COURT OF APPEAL FOR ONTARIO

CITATION: Vigneault v. Massey, 2014 ONCA 244

DATE: 20140401

DOCKET: M43236 & C57244

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Angela Vigneault

Applicant (Respondent on Appeal)

and

Stephen Massey

Respondent (Appellant on Appeal)

Gordon S. Campbell, for the appellant

Yanik S. Guilbault, for the respondent

Heard: February 28, 2014

On appeal from the orders of Justice
Maria
    T. Linhares de Sousa
of the Superior Court of Justice, dated March 11,
    2013 and May 15, 2013.

ENDORSEMENT

[1]

The father, Stephen Massey, appeals a March 11, 2013 order (the
    Contempt Order) finding him in contempt of court and a May 15, 2013 order
    imposing sanctions as a result of that finding. The respondent mother moves to
    quash his appeal of the Contempt Order on the basis that he served his notice
    of appeal out of time.

The Appeals

[2]

The motion judge made the following findings of contempt in the Contempt
    Order :

1. By using his mother as a caregiver for his children after
    school when his work prevents him from caring for them, and not Ms. Laframboise
    as the childrens regular caregiver, the Respondent, Stephen Massey, is in
    breach of the court order dated June 13, 2012 and in contempt of this court.

2. To be clear, the Respondent, Stephen Massey, is not found in
    contempt of the court order dated June 13, 2012, for the non-payment of the
    extraordinary child care expenses. He is being found in contempt because his
    non-payment of those expenses is just one aspect of the evidence leading to the
    finding that his intention is to frustrate the due execution of paragraph 26 of
    the court order dated June 13, 2012. The Respondent, Stephen Massey, has
    behaved in a deliberate and wilful fashion and has not provided any evidence to
    establish on a balance of probabilities as to having any lawful excuse to
    wilfully disobey the court order dated June 13, 2012 other that he does not
    like the caregiver.

[3]

The mother alleged that the father was refusing to comply with paragraph
    26 of a divorce order dated June 13, 2012:

26. THIS COURT ORDERS THAT the children shall continue to
    attend their regular daycare at 13 Wiltshire Circle, Ottawa, Ontario with
    Astrid Laframboise as long as she agrees to continue in that function or as the
    parties can otherwise agree. Pick up and drop off of the children by either
    parent shall take place at the daycare providers home or at school at the end
    of the school day, and in case of Friday transfer of the children, at their
    then residence.

[4]

The divorce order was made following an earlier trial before the motion
    judge at which the issue of whether Astrid Laframboise should continue to
    provide daycare was vigorously contested.

[5]

The Notice of Motion initiating contempt proceedings specified that the
    mother sought a finding that the father was in contempt because:

1. [You] [h]ave failed to pay your equal share of the special
    expenses incurred for the benefit of you children since the date of Madam
    Justice de Sousa judgement issued June 13, 2012.

2. [You] [h]ave failed to sign the daycare providers contract
    for her services for the period of August 31, 2012 through to the end of August
    2013; and,

3. [You] [h]ave failed to pay the daycare provider for her
    services rendered in September and October 2012.

[6]

The motion judge and the parties all recognized that contempt was not
    available to sanction failure to comply with a payment order:
Family Law
    Rules
, O. Reg. 114/99, r. 31(1);
Forrest v. Lacroix Estate
(2000),
    48 O.R. (3d) 619 (C.A.), at paras. 68-69.

[7]

The daycare providers contract in issue is a two page document
    initially signed August 20, 2007 by the mother and Astrid Laframboise. It
    provides for child care from 7:15 a.m. to 5:00 or 5:30 p.m. from Monday to
    Friday. There are handwritten notations renewing the arrangement for each of the
    school years from 2009 to 2012, which appear to have been initialed by the
    mother and the child care provider.

[8]

It does not appear that either the mother or father signed the contract
    for the period of August 31, 2012 to the end of August 2013, the subject of the
    contempt motion.

[9]

Neither parent used the daycare provider when he or she was personally
    available to look after the children. The dispute arose when the father
    arranged his work schedule so that he could pick up the children from school
    rather than Ms. Laframboise, and refused to pay one half of the daycare
    expenses.

[10]

The
    contempt finding was limited to the use by the father of his mother to care for
    the children instead of Ms. Laframboise when he was personally not available. The
    motion judge relied upon the non-payment of the daycare expenses as evidence
    that the fathers intention was to frustrate paragraph 26 of the divorce order.

[11]

Civil
    contempt of court is a quasi-criminal proceeding. The following elements must
    be proven beyond a reasonable doubt:

1)

The order that was breached must state clearly and unequivocally what
    should and should not be done.

2)

The party who disobeys the order must do so deliberately and wilfully.

3)

The breach of the order must be proven beyond a reasonable doubt.

See
Prescott-Russell
    Services for Children and Adults v. G. (N.)
(2006), 82 O.R. (3d) 686
    (C.A.), at paras. 26-27.

[12]

Given
    the quasi-criminal nature of the contempt proceedings and the potential risk of
    imprisonment, the motion judge erred by making findings of contempt extending
    beyond the specific non-monetary breach alleged, the fathers failure to sign
    the daycare contract. This is sufficient to dispose of the appeal and the other
    grounds alleged need not be addressed.

[13]

We
    observe, however, that the divorce order did not clearly and unequivocally
    state that unpaid family members could not pick up the children after school.
    Nor is it by any means clear that the father would have been found in contempt
    solely upon his failure to sign the daycare contract. The father had never in
    the past been required to sign the contract with the daycare provider, and the
    divorce order did not require the father to sign the daycare contract.

[14]

In
    the circumstances, the better course would have been for the mother to move for
    directions, rather than moving immediately for a finding of contempt.

Motion to quash

[15]

In
    response to the mothers motion to quash, the father asks this court to extend
    the time to serve his notice of appeal of the Contempt Order. The father
    expressed in writing his intention to appeal the finding of contempt within
    days of the finding, but received conflicting legal advice as to whether the notice
    of appeal had to be served within 30 days of that finding, or within 30 days of
    the sentence, according to rule 61.04(1) of the
Rules of Civil Procedure
.
    He served the notice of appeal on June 13, 2013 - within 30 days of the May 15,
    2013 order imposing sanctions and costs. As we have determined above, there is
    merit to the appellants appeal of the Contempt Order. There is no evidence of
    any prejudice to the respondent as a result of the delay in service. If
    necessary, the time for service of the notice of appeal of the Contempt Order is
    extended to June 13, 2013.

[16]

The
    motion to quash the appeal of the Contempt Order as out of time is therefore
    dismissed.

Disposition

[17]

The
    appeal is accordingly allowed. The time for service of the notice of appeal of
    the Contempt Order is extended to June 13, 2013, and the Contempt Order and the
    order imposing sanctions and costs dated May 15, 2013 are set aside. In the
    circumstances, there shall be no costs below, or on this appeal.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Villa Estate (Re), 2014 ONCA 287

DATE: 20140414

DOCKET: C57117

Weiler, Lauwers and Pardu JJ.A.

In the Estate of Emilia A. Villa, deceased

Between

Crescenzo A. Villa (a.k.a. Enzo Villa)

Respondent
    in appeal

and

Renzo Villa

Appellant

Salvatore Guerriero, for the appellant

Ian Latimer, for the respondent

Heard: April 11, 2014

On appeal from the judgment of Justice Brian P. OMarra
    of the Superior Court of Justice, dated April 30, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We see no errors in the reasons of OMarra J. nor is there any apprehension
    of bias or procedural unfairness.

[2]

Costs payable to the respondent are fixed in the amount of $5000
    inclusive of disbursement and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: 457351 Ontario Inc. v. Golfnorth Properties Inc.,
    2014 ONCA 382 DATE: 20140512

DOCKET: C57642

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

457351 Ontario Inc
.
    and Diana Vacca

Applicants (
Appellant
)

and

Golfnorth Properties Inc.

Respondent (Respondent)

Robyrt H. Regan, for the appellant

S.J. Adler, for the respondent

Heard: May 1, 2014

On appeal from the order of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated August 29, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that the clause in question in Schedule A of
    the Agreement of Purchase and Sale is not ambiguous.  However, we also agree
    with the application judges interpretation of the clause, given the words the parties
    used, especially the handwritten for greater certainty sentence, and the
    commercial reality on this transaction.

[2]

Accordingly, the appeal is dismissed with costs to the respondent of
    $10,000 all in.


COURT OF APPEAL FOR ONTARIO

CITATION: 1445369 Ontario Inc. v. Bandkohal, 2014 ONCA 346

DATE: 20140501

DOCKET: C57659

Goudge, Cronk and Strathy JJ.A.

BETWEEN

1445369 Ontario Inc. and Dr. Raza Khan

Plaintiffs (Respondents)

and

Hanan Bandkohal also known as Hana Bandkohal

Defendant (Appellant)

AND BETWEEN

Hanan Bandkohal

Plaintiff to the Counterclaim

and

Dr. Raza Khan Medicine Professional Corporation
    and Raza Muhammed Khan and 1445369 Ontario Inc.

Defendants to the Counterclaim

B. Yellin, for the appellant

P. Amey, for the respondents

Heard and released orally: April 14, 2014

On appeal from the judgment of Justice
Theresa
Maddalena of the Superior Court of Justice,
    dated August 26, 2013.

ENDORSEMENT

[1]

The appellant raises three issues.  The first relates to the assignment
    obligation.  In our view, the motion judges findings of fact recited at
    paragraph 36 of the respondents factum were amply justified on this record.
    They fully support the finding of waiver of the assignment obligation and the
    appellant has not shown any error in respect of it.

[2]

The second issue relates to the indemnity obligation.  The appellant was
    fully aware that her indemnity was being given with a clear understanding of
    its purpose and intent.  The motion judge was therefore justified in giving it
    the legal effect that she did.

[3]

Finally, the appellant challenges the costs order below.  In our view,
    there is no basis to interfere with the motion judges exercise of discretion
    in fixing quantum.  She adequately discounted for services relating to the
    counterclaim.  However, as the respondents concede, one of the bills, the
    account of December 31, 2010, appears to include services not related to this
    litigation at all.  We would therefore grant leave to appeal costs and order
    that the costs awarded below be reduced by $2,000 to reflect this.

[4]

With this exception, the appeal is dismissed.  Costs to the respondents
    fixed at $11,621.71, inclusive of disbursements and applicable taxes.

S.T. Goudge J.A.

E.A. Cronk J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2308116 Ontario Inc. v. 2270886 Ontario Inc., 2014
ONCA 430

DATE: 20140526

DOCKET: C57973

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

2308116 Ontario Inc.

Applicant (Respondent in Appeal)

and

2270886 Ontario Inc.
,
2308124 Ontario Inc.
, and 2308121 Ontario Inc.

Respondents (Appellants)

No one appearing for the respondents (appellants)

Michael Cooper, for the respondent (appellant) 2308121 Ontario
Inc.

Marek Z. Tufman, for the applicant (respondent)

Heard:  May 23, 2014

On appeal from the order of Justice Wein of the Superior
Court of Justice, dated November 13, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The solicitor for the appellant has been removed from the record.  Ms.
Lala, the individual behind the appellant corporation, is not here.  She is
aware of the date.

[2]

The appeal is dismissed as abandoned.  Costs are awarded to the
respondent 2308116 Ontario Inc. in the amount of $8,641 all in.  No costs to
the other respondents.


COURT OF APPEAL FOR ONTARIO

CITATION: 6038212 Canada Inc. v. 1230367 Ontario Ltd.,

2014 ONCA 415

DATE: 20140520

DOCKET: C57219

Gillese, van Rensburg and Hourigan JJ.A.

BETWEEN

6038212 Canada Inc. and John Yang

Plaintiffs (Appellants)

and

1230367 Ontario Ltd. and Surinder Sumra

Defendants (Respondents)

and

Zheng Anderson

Third Party
    (Respondent)

Steven J. Greenberg, for the appellants

Hank Witteveen, for the respondents 1230367 Ontario Ltd.
    and Surinder Sumra

Ian R. Stauffer and Lesly Joseph, for the respondent
    Zheng Anderson

Heard: May 8, 2014

On appeal from the judgment of Justice V. Jennifer
    MacKinnon of the Superior Court of Justice, dated May 24, 2013, with reasons
    reported at 2013 ONSC 3022.

ENDORSEMENT

[1]

The appellants 6038212 Canada Inc. (603) and John Yang raise a number
    of arguments on appeal with respect to the trial judges dismissal of their
    crossclaim against the respondents 1230367 Ontario Ltd. (123 or the vendor)
    and Surinder Sumra and their third party claim against the respondent Zheng
    Anderson.

[2]

The appeal arises out of the purchase of a commercial property and
    restaurant in Ottawa in 2005.  The property was contaminated by
    tetrachloroethylene originating in a dry cleaners that had been operated by a
    former tenant.  At the time of the purchase, the vendor 123 (which is the
    respondent Sumras company) was in possession of three environmental reports.  A
    Phase I non-intrusive environmental site assessment (ESA) report concluded
    that there were no apparent environmental concerns associated with the
    property. Two later reports that were based on a subsurface drilling program,
    had identified groundwater contamination exceeding applicable Ministry of the
    Environment criteria, and had provided a preliminary budget for remediation of
    $100,000 to $150,000.

[3]

The appellants assert that 603 purchased the property without knowledge
    of the environmental contamination, which only came to Mr. Yangs attention a
    few years later, after contamination was discovered to have migrated through
    the groundwater to an adjoining property.

[4]

The appellants claim that the vendor had a duty to disclose the
    contamination and was in breach of that duty.  They also claim that the third
    party, who acted as legal counsel for 603 in the purchase of the property, was
    negligent in failing to request environmental information from the vendor, and
    in failing to ensure that an environmental warranty was included in the
    agreement of purchase and sale.

[5]

The trial judge made a number of findings of fact that are fatal to this
    appeal.  All of the findings were well-supported by the evidence.  They
    resulted, to a considerable extent, from her conclusion that Mr. Yang was not a
    credible witness.

[6]

In particular, the trial judge found that Mr. Yang, despite his denials,
    knew about the contamination before he chose to waive an environmental
    condition in the agreement of purchase and sale, and before closing the
    transaction.  The trial judge concluded that Mr. Yang had received all three
    environmental reports.  She accepted Mr. Sumras testimony that he had provided
    the reports to Mr. Yang in a folder with other relevant information.  The
    appellants assert that the trial judge ought to have rejected this evidence because
    Mr. Sumra stated at one point in his testimony that he had not received the second
    report (although later he said that he had received it).  It is the function of
    a trial judge to consider and to weigh any inconsistency in the evidence of a
    party.  Mr. Sumra was cross-examined at some length on the question of when and
    how he had provided the environmental reports to Mr. Yang.  While the trial
    judge did not advert to an apparent inconsistency from his earlier testimony,
    we are not persuaded that there was any error in her assessment of credibility,
    and in her finding that Mr. Yang had received the reports.  This finding, and
    the conclusion that Mr. Yang completed the purchase transaction knowing about
    the environmental problems with the property, was supported by other evidence at
    trial.

[7]

Mr. Yang admitted having heard rumours about contamination at the
    property. He had a Ph.D. in chemistry and experience in real estate matters,
    including the purchase of a property he knew to be contaminated three years
    earlier.  He testified that he knew the lender financing the purchase, CIBC, would
    require an environmental report, and he acknowledged that the Phase I ESA
    report was faxed from his lawyers office to CIBC.  Nevertheless, Mr. Yang denied
    having received
any
reports from Mr. Sumra, including the Phase I ESA report,
    and was unable to explain how it had ended up in his lawyers office.

[8]

The evidence concerning the price reduction for the property was
    consistent with Mr. Yangs knowledge of the environmental contamination.
    According to Mr. Sumra, he and his son met with Mr. Yang in the company of a
    real estate agent (whose identity was misrepresented by Mr. Yang), and demanded
    a reduction of the purchase price based on the environmental condition of the
    property. Mr. Yangs evidence was that he provided no explanation at all to
    justify a lower price; yet he was able to obtain a reduction in the purchase
    price of $200,000.  The trial judge was entitled to accept Mr. Sumras evidence,
    as she did, that the negotiations between two experienced businessmen that led
    to an agreed price reduction was based on the environmental issues.

[9]

In the face of the finding that Mr. Yang knew about the contamination,
    there is no basis for the appellants claim against the vendor or the lawyer.

[10]

The
    conclusion that the respondent Anderson was not negligent was driven by the
    facts as found by the trial judge.  The agreement of purchase and sale included
    a condition permitting the purchaser to satisfy itself respecting the
    environmental condition of the property, and included a requirement that the
    vendor provide any existing environmental reports upon request of the purchaser.
    Ms. Anderson testified that Mr. Yang had undertaken to deal with the conditions
    in the agreement, and that he had ultimately waived the conditions, including
    the environmental condition.  Ms. Anderson had the Phase I ESA report in her
    files, which she could only have received from Mr. Yang, and she confirmed that
    she had faxed this document to his lender, CIBC. Prior to the closing, Mr. Yang
    signed a waiver/consent, acknowledging that Ms. Anderson had specifically
    recommended undertaking the environmental assessments as stated in the
    agreement of purchase and sale, that it was his decision not to do the
    assessments, and that he had instructed his lawyer not to order any new
    environmental reports as [he] already received one which has been accepted by
    the mortgage company.  All of this is consistent with Ms. Andersons evidence
    that Mr. Yang had undertaken to address the environmental issues in relation to
    the property himself, and that he had decided that no further investigations
    were necessary.

[11]

In
    these circumstances, the trial judge made no error in finding that the
    respondent Anderson met the appropriate standard of care.  There was no error
    in the trial judges rejection of the opinion of the appellants expert witness
    that she had breached the standard of care, which depended on a number of
    assumptions that were not borne out by the evidence.  We would also reject the
    appellants assertion that the waiver/consent signed by Mr. Yang required Ms.
    Anderson to specifically request environmental reports from the vendor, even in
    the absence of any instructions from Mr. Yang.  The evidence as a whole fully
    supports the conclusion that Mr. Yang was satisfied with the extent of his
    knowledge about the environmental condition of the property, and, notwithstanding
    the advice of his counsel, was unwilling to conduct any further investigations.

[12]

In
    the end, this appeal seeks to challenge a number of the trial judges findings
    of fact.  The appellants have not persuaded the court that there was any
    palpable and overriding error, or indeed any error, in the facts found at
    trial.

[13]

Finally,
    the appeal with respect to the trial judges provisional assessment of damages
    could only succeed if the trial judgment on liability were reversed.  It is
    unnecessary to address the question of damages in view of our conclusion that
    the appeal fails.

[14]

The
    appeal is dismissed.  Costs to the respondents 123037 Ontario Ltd. and Sumra
    fixed at $15,000; costs to the respondent Anderson fixed at $15,000, in each
    case inclusive of disbursements and HST and payable by the appellants.

E.E. Gillese J.A.

K.
    van Rensburg J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Alfred Wegener Institute v. ALCI Aviation Ltd.,
    2014 ONCA 398

DATE: 20140514

DOCKET: C57959

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Alfred
    Wegener Institute for

Polar
    and Marine Research

Applicant (Respondent)

and

ALCI Aviation Ltd. and Enterprise Airlines Inc.

Respondents (Appellants)

Robert J. Drake, for the appellants

Brendan F. Morrison, for the respondent

Heard: May 12, 2014

On appeal from the order of Justice Geoffrey B. Morawetz of
    the Superior Court of Justice, dated October 23, 2013.

ENDORSEMENT

[1]

The appellants, ALCI Aviation Ltd. and Enterprise Airlines Inc., appeal
    from an order of the application judge ordering that an arbitral verdict rendered
    by a German arbitral tribunal be recognized as binding in Ontario and
    enforceable in the same manner as a judgment or order of the Superior Court.

[2]

The appellants did not appear at the arbitration, and did not file
    material or appear on the application.

[3]

On appeal, they raise for the first time the argument that a certified
    copy of the arbitral record was not before the application judge and that, as a
    result, the order recognizing the verdict should never have been made.

[4]

Article 35(2) of the
International Commercial Arbitration Act
,
    R.S.O., 1990, C. I.9 provides:

(2) The party relying on an award or applying for its
    enforcement shall supply the duly authenticated original award or a duly
    certified copy thereof

[5]

The affidavit, filed in support of the application, attached and
    identified under oath a true copy of the duly certified translation of the
    Arbitral Verdict together with a copy of the original verdict and the
    affidavit of the translator.

[6]

The copy bears what appear to be the signatures of the three members of
    the arbitral panel.

[7]

Where no issue was raised before the application judge as to the form of
    the copy or the accuracy of the copy of the verdict, it was open to the
    application judge to accept the affidavit evidence as duly certifying the
    document and meeting the requirements of article 35(2).  No issue is raised on
    appeal as to the accuracy of the document.

[8]

Accordingly, the appeal is dismissed with costs to the respondent in the
    agreed amount of $6,000.00, inclusive of all applicable taxes and disbursements.

K.M. Weiler J.A.

C.W.
    Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Barbieri v. Mastronardi, 2014 ONCA 416

DATE: 20140521

DOCKET: C58126

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Nicolina  Barbieri

Plaintiff

(Respondent)

and

Fernando
    Mastronardi
, Joseph Leonardis Real Estate Ltd.

and
    Canada First American Title Insurance Company

o/a
    First Canadian Title Insurance Company

Defendants

(Appellant)

Alistair Riswick, for the appellant

Alex Flesias, for the respondent

Heard:  May 12, 2014

On appeal from the order of Justice P. Theodore Matlow of
    the Superior Court of Justice, dated December 2, 2013.

ENDORSEMENT

[1]

This appeal arises out of the purchase of a residential property in the
    City of Toronto (the Property) by the respondent, Nicolina Barbieri, pursuant
    to an agreement of purchase and sale (APS) executed on September 5, 2007.

[2]

The respondent commenced this action against the appellant, Fernando
    Mastronardi, in breach of contract and negligence on March 19, 2009. She
    alleged that the appellant failed to disclose that a marijuana grow-op had
    previously been operated at the Property and that the Property has an extensive
    mould problem that renders it uninhabitable.

[3]

The parties agreed that the issue of liability could be severed from the
    issue of damages. The respondent successfully bought a motion for partial
    summary judgment on the question of liability only.

[4]

For the reasons that follow, we would allow the appeal on the basis that
    the reasons of the motion judge fail to provide any insight into how his legal
    conclusion was reached and what facts were relied upon in reaching his
    conclusion. Accordingly, meaningful appellate review is impossible.

Facts

[5]

The Property is a single family residential home. In March of 2006, the
    appellant entered into a lease agreement with a third party for the rental of
    the home for a one year period commencing April 1, 2006.

[6]

On or about August 9, 2006, the Toronto Police conducted a raid at the
    Property and discovered a marijuana grow-op in the basement. The City of
    Toronto issued work orders on September 22, 2006. Those work orders made
    reference to the marijuana grow-op and stated that the Property was potentially
    in an unsafe condition and that the air quality, electrical installation and
    structural integrity of the premises were suspect. Pursuant to those work orders,
    no person could use, occupy or permit the use or occupation of the Property
    until the work orders were lifted.

[7]

The appellant commissioned a building inspection report from King
    Inspection and Environmental (the King Report). That report identified
    problems, including mould in the basement, and recommended that remedial work
    be undertaken. The appellant hired his sons company, Dimension Homes and Renovations
    (Dimension), to do the remediation work. It is unclear on the record the
    nature and extent of the remedial work done by Dimension. However, it is not
    disputed that, on February 13, 2007, the City of Toronto rescinded the work
    orders.

[8]

After the work orders were rescinded, the appellants daughter resided
    at the Property with her two young children for a period of approximately six
    months. When she moved out, the appellant listed the Property for sale.

[9]

The parties entered into the APS on September 5, 2007. The respondents
    nephew, Domenic Manno, made the purchase under a power of attorney. Mr. Manno
    swore an affidavit wherein he indicated that the respondent asked a series of
    specific questions through her real estate agent about the condition and maintenance
    of the Property. He further stated that he was advised that favourable
    responses were made by the appellant to these enquiries and that the respondent
    proceeded to make the offer to purchase in reliance on those favourable
    answers. Mr. Manno swore that the use of the Property as a marijuana grow-op
    was not revealed and, had it been, it would have materially impacted the [respondents]
    decision to purchase the property or would have been a factor in determining
    the purchase price of the property.

[10]

The
    appellant denied that he was asked the questions alleged to have been asked
    regarding the condition and maintenance of the Property prior to or at the time
    of signing the APS. The appellants wife swore an affidavit wherein she stated
    that in her discussion with the respondents real estate agent it was suggested
    that the respondent was acquiring the Property for its land value and planned
    to build a new house.

[11]

It
    is not disputed that the APS contained an entire agreement clause and that the respondent
    waived her right to request an inspection. No Seller Property Information
    Statement was requested or provided. The transaction closed on November 20,
    2007.

[12]

It
    is not clear from the evidence if the respondent ever lived at the Property. In
    or about September of 2008, Mr. Manno was approached by neighbours who informed
    him that the Property had been used as a marijuana grow-op.

[13]

In
    March of 2010, the respondent retained Fisher Environmental Limited (Fisher)
    to undertake an investigation of the indoor air quality in the Property (the
    Fisher Report). Fisher concluded that there was mould in the Property and
    that a number of remedial measures were required to be undertaken in order to
    make it safe for human occupancy.

Decision of the Motion Judge

[14]

The
    motion judge granted partial summary judgment in the respondents favour on the
    issue of liability. The entirety of the motion judges reasons is as follows:

Pursuant to rule 20.04(4), partial summary judgment is to issue
    in favour of the Plaintiff against the Defendant, Mastronardi on the issue of
    liability (a declaration) and that the action proceed to trial solely on the
    issue of damages.

I am persuaded that the defendant failed in his duty to the
    Plaintiff, to advise her or her representative that the house had been used for
    a substantial period of time by a tenant as a grow up, that the structure had
    suffered damage as a result of the activity carried out, and that his son had
    made repairs to the structure to remedy the damage caused.

It is my view that, even if the repairs had reversed all of the
    damage done to the structure, the Plaintiff would have a valid claim for the
    stigma that had attached to the subject property.

The evidence before me is sufficient to enable me to reach a
    just result on the issue of liability. It is not sufficient to enable me to
    reach a just assessment of damages. That would require consideration of further
    evidence relative to the extent to which the structure was repaired, the likely
    cost of future further repairs, the diminution of the value of the property and
    any other loss or damage that flows from the Defendants default.

I give no special directions with respect to the further
    conduct of the action.

Having regard to the outcome of this motion. I refer the costs
    of the motion, including any costs already referred to me, to the judge
    presiding at the trial on the issues of damages.

Positions of the Parties

[15]

The
    appellant admits that the existence of the grow-op was not disclosed. However,
    he asserts that as of the time of the sale, the problems with the Property were
    remediated. He submits that is why the City of Toronto lifted the work orders
    and that is why he allowed his daughter to reside there with her two children.
    It is the appellants position, therefore, that he owed no duty to disclose
    because there was no defect in the Property. Further, he relies upon the APS,
    which expressly excludes the operation of unwritten representations regarding
    the Property.

[16]

The
    respondent submits that the appellant had a duty to disclose the grow-op and
    that the failure to do so was a breach of contract and a misrepresentation. He
    relies on the King Report and the Fisher Report to establish that there was
    mould in the Property in 2006 and 2010, respectively. Counsel invites the court
    to infer that there was mould in the home throughout and that the remediation
    efforts did not solve the mould issue.

Analysis

[17]

In
    Ontario a vendor may be liable to the purchaser of a property which is not new
    if he knows of a latent defect which renders the premises unfit for habitation
    or dangerous in itself and does not disclose it to the purchaser:
McGrath
    v. MacLean
(1979), 22 O.R. (2d) 784 (C.A.); and
Dennis v. Gray
,
    2011 ONSC 1567, 105 O.R. (3d) 546.

[18]

The
    motion judge concludes that the appellant is liable to the respondent, but his
    endorsement offers no legal analysis and contains no findings of fact. He
    declares that the appellant failed in his duty to the respondent, without
    explaining how he reached that conclusion. The nature of the duty, whether in
    negligence or contract, is not identified.

[19]

More
    importantly, the motion judge reaches no conclusion with regard to the critical
    factual issue, namely whether there was mould in the Property at the time of
    closing. There was conflicting evidence on the point and the determination of
    that issue was vital in the analysis of whether the appellant was liable to the
    respondent for any damages. Similarly, there is no consideration of whether the
    appellant was aware of the existence of mould as at closing.

[20]

Having failed to reach any conclusion on the critical issue of
    the existence of mould in the Property at the time of closing, the motion judge
    goes on to find that, even if the problems in the house had been completely
    remediated, the respondent would still
have a
    valid claim for the stigma that had attached to the subject property.

[21]

Again the motion judge provides no
    analysis as to how he reached this conclusion. There was no expert or other evidence
    before him that the fact that the Property was used as a grow-op meant that it
    had been stigmatized. The evidence at its highest was the bald statement of Mr.
    Manno that, had the plaintiff known about the grow-op, she would have either
    not purchased the Property or purchased it at a reduced price.

[22]

In order to allow for meaningful
    appellate review, the decision of the court must, at a minimum, provide some
    insight into how the legal conclusion was reached and what facts were relied
    upon in reaching that conclusion:
R. v.

Sheppard
, 2002 SCC 26,
    [2002] 1 S.C.R. 869, at paras. 24, 55; and
Crudo Creative Inc. v.
    Marin
(2007), 90 O.R. (3d) 213 (Div. Ct.).

[23]

The motion judges endorsement
    does not contain necessary findings of fact and is so lacking in analysis that
    it impedes meaningful appellate review.  While decisions of motion judges on
    summary judgment motions attract significant deference  (see
Hryniak
    v. Mauldin
, 2014 SCC 7, at para. 81), there
    cannot be deference in circumstances where the appellate court cannot
    understand the legal basis for the decision or the factual finding made in
    support thereof.

Disposition

[24]

Given the inadequacy of the
    endorsement of the motion judge, we cannot conduct a meaningful review of his
    decision.

[25]

In these circumstances, we have no
    alternative but to grant the appeal and set aside the declaration of the motion
    judge that the appellant is liable to the respondent.

[26]

As
    agreed between the parties, the appellant is entitled to costs in the amount of
    $8,000, inclusive of disbursements and H.S.T.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bennett Law Chambers Professional
    Corporation v. Zareh, 2014 ONCA 386

DATE: 20140512

DOCKET: C57955

Laskin, Rouleau and Lauwers JJ.A.

IN THE MATTER OF THE
SOLICITORS ACT

BETWEEN

Bennett Law Chambers Professional Corporation

Solicitor (Respondent)

and

Akbar Zareh, Kingsway Estate Brokerage and Maxcom
    Realty Inc.

Client (Appellants)

Fredrick Schumann, for the appellants

J. Sebastian Winny, for the respondent

Heard: May 2, 2014

On appeal from the order of Justice Sandra Chapnik of the
    Superior Court of Justice, dated June 3, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We see no reason to interfere with the decision of the motion judge.  In
    our view, the authorization and direction signed by the appellants precludes
    them from disputing the respondents right to assess all the accounts in
    issue.  Accordingly, the appeal is dismissed with costs fixed at $2500 all in.


COURT OF APPEAL FOR ONTARIO

CITATION: Boehme (Re), 2014 ONCA 389

DATE: 20140512

DOCKET: C57927

Laskin, Pepall and Pardu JJ.A.

IN THE MATTER OF:  RALPH BOEHME

AN APPEAL UNDER PART XX.1 OF THE
CODE

Peter Boehme, appearing in person

P. Burstein,
amicus curaie

Michael Perlin, for the respondent Crown

Melanie de Wit, for the Person in Charge of the Ontario
    Shores Centre for Mental Health

Heard: May 9, 2014

On appeal against the disposition of the Ontario Review
    Board dated, September 25, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The Boards decision is reasonably supported by the evidence.

[2]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Bounpraseuth v. York University, 2014 ONCA 390

DATE:  20140513

DOCKET: C58221

Doherty, Gillese and Hourigan JJ.A.

BETWEEN

Outhonesavan K. Bounpraseuth

Plaintiff (Appellant)

and

York University

Defendant (Respondent)

Carlin McGoogan, for the plaintiff (appellant)

Sarah Jones, for the defendant (respondent)

Heard and released orally:  May 8, 2014

On appeal from the judgment of Justice Tzimas of the Superior
    Court of Justice, dated February 13, 2013.

ENDORSEMENT

[1]

Counsel for the appellant helpfully narrowed the issue on this appeal.
    He concedes that the claims as pleaded in the statement of claim cannot stand.
    He submits, however, that the motion judge erred in not giving the appellant
    leave to amend his pleading.  Before addressing the merits of that submission,
    we note that the motion judge asked the appellant for specifics should she
    give him leave to amend his claim and the appellant declined to provide those
    specifics.

[2]

Counsel before us suggests that in essence, the appellants claim is for
    breach of contract against the respondent University.  He contends that the
    appellant has alleged, albeit in a confusing manner, that he was entitled to
    graduate from the University in 2004 and that the University failed, for no
    good reason, to graduate him until 2010, resulting in the damages as pleaded in
    the statement of claim.

[3]

We cannot accept this characterization of the claim.  Indeed, it is
    contrary to the claim as actually put forward by the appellant in his statement
    of claim.  That claim was all about the marks the appellant received which
    prevented him from graduating and the unfair way he alleges he was treated by
    the respondent University in the course of his attempts to rectify those marks.

[4]

The proposed amendment would, in our view, entirely recast the statement
    of claim.  We would not interfere with the motion judges refusal to allow
    leave to amend the claim.

[5]

The appeal is dismissed.

[6]

Costs awarded to the respondent University in the amount of $2,700,
    inclusive of relevant taxes and disbursements.

Doherty J.A.

E.E. Gillese J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Buccilli v. Pillitteri, 2014 ONCA 432

DATE: 20140529

DOCKET: C56408

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Patricia Buccilli and
    Drapery Interiors Etc. Inc.

Plaintiffs (Respondents)

and

Pasquale Pillitteri, also known as Pat
    Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC
    Contracting, Birchland Homes Inc. and Vendrain Inc.

Defendants (Appellants)

AND BETWEEN

Pasquale Pillitteri, also known as Pat
    Pilliterri, Christina Pillitteri, Patron Contracting Limited, also known as CDC
    Contracting, Birchland Homes Inc. and Vendrain Inc.

Plaintiffs by Counterclaim (Appellants)

and

Patricia Buccilli,
    Drapery Interiors Etc. Inc. Antonio (Tony) Decicco and Westplex Centre Inc.

Defendants to Counterclaim (Respondents)

Gavin Tighe and Anna Husa, for the appellants

Terrence OSullivan and Daniel Naymark, for Ron Ventura

M.R. Kestenberg and T. Slahta, for the respondents

Heard: May 2, 2014

On appeal from the judgment of Justice Frank J.C.
    Newbould of the Superior Court of Justice, dated November 23, 2012.

ENDORSEMENT

[1]

Patricia Bucillis late husband, Enzo Ventura, her brother-in-law Pat
    Pillitteri, and Ron Ventura ran a family business.  They were equal
    shareholders in a construction company, CDC Contracting, and also owned several
    real estate investments.

[2]

After her husband died, Patricia, as his sole heir, inherited his
    one-third interest in the family business.  In June 2001 she transferred her
    interest to her sister-in-law Christina Pillitteri in trust by a written
    Transfer Agreement.  Later Christina transferred Patricias one-third interest
    to her husband Pat and Ron in equal shares.

[3]

Patricia sued to set aside the Transfer Agreement and ancillary relief
    necessary to reinstate her to the legal and financial position she would now
    occupy had the transfer not been effected.  On the consent of the parties the
    issues of liability and damages were bifurcated.

[4]

The central issue at the liability trial was the validity of the
    Transfer Agreement.  The trial judge ordered that the Transfer Agreement be set
    aside on four grounds:

·

undue influence

·

breach of fiduciary duty

·

misrepresentation

·

unconscionability

[5]

The Pillitteris appeal. They advance two main grounds of appeal: (1) the
    trial judge exceeded his jurisdiction by granting remedies not authorized by
    the bifurcation order; and (2) the trial judges key findings of fact are
    tainted by palpable and overriding error.  On either ground the Pillitteris
    submit that the judgment must be set aside.

[6]

Ron Ventura was granted intervener status as a party on the appeal.  He
    is not a party to the litigation and did not testify at trial.  He submits that
    though he was neither a party to the proceedings nor given notice of it, the
    trial judges judgment affects his status as a shareholder in the family
    business.  He too asks that the judgment be set aside.

(1)

Did the trial judge
    exceed his jurisdiction?

[7]

Pepall J. issued a consent order that liability and damages be
    bifurcated.  In her order she specified the claims in the statement of claim
    that were to be determined at the liability stage of the proceedings.

[8]

The Pillitteris contend that the trial judges judgment went beyond Pepall
    J.s bifurcation order.  A comparison of the judgment, the statement of claim
    and the bifurcation order shows otherwise.  Paragraph 2 of the judgment  the
    paragraph challenged on appeal  orders declaratory relief in the terms of
    paragraph 1(i) of the statement of claim.  The bifurcation order leaves the
    claim in paragraph 1(i) of the statement of claim to be resolved at the
    liability phase of the trial.

[9]

Accordingly, we do not give effect to this ground of appeal.

(2)

Did the trial judge
    commit palpable and overriding errors?

[10]

The
    trial judge gave thorough reasons for his decision.  He made numerous findings
    of fact and credibility.  In his extensive section on the credibility and
    reliability of the witnesses, the trial judge found that much of the evidence
    of Christina and Pat Pillitteri was neither credible nor reliable.  He
    preferred and accepted most of the evidence of Patricia Buccilli.

[11]

The
    Pillitteris, however, argue that some of the trial judges key findings of fact
    are irretrievably tainted by palpable and overriding error.  They give two
    examples: the trial judges findings on the evidence of the lawyer John
    Cirillo; and the trial judges findings concerning a letter from Les Witlin a
    solicitor, written nearly six years after the Transfer Agreement was signed.

[12]

We
    do not accept this argument.  On our review of the record the trial judges
    findings of fact concerning Mr. Cirillo are well supported by the evidence.

[13]

Witlins
    letter, which stated that Patricia had signed over all of her interest to the
    Pillitteris, was not tendered for the truth of its contents.  Moreover, neither
    Patricia nor Witlin was cross-examined on it.  The trial judge was therefore
    correct not to give the letter any weight.

[14]

Accordingly,
    we do not give effect to this ground of appeal.

[15]

We
    add that to us the trial judges order setting aside the Transfer Agreement is
    unassailable for the reasons set out at paragraph 18 of Mr. Kestenbergs
    factum:

·

Patricia Buccilli had neither received nor reviewed CDCs
    financial statements,

·

Patricia Buccilli had neither received nor reviewed Birchlands
    financial statements,

·

Patricia Buccilli had neither received nor reviewed the financial
    statements of Westplex Centre Inc. Joint Venture,

·

There was no discussion among Patricia Buccilli, Pat Pillitteri
    and Christina Pillitteri about the value of the shares of CDC or Birchland,

·

There was no discussion among Patricia Buccilli, Pat Pillitteri
    and Christina Pillitteri about the value of the real estate joint ventures that
    recorded Vendrain as a participant,

·

Patricia Buccilli had not consulted a lawyer prior to the alleged
    agreement in August 2000, and

·

Patricia Buccilli had not received independent business advice
    from anyone prior to the alleged August 2000 agreement

(3)

The position of Ron
    Ventura

[16]

The
    transfer of one-half of Patricias one-third interest to Ron Ventura took place
    after Patricia had begun this litigation.  She did not sue Ron Ventura and made
    no claim against him.  We agree with Mr. Kestenberg that the judgment under
    appeal does not affect Rons interest.  At the damages phase Ron can take the
    position that he was a
bona fide
purchaser for value and that whatever
    remedies are ordered, they cannot affect his 50 per cent interest in the
    business.

[17]

For
    these brief reasons the appeal is dismissed.  The parties may make written
    submissions on the costs of the appeal within 20 days of the release of these
    reasons.

John Laskin J.A.

Paul Rouleau J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bulut v. Carter, 2014 ONCA 424

DATE: 20140523

DOCKET: C55507

Juriansz, Epstein and Pepall JJ.A.

BETWEEN

Nikolas (Nicholas) Bulut

Plaintiff

(Appellant/Respondent
    by way of cross-appeal)

and

William
    Russell Carter
, Marilyin Rose Carter, Kurt

Russell
    Carter and Amberlyn Miszcyzk

Defendants

(Respondents/
Appellant
    by way of cross-appeal
)

Sean C. Flaherty, for the appellant/respondent by way of
    cross-appeal

Howard W. Reininger, for the respondents/appellant by
    way of cross-appeal

Heard: April 14, 2014

On appeal from the judgment of Justice Johanne N.
    Morissette of the Superior Court of Justice, dated April 25, 2012.

ENDORSEMENT

[1]

The appellant, Nikolas Bulut, and the respondent, William Carter, were
    engaged in various business dealings together, many of which involved the
    Carter family company, Carters Printing of London Ltd.  The other respondents
    (the Carter family members) are members of Mr. Carters family and involved
    with Carters Printing. Marilyn Carter, Mr. Carters wife, is a director of the
    company.  Kurt Russell Carter and Amberlyn Miszcyzk, William and Marilyns
    children, are shareholders of Carters Printing.

[2]

In connection with their business dealings, in April 2006, Mr. Carter,
    on behalf of the company signed a promissory note in the amount of $300,000 in
    favour of Mr. Bulut which he also personally guaranteed.  The Carter family
    members also executed the guarantee.

[3]

Mr. Bulut made demand under the note and guarantees in October 2006.  In
    November of 2006, Carters Printing went bankrupt.

[4]

In this action, Mr. Bulut seeks payment of $300,000, plus interest, from
    all of the respondents, through the enforcement of their guarantees.

[5]

Mr. Carter and the Carter family members have defended the claim on two
    grounds - lack of consideration for the note and relying on the defence of
non
    est factum
.

[6]

The trial judge awarded judgment only against Mr. Carter in his capacity
    as guarantor of the note.  She also concluded that there was consideration for
    the promissory note.  However, she held that the Carter family members had
    satisfied the test for
non est factum
and therefore were not liable as
    guarantors.  She dismissed the action against them.

[7]

The appellant appeals the dismissal of the action against the Carter
    family members.  He submits that the trial judge erred in two respects: (1) the
    defence of
non est factum
had not been pleaded and, (2) even if it
    were, it was not supported by the evidence.

[8]

In his notice of appeal, the appellant also contested the post-judgment
    interest the trial judge awarded.  However, in argument, the appellant
    abandoned this issue.

[9]

In his cross-appeal, Mr. Carter seeks to set aside the judgment against
    him on the basis that the promissory note was given without consideration and the
    guarantee is therefore unenforceable.  In the event the appellant succeeds in
    his argument that the trial judge erred in accepting their defence of
non
    est factum
, the Carter family members also rely on lack of consideration.

[10]

At
    the conclusion of argument, we allowed the appeal and dismissed the
    cross-appeal with reasons to follow.  These are our reasons.

The Appeal

[11]

The
    appellant submits that
non est factum
was not pleaded and the trial
    judge therefore erred in allowing the respondents to rely on the defence.

[12]

Fairness
    dictates that lawsuits be decided within the boundaries of the pleadings. A
    party has the right to know the case it has to meet and to have the opportunity
    to meet it:
Rodaro v. Royal Bank of Canada
(2002), 59 O.R. (3d) 74
    (C.A.).

[13]

The
    defence of
non est factum
was not expressly identified in the
    respondents amended statement of defence and counterclaim.  However, in their pleading,
    the respondents did allege that they did not understand the nature of the
    document they signed.  On this basis the trial judge held that the respondents
    were entitled to rely on the defence, if proven.

[14]

We
    agree.  In their amended statement of defence and counterclaim the respondents
    asserted that they were unaware that they had personally guaranteed Carters
    Printings debt to the appellant and pleaded various circumstances surrounding
    that assertion.  They alleged that the lawyer did not explain the document and did
    not provide them with an opportunity to read it.  The respondents pleaded that
    they, in fact, signed the guarantee without reading it and it was only later
    that they learned that they had signed a document in which they personally
    guaranteed the companys indebtedness under the promissory note.

[15]

The
    defence was sufficiently set out to enable the appellant to respond and the
    record establishes that battle was joined on that issue.

[16]

We
    would therefore not interfere with the trial judges decision to allow the
    respondents to raise the defence of
non est factum
.

[17]

However,
    we agree with the appellant that the trial judge erred in concluding that the Carter
    family members established the defence.

[18]

The
    trial judge correctly set out the test for
non est factum
identified
    in the seminal case of
Marvco Colour Research Ltd. v. Harris
, [1982] 2
    S.C.R. 774.  The defence of
non est factum
is available to someone who,
    as a result of misrepresentation, has signed a document mistaken as to its
    nature and character and who has not been careless in doing so.

[19]

The
    Carter family members testified that they believed they were signing the guarantee
    in their capacity as shareholders of the company. They testified that Mr.
    Carter instructed them, on an urgent basis, to go to the office of the lawyer
    who represented all parties for the purpose of signing some documents.  They
    did so.  The evidence of the Carter family members was that they did not know
    what they were signing - they did not understand that they were personally
    guaranteeing the indebtedness of the company.

[20]

In
    our view, on their own evidence, the Carter family members were careless in
    signing the document that consisted of one page.  The Carter family members did
    not read it.  They did not ask any questions about it.  They did not ask for an
    opportunity to obtain independent legal advice.

[21]

With
    respect, the trial judges finding that the Carter family members were not
    careless is not supported by the evidence. See:
Saunders v. Anglia Building
    Society
, [1970] 3 All E.R. 961, [1970] 3 W.L.R. 1078, 114 Sol. Jo. 885
    (H.L.), affd [1969] 1 All E.R. 1062, sub nom
Gallie v. Lee
, [1971]
    A.C. 1004.

[22]

On
    this basis, the defence of
non est factum
was not open to them.

[23]

Furthermore,
    while the trial judge recognized that for
non est factum
to apply, the
    guarantee must have been signed as a result of misrepresentation as to its
    nature, she did not consider this part of the test.

[24]

Misrepresentation
    is essential to a plea of
non est factum
. See
Dorsch v.
    Freeholders Oil Co. Ltd
.,
[1965] S.C.R. 670.

[25]

The
    Carter family members are unable to demonstrate that they signed the guarantee
    due to any misrepresentation.  Indeed they testified that they were not told
    anything about the document other than to sign it.

[26]

Accordingly,
    the defence of
non est factum
was not open to the Carter family
    members on this basis as well.

The Cross-Appeal

[27]

Mr.
    Carter and the Carter family members took the position at trial, as they do
    before this court, that the promissory note was given by Carter Printing
    without consideration.  They argue that while Mr. Bulut advanced funds to the
    company in 2004 when the promissory note was agreed upon, this advance was pursuant
    to a previous contract. As such, the note was based on past performance and was
    not consideration for the 2006 promissory note.

[28]

We
    disagree.  There was ample evidence in support of a finding of consideration.  Among
    other things, Mr. Carter admitted, as found by the trial judge, that funds were
    advanced to Carters Printing. I refer also to the evidence of Mr. Bulut, Mr.
    Carter and the Carter family members that the promissory note was given in
    order to ensure that the company could continue to engage in business dealings
    with Mr. Bulut.

Disposition

[29]

For
    these reasons the appeal is allowed and the cross-appeal is dismissed.  The
    trial judges dismissal of the action against the Carter family members is set
    aside and judgment is granted against them. That judgment is stayed on the same
    basis as the trial judge stayed the judgment against William Russell Carter.

[30]

The
    appellant is entitled to his costs in this court fixed in the amount of $10,000
    inclusive of disbursements and applicable tax.  The appellant is also entitled
    to his costs at trial, the quantum of which is left to the judge hearing the
    counterclaim.

R. G. Juriansz J.A.

Gloria Epstein J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carbone Estate v. Pongetti, 2014 ONCA 426

DATE: 20140526

DOCKET: C57887

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Anna-Marie Pongetti as Estate Trustee for the
    Estate of Pierina Elaine Carbone

Applicant (Respondent on Appeal)

and

Patrick Pongetti, Victor Pongetti, Michael
    Pongetti and Mara-Lee Pongetti

Respondents (Appellant, Patrick Pongetti)

No one appearing for the appellant Patrick Pongetti

Brad Wiseman, for the respondent Anna-Marie Pongetti

Heard: May 20, 2014

On appeal from the order of Justice J.A. Ramsay of the Superior
    Court of Justice, dated October 11, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appeal has settled.  On consent, the appeal is dismissed without
    costs.


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: Catholic Children's Aid Society of Toronto v. N.A.,
    2014 ONCA 437

DATE: 20140529

DOCKET: C58313

MacPherson, Watt and Benotto JJ.A.

BETWEEN

Catholic Childrens Aid Society of Toronto

Applicant (Respondent)

and

N.A.

Respondent (Appellant)

Robin Leighton, for the appellant

Alec Duncan, for the respondent

Heard and released orally: May 22, 2014

On appeal from the judgment of Justice George Czutrin of
    the Superior Court of Justice, dated January 14, 2014, dismissing the appeal
    from the judgement of Justice Robert J. Spence of the Ontario Court of Justice,
    dated May 15, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of the Senior Justice of The Family
    Branch which dismissed her appeal from the finding of the Ontario Court of
    Justice making the children J.V.S., aged seven, and N.N.S., aged six, Crown wards
    without access.

[2]

The appellant submits that the children be returned to her, subject to
    supervision by the respondent. She also seeks access.

[3]

The children have been in care since June 16, 2010. On July 8, 2011,
    they were found in need of protection. On October 3, 2012, the appellants
    visits with the children were reduced to one and a half hours per week, under
    supervision.

[4]

On May 15, 2013, after a 14-day trial, the children were made Crown wards
    so that they could be placed for adoption.

[5]

The trial judge concluded that the appellants plan of care was not in
    the best interests of the children and that the children could not be returned
    to her.

[6]

There were findings that the children were at risk of harm if placed
    with the appellant. The trial judge cited multiple reasons for this conclusion,
    including the appellants mental health, her inability to care for the
    children, and the toxic relationship with the respondent.

[7]

The appellant has had no visits with the children since the trial. On
    September 12, 2013, the Senior Justice of the Family Branch refused to
    reinstate the visits and went on to hear the appeal on an expedited basis on
    December 12, 2013.

[8]

The appeal was dismissed and the decision of the trial judge was upheld.

[9]

The appellant appeals the decision of the Superior Court which in turn
    dismissed a finding of the Ontario Court, under the
Child and Family
    Services Act
, R.S.O. 1990 c. C.11
.
    This court has held that in these circumstances, the Court of Appeal should
    only intervene if the Superior Court appeal judge erred in principle by failing
    to identify a material error in the decision below. (See
Childrens Aid
    Society of Toronto v. G.S
, 2012 ONCA 783)

[10]

We
    are satisfied that no such error exists. The appellant alleges an error of fact
    by the trial judge. The error of fact alleged was that the trial judge did not
    give sufficient weight to her mental health. This is not an error of fact. The
    trial judge considered in detail her mental illness and, in the context of the
    evidence as a whole, concluded that the children were at risk, if returned to
    her care or subject to an access order.

[11]

Finally,
    we are of the view that the trial judge did not err in his interpretation of
    beneficial and meaningful in relation to the access.

[12]

We
    agree with the decision of the Senior Justice. The statutory timelines have
    long since passed; the children must be placed for adoption or returned to the
    appellant. The appellants plan of care put the children at risk so they cannot
    be returned.

[13]

For
    these reasons, the appeal is dismissed.

J.C.
    MacPherson J.A.

David
    Watt J.A.

M.L.
    Benotto J.A.


WARNING

The court hearing this matter directs
    that the following notice be attached to the file:

This is a case under Part
    III of the
Child and
    Family Services Act
and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the
    Act.  These subsections and subsection 85(3) of the
Child and Family Services Act
, which deals with the consequences
    of failure to comply, read as follows:

45.  (7)
Order excluding media
    representatives or prohibiting publication
.  The court may make an order,

(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  publication
    of the report, , 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.

(8)

Prohibition:
    Identifying child
.  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)

Idem: order re
    adult
.  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.

85.  (3)
Idem
.  A person who contravenes subsection 45(8) or 76(11) (publication
    of identifying information) or an order prohibiting publication made under
    clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a
    corporation who authorizes, permits or concurs in such a contravention by the
    corporation, is guilty of an offence and on conviction is liable to a fine of
    not more than $10,000 or to imprisonment for a term of not more than three
    years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: Childrens Aid Society of the Region of Halton v.
    E.M., 2014

ONCA 342

DATE: 20140501

DOCKET: C58255

Laskin, Watt and Hourigan JJ.A.

BETWEEN

The Childrens Aid Society of the Region of
    Halton

Applicant

Respondent on Appeal

and

E. M.

Respondent

Appellant on Appeal

and

M. K.

Respondent on Appeal

E. M., acting in person

Laura R. Goldfarb, for the respondent

Heard and released orally:  April 16, 2014

On appeal from the order of Justice Douglas K. Gray of
    the Superior Court of Justice, dated January 8, 2014.

ENDORSEMENT

[1]

The appellant appeals the order of Justice Gray dismissing her motion to
    extend the time to appeal a Crown wardship order made with respect to her
    daughter.

[2]

The appellant submits that she has a valid appeal and that she has made
    significant strides to address the issues that led to the Crown wardship order.
    She further asserts that is in the best interests of the child that she be
    permitted to proceed with her appeal.

[3]

While we commend the appellants efforts to address the issues which led
    to CAS involvement, we see no basis to interfere with the motion judges
    order.

[4]

The appellant has not explained her lengthy delay in commencing her
    appeal nor established an intention to appeal within the relevant period.

[5]

We are also not satisfied that the appeal has any merit given that the
    same arguments have been considered and rejected in her motion for leave to
    bring a status review.

[6]

Finally, we do not find that it is in the interests of justice to grant
    leave.  The appellants daughter is 14 years old, has been placed for adoption
    and there is an openness order in place. We do not believe that it would be in
    the best interests of the child to upset her current arrangements.

[7]

Given our findings above, it is unnecessary to consider the respondents
    argument that the court does not have jurisdiction to grant leave to extend the
    time for appeal because the child has been placed for adoption.

[8]

The appeal is dismissed.

John Laskin J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhry v.
    Falconer Charney LLP, 2014 ONCA 427

DATE: 20140526

DOCKET: C57802

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Liaqat Chaudhry and 5 Star Haveli International

Plaintiffs (Appellants)

and

Falconer Charney LLP and Theodore P. Charney

Defendants (Respondents)

Alfred Schorr, for the plaintiffs (appellants)

Michael Kestenberg, for the defendants (respondents)

Heard:  May 22, 2014

On appeal from the judgment of Justice Chiappetta of the
    Superior Court of Justice, dated October 9, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We think the motion judge properly determined that there was no genuine
    issue requiring a trial on the issue of damages as they related to the
    respondents alleged failure to complete the settlement documents before
    November 2008.  As the motion judge observed, at para. 19:

There is no evidence the plaintiffs suffered a loss because the
    defendants failed to finalize the settlement by November 28, 2008.

[2]

We agree with counsel for the appellants that a plaintiff is not
    required to quantify its loss to avoid summary judgment on a damages issue.  A
    plaintiff is, however, required to demonstrate something in the record on the
    motion that would justify a finding that some loss had occurred.  This material
    failed to do that.  The action was properly dismissed.

[3]

Costs to the respondents in the amount of $10,000, inclusive of taxes
    and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Concentra Financial Services Association v. Kazman,
    2014 ONCA 404

DATE: 20140515

DOCKET: C58072

Doherty, Epstein and Benotto JJ.A.

BETWEEN

Concentra Financial Services Association

Respondent

and

Marshall Kazman also known as Marshall Stephen
    Kazman

Appellant

Marshall Kazman, appearing in person

Mark Hartman, for the respondent

Heard: May 14, 2014

On appeal from the judgment of Justice Gray of the Superior
    Court of Justice, dated November 7, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis upon which we can interfere with the order granting
    summary judgment on the mortgage.

[2]

With respect to the appellants application for relief under s. 22 and
    s. 23 of the
Mortgage Act
,
which was also dismissed by the motion judge, whatever merit there may have
    been to that application at the time, subsequent events have overtaken any
    possible application of s. 23 (s. 22 has no application).  The mortgage has
    matured and the mortgagee is in possession of the property.

[3]

The appeal is dismissed.  Costs to the respondent in the amount of
    $3,500, inclusive of disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: DBDC Spadina Ltd. v. Walton, 2014 ONCA 428

DATE: 20140526

DOCKET: C58024 and C58804

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

DBDC Spadina Ltd., and Those Corporations Listed
    on Schedule A Hereto

Applicants (Respondents in Appeal)

and

Norma Walton, Ronauld Walton, The Rose &
    Thistle Group Ltd., and Eglinton Castle Inc.

Respondents (Appellants)

and

Those Corporations Listed
    on Schedule B Hereto, To Be Bound by the Result

Norma Walton, appearing in person

Howard C. Cohen, for the respondents (appellants)

Peter H. Griffin and P.E. Veel, for the applicants (respondents)

Heard and released orally:  May 21, 2014

On appeal from the order of Justice Frank J.C. Newbould
    of the Superior Court of Justice, dated November 5, 2013.

ENDORSEMENT

[1]

Ms. Walton represented herself on the appeal.  She is obviously very
    knowledgeable about the matters underlying this appeal.  Mr. Cohen represented
    the other appellants.  Not surprisingly, Ms. Waltons arguments differed to
    some degree from those her former counsel had advanced in their factum.  We
    will address the arguments made by Ms. Walton.  Mr. Cohen, for the other
    appellants, joined in and to some extent augmented Ms. Waltons arguments.

Issue #1  Did the application judge err in failing to require
    that secured creditors be given notice of the motion to appoint a Receiver
    Manager?

[2]

Ms. Walton argues that the mortgagees should have been given notice of
    the application to appoint a Receiver Manager in light of the potential impact
    of that appointment on the properties and their security in the properties.
    Ms. Walton notes for example that the appointment of a Receiver Manager would
    automatically put the mortgages into default under the terms of those
    mortgages.

[3]

Ms. Walton correctly, in our view, does not argue that the application
    judge had no jurisdiction to make the order absent notice to the secured
    creditors.  She does argue that the application judge should have exercised discretion
    in favour of requiring notice to them.

[4]

The application judge was not asked to require that notice be given to
    the secured creditors and specifically the mortgagees.  Ms. Walton and the
    other appellants were certainly aware of the potential impact of the
    appointment of a Receiver Manager on the status of the mortgages.  They were
    well positioned to ask the application judge to give the necessary notification
    if they thought it prudent or necessary to a proper hearing.  Ms. Walton and
    the other appellants were all represented by counsel on the application.  No
    such request was made by anyone.  We cannot say that the motion judge erred in
    principle or acted unreasonably in failing to make an order he was never asked
    to make.

[5]

We also note that no attempt has been made by any secured creditor to
    intervene on the appeal and take up the argument that the secured creditors
    should have received notice of the application.

[6]

We are told that some mortgagees have participated in some of the many
    proceedings that have been taken since the appointment of the Receiver
    Manager.  The nature of those proceedings and the positions advanced on behalf
    of some of the mortgagees in respect of either the appointment of the Receiver
    Manager or the conduct of the Receiver Manager since its appointment are not
    before this court and are not germane to the appeal.  As Mr. Griffin put it,
    this appeal is about the appointment of the Receiver Manager not the conduct of
    the Receiver Manager since the appointment.

Issue #2  Did the application judge improperly exercise his
    discretion in favour of the appointment of a Receiver Manager?

[7]

Ms. Walton forthrightly accepts that on the material before the application
    judge, a finding of oppression under the
Ontario Business Corporations Act
was open to the application judge.  We agree with that concession.  Ms. Walton
    submits, however, that the application judge was still required to consider the
    competing interests of Dr. Bernstein, the Waltons and the other creditors in
    deciding whether the appointment of a Receiver Manager was the appropriate
    order.  She maintains that the appointment of a Receiver Manager is an extreme
    remedy to be granted sparingly.  She further argues that the appointment of the
    inspector about a month earlier was enough to fully protect Dr. Bernsteins
    interests and that the application judge should have simply continued that
    order perhaps with modifications as needed to meet specific issues.

[8]

Ms. Walton points to two specific errors which she claims taint the
    exercise of the application judges discretion.  First, she says he failed to
    take into account the inevitable and disastrous consequences to the business
    affairs of the named companies that would flow from the appointment of a
    Receiver Manager.  Second, she says that the application judge mischaracterized
    her conduct in relation to two of the properties as theft or having the
    appearance of theft.  Ms. Walton submits that this mischaracterization led the
    application judge to the overkill remedy of a Receiver Manager.

[9]

We have reviewed the application judges reasons.  He accurately set out
    the legal principles relevant to the appointment of a Receiver Manager under
    either the
Courts of Justice Act
or the
Ontario Business
    Corporations Act
:  see paras. 41-44.  The application judge considered
    whether an order continuing the inspectorship would suffice to protect Dr.
    Bernsteins interests:  see para. 52.  The application judge determined that
    given the difficulties the inspector had encountered in the month since his
    appointment and given the problems the inspector had identified in respect of
    the records of the corporations, the appointment of the Receiver Manager was necessary
    in that Dr. Bernsteins interests could not be adequately protected by a simple
    continuation of the inspectorship.  We see no misapprehension of the relevant
    evidence.  Indeed the evidence relating to the conduct of the inspectorship was
    unchallenged.  Nor can we characterize the application judges assessment of
    that evidence as unreasonable.  That is as far as our review goes.  It is not
    for this court to engage in a
de novo
review of the material.

[10]

The
    application judge also addressed the potential commercial implications of the
    appointment of a Receiver Manager:  see paras. 49-51.  We were told in the
    course of oral submissions that the order has had serious financial
    repercussions for the Waltons and the companies.  What may have happened after
    the order appointing a Receiver Manager was made and perhaps, more importantly,
    why those events happened are not before this court.  If the application judge
    did not err in the exercise of his discretion based on the record before him,
    it cannot be that subsequent events render the exercise of that discretion
    improper.  Problems that may have arisen in the course of the receivership or
    changes in circumstances subsequent to the appointment of the Receiver Manager
    are matters that are properly addressed in the context of the courts ongoing
    supervision of the Receiver Manager and are not matters to be addressed in an
    appeal which challenges the appointment of the Receiver Manager.

[11]

We
    also note that no stay of the application judges order was sought.  The
    applicants chose to accept the appointment of the Receiver Manager pending the
    outcome of this appeal.  That position seems inconsistent with an argument that
    the appointment of the Receiver Manager would inevitably lead to dire
    consequences for the corporations.  Were that the position one would have
    expected an effort to stay the order pending a challenge of the receivership.

[12]

We
    also do not accept that the application judges use of the word theft is
    necessarily a mischaracterization of some of the conduct of Ms. Walton.
    However, even if the word theft is considered inappropriate given its
    criminal connotation, Ms. Waltons own affidavit acknowledges a knowing
    misappropriation of funds in respect of at least one property.  Whatever one
    might choose to call that conduct, it provided powerful evidence that Dr.
    Bernsteins interests in the property were being unfairly prejudiced by the
    conduct of the Waltons.  The application judges use of the word theft does
    not, in our view, taint his factual findings or the manner in which he
    exercised his discretion.

[13]

We
    have also reviewed the various features of the management of the affairs of the
    companies relied on by the application judge to support his findings and his
    order appointing the Receiver Manager.  In our view, all of his findings are
    supported by the record before the application judge and justify the conclusion
    that Dr. Bernsteins interests in the companies were significantly prejudiced by
    the ongoing activities of the Waltons.  The remedy ordered by the application
    judge, while undoubtedly one that should not be easily granted, was, in our
    view, fully justified in these circumstances.

[14]

The
    appeal is dismissed.  A number of related appeals that were transferred to this
    court from the Divisional Court on the order of Strathy J.A. are also
    dismissed.

[15]

The
    respondents are entitled to costs in the amount of $20,000, inclusive of
    relevant taxes and disbursements.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.