COURT OF APPEAL FOR ONTARIO

CITATION:
Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613

DATE: 20210909

DOCKET: M52721

(M52689)

Miller
    J.A. (Motions Judge)

In
    the Matter of the
Companies Creditors

Arrangement
    Act
, R.S.C. 1985, c. C-36, as amended;

And
    in the Matter of a Plan of Compromise or

Arrangement
    of Urbancorp Toronto

Management
    Inc., Urbancorp (St. Clair

Village)
    Inc. Urbancorp (Patricia) Inc.,

Urbancorp
    (Mallow) Inc., Urbancorp

(Lawrence)
    Inc., Urbancorp Downsview Park

Development
    Inc., Urbancorp (952 Queen West)

Inc.,
    King Residential Inc., Urbancorp 60 St.

Clair
    Inc., High Res. Inc., Bridge on King Inc.

(Collectively
    the Applicants) and the Affiliated

Entities
    Listed in Schedule A Hereto

Kenneth Kraft, Neil Rabinovitch and
    Michael Beeforth, for the moving party, Guy Gissin, in his capacity as the Foreign
    Representative of Urbancorp Inc.

Robin Schwill, Matthew Milne-Smith and
    Robert Nicholls, for the responding party, KSV Restructuring Inc., in its
    capacity as Monitor

Matthew Gottlieb, James Renihan and
    Jane Dietrich, for the responding party, Mattamy Homes Limited

Heard: August 26, 2021 by video conference

ENDORSEMENT

[1]

This motion arises out of long-running CCAA
    proceedings involving a group of companies ultimately owned by Urbancorp Inc.
    (UCI). The moving party, the Foreign Representative of UCI, seeks a stay pending
    its motion for leave to appeal an order of the supervising judge. That order authorized
    a process for the sale of a 51% interest in a real estate development project
    called Downsview Homes Inc. (DHI), owned by Urbancorp Downsview Park
    Development Inc. (Downsview), a subsidiary of UCI. The responding party,
    Mattamy Homes Limited (Mattamy), owns the other 49% of DHI.

[2]

Mattamy is the lender to Downsview under a
    debtor-in-possession facility (the DHI Facility), which matured eight months
    ago, on February 3, 2021. Downsview owes Mattamy over $9 million pursuant to
    the terms of the DHI Facility and the order approving the DHI Facility (the
    DIP Order). Downsview cannot repay the debt, and Mattamy will not extend the
    deadline for payment any further unless a sales process is conducted for
    Downsviews interest in DHI.

[3]

There is also a dispute as to whether Mattamy is
    entitled to a substantial payment from Downsview under the co-ownership
    agreement they entered into with respect to DHI. The supervising judge ordered arbitration
    of that payment dispute. The outcome of the arbitration will have a material
    impact on the value of Downsviews interest in the project. If Mattamy is
    entitled to the payment, Downsviews interest in the project will be essentially
    worthless. If Mattamy is not entitled, then Downsviews interest will be worth
    millions of dollars, even after the repayment of the DHI Facility.

[4]

Downsview argued before the supervising judge that
    the sale process for Downsviews interest proposed by the Monitor be postponed until
    the question of the disputed payment could be arbitrated. Downsview was (and
    remains) concerned that the uncertainty about the value of its interest in DHI
    will have a chilling effect on the sale process. It is conceivable, Downsview
    says, that no bidder will step forward because of the difficulty they would
    encounter conducting due diligence and ascertaining the probable value of DHI in
    light of the disputed payment. If the sale process fails and no bidder is
    found, Mattamy could, under the proposed terms of the sale process, seize
    Downsviews interest. This would result in a windfall to Mattamy  even if the
    arbitration of the disputed payment were to be resolved in Downsviews favour
    later.

[5]

The supervising judge was persuaded by the
    arguments of the Monitor and decided that the sale process should not be
    postponed until after the arbitration. He highlighted three of the Monitors
    arguments. First, that Mattamy, as the debtor-in-possession lender, was
    entitled to assert its rights over Downsviews interest in DHI in the event
    Downsview did not repay the DHI Facility. Second, that Downsviews obligations
    under the DHI Facility continued to accrue. Third, that the proposed sale
    process could be conducted without knowing the outcome of the arbitration,
    because the process contemplated the bidders submitting two offers  one on the
    basis that Mattamy was entitled to the additional payment and one on the basis
    that it was not.

[6]

The Monitor had considered and rejected
    Downsviews concerns that the proposed sale process would create a chilling
    effect on potential bidders. The Monitor concluded that potential bidders would
    be sophisticated enough to conduct due diligence and assess both possible
    outcomes of the disputed payment issue, and would not be dissuaded or confused
    by being asked to submit separate bids for both possible outcomes. It argued
    that Downsview was merely speculating that potential bidders would be dissuaded
    from bidding.

[7]

The supervising judge agreed with the Monitor that
    Downsviews concerns were speculative and ought to have been given no weight.

[8]

Downsview is seeking leave to appeal to this
    court. It will argue that the supervising judge erred in concluding that its
    concerns were speculative, and erred in not ordering the sale process to be
    delayed until after the conclusion of the arbitration.

[9]

Downsview argues for a stay of the sale process
    until the leave application can be decided. If leave to appeal is denied, then
    that will be the end of things and the sale process can unfold. However, if
    leave is granted, Downsview will seek a motion for a further stay of the order
     and the sale process  pending the disposition of the appeal.

ANALYSIS

[10]

The test for staying an order pending appeal is analogous
    to the test set out in
RJR-MacDonald Inc. v. Canada (Attorney General)
,

[1994] 1 S.C.R. 311, at
    p. 334
for granting an interlocutory injunction: (i) is
    there a serious issue to be determined on appeal; (ii) will the moving party
    suffer irreparable harm if the stay is not granted; and (iii) does the balance
    of convenience favour the granting of the stay:
Belton v. Spencer
, 2020
    ONCA 623, paras. 20-21.

A.

A serious question to be determined on appeal

[11]

The moving party set out four issues that it
    characterized as important, both to the parties and to the CCAA process as a
    whole: (i) the level of deference owed by the court to a Super Monitor; (ii)
    the extent to which a Super Monitor needs to obtain independent evidence to
    support the fairness and viability of a proposed sale process; (iii) whether
    the evidentiary onus regarding fairness and viability of the sale process
    remains with the Super Monitor or shifts to the party objecting to the sale
    process; and (iv) the extent to which a court can rely on a decision that is
    released after the parties hearing.

[12]

Although it may seem unlikely the moving party
    will succeed on a motion for leave to appeal, the first two issues are at least
    arguable, if weak. The latter two issues would be highly unlikely to attract leave.
    First, although there seems to be little reason why a Super Monitor should be
    given less than the substantial deference that a supervising judge gives to the
    decisions and recommendations of a receiver, there is no authority from this
    court settling the issue. Second, the idea that a Monitor must obtain independent
    evidence as to the fairness and viability of the sale process seems premised on
    the idea that an independent party would have greater expertise than the
    Monitor. Were the moving party correct, it would seem to undermine the speed at
    which the process is meant to operate. Third, the question of whether there was
    a shift in evidentiary onus is not a genuine issue  the supervising judge
    found that the Monitor had satisfied the evidentiary burden necessary to
    establish that the sale process was fair and reasonable. Fourth, the question
    of whether the supervising judge ought not to have cited a decision
    subsequently released by this court is of no importance. The decision in
    question did not change the law, and the ground is further weakened by the moving
    partys failure to outline the submissions on the decision that it would have
    made before the supervising judge if it had the opportunity.

[13]

Above all, the moving party faces the high
    hurdle of the standard of review applicable to a decision of the supervising
    judge in a CCAA proceeding. The supervising judge had to determine whether the
    Sale Process ought to commence immediately or wait until the arbitration was
    concluded. The supervising judge applied the appropriate criteria set out in
(Re)
    Brainhunter
(2009)
,
62 C.B.R. (5th) 41 (Ont. Sup. Ct.), at para.
    13,

in deciding whether to order a particular sale process, all of
    which are factual in nature. The findings of the supervising judge will be entitled
    to deference on appeal, should leave be granted. The decision to order the sale
    process was itself made on the recommendations of the Monitor within the
    context of a long-running CCAA proceeding, compounding the nature of the
    deference owed by this court:
Marchant Realty Partners Inc. v. 2407553
    Ontario Inc.
, 2021 ONCA 375, 90 C.B.R. (6th) 39, at para 19.

[14]

Given the weakness of the grounds for appeal
    that have been articulated, as well as the unlikelihood that the moving party will
    satisfy the other grounds of the test for leave to appeal, the moving party is
    unlikely to obtain leave to appeal. This factor weighs in favour of dismissal.

B.

Irreparable Harm

[15]

As the moving party argued, the criterion of
    irreparable harm refers to the nature of the harm rather than its magnitude:
RJR-MacDonald
,
    at p. 341. The question is whether refusal to grant relief would so adversely
    affect the moving partys interests that the harm could not be remedied were
    the moving party to lose the motion but succeed on the appeal:
RJR-MacDonald
,
    at p. 341.

[16]

The moving party argues that if the sale process
    is not deferred until after the arbitration is completed, and Downsviews
    interest in DHI is sold, it will be impossible to know whether a higher
    purchase price could have been obtained had the sale process been deferred. Additionally,
    if the stay motion is not granted and a sale is concluded prior to the appeal
    being heard, the moving partys appeal will have been rendered moot.

[17]

Mattamy argues in reply that the supervising
    judge already adjudicated the issue of whether the sale process constitutes
    irreparable harm to the moving party. The supervising judge dismissed as
    speculative the argument that the sale process would generate a chill that
    would result in a lower sale price. Mattamy argues that if I were to find the
    prospect of irreparable harm, I would be finding that the prospect of a chill
    is more than speculative, and effectively would be reversing a factual finding
    of the supervising judge, contrary to the role of this court on a stay motion:
Hodgson
    v. Johnston
, 2015 ONCA 731, at para. 9.

[18]

In addition, if the sale process is frustrated, Mattamy
    would be entitled, as a result of the moving partys default under the terms of
    the DHI Facility, to simply enforce its security and run another sale process,
    involving additional time and expense.

[19]

I agree with the submissions of Mattamy. There
    is no basis on which I can substitute my evaluation of the efficacy of the sale
    process over that of the supervising judge and find that not granting the stay could
    result in irreparable harm to the moving party.

C.

The balance of convenience

[20]

Determining the balance of convenience requires
    an inquiry into which of the two parties will suffer the greater harm from
    granting or refusing the stay:
RJR-MacDonald
, at p. 342.

[21]

The moving party argues that it will suffer the
    greater harm if a stay is refused, because it owns the 51% interest in DHI at
    issue, and therefore bears the risk of the interest being sold for a lower
    price than what otherwise could have been obtained. It also bears the risk of the
    sale process failing to attract any bids, which could result in Mattamy
    foreclosing on its interest. It argues that Mattamy faces no conceivable harm
    in delaying the sale process until such time as this court decides whether to
    grant leave to appeal.

[22]

Mattamy and the Monitor argue to the contrary that
    Mattamy will suffer irreparable harm if there is further delay, and that the
    balance of convenience favours Mattamy. Mattamy has presented evidence on this
    motion that it has approached eight potential bidders since the sale process
    order was issued, and is concerned that those potential bidders will lose
    interest and faith in the sale process if it continues to be bogged down in
    litigation. Mattamy attests that the current market is favourable for
    investments of this nature because of favourable interest rates. These market
    conditions can change at any time, and prospective bidders can lose faith in
    the process because of procedural delay and decline to participate.

[23]

Comparing the potential commercial prejudice to
    Mattamy from delaying the sale process against what the supervising judge
    concluded to be an absence of genuine prejudice to the moving party in proceeding
    with the sale process prior to the conclusion of the arbitration, I find that
    the balance of convenience favours Mattamy. I would dismiss the motion.

D.

Sealing order

[24]

All parties request a sealing order on the same
    basis and on analogous terms as the sealing order granted by the supervising
    judge, in order to preserve the integrity of the sale process and the pending
    arbitration. I am prepared to grant that order.

E.

Disposition

[25]

The motion to stay is dismissed. The request for
    a sealing order is granted. If parties are unable to agree on an order for costs
    for this motion, I will receive submissions from each party not exceeding three
    pages within 10 days of these reasons.

B.W.
    Miller J.A.

SCHEDULE A

LIST OF AFFILIATED ENTITIES

Urbancorp Power
    Holdings Inc.

Vestaco Homes
    Inc.

Vestaco
    Investments Inc.

228 Queens
    Quay West Limited

Urbancorp
    Cumberland 1 LP

Urbancorp
    Cumberland 1 GP Inc.

Urbancorp
    Partner (King South) Inc.

Urbancorp
    (North Side) Inc.

Urbancorp
    Residential Inc.

Urbancorp
    Realtyco Inc.


COURT OF APPEAL FOR ONTARIO

CITATION: Florovski v.
    Florovski, 2021 ONCA 606

DATE: 20210910

DOCKET: C68917

Strathy C.J.O., Lauwers and Sossin JJ.A.

BETWEEN

Diane
    Florovski

Applicant
    (Appellant)

and

Louie
    Florovski

Respondent
    (Respondent)

Fadwa Yehia and Gabrielle Pop-Lazic, for the appellant

Christina Doris and Sydney Bunting, for the respondent

Heard: September 3, 2021 by video conference

On appeal from the order
    of Justice Richard T. Bennett of the Superior Court of Justice, dated December
    2, 2020, with reasons reported at 2020 ONSC 7486.

REASONS FOR DECISION

[1]

In this family law case, Vallee J. made an order
    requiring the respondent to make full disclosure, building in a daily $500 financial
    penalty for any failure to do so on a timely basis (August 26, 2019 - 2019 ONSC
    5013). The appellant moved to strike the respondents pleading and to enforce
    the penalty, which by then had accumulated to the total of $224,000, even
    though disclosure was relatively complete. The motion judge declined to do so
    and left the proper application of the penalty provision in the order of Vallee
    J. to the trial judge, as all parties acknowledge. He did not err in declining
    to enforce a penalty that appeared to be disproportionate to the degree of
    non-disclosure. Because this was an interlocutory order, it is not appealable
    to this court. The appeal is quashed with costs payable by the appellant to the
    respondent in the amount of $15,000, all inclusive.

G.R. Strathy C.J.O.

P. Lauwers J.A.

L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Panasonic
    Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2021 ONCA 612

DATE: 20210910

DOCKET: C68282

Feldman, Paciocco and Coroza JJ.A.

BETWEEN

Panasonic Eco Solutions Canada Inc.

Applicant (Respondent/
Appellant by way of cross-appeal)

and

XL Specialty Insurance Company

Respondent (Appellant/
Respondent by way of cross-appeal)

W. Colin Empke and Anthony H. Gatensby, for the
    appellant

Jeffrey A. Brown and Callum J. Micucci, for the
    respondent

Heard: March 12, 2021 by videoconference

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated March 9, 2020, with reasons at 2020 ONSC
    1502.

Feldman J.A.:

A.

Introduction

[1]

The issue on this appeal is whether the appellant insurer, XL Specialty
    Insurance Company, has a duty to defend its insured, the respondent Panasonic
    Eco Solutions Canada Inc., against two claims for breach of contract brought
    against Panasonic by a group of companies collectively operating as Solar Flow-Through
    Fund (Solar) in an arbitration proceeding. The insurance policy is a
    professional errors and omissions policy that excludes contractual liability
    claims unless the insured would have had the liability in the absence of the
    contract.

[2]

The application judge held that XL has a duty to defend one of the
    claims but not the other. XL appealed and Panasonic cross-appealed.

[3]

I would allow the appeal and dismiss the cross-appeal. XL has no duty to
    defend either claim.

B.

Background Facts Pleaded by Solar in its Arbitration Claim

[4]

Panasonic entered into two agreements with Solar. The first was an
    Engineering, Procurement, and Construction Agreement (the Engineering
    Agreement) that required Panasonic to procure, construct and install
    roof-mounted solar electricity generating systems. Solar planned to sell the generated
    electricity through 20-year contracts it had entered into with Ontarios
    Independent Electricity System Operator (the IESO). The Engineering Agreement
    required Panasonic to achieve substantial completion by a guaranteed date.
    Panasonic failed to do so, resulting in the IESO cancelling seven of its
    contracts with Solar.

[5]

In the arbitration claim, Solar pleaded that Panasonic failed to achieve
    substantial completion in breach of its contractual obligations and claimed liquidated
    damages of $92,309.62, the sole remedy provided in the Engineering Agreement for
    a contractors failure to reach substantial completion by the guaranteed date.

[6]

Solar further pleaded that following the cancellation, the three parties
     Panasonic, Solar and the IESO  entered into negotiations that resulted in
    the IESO reinstating two of the seven cancelled contracts with Solar, and re-issuing
    the remaining five contracts, but to Panasonic.

[7]

The re-issued contracts were part of an agreement between Solar and
    Panasonic, referred to as the Proceeds Agreement, although it was never
    finalized or signed. According to that agreement, Solar would provide its
    expertise for the five contracts that had been re-issued to Panasonic, and in
    exchange, Panasonic would pay Solar a portion of the proceeds from its sale of
    the projects. Solar anticipated that it would recover, at a minimum, its sunk
    costs of $1,300,000 on the re-issued contracts with the IESO.

[8]

In the arbitration claim on the Proceeds Agreement, Solar claimed
    damages for breach of contract, or in the alternative for negligent
    misrepresentation, or in the further alternative, for unjust enrichment. The
    negligent misrepresentation claim was based on Panasonics ongoing
    representations to Solar, in order to obtain its assistance with the re-issued
    projects, that it would pay Solar in accordance with the Proceeds Agreement,
    but Panasonic then failed to pay. The unjust enrichment claim was based on
    Panasonic enriching itself at Solars expense by retaining the full benefit of
    the sold re-issued projects and depriving Solar of compensation for its
    assistance.

C.

Findings of the Application Judge

[9]

The application judge noted that Panasonic had already received invoices
    from its defence counsel on the arbitration for $492,965.25, that the
    arbitration was continuing and that the defence costs were continuing to
    increase.

[10]

The
    XL policy insuring Panasonic is an errors and omissions policy, formally named
    a Professional and Contractors Pollution Legal Liability Policy. The policy
    covers monetary judgments that Panasonic becomes legally obligated to pay
    because of a claim resulting from an act, error or omission in Professional
    Services. XL agreed that Solars claim arises from the delivery of
    professional services.

[11]

Under
    the policy, XL has a duty to defend any claim against Panasonic to which this insurance
    applies regardless of the merits of the claim. Whether the insurance applies
    depends on the interpretation of the following exclusion and exception to the
    exclusion clause:

This Policy does not apply to any Claim  arising from the Insureds:

1. assumption of liability in a
    contract or agreement; or

2. breach of contract or agreement.

This exclusion does not apply to: (i) liability that the Insured
    would have in the absence of the contract or agreement

[12]

The
    application judge referred to the four principles applicable to an insurers
    duty to defend set out by the Supreme Court of Canada in
Monenco Ltd. v.
    Commonwealth Insurance Co.
, 2001 SCC 49, [2001] 2 S.C.R. 699, at paras. 28,
    33. He summarized these principles as follows:

(a) The duty to defend is distinct
    from, and broader than, the duty to indemnify. There may be a duty to defend
    even if the insurer may not ultimately be required to indemnify the insured.

(b) The court assumes that the pleaded
    facts are true.

(c) The court applies the pleaded facts
    to the policy wording.

(d) The duty to defend arises if the
    underlying complaint alleges any facts that might fall within coverage under
    the policy.

[13]

The
    application judge also referred to the principle that where the pleadings are
    imprecise, the insurers obligation to defend will be triggered where, on a
    reasonable reading of the pleadings, a claim within coverage can be inferred:
Monenco
,
    at para. 31.

(1)

The Claim under the Engineering Agreement

[14]

In
    its claim for liquidated damages under the Engineering Agreement, Solar relied
    on Article 13 of the Agreement which the application judge quoted in part:

[I]f a system has not reached Substantial Completion by the Guaranteed
    Substantial Completion date solely due to Contractors acts or omissions, Owner
    shall be entitled to receive as daily liquidated damages from Contractor

[15]

XL
    argued to the application judge that it had no duty to defend because Solars
    claim for liquidated damages arose out of Panasonics breach of contract in
    failing to achieve substantial completion by the guaranteed date in accordance
    with its contractual obligation, and was therefore excluded by the exclusion
    clause.

[16]

The
    application judge rejected this argument. He reasoned that Solars claim for
    liquidated damages arises out of Panasonics acts or omissions in failing to
    meet the guaranteed date, and Panasonics delay could have been caused by its
    negligence, in which case Solars claims could fall within coverage. It
    depended on the cause of the delay. Further, the fact that Solar did not plead
    negligence did not undermine the analysis as long as it pleaded facts that were
    capable of supporting the tort of negligence:
Non-Marine Underwriters,
    Lloyds of London v. Scalera
, 2000 SCC 24, [2000] 1 S.C.R. 551, at para.
    83.

[17]

The
    application judge was unable to determine on the record before him whether the
    damages Solar sought were attributable to negligence by Panasonic or to
    circumstances beyond Panasonics control. He presumed that this may be one of
    the issues in the underlying arbitration. The application judge noted, as an
    aside, that if it turned out that the delay was due to deliberate acts or
    omissions by Panasonic, as opposed to negligence, then there would be no
    coverage.

(2)

The Claim under the Proceeds Agreement

[18]

In
    its Notice of Arbitration against Panasonic, Solar pleaded that Panasonics
    failure to pay Solars share of the sale proceeds from the reissued projects was
    tactical and meant to sidestep its obligations to pay [Solar] anything for its
    work under the Proceeds Agreement.

[19]

The
    application judge concluded that Panasonics liability under the Proceeds
    Agreement was in effect a debt claim that arose under the contract and could
    not come within the exception to the exclusion. He also rejected the efficacy
    of the negligent misrepresentation and unjust enrichment claims. The negligent
    misrepresentation claim was based on representations by Panasonic that it would
    pay under the agreement, and was therefore based solely on Panasonics breach
    of the Proceeds Agreement by failing to make payments under it. The application
    judge further found that the unjust enrichment claim is excluded under the policy
    because the policy does not cover claims for equitable remedies.

D.

Issues on the Appeal and the Cross-Appeal

[20]

The
    question on the appeal and cross-appeal is the proper interpretation of the XL policy
    and its potential application to the arbitration claim, triggering the duty to
    defend. To answer that question, the following are the issues to be addressed:

1) The standard of review;

2) Principles of interpretation
    and application of insurance policies;

3) The proper interpretation
    of the exclusion clause;

4) Does Solars claim under
    the Engineering Agreement give rise to a duty on XL to defend the claim?

5) Does Solars claim under
    the Proceeds Agreement give rise to a duty on XL to defend the claim?

E.

Analysis

(1)

The Standard of Review

[21]

Both
    parties agree that the appeal involves the interpretation of a standard form
    policy of insurance. As a result, in accordance with the decision of the
    Supreme Court of Canada in
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.,
2016 SCC 37, [2016] 2 S.C.R. 23, the standard of review to
    be applied by this court is correctness. The court summarized the principle at
    para. 4:

4        In my opinion, the appropriate standard of review in
    this case is correctness. Where, like here, the appeal involves the
    interpretation of a standard form contract, the interpretation at issue is of
    precedential value, and there is no meaningful factual matrix that is specific
    to the particular parties to assist the interpretation process, this
    interpretation is better characterized as a question of law subject to
    correctness review.

(2)

Principles of Interpretation and Application of Insurance Policies

[22]

The
    first substantive issue is the principles governing the duty of an insurer to
    defend claims brought against the insured. In
Monenco
, the Supreme Court
    reviewed and restated the principles that govern the duty to defend. The first
    is the rule that the pleading by the claimant against the insured is what
    triggers the duty to defend. If the facts alleged in the pleading would, if
    true, require the insurer to indemnify, then the insurer has the duty to
    defend. The duty to defend is therefore broader than the duty to indemnify
    because it is triggered by the mere possibility of coverage:
Monenco
, at
    paras. 28-29. In addition, the pleadings themselves are to be interpreted
    broadly, with any doubt to be resolved in favour of the insured:
Monenco
,
    at para. 31. In that regard, where the claim alleges facts that might fall
    within coverage, the duty arises:
Monenco
, at para. 33. The required
    analysis is to determine the substance of the claim rather than merely the legal
    label chosen by the claimant.

[23]

The
    Supreme Court reviewed and summarized the general principles of policy
    interpretation that had been set out in previous Supreme Court case law
[1]
in its decision in
Progressive Homes Ltd. v. Lombard General Insurance Co. of
    Canada
, 2010 SCC 33, [2010] 2 S.C.R. 245, at paras. 22-24:

22      The primary interpretive principle is that when the
    language of the policy is unambiguous, the court should give effect to clear
    language, reading the contract as a whole.

23    Where the language of the insurance policy is ambiguous,
    the courts rely on general rules of contract construction. For example, courts
    should prefer interpretations that are consistent with the reasonable
    expectations of the parties, so long as such an interpretation can be supported
    by the text of the policy. Courts should avoid interpretations that would give
    rise to an unrealistic result or that would not have been in the contemplation
    of the parties at the time the policy was concluded. Courts should also strive
    to ensure that similar insurance policies are construed consistently. These
    rules of construction are applied to resolve ambiguity. They do not operate to
    create ambiguity where there is none in the first place.

24      When these rules of construction fail to resolve the
    ambiguity, courts will construe the policy contra proferentem  against the
    insurer. One corollary of the contra proferentem rule is that coverage
    provisions are interpreted broadly, and exclusion clauses narrowly. [Citations
    omitted.]

(3)

The Proper Interpretation of the Exclusion Clause

[24]

The
    policy begins with the coverage clauses and the duty to defend. Clause I.A.1 is
    the coverage clause that provides that XL will pay on behalf of the Insured
    for Professional Loss which the Insured becomes legally obligated to pay
    because of a Claim resulting from an act, error or omission in Professional
    Services.

[25]

The
    following are definitions of some of the terms referred to in the coverage
    clause:

Professional Services: Value Engineering, Field Changes to
    Design, Design/Build or Design performed by or on behalf of the Named Insured,
    and project or construction management services in connection with Contracting
    Services;

Contracting Services: Installation, maintenance, and repair of
    solar power arrays, commercial/residential battery storage, operation and maintenance
    services;

Professional Loss: a monetary judgment, award or settlement of
    compensatory damages

[26]

Under
    Clause VII.C, XL has the right and the duty to defend any Claim against the
    Insured seeking Professional Loss or Pollution Loss to which this insurance
    applies, including the right to select counsel, even if any of the allegations
    are groundless, false or fraudulent. In accordance with the case-law, XL has
    the duty to defend any claim if there is a possibility that there is coverage
    for it under the policy.

[27]

The
    policy contains a number of exclusions. The issue on the appeal is whether the contractual
    liability exclusion in Section IV, including the exception to the exclusion, applies.
    The clause provides:

This Policy does not apply to any Claim, Professional Loss

B. Contractual Liability

arising from the Insureds:

1.

assumption of
    liability in a contract or agreement; or

2.

breach of
    contract or agreement.

This exclusion does not apply to: (i) liability that the
    Insured would have in the absence of the contract or agreement

[28]

Applying
    the principles of interpretation from
Progressive Homes
, the first
    question for the court is whether this exclusion clause is ambiguous. If it is
    not, then the court is to give effect to the clear language, reading the contract
    as a whole. The clause contains both an exclusion and an exception to the
    exclusion. They form part of a whole clause and must be read together.

[29]

Looking
    at the contractual exclusion first, I see no ambiguity. The policy does not
    cover a claim that arises from an insureds assumption of liability in a
    contract or from an insureds breach of contract. Panasonic argues that the
    meaning and effect of this exclusion, read literally, is to nullify the
    coverage under the policy, because the insured always provides its professional
    services under a contract, as it did here.

[30]

This
    was the holding by the United States Court of Appeals for the Seventh Circuit in
Crum & Forster Specialty Insurance Company v. DVO, Inc.
,

939
    F. (3d) 852 (7th Cir. Ct. App. 2019), where the court considered a similarly
    worded exclusion and concluded that it was so broad as to render coverage under
    the policy illusory. However, in that case, unlike in the XL policy, the insurance
    policy did not contain an exception to the exclusion. If there had been no
    exception to the contractual liability exclusion in the XL policy, then in
    accordance with
Cabell v. The Personal Insurance Company
, 2011 ONCA 105,
    104 O.R. (3d) 709, if the exclusion rendered the coverage nugatory, the court
    may not give it any effect as it would not be within the reasonable expectation
    of the parties.

[31]

The
    next issue, therefore, is to determine the meaning and effect of the exception.
    The first question is whether the wording of the exception is also unambiguous.
    It excepts from the exclusion liability that the insured would have in the
    absence of the contract or agreement. In my view, read literally, the
    exception is ambiguous, because the insured would have no relationship with the
    claimant if there had been no contract or agreement between them under which the
    insured provided the professional services to the claimant. If they had no contractual
    relationship, no services would be performed, and there would be nothing to
    insure. That is clearly not what was intended.

[32]

Given
    that ambiguity, the court then applies the principles of contractual
    interpretation summarized in
Progressive Homes
to interpret the
    exception. Those principles direct the court to give the words the
    interpretation that accords with the reasonable expectations of the parties,
    and that provide a realistic result that is consistent with the interpretation
    given to similar policies.
[2]

[33]

Applying
    those principles, the meaning of the exception becomes clear. The policy
    continues to cover professional losses caused by the insured in performing its
    professional functions in its relationship with the claimant that arise in law,
    regardless of the terms of their contract. As the insurer XL submits, these
    would include liability for losses that third parties may suffer as a result of
    an insureds negligence in performing the professional services contract, as
    well as liability to the claimant for negligence in performing the contractual
    obligations under the doctrine of concurrent liability in contract and in tort:
    see
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147;
B.G. Checo
    International Ltd. v. British Columba Hydro and Power Authority
, [1993] 1
    S.C.R. 12; and
Winnipeg Condominium Corporation No. 36 v. Bird Construction
    Co.
, [1995] 1 S.C.R. 85.

[34]

This
    interpretation makes sense from the point of view of both the insured and the
    insurer, and gives effect to both their reasonable expectations, in light of
    the purpose of the professional errors and omissions insurance contract. The
    insurer will be responsible for the losses caused by the insureds negligent
    performance of its professional obligations; but the insurer will not indemnify
    the insured for any extra obligations it undertakes in a contract, or for the
    breach of any extra obligations that it undertakes in a contract.

(4)

Does Solars claim against Panasonic under the Engineering Agreement
    give rise to a duty on XL to defend the claim?

[35]

The
    claim by Solar is found in its Notice of Arbitration. The parties entered into
    the Engineering Agreement in January 2016. Panasonic agreed to procure,
    construct and install the solar electricity generating systems that were the
    subject of the agreements that Solar had with the IESO. Panasonic was
    responsible for achieving substantial completion of the projects by a guaranteed
    date, but it failed to do so in respect of 18 of them, causing the IESO to
    terminate seven of its contracts with Solar, although it later reinstated two
    of them. An arrangement was made among the parties to allow Solar to recoup its
    costs of the other five. That arrangement was the Proceeds Agreement that will
    be discussed later in these reasons.

[36]

Solars
    claim against Panasonic under the Engineering Agreement is for liquidated
    damages in the amount of $92,309.62, based on Panasonics obligation under Article
    13 of the Engineering Agreement to pay liquidated damages if a System has not
    reached Substantial Completion by the Guaranteed Substantial Completion Date
    solely due to Contractors acts or omissions. Article 13 provides in part:

The amounts payable under this Article
    13 shall be [Solar]s sole and exclusive remedy for [Panasonic]s failure to
    achieve Substantial Completion of a System by the Guaranteed Substantial Completion
    Date.

[37]

It
    goes on to state that the agreed amount of liquidated damages is not a penalty
    but represents a genuine pre-estimate of the damages that Solar would suffer as
    a result of the delay.

[38]

Therefore,
    while Panasonics delay was an act or omission in performing its professional
    obligations that caused loss to Solar that would have been covered by the XL
    coverage clause, by agreeing to the liquidated damages clause, Panasonic effectively
    contracted out of its insurance coverage. The exclusion excludes coverage for liability
    arising from breach of contract, and the exception does not apply because the obligation
    to pay liquidated damages is purely contractual and does not otherwise arise.
    Furthermore, because the Engineering Agreement provides that liquidated damages
    are Solars sole remedy, there is no way to read Solars pleading to claim any
    other or additional remedy for the delay.

[39]

A
    liquidated damages clause, such as this one, demonstrates the fairness of the
    contractual exclusion and exception clause of the insuring agreement, when it
    is interpreted in accordance with the reasonable expectations of the parties to
    that agreement. An insured is free to make whatever promises it wishes when it
    contracts to perform services, for example for remedies for its breach.
    Panasonic could have agreed to pay liquidated damages to Solar in any amount as
    part of the consideration for the contract. But it could not bind its insurer
    to that bargain. The insurer is only obligated to cover liability that the
    insured would have had without the contract.

[40]

The
    application judge erred in his application of the test for determining the duty
    to defend. He focused on the fact that Panasonic could be liable for negligence
    in its delay, which would be within coverage, but he failed to apply the
    exclusion and the exception to the exclusion to his analysis of the liquidated
    damages clause. In particular, he failed to note that the claim for liquidated
    damages was Solars sole remedy under its agreement. In other words, Solar had
    contracted out of any claim it may have had against Panasonic for damages for
    negligence. Therefore, it could not make a negligence claim against Panasonic
    in the arbitration.

[41]

The
    application judge therefore erred in law in his interpretation and, as a result,
    in his application of the exclusion clause by finding that XL has a duty to
    defend Panasonic against Solars claim for liquidated damages for breach of the
    Engineering Agreement. No duty to defend arises in respect of this claim.

(5)

Does Solars claim against Panasonic under the Proceeds Agreement give
    rise to a duty on XL to defend the claim?

[42]

The
    arbitration claim states that because of Panasonics delay and IESOs
    cancellation of five of Solars projects, Solars pre-construction costs loss
    was $1.3 million. In order to recoup that loss, Solar agreed with Panasonic
    that if Panasonic entered into agreements with IESO to complete the projects,
    Solar would provide certain services to help achieve timely completion. In
    exchange, Panasonic would pay Solar a portion of the sale proceeds, which Solar
    anticipated would amount to at least $1.3 million. That was the Proceeds
    Agreement, although it was never finalized in writing.

[43]

Panasonic
    completed and sold the projects, but it refused to pay Solar any portion of the
    proceeds of sale. Further, Solar claims that it worked in accordance with the
    Proceeds Agreement to help Panasonic achieve the sales, and that Panasonic regularly
    represented to [Solar] that its efforts in this regard were subject to the
    Proceeds Agreement. Solar claimed negligent misrepresentation, asserting that
    Panasonic owed it a duty of care and that it relied on Panasonics
    representations that it would be paid under the Proceeds Agreement. It also
    claimed that Panasonic enriched itself at the expense of Solar amounting to unjust
    enrichment, as well as breach of contract and breach of its obligations to act
    in good faith.

[44]

The
    application judge found that Panasonics liability under the Proceeds Agreement
    arose out of its assumption of liability under a contract and out of its breach
    of that contract, thereby falling squarely within the contractual exclusion. The
    claim could not come within the exception because Panasonic would not have had
    the liability to Solar to pay it following the sale of the projects, except
    under the contract. It amounted to a debt.

[45]

It
    was XLs position on the application that Solars claims come within the coverage
    clause of the policy but are excluded from coverage by the contractual
    liability exclusion clause. In respect of the Proceeds Agreement, coverage
    would presumably be based on Panasonics acts or omissions in carrying out its
    obligations under the Engineering Agreement that resulted in the delay and in
    Solars loss of its $1.3 million in costs thrown away. However, Solar resolved
    any claim it had in that regard by entering into the Proceeds Agreement.
[3]
It is the Proceeds Agreement that Solar seeks to enforce in the arbitration.

[46]

I
    agree with the application judge that the claim under the Proceeds Agreement is
    essentially for a debt owing. It arises under the contract. There would be no
    claim without the contract. Therefore, if the claim came within the coverage
    under the policy, it is excluded by the contractual liability exclusion clause
    and is not saved by the exception to the exclusion.

[47]

I
    also agree with the application judge that the claims for negligent
    misrepresentation and unjust enrichment do not give rise to a duty to defend.
    The negligent misrepresentation alleged against Panasonic is that it misled
    Solar into working on the promise that it would be paid under the Proceeds
    Agreement. This is based solely on Panasonics failure to make payments under
    the Proceeds Agreement, in breach of that contract. The contractual liability
    exclusion is triggered, and the exception to the exclusion does not apply. As
    the application judge found, the unjust enrichment claim is an equitable claim
    that is specifically not compensable under the XL insurance policy.

F.

Conclusion

[48]

I
    would allow the appeal and set aside the order of the application judge that
    found a duty on XL to defend the claim under the Engineering Agreement. I would
    dismiss the cross-appeal and uphold the order of the application judge that
    there is no duty on XL to defend the claim under the Proceeds Agreement. XL is
    entitled to its costs of the appeal fixed in the agreed amount of $12,500
    inclusive of disbursements and HST.

Released: September 10, 2021 K.F.

K. Feldman
    J.A.

I agree. David
    M. Paciocco J.A.

I agree. S. Coroza J.A.

[1]

Co-operators Life Insurance Co. v. Gibbens
, 2009 SCC 59, [2009] 3 S.C.R.
    605, at paras. 20-28;
Jesuit Fathers of Upper Canada v. Guardian Insurance
    Co. of Canada
, 2006 SCC 21, [2006] 1 S.C.R. 744, at paras. 27-30;
Scalera
,
    at paras. 67-71;
Brissette Estate v. Westbury Life Insurance Co.
, [1992]
    3 S.C.R. 87, at pp. 92-93; and
Consolidated-Bathurst Export Ltd. v. Mutual
    Boiler & Machinery Insurance Co.
(1979), [1980] 1 S.C.R. 888, at pp.
    899-902.

[2]

No case was brought to the courts attention where the same or
    a similar contractual liability exclusion and exception clause had been
    interpreted by a court.

[3]

I also note that because the liquidated damages clause provides
    the sole and exclusive remedy for Panasonics delay, it appears Solar has no
    claim for the $1.3 million lost costs under the Engineering Agreement if they
    arose from Panasonics delay in completion.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Kuleba, 2021 ONCA 611

DATE:  20210910

DOCKET: C68069

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Kuleba

Appellant

No one appearing for the appellant

Nicole Rivers, for the respondent

Heard and released orally: September 8, 2021 by
    video conference

On appeal from the judgment of Justice Stephen T. Bale of
    the Superior Court of Justice, dated January 15, 2020.

REASONS FOR DECISION

[1]

Mr. Kuleba did not appear. The appeal was listed peremptory to Mr.
    Kuleba. The Crown sent Mr. Kuleba several letters reminding him that his appeal
    was listed to be argued today. It received no response. It also notified Mr.
    Kuleba that if he failed to attend it would ask that his appeal be dismissed as
    abandoned.

[2]

The Crown advised that Mr. Kuleba did not attend on the second day of
    trial for the criminal proceeding which gave rise to the application for
habeas
    corpus
at issue on appeal and there is a warrant for his arrest.

[3]

This appeal is dismissed as abandoned.

Alexandra Hoy J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Asghar, 2021 ONCA 615

DATE: 20210910

DOCKET: M52345 &
    M52420

Benotto, Brown and Harvison Young JJ.A.

BETWEEN

Sajjad Asghar

Applicant (Moving Party)

and

Her Majesty the Queen in Right of Ontario

Respondent

Sajjad Asghar, in person

Karlson Leung, for the respondent

Heard: September 9, 2021 in writing

ENDORSEMENT

[1]

There are
two motions before the court: (i) the
    appellants request for a panel review of the order of Pepall J.A. dated April
    19, 2021; and (ii) the respondents r.  2.1.01(1) motion to dismiss the
    appeal as frivolous, vexatious and an abuse of process of the court. These
    reasons deal with both motions.

[2]

The appellant commenced an application against
    the respondent claiming that the respondent is responsible for a vast community
    of organized crime which has threatened him and used heavy volumes of hired
    women [who] have sabotaged [his] right to lawfully making a family besides
    finding any quality matrimonial connections. These women especially the white
    women have destroyed his right to love and sex. He sought an investigation
    into these allegations, and arrest of the perpetrators.

[3]

Myers J. dismissed the application on a r. 21
    motion, concluding that:

this application
    cannot succeed. In addition, this is a repeat of prior efforts by Mr. Asghar to
    seek similar relief at an earlier date.

[4]

Mr. Asghar sought to appeal to this court and
    moved for an order extending the time to appeal the order of Myers J. On April
    19, 2021, Pepall J.A. dismissed his motion concluding that the justice of the
    case does not favour an extension because the merits of the appeal are
    seriously lacking; the conclusion of Myers J. that the application could not
    succeed is unassailable; and the application is clearly frivolous,
    vexatious, and an abuse of process.

[5]

Mr. Asghar seeks a panel review of the order of
    Pepall J.A.

[6]

A panel review of a chambers judge decision is
    not a new determination. Here, the chambers judge made a discretionary
    decision. That decision is entitled to deference. The reviewing panel will not
    interfere absent legal error or misapprehension of a material fact. (See:
Machado
    v. Ontario Hockey Association
, 2019 ONCA 210, at para.
    9).

[7]

We see no error in principle or misapprehension
    and thus no basis to interfere with the decision.

[8]

Further, we agree with the chambers judge that the
    appeal is clearly frivolous, vexatious and an abuse of process. On this basis,
    the review motion is dismissed, and the r. 2.1 motion is allowed.

M.L. Benotto J.A.

David Brown J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Afifi (Re),
    2021 ONCA 608

DATE: 20210913

DOCKET: C68824

Paciocco, Nordheimer
    and Coroza JJ.A.

IN THE MATTER OF:
    Shehab Afifi

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Deborah Krick, for the respondent, Attorney General of
    Ontario

Leisha Senko, for the respondent, Person in Charge of the
    Centre for Addiction and Mental Health

Heard: August 30, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board dated October 15, 2020, with reasons dated November 2, 2020 and
    reported at
Afifi (Re)
, [2020] O.R.B.D. No. 2245.

REASONS FOR DECISION

[1]

The appellant, Shehab Afifi, appeals the disposition of the Ontario
    Review Board (Board) dated October 15, 2020, detaining him at the Centre for
    Addiction and Mental Health (CAMH or the hospital) on a general unit with
    privileges up to community living in approved accommodation. At the conclusion
    of the hearing, we dismissed the appeal with reasons to follow. We now provide
    our reasons.

[2]

In November 2006, the appellant was found not criminally responsible on
    account of mental disorder on charges of mischief under $5,000 (x2), assault,
    and uttering threats. He has been diagnosed with schizophrenia, cannabis use
    disorder (in partial remission), alcohol use disorder (in sustained remission),
    and antisocial personality disorder.

[3]

He was subject to a detention order and is placed at CAMH. In 2008, he
    moved back into the community into an independent apartment. Over the years, he
    has been readmitted back into CAMH and then discharged back into his apartment.
    However, the appellant has acted violently on several occasions since his 2006
    arrest. In March 2019, the appellant was alleged to have assaulted an elderly man
    by punching him in the stomach. After the alleged incident, he was admitted to
    the hospital and tested positive for cannabis shortly after. He was eventually
    discharged on April 8, 2019 but readmitted to CAMH only a few days later on
    April 16, 2019. This was after he arrived late for an appointment with his
    treatment team and appeared to be disheveled, irritable, and disorganized. After
    readmission, he was reported to be clearly suffering from symptoms of
    psychosis. Although he denied any recent cannabis use, the appellants urine
    drug screens were positive for cannabis on April 16 and 17, 2019.

[4]

At his latest review hearing, held September 25, 2020, the Board
    unanimously held that the appellant continues to pose a significant threat to
    the safety of the public and that a conditional discharge would not be
    sufficient to ameliorate that risk given the difficulty to quickly bring him
    back into hospital when he decompensates. The Board issued a continuation of
    the current detention order at CAMH with privileges up to community living in
    approved housing. The effect of the detention order is that the appellant will
    lose his apartment where he has lived for the last 11 years, subject to many
    readmissions to the hospital. CAMH has taken steps to inform the appellants housing
    provider that it no longer approves of the appellants apartment as a suitable
    housing option because of the lack of sufficient supervision.

[5]

The appellant advances several arguments.

[6]

First, the appellant contends that the Boards disposition is not the
    least onerous, least restrictive disposition and submits that the evidence
    before the Board demonstrated that any risk factors could be safely managed
    under the rubric of a properly crafted conditional discharge that would allow
    him to return to his independent apartment.

[7]

We do not accept the appellants argument.

[8]

Considerable deference is owed to the Boards decision. In our view, the
    Boards reasoning process and outcome in this case reflects an internally
    coherent and rational chain of analysis and is justified in relation to the
    facts and the law.

[9]

The evidence before the Board included the lengthy history of the appellants
    decompensation and his assaultive behaviour. Dr. Kung testified before the
    Board on behalf of the appellants treatment team. She opined that the
    appellants history of hospitalization, recent record of violent activity, and
    substance abuse issues demonstrate the need for close and continued 24-hour supervision.
    It was open to the Board to accept her evidence and conclude that this could
    only be accomplished by way of a detention order.

[10]

Second, the appellant argues that, at para. 60 of its reasons, the Board
    recognized that the staff at the appellants independent apartment could have
    managed his risk when it stated, [T]he Board questions whether or not the
    treatment team has explored utilizing [the independent apartment] community
    workers to monitor [the appellant] in his current apartment. The appellant
    submits that, in light of these comments, the decision to impose a detention
    order is not the least onerous and least restrictive disposition because the
    Board identified a potential alternative to the supervision offered by CAMH and
    was required to explore this further.

[11]

In our view, the Boards comments at para. 60 were not findings by the Board
    that the independent apartment could provide adequate supervision in the
    community. The Board permitted a social worker at CAMH to testify at the
    hearing and provide information about what support community workers can offer
    for independent living in the apartment. That social worker testified that the
    present arrangement is for community workers to do weekly property checks to
    ensure that there is no destruction to the apartment. We view the comments at para.
    60 as merely the Boards observations that, moving forward, if supervised
    housing approved by CAMH was not available within a reasonable time, then CAMH
    should potentially consider independent living in an apartment with the
    assistance of the community workers. We see no breach of the Boards
    inquisitorial duties. The issue was explored by the Board through the testimony
    of the social worker but, ultimately, the Board accepted Dr. Kungs evidence
    that a high degree of supervision is required at this time.

[12]

Finally, the appellant contends that the Board erred when it held that
    if left to his own devices he would not recognize his own decompensation,
    and would not voluntarily return to hospital which renders the
Mental
    Health Act
ineffective to treating his psychotic episodes. The appellant
    argues that a conditional discharge would still subject him to his treatment
    team and that it is simply wrong to suggest that the
Mental Health Act
(
MHA
)
    is rendered ineffective if the appellant is discharged to the community because
    the committal provisions under the
MHA
are available to effect the
    return of the appellant to the hospital for assessment and admission.

[13]

We do not accept this argument. We acknowledge that the ease of
    returning an individual to the hospital will not always justify a detention
    order and cannot be imposed as a matter of convenience:
Valdez (Re)
,
    2018 ONCA 657, at paras. 22-23. However, in our view, it was open to the Board to
    find that the
MHA
was inadequate to manage the appellants risk.
    Contrary to the appellants submissions, the Board did assess the evidentiary
    record and did not rely solely on the ease of returning an individual to a
    hospital to justify the detention order. The Board also noted that the
    appellant does not recognize his decompensation, would not voluntarily return
    to the hospital, and demonstrates a high risk of physical violence when he decompensates.
    The Boards finding, that a conditional discharge would not ameliorate this
    risk given the difficulty to quickly bringing the appellant back into hospital
    under the
MHA
, must be read in this context.

[14]

For these reasons, the appeal was dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

S. Coroza J.A.


WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)      any of the following
    offences;

(i)       an offence under
    section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172,
    172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this
    Act, as it read at any time before the day on which this subparagraph comes
    into force, if the conduct alleged involves a violation of the complainants
    sexual integrity and that conduct would be an offence referred to in
    subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014,
    c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or
    more offences being dealt with in the same proceeding, at least one of which is
    an offence referred to in paragraph (a).

(2)      In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection
    (2.2), in proceedings in respect of an offence other than an offence referred
    to in subsection (1), if the victim is under the age of 18 years, the presiding
    judge or justice may make an order directing that any information that could
    identify the victim shall not be published in any document or broadcast or
    transmitted in any way.

(2.2) In proceedings in respect
    of an offence other than an offence referred to in subsection (1), if the
    victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)      In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty,
    an order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ajimotokan,
    2021 ONCA 616

DATE: 20210913

DOCKET: C68557

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samsuldeen Ajimotokan

Appellant

Samsuldeen Ajimotokan, acting in person

Philippe Cowle, for the respondent

Heard and released orally: September 9, 2021 by
    video conference

On appeal from the conviction entered by Justice John B.
    McMahon of the Superior Court of Justice on April 12, 2018, and from the
    sentence imposed on October 2, 2019.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for sexual assault, his designation
    as a dangerous offender, and the imposition of an indeterminate sentence.

[2]

At trial there was no issue that the sexual interaction took place. Further,
    in oral argument, trial counsel for the appellant conceded that the complainant
    subjectively was not consenting to the sexual acts. The complainant testified
    that she allowed the appellant to do the things he did as she had a subjective belief
    she would be harmed if she resisted and she remained passive throughout.

[3]

The issue at trial was whether the Crown had proved that the defence of
    honest, but mistaken belief, in communicated consent did not apply. The trial
    judge was satisfied, beyond a reasonable doubt, that the defence did not apply.

[4]

On appeal, the appellant argues that the complainant was not credible
    and that the complainant threw him under the bus.

[5]

The trial judge found the complainant to be credible and reliable, and
    accepted that she remained passive throughout because of her fear. He provided
    careful reasons for so finding. That finding is entitled to deference.

[6]

In any event, silence or passivity is not communicated consent. There
    must be words spoken or conduct that demonstrates a willingness to engage in
    sexual activity.

[7]

There is no basis for this court to interfere with the appellants
    conviction.

[8]

As to the sentence appeal, the appellant submits that: the other sexual
    assaults, of which he was previously convicted, were not related to this
    incident; the fact that Dr. Pearce opined that he suffered from paraphilic coercive
    disorder shows that Dr. Pearce was biased and his evidence should not have been
    accepted; and the trial judges finding that he had not responded at all to
    treatment in the past was not correct.

[9]

This was the appellants fourth sexual assault in less than five years.
    Some of those offences occurred while he was on bail or parole. It does not
    matter that the offences were discrete incidents.

[10]

The trial judge did not accept Dr. Pearces opinion that the appellant
    suffered from paraphilic coercive disorder. The trial judge accepted the
    evidence of both Dr. Pearce and the defence forensic psychiatrist, Dr. Rootenberg,
    that the appellant suffered from unspecified personality disorder, with
    antisocial and narcissistic personality traits. The sentence the trial judge
    imposed was based on that diagnosis.

[11]

The trial judges finding that the accuseds sexual misconduct challenges
    are intractable and he is unable to surmount them, even with the proposed
    treatment plan was fully supported by the record.

[12]

The sentence imposed was reasonable and not tainted by error of law.
    There is no basis for this court to interfere.

[13]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal as to sentence is dismissed.

Alexandra Hoy J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2021 ONCA 618

DATE: 20210913

DOCKET: C67987

Tulloch, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carly Anderson

Appellant

Howard L. Krongold, for the appellant

Gavin MacDonald, for the respondent

Heard: September 8, 2021 by videoconference

On appeal from the sentence imposed on January 28, 2020 by
    Justice Peter Doody of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Ms. Anderson seeks leave to appeal the sentence of six months imposed on
    her, following her conviction for aggravated assault. At the conclusion of the
    hearing, we granted leave to appeal and reduced the sentence to time served,
    with reasons to follow. We now provide our reasons.

[2]

This was a case of what is commonly referred to as "road
    rage". The appellant, who was 24 years old at the time, was driving on a
    busy road in Ottawa on August 7, 2018. She cut off the car driven by the
    complainant and abruptly stopped about three car lengths in front of her, causing
    the complainant to apply her brakes and stop her car quickly.

[3]

The appellant got out of her car and began to move toward the
    complainants car. The complainant, who was 66 years old, got out of her own
    car and walked, with the support of a cane, towards the appellant. She came
    very close to the appellant. The appellant pushed or shoved the complainant,
    causing her to fall to the roadway. The complainant sustained injuries from the
    fall that required hospitalization.

[4]

After the complainant fell to the ground, the appellant bent down towards
    her. The appellant then got in her car and drove away. She turned herself in to
    police the next day.

[5]

Appellate courts may interfere with a sentence if it is demonstrably
    unfit or if the trial judge has committed an error in principle, failed to
    consider a relevant factor, or erroneously considered aggravating or mitigating
    factors, and such an error had an impact on the sentence:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 43-44. In our view, the sentencing
    judge erred in his reliance on the decision of this court in
R. v. Rocchetta
,
    2016 ONCA 577 as the benchmark for his assessment of the appropriate sentence
    to be imposed in this case. The two cases are not comparable. This error led
    the sentencing judge to impose a harsher sentence than was warranted given the
    surrounding circumstances.

[6]

In reaching that conclusion, we recognize that the complainant suffered
    serious injuries, and we recognize that the altercation arose out of a road
    rage situation. On that latter point, we agree with the sentiment that acts of
    road rage must be denounced in clear and unmistakable terms.

[7]

However, achieving the objectives of general deterrence and denunciation
    did not require a jail sentence of the length imposed by the sentencing judge,
    given the particular circumstances of the appellant. In that regard, we emphasize
    the appellants very troubled upbringing, the fact that the sentencing judge
    had concluded, in his reasons for conviction, that two of the three factors in
    support of self-defence were made out in this case, and the very positive
    efforts that the appellant has made, since her conviction, to improve her life,
    including her success at Algonquin College and her efforts to obtain
    counselling.

[8]

We were advised that the appellant has spent 38 days in custody during
    the course of these proceedings. In our view, that period of incarceration is
    sufficient to drive home to the appellant, and to others, that instances of
    road rage will be dealt with seriously. Further incarceration will not advance
    the objectives of general deterrence and denunciation in this case. Those
    objectives are achieved as much by the fact of incarceration as by the length
    of that incarceration.

[9]

It is for these reasons that we granted leave to appeal and reduced the sentence
    to time served. The two-year probation order along with the other ancillary
    orders remain in effect.

M. Tulloch J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Forest Meadows Developments Inc.
    v. Shahrasebi, 2021 ONCA 620

DATE: 20210914

DOCKET: C68789

Benotto, Brown and Harvison
    Young JJ.A.

BETWEEN

Forest
    Meadows Developments Inc.

Applicant (Appellant)

and

Narges Shahrasebi

Respondent (Respondent)

Mark A. Ross and Vladimira M. Ivanov,
    for the appellant

Eddy Battiston and Harold Rosenberg,
    for the respondent

Heard: September 9, 2021 by video conference

On
    appeal from the judgment of Justice Jana Steele of the Superior Court of
    Justice, dated September 3, 2020.

REASONS FOR DECISION

[1]

The appellant Forest Meadows Developments Inc. appeals the order by the
    application judge dismissing its application for a declaration that the
    respondent was in breach of an Agreement for Purchase and Sale (APS), which
    was an agreement for the purchase and sale of land and a custom pre-built
    dwelling on the land.

[2]

Briefly, the dispute arises out of the following circumstances.
    The APS was signed in March 2017. It provided that the closing would take place
    on March 25, 2018. Construction began in the fall of 2018. In 2019, there were
    a number of extensions of the closing date occasioned by the appellant which
    were contemplated by the APS. There was another extension to August 29, 2019,
    which the application judge found to have been requested by the appellant in
    return for a discount on certain upgrades. In May 2019, the parties executed an
    amendment to the APS which extended the closing date to October 29, 2019. That
    closing did not take place. The respondent argues that she was ready to close
    on that date despite the fact that her house had not yet sold and that the
    failure of the appellant to close on that date was a breach of the APS
    entitling her to terminate the contract and receive back her deposit and all
    monies paid. The discussions in the months leading up to October 29, 2019, were
    attempts to negotiate a better price for the upgrades and possibly a price reduction.

[3]

The appellant argues that it had relied on the respondents
    representations that she would not be able to close, slowing down construction
    and preparation for the final appraisal, which would be necessary to close and
    a prerequisite for the respondent to obtain the financing that had been
    preapproved.

[4]

The appellant commenced this application arguing that the
    respondent had made representations that she would not close on October 29
    because her house was not selling at the price necessary to finance the
    purchase of the new property, that she was in anticipatory breach, and that the
    appellant was entitled to terminate the contract.

[5]

In dismissing the application, the application judge found that there
    had been no anticipatory breach or representations that could have given rise
    to reasonable reliance by the appellant.

[6]

All the issues raised by the appellant turn on one central
    question of fact: did the respondent say or represent that she would not be
    able to close on October 29, 2019? The application judge expressly found that
    she did not. This finding of fact attracts a high level of deference and we see
    no palpable or overriding error to justify the intervention of this court.

[7]

While the appellant also raises certain extricable issues of law,
    such as whether the APS could be amended by subsequent representations or
    conduct on the part of the respondent, these also depend on finding that the
    representation that the respondent could not close on October 29 was actually
    made.

[8]

The application judges findings were well grounded in the record before
    her. She found that while the respondent had certainly communicated the
    difficulty she was having selling her house for the price necessary, she had
    never said that she would not be able to close on that date.

[9]

There is no basis to interfere with this key finding on the part
    of the application judge. Without it, there was no representation that the
    respondent would not be able to close, and the question of whether the
    appellant reasonably relied does not arise. Nor can the question of whether an
    oral contract or representations could amend the APS in light of the entire
    agreement clause arise as the application judges finding was that there was no
    agreement to extend the October 29 closing date, oral or otherwise.

[10]

We also find that there is no merit to the
    argument that the application judge erred in failing to give weight to the
    September 12 meeting between the respondent, her husband, and Mr. Tiz, a
    representative of the appellant, which was surreptitiously recorded by the
    appellant. She gave good reasons for so declining, namely, that there was ample
    written correspondence between the parties and their counsel and that there was
    clearly unfairness where the appellant knew they were taping the recording
    while the respondent and her husband did not.

[11]

Lastly, the application judge gave clear reasons
    for the findings of fact made.

[12]

The appeal is dismissed.

[13]

The appellant shall pay the respondent her partial indemnity
    costs of the appeal fixed in the amount of $27,926, inclusive of disbursements
    and applicable taxes.

M.L.
    Benotto J.A.

David
    Brown J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    James Henry Ting (Re), 2021 ONCA 622

DATE: 20210914

DOCKET:
    M51957 (C68764)

Lauwers
    J.A. (Motion Judge)

In
    the Matter of the
Bankruptcy and Insolvency Act
,

R.S.C.
    1985, c. B-3, as amended

And
    in the Matter of a Proceeding in the Hong Kong Special

Administrative
    Region Re: James Henry Ting (in Bankruptcy)

Application
    of Cosimo Borrelli and Jacqueline Walsh of

Borrelli
    Walsh Limited under Section 272 of the
Bankruptcy

and
    Insolvency Act
, R.S.C., 1985, c. B-3, as amended

Andrew Rogerson and Arash Jazayeri, for
    the moving party, Andrew Henry Ting

Ilan Ishai and Adam Zur, for the
    responding parties, Cosimo Borrelli and Jacqueline Walsh

Heard: September 7, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is an
application for leave to appeal under
    s. 193(e) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985
, c. B-3, r. 31(2) of the
Bankruptcy
    and Insolvency General Rules
,

C.R.C., c. 386,
and r.

61.03.1 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. The order sought
    to be appealed found the applicant, Andrew Henry Ting, in contempt of court for
    failing to attend at an examination as required by the order of Penny J. dated
    January 15, 2019, in aid of the foreign bankruptcy of his father, James Henry
    Ting. For the reasons that follow, the motion is dismissed.

The Factual Background

[2]

The background facts were set out by the motion judge who
    dismissed Andrew Henry Tings request for a stay of the bankruptcy proceeding
    dated October 5, 2020 (2020 ONSC 5955). The Superior Court recognized
the bankruptcy proceeding in Hong Kong against Andrew Henry Tings
    father, James Henry Ting, as the foreign main proceeding" under s. 268 of
    the
BIA
.

The recognition order was granted on October 6, 2017
    and it recognized the Trustees as a foreign representative" under s. 268
    of the
BIA.

[3]

On August 18, 2018, the Trustees moved to
    enforce a letter of request from the Hong Kong Court requesting assistance to
    require Andrew Henry Ting to be examined and to produce documents. Penny J.
    made the requested order on January 15, 2019. The order required Andrew Henry
    Ting to produce certain documents within 14 days and to attend at any
    examination. He unsuccessfully attempted to appeal Penny J.s order to this
    court.

[4]

The contempt proceeding that is the subject of
    this proposed appeal (2020 ONSC 5976) was heard immediately after the
    stay motion, and the reasons for both matters were issued on the same day.

The Motion for Leave to Appeal

[5]

The parties agree that the test for leave to
    appeal under s. 193 (e) of the
BIA
was set out by Blair J.A. in
Business
    Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115
    O.R. (3d) 617. The three-part test is whether: the proposed appeal raises an
    issue that is of general importance to the practice in bankruptcy/insolvency
    matters or to the administration of justice as a whole, and is one that the
    court should therefore consider and address; it is
prima facie
meritorious;
    and it would not unduly hinder the progress of the bankruptcy/insolvency
    proceedings.

[6]

Andrew Henry Ting raises two substantive issues
    to be pursued in the proposed appeal: the refused recusal motion; and personal
    service of the contempt proceedings on him.

The Refused Recusal Motion

[7]

Andrew Henry Ting argues that the motion judge
    erred in failing to recuse herself after hearing damning descriptions of the
    conduct and character of the bankrupt, James Henry Ting, during argument.
    Counsel for the Trustees referred to the bankrupt as a thief, and someone who
    engaged in fraudulent and criminal activity and who demonstrated a
    consistent pattern of disobedience. Counsel for Andrew Henry Ting expressed the
    concern, as he did to the motion judge, that she would be unable to avoid
    imputing his fathers alleged conduct and character to him.

[8]

To this suggestion, the motion judge responded:

[16] The basis for the responding partys
    request for my recusal is his subjective view on how I could be influenced. He
    perceives that what he sees as emotive language and exaggerations regarding the
    Bankrupts character, which could deny him safeguards that would protect him
    from wrongful conviction, could lead to an unfair result for him.

[17] In my view, no informed person, viewing
    the matter realistically and practically, would conclude that a judge would
    impute to the son a negative description of his fathers character, which is
    irrelevant to the determination of the issue at hand. The issue to be
    determined on the Contempt Motion is straightforward: is the responding party
    in breach of the January 15, 2019 Order and if so, should he be found to be in
    contempt? This question can be determined, objectively, on the record.

[9]

There is no merit to the suggestion that the
    motion judge would be unable to disabuse herself of the prosecutors rhetorical
    flourishes. We routinely expect this disposition from judges. The motion judge
    properly instructed herself, and counsel raised nothing in her reasons to
    suggest that she did not meet this expectation.

The Contempt Proceeding

[10]

The second substantive issue is whether the motion judge
erred in law at paras. 38-39 of her decision by dispensing with the
    requirement of r. 60.11(2) that requires personal service on the alleged
    contemnor and not by an alternative thereto, unless the court orders otherwise.

[11]

The parties agree that the test for civil
    contempt was set by the Supreme Court in
Carey v. Laiken
, 2015 SCC 17,

[2015] 2 S.C.R. 79 at paras. 32-35. The
    moving party must prove beyond a reasonable doubt that: a) the order alleged to
    have been breached must state clearly and unequivocally what should and should
    not be done; b) the party alleged to have breached the order must have had actual
    knowledge of it; and c) the party allegedly in breach must have intentionally
    done the act the order prohibits or intentionally failed to do the act the
    order compels.

The governing precedent from this court on the issue of
    personal service, which dovetails with the
Carey
test, is
Susin v.
    Susin
, 2014 ONCA 733, 379 D.L.R. (4th) 308
per
Blair J.A. at
    paras. 2832 and 3336. At para. 28, Blair J.A. noted:

Procedural protections on motions for civil
    contempt are generally strictly enforced. This includes the requirement that
    the materials be served personally on the party sought to be found in contempt:
    see
Rules of Civil Procedure
, r. 60.11(2). However, procedural
    protections that are meaningless in a particular case ought not to trump
    substantive compliance where the purpose of personal service has been met in
    the circumstances and there has been no substantial wrong or miscarriage of
    justice.

[12]

In considering the
Carey
test, the
    motion judge noted, at para. 32:

I am also satisfied that the second prong of
    the test is met. The responding party had actual knowledge of the January 15, 2019
    Order. Though the responding party may not have been served with the January
    15, 2019 Order, actual knowledge may be inferred from the circumstances. The
    responding partys counsel assisted in the drafting of the Order and consented
    to its form and content.

[13]

She added, at para. 37: Further, based on the
    email exchanges between counsel to the responding party and counsel to the
    Trustees, I am satisfied that the responding party had no intention of
    attending the examination, regardless of the pandemic.

[14]

Finally, the motion judge noted, at para. 39:

The Contempt Motion came to the attention of
    the responding party
and he responded to it.
Rule
    60.11 is aimed at ensuring that the alleged contemnor has notice of the
    contempt proceeding. The rule does allow for an alternative to personal service
    by court order. Such court order was not obtained, but I am satisfied that the
    responding party had adequate notice of the Contempt Motion. [Emphasis added.]

[15]

The motion judge knew, as she noted in para. 40,
    that the burden on the Trustees was to prove contempt beyond a reasonable
    doubt. To paraphrase Blair J.A. in
Susin
, there was substantive
    compliance here because the purpose of personal service has been met in the
    circumstances and there has been no substantial wrong or miscarriage of
    justice.

[16]

There is nothing in this matter that rises to
    the level required for leave to be granted as specified in
Pine Tree
    Resorts.
The proposed appeal does not raise an issue that is of general
    importance to the practice in bankruptcy/insolvency matters nor to the administration
    of justice as a whole, and is not one that the court should therefore consider
    and address; there is no
prima facie
merit to the proposed appeal; and
    giving leave to appeal in these circumstances would unduly hinder the progress
    of the bankruptcy/insolvency proceedings.

[17]

It is time for this tiresome cat and mouse game
    to end.

[18]

Costs to the responding parties in the agreed
    amount of $7,500, inclusive of HST and disbursements.

P.
    Lauwers J.A.