WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives
    from all or a part of a hearing; or

(c) prohibiting the publication of a
    report of the hearing or a specified part of the hearing,

where the court is of the opinion that the
    presence of the media representative or representatives or the publication of
    the report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
No person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs
    family.

45(9)
The court may make an order prohibiting the
    publication of information that has the effect of identifying a person charged
    with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. Valoris Pour Enfants et Adultes de
    Prescott-Russell, 2017 ONCA 601

DATE: 20170713

DOCKET: C63662

Hoy A.C.J.O. van Rensburg and Roberts JJ.A.

BETWEEN

A.M.

Appellant

and

Valoris Pour Enfants et
    Adultes de Prescott-Russell
, S-M.N., S.G. and C.P.

Respondent

Julie Bergeron, for the appellant

Anaïs Paré-Chouinard, for the respondents

Heard:  June 19, 2017

On appeal from the judgment of the Divisional Court
    (Swinton, Whitten and McCarthy JJ.), dated November 18, 2016, allowing an
    appeal from the order of Justice Kane of the Superior Court of Justice, dated
    July 26, 2016.

REASONS FOR DECISION

[1]

The child, A.N., was made a ward of Valoris pour
    enfants et adultes de Prescott-Russell (the Society) at the age of two months.
    In December 2015, when he was seven months old, he was placed with a
    foster-to-adopt mother (the F-A mother).   The Society filed a status review
    application in January 2016 requesting the child be made a Crown ward with no
    access rights to the parents. As detailed in their application and plan of care
    dated June 7, 2016, the Societys position was that if the child was made a
    Crown ward, it would support the F-A mother as the adoptive parent for the
    child. An uncontested trial of the Societys application for Crown wardship was
    scheduled and adjourned pending the opportunity for the biological parents to
    move to set aside their noting in default. No such motion was brought.  A
    paternal aunt and her partner expressed an intention to adopt the child early
    in 2016. In June 2016 the Society decided to support that plan instead. The paternal
    aunt and her partner filed a motion seeking to be added as parties and for a
    temporary order for care of the child. That motion was adjourned. The F-A mother
    brought a motion seeking to be added as a party to the child protection
    proceeding.

[2]

There is only one issue on this appeal:  whether
    the Divisional Court erred in overturning the motion judges decision to add
    the F-A mother as a party to the child protection proceeding.

[3]

In our view, it did.  We would allow the appeal and
    reinstate the motion judges order to grant the F-A mother party status in this
    matter.

The Motion Judges Decision

[4]

The motion judge reviewed the childs history, including the
    circumstances leading to the Societys wardship, and the evidence offered by
    the F-A mother, of the childs progress while in her care.   He noted that the
    F-A mother was coordinating and pursuing three areas of medical treatment for
    the child.  He also noted the difference between traditional foster parents and
    foster-to-adopt parents:  the clear understanding between the Society and foster-to-adopt
    parents is that children are placed with them with an ultimate goal of
    adoption.  Foster-to-adopt parents are assessed with the view that they will
    adopt the child.  It was also undisputed that the childs birth mother is in
    favour of an adoption by the F-A mother and that both women agree that there
    should be continuing access with the birth mother if the child is adopted by
    the F-A mother.

[5]

The motion judge considered conflicting jurisprudence
    as to whether foster parents should be made parties to a proceeding like this.
    He quoted this courts comments in
L.(R.) v. Childrens Aid Society
    of the Niagara Region

(2002), 34 R.F.L. (5th) 44, at
    para. 38 that
prior

to
    the initial hearing foster parents are meant to provide temporary care for
    children pending their return to their family or transfer to a more permanent
    placement.  They are not intended to provide a comparative basis for the
    determination of the childs best interests
from
    the outset
(emphasis
    added). He noted that in this case the initial hearing and finding that the
    child was in need of protection had already occurred.  He relied on this
    courts statement in
L.(R
.
)

at para. 50 that, depending on the circumstances, the ultimate
    determination of a permanent placement may well involve such a contest [between
    the childs family and the childs foster parents.]. When it does, it is the
    best interest of the child, not the rights of the family or the foster parents
    that is determinative of the outcome.

[6]

The motion judge began his analysis of whether the F-A
    mother should be added as a party to the child protection proceedings, by
    observing that s. 1 of the
Child and Family
    Services Act
, R.S.O. 1990, c. C.11 (CFSA)
[1]
clearly states the purpose
    of the CFSA:

The paramount purpose of this Act is to
    promote the best interests, protection and well being of children.

[7]

He noted that s. 39(1) provides who will
    automatically be parties to a child protection proceeding, but does not limit
    parties to those listed. He also noted that s. 39(3) of the CFSA provides a
    limited right of participation for non-parties to a child protection
    proceeding.  Those sections provide as follows:

39(1)
The following are parties to a
    proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The childs parent.

4. Where the
    child is an Indian or a native person, a representative chosen by the childs
    band or native community.

39(3) Any person, including a foster
    parent, who has cared for the child continuously during the six months
    immediately before the hearing,

(a) is entitled to the same notice of the
    proceeding as a party;

(b) may be present at the hearing;

(c) may be represented by a solicitor; and

(d) may make submissions to the court,

but shall take no further part in the hearing
    without leave of the court.

[8]

The motion judge concluded, at para. 47, that [g]ranting
    such rights to non-parties, including a foster parent, is not an indication by
    the legislature that a foster parent should not be made a party.

[9]

He considered the facts of the case and, at
    para. 53, found that this [F-A mother]; not the biological parents, their
    extended family members, nor the Society, is in the best position to inform the
    Court on a Crown wardship hearing as to what the specific needs are and what is
    in the best interests of this child.

[10]

He ordered that the F-A mother be a party to the
    proceeding or, if a higher court disagreed with that determination, that the
    F-A mother have full rights to participate in this proceeding pursuant to s.
    39(3) of the CFSA.

[11]

After the motion judges decision, the Society
    amended its application to the current custodial application under s. 57.1 of
    the CFSA supporting the paternal aunts plan of care.

Divisional Court Decision

[12]

The Divisional Court noted that the motion judge
    had not mentioned rules 7(4) and 7(5) of the
Family
    Law Rules
, O. Reg. 114/99:

7(4) In any of the following cases, every
    parent or other person who has care and control of the child involved, except a
    foster parent under the
Child and Family Services Act
, shall be named as a party, unless the court orders otherwise:

1.
A case about custody of or access to a child.

2.
A child protection case.

3.
A secure treatment case (Part VI of the
Child and Family
    Services Act
).

7(5) The court may order that any person who
    should be a party shall be added as a party, and may give directions for
    service on that person.

[13]

While it rejected the Societys argument that
    the effect of r. 7(4) is that the court cannot make a foster parent a party in
    a child protection case, it concluded that the discretion to add a party under r.
    7(5) should be exercised with caution and a foster parent should be added as a
    party only in exceptional circumstances. In the case of foster parents, the
    court should consider their existing participation rights under s. 39(3) of the
    CFSA.

[14]

The Divisional Court held that in determining
    whether a foster parent should be added as a party, the court should consider the
    following criteria:

(1) Is
    adding the party necessary for a determination of the issues in the case?

(2)  Would
    adding the party cause delays in the process?

(3) Does
    the individual have a legal interest in the child protection proceeding?

[15]

It concluded that the motion judge failed to
    consider all these criteria such that the Divisional Court was entitled to
    interfere with the motion judges exercise of discretion.

[16]

While the motion judge concluded that it was
    necessary to make the F-A mother a party, in the Divisional Courts view, he
    overlooked the existing presumptive rights of participation of the F-A mother
    under the CFSA and the fact that she could request permission from the court to
    have her participatory rights expanded.  Further, in its view, the Society had
    relevant information in its files and could call the F-A mother as a witness if
    necessary.

[17]

It reasoned that adding the F-A mother as a
    party would add delay since she opposed the Societys current plan.

[18]

It also held that the F-A mother did not have a
    legal interest in the proceeding.

[19]

Since the alternative remedy of expanded
    participatory rights proposed by the motion judge in paragraph 63(b) of his
    reasons was not reflected in the signed Order under Appeal, the Divisional
    Court did not address it.

Analysis

[20]

In our view, both r. 7(4) and s. 39(3) of the
    CFSA preserve the courts discretion to add a foster parent as a party to a
    child protection proceeding.   We agree that the power to add such a person as a
    party should not be exercised lightly.  However, the Divisional Court
    circumscribed the exercise of that discretion too narrowly. While delay and legal
    interest are relevant, they are not, by themselves, determinative.  The
    overarching consideration is the childs best interests.  The motion judge
    determined that on the facts of this case, the F-A mothers participation as a
    party was both necessary and in the childs best interests.   Further, we do
    not agree with the Divisional Courts assessment of the delay and legal
    interest factors.

[21]

Absent a palpable and overriding error, an error
    in law, or an unreasonable exercise of discretion, the motion judges decision
    should not have been interfered with.  In our view, no such error was present
    here.

[22]

The decision often cited for establishing
    criteria for adding parties in child protection proceedings is
Childrens
    Aid Society of London and Middlesex v. H.(S.)
,

[
2002]
    O.J. No. 4491 (QL).  That case suggests, at para. 22, that the relevant
    questions are:

(i) whether the addition of the party is in the best
    interest    of the child;

(ii) whether the addition of the party will delay or
    prolong the proceedings unduly;

(iii) whether the addition of the party is necessary to
      determine the issues; and

(iv) whether the proposed party is a person capable of
    putting forward a plan that is in the childs best interests.

[23]

Whether the person has a legal interest in the
    proceeding  in the sense that an order can be made in favour of or against
    such person  has also emerged as a relevant factor:
Childrens Aid
    Society of Algoma v. V.C.
, 2011 ONCJ 83, at paras. 11 and 12.

[24]

It is not necessary for all factors to favour
    the person seeking party status for the court to add him or her:
V.C.
, at para. 19.

[25]

We echo Czutrin J.s comments at paras. 20 and
    21 of
Catholic Childrens Aid Society of Toronto v. S.(R.D.)
(2008),
    55 R.F.L. (6th) 132, and endorse his list of additional relevant
    considerations.

[26]

In
S.(R.D.)
, a foster parent appealed a
    motion judges refusal to grant her party status or expanded participatory
    rights.  On appeal, Czutrin J. granted her expanded participatory rights,
    specifically, the right to pretrial disclosure as a party and to call and
    cross-examine witnesses. He stated at paras. 20 and 21:

For very good and appropriate reasons, foster
    parents rights are limited prior to an order making the child a Crown ward. At
    the same time, even if the foster mother were not added as a party, s. 39(3) of
    the CFSA leaves open (and in fact contemplates) that the court may grant foster
    parents rights to participate more fully. There is certainly no absolute
    prohibition against doing so.  The motions judge overemphasized the option of
    placing the child with his grandparents in the context [of] considering the
    foster parents rights of participation at this stage.  The motions judge should
    have also considered the impact on the child of the time that has passed in
    this case without resolution and the people who could best bring to light his
    best interests.  The Act should be read and balanced as a whole.

I find that the Court must, on a case-by-case
    and contextual basis, consider whether to grant leave to allow foster parents
    greater rights of participation,
up to and
    including party status
. These considerations might
    include:

1. The age of the child and the time line
    considerations of the CFSA;

2. Whether there has been a finding of a
    need of protection at the time the request for participation is made;

3. Whether the foster parents will be
    called to testify and whether their evidence will be challenged;

4. Whether the persons or parents who had
    charge of the child at the time of commencement of the proceedings are
    presenting a plan;

5. The time of continuing placement of the
    child;

6. Whether there has been any contact with
    the proposed caregivers;

7. Whether the application has been
    amended; and

8. Such other considerations that suggest
    the foster parents involvement would clarify the best interests of the child.
    [Emphasis added.]

[27]

In this case, the motion judge began with the
    paramount purpose of the CFSA to promote the best interest and well-being of
    children: he correctly identified and applied the most important consideration.

[28]

He referred, at paras. 52 and 53, to the childs
    arrival at the F-A mothers home in a state of emotional disarray, and his
    emotional progress in recovery in the following months. He concluded that, as a
    result, the F-A mother was in the best position to inform the Court as to the
    specific needs and best interest of the child. In his view, and in the
    circumstances of this case, where the Society had changed course after
    approving the F-A mother to become an adoptive parent, this warranted her
    involvement.  In
S.(R.D.)
Czutrin J. found a need for expanded
    participatory rights despite the fact the child was represented by OCL counsel
    who could neutrally collect and present best interests information to the court.
    Here, unlike in
S.(R.D.)
, the OCL is not involved.

[29]

The motion judges conclusion that it was
    necessary to make the F-A mother a party was reasonable.

[30]

While delay was not explicitly mentioned in the
    motion judges reasons, we disagree with the Divisional Court that there is
    reason to expect the F-A mothers involvement would add considerable delay. As
    in
S.(R.D.)
, here too the F-A mother has legal counsel and has not
    asked to adjourn or delay the proceedings.

[31]

The Divisional Courts conclusion that the F-A
    mother has no legal interest in the proceedings, in our view takes too narrow a
    view. In the circumstances of this case, while it is correct that no final
    order could be made against or in favour of the F-A mother at this stage in the
    proceedings, depending on the outcome of the proceedings, any opportunity for
    her to adopt the child would be foreclosed. In this sense her legal interests
    are affected.   The decision here however does not turn on the question of the
    existence, nature or extent of the F-A mothers legal interest.  As correctly
    pointed out by the motion judge, the protection and pursuit of the childs best
    interests, rather than the rights of the F-A mother, are the central issue.

[32]

As for the additional relevant considerations
    articulated in
S.(R.D.)
, in this case the child has just turned two.
    He has spent most of his life, since the age of seven months, with the F-A
    mother.  Since the Divisional Courts decision in November 2016, the child has
    remained in the care of the F-A mother, spending two days each week with his
    paternal aunt.

[33]

The child was found in need of protection on
    October 22, 2015 at which time he was placed with the F-A mother.
    Significantly, at the time the F-A mother brought her motion, this was not a
    case where either parent could regain custody.

[34]

If granted no further participatory rights, the
    F-A mother, who is also the person with charge of the child at the commencement
    of the proceeding, and who wishes to ultimately present her own plan, may be
    denied the opportunity to testify.

[35]

The motion judge did not explicitly advert to
    all these factors in his reasons. However, he conducted a fact-specific and
    contextual analysis guided by the paramount consideration of the childs best
    interests.  In light of all the factors enumerated above, it was in our view
    open to the motion judge to find that the F-A mothers involvement in the child
    protection proceedings as a party would clarify the best interests of the
    child.

[36]

Given this, the Divisional Court in our view
    erred in interfering in the motion judges reasonable exercise of discretion.

Disposition

[37]

The appeal is allowed.

[38]

We reinstate the motion judges order granting
    the F-A mother party status in the proceedings about the child.

Alexandra
    Hoy A.C.J.O.

K.M.
    van Rensburg J.A.

L.B.
    Roberts J.A.

[1]

The motion judge incorrectly referred to the
Childrens Law
    Reform Act
, R.S.O. 1990, c. C.12. It is clear from the references to the
    sections that he meant to refer to the CFSA.


COURT OF APPEAL FOR ONTARIO

CITATION: Aboagye v. Atomic Energy of Canada, 2017 ONCA 598

DATE: Draft 20170711

DOCKET: C63189

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Francis Aboagye

Plaintiff (Appellant)

and

Atomic Energy of Canada

Defendant (Respondent)

Francis Aboagye, in person

Frank Cesario, for the respondent

Heard: July 7, 2017

On appeal from the judgment of Justice Michal Fairburn of
    the Superior Court of Justice, dated December 30, 2016.

REASONS FOR DECISION

[1]

The appellants claim for damages for wrongful dismissal was dismissed
    on a motion for summary judgment. He appeals on the basis that he was not
    terminated for cause.

[2]

The appellant was hired by Atomic Energy Canada- Canadas leading
    nuclear agency. All employees are required to obtain security clearances. It is
    not in dispute that he was not truthful when he completed a Security
    Questionnaire for Site Access Clearance. This form asked for an employment
    history and warned: There should be no gaps. At the time, the appellant was
    employed at Ivaco Rolling Mills. He did not disclose this, but indicated by
    email that he was unemployed.

[3]

The appellant began working for the respondent on May 15, 2012. The
    respondent received complaints about his harassment of other employees. He was
    put on investigatory leave five months later in October 2012. During an
    interview as part of the investigation, it was revealed that he had lied about
    his whereabouts when the respondent was trying to reach him to extend an offer
    of employment. At the time, he said he was in Africa attending his fathers
    funeral. The appellant was terminated in December 2012.

[4]

The appellant submits that the motion judge erred in dismissing his
    claim by emphasizing the national security aspect of the respondents
    operations. He submits that he told the respondent on his first day of work
    that he had worked at Ivaco and denies lying about his fathers funeral.

[5]

The motion judges reasons are detailed, thorough and properly set out
    the legal principles with respect to termination for cause. We agree with her
    that the breach of honesty in this case goes to the core of the employment
    relationship. The respondents employees have access to nuclear facilities and
    information vital to the security of the country. The security clearances are
    designed to protect national security. On this basis alone, there were clear
    grounds for dismissal and there was no genuine issue requiring a trial.

[6]

The appeal is dismissed with costs fixed at $3,500 inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abou-Mansour v. Abou-Mansour, 2017
    ONCA 572

DATE: 20170704

DOCKET: C63196

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Rima Abou-Mansour

Appellant/Respondent

and

Samer Abou-Mansour

Respodent/Applicant

Natalia Denchik, for
    the appellant

Jeffrey I.
    Rechtshaffen, for the respondent

Heard and released orally: June 29, 2017

On appeal from the order of Justice Patrick Moore of the Superior
    Court of Justice, dated December 14, 2016.

REASONS FOR DECISION

[1]

Based upon medical evidence, the trial judge
    found that the respondent was unemployed and effectively unemployable and therefore
    refused to impute income.

[2]

The appellant complains that the trial judge
    erred by curtailing her cross-examination of the respondent on his medical
    condition. We reject that submission.

[3]

The trial judge enforced the time limits set out
    in the trial scheduling form and the appellant did not ask for more time to
    continue her cross-examination.

[4]

The appellant alleges or argues that the trial
    judge erred in failing to grant her an adjournment to summons additional
    witnesses. We are not persuaded that the appellant provided the trial judge
    with a reasonable explanation to explain why the witnesses had not be summoned
    in a timely manner prior to the trial. The trial judge did not error in
    refusing an adjournment.

[5]

The family assets were divided equally following
    separation, and it was open to the trial judge on the evidence to find that the
    appellant had purchased the Syrian properties from the proceeds of the
    equalization and to make no further order.

[6]

For these reasons the appeal is dismissed.

[7]

Costs to the respondent fixed at $3,500 inclusive
    of disbursements and taxes.

Robert J. Sharpe
    J.A.

P. Lauwers J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: AIG Insurance Company of Canada v. Priyance
    Hospitality Inc., 2017 ONCA 595

DATE: 20170710

DOCKET: C63207

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Owen Rogers, Trustee

Applicant (Respondent in Appeal)

and

Priyance Hospitality Inc.

Respondent

Reid Lester, for the appellant, AIG Insurance Company of
    Canada

David S. Ward and Erin Craddock, for the respondent,
    Owen Rogers, Trustee

Heard: July 7, 2017

On appeal from the judgment of Justice Ruth E. Mesbur of
    the Superior Court of Justice, dated December 14, 2016.

REASONS FOR DECISION

[1]

The appellant, AIG Insurance Company of Canada, appeals from the
    judgment of Mesbur J. of the Superior Court of Justice dismissing AIGs motion
    for the recovery of $600,000 which has been held back from distribution by the
    Receiver in the underlying proceeding. In support of its position, the
    appellant advances arguments grounded in mistake of fact, lack of consideration,
    unjust enrichment, equitable subrogation and constructive trust.

[2]

We do not accept the appellants submissions on these issues. We agree
    with the motion judges conclusion. The funds in question were paid to the
    respondent trustee to reduce a legitimate outstanding debt. It is accepted that
    the trustee, who had no knowledge about the fraud and was not positioned to
    discover it, was lawfully entitled to receive the funds. Further, in good
    consideration of the payment, the trustee altered its position by agreeing to
    defer its receivership application for an additional two weeks even though, in
    addition to all the debtors other problems, the bailiff had taken seizure
    actions to collect outstanding municipal taxes. In the context of these facts,
    the appellant did not establish the defence of mistake of fact.

[3]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal fixed at $17,500, inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Angus v. Port Hope (Municipality), 2017 ONCA 566

DATE: 20170704

DOCKET: C62496

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Ian Angus
and Dean Ross

Applicants

(
Respondent
)

and

Municipality of Port Hope

Respondent

(Appellant)

Chris G. Paliare, Richard P. Stephenson and Lindsay
    Scott, for the appellant

Alan J. Lenczner, Q.C. and Paul-Erik Veel, for the
    respondent

Heard: April 18, 2017

On appeal from the judgment of Justice John R. McCarthy
    of the Superior Court of Justice, dated June 30, 2016, with reasons reported at 2016
    ONSC 4343.

Gillese J.A
.:

OVERVIEW

[1]

In 2000, the Government of Canada (Canada) and the former
    municipalities of the Town of Port Hope, the Township of Hope, and the
    Municipality of Clarington (collectively, the Municipalities), struck a
    deal:  Canada would make a payment of $10 million to each of the Municipalities
    in exchange for each of the Municipalities storing low-level radioactive waste
    (the Waste) at safe sites within their respective communities.  The necessary
    regulatory approvals for the new Waste management facilities had not been
    obtained at the time the parties struck the deal.

[2]

The parties papered the deal with an agreement executed by the
    Municipalities in December 2000 and by Canada on March 29, 2001 (the
    Agreement).  This appeal is about the proper interpretation of the Agreement
    and, specifically, Schedule 8 to it.

[3]

On January 1, 2001, Hope Township and the Town of Port Hope were
    amalgamated into a new entity called the Corporation of the Town of Port Hope
    and Hope (the Municipality of Port Hope).

[4]

On April 12, 2001, the Municipality of Port Hope received a $10 million
    cheque from Canada, which was the payment due to Hope Township under the
    Agreement (the Payment).

[5]

In 2014, Ian Angus (the Applicant) and Dean Ross
[1]
brought an application (the Application) in which they alleged that the
    Municipality of Port Hope had misused the income earned on the Payment because
    it had failed to apply that income exclusively to defray the lower tier
    municipal taxes or levies of ratepayers of the former Hope Township.

[6]

By judgment dated June 30, 2016 (the Judgment), the application judge granted
    the Application.

[7]

The application judge interpreted Schedule 8 to the Agreement as having created
    a non-charitable purpose trust that was saved by s. 16 of the
Perpetuities
    Act
, R.S.O. 1990, c. P.9.  He also found that the Municipality of Port
    Hope had breached its duties as trustee because it failed to use the power to
    appoint in accordance with the strict terms of the trust.

[8]

Port Hope appeals.  Its core contention on appeal is that Schedule 8 of
    the Agreement is a contract and did not establish a trust over the Payment.

[9]

Mr. Angus cross-appeals.  He contends that Schedule 8 created a charitable
    trust, not a non-charitable purpose trust as the application judge found.

[10]

As I will explain, Schedule 8 did not create a trust and the
    Municipality of Port Hope did not breach its duties in respect of the Payment
    and income earned on it.  Accordingly, I would allow the appeal and dismiss the
    cross-appeal.

BACKGROUND

[11]

Since the 1930s, the Waste has been deposited in sites around the
    Municipalities.  Efforts were made to relocate the Waste but were not successful.

[12]

In the late 1990s, the Municipalities entered into negotiations with Canada
    in a bid to find an alternative solution to the cleanup and long-term
    management of the Waste.  The negotiations met with success and a deal was
    struck.  The essence of the deal was that the parties would work together to
    see that new Waste management facilities were constructed in each of the
    Municipalities and Canada would make a $10 million payment to each of the Municipalities
    in exchange for their storage of the Waste.

[13]

The deal was captured in the Agreement.  Although the Municipalities executed
    the Agreement in December 2000, Canada did not execute it until March 29, 2001.

[14]

When the Agreement was executed, regulatory approval from the Canadian
    Nuclear Safety Commission (CNSC) was necessary to operate the Waste
    management facilities.  That approval had not been obtained.  It was not until
    2009 that the Municipality of Port Hope received a licence from the CNSC for
    the Waste management facility in the former Hope Township.

[15]

On December 19, 2000, Hope Township Council passed By-law 3605, which,
    among other things, authorized Hope Township to appoint Royal Trust Corporation
    to receive and hold the Payment in trust for the exclusive benefit of the [Hope
    Township] ratepayers from time to time.

[16]

On January 1, 2001, the Town of Port Hope and Hope Township were
    amalgamated to form the Municipality of Port Hope. The Municipality of Port
    Hope consists of two wards.  Ward 1 is the former Town of Port Hope and Ward 2 is
    the former Hope Township.

[17]

Mr. Angus is a ratepayer within Ward 2.  He was the Reeve of Hope Township
    at the time the Agreement was negotiated and was intimately involved in its
    creation.  His wife is the largest residential taxpayer in Ward 2.

The Agreement

[18]

The Agreement begins with an introduction (the Introduction) that: recites
    some of the history leading up to the Agreements execution; identifies the
    need to address the cleanup and better long-term safe management of the Waste located
    within the respective Municipalities; and, sets out steps to be taken to bring
    the potential solution to fruition.  The Introduction is set out in full in
    Appendix A to these reasons.

[19]

Articles 1.12 and 1.19 of the Agreement are of significance on this appeal.
    Article 1.12 permits the Agreement to be amended and Article 1.19 specifies
    that if there is a conflict between the Agreements provisions and the
    Schedules, the Schedules take precedence.

[20]

Articles 1.12 and 1.19 read as follows:

1.12
Except as otherwise expressly provided for in this
    Agreement, no amendment, variation or waiver of the provisions of this
    Agreement shall be effective unless made in writing and signed by each of the
    Parties hereto, either individually by counterpart or collectively. Any
    amendment, variation or waiver shall take effect on the date specified in the
    amendment, variation or waiver or, if not so specified, on the date on which
    the last Party executes and delivers the amendment, variation or waiver.

1.19
In the event of
    conflict or inconsistencies between the provisions of this Agreement and its
    Schedules, the order of precedence in descending order shall be as follows:

-the Schedules attached to the Agreement

-the Articles of the Agreement signed
    by the parties.

[21]

Article 7 of the Agreement is also of significance to this appeal.  Under
    article 7.1 of the Agreement, Canada agreed to make a $10 million payment to
    each of the Municipalities so that the latter would be enabled to address, as
    they saw fit, the impacts of the presence of long-term waste management
    Facilities within their communities.

[22]

Under article 7.2, the parties agreed that the payments would be dealt
    with in accordance with the additional terms and conditions set out in
    Schedules 7, 8 and 9.  Those three schedules relate to the payments to each of
    the Town of Port Hope, Township of Hope, and Clarington, respectively.
    Schedules 7, 8 and 9 are set out in full in Appendices B, C and D to these
    reasons.

[23]

Article 7 reads as follows:

7.1
Upon the approval of this Agreement by the Treasury
    Board, Canadas signature of the Agreement and the appropriation of funds by
    the Parliament of Canada for the purposes set out below, Canada agrees, in
    order that the Municipalities will be enabled to address, as they see fit
    impacts of the presence of long-term waste management Facilities within their
    communities, to make the following payments:

(a) A payment of Ten Million ($10,000,000.00) Dollars to the
    Town of Port Hope;

(b) A payment of Ten Million ($10,000,000.00) Dollars to the
    Township of Hope; and,

(c) A payment of Ten Million ($10,000,000.00) Dollars to
    Clarington.

7.2
For the purposes of Article 7 and Schedules 7, 8 and
    9, each of the payments referred to above may also be referred to as the Fund
    or Funds and the Parties agree that the Funds shall be dealt with in
    accordance with the additional terms and conditions as set out in Schedules 7,
    8 and 9.

Schedules 7 and 9

[24]

As already noted, Schedules 7, 8 and 9 relate to the $10 million
    payments from Canada to each of the Town of Port Hope, Hope Township, and
    Clarington, respectively.  Schedules 7 and 9 are substantively very similar, apart
    from the fact that the former relates specifically to the Town of Port Hope and
    the latter specifically to Clarington.

[25]

Both Schedule 7 and Schedule 9 consist of four paragraphs.  For
    illustrative purposes below, I refer to the provisions in Schedule 7. Readers
    are directed to Appendix D for the corresponding provisions in Schedule 9, for
    Clarington.

[26]

In paragraph 1 of each of Schedules 7 and 9, the municipality in
    question (the Town of Port Hope or Clarington) agrees to hold its payment from
    Canada in trust for the exclusive benefit of [its] ratepayers.  Paragraph 1
    of Schedule 7 reads as follows:

1.
Subject to the following
    provisions, Port Hope agrees to hold Canadas payment of Ten Million
    ($10,000,000.00) Dollars in trust for the exclusive benefit of the ratepayers
    of the area that comprises the geographic area of Port Hope as of the date of
    October 6, 2000.

[27]

Paragraph 2 empowers the municipality to invest its payment in its
    discretion and, in its discretion, to expend any income earned from investing
    it.

2.
The principal of the Fund may be invested by Port
    Hope in its discretion in any investment permitted by law.  Any income earned
    from investing the Fund may be expended by Port Hope from time to time in its
    discretion for any purpose permitted by law.

[28]

The essence of paragraph 3 was to require the municipality to repay the
    $10 million to Canada if the necessary CNSC licence was refused (once the Waste
    in that municipality had been cleaned up and removed).  Paragraph 3 of Schedule
    7 reads as follows:

3
.  Port Hope shall pay Canada an amount equal to the
    opening capital of the Fund, Ten Million ($10,000,000.00) Dollars, on the last
    to occur of both:

(1) the day on which a licence is refused by the [CNSC] to
    construct the New Port Hope Waste Management Facility as contemplated by this
    Agreement; and,

(2) the first day after the Historic Low-Level Radioactive
    Waste and the Cameco Decommissioning Waste which are identified in Schedule 1
    as wastes to be accommodated in the New Port Hope Waste Management Facility
    have been cleaned up in accordance with the intent of this Agreement and removed
    from the Town of Port Hope and Hope.

[29]

Paragraph 4 governed if a CNSC licence were granted.  If that occurred, the
    municipalitys obligations in favour of Canada regarding the investment and use
    of the Fund terminated.

4. If a licence to construct the New Port Hope Waste Management
    Facility is granted by the Canadian Nuclear Safety Commission, on the date of
    the issuance of the licence Port Hopes obligations in favour of Canada
    regarding the investment and use of the [F]und shall terminate.

Schedule 8

[30]

Schedule 8 originally consisted of nine paragraphs. (As discussed below,
    it was later amended to include an additional paragraph.)

[31]

In paragraph 1 of Schedule 8, Canada was to pay to the trustee appointed
    by Hope Township Council $10 million to be held in trust for the exclusive
    benefit of Hope Township ratepayers.

1.

Canada will
    pay to the trustee (Trustee) appointed by Hope Township Council, a grant in
    the amount of Ten Million ($10,000,000.00) Dollars (hereinafter referred to as
    the Opening Capital or the Fund) which, subject to the following
    provisions, shall be held in trust for the exclusive benefit of the ratepayers
    from time to time of the area that comprises the geographic area of Hope
    Township as of the date of October 6, 2000.

[32]

I will refer to the Payment together with the investment income earned
    on it as the Hope Township Fund.

[33]

Paragraph 2 addresses the trustees powers of investment.

[34]

Paragraphs 3 and 4 give the trustee a right of indemnity for its costs of
    administering and investing the Payment and permit it to use the income to defray
    the lower tier municipal taxes or levies which otherwise would be payable by
    Hope Township ratepayers, provided that the net value of the Hope Township Fund
    was not reduced below $10 million.

[35]

Paragraph 5 provides that the trustee shall have at least fifty (50)
    times the amount of the Fund under administration during the period in which
    it acts as trustee.

[36]

Paragraph 6 empowers the Hope Township Council to terminate the trustees
    appointment but the Council was thereupon to appoint another trustee.

[37]

Paragraph 7 sets out the meaning of lower tier municipal taxes or
    levies.

[38]

Paragraphs 8 and 9 mimic paragraphs 3 and 4 of Schedules 7 and 9.  If a
    CNSC licence was refused (and once the Waste facility was properly dealt with),
    paragraph 8 obligated Hope Township to pay Canada $10 million.  If a CNSC
    licence were granted, paragraph 9 operated to terminate Hope Townships
    obligations in favour of Canada regarding the investment and use of the Fund.

8.
The Trustee shall pay Canada an amount equal to the
    opening capital of the Fund being Ten Million ($10,000,000.00) Dollars on the
    last to occur of both:

(1) the day on which a licence is refused by the Canadian
    Nuclear Safety Commission to construct the New Hope Township Waste Management
    Facility as contemplated by this Agreement; and,

(2) the first day after the Cameco Waste  Welcome has been
    removed from the Township of Hope and the site of the Welcome Waste Management
    Facility has been cleaned up in accordance with the intent of this Agreement
    including, without limitation, Schedule 2.

9.
If a licence to construct the New Hope Waste
    Management Facility is granted by the Canadian Nuclear Safety Commission, on
    the date of the issuance of the licence the Trustees obligation in favour of
    Canada regarding the use and investment of the Fund shall terminate.

The Payment

[39]

On April 12, 2001, the Municipality of Port Hope received two cheques
    from Canada, each in the amount of $10 million.  One of the cheques was made
    payable to the Royal Trust Corp. of Canada Former Hope Township Ward 2.  It
    was the Payment due to Hope Township under the Agreement.

[40]

When the Payment was received, no trust agreement had been concluded
    between Hope Township and Royal Trust nor had such an agreement been concluded
    between the Municipality of Port Hope and Royal Trust.

[41]

The Payment was placed on deposit with Royal Trust.

The
    Amendment

[42]

The Agreement has been amended three times.  The first amendment, made
    on October 7, 2003 (the Amendment), is the only one of relevance to this
    proceeding.

[43]

The Amendment was necessary because neither Hope Township nor the
    Municipality of Port Hope was able to reach an agreement with Royal Trust (or
    other professional trustee) so that Royal Trust or a similar institution would
    act as trustee of the Hope Township Fund.  The inability to reach such an agreement
    was not due to lack of effort but because of the significant difficulties and
    issues surrounding the use of a trust for the investment, management and
    administration of the Hope Township Fund.

[44]

The Amendment empowered the Municipality of Port Hope to invest the Hope
    Township Fund in accordance with its investment policy and to use an investment
    counsellor to manage the fund.

[45]

Paragraph 1 of Schedule 8, as amended, is set out below.  The changes to
    its wording as a result of the Amendment have been underlined.

1.
Canada will pay to the
    trustee (Trustee) appointed by Hope Township Council, a grant in the amount
    of Ten Million ($10,000,000) Dollars hereinafter referred to as the Opening
    Capital or the Fund which, subject to the following provisions, shall be
    held in trust
or, after the appointment by Council of an Investment
    Counsellor, on the terms set in the Investment Policy of the Municipality
for the exclusive benefit of the ratepayers from time to time of the area that
    comprises the geographic area of Hope Township as of the date of October 6,
    2000. [Emphasis added.]

[46]

A new paragraph 3 was inserted into Schedule 8, as a result of the
    Amendment.  It reads as follows:

3.
In the event that an
    Investment Counsellor is appointed to manage the [Hope Township] Fund, the
    terms of that Contract and the Municipalitys Investment Policy shall apply.

Investment and Use of the Hope
    Township Fund

[47]

Around the time that the Amendment was made and pursuant to By-law No.
    43/2003, the Municipality of Port Hope appointed TAL/CIBC as investment counsel
    and manager of the Hope Township Fund.

[48]

Since 2003, the Hope Township Fund has been invested and managed in
    accordance with the Municipality of Port Hopes Council-approved investment
    policy.  Council has treated the Payment (i.e. the original $10 million paid by
    Canada to Hope Township) as a legacy asset and has not encroached upon it.  Income
    earned on the Payment has been used for various public purposes, including
    contributions to building and equipment reserves, investments in roads and
    community facilities, and the reduction of lower-tier municipal taxes for ratepayers.
    It has not been used exclusively to defray the lower-tier municipal taxes of
    Ward 2 ratepayers.

THE DECISION BELOW

[49]

The application judge found that the Agreement met the three certainties
     of intention, subject-matter and objects  required to create an express
    trust.

[50]

With respect to certainty of intention, the application judge found that
    the Agreement and Schedule 8, read together, revealed a certainty of intention
    on the part of Canada, as the settlor of the trust, to transfer property to a
    trustee to hold or administer it for the benefit of an identified group and for
    a specific purpose.  He viewed the Payment and income that would accrue on it
    as satisfying the certainty of subject matter requirement.  He found that the
    objects of the trust were the ratepayers of the former Hope Township and that
    this description of the class of objects satisfied the certainty of objects
    requirement.

[51]

The application judge found that the trust was constituted by Canadas
    delivery of the $10 million cheque to Royal Trust on April 12, 2001.  He
    rejected the argument that the trust was improperly constituted or failed
    because Royal Trust eventually returned the Hope Township Fund to the
    Municipality of Port Hope. He said that by the time that fund was returned, the
    trust was already in existence and the failure of the Municipality of Port Hope
    and Royal Trust to reach an agreement on its management did not change this.

[52]

The application judge concluded that the trust did not offend the
    alienation rule but found that it violated the rule against remoteness of
    vesting because it provided benefits to an unclosed class for an indeterminate
    period that extended beyond the perpetuity period.

Not a Charitable Trust

[53]

The application judge outlined the four generally recognized charitable
    purposes at common law and focused on the fourth, which is other purposes
    beneficial to the community. He concluded that the tax abatements did not
    qualify as charitable because the arrangement was a business deal and there was
    no charitable intent, context, or purpose.

A Non-Charitable Purpose Trust

[54]

The application judge found that the Agreement created a specific non-charitable
    purpose trust and that s. 16 of the
Perpetuities Act

applied.
    Thus, the trust was to be construed as a power to appoint the income or capital
    for a period of 21 years. He concluded that the Municipality of Port Hope, as
de
    facto

trustee, had the power to appoint the trusts income and
    capital in accordance with the requirements of Schedule 8.

[55]

Accordingly, in his view, the Municipality had a duty to exercise its
    power to appoint only to defray the lower tier taxes of ratepayers resident in
    Ward 2, from time to time. He found that the power could be exercised so as to
    encroach on the capital, without any regard to the obligation in favour of
    Canada to preserve the capital.

[56]

The application judge noted that there was an issue as to who would be
    entitled to the funds after the 21 years passed on April 12, 2022. He concluded
    that the question was not before the court and could be determined on or after
    April 12, 2022.

Limitation Period and Laches

[57]

The application judge considered whether the Application was out of time
    and concluded that it was not. He found that there was no evidence that Mr.
    Angus was aware prior to September 8, 2012 (two years before the Notice of
    Application was issued) that the Hope Township Fund was not being used for the
    exclusive benefit of the ratepayers of the former Hope Township.

[58]

He also rejected the argument that Mr. Angus would have been aware of
    the use of those funds because of the inquiries made by a friend of Mr. Angus
    in April 2012 and Mr. Angus involvement with the Municipality of Port Hopes
    Area Rating Committee.

[59]

The application judge found that Mr. Angus first discovered he had a
    claim on January 17, 2013, when he received a copy of a letter from counsel for
    the Municipality of Port Hope that opined that the obligations in the Agreement
    regarding the use of the money had terminated. Furthermore, he declined to find
    that a reasonable person in Mr. Angus circumstances should have realized prior
    to September 8, 2012 that he had a claim against Port Hope.

[60]

The application judge rejected the argument that the doctrine of laches
    or acquiescence barred the claim for equitable relief because there was no
    evidence that the Municipality of Port Hope would be prejudiced by the delay
    and the equities lay in favour of Mr. Angus.

Breach of Trust

[61]

The application judge concluded that when the Municipality of Port Hope
    took possession of the funds previously held by Royal Trust, with knowledge of
    the terms of the trust, it became a
de facto
trustee.

[62]

He found that the Agreement had been breached. He rejected the
    Municipality of Port Hopes argument that the use of the income earned on the Payment
    nevertheless benefited the ratepayers  it was not for the trustee to depart
    from the terms of the trust except with the legal authority to do so.

THE ISSUES

[63]

The central issue on this appeal is whether Schedule 8 to the Agreement created
    a trust of the Hope Township Fund.

[64]

The cross-appeal raises a single issue.  If Schedule 8 created a trust,
    was it a charitable trust?

THE STANDARD OF REVIEW AND ITS APPLICATION

[65]

The legal interpretation of the Agreement, which includes Schedule 8, is
    at the heart of this dispute.  Because contractual interpretation involves
    issues of mixed fact and law, this court owes deference to the decision of the
    application judge, as first-instance decision maker (
Sattva Capital Corp.
    v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52;
Heritage
    Capital Corp. v. Equitable Trust Co.
, 2016 SCC 19, [2016] 1 S.C.R. 306, at
    para. 21).

[66]

However, deference is not owed where the first-instance decision maker
    has made an extricable legal error in his or her contractual interpretation.
    Such errors include 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 (
Sattva
, at para. 53;
Heritage Capital
, at
    para. 22).

[67]

As I explain below, the application judge made a number of extricable
    legal errors.  Consequently, his interpretation of Schedule 8 to the Agreement is
    not owed deference by this court and it falls to this court to determine
    whether Schedule 8 created a trust.

ANALYSIS

[68]

When interpreting a contract, the courts overriding concern is to
    determine the parties intent. To do that, the contract must be read as a
    whole, giving the words used their ordinary and grammatical meaning, consistent
    with the surrounding circumstances known to the parties at the time of
    formation of the contract (
Sattva
,
at para. 47).

[69]

In the present case, this means that the Agreement as a whole, including
    Schedule 8, must be read in context to determine whether Hope Township (and the
    Municipality of Port Hope, as its successor) was obliged to hold the Hope
    Township Fund in trust for the ratepayers in Ward 2.  I conclude that it was
    not.

[70]

In summary, I reason as follows.

1.

The Agreement,
    which includes Schedule 8, is a contract.  It provides context within which to
    interpret Schedule 8.

2.

Canadas Payment
    to Hope Township was the discharge of its contractual obligation under article
    7.1(b) of the Agreement.  Canada did not make the Payment as the settlor of a
    trust and did not settle the Payment on trust.

3.

Article 7.1(b) of
    the Agreement did not create a trust.

4.

Pursuant to
    Article 7.2 of the Agreement, Hope Township had to deal with the Payment in
    accordance with Schedule 8.

5.

Schedule 8 did
    not create a trust of the Payment or of the Hope Township Fund.  It did not
    create a non-charitable purpose trust, an express trust for persons, or a
    charitable trust.

6.

The Municipality
    of Port Hope did not become a trustee nor did it breach its obligations in
    respect of the use of the Hope Township Fund.

[71]

I will now explain each of these steps of my analysis.

1.  The Agreement,
    including Schedule 8, is a contract

[72]

In my view, the Agreement is unquestionably a contract.  The Agreement
    includes Schedule 8.  Therefore, Schedule 8 is fundamentally contractual in
    nature.  I hasten to add that is not determinative of the issue on which this
    appeal hinges because, within a contract, a party can create a trust.  However,
    the Agreement warrants consideration as it provides the context within which
    Schedule 8 is to be interpreted.

[73]

The Agreement is the written expression of the mutually beneficial
    commercial bargain struck between Canada and the Municipalities.  Under the
    Agreement, Canada promised to make a $10 million payment to each of the
    Municipalities and the Municipalities promised to store Waste in their
    respective communities.  The Agreement set out the parties obligations in
    respect of obtaining the requisite regulatory approvals and spelt out what was
    to happen if such approvals were granted or not.  And, there can be no doubt
    that the parties intended that the Agreement was to create legal relations.
    See, for example, the last sentence of the Introduction to the Agreement, which
    reads as follows:

THEREFORE, in consideration of the covenants hereinafter
    contained and other good and valuable consideration, the Parties agree as
    follows  .

[74]

It follows that the Agreement, complete with its schedules, is a
    contract.

2.   Canada did not settle
    the Payment on trust

[75]

It will be recalled that the relevant parts of article 7 of the
    Agreement read as follows:

7.1

Canada agrees
, in order that the
    Municipalities will be enabled to address, as they see fit impacts of the
    presence of long-term waste management Facilities within their communities,
to
    make the following payments:

(b)
A payment of Ten Million ($10,000,000.00) Dollars to the
    Township of Hope
;

7.2
For the purposes of Article 7 and Schedules 7, 8 and
    9, each of
the payments
referred to above
may also be

referred
    to as the Fund
 or Funds and
the Parties agree that the Funds shall
    be dealt with in accordance with the additional terms and conditions as set out
    in Schedules 7, 8 and 9
.  [Emphasis added.]

[76]

On a plain reading of article 7.1(b) of the Agreement, Canada had a contractual
    obligation to make the Payment to Hope Township.

[77]

When Canada made the Payment, it did so to satisfy its contractual
    obligation under article 7.1(b).  Therefore,   Canada could not have been
    acting as the settlor of a trust when it made the Payment.  To settle property
    on trust, one must intend that the property be the subject of the trust. Here,
    there was no such intention because  to repeat  Canadas intention in making
    the Payment was to discharge its contractual obligation under article 7.1(b) of
    the Agreement.

[78]

Accordingly, the application judge made an extricable legal error in
    holding that Canada settled the Payment on trust.  I return to this point
    below.

3.
    Article 7.1(b) did not create a trust

[79]

Article 7.1(b) states that Canada agreed to make the Payment to enable
    Hope Township to address, as [it] see[s] fit, the impacts of the presence of
    the Waste facilities within its community.  This provision is permissive in
    nature  Hope Township could use the Payment, as it saw fit, to address the
    impacts of the presence of Waste facilities in its community.

[80]

As there are no words in article 7.1(b) that legally constrain Hope
    Townships use of the Payment, article 7.1(b) cannot have created a trust over
    the Payment.

4. Hope
    Township had to deal with the Payment in accordance with Schedule 8

[81]

Under article 7.2 of the Agreement, the parties agreed that the Payment shall
    be dealt with in accordance with Schedule 8.  Thus, the question becomes, did
    Schedule 8 create a trust of the Payment/the Hope Township Fund?

5.  Schedule 8 did not
    create a trust

a.

No
    non-charitable purpose trust

[82]

The application judge found that Schedule 8 created a non-charitable
    purpose trust to which s. 16 of the
Perpetuities Act
applied. Consequently,
    he construed the purported trust as a power to appoint the capital and income in
    the Hope Township Fund within a period of 21 years.  The application judge said
    that when that period expired on April 12, 2022, a further determination would
    have to be made as to who was entitled to any unexpended income or capital in
    the Hope Township Fund.

[83]

In my view, the application judge erred in two ways in so finding: (i)
    he incorrectly applied the law governing non-charitable purpose trusts; and
    (ii) the finding is contrary to the parties express intentions in the
    Agreement.

i.

an
    incorrect application of the law

[84]

If Schedule 8 creates a trust, it cannot be a non-charitable purpose
    trust because people would be the direct beneficiaries.

[85]

In
Schmidt v. Air Products Canada Ltd.
,
[1994] 2 S.C.R.
    611, at p. 640-641, a majority of the Supreme Court of Canada recognized that non-charitable
    purpose trusts are a rare species in which funds are placed in trust not for
    persons but to see that a particular purpose is fulfilled.  Under a
    non-charitable purpose trust, people may benefit
but only indirectly
.
    [Emphasis added.]

[86]

In
Air Products
, the majority applied this principle.  In so
    doing, it rejected the submission that pension trusts are non-charitable
    purpose trusts because people are the direct beneficiaries of pension trusts.

[87]

For the same reason, if Schedule 8 creates a trust, it cannot be a
    non-charitable purpose trust because people  the ratepayers, from time to
    time, in the former Hope Township  would be the direct beneficiaries.  Paragraph
    1 of Schedule 8, in its original form, expressly states that: the Payment shall
    be held in trust for the exclusive benefit of the ratepayers from time to time
    of the area that comprises the geographic area of Hope Township as of the date
    of October 6, 2000.  And paras. 3 and 4 of Schedule 8 spell out the benefit
    the Ward 2 ratepayers would receive.  Subject to certain limitations, the
    income earned on the Hope Township Fund was to be used to defray lower tier
    municipal taxes or levies that would otherwise be payable by such ratepayers.

[88]

Accordingly, Schedule 8 did not create a non-charitable purpose trust because,
    if it created a trust, people were the direct beneficiaries.

ii.  contrary to
    the parties intentions

[89]

Furthermore, the application judges finding is contrary to the parties
    intention that the principal sum of $10 million (i.e. the Payment) would be
    held intact so that it could be used indefinitely to benefit the Ward 2 ratepayers
    where the Waste was stored.  Both paras. 3 and 4 of Schedule 8 clearly express
    the parties intention that the Payment was to be held intact indefinitely.
    Paragraph 3 provides that the opening capital (i.e. the $10 million initial
    Payment) shall not be encroached upon.  And, para. 4 provides that payments
    out of the Hope Township Fund shall not reduce the value of the fund below
    $10 million.

[90]

By construing Schedule 8 as a power of appointment under s. 16 of the
Perpetuities
    Act
, the application judge expressly empowered the Municipality of Port
    Hope to encroach on capital, in direct conflict with that intention.
[2]
Indeed, given the application judges view that a further determination would
    be required at the end of the 21-year period to decide who was entitled to any
    unexpended money in the Hope Township Fund, his ruling created a very real
    incentive for the Municipality of Port Hope to spend the whole of the Hope
    Township Fund prior to the expiration of that period, contrary to the parties intention
    that the Payment was to be held indefinitely.

[91]

For these reasons, neither the Payment nor the Hope Township Fund is the
    subject matter of a non-charitable purpose trust.

b.

No
    express trust for persons

[92]

The application judge found that, in making the Payment, Canada was settling
    that money on trust.  As I have explained, that is a legal error because, in
    making the Payment to Hope Township, Canada was fulfilling its contractual
    obligation under article 7.1(b) of the Agreement.  Creation of an express trust
    requires an intention to create a trust.  Canadas intention in making the
    Payment was to discharge its contractual obligation. Therefore, Canadas
    intention was not to settle the Payment on trust.

[93]

As Canada did not settle the Payment on trust, if Schedule 8 had the
    effect of creating a trust, Hope Township  the recipient of the Payment and,
    therefore, its owner  had to have been the settlor.

[94]

I turn then to consider whether, through Schedule 8, Hope Township
    created an express trust for persons.

[95]

To find that an express trust for persons has been created, there must
    be certainty of intention, certainty of subject matter, and certainty of objects.
    Before considering each of the certainties, I pause to observe that the three
    certainties are reflexive.  This means that although we consider the certainties
    one at a time, consideration of the certainty of subject matter and certainty
    of objects may inform (reflect back on) the matter of certainty of intention.

i.  no certainty of
    intention

[96]

It will be recalled that para. 1 of Schedule 8 originally read as
    follows:

1.

Canada
    will pay to the trustee
(Trustee) appointed by Hope Township Council, a
    grant in the amount of
Ten Million ($10,000,000.00) Dollars
(hereinafter
    referred to as the Opening Capital or the Fund)
which, subject to the
    following provisions, shall be held in trust for the exclusive benefit of the
    ratepayers from time to time of
the area that comprises the geographic area
    of
Hope Township
as of the date of October 6, 2000.  [Emphasis added.]

[97]

Do these words evince an intention, on the part of Hope Township, to
    create an express trust of the Payment for the benefit of its ratepayers from
    time to time (the Ratepayers)?  Despite the use of the word trust and
    Canadas obligation to make the Payment to the trustee, I conclude that they
    do not.

[98]

Certainty of intention can be found to exist where a person who owns
    property transfers it to another (the trustee) with the intention that the
    trustee hold and manage the property for the exclusive benefit of others.

[99]

Under article 7.2 of the Agreement, the parties committed to dealing
    with the Payment in accordance with Schedule 8.  Paragraph 1 of Schedule 8
    stipulates that Canada will pay to the trustee appointed by Hope Township the
    amount of $10 million.  This is tantamount to Hope Township directing Canada to
    make the Payment to a trustee, rather than to it, and amounts to Hope Township
    transferring property to Royal Trust.  (As Royal Trust had not agreed to act as
    a trustee, when it received the Payment it did not do so in the capacity of a
    trustee, a point I will return to below.)

[100]

Thus, the question becomes, does para. 1 of Schedule 8 show that Hope
    Township intended to divest itself of beneficial ownership of the Payment in
    favour of the Ratepayers?

[101]

In my view, it does not. I say this for two reasons.

[102]

First, at the time that the Agreement (including Schedule 8) was
    executed, the parties did not know whether the requisite regulatory approvals
    to build the Waste facilities would be granted.  Hope Township knew that if the
    requisite approval to construct its Waste facility was not granted, it would be
    obliged to repay the Payment to Canada.  That obligation is set out in para. 8
    of Schedule 8.

[103]

Accordingly, at the time that the Agreement was executed, Hope Township
    could not have intended to have given away beneficial entitlement to the
    Payment to the Ratepayers because it knew it might later use the Payment to
    fulfill its obligation under para. 8 of Schedule 8.  If a trust of the Payment
    were created, Hope Township could not have lawfully used it to fulfill its
    obligations under paragraph 8 of Schedule 8 because that would have been a
    benefit to Hope Township and not a direct benefit to the Ratepayers.  In short,
    such a use of the Payment would have been a breach of trust.  Therefore, Hope
    Township did not intend to create a trust over the Payment.

[104]

The Applicant argues that the use of the terms trust and trustee in
    Schedule 8 are probative of the intention to create a trust.  I agree  but
    they are not determinative. The intention to create a trust cannot be found
    given that elsewhere in Schedule 8 it is clear that Hope Township would use the
    Payment to fulfill its obligation to Canada if no CNSC licence were granted.

[105]

The fact that para. 1 of Schedule 8 directed Canada to make the Payment
    to a trustee appointed by Hope Township is also not determinative of whether
    Hope Township intended to create an express trust in favour of its ratepayers.
    That direction is equally consistent with a desire on the part of Hope Township
    to have the Payment held and managed by a professional third party.

[106]

The second reason I have concluded that the certainty of intention
    requirement is not met flows from the inclusion of article 1.12 in the
    Agreement.  Article 1.12, it will be recalled, contains a very broad power of
    amendment.  Under its terms, the provisions of the Agreement can be amended,
    varied or waived.  There are no limitations on the exercise of the amendment power
    in article 1.12.  However, to be effective, an amendment must be made in
    writing and signed by each of the parties.

[107]

The respondent suggests that the amendment power may not apply to
    Schedule 8.  I disagree.

[108]

Article 1.12 expressly provides that the provisions of the Agreement
    can be amended, varied or waived.  The Agreements interpretation provision
    defines Agreement to include the schedules thereto.  Therefore, the amendment
    power governs all of the Agreement, including Schedule 8.  Accordingly, article
    1.12 empowers the parties to amend, vary or waive the terms of Schedule 8.

[109]

Under article 1.12 of the Agreement, an amendment requires the parties
    consent, in that each party must sign a proposed amendment for it to be
    effective.  There is no requirement for the Ratepayers consent.  The fact that
    the parties could vary the Agreement, including Schedule 8, without the consent
    of the Ratepayers, is a further indication that there was no intention to
    create an express trust for the Ratepayers: see
Donovan W.M. Waters, Q.C., Mark R.
    Gillen & Lionel D. Smith,
Waters Law of Trusts in Canada
, 4th ed.
    (Toronto: Carswell, 2012), at pp. 73-74.

[110]

In my view, the application judge made an extricable legal error in
    failing to consider a relevant factor  namely, the amendment provision in
    article 1.12  when determining whether the Agreement revealed the requisite
    certainty of intention.  Its inclusion, as I have explained, supports the
    conclusion that the certainty of intention requirement was not met.

ii.  no
    certainty of subject matter

[111]

Although I have determined that the certainty of intention requirement
    for an express trust for persons was not met, I will briefly address whether
    the certainty of subject matter and certainty of objects requirements were
    met.  I do so because of the reflexive nature of the certainties.

[112]

The certainty of subject matter requirement is met if the subject matter
    of the trust is ascertained or ascertainable.  The application judge found that
    there was no doubt that the subject matter of the purported trust was the
    Payment plus investment income earned on it.

[113]

I respectfully disagree.

[114]

Paragraph 1 of Schedule 8 says that the Payment shall be held in trust
    for the exclusive benefit of the [R]atepayers from time to time.  However,
    that language runs afoul of the parties intentions in respect of the Payment.
    As I have explained, Hope Township could not have intended to settle the
    Payment on trust because it knew that it might have to use the Payment to discharge
    its obligation to Canada under para. 8 of Schedule 8.  If the Payment was
    settled on trust, Hope Township  as the settlor  could not have lawfully used
    money from Hope Township Fund in that way because such a payment would not have
    been to the benefit of the Ratepayers, the objects of the purported trust.

[115]

Nor could Hope Township have conditionally settled the Payment on trust,
    with the condition being that it could remove the Payment from the trust if the
    requisite regulatory approvals were not granted.  A conditional settling of
    property on trust fails to meet the certainty of intention requirement.

[116]

Could the subject matter of the purported trust be just the investment
    income that was earned on the Payment and not the Payment?  Perhaps  but that
    runs afoul of the wording of para. 1 of Schedule 8, which says that it is the $10
    million Payment that shall be held in trust.

[117]

Thus, there is uncertainty as to the subject matter of the purported trust.
    Was it to be the Payment, investment income earned on the Payment, or both the
    Payment and investment income earned on it?  We cannot know the answer to that
    question with any certainty.

[118]

Bearing in mind that the certainties are reflexive, the lack of
    certainty as to the subject matter of the purported trust reinforces the
    conclusion that the certainty of intention requirement was not met.

iii.  no
    certainty of objects

[119]

The application judge found that the Ratepayers were the objects of
    the trust and ascertainable.  However, he also found that the purported trust
    was not for individuals but, rather, was a trust for a non-charitable purpose.
    These conflicting findings alone show the absence of the requisite degree of
    certainty of objects.

[120]

In any event, however, there is an insurmountable hurdle in respect of
    the certainty of objects requirement.  As the Payment was to be held for an
    indefinite period of time, the class of objects  which was the Ratepayers in
    Ward 2  was open and subject to constant change. Accordingly, the class consisted
    of an indeterminate number of people, with unidentifiable future members.  Clearly,
    the class did not meet the certainty of objects requirement.  Indeed, the
    application judge appeared to recognize this when he found that the purported
    trust was a non-charitable purpose trust.  However, as I have already explained,
    the legal requirements for a non-charitable purpose trust were not met so the
    problem with the lack of certainty of objects remains.

[121]

Again, because of the reflexive nature of the certainties, the lack of
    certainty of objects reflects back on the certainty of intention requirement and
    reinforces the conclusion that there was no intention to create a trust.

c.
No charitable
    trust

[122]

The application judge found that the direct provision of tax abatements
    for the Ratepayers, as the result of what was essentially a business deal
    between the Municipalities and Canada, was not a purpose that the law regards
    as charitable.

[123]

I agree.  For that reason, I would dismiss the cross-appeal.

d.

Conclusion

[124]

Having determined that the Agreement, including Schedule 8, is a
    contract and that neither created a trust, the parties obligations under both documents
    are contractual in nature.

6. The
    Municipality of Port Hope did not breach its obligations in   respect of the
    Hope Township Fund

[125]

As we have seen, the application judge found that the Hope Township Fund
    was subject to a trust.  The application judge thereafter reasoned as follows.
    When the Municipality of Port Hope took possession of the Hope Township Fund
    from Royal Trust, with full knowledge of the terms on which that fund had been
    settled, it became a
de facto
trustee of the Hope Township Fund.  As a
de
    facto

trustee of that fund, the Municipality of Port Hope was bound
    by the terms of the trust and, therefore, it was obliged to use the Hope
    Township Fund for the exclusive benefit of the Ratepayers.  The Municipality of
    Port Hope used some of the income from that fund for purposes other than to
    confer a direct benefit on the Ratepayers.  As a result, the application judge found
    that the Municipality of Port Hope had breached its obligations in respect of
    the Hope Township Fund.

[126]

Respectfully, I disagree.

[127]

As I have explained, the Hope Township Fund was not impressed with a
    trust.  Therefore, when the Municipality of Port Hope took possession of it, it
    did not become a
de facto
trustee.  And, it was under no trust
    obligations when it used income earned on the Hope Township Fund.

[128]

Furthermore, to the extent that it can be argued that Schedule 8 imposed
    an obligation on the Municipality of Port Hope to create a trust of the Hope
    Township Fund, the Amendment is a full answer.

[129]

While Schedule 8 of the Agreement originally provided that Canada was to
    make the Payment to a trustee, in fact, that never occurred.  Despite the best
    efforts of Hope Township and, later, the Municipality of Port Hope, they were
    unable to finalize a trust agreement with Royal Trust (or other possible trustee).
    When Royal Trust received the Payment, it did
not
do so in the capacity
    of a trustee because it had not accepted that position.

[130]

The Amendment was required because neither Hope Township nor the
    Municipality of Port Hope was able to conclude a trust agreement with a trustee
    for the investment and management of the Hope Township Fund.

[131]

In that situation, based on professional advice, the Council for the
    Municipality of Port Hope determined that no such trust was necessary.  It duly
    passed the Amendment.

[132]

On the wording of Schedule 8, as amended, the Municipality of Port Hope
    was expressly authorized to use an investment counsellor to manage the Hope
    Township Fund in accordance with its investment policy.  As a consequence, if
    there had been an obligation to create a trust, that obligation was
    extinguished.

[133]

Nor did the Municipality breach its obligations in respect of the Hope
    Township Fund.  For the reasons already given, there were no trust obligations
    attached to the Municipality of Port Hopes use of the Hope Township Fund.  The
    parties intention, as we have seen, was that the Municipality of Port Hope (as
    the successor to Hope Township) would hold the Payment indefinitely and use the
    income thereon to benefit the Ratepayers.  The Municipality has done that.  It
    has treated the Payment as a legacy asset and not encroached upon it.  While the
    income earned on the Payment has not been used exclusively to defray the lower tier
    municipal taxes of the Ratepayers, the other public uses to which such funds
    have been put serve to indirectly benefit those Ratepayers.  In the absence of
    a trust, there is no breach in so using the income.

CONCLUSION

[134]

The Municipality of Port Hope raised a number of other issues on
    appeal.  However, these other issues fall away as a result of my determination
    that the Agreement did not impose a trust over the Hope Township Fund.  Accordingly,
    I need not address such questions as whether the application judge erred in:
    finding that the Applicant had standing to enforce a trust valid only by virtue
    of s. 16 of the
Perpetuities Act
; failing to consider the unintended
    tax consequences, for both the Municipality of Port Hope and the residents of
    Ward 2 who had received the benefit of a tax abatement, of a determination that
    the Hope Township Fund was subject to a trust; and, not dismissing the
    Application on the basis of the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B or the doctrine of laches.

[135]

Having said that, I wish to expressly note that nothing in these reasons
    is to be taken as affirming the application judges reasons and findings on
    those issues.

[136]

Finally, in light of my determination of the appeal on its merits, it is
    unnecessary to determine whether Mr. Angus is a proper third-party beneficiary
    who could enforce the Agreement.

DISPOSITION

[137]

Accordingly, I would allow the appeal, set aside
    the Judgment, and dismiss both the Application and the cross-appeal.

[138]

If the parties are unable to agree on costs of
    the appeal and cross-appeal, I would permit them to file written submissions on
    those matters, to a maximum of five pages, within fourteen days of the date of
    the release of these reasons.

Released: E.E.G. July 04, 2017

Eileen E.
    Gillese J.A.

I agree.
    G. R. Strathy C.J.O.

I agree.
    G. Pardu J.A.

APPENDIX A

INTRODUCTION

Since the 1930s, radium and uranium have been processed in the
    Town of Port Hope and a byproduct of this activity has been Low-level
    Radioactive Waste.

Over these many years, some of the Low-Level Radioactive Waste
    has been deposited in the Welcome Waste Management Facility in the Township of
    Hope, and in the Port Granby Waste Management Facility in Clarington, two waste
    management facilities licensed by the Canadian Nuclear Safety Commission as
    successor to the Atomic Energy Control Board.

In Addition, Low-Level Radioactive Waste has been known to have
    been deposited in various locations in the Town of Port Hope.

There is a need to address the cleanup and the better long-term
    safe management of this Low-Level Radioactive Waste.

Extensive efforts to relocate the Low-Level Radioactive Waste
    to a long-term management Facility outside of the Municipalities have not
    succeeded.

Clarington, the Town of Port Hope and the Township of Hope have
    now each proposed, subject to certain conditions, their own alternative
    solution to the cleanup and long-term management of the Low-Level Radioactive
    Waste located within their respective Municipalities and have submitted to
    Canada conceptual designs for new waste management facilities for each of the
    Municipalities.

The submissions were intended to present a potential solution
    to an ongoing problem and in doing so to strive to minimize the impacts on the
    communities and the residents, especially those in the vicinity of a proposed waste
    management Facility.

Canada accepts that the proposals can form the basis of a
    long-term solution, and, in consultation with Municipalities, and with the
    Municipalities assistance and support, is prepared to proceed with the work
    necessary to submit the matter to the environmental assessment and regulatory
    review processes.

Upon the completion of the environmental assessment and the
    regulatory reviews of the proposals; the concurrence of the relevant Party or
    the Parties to continue; and, the acquisition of the sites for the facilities,
    Canada will proceed with the cleanup and construction work provided for in this
    Agreement.

Canada is prepared to mitigate the effects on the
    Municipalities and the property owners within the Municipalities of the work to
    be undertaken within each community.

In order to be able to proceed with the construction of the new
    facilities, Canada will have to conclude agreements to acquire the lands for
    the proposed sites.

Canada will also continue to support, either through the
    Low-Level Radioactive Waste Management Office or a successor organisation, an
    Environmental Monitoring Program, a Construction Monitoring Program and a
    Property Compliance Program.

The Parties have negotiated
Principles of Understanding
which the Parties initialled on October 6, 2000 and are now desirous of
    entering into this Agreement.

THEREFORE, in consideration of the covenants hereinafter
    contained and other good and valuable consideration, the Parties agree as
    follows

APPENDIX B

SCHEDULE 7

TOWN OF PORT HOPE FUND

1. Subject to the following provisions, Port Hope
    agrees to hold Canadas payment of Ten Million ($10,000,000.00) Dollars in
    trust for the exclusive benefit of the ratepayers of the area that comprises
    the geographic area of Port Hope as of the date of October 6, 2000.

2. The principal of the Fund may be invested by Port Hope
    in its discretion in any investment permitted by law. Any income earned from
    investing the Fund may be expended by Port Hope from time to time in its
    discretion for any purpose permitted by law.

3. Port Hope shall pay Canada an amount equal to the
    opening capital of the Fund, Ten Million ($10,000,000.00) Dollars, on the last
    to occur of both:

(1) the day on which a licence
    is refused by the Canadian Nuclear Safety Commission to construct the New Port
    Hope Waste Management Facility as contemplated by this Agreement; and,

(2) the first day after the
    Historic Low-Level Radioactive Waste and the Cameco Decommissioning Waste which
    are identified in Schedule 1 as wastes to be accommodated in the New Port Hope
    Waste Management Facility have been cleaned up in accordance with the intent of
    this Agreement and removed from the Town of Port Hope and Hope.

4. If a licence to construct the New Port Hope Waste
    Management Facility is granted by the Canadian Nuclear Safety Commission, on
    the date of the issuance of the licence Port Hopes obligations in favour of
    Canada regarding the investment and use of the fund shall terminate.

APPENDIX C

SCHEDULE 8

TOWNSHIP OF HOPE FUND

1. Canada will pay to the trustee (Trustee) appointed
    by Hope Township Council, a grant in the amount of Ten Million ($10,000,000.00)
    Dollars (hereinafter referred to as the Opening Capital or the Fund) which,
    subject to the following provisions, shall be held in trust for the exclusive
    benefit of the ratepayers from time to time of the area that comprises the
    geographic area of Hope Township as of the date of October 6, 2000.

2. The principal of the Fund shall be invested by the
    Trustee in any investment permitted by law that the Trustee in its discretion
    considers likely will produce an increase in the net value of the Fund
    comprising a blend of capital appreciation and income of at least ten (10%) per
    cent in each calendar year (Growth).

3. After first deducting and appropriating to the
    Trustees use from the income earned from the investment of the Fund the amount
    required to indemnify the Trustee against the Trustees reasonable costs
    incurred in administering and investing the Fund, the Trustee shall apply an
    amount equal to up eight (8%) per cent of the Fund in the previous calendar
    year to defray the lower tier municipal taxes or levies which otherwise would
    be payable by the ratepayers of aforesaid geographic area of Hope Township
    provided that the opening capital of the Fund shall not be encroached upon by
    the Trustee.

4. If any portion of the growth in the Fund in any
    calendar year is not required to be expended to discharge the aforesaid lower
    tier municipal taxes or levies, the portion shall be invested as aforesaid, and
    the other provisions of this Schedule shall apply with all necessary changes
    being considered to have been made in order to give effect to the intent of
    sections 2 and 3 above. Provided that the Trustee shall not pay out any amount
    to defray lower tier municipal taxes or levies that will reduce the net value
    of the Fund below the amount of Ten Million ($10,000,000.00) Dollars.

5. The Trustee appointed by Hope Township Council to
    administer the Fund in accordance with the above sections, shall have at least
    fifty (50) times the amount of the Fund under administration during the period
    in which he will act as Trustee of the Fund.

6. Hope Township Council from time to time may
    terminate the appointment of the Trustee on terms considered to be appropriate
    by the Council in its discretion and thereupon shall appoint another Trustee
    who is qualified as aforesaid to act as Trustee of the Fund during the period
    of the appointment. The Trustee so appointed from time to time shall be deemed
    to be the Trustee for the purposes of this Agreement. Except in appointing and
    terminating the Trustee of the Fund from time to time, Hope Township Council
    shall have no authority over the investment decisions made by the Trustee.

7. For greater clarity, lower tier municipal taxes or
    levies are the annual taxes or levies imposed by Hope Township or by its
    successor on ratepayers who own assessed property within the geographic area of
    Hope Township as it exists as of the date that the Township of Hope signed this
    Agreement. The term lower tier municipal taxes or levies does not include
    general county or upper tier taxes or levies, special county or upper tier
    taxes or levies, and education taxes or levies.

8. The Trustee shall pay Canada an amount equal to the
    opening capital of the Fund being Ten Million ($10,000,000.00) Dollars on the
    last to occur of both:

(1) the day on which a licence
    is refused by the Canadian Nuclear Safety Commission to construct the New Hope
    Township Waste Management Facility as contemplated by this Agreement; and,

(2) the first day after the
    Cameco Waste  Welcome has been removed from the Township of Hope and the site
    of the Welcome Waste Management Facility has been cleaned up in accordance with
    the intent of this Agreement including, without limitation, Schedule 2.

9. If a licence to construct the New Hope Township
    Waste Management Facility is granted by the Canadian Nuclear Safety Commission,
    on the date of the issuance of the licence the Trustees obligation in favour
    of Canada regarding the use and investment of the Fund shall terminate.

APPENDIX D

SCHEDULE 9

CLARINGTON FUND

1. Subject to the following provisions, Clarington
    agrees to hold Canadas payment of Ten Million ($10,000,000.00) Dollars,
    hereinafter referred to as the Fund, in trust for the exclusive benefit of
    the ratepayers of the area that comprises the geographic area of Clarington as
    of the date of October 6, 2000, provided that if after the date of this
    Agreement, the geographic area of Clarington is reduced, the fund shall be held
    in trust for the exclusive benefit of the ratepayers of the remaining
    geographic area of Clarington.

2. The principal of the Fund may be invested by
    Clarington in its discretion in any investment permitted by law. Any income
    earned from investing the Fund may be expended by Clarington from time to time
    in its discretion for any purpose permitted by law.

3. Clarington shall pay Canada an amount equal to the
    opening capital of the Fund, Ten Million ($10,000,000.00) Dollars, on the last
    to occur of both:

(1) the day on which a licence is refused by
    the Canadian Nuclear Safety Commission to construct the New Clarington Waste
    Management Facility as contemplated by this Agreement; and,

(2) the first day after the Cameco Waste
    Port Granby has been removed from Clarington and the site of the Port Granby
    Waste Management Facility has been cleaned up in accordance with the intent of
    this Agreement including, without limitation, Schedule 2.

4. If a licence to construct the New Port Granby Waste
    Management Facility is granted by the Canadian Nuclear Safety Commission, on
    the date of the issuance of the licence Claringtons obligations in favour of
    Canada regarding the investment and use of the fund shall terminate.

[1]
A
t the outset of the hearing, Mr. Ross acknowledged that his
    claim was statute-barred, so Mr. Angus alone continued with the Application.
    Sadly, Mr. Ross has since died.

[2]

I offer no comment on the possible applicability or effect of
    the latter part of s. 16(1), as that matter was not squarely before this court.


COURT OF APPEAL FOR ONTARIO

CITATION: Ares Law Professional Corporation v. Rock, 2017
    ONCA 569

DATE: 20170704

DOCKET: C63702

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

In The Matter of the
Solicitors
    Act

And In The Matter of

Ares
    Law Professional Corporation and

Bernard
    P. Keating

Solicitors (Respondents)

and

Ronald Rock

Client (Appellant)

Louise James, for the appellant

Joanna L. Nairn, for the respondents

Heard: June 30, 2017

On appeal from the order of Justice G. M. Mulligan of the
    Superior Court of Justice, dated January 31, 2017.

REASONS FOR DECISION

[1]

This is a dispute over an assessment of a lawyers fees and
    disbursements. Below, the assessment officer assessed the lawyers account at
    $125,602.83. The client brought a motion to oppose confirmation, which was
    dismissed, and the motion judge granted judgment to the lawyer. The client
    appeals. We dismiss the appeal for the reasons that follow.

Background

[2]

The respondents, Ares Law and Bernard Keating (together, Ares Law) were
    retained pursuant to a contingency fee agreement with Mr. Rock, the client in
    an action against Food Basics. The agreement provided that in the event the
    retainer was terminated the fee would be billed on an hourly-rate basis. It
    also provided that the client would pay all disbursements reasonably incurred
    in furtherance of the clients claims.

[3]

After five years the solicitor-client relationship broke down and Ares
    Law were removed as solicitors of record. The client retained new counsel, Mr.
    Igbinosun.

[4]

Importantly, after the retainer was terminated, Ares Law, Mr. Igbinosun,
    and the client entered into an agreement (the Undertaking). It provided that
    Mr. Igbinosun and the client were undertaking to protect the account of Ares
    Law in the amount of not more than $50,000. And, depending on the resolution of
    the case, this amount could be subject to possible negotiated reduction or an
    assessment.

[5]

Mr. Igbinosun subsequently passed away and the client chose to
    self-represent. The client ultimately entered into a settlement agreement with
    Food Basics for $30,000. The agreement also contained the following: The
    defendants agree to pay costs directly to Bernard P. Keating (Ares Law
    Professional Corp.). It did not contain any reference to the Undertaking, and
    Ares Law had no say in its negotiation or drafting.

[6]

Regarding Ares Laws costs, Food Basics lawyers, acting on behalf of the
    client, advised:

My clients insurer, Zurich, is willing to cover the cost of
    some of your listed disbursements at this time, as part of its settlement with
    the plaintiffs. I also understand that you have brought an action against the
    plaintiffs for your outstanding account, and we would like to offer to pay half
    of that amount as a way to settle that issue.

[7]

Then they later advised:

Further to my clients offer to you on costs, my client is now
    willing to pay half of your listed disbursements, plus $5,000 for your legal
    fees, or alternatively, we can have your costs assessed.
My
    client would pay whatever amount that is determined by an assessment officer
.
    [Emphasis added].

[8]

Ares Law accepted that offer and the matter proceeded to assessment.

The Assessment

[9]

The original amount of Ares Laws account was $139,302.52. The
    assessment officer made some small adjustments and ultimately assessed the
    outstanding amount at $125,602.83.

[10]

In reaching his decision, the officer performed a detailed analysis of
    the nine factors relevant to cost assessments, as enumerated by this court in
Cohen
    v. Kealey & Blaney
(1985), 10 O.A.C. 344, [1985] O.J.
    No. 160 (C.A.).

[11]

Notably, the assessment officer rejected the argument that the Undertaking
    applied to limit Ares Laws total recovery to $50,000. He held it would have
    applied had Mr. Igbinosun represented the client at the time of the settlement,
    but because the client was then acting for himself the agreement no longer
    governed. He further concluded that the undertaking was not incorporated into
    the settlement with Food Basics and the client should reasonably expect to pay
    fees pursuant to the retainer agreement.

Confirmation of the Assessment

[12]

The client brought a motion to oppose confirmation of the assessment,
    and Ares Law brought a cross-motion for judgment in the amount of the
    assessment. The motion was dismissed and the cross-motion was allowed.

[13]

The appellant has now filed a second appeal to this court, advancing
    essentially the same arguments it did on the confirmation motion.

Standard of Review

[14]

The appeal to this court from the motion judges decision is one of the
    rare instances when a litigant has a second appeal as of right. That is, since
    there is only one judgment, that given by the confirming judge, the appeal to
    this court is as of right:
Capsule Investments Ltd. et al. v. Heck
(1993),
    12 O.R. (3d) 225 (C.A.), at para. 6. Because of the need for finality within a
    reasonable time, there is an accentuated need to identify palpable and
    overriding error in factual matters before interfering at this second level of
    review:
Capsule Investments Ltd.
, at para. 7.

Issues and Analysis

[15]

The appellant raises essentially four grounds of appeal. We would not
    give effect to any of them.

[16]

First, the appellant asserts that the assessment officer failed to
    appreciate the peculiar position of Food Basics and Mr. Rock  that Food
    Basics, having agreed to assume liability for paying Mr. Rocks account,
    stepped into Mr. Rocks role at the assessment hearing. As a result, the
    assessment officer at times properly interpreted the client to mean Mr. Rock
    and at other times improperly interpreted it to mean Food Basics.

[17]

We disagree. Reading the assessment officers decision as a whole, it is
    evident he appreciated Mr. Rock was the client. Where he referred to Food
    Basics, he did so in a manner consistent with a proper understanding of its
    role.

[18]

Second, the appellant argues the assessment officer misapprehended the
    evidence regarding the true value of the claim in determining the
    reasonableness of the lawyers fees.

[19]

We do not accept this submission. Although the assessment officer held
    that the value of the claim was likely higher than the $30,000 for which it was
    ultimately settled, the history of this litigation provided ample evidence to
    support that view. The appellant is unable to point to any palpable error in
    the assessment officers view of the value of the claim, and thus there is no
    basis to interfere with it.

[20]

Third, relying on s. 3 of the
Solicitors Act
, R.S.O. 1990, c.
    S. 15, the appellant argues the assessment officer did not have jurisdiction
    because there were special circumstances in this assessment. However, as the
    motion judge correctly found at para. 20, the issues the appellant has
    identified do not constitute special circumstances that would impact the
    assessment officers jurisdiction.

[21]

We agree with Ares Law; special circumstances that operate to oust
    jurisdiction are exceptional situations or conditions  particularly those that
    cause quantum and accounting of fees to become entwined with larger legal and
    factual questions  such that assessing costs necessarily requires answering
    questions outside the assessors jurisdiction. We would adopt the description
    of
special circumstances expressed in
Middlebrook
    & Company v. McCormack
, 2011 ONSC 376,

[2011] O.J. No. 177, at para. 9: they are
    typically questions that require a decision from the court by action or
    application. There were no such questions at play here.

[22]

Further, nothing about the Undertaking dispute changed the essence of
    the issue on the assessment, namely, the reasonableness and quantum of fees
    recoverable. That inquiry is the same when making the determination generally as
    it is when the quantum has been expressed as a term of a written retainer and
    the allegation is that this term was subsequently changed: see
Aird &
    Berlis v. Federchuk
(1997),
    34 O.R. (3d) 406 (Gen. Div.), at para. 18
. In either case, the inquiry
    is squarely within the assessment officers jurisdiction.

[23]

Fourth, the appellant contends the assessment officer and motion judge
    erroneously treated the Undertaking as irrelevant to the clients expectations
    regarding costs because Food Basics was not a party to the Undertaking. We see
    no merit in this submission. As the motion judge correctly noted at para. 13:

both the solicitor and counsel for the client had a full
    appreciation of the facts and circumstances surrounding the prior undertaking
    that fees would not exceed $50,000, as well as the solicitors actual account
    of $139,000. If the purpose of an assessment hearing was to determine fees and
    disbursements up to a maximum of $50,000, that should have been spelled out in
    clear and unambiguous language in the offer. It was not.

[24]

Thus, if the appellant believed the Undertaking applied to limit the
    assessed account, then he  not Ares Law  had the obligation to raise that
    issue in advance of the hearing, but failed to do so. Moreover, even if the
    Undertaking applied, by its terms it was subject to negotiation between the
    parties and, if necessary, further assessment proceedings. Further
    negotiations and an assessment proceeding did occur. Those events, contemplated
    by the Undertaking, clearly overtook the putative $50,000 cap. And, the parties
    agreed to be bound by the result of the assessment.

Disposition and Costs

[25]

For those reasons, we would dismiss the appeal. The respondents are
    entitled to costs of the appeal fixed in the amount of $10,000, inclusive of all
    applicable disbursements and taxes.

H.S.
    LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.