COURT OF APPEAL FOR ONTARIO

CITATION: Clarke v. Faust, 2016 ONCA 223

DATE: 20160322

DOCKET: C60208

Feldman, Juriansz and Brown JJ.A.

BETWEEN

Andrew Clarke and Gavin Clarke

Respondents (Appellants)

and

Joseph F. Faust

Moving party (Respondent)

Edward Goldentuler, for the appellants

Kerri P. Knudsen and Nicole A. Dowling, for the
    respondent

Heard: September 29, 2015

On appeal from the order of Justice Anne Mullins of the
    Superior Court of Justice, dated February 23, 2015.

Juriansz J.A.:

[1]

The appellants action against their former solicitor for professional
    negligence was dismissed on summary judgment motion brought by the respondent. The
    motion judge found there was no genuine issue requiring a trial on whether the
    action was statute-barred. She found that it was. The appellants appeal to this
    court.

A.

Background

[2]

The appellants were injured in a motor vehicle collision on April 7,
    2006. They retained the respondent, Joseph Faust, to represent them on their
    claims for accident benefits and tort damages. The respondent issued a
    statement of claim in respect of the collision on June 17, 2008, some nine
    weeks after the second anniversary of the collision.

[3]

Prior to the filing of the statement of claim, the appellants had
    retained new counsel. After obtaining the file from the respondent, the new solicitor
    told the appellants that the statement of claim had not been issued within two
    years of the accident. However, he advised them this was not necessarily fatal
    to their claim because under the doctrine of discoverability, the claim might
    not have been commenced beyond the limitation period. He further advised that out
    of an abundance of caution the respondent should put his liability insurer on
    notice. Accordingly, he wrote to the respondent on July 2, 2008, putting him on
    notice of the missed limitation period. The respondent wrote back on July 14,
    2008, taking the position that no limitation period had been missed because of
    the doctrine of discoverability.

[4]

The appellants new solicitor passed away suddenly. Another solicitor from
    his firm (the appellants current lawyer) took over the file. This solicitor
    advised the appellants he was not concerned with the missed limitation period
    because the doctrine of discoverability would extend the period. The solicitor spoke
    with defence counsel in the motor vehicle action, taking the position that the
    doctrine of discoverability would apply to the motor vehicle claim as both
    plaintiffs had suffered soft tissue injuries and until they had obtained
    medical documentation, they could not have known whether their injuries met the
    threshold of serious and permanent impairment.

[5]

The solicitor believed he had convinced defence counsel of this, and
    informed the appellants. He further informed them that the defendants
    statement of defence filed February 5, 2009 did not plead the missed limitation
    period as a defence. However, the defendants amended their statement of defence
    on March 18, 2009 to plead the missed limitation period.

[6]

The plaintiffs commenced their professional negligence action against
    the respondent on December 22, 2010. The respondent pleaded the appellants
    professional negligence action against him was statute-barred because it was
    commenced more than two years after they knew or ought to have known they had a
    cause of action against him. The respondent moved for summary judgment
    dismissing the appellants claim against him.

B.

Proceedings below

[7]

Before the motion judge, the respondent argued the appellants should be
    presumed to have known of his negligence on April 7, 2008, the two-year
    anniversary of the motor vehicle accident. They ought to have commenced the
    claim within two years of that date. He submitted in the alternative that the
    appellants ought to have known of their loss on July 2, 2008, when their then
    solicitor alleged in writing that the respondent had missed the limitation
    period to issue the appellants motor vehicle claim.

[8]

The appellants took the position they suffered no damage until March 18,
    2009, when the defendants in the motor vehicle claim first pleaded the defence
    of a missed limitation period. Until then it was not apparent that the
    defendants would raise a limitation defence. The motion judge summarized their
    argument:

The essence of the argument advanced on behalf of Messrs.
    Clarke is that, until the defendants in the tort action pleaded a limitations
    defence, no damage had been caused to them as a result of his failure to have
    instituted the action within the two year period following the event of the
    collision. However much a wrong may have been committed, they contend, no
    damages could be said to flow. By this logic, the right to the claim was not
    discovered until the pleading was amended on March 18, 2009.

[9]

The motion judge rejected the appellants position. On her reading of
    the
Limitations Act, 2002,
S.O. 2002, c.24, Sch. B, a limitation
    period could begin to run before the person with the claim sustained any
    damages. She commented: The provisions of the [
Limitations Act
,
2002
] to the extent the terms injury, loss or damage are used, cannot be
    taken to mean that damages in law must have been sustained to the knowledge of
    the claimant. She adopted this view, pointing out that the phrase injury,
    loss or damage in s. 5(1) of the Act was disjunctive. Consequently, she
    concluded the appellants were injured by the respondents failure to commence
    the motor vehicle accident action within two years, though they may not have
    suffered any damage from that injury until the motor vehicle defendant
    pleaded the limitation defence. The motion judge granted the respondents
    motion for summary judgment.

C.

Analysis

[10]

The
    appellants main ground of appeal is that the motion judge erred in finding that
    the limitation period began to run before March 18, 2009 when the appellants say
    they first knew they had suffered some damages from the respondents act or
    omission.  They also appeal the motion judges finding that discoverability
    had not been pleaded in the appellants statement of claim for the professional
    negligence action.

(1)

When was the claim against the respondent discovered?

[11]

The
    motion judge was mistaken in her understanding of the Act. She failed to consider
    the requirement of s. 5(1)(a)(iv) that a person with a claim know that a
    proceeding would be an appropriate means to seek to remedy the injury, loss or
    damage having regard to its nature. That provision requires, in my view, a
    person to have good reason to believe he or she has a legal claim for damages
    before knowing that commencing a proceeding would be an appropriate means to
    seek to remedy the injury, loss or damage.

[12]

Since
    the motion judge proceeded on an incorrect understanding of the Act, it falls
    to this court to determine when the appellants first discovered they had a
    claim against the respondent.

[13]

Section
    4 of the Act provides: Unless this Act provides otherwise, a proceeding shall
    not be commenced in respect of a claim after the second anniversary of the day
    on which the claim was discovered. A claim is defined to mean a claim to
    remedy an injury, loss or damage that occurred as a result of an act or
    omission.

[14]

Section
    5 sets out the criteria that define the day on which a claim is discovered:

5. (1) A claim is discovered on the earlier of,

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

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

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

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

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

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

(2) A person with a claim shall be presumed to have
    known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is proved.

[15]

Section
    5(1)(a) sets out a subjective test addressing the knowledge of the person with
    a claim. Section 5(1)(b) sets out a modified objective test by addressing the knowledge
    of a reasonable person in the shoes of the appellants. A claim is discovered on
    the earlier of the date when the person subjectively knew of the matters set
    out in s. 5(1)(a) and the date a reasonable person would have known of them.
    Section 5(2) stipulates the presumption the person with the claim knew of the
    matters in s. 5(1)(a) on the day of the act or omission giving rise to the
    claim unless the contrary is proved.

[16]

This
    case turns on the application of s. 5(1)(a)(iv). I will address the appellants
    subjective knowledge first. The question is when they would have first known
    that commencing a proceeding would be an appropriate means of seeking a remedy
    for their claim against the respondent considering the nature of the injury,
    loss or damage.

[17]

Here,
    the appellants second solicitor informed them that their first solicitor had
    not initiated an action by the second anniversary of the motor vehicle
    accident. However, he advised them there may be no problem, but that he should
    write to the first solicitor notifying him of the potential limitation problem
    out of an abundance of caution. The appellants first solicitor, the
    respondent, in repeated correspondence, took the position he had not missed any
    limitation period. Then the appellants second solicitor passed away, and their
    third solicitor took over the file. He, too, advised them that the doctrine of
    discoverability applied in the motor vehicle action. Their third solicitor also
    advised them he believed he had persuaded the solicitor for the defendants in
    the motor vehicle action that this was the case. The defendants statement of
    defence filed February 5, 2009 did not plead any limitation defence.

[18]

At
    that point the appellants knew that three lawyers were of the opinion that the
    doctrine of discoverability applied to their motor vehicle action. Their lawyer
    had advised that the defendants were persuaded of this and they had good reason
    to believe that was the case because the statement of defence did not plead the
    limitation defence.

[19]

The
    amendment of the statement of defence on March 18, 2009 changed the situation.
    The defendants in the motor vehicle action, for the first time, took the
    position the limitation period had been missed.

[20]

On
    these facts, I am satisfied the appellants had no reason to know that commencing
    a legal proceeding was appropriate before the amendment of the statement of
    defence.

[21]

I
    am also satisfied the objective test in s. 5 (1)(b) is met. A reasonable person
    with the abilities and in the circumstances of the appellants would not have
    known it was appropriate to commence a legal proceeding before the amendment of
    the statement of defence in the motor vehicle action.

[22]

Furthermore,
    the foregoing analysis is sufficient to displace the presumption in s. 5(2).

[23]

On
    this analysis, the statement of claim in the professional negligence action,
    dated December 22, 2010, was filed well before the expiry of the limitation
    period and summary judgment should not have been granted.

[24]

Before
    leaving the matter, I make two additional observations.

[25]

First,
    it still has not been determined whether the appellants motor vehicle action is
    statute-barred. The doctrine of discoverability may well permit the motor
    vehicle tort action to proceed. If that is the case, the professional
    negligence action may in fact be premature. The circumstances are similar to those
    in
Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors
, 2012 ONCA 851, 113 O.R. (3d) 401. In that case,
    Laskin J.A., for the majority, concluded that the appellants had not discovered
    their claim for damages against their former lawyer for professional negligence
    until the judgment in the underlying action was rendered.

[26]

In
    this case, the appellants pleaded in the professional negligence action that
    they in fact have suffered some damages because their bargaining position in
    their efforts to settle the motor vehicle action has been compromised. I find
    this argument difficult to accept. If the respondent did not miss the
    limitation period in the motor vehicle action, he would not be responsible for
    any damages, whatever their nature. It may be that the limitation period in the
    professional negligence action will not begin to run until it is determined
    that the respondent missed the limitation period in the motor vehicle action.
    This is not a matter that we need to decide on this appeal of the motion
    judges decision granting summary judgment. If the limitation period for the
    professional negligence action has not yet begun to run, the motion judge
    should not have granted summary judgment.

[27]

Second,
    the appellants might well have been able to establish that the respondent was estopped
    from pleading a limitation defence in the professional negligence action. It
    seems likely that the appellants, in failing to commence the professional
    negligence action within two years of the second anniversary of the motor
    vehicle accident, relied on the respondents expressed initial position that he
    had not missed the limitation period in the motor vehicle action. However, the
    appellants did not raise this issue and it is unnecessary to deal with it.

[28]

In
    any event, on the analysis above, I conclude that the appellants claim against
    the respondent was not discovered before March 18, 2009, if at all.

(2)

Was discoverability pleaded in the statement of claim?

[29]

The
    motion judge set out an additional basis for granting the summary judgment
    motion. She found the appellants had not pleaded discoverability in their action
    against the respondent. However, I am of the view the statement of claim set out
    the material facts to support the application of the doctrine.

D.

Disposition

[30]

I
    would allow the appeal, set aside the motion judges judgment, and replace it
    with an order dismissing the respondents summary judgment motion.

[31]

The
    appellants are entitled to costs of the motion and of the appeal. If the
    parties are unable to agree on those costs, they may file written submissions,
    not to exceed five typewritten pages, and no later than fifteen days following
    the release of these reasons.

Released: March 22, 2016 (KF)

R.G.
    Juriansz J.A.

I
    agree K. Feldman J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Damallie v. Shaukat, 2016 ONCA 198

DATE: 20160308

DOCKET: M45563

Laskin, MacFarland and Roberts JJ.A.

BETWEEN

Clifton Anthony Damallie

Moving Party (Appellant)

and

Malik Shaukat

Responding Party (Defendant)

Clifton Damallie, in person

No one appearing for the responding party

Heard and released orally: March 4, 2016

ENDORSEMENT

[1]

The appellant moves to review the order of Sharpe J.A. dated September
    16, 2015. Sharpe J.A. dismissed the appellants motion to extend the time for
    leave to appeal the Divisional Courts decision to dismiss the appellants
    motion to vary the order of Sachs J. Sitting as a single judge of the
    Divisional Court, Sachs J. denied the appellants request to adjourn his motion
    to extend the time for the filing of a Small Claims Court appeal from the
    dismissal of his claim.

[2]

The appellant did not provide any argument indicating that Sharpe J.A.
    had erred. Rather, the appellant asks that this court retry the factual
    findings of the Small Claims Court that dismissed his claim. That is not our
    task.

[3]

Sharpe J.A. saw no error in the previous courts findings that the appellant
    did not appeal the trial judgment of the Small Claims Court in a timely manner,
    he did not provide an explanation for the delay, and there was no basis for the
    appellants claim. There was no point of law or public importance raised that
    would warrant this court granting leave to appeal.

[4]

We agree with Sharpe J.A.s reasons. There is no basis to interfere.
    Accordingly, the appellants motion is dismissed.

John Laskin J.A.

J. MacFarland
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Donis v. Georgopoulos, 2016 ONCA 194

DATE: 20160308

DOCKET: C58818

Gillese, Huscroft and Miller JJ.A.

In the Estate of Sofia Donis, deceased

BETWEEN

Christos Antoniou Donis

Appellant (Applicant)

and

Dimitra Georgopoulos
and Eleni Antoniou Donis

Respondent
in Appeal (Respondents)

Constantine Alexiou, for the appellant

Maurice W. Pilon, for the respondent

Heard: October 7, 2015

On appeal from the judgment of Justice S.E. Firestone of
    the Superior Court of Justice, dated April 15, 2014, with reasons reported at
    2014 ONSC 1427.

Miller J.A.:

Overview

[1]

At issue in this appeal is the validity of a memorandum of agreement (the
    MOA) that transfers ownership of a house from Sofia Donis (the mother) to
    her daughter, Dimitra Georgopoulos, in exchange for $100,000 and a promise that
    the mother could remain living in the house for the rest of her life.

[2]

A few months after the execution of the MOA, the mother died
    unexpectedly. The transfer of the house substantially reduced the inheritance of
    the mothers son, Christos Donis (the appellant), and other daughter, Eleni
    Donis.

[3]

Christos challenged the validity of the transfer primarily on the basis
    that: (1) their mothers rudimentary understanding of English prevented her
    from having the requisite capacity and understanding to execute the MOA; and
    (2) Dimitra exercised undue influence over her mother, who did not receive
    proper independent legal advice.

[4]

The trial judge dismissed his challenge and Christos appeals.

[5]

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

Background

[6]

Dimitra was the primary caregiver for her aging parents who were no
    longer able to care for themselves: first for her father, who died in 2005, and
    then her mother, who died in 2008.

[7]

In order to facilitate her mothers desire to remain living in her own
    home, Dimitra undertook a burdensome caregiving routine. For approximately two
    years, Dimitra left her own family after dinner each evening to care for her
    mother. She stayed overnight at her mothers house, before returning to her own
    home the next morning.

[8]

It is uncontroverted that although Christos shared the overnight duties
    with Dimitra for one year, Dimitra thereafter assumed sole responsibility for
    them.

[9]

On September 18, 2007, Dimitra and her mother executed the MOA, which
    had been drafted by her mothers solicitor, Michael Shea. The MOA stated:

I, Sofia Donis, herein agree to transfer all of my right, title
    and interest in the property municipally known as 41 Corinthian Blvd., to my
    daughter, Dimitra Georgopoulos.

I will do so at the time when she pays to me the sum of
    $100,000.00 out of the proceeds from the sale of her own property.

I, Dimitra Georgopoulos, herein agree to allow my mother, Sofia
    Donis, to continue to reside with me at 41 Corinthian Blvd., for the balance of
    her lifetime unless she is unable for health reasons to do so.

[10]

The
    mother was fluent in Greek and Macedonian. The extent of her English language
    skills was disputed by the parties. The trial judge found that Mr. Shea was
    able to communicate with the mother in English. To some extent he was assisted by
    Dimitra, who attended his office with her mother on each of her mothers meetings
    with Mr. Shea.

[11]

The
    trial judge found that the mothers instructions to Mr. Shea changed over time.
    Originally, she sought to change her will, so that her house would be left to
    Dimitra to the exclusion of her other children. Eventually, she settled on a plan
    to sell her house to Dimitra for $100,000, the sum of which she would then
    bequeath to Christos and Eleni through a revised will. There was some dispute
    between the parties as to whether the MOA was
inter vivos
in nature or
    testamentary. The trial judge concluded that it was
inter vivos
.

[12]

He
    found that Mr. Sheas practice over the course of these meetings was to confirm
    his instructions from the mother with Dimitra out of the room. He took the
    additional step of having the mother see Mr. Petrovski, a Macedonian-speaking
    lawyer, to confirm that she intended to transfer her house to Dimitra. Mr. Petrovski
    did not review the MOA with the mother, as it had not been prepared by that
    time. His role was simply to confirm that it was the mothers independent
    desire that Dimitra have the house to the exclusion of her siblings.

[13]

On
    February 14, 2008, before Dimitra could complete the sale of her own home, her
    mother died. Two weeks later, the sale of Dimitras home was completed. Dimitras
    solicitor held back $100,000 from the sale proceeds in accordance with the MOA,
    and that sum is being held pending the outcome of this litigation. Legal title
    to 41 Corinthian Boulevard has not yet been conveyed to Dimitra.

[14]

The
    appellant testified that his mother wasnt straight in her mind, but he did
    not request anyone to investigate this concern. Although the mothers family
    physician, Dr. Zeidenberg, testified that the mothers medication made it
    difficult for her to think clearly, he did not refer her for a capacity
    assessment or to a memory clinic, or perform any cognitive impairment
    assessments. Mr. Sheas evidence, from his interactions with the mother, was
    that she was fine notwithstanding some forgetfulness.

[15]

From
    this evidence, the trial judge concluded that the mother was mentally capable.

[16]

The
    trial judge also found that although the mother could not read English
    perfectly, she had sufficient ability to understand the contents of the MOA,
    which was a simple document. This finding was supported by the evidence of Mr.
    Shea and Dimitra, as well as  inferences  the trial judge drew from the length
    of time that the mother spent in Canada and the time she spent watching television
    in English.

[17]

The
    trial judge held that the MOA was valid and made an order that title to 41
    Corinthian Boulevard be transferred to Dimitra, and that Dimitra pay the sum of
    $100,000 to the estate of the mother. Christos appealed.

Issues on Appeal

[18]

The
    appellant argues that the trial judge erred in finding that:

1.   The mother understood the MOA and the MOA was not
    invalidated by the doctrine of
non est factum
;

2.   Dimitra rebutted the presumption of undue influence;

3.   The mothers interests were protected by independent legal
    advice; and

4.   The MOA was valid despite a failure of  consideration.

[19]

Given
    the interrelatedness of issues 2 and 3, they are dealt with together in the
    analysis below.

Analysis

(1)

Non est factum

[20]

The
    appellant, relying on
Marvco Colour Research Ltd. v. Harris
, [1982] 2
    S.C.R. 774, at 784, argues that the MOA should be invalidated because the
    evidence establishes that the document signed is of a different nature from
    that which the signer intended to execute.

[21]

The
    appellant argues that because his mother could not read the MOA for herself in
    English, and did not receive an explanation as to what the MOA said, the trial
    judge erred in not finding the MOA to be void on application of the doctrine of
non est factum
.

[22]

I
    disagree. The factual findings of the trial judge are an unsurmountable hurdle
    to the claim of
non est factum
.

[23]

There
    is no basis on which to interfere with the trial judges finding that the facts
    did not support a claim of
non est factum
. He found that: (1) the
    mother had sufficient ability in English to read and understand the MOA; (2)
    the mother had sufficient ability in English to understand Mr. Sheas
    explanation of the content of the MOA; and (3) Dimitra provided her mother with
    an explanation of the content of the MOA in Macedonian.

[24]

These
    findings are entitled to deference and are a complete answer to this argument.

[25]

It
    should be noted that the appellant is seeking to invalidate a contract signed
    by a third party. The appellant did not direct us to any authority for the
    proposition that a third party can move to invalidate a contract on the basis
    of
non est factum
. However, given my conclusion on this issue, it is
    not necessary to decide that matter.

(2)

Undue influence

[26]

The
    appellant argues, in the alternative, that if the mother understood the MOA,
    she only signed it as a result of Dimitras undue influence on her, and the MOA
    should be invalidated on that basis.

[27]

The
    trial judge found that the appellant had not adduced sufficient evidence to
    establish undue influence. However, he found, at para. 69, that there was
    sufficient evidence to raise the presumption of undue influence:

I do find, however, that because Sofia was dependent on Dimitra
    for her basic needs, she was in a relationship of trust and confidence with her
    daughter sufficient to raise the presumption of undue influence. It therefore
    falls on the respondent Dimitra to rebut this presumption.

[28]

He
    went on to find that Dimitra had rebutted the presumption, pointing to, among
    other things, Sheas evidence that the mother was not being coerced and
    Petrovskis provision of independent legal advice to the mother.

[29]

I
    see no basis on which to interfere with the trial judges determination of
    these matters.

[30]

Once
    the trial judge found that there was no actual undue influence, he was required
    to inquire into the nature of the relationship between the parties to determine
    whether that relationship triggered a presumption of undue influence.   Once he
    found the presumption to have arisen, the onus shifted to Dimitra to rebut it:
Geffen
    v. Goodman Estate
, [1991] 2 S.C.R. 353, at 378-9.

[31]

Rebutting
    the presumption may entail showing that there was no influence deployed in the
    transaction or that the donor had independent legal advice: see
Geffen
,
    at 379. In finding the presumption was rebutted in this case, the trial judge relied
    on both of these of factors.

[32]

In
    finding that the mother was not being influenced, the trial judge placed great
    emphasis on Mr. Sheas evidence (at para. 70):

Shea was of the opinion that Sofia was not being coerced and
    the idea to transfer her house to Dimitra was the product of her own free will.
    Having found Shea to be a professional and entirely credible and reliable
    witness, this evidence alone goes a long way to dispelling the presumption of
    undue influence.

[33]

A
    second basis for the trial judges finding that the presumption was rebutted was
    that the mother had received independent legal advice from Mr. Shea.

[34]

The
    appellant accepts that the mother received some advice from Mr. Shea, but
    argues that it was deficient and, in any event, insufficient to rebut the
    presumption of undue influence.

[35]

The
    appellant objects that Mr. Shea did not explain the risks of the transaction to
    the mother and that he was in a conflict of interest due to Dimitras presence at
    all of the meetings. The referral to Mr. Petrovski did not remedy these
    defects, the appellant argues, because Mr. Petrovski could not explain the
    legal aspects of the MOA to the mother because the MOA had not yet been drafted.
    The appellant argues that Mr. Petrovski was therefore not able to advise the
    mother as to the risks of the transaction or to provide her with a
    recommendation of whether to proceed with it.

[36]

I
    reject the appellants arguments for two reasons.

[37]

First,
    on the findings of the trial judge, Mr. Shea was not in a conflict of interest.
    The trial judge found that Mr. Shea was retained by the mother and was acting
    for her alone. Although Dimitra was present at each meeting with Mr. Shea, it
    was his practice to confirm his instructions from the mother directly, in Dimitras
    absence.

[38]

Second,
    the trial judge found that the advice that Mr. Shea provided, and the
    assistance he received from Mr. Petrovski, ensured that the mother understood
    the nature of the transaction and its attendant risks.

[39]

As
    the appellant argues, for independent legal advice to be effective for the
    purpose of defeating the presumption, it must have been informed and competent.
    That is, it must have been given with a knowledge of all relevant
    circumstances and must be such as a competent and honest adviser would give if
    acting solely in the interests of the donor: see
Inche Noriah v. Shaik
    Allie Bin Omar,
[1929] A.C. 127, at 136.

[40]

The
    trial judge found that Mr. Shea understood the mothers circumstances. Mr. Shea
    understood that she wished to remain living in her home for the rest of her
    life. He understood that she wished to effect this by having Dimitra live with
    her full time and care for her. He understood that there were other children
    who would be affected by this decision.

[41]

The
    trial judge found that Mr. Shea sent the mother to a Macedonian speaking lawyer
    to confirm that it was her intention to transfer the house. Mr. Petrovski confirmed
    to Mr. Shea that it was the mothers intention to transfer the house to Dimitra
    to the exclusion of her other children (at para. 71):

In addition, Shea also insisted that Sofia receive independent
    legal advice from Petrovski. Petrovski was similarly of the view that the
    decision to transfer the home was Sofias and that she understood that the
    consequences of her decision would be to ultimately deprive her other children
    of some inheritance. It would have been preferable if Petrovski had had the
    opportunity to review the final MOA with Sofia, but that detail is not fatal.
    Independent legal advice need not be perfect to be effective.

[42]

With
    respect to the competence of the advice provided, the trial judge found that Mr.
    Shea safeguarded the mothers interests by structuring the transaction such
    that he would not transfer title until after she had received $100,000 from
    Dimitra. He also included a term in the MOA that Dimitra would allow the mother
    to remain living in the house for the balance of her lifetime. Mr. Shea met
    with the mother on several occasions, and the MOA was the product of her
    instructions. His role was not, as the appellant characterized it in oral
    argument, a matter of reading the document slowly to the mother and having the
    respondent translate it.

[43]

I
    would differ slightly from the trial judges characterization of the
    consultation with Mr. Petrovski as independent legal advice. Mr. Shea was the
    mothers lawyer and he was responsible for providing her with independent legal
    advice. He engaged Mr. Petrovski to assist him in carrying out his duties to
    his client. He referred the mother to Mr. Petrovski out of an abundance of
    caution, to ensure that it was her intention to transfer her house to Dimitra
    and that she understood the impact of the transaction on her other children.

[44]

The
    appellants argument that the consultation with Mr. Petrovski did not satisfy
    the formal criteria for independent legal advice specified in the Law Society
    of Upper Canadas
Rules of Professional Conduct
thus fails, as the
    receipt of independent legal advice from Mr. Petrovski in this form was not
    necessary to rebut the presumption of undue influence.

[45]

The
    trial judges factual findings were all supported by evidence, and he was
    entitled to come to the conclusions that he did.

(3)

Failure of consideration

[46]

The
    final ground of appeal is that the trial judge erred in not finding the MOA to
    be invalid on the basis that there was a failure of consideration. The
    appellant argues that the MOA provided that Dimitra was to receive the property
    in exchange for $100,000 and the on-going provision of personal care for the
    mother thereafter. Given that the mother died prior to the transfer of the
    house to Dimitra, the appellant argues that Dimitra did not provide the future
    care that was required by the MOA.

[47]

I
    reject this argument. As the trial judge held, at para. 77, [t]he agreement
    did not provide that Dimitra could have the house
for such a time as she
    continued to provide care to Sofia
 (emphasis in original).

[48]

The
    text of the MOA provided that Dimitra allow the mother to continue to reside
    with [her] at 41 Corinthian Blvd., for the balance of [the mothers] lifetime
    unless she is unable for health reasons to do so. This was not, as the
    appellant characterized it, a contract for services. Although neither Dimitra
    nor her mother anticipated that the mother would die so soon after the MOA was
    executed, the fact that the mother died before the title was transferred does
    not affect the enforceability of the MOA.

Disposition

[49]

I
    would dismiss the appeal. I would order costs to the respondent on a partial
    indemnity basis, fixed in the amount of $12,000, inclusive of disbursements and
    HST.

Released: EEG MAR 8 2016

B.W. Miller J.A.

I agree. E.E.
    Gillese J.A.

"I agree. Grant
    Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Economical Mutual Insurance Company v. Caughy, 2016
    ONCA 226

DATE: 20160324

DOCKET: C60642

Hoy A.C.J.O., Lauwers and Hourigan, JJ.A.

BETWEEN

Economical Mutual Insurance Company

Appellant

and

Patrick Caughy

Respondent

Daniel Strigberger and Alexandra Wilkins, for the
    appellant

Nigel Gilby, Jasmine Akbarali, and Christopher Dawson,
    for the respondent

Heard: February 16, 2016

On appeal from the judgment of Justice Robert J.
    Nightingale of the Superior Court of Justice, dated June 10, 2015, with reasons
    reported at 2015 ONSC 3251, 51 C.C.L.I. (5th) 111.

Hourigan J.A.:

[1]

At issue on this appeal is whether the application judge erred in
    finding that the respondent

was involved

in

an

accident,

as that term is defined in

s.
    3(1)

of the
Statutory Accident
    Benefits Schedule  Effective September 1, 2010
, O. Reg. 34/10 (the
SABS
),

in

relation

to an incident where the respondent was

injured

when

he

tripped

over

a

parked
    motorcycle.

[2]

For the reasons that follow, I conclude that the application judge was
    correct in finding that the respondent was involved in an accident, as that
    term is defined in the
SABS
. Accordingly, I would dismiss the appeal.

Background

[3]

Over the August

long weekend

in

2012,
    the respondent

camped

with

his

wife

and

two

daughters

at

a

country

music
    jamboree

in

Bothwell, Ontario.

He
    detached his camping trailer and parked it alongside other

trailers

and

cars

in

the

shape

of

a

horseshoe
    on a campsite.

A

gap

between

the respondents

truck

and another trailer

was

left
    for

campers

to

use

as

a

walkway

leading

out

of

their

campsite.

[4]

On

August

3,

2012,
    some

campers arrived

on

two
    motorcycles and parked

on

the

site

where

the

respondents

family
was
camped. The

motorcyclists parked

within

the

horseshoe

and

in

front

of

the

trailer

adjacent

to

the respondents

truck. At this point, the

motorcycles were

not

blocking

the

walkway.
    However, after

nightfall,

and

without

the respondents

knowledge,

the

motorcycles

were

moved and

parked

on

the

walkway.

[5]

At

around

midnight that night,

the respondent

was

playing

tag

with

his daughter

and

her

friend

around

his

parked

truck,

using

the

truck

as

an
    obstacle

to

separate himself from them.

As
    the respondent

proceeded

into

the

walkway

between

his truck

and the

adjacent

trailer
,
he

tripped

over

one

of

the
    motorcycles.

The impact

propelled

him

forward into

his

truck,

which

he

struck before

falling

to

the

ground.

The respondent

sustained

serious

spinal

cord

injuries

as

a
    consequence of his fall.

[6]

At the time of the incident, the respondent was intoxicated
.
He

deposed

that

notwithstanding
    his

alcohol

consumption,

he

has

a
    memory

of

the

incident

that

led
    to

his

injury.

[7]

The
respondent sought
    accident benefits from his insurer,

the

appellant, which

were denied

on

the

basis

that

the

incident

did

not

meet

the

definition

of

accident

as

found
    in

the

SABS
.

Decision of the Application Judge

[8]

The

application judge found
    that that the

temporary parking

of

the

motorcycle

that

evening

on

the

walkway

constituted

an

ordinary

or well-known

use

of

the

vehicle. He further found, at para. 22, that
    "the

temporary

parking

of

the

motorcycle in

the

circumstances

that

evening

was

the
    dominant

feature in

the

incident

and

not

simply ancillary to

it.

[9]

Based on these findings, the application judge concluded that the
    incident satisfied the test for an accident under the
SABS
as
    articulated by the Supreme Court of Canada in
Amos v. Insurance Corp. of
    British Columbia
, [1995] 3 S.C.R. 405, and modified by the 1996
SABS
amendments and this courts decisions in
Greenhalgh v. ING Halifax
    Insurance Company

(2004), 72 O.R. (3d) 338 (C.A.), leave to appeal
    refused (2004), 338 N.R. 398 (note) and
Martin v. 2064324 Ontario Inc
.
(Freeze Night Club)
,

2013 ONCA 19, 113 O.R. (3d) 561, leave to
    appeal refused (2013), 466 N.R. 386 (note).

[10]

As
    discussed below, there are two parts to this test: a purpose test and a
    causation test. The appellant does not appeal the application judges finding
    that the causation test is satisfied. This appeal is limited to its submission
    that the application judge erred in concluding that the purpose test is met in
    the circumstances.

Analysis

[11]

The
    term accident is defined in s. 3(1) of the
SABS
as follows:

an

incident

in

which

the

use

or

operation

of

an

automobile directly

causes

an

impairment

or directly

causes

damage

to

any prescription

eyewear,

denture,
    hearing

aid,

prosthesis

or

other medical

or

dental

device;

[12]

The
    seminal case on the definition of accident is
Amos
. In that case, the
    appellant was attacked by a gang while driving and was seriously injured when
    shot. At issue was whether the appellant was eligible for benefits under the British
    Columbia regulation, which provided for the payment of benefits in respect of
    death or injury caused by an accident that arises out of the ownership, use or
    operation of a vehicle.

[13]

In
Amos
the Supreme Court articulated, at para. 17, the following
    two-part test in interpreting the section in issue:

1. Did the accident result from the ordinary and well-known
    activities to which automobiles are put?

2. Is there
some
nexus or causal
    relationship (not necessarily a direct or proximate causal relationship)
    between the appellant's injuries and the ownership, use or operation of his
    vehicle, or is the connection between the injuries and the ownership, use or
    operation of the vehicle merely incidental or fortuitous?

This two-part test summarizes the case law interpreting the
    phrase "arising out of the ownership, use or operation of a vehicle",
    and encompasses both the "purpose" and "causation" tests
    posited in the jurisprudence. [Emphasis in original.]

[14]

As
    noted above, as a consequence of amendments to the
SABS
, the causation
    test was modified by this court in
Greenhalgh
and
Martin
. Pursuant
    to this modified causation test, the insured must first establish that the use
    or operation of an automobile was the cause of the injuries. If that is
    established, the insured must then satisfy the court there was no intervening
    act(s) that resulted in the injuries that cannot be said to be part of the
    course of the ordinary course of things. The question is whether it can be
    said that the use or operation of the vehicle was a direct cause of the
    injuries:
Greenhalgh
, at paras. 36 and 38;
Martin
, at para.
    37.

[15]

The
Amos
test was considered by the Supreme Court in
Citadel General
    Assurance Co. v. Vytlingam
, 2007 SCC 46, [2007] 3 S.C.R. 373. In that
    case, the insureds were driving on a highway when their vehicle was struck by a
    large boulder dropped from an overpass. The insureds received no-fault benefits
    and also sought to recover damages from their insurer pursuant to the
    inadequately insured motorist coverage found in s. 3 of the Ontario Policy
    Change Form 44R. Under this endorsement, an insurer is obliged to indemnify an
    eligible claimant for the amount that he or she is legally entitled to recover from
    an inadequately insured motorist as compensatory damages in respect of bodily
    injury toan insured person arising directly or indirectly from the use or
    operation of an automobile.

[16]

In
Citadel
,
the court found that the relaxed causation test in
Amos
was inapplicable because the claim was for indemnification and
Amos
involved a claim for no-fault benefits. In the course of his analysis, Binnie
    J., writing for the court, provided guidance with respect to the scope of the
    purpose test, at para. 19:

Secondly, and in any event, the appellant insurers argument
    overstates the scope of the

Amos
purpose test.  The
    ordinary and well-known activities to which automobiles are put limits
    coverage to motor vehicles being used as motor vehicles, and would exclude use
    of a car as a diving platform (as above) or retiring a disabled truck to a barn
    to store dynamite (which explodes), or negligently using the truck as a
    permanent prop to shore up a drive shed (which collapses, injuring
    someone).  In none of these cases could it be said that the tortfeasor was
    at fault as a motorist.  In none of these cases could it be said that the
    motor vehicle was being used as a motor vehicle.  That is the sort of
    aberrant situation that the
Amos
purpose test excludes, and nothing
    more.  Here, as in
Amos
, it is the causation test that did the
    work, not the purpose test.

[17]

Does
    parking a vehicle constitute the type of aberrant use contemplated by the
    Supreme Court in
Citadel
? In my view, it does not. The examples cited
    by Binnie J. were limited to circumstances in which a vehicle is not being used
    as a vehicle but for some other purpose. Parking a vehicle is not aberrant to
    its use as a vehicle. A vehicle is designed to be parked. Indeed, it is safe to
    say that most vehicles are parked the most of the time. I would conclude,
    therefore, that parking a vehicle is an ordinary and well-known activity to
    which vehicles are put.

[18]

The
    appellant argues that the application judge made a series of errors in his
    analysis of the purpose test. I deal with each of these arguments in turn
    below. In my view, they do not change the result.

[19]

The
    first and primary argument advanced by the appellant is that the application
    judge erred in failing to conclude that there must be an active use of the
    vehicle to meet the purpose test. It argues that the motorcycle in this case
    was no longer in use and had essentially been abandoned. Thus, the motorcycle
    was nothing more than the venue for the incident, in the same way a tree trunk
    would be if someone tripped over it.

[20]

The
    appellant relies on
Martin
in support of this venue argument. It also
    cites
Dominion of Canada General Insurance Company v. Prest
, 2013 ONSC
    92, [2013] I.L.R. I-5385, for the proposition that a parked car is no longer in
    use.

[21]

This
    argument is misconceived. There is no active use component in the purpose test.
    The sole question for determination under that test is whether the incident in
    issue resulted from the ordinary and well-known activities to which
    automobiles are put. While the active use of an automobile (e.g. driving)
    would qualify under this test, there is no requirement that the vehicle be in
    active use.

[22]

In
    contrast, under the causation test, the use to which a vehicle is being put is
    an important component of the analysis. In
Martin
,

the
    causation test was in issue, not the purpose test. In that case, the insured
    sought
SABS
benefits after being assaulted by two assailants in a parking
    lot and forced into the trunk of his car. This court held that the motion judge
    erred in failing to consider all of the elements of the modified causation
    test. Justice Cronk, writing for the court, expressed reservation as to whether
    the first branch of the modified causation test had been met, noting that the
    vehicle was nothing more than the venue where many of the assaults occurred, at
    para. 38. Thus, as submitted by the respondent, venue is a counterpoint to
    causation and has nothing to do with the purpose test.

[23]

The
    appellants reliance on
Prest
is also misplaced.
Prest

was
    a very brief endorsement in circumstances in which the insured parked his car
    in a parking garage to wash it and then tripped over a concrete curb sticking
    out from the wall, suffering an injury. The insured stated that his right hand
    was touching the car when he tripped. The court concluded that neither the
    purpose test nor the causation test was satisfied.

[24]

The
    court asked the correct question: whether the incident arose from the ordinary
    and well-known activities to which automobiles are put. However, at para. 8, its
    one paragraph analyzing the purpose test, the court stated:

In my view, on the facts of this
    matter, it does not.  At the time of the incident the vehicle was being
    neither used nor operated.  To the contrary, the vehicle was parked in its
    regular parking spot for purposes of washing the car.  A parking spot at
    ones residence is typically where a car is put when there is no intent to use
    it.

[25]

There
    is no reference in this analysis to the guidance from the Supreme Court in
Citadel
.
    Moreover, the application judge wrongly equated the active use of a vehicle
    with the ordinary and well-known activities to which vehicles are put. Consequently,
    there is no consideration of whether the purpose test could be satisfied if a
    vehicle is parked and not in active use. Given these weaknesses in the courts
    analysis, this case is of no assistance in determining whether the purpose test
    has been satisfied in the case at bar.

[26]

Second,
    the appellant submits that the application judge erred in finding that the
    motorcycle was parked temporarily on the walkway when the appellant tripped.
    According to the appellant, there was no evidence to support this finding and
    the application judge also impermissibly imported a temporal element into the
    purpose test.

[27]

I
    disagree. The application judge did not err in finding, at para. 13, that there
    was no evidence that the motorcycle was inoperable or that it was being stored
    at the campsite for an extended period of time. To the contrary, the evidence
    established that the motorcycle arrived the same day as other campers and was
    parked at the campsite. It was reasonable to infer that the motorcycle would
    leave after the jamboree, if not be used before. I also do not read the
    application judges reasons as importing a temporal element into the purpose
    test. Rather, he was simply analyzing the facts in determining whether parking
    a motorcycle is an ordinary and well-known activity to which motorcycles are
    put.

[28]

Third,
    I accept the appellants submission that the application judge erred, at para.
    18 of his endorsement, when he concluded that the respondent had satisfied the
    purpose test that the use or operation of an automobile, i.e., the motorcycle,
    was involved in this incident. The purpose test is not designed to determine
    whether a vehicle is involved in an incident. However, when this statement is
    read in context, I am satisfied that the application judge understood the
    elements of the purpose test and that this misstatement did not affect his
    analysis.

[29]

Fourth,
    I also agree with the appellant that the application judge should not to have
    relied on the liability sections of the Ontario Automobile Policy (O.A.P. 1) in
    support of his analysis, at para. 17. Liability can be triggered by mere
    ownership of a vehicle so the analogy to those provisions was not apt. Again,
    however, I am not satisfied that this affected the application judges analysis.

Disposition

[30]

For
    the foregoing reasons, I would dismiss the appeal. The respondent, as the
    successful party, is entitled to his costs of the appeal, which I would fix at
    $15,000, inclusive of all fees, disbursements, and applicable taxes.

C.W.
    Hourigan J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree P. Lauwers J.A.

Released: March 24, 2016 AH


COURT OF APPEAL FOR ONTARIO

CITATION: Hordo v. State Farm Mutual Automobile Insurance
    Company,

2016 ONCA 238

DATE: 20160331

DOCKET: C60767

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Diana Michelle Daniella Hordo

Applicant (Appellant)

and

State
    Farm Mutual Automobile Insurance Company

(A
    United States of America Illinois Registered Mutual Insurer),

Barbara Bellissimo and
    Edward B. Rust Jr.

Respondents (Respondents)

Robert Besunder, for the appellant

Mark Gelowitz and Karin Sachar, for the respondents

Heard and released orally: March 29, 2016

On appeal from the order of Justice Andra Pollak of the
    Superior Court of Justice, dated June 15, 2015.

ENDORSEMENT

[1]

The appellant appeals, on numerous grounds, from the motion judges
    decision striking her application for declaratory relief against the
    respondents as an abuse of process.  At heart, the appellant claims that
    confidential and private health-related information provided by her to the
    respondent State Farm in support of her claim for statutory accident benefits
    was wrongly transmitted to persons outside Ontario without her prior knowledge
    or consent.

[2]

The motion judge accepted State Farms position that the appellants
    complaints against State Farm have also been asserted in her pending action
    against it for accident benefits.  In addition, the appellant has lodged similar
    complaints on essentially the same basis under the
Insurance Act
,
    R.S.O. 1990, c. I.8 and the
Personal Information Protection and Electronic
    Documents Act
, S.C. 2000, c. 5 (
PIPEDA
), both of which provide comprehensive
    dispute resolution schemes.  In these circumstances, the motion judge accepted
    State Farms submission that declaratory relief should not be granted where it
    will not resolve the disputes between the parties and there are other
    reasonably effective procedures available for dealing with those disputes.

[3]

We agree with the motion judges conclusion.

[4]

The appellants allegations that State Farm misrepresented its status
    and the location of its adjusters to the appellant and wrongly transmitted her
    personal and confidential medical information to State Farm representatives in
    the United States without her consent are squarely pleaded in the appellants statutory
    accident benefits action.  There is clear overlap between that action and the
    appellants application for declaratory relief.

[5]

Moreover, the detailed dispute resolution procedures in the
Insurance
    Act
and
PIPEDA
furnish a statutory framework for resolution of
    the appellants claim that her privacy rights have been breached and her
    additional allegation that State Farm has engaged in unfair business practices.
    In these circumstances, in our view, the appellants application is
    misconceived and designed to circumvent these mandatory statutory schemes.

[6]

The proposed fresh evidence sought to be filed by the appellant is
    irrelevant to the core issues described above.  It wholly fails to meet the
    test for admission of fresh evidence on appeal.  Further, it contains serious
    allegations of impropriety against the respondents.  Given our conclusion that
    the proposed fresh evidence is irrelevant, we need not deal with those
    allegations.  That said, we see nothing to support those allegations, which the
    respondents strongly dispute, save for the bald and unsubstantiated assertions
    of the appellants father.

[7]

We note that the appellant has not sought leave to appeal costs in her
    notice of appeal.  Nevertheless, we have considered the arguments advanced in
    her factum on this issue.  We see no basis for appellate interference with the
    motion judges costs award.  It is neither plainly wrong nor tainted by any
    error in principle.

[8]

The motion for leave to file fresh evidence on appeal is therefore
    dismissed, as is the appeal.  The respondents are entitled to their costs of
    the appeal and the motion, which we fix in the total amount of $20,000,
    inclusive of disbursements and relevant taxes.

Doherty J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ibrahim v. Toronto Transit Commission, 2016 ONCA
    234

DATE: 20160331

DOCKET: C61031

Feldman, Gillese and Brown JJ.A.

BETWEEN

Samir Ibrahim

Applicant (Appellant)

and

Toronto Transit Commission

Respondent (Respondent)

Samir Ibrahim, acting in person

Andrew Davidson, for the respondent

Heard: March 24, 2016

On appeal from the order of Justice
Frederick
    L.
Myers of the Superior Court of Justice, dated June 17, 2015, with
    reasons reported at 2015 ONSC 3912.

ENDORSEMENT

[1]

Mr. Ibrahim was denied Wheel-Trans service in December of 2010.  He
    issued a statement of claim dated April 25, 2013 (amended December 18, 2013),
    consisting of 11 paragraphs setting out his complaints about the poor service
    Wheels-Trans provided to him, the unsatisfactory service it provided to him,
    and the difficulties he has suffered as a result of being denied service.

[2]

The Toronto Transit Commission (TTC) brought a motion to strike. Mr.
    Ibrahim did not appear in court on the scheduled date, and the motion did not
    proceed. However, the motion judge directed the registrar to send Mr. Ibrahim a
    notice that the court was considering making an order staying or dismissing the
    proceeding under rule 2.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.

[3]

After receiving written submissions from Mr. Ibrahim, the motion judge
    determined that the action could not succeed as pleaded and, therefore, was
    fairly classified as frivolous on its face.  By order dated June 17, 2015, the
    within action was dismissed (the Order).

[4]

Mr. Ibrahim appeals.

[5]

We see no basis on which to interfere with the Order below.  The
    statement of claim discloses no cause of action.

[6]

We would encourage Mr. Ibrahim to consider the motion judges careful
    explanation for how Mr. Ibrahim might seek relief within the government system
    and beyond, once the appeal process was exhausted.

[7]

Accordingly, the appeal is dismissed.  We would make no order as to
    costs.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McDowell v. Cavan-Millbrook - North Monaghan
    (Municipality), 2016 ONCA 193

DATE: 20160308

DOCKET: C60167

Pepall, van Rensburg and Roberts JJ.A.

BETWEEN

Roderick Edward McDowell

Plaintiff (Appellant)

and

The Corporation of Cavan-Millbrook - North Monaghan
,

Mary
    Sutherland (deceased) and Millbrook Public Utilities Commission

Defendants (
Respondent
)

Roderick McDowell, in person

Raffaele Sparano, for the appellant

Christopher Afonso, for the respondent

Heard: February 9, 2016

On appeal from the order of Justice Myrna L. Lack of the
    Superior Court of Justice, dated February 17, 2015.

ENDORSEMENT

Introduction

[1]

In January 2001, the appellant, Roderick Edward McDowell, commenced an
    action against the respondent, the Corporation of Cavan-Millbrook - North
    Monaghan (the Municipality) and others. He asserted various causes of action
    including negligence, intentional torts and breach of contract. He claimed that
    the Municipality prevented him from obtaining approval of a plan of subdivision
    and limited his ability to sell his property between the years 1988 and 1997.

[2]

On February 17, 2015, the action was dismissed for delay under r. 24.01
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The appellant
    appeals from that dismissal.

[3]

Before the motion judge, the appellant was self-represented. Before this
    court, counsel argued the appeal on behalf of the appellant.

[4]

The appellant submits that the motion judge applied incorrect law, erred
    in finding that the appellants delay was inordinate and inexcusable, and erred
    in finding a failure to rebut the presumption of prejudice and actual
    prejudice. He also submits that the motion judge failed to comply with
    responsibilities owed to self-represented parties such as himself. Lastly he
    argues that the motion judge erred in failing to address his cross-motion for
    the production of documents.

[5]

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

History of Proceedings

[6]

The chronology of proceedings may be briefly summarized. Initially, the
    parties were both represented by counsel. The statement of claim was issued on
    February 22, 2001 and the statement of defence was served on August 13, 2001. In
    2002, the parties exchanged affidavits of documents. The appellant became self-represented
    in April 2004. He was examined for discovery in July 2004 but the examination
    was incomplete and was adjourned. The action then lay dormant.

[7]

In July 2007, the action was administratively dismissed for delay. On
    consent of the Municipality, an order setting aside the dismissal was granted
    in November 2007. The examination for discovery of the appellant continued in
    October 2008. Thereafter, between November 2008 and September 2010, counsel for
    the Municipality wrote to the appellant on 14 occasions seeking answers to
    undertakings given on the appellants examination for discovery. The appellant
    provided answers by September 28, 2010.

[8]

In February 2011, the appellant served a further affidavit of documents.

[9]

On August 21, 2013, the Municipality served an experts report and
    advised the appellant that it would bring a motion to dismiss the action for
    delay if the action was not set down for trial. The appellant did not do so.

[10]

On
    November 8, 2013, the Municipality advised the appellant that it was bringing a
    motion to dismiss for delay. Still the appellant did not set the action down
    for trial.

[11]

The
    Municipality brought its motion to dismiss together with other requested relief
    in April 2014, returnable during the sittings commencing May 20, 2014.  In
    April 2014, at the appellants request, the motion was adjourned on consent to
    the sittings commencing November 17, 2014.

[12]

The
    appellant subsequently brought a cross-motion for production of documents which
    he served on November 17, 2014.

[13]

Both
    motions came on before the motion judge.  She adjourned the production motion and
    indicated that she would address it if the dismissal motion was unsuccessful.

[14]

The
    motion judge granted an order dismissing the action for delay. She noted the
    passage of 14 years since the action was commenced. She found that the Municipality
    had neither caused, nor acquiesced in, the delay, which was both inordinate and
    inexcusable.

[15]

The
    appellant had failed to rebut the presumption of prejudice and the evidence
    also established actual prejudice. Due to the delay, evidence was unavailable
    to the Municipality. The composition of the municipal council had changed many
    times, and officials and employees with knowledge of events were no longer in
    office. Furthermore, the Municipalitys discovery representative had died. Given
    the dismissal, the motion judge saw no need to address the production motion.

Analysis

[16]

Rule 24.01(1)(c) provides that a defendant not in default may move for
    dismissal of an action for delay where the plaintiff has failed to set the
    action down for trial within six months after the close of pleadings.

[17]

In
    submitting that the motion judge erred in her description of the applicable
    law, the appellant focuses on the motion judges statement that the Municipality
    was under no obligation to move the appellants case along to trial. This
    comment must be read in context. The motion judge concluded that there was no evidence
    that the Municipality or its counsel was the cause of any delay. While the
    Municipality would be at liberty to set the action down for trial, it was not
    obliged to do so. There is no substance to the appellants suggestion that the
    Municipality laid in wait to pounce on the appellant. To the contrary, it had
    given the appellant numerous warnings of the need to set the action down for
    trial and his exposure to a motion to dismiss.

[18]

The
    motion judge concluded that there was inordinate and inexcusable delay in the
    litigation for which the appellant was responsible. She made no palpable or
    overriding error in this regard. Given the lengthy history of the action, the
    appellants inactivity, and the absence of any credible excuse for the delay,
    the motion judges finding was reasonable and supported by the evidence.

[19]

Once
    inordinate and inexcusable delay is found, there is a presumption of prejudice.
     See
Armstrong v. McCall
(2006), 213 O.A.C. 229 (C.A.), at para. 11,
    citing
Woodheath Developments Ltd. v. Goldman
(2003), 66 O.R. (3d) 731
    (Div. Ct.), leave to appeal refused (2004), 44 C.P.C. (5th) 101 (Ont. C.A.). The
    appellant did not lead any convincing evidence to rebut this presumption and as
    such, there was no need for any finding of actual prejudice, even though the
    motion judge concluded that actual prejudice existed.

[20]

The
    appellant argues that being self-represented, he was unaware of certain
    procedural steps and in particular, that he or the Municipality could have set
    the action down for trial in the absence of document production from the Municipality
    and in the absence of a resolution of his lawsuit against his former counsel.

[21]

The
    court system often presents considerable challenges to people who are
    unrepresented by counsel. Participants in the justice system should not be
    denied relief on the basis of a minor deficiency. That said, a participant,
    including a self-represented party, has a responsibility to familiarize him or
    herself with the procedures relevant to the case. Here the delay was indeed
    inordinate and prejudicial, and resulted in a substantial risk that a fair
    trial would not be possible. The appellants conduct cannot be excused simply
    because he was self-represented. This would work an injustice to the respondent
    and to other participants in the system.

[22]

Lastly,
    the motion judge did not err in adjourning the production motion. The
    appellants motion was served four days before the hearing and would be moot if
    the dismissal for delay motion was granted. The adjournment was a discretionary
    decision and uninfected by any error.

Disposition

[23]

The
    appeal is dismissed. As agreed, the appellant is to pay the respondents costs
    on a partial indemnity scale fixed in the amount of $3,300, inclusive of
    disbursements and HST.

S.E. Pepall J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Monk v. Farmers' Mutual Insurance Company
    (Lindsay), 2016 ONCA 181

DATE: 20160302

DOCKET: C59094

Feldman, Cronk and Huscroft JJ.A.

BETWEEN

Diana Lynn Monk

Plaintiff/Responding Party (Appellant)

and

Farmers
    Mutual Insurance Company (Lindsay) and

Muskoka
    Insurance Brokers Ltd.

Defendants/Moving Parties (Respondents)

David A. Morin, for the appellant

Martin P. Forget, for the respondent Farmers Mutual
    Insurance Company (Lindsay)

Demetrios Yiokaris, for the respondent Muskoka Insurance
    Brokers Ltd.

Heard: May 6, 2015

Released:  December 23, 2015

On appeal from the order of Justice Edward J. Koke of the
    Superior Court of Justice, dated June 27, 2014, with reasons reported at (2014),
    37 C.C.L.I. (5th) 92 (Ont. S.C.).

COSTS ENDORSEMENT

[1]

The parties were unable to agree on costs following the courts decision
    allowing the appeal in this matter. The appellant seeks costs for the motion
    and appeal.

The motion

[2]

Counsel for the appellant seeks $125,000 in costs for the motion on a
    partial indemnity basis.

[3]

The respondents submit that costs should be left to the motion judge, as
    there remains a live issue as to whether the claim is time-barred. In the alternative,
    the appellant should be awarded nothing, or no more than $10,000.

[4]

The motion judge wrote lengthy reasons awarding the respondents
    $50,000 ($30,000 to Farmers and $20,000 to Muskoka) rather than the
    $141,000 they sought. The motion judge discounted the costs to the respondents
    because of concerns about access to justice and disproportionality, given the
    size of the claim.

[5]

Those concerns are not relevant here. The appellant is entitled to costs
    on a partial indemnity basis, which should be fixed at $90,000,

inclusive of taxes and disbursements. $55,000
    shall be paid by Farmers and $35,000 by Muskoka.

The appeal

[6]

Counsel for the appellant seeks $34,000 in costs for the appeal on a
    partial indemnity basis.

[7]

At the hearing, counsel for the appellant stated clearly that, given the
    novelty of the issue and the importance of access to justice, he was not
    seeking costs even if he succeeded on the appeal. He maintained this position
    under questioning from the panel.

[8]

Counsel cannot resile from the position maintained at the hearing.

[9]

In the circumstances there is no order as to costs on the appeal.

Disposition

[10]

Farmers
    shall pay the appellant $55,000. Muskoka shall pay the appellant $35,000. Both
    figures are inclusive of taxes and disbursements.

K.
    Feldman J.A.

E.A.
    Cronk J.A.

Grant
    Huscroft J.A.