaintiffs loss.

An award of damages presumes that the plaintiffs expectation
    can be protected by a money award
which will purchase substitute
    performance
.  If the item bargained for is unique, then there is no exact
    substitute. [Emphasis added.]

[37]

Two
    considerations emerge from that passage.  First, it is the subject-matter of
the
    contract
, not the land alone that must be unique or unusual.  Second, the
    measure of the adequacy of a money award is whether it will purchase
    substitute performance.  These considerations help shed light on the analysis
    where the vendor is the plaintiff.

[38]

The
    uniqueness analysis in such circumstances has a slightly different focus than
    in the usual case where the purchaser seeks the remedy.  There, the issue is
    whether
the land itself
has some peculiar or special value
to the
    purchaser
who is seeking to obtain it and whether there is a reasonable
    substitute readily available.  That paradigm does not fit into the analysis as
    readily where
the vendor
seeks specific performance.  In one sense,
    there is nothing unique about the property the vendor receives when such an
    order is made.  The vendor receives the purchase price  the value of the land
    in money according to the contract.

[39]

It
    does not follow, however, that there may not be uniqueness, or a special
    character, to the circumstances of
the transaction
 the
    subject-matter of the contract viewed more broadly  that will justify specific
    performance.  Where the vendor seeks the remedy the focus should be on the transaction
    as a whole.

[40]

The
    trial judge recognized this.  He said that the adequacy of money damages will
    turn on the question of whether the subject matter of the contract is generic
    or unique.  InStorage argues he was wrong in taking this approach and that it
    is the land, and not the subject-matter of the contract, that must be unique.
    We do not agree.  The special character of the land may remain a factor for
    consideration but the key factors, looking at the contract broadly, are (i)
    whether on the facts as a whole, damages will afford the vendor an adequate and
    complete remedy or whether a money award will be sufficient to purchase
    substitute performance; (ii) whether the vendor has established some fair, real
    and substantial justification for the granting of specific performance; and,
    (iii) whether the equities as between the parties favour the granting of
    specific performance.

[41]

The
    trial judge found that those criteria were met.  We see no error in his
    conclusion that Matthew Brady was entitled to specific performance.  There were
    ample circumstances justifying the award.  These included the following:

a)

InStorage was always
    intended to be the sole owner of the property.  As its pre-takeover principal,
    Mr. Tadeson, testified, the Put/Call Agreement was entered into so that
    InStorage would not have to outlay the necessary capital for its acquisition
    immediately.

b)

Matthew Brady
    renovated the subject premises to InStorages specifications and design
    criteria.  The property had a high ratio of climate controlled storage units
    and was the only Class A self-storage facility in Windsor.

c)

But for InStorages
    commitment to owning the property, Matthew Brady would not have acquired it and
    done the retrofit.  Its principals were out of the self-storage business,
    having sold their seven outlets to InStorage previously.  The deal did not contemplate
    Matthew Brady being left holding a single-purpose and specially-designed
    building suitable only for carrying on a business in which it and its
    principals were no longer engaged.

d)

InStorage had
    occupied, managed and operated the building (under the brand InStorage, and
    later Storage Mart) since the completion of the retrofit  the state of affairs
    contemplated by the parties from the very outset of their contractual dealings.

e)

InStorage had,
    admittedly, done a poor job in managing the property  something that would
    affect its value and impede a ready sale.

f)

Storage
    Marts C.E.O., Burnham, had candidly admitted that if there were no manifest
    error in the Telford appraisal, he would write a cheque.  He made no secret
    of the fact that he did not want anything to do with the Windsor project, had
    not understood the Put/Call Agreement, and that his strategy was to negotiate
    in court.  He purposely resiled from the contract, and repudiated the advice
    of both Ontario and U.S. counsel that InStorage was obliged to comply.

[42]

In
    all of these circumstances, the trial judge was entitled to conclude, as he
    did, that damages would not adequately and justly compensate Matthew Brady for
    InStorages refusal to abide by the Put/Call Agreement and that Matthew Brady
    had shown a fair, real and substantial justification to compel performance of
    the Agreement, and that the equities favoured Matthew Brady.  That being the
    case, there was no obligation on Matthew Brady to have attempted to mitigate by
    selling the property in an effort to crystalize its damages.

The
    Costs Award

[43]

Finally,
    InStorage attacks the trial judges costs award of $415,000 plus HST.  The
    award was made on a partial indemnity basis to the point of an offer to settle
    made by Matthew Brady (and not accepted by InStorage) and on a substantial
    indemnity basis thereafter.

[44]

InStorages
    principal attack is on the substantial indemnity aspect of the award.  InStorage
    submits that the offer to settle did not qualify as a Rule 49 offer to settle
    for costs purposes because, although it had been exchanged directly between the
    parties, it had not been served on InStorages solicitors, as required by rule
    16.01(4)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    which provides that:

Any document that is not required to be served
    personally or by an alternative to personal service,

(a) shall be served on a party who has a lawyer of
    record by serving the lawyer, and service may be made in a manner provided in
    rule 16.05.

[45]

We
    do not agree.  In
Igbokwe v. HB Group Insurance Management Ltd.
(2001), 55 O.R. (3d) 313 (C.A.), leave to appeal to S.C.C. refused, (2002), 166
    O.A.C. 200 (note), Labrosse J.A. ruled that, while an offer should be served on
    the solicitor of record, failure to comply with this technical requirement
    ought not to alter the nature and legal effect of the offer under Rule 49
    where, in the circumstances, the service of the offer to settle on the [party]
    did not create any difficulty, confusion or otherwise mislead the plaintiff
    (at paras. 10-11).

[46]

That
    is the case here, in our view. The trial judge found that the offer
    represented a serious and reasonable attempt to settle the matter, that the
    parties had turned their minds to a settlement, within [the email exchange in
    which the offer was contained]. When asked during argument, counsel confirmed
    there was no evidence that InStorages lawyers were unaware of the offer.
    Indeed, it appeared to the trial judge that Burnham had discussed it with
    counsel, because InStorage later delivered an offer to settle itself.

[47]

Rule
    2.01(1) provides that a failure to comply with the rules is an irregularity
    and does not render a proceeding or a step, document or order in a proceeding a
    nullity.  In the circumstances, we see no error in the trial judges
    conclusion that the lack of formal service on InStorages solicitors did not
    render the offer a nullity for Rule 49 purposes.

[48]

Even
    if he erred in concluding the offer met the requirements for Rule 49, however,
    the trial judge was still entitled to take the offer to settle into account in
    arriving at his award of costs: r. 49.13.  As this Court recently observed, in
Lawson
    v. Viersen
, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 46, rule 49.13 allows
    a judge to consider offers even though the offers do not comply with [the]
    rules; it is not concerned with technical compliance and calls on the judge
    to take a more holistic approach.  That is what the trial judge did here.

[49]

InStorage
    also attacked the award on the basis that the substantial indemnity costs
    exceeded the 1.5 times multiplier provided for in the definition of
    substantial indemnity costs found in rule 1.03(1).  It states:

In these rules, unless the context requires otherwise,

substantial indemnity costs mean costs awarded in an amount
    that is 1.5 times what would otherwise be awarded in accordance with Part I of
    Tariff A.

[50]

Here,
    the context required otherwise, in our view.

[51]

Matthew
    Brady had originally agreed to costs on a partial indemnity basis in the amount
    of approximately $252,000, subject to the effect of the offer to settle.
    Subsequently, the claim was made for substantial indemnity costs flowing from
    the offer to settle.  InStorage therefore argues that the substantial indemnity
    amount  taking into account the date of the offer  should have been approximately
    $334,000, based on the 1.5 times multiplier.  Instead, the trial judge awarded
    $415,000, amounting to a factor of about 1.65.

[52]

The
    trial judge was alive to the 1.5 multiplier, and took it as a starting point.
    However, he exercised his discretion to increase that amount, based on InStorages
    conduct that had unnecessarily prolonged the trial (seeking to put forward the
    Bower report, a trial adjournment that required further preparation and the
    pursuit of an unmeritorious claim for deficiencies that was ultimately
    withdrawn).  In the end, the trial judge applied the proper balance by
    instructing himself on the basis of
Boucher v. Public Accountants Council
    for the Province of Ontario
(2004), 71 O.R. (3d) 291 (C.A.), at para. 26, that
    the objective is to fix an amount that is fair and reasonable for the
    unsuccessful party to pay in the particular proceeding.  He was entitled to
    take this approach in the exercise of his discretion, and there is no basis to
    interfere with his determination of the amount.

[53]

InStorages
    final attack on the costs award was to argue that it was simply too high.  The
    trial judge exercised his discretion after applying all of the proper
    principles.  There is no basis to interfere with the amount he ultimately
    arrived at.  In this respect we note that InStorages claim for costs on a
    partial indemnity basis only was approximately $300,000.

Disposition

[54]

For
    the foregoing reasons, the appeal is dismissed.  While leave to appeal costs is
    granted, the appeal as to costs is dismissed as well.

[55]

In
    accordance with the agreement of counsel, costs of the appeal are fixed in the
    amount of $30,000 all inclusive, in favour of Matthew Brady.

Released: R.A.B. December 3, 2014

Doherty J.A.

R.A. Blair J.A.

M. Tulloch J.A.

[1]
InStorage also argued that there had been deficiencies in the retrofit done by
    Matthew Brady.  That issue consumed a considerable amount of time at trial, but
    is not raised on appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Medcof (Re), 2014 ONCA 868

DATE: 20141203

DOCKET: C58441

Doherty, Feldman and Epstein JJ.A.

IN THE MATTER OF WILLIAM MEDCOF

AN APPEAL UNDER PART XX.1 OF THE
CODE

James Carlisle, for the appellant

Jocelyn Speyer, for the respondent

Gavin S. MacKenzie, appearing for the Centre for
    Addiction and Mental Health

Heard:  November 26, 2014

On appeal against the disposition of the Ontario Review
    Board dated, February 21, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The Boards finding is set out at page 7.  Having regard to the
    appellants admitted non-compliance with the terms of his previous
    dispositions, the appellants lack of insight into his condition and medical
    needs, and the events of the last year, we cannot describe the Boards decision
    as unreasonable.

[2]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Neely v. MacDonald, 2014 ONCA 874

DATE: 20141208

DOCKET: C58903

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Sandi Neely

Plaintiff

and

Kelly MacDonald,
Bond Head
    Golf Resort Inc
.
, and
ClubLink Corporation
    ULC

Defendants

(Respondents)

and

Canadian Litigation
    Counsel
and Paul McCague

Third Party

(Appellant)

Christopher R. Dunn, for the appellant

Mark Elkin, for the respondents

Heard: November 24, 2014

On appeal from the order of Justice F.L. Myers of the Superior
    Court of Justice, dated May 12, 2014 with reasons reported at 2014 ONSC 2866.

By The Court:

[1]

In 2010, the appellant, Canadian Litigation Counsel (CLC), hosted a
    golf tournament at Bond Head Golf Resort. CLC signed a Special Function
    Contract with ClubLink Corporation ULC, which owned the golf course. CLC paid approximately
    $28,000 for 180 guests for breakfast, dinner, and golf.

[2]

Sandi Neely attended the tournament. She was the passenger in a golf
    cart driven by the defendant Kelly MacDonald, another guest. Ms. MacDonald lost
    control of the golf cart while driving down a steep hill, injuring Ms. Neely. Ms. Neely
    sued Ms. MacDonald for negligence in the operation of the cart.

[3]

Ms. Neely also sued Bond Head and ClubLink. There had been past complaints
    about carts going too fast down the hill where the accident occurred, but ClubLink
    only remodeled the course to reduce the hills grade after Ms. Neelys injury.
    She alleged that ClubLink was negligent in failing to remedy the hills grade
    earlier.

[4]

The respondents, Bond Head and ClubLink, brought a third party action
    against CLC for indemnity under the Special Function Contract. The motion judge
    granted summary judgment to the respondents against CLC, obliging it to
    indemnify ClubLink for all of the plaintiffs personal injury claims. CLC
    appeals from that judgment.

[5]

For the reasons set out below, we allow CLCs appeal.

Analysis

[6]

There is a significant distinction between the negligence of a guest in
    the operation of a golf cart, and the negligence of ClubLink relating to the
    design and operation of the golf course.

[7]

For ClubLink to shift the risk of its own negligence to CLC successfully,
    the contract must say so in the clearest terms.
Fenn v. Peterborough (City)

(1979)
,
    25 O.R. (2d) 399 (C.A.), affd [1981] 2 S.C.R. 613, was a decision of a
    five-judge panel of this court which was affirmed by the Supreme Court. This courts
    statement at paras. 35 and 36 was adopted by the Supreme Court:

As we have agreed with the trial Judge in his finding that
    Consumers owed a duty of care, not only to the plaintiffs but also to the
    Commission,
we know of no authority which allows a party
    to be indemnified for its own negligence in the absence of a contractual right
    thereto and we were referred to none
.

If one is to be protected against and
    indemnified for one's own negligence there would have to be an indemnity clause
    spelling out this obligation on the other party in the clearest terms
. [Emphasis
    added]

[8]

The basis for ClubLinks indemnification claim against CLC is the
    following provision in the Special Function Contract:

CUSTOMER IS LIABLE FOR ALL DAMAGE CAUSED BY CUSTOMER AND/OR
    THEIR GUEST(S)

The Customer and/or their guest(s) agree to hold ClubLink
    Corporation and its officers and employees free and harmless from any damage or
    claims of any nature whatsoever that may arise from or through the use of a
    golf cart.

It is the Customers and/or their guest(s) responsibility to
    fully understand the safe operating instructions of the golf cart and to return
    it immediately following the completion of the round of golf in as good
    condition as it was received.

[9]

The motion judge drew a distinction between what he called the title
    of the provision and what he called the provisions wording:

[10]

While
    the title of the clause could be seen to suggest a limitation of liability to
    damage caused by guests, the wording actually used carries with it claims made
    against Clublink in tort in connection with the use of a golf cart. (Para. 16.)
    The motion judge distinguished
Fenn
, at para. 10, on the basis that
    in that case, there was no indemnity agreement at all between the parties. His
    point of distinction is not persuasive. In our view, in
Fenn
this
    court expressed a general principle of law that remains valid and applicable.

[11]

The
    clause heading that reads CUSTOMER IS LIABLE FOR ALL DAMAGE CAUSED BY CUSTOMER
    AND/OR THEIR GUEST(S) is at once a title and a provision, and has been
    emphasized within the contract. The headings contained in a contract are part
    of the language chosen by the parties and can properly be considered in
    interpreting the provisions that follow, provided the wording of the contract is
    not inconsistent with such an interpretation:
Cathcart Inspection Services
    Ltd. v. Purolator Courier Ltd
.
(1981), 34 O.R. (2d) 187 (S.C.), at
    para. 29, affd 39 O.R. (2d) 656 (C.A.);
Toronto (City) v. Toronto Railway
,
    [1907] A.C. 315 (P.C.). Failure to read an agreement in accordance with its
    headings may lead a court to misconstrue the contractual provisions (
Solway
    v. Lloyds Underwriters
(2006), 80 O.R. (3d) 401 (C.A.), at para. 44).

[12]

Based
    on the indemnity provision as well as its accompanying heading, we agree with
    the motion judge that the wording "claims of any nature that may arise
    from or through the use of a golf cart" is broad enough to oblige CLC to
    indemnify ClubLink for damages arising from the operation of a cart by a guest,
    including personal injury. However, we do not agree that this provision clearly
    extends to ClubLinks own negligence.

[13]

In
    our view, the motion judge did not give due effect to the principle in
Fenn
.
A similar principle is also reflected in
Potvin v. Canadian Museum of Nature
,
    [2003] O.T.C. 449 (S.C.), at paras. 4-6.

[14]

He
    also did not properly consider the provision in its entirety. Read as a whole,
    the provision is ambiguous and must be construed against the drafter, ClubLink.

[15]

In
    short, we are unable to find that the contract clearly shifted to CLC the risk
    of ClubLinks own negligence.

[16]

The
    heading of the indemnity provision makes it clear that it is only damage
caused by
the customer and/or their guest (emphasis
    added) that is the subject of any indemnity by CLC. It is arguable that the hill
    was negligently designed and maintained by ClubLink, and that this caused or
    contributed to the accident. If so, this would lead naturally to an
    apportionment of liability by the jury between ClubLink and CLC. Perhaps the
    jury will find, as the motion judge stated, that the liability claimed in this
    case arises out of the normal use of a golf cart as driven every day by
    thousands of golfers at golf courses. Perhaps it will find that the design of
    the hill was negligent, which contributed to the accident. Those issues are
    matters for the jury and cannot be decided on a motion

[17]

We
    invited counsel to make submissions on the application of
Sattva Capital Corp.
    v. Creston Moly Corp
.
, 2014 SCC 53, 373 D.L.R. (4th) 393, to the
    standard of appellate review. Counsel for the appellant submitted that the
    motion judges approach reflected a palpable and overriding error. The respondents
    counsel made no submissions.

[18]

Although
    the Supreme Court, at para. 52 of
Sattva
, stated that appellate
    deference to first instance deciders on points of contractual interpretation is
    desirable, the court also noted, at para. 53, that legal errors made in the
    course of contractual interpretation continue to be properly subject to
    appellate review. The court listed some examples of legal errors, such as
    "the application of an incorrect principle, the failure to consider a
    required element of a legal test, or the failure to consider a relevant
    factor". In our view, the motion judges interpretation of the indemnity
    provision, and particularly the failure to apply the principle in
Fenn
,
    are errors that meet the standard in
Sattva

and justify
    appellate intervention.

Disposition

[19]

The
    appeal is allowed with costs to the appellant fixed, as agreed, at $10,000
    all-inclusive. As also agreed, the appellant is entitled to costs in the same
    amount for the motion below.

Released: December 8, 2014 RAB

R.A.
    Blair J.A.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.