COURT OF APPEAL FOR ONTARIO

CITATION: 1317424 Ontario Inc., v. Chrysler Canada Inc., 2015
    ONCA 104

DATE: 20150213

DOCKET: C59238

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Mark French, a Trustee of the Chippewas of the
    Thames Land Claim Trust, on behalf of 1317424 Ontario Inc. and Mark French, a
    Trustee of the Chippewas of the Thames Land Claim Trust

Plaintiffs (Appellants)

and

Chrysler Canada Inc.
, Benchmark Real
    Estate Services Canada Inc., Charles Brudenell, George Murray Shipley &
    Bell, Frank Fazio, RSJ Holdings Inc. and The DAndrea Group Inc.

Defendants (
Respondent
)

and

176695 Canada Inc., Chester Engineers, Inc.
    (a.k.a. The Chester Engineers) and N.A. Water Systems, LLC

Third Parties

Raymond F. Leach and Michael A. Polvere, for the
    appellants

Barry Bresner, for the respondent, Chrysler Canada Inc.

Jennifer Fairfax and Patrick G. Welsh, for the third
    party N.A. Water Systems, LLC

Heard: January 14, 2015

On appeal from the order of Justice Thomas A. Heeney of
    the Superior Court of Justice, dated August 6, 2014, with reasons reported at
    2014 ONSC 4573, 86 C.E.L.R. (3d) 139.

ENDORSEMENT

[1]

The appellants sought to amend their statement of claim to include a
    claim in nuisance. The motion was dismissed on the ground that on the facts
    pled, the claim in nuisance is not a viable claim in law. The appellants argue
    that the scope of nuisance is not finally settled, and that the claim should
    therefore be allowed to proceed. The specific issue is whether a claim in
    nuisance can be made when the nuisance emanates from the plaintiffs own land
    and not from outside that land.

[2]

The land in issue was operated as a foundry and asbestos insulation
    producer for several decades, resulting in significant contamination. It was
    acquired by Chrysler in 1987 and decommissioned to then-current standards. In
    1989, Chrysler sold the land to The DAndrea Group Inc., with a certificate
    from the Ministry of the Environment confirming that the land had been
    decommissioned in accordance with existing regulatory requirements. The
    DAndrea Group in turn sold the land to the appellants in 1999. The appellants
    suit against Chrysler is for negligence in decommissioning the property and
    failing to remediate it, negligent misstatement that Chrysler had properly
    remediated the land, and the creation of a stigma to the land.

[3]

The appellants later sought to amend to add a claim against Chrysler for
    nuisance by failing to remediate, causing an unreasonable interference with the
    use and enjoyment of the land. That amendment was denied by the motion judge. He
    concluded that, to form a tenable nuisance claim, the interference with the use
    and enjoyment of the claimants land must originate outside the plaintiffs
    land. See the Honourable Allen M. Linden and Bruce Feldthusen,
Halsburys
    Laws of Canada: Torts
, 2012 Reissue (Markham: LexisNexis Canada Inc.,
    2012), at p. 243. One cannot therefore have a claim in nuisance for the
    unreasonable use of ones own land.

[4]

The appellants relied on
Morguard Real Estate Investment Turst v.
    ERM Canada Corp
., 2012 ONSC 4195, 68 C.E.L.R. (3d) 175,

a recent pleadings
    decision of the Ontario Superior Court of Justice. In that case, three property
    owners hired a company to remediate contamination on their properties. The
    contamination originated on one of the properties and spread onto the two
    others. Two of the owners, including the owner of the originally contaminated
    property, then sued the remediation company in nuisance for failing to
    remediate the land. The issue addressed by the court was whether a remediation
    company that did not own or occupy land adjoining the plaintiffs land could be
    sued in nuisance. The court declined to strike the nuisance claim on that
    basis. However, in so doing, the court did not address the fact that one of the
    claimants was the owner of the offending property itself and therefore the law
    of nuisance could not apply. We agree with the motion judge in this case that
Morguard
does not assist the appellants.

[5]

The issue of whether a nuisance must emanate from anothers land was
    recently specifically addressed by the Nova Scotia Court of Appeal in
W.
    Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd
., 2007 NSCA
    92, 258 N.S.R. (2d) 41.

[6]

In
Whebby
, at para. 128, Cromwell J.A. (as he then was) stated
    that regardless of who causes the nuisance, the interference with the
    plaintiffs land must be indirect and not direct, meaning it must originate
    elsewhere than on the plaintiffs land. He explained, at para. 131, that this
    distinction is not a mere legal technicality, but that it reflects

the role of the modern law of nuisance as a means of
    reconciling conflicting interests in connection with competing uses of land:
    see
Royal Anne Hotel
[
Co. v. Ashcroft
, [1979] 2 W.W.R. 462
    (B.C.C.A).] at 467;
Tock v St. Johns Metropolitan Area Board
, [1989]
    2 S.C.R. 1180
per
LaForest, J. at 1196. Before there can be
    conflicting interests in connection with the use of land, there must be uses of
    different lands which come into conflict.

[7]

In
Marks v. Ottawa (City)
, 2011 ONCA 248, 280 O.A.C. 251, at
    para. 19, this court set out the four factors to consider on a motion to amend
    a pleading under rule 26.01 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. One factor is that an amendment will not be allowed if it would
    have been struck out had it been originally pleaded. Applying the analysis from
Hunt v. Carey Canada Inc
., [1990] 2 S.C.R. 959, a claim will be struck
    out under rule 21.01(1)(b) if it has no reasonable chance of success. See also
R.
    v. Imperial Tobacco Canada Ltd
., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras.
    20-25.

[8]

The appellants are effectively arguing that they should be entitled to
    seek to fundamentally change the law of nuisance. That would be a tenable
    position if, for example, the appellants sought to expand the tort to a new
    fact situation not before considered. However, the tort of nuisance has certain
    defined, long-standing characteristics, which courts have considered to be essential
    to the tort. In particular, the alleged nuisance must originate somewhere other
    than on the plaintiffs land. In this case, the appellants seek to establish
    the tort where that essential characteristic is missing. Their claim has no
    reasonable chance of success.

[9]

The appeal is therefore dismissed, with costs fixed in the amount of
    $12,000 inclusive of disbursements and HST.

K.
    Feldman J.A.

J.
    Simmons J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1465152 Ontario Limited v. Amexon Development Inc., 2015 ONCA 86

DATE: 20150206

DOCKET: C59083

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

BETWEEN

1465152 Ontario Limited

Respondent

and

Amexon Development Inc.

Appellant

Hillel David, for the appellant

Catherine Francis and Mark Freake, for the respondent

Heard: January 21, 2015

On appeal from the judgment of Justice Frederick L. Myers
    of the Superior Court of Justice, dated June 27, 2014.

Brown J.A.:

Overview

[1]

Amexon Development Inc., the Landlord of a building located at 1200
    Sheppard Avenue East, Toronto, appeals from the judgment of Justice Frederick
    L. Myers dated June 27, 2014 (the Judgment), in which the application judge
    declared that the February 28, 2014 Notice to Vacate issued by the Landlord to
    the respondent Tenant, 1465152 Ontario Limited, was void.  The application
    judge also enjoined the Landlord from re-entering the leased premises and from
    otherwise failing to fulfill its obligations to supply the leased premises with
    the services and utilities required by the lease.

[2]

For the reasons set out below, I would dismiss the appeal on the basis
    that the application judge did not err in his interpretation of the lease for
    the premises or in exercising his discretion to grant a permanent injunction.

Facts

[3]

By lease dated April 1, 2000 (the 2000 Lease) the Tenant leased
    premises at the building for use by the Rubenstein, Siegel law firm.  The term
    of the 2000 Lease was renewed for five years in 2007.  Pursuant to an October
    12, 2010 Lease Expansion and Extension Agreement (the Extension Agreement),
    the Landlord and Tenant agreed to a further extension of the term until March
    31, 2016.  The Extension Agreement provided the Tenant with an option to renew
    for a further five-year term based on mutually agreed terms and conditions,
    based on fair market rents.  All other terms and conditions of the 2000 Lease
    remained in full force and effect.

[4]

Sometime after entering into the Extension Agreement, the Landlord
    decided it wanted to demolish the building and redevelop the property. The
    Landlord was able to negotiate lease termination agreements with all the
    tenants in the building except for the respondent Tenant. Efforts between the
    parties to negotiate a lease termination agreement spanned several months, but
    proved unsuccessful.

[5]

On February 28, 2014, the Landlord delivered to the Tenant a Notice to
    Vacate which read as follows:

This is to confirm that services to and in the Building will be
    turned off as at 12:01 a.m. on September 1, 2014 and as at and from that time
    you will not have pedestrian or vehicular access to the Building.

Please remove all fixtures and leasehold improvements and fully
    vacate the Premises by August 31, 2014. Any trade fixtures not removed from the
    Premises by such date will be disposed of by the Landlord as waste.

Demolition of the Building will occur immediately thereafter.

[6]

On April 1, 2014, the Tenant commenced an application seeking a variety
    of declaratory relief, including a declaration that the Notice to Vacate was
    void, as well as a permanent injunction restraining the Landlord from
    terminating the lease and trespassing onto the leased premises.

Grounds of appeal

[7]

The Landlord advances two main grounds of appeal:

i.

The application judge erred in his interpretation of s. 13.07 of the
    2000 Lease which, the Landlord contended, limited the remedy the Tenant could
    seek for any breach of the 2000 Lease to damages; and

ii.

The application judge erred in granting a permanent injunction because
    the leased premises were not unique and the Landlord had offered the Tenant
    equivalent alternative premises.

The interpretation of s. 13.07 of the 2000 Lease

[8]

Section 13.07 of the 2000 Lease is entitled Remedies Generally and
    provides, in part, as follows:

Whenever the Tenant seeks a remedy in order to enforce the
    observance or performance of one of the terms, covenants and conditions
    contained in this Lease on the part of the Landlord to be observed or
    performed, the Tenants only remedy shall be for such damages as the Tenant
    shall be able to prove in a court of competent jurisdiction that it has
    suffered as a result of a breach (if established) by the Landlord in the
    observance and performance of any of the terms, covenants and conditions
    contained in this Lease on the part of the Landlord to be observed or
    performed.

[9]

The Landlord submits that s. 13.07 limits the remedy available to the
    Tenant for the Landlords breach of any of its obligations under the Lease to a
    claim for compensatory damages.  The application judge rejected that submission
    holding:

But this is not just any breach. The Landlord is walking away
    from its fundamental promise.  This is not a balanced win-win but an effort by
    the Landlord to make more money by denying or rescinding its bargain.  Allowing
    landlords to evict tenants because something better has come along is fraught
    with a risk of abuse.  If the law of leases is to change, it will be more
    incremental, with nuanced protections for both parties.

The limitation of remedies s. 13.07 may be seen to support the
    notion that the transaction as contemplated was always economic at its core and
    this would support an efficient breach concept.  But the parties cannot oust
    the jurisdiction of a court of equity.  Moreover, I do not read s. 13.07 as
    applying when the Landlord commits not just a breach of covenant, but a
    complete repudiation of its grant and consideration [and a tort (trespass) to
    which the clause does not apply].

[10]

In
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, 373 D.L.R.
    (4th) 393, the Supreme Court of Canada held, at paras. 50 to 55, that the
    interpretation of a contract involves an issue of mixed fact and law on which
    an appellate court should defer to the application judge, except where it is
    possible to identify an extricable question of law, such as the application of
    an incorrect principle, the failure to consider a required element of a legal
    test, or the failure to consider a relevant factor.

[11]

The
    Landlord characterizes s. 13.07 as a type of exclusionary clause which limits
    the remedies available to the Tenant upon any breach by the Landlord.  The
    Landlord submits that the application judge applied an incorrect principle by
    failing to follow the approach to contractual interpretation described by the
    Supreme Court of Canada in
Tercon Contractors Ltd. v. British Columbia
    (Minister of Transportation & Highways)
, 2010 SCC 4, [2010] 1 S.C.R.
    69.  At paras. 121 to 123 in that decision the Supreme Court of Canada set out
    the inquiries a court must make when a party seeks to escape the effect of an
    exclusion clause or other contractual term to which it had previously agreed.
    The first inquiry is to ascertain whether as a matter of interpretation the
    exclusion clause even
applies
to the circumstances established in the
    evidence (emphasis in original).  As stated by Binnie J., at para. 122 of
Tercon
    Contractors
:

This will depend on the Courts assessment of the intention of
    the parties as expressed in the contract.  If the exclusion clause does not
    apply, there is obviously no need to proceed further with this analysis.

[12]

In
    my view, the application judge followed the principles in
Tercon
    Contractors
by first inquiring whether s. 13.07 applied to the Notice to
    Vacate issued by the Landlord.  He concluded that it did not because the
    Landlord had committed a complete repudiation of its grant and consideration [and
    a tort (trespass) to which the clause does not apply].  That conclusion was a
    reasonable one and merits deference for two reasons.

[13]

First,
    at the hearing of the appeal the Landlord acknowledged that it did not enjoy
    any right under the Lease to issue the Notice to Vacate or to insist the Tenant
    vacate the leased premises so that the Landlord could demolish the building.
    Sections 13.01 and 13.05 of the Lease specified the circumstances in which the
    Landlord could re-enter the leased premises.  The right of the Landlord to do
    so under either section required some failure by the Tenant to comply with the
    Lease.  In the present case, the Landlords February 28, 2014 Notice to Vacate
    did not allege that the Tenant had breached any provision of the Lease, nor did
    it identify any specific provision of the Lease under which the Landlord was
    purporting to re-enter the leased premises.

[14]

To
    accept the Landlords interpretation of s. 13.07 of the Lease would render ss.
    13.01 and 13.05 meaningless.  The Landlord could ignore those contractual
    provisions and re-enter the leased premises arbitrarily and without any
    contractual justification.  The Tenant would not be able to restrain the
    unlawful trespass and could only sue for damages.

[15]

In
    oral argument Landlords counsel acknowledged that the Landlord would not be
    entitled to invoke s. 13.07 if it was acting arbitrarily or for an improper
    purpose.  The Landlord contended that it had not acted arbitrarily because, in
    issuing the Notice to Vacate, it was pursuing the legitimate business objective
    of re-developing the property.  The application judge considered and rejected
    that submission.  The application judge found, in essence, that the Landlord
    was acting arbitrarily, in the sense of without lawful authority or purpose,
    when he held that the Landlord was trying to make more money by denying or
    rescinding its bargain, had committed a complete repudiation of its grant and
    consideration [and a tort (trespass) to which the clause does not apply], and
    had engaged in tortious misconduct.

[16]

A
    commercially unreasonable interpretation of s. 13.07 would result if the
    Landlord could act without lawful authority to bring the Lease to an end and
    re-occupy the premises, and then rely on the disclaimed Lease to prevent the
    Tenant from restraining the Landlords unlawful conduct.  Section 13.07 applies
    [w]henever the tenant seeks a remedy in order to enforce the observance or
    performance of one of the terms, covenants and conditions contained in this Lease
    on the part of the Landlord.  Much clearer language would be required in order
    to restrict the remedies available against the Landlord when it acted
    arbitrarily and without any basis in the rights conferred on it under the
    Lease.

[17]

Second,
    as his endorsement discloses, the application judge interpreted s. 13.07 in the
    context of the entire Lease.  He found that the Lease did not contain a
    demolition clause.  It was open to the Landlord to negotiate the inclusion of a
    demolition clause in the Lease, but it did not do so.

[18]

In
    sum, I see no basis upon which to interfere with the application judges
    interpretation of s. 13.07 of the Lease, his resulting declaration that the
    February 28, 2014 Notice to Vacate was void, and his conclusion that the Tenant
    was not contractually limited to a remedy in damages.

The permanent injunction

[19]

The
    Landlord also appeals para. 2 of the Judgment in which the application judge
    ordered that the Landlord was enjoined from re-entering the Leased Premises
    and otherwise failing to fulfill its obligations to supply the Leased Premises
    with services and utilities and all other goods and services required by the Lease.

[20]

In
    his endorsement the application judge gave the following reasons for granting
    the permanent injunction:

An injunction will only be granted for breach of contract where
    damages are an inadequate remedy.
Pointe East Windsor
2014 ONCA 467
    (CanLII). Here damages are inadequate because the applicability and quantum of
    punitive damages and restitutionary damages is so unclear. I cannot say today
    that the Tenant will be adequately compensated by damages. Moreover, there is
    still a property law element to a lease despite long-standing recognition as
    commercial contracts. Injunctions remain a powerful arrow to preserve property
    rights and to restrain tortious misconduct.

[21]

The
    Landlord submits that the application judge erred in granting a permanent
    injunction for several reasons: (i) an award of damages would adequately
    compensate the Tenant because the leased premises were not unique or special in
    any way; (ii) the Tenant was seeking an injunction for an improper purpose,
    namely to enhance its bargaining position with the Landlord; and, (iii) an
    injunction was a disproportionate remedy in the circumstances. I do not accept
    the Landlords submissions.

[22]

First,
    the Landlord contends that in
Pointe East Windsor Limited v. Windsor (City)
,
    2014 ONCA 467, 374 D.L.R. (4th) 380, at para. 17, this court held that
    equitable relief, such as a permanent injunction, is only available where damages
    are an inadequate remedy. The Landlord submits that the leased premises are not
    unique, so an award of compensatory damages to the Tenant would serve as an
    adequate remedy.  However, in
Pointe East Windsor Limited
, the issue
    of remedy arose in the context of an action for breach of contract, not where
    the holder of an interest in property, such as the Tenant, was alleging a
    wrongful interference with a proprietary interest.

[23]

As
    the law in Ontario currently stands, different considerations apply in the
    latter circumstance, as was explained in Robert J. Sharpe,
Injunctions and
    Specific Performance
, loose-leaf (consulted on 30 January 2015), (Toronto:
    Canada Law Book, 2014), at 4.10 and 4.20:

Where the plaintiff complains of an interference with property
    rights, injunctive relief is strongly favored.  This is especially so in the
    case of direct infringement in the nature of trespass.

The reason for the primacy of injunctive relief is that an
    injunction more accurately reflects the substantive definition of property than
    does a damages award.  It is the very essence of the concept of property that
    the owner should not be deprived without consent. An injunction brings to bear
    coercive powers to vindicate that right.  Compensatory damages for a continuous
    and wrongful interference with a property interest offers only limited
    protection in that the plaintiff is, in effect, deprived of property without
    consent at an objectively determined price.  Special justification is required
    for damages rather than an injunction if the principle of autonomous control
    over property is to be preserved.  A damages award rather than an injunction
    permits the defendant to carry on interfering with the plaintiffs property.
    [Footnotes omitted.]

[24]

The
    Landlord relies on the decision of the British Columbia Court of Appeal in
Evergreen
    Building Ltd. v. IBI Leaseholds Ltd.
, 2005 BCCA 583, 50 B.C.L.R. (4th)
    250, leave to appeal to S.C.C. granted, [2006] S.C.C.A. No. 43,
[1]
in support of its position that the application judge should not have granted
    a permanent injunction.  That case also involved an argument by a landlord that
    it should be permitted to re-enter leased premises in order to demolish a
    building for redevelopment even though the lease did not contain a demolition
    clause and the tenant had not breached the lease.  The British Columbia Court
    of Appeal, at para. 31 of its reasons, held that the chambers judge had erred
    in granting a permanent injunction because he had treated the remedies related
    to a lease and a contract as water-tight compartments, leading him to ignore
    the issue of whether damages were an adequate remedy in the circumstances.  The
    British Columbia Court of Appeal re-instated the interim injunction restraining
    the landlord from breaching the covenant of quiet enjoyment and remitted the
    issue of the permanent injunction back to the British Columbia Supreme Court
    for consideration of the equities between the parties.

[25]

In
    the present case, the application judge turned his mind to the adequacy of an
    award of damages and then went on to observe, correctly, that [i]njunctions
    remain a powerful arrow to preserve property rights and to restrain tortious
    misconduct.  The Landlord sought to trespass by seeking to enter the leased
    premises without any authority, terminate the Lease and demolish the leased
    premises.  Under those circumstances it fell within the discretion of the
    application judge to restrain the Landlord from committing such a trespass, and
    I see no error in his exercise of that discretion.

[26]

Second,
    the Landlord argues that the Tenant was seeking an injunction for an improper
    purpose, namely to enhance its bargaining position with the Landlord.  Such a
    motivation, according to the Landlord, operated as a reason to deny granting an
    injunction.  Certainly some courts have refused to grant an injunction where
    they have found that the request for injunctive relief was being used to force
    a hard bargain rather than protecting the actual enjoyment of
bona fide
property
    rights:
Michael Santarsieri Inc. v. Unicity Mall Ltd.
(1999), 181
    D.L.R. (4th) 136 (Man. C.A.), at para. 25 and
Denovan v. Lee
(1989),
    65 D.L.R. (4th) 103 (B.C.C.A.), at p. 106.  In the present case, however, the
    application judge made no such finding of improper purpose on the part of the
    Tenant and, by contrast, found that the Landlord had engaged in tortious
    misconduct.

[27]

Finally,
    the Landlord submits that the permanent injunction constituted a
    disproportionate remedy in the circumstances, arguing that it was unreasonable
    to permit the Tenant to continue to occupy premises which amounted to less than
    three per cent of the buildings total rental area when all other tenants had
    vacated the building.  I would not accept that submission for two reasons.
    First, as pointed out in
Injunctions and Specific Performance
, at
    4.590:

Where there is a direct interference with the plaintiffs
    property constituting a trespass, the rule favoring injunctive relief is even
    stronger than in the nuisance cases.  Especially where the trespass is
    deliberate and continuing, it is ordinarily difficult to justify the denial of
    a prohibitive injunction.  A damages award in such circumstances amounts to an
    expropriation without legislative sanction  In trespass, there has been less
    concern than in nuisance with the problem of extortion.  Even if the
    plaintiff is merely holding out for the highest possible price, and suffers no
    out-of-pocket loss because of the trespass, the courts have awarded
    injunctions.  Such orders may be said to vindicate the plaintiffs right to
    exploit the property for whatever it is worth to the defendant and prevent the
    defendant from circumventing the bargaining process.  [Footnotes omitted.]

[28]

In
    addition, the application judge balanced the parties respective interests and
    tailored the scope of the injunction to that which was necessary to restrain
    the specific unlawful conduct of the Landlord  i.e. its intention to trespass
    onto the leased premises pursuant to the Notice to Vacate in order to terminate
    the tenancy.  His endorsement clearly states that the injunction would not
    protect the Tenant from the consequences of future breaches or future
    application of the Lease, nor did it address the issue of the right of the
    Tenant to renew the Lease upon the expiry of its current term on March 31,
    2016.

Disposition

[29]

For
    those reasons, I would dismiss the appeal.  The parties agreed that in the
    event the appeal did not succeed, the Landlord would pay the Tenant costs,
    all-in, of $25,000, and I so order.

Released: February 6, 2015 (AH)

David
    Brown J.A.

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

I
    agree K. van Rensburg J.A.

[1]
The appeal was subsequently abandoned.  See Supreme Court of Canada,
IBI
    Leaseholds Ltd. v. Evergreen Building Ltd.
(December 3, 2012), online: <http://www.scc-csc.gc.ca/case-dossier/info/dock-regi-eng.aspx?cas=31286>.


COURT OF APPEAL FOR ONTARIO

CITATION: 2147191 Ontario Inc. v. Springdale Pizza Depot
    Ltd., 2015 ONCA 116

DATE: 20150219

DOCKET: C59022

Doherty, Gillese and Lauwers JJ.A.

BETWEEN

2147191 Ontario Inc. and
    Jaswinder Grewal

Plaintiffs (Respondents)

and

Springdale Pizza Depot Ltd., Ranjit Singh Mahil
    and Dilawar Singh Khakh

Defendants (Appellants)

David Altshuller, for the appellants

Shane P. Murphy, for the respondents

Heard and released orally: February 6, 2015

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated June 6, 2014.

ENDORSEMENT

[1]

Counsel for the appellants advances one argument in his oral
    submissions. He submits that the motion judge erred in holding that the
    appellants could not avail themselves of the resale exemption from disclosure
    provided in s. 5(7)(a)(iv) and s. 5(8) of the
Arthur Wishart Act
.

[2]

On counsels submission, the evidence shows that the appellants met with
    the respondents for the purpose of determining whether the respondents would be
    suitable franchisees. He submits that the motion judge erred in holding that
    the mere fact of the meetings was enough to make the appellants more than a
    passive participant in the process and to therefore trigger the disclosure
    requirements.

[3]

This argument was made on the motion. The motion judge addressed it in
    some detail at paras. 5 through 19. He referred to the controlling case law. He
    limited himself to the unchallenged facts. Those facts revealed the following:

·

The appellants were involved in three meetings with the
    respondents in respect of the respondents acquisition of the franchise;

·

The discussions included the possibility that the respondents
    would acquire the franchise through a new franchise agreement. It was
    eventually determined that the transaction would proceed by way of assignment
    from the previous franchisee;

·

The appellants required the respondents to execute an
    acknowledgement. Among other things that document provided certain additional
    protection to the appellants.

[4]

Based on these unchallenged facts the motion judge concluded at para.
    17:

when a franchisor leads the parties to believe that it is
    starting down the path of requiring a new franchise agreement, meets the
    prospective franchisees multiple times, and requires extra consideration that
    limits the exercise of the prospective franchisees rights, I do not think it
    can be said to have been merely passive.

[5]

The motion judges finding was justified on the unchallenged facts
    before him. The finding is also consistent with the spirit of the case law from
    this court concerning the interpretation of the
Arthur Wishart Act
and
    recognizes both the overall purpose of the Act and the need to narrowly
    construe the disclosure exceptions in the Act.

[6]

The appeal is dismissed. On agreement, costs to the respondents in the
    amount of $5000, inclusive of disbursements and relevant taxes.

Doherty J.A.

E.E. Gillese J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Arnone v. Best Theratronics Ltd., 2015 ONCA 63

DATE: 20150202

DOCKET: C59181

Strathy C.J.O., Laskin and Brown JJ.A.

BETWEEN

Matthew Arnone

Plaintiff (Respondent)

and

Best Theratronics Ltd.

Defendant (Appellant)

Frank Cesario and Siobhan OBrien, for the appellant

Christopher Rootham, for the respondent

Heard: January 9, 2015

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated July 14, 2014, with reasons reported at
    2014 ONSC 4216.

Brown J.A.:

Overview

[1]

On November 26, 2012, the appellant, Best Theratronics Ltd., terminated
    without cause the employment of the respondent, Matthew Arnone, who had worked with
    the company and its predecessor for about 31 years.  Arnone was 53 years old at
    the time.

[2]

Arnone commenced a wrongful dismissal action and moved for summary
    judgment.  By order dated July 14, 2014 (the Order), the motion judge granted
    Arnones motion for summary judgment and ordered Best Theratronics to pay (i)
    damages equal to the gross amount of the salary Arnone would have earned until
    he qualified for an unreduced pension, less payments made to him to satisfy the
    statutory obligations of the employer, (ii) $65,000 representing the present
    value of the loss of an unreduced pension, (iii) a retirement allowance equal
    to 30 weeks pay, and (iv) costs totaling $52,280.09.

[3]

Best Theratronics appeals, seeking to set aside the Order and to secure,
    instead, an order dismissing Arnones claim.  Arnone cross-appeals, seeking to
    increase the damages awarded for wrongful dismissal and to increase costs to a
    substantial indemnity level.

[4]

For the reasons which follow, I would allow the appeal, in part, set
    aside the motion judges calculation of damages for wrongful dismissal and
    require that income earned by Arnone during the notice period be deducted from
    the award of damages for wrongful dismissal.  I would allow the cross-appeal,
    increase the period of reasonable notice for calculating damages for wrongful
    dismissal from 16.8 months to 22 months and remit the issue of costs to the
    motion judge.

Standard of review

[5]

In
Hryniak
v. Mauldin
,
[1]
the Supreme Court of Canada held that absent an error of law, the exercise of
    powers by a motion judge under Rule 20 of the
Rules of Civil Procedure
attracts deference.  Whether a genuine issue requiring a trial exists is a
    question of mixed fact and law.  Where there is no extricable error in
    principle, findings of mixed fact and law should not be overturned, absent
    palpable and overriding error.
[2]

First Issue:  Did the motion judge err in concluding that no genuine
    issue requiring a trial existed regarding the character of the employees
    duties and responsibilities?

[6]

Best Theratronics submitted that the motion judge erred in granting
    summary judgment because a genuine issue requiring a trial existed in respect
    of the character of Arnones employment, one of the factors guiding the
    calculation of the common law reasonable period of notice set out in
Bardal v. The Globe & Mail Ltd
.
[3]
Best Theratronics contended a clear conflict of evidence existed about the role
    performed by Arnone prior to the termination of his employment and argued that
    the motion judge simply had swept aside the conflicting evidence without
    analysis.

[7]

I do not accept that submission.  On the issue of the character of his employment,
    Arnone conceded, for the purpose of the summary judgment motion, that he was a
    supervisor, not a manager.  The motion judge made the following findings of
    fact:

[23]  The plaintiff has spent his entire career working in the
    field of Cobalt 60 industrial and medical equipment.  He has a college level
    designation as a mechanical engineering technologist. He performed at least
    supervisory, if not managerial, functions. He had about eight employees
    reporting to him.

As well, he described the different characterizations
    of Arnones responsibilities advanced by Best Theratronics as subtle
    distinctions which would not affect the employees minimum entitlement to a 17-month
    period of reasonable notice.

[8]

Those findings of fact find ample support in the record.  Although the
    February 13, 2008 letter from Best Theratronics offering employment to Arnone
    described his position as that of a Customer Specialist, about five months
    later the Employers general manager circulated a memo to employees describing
    Arnone as continuing in his role of Customer Service
Manager
 (emphasis added).  The April 2009
    organizational chart for Best Thereatronics described Arnone as Manager
    Customer Service and showed 11 employees reporting to him.  Also, Best
    Theratronics provided Arnone with a business card which described his position
    as Manager, Inside Sales & Customer Support.  While the Director, Resources
    and Payroll, of Best Theratronics testified on cross-examination that the
    managerial title was given to Arnone purely for customer relations purposes,
    the fact remained that it was Best Theratronics which had provided him with
    that title.  The evidence also disclosed that Arnone discussed performance
    issues regarding his direct reports with his own manager, although it was his
    manager who provided the direct reports with their formal performance
    evaluations.  Even though several months prior to his termination Best Theratronics
    changed Arnones role to focus more clearly on customer support and sales, his
    salary remained unchanged.

[9]

Best Theratronics relied heavily on the decision of the Superior Court
    of Justice in
Thorne v. Hudsons Bay Co
.
[4]
for the proposition that in appropriate cases the character of the employees
    employment may give rise to a genuine issue requiring a trial.  The
    circumstances in
Thorne
differed
    materially from those in the present case.  First, in
Thorne
, the motion judge emphasized that
    the affidavit evidence placed before him had not been subjected to
    cross-examination, thereby preventing him from resolving in a fair and accurate
    way the dispute between the parties about the employees duties.  By contrast,
    in the present case the motion judge had before him the cross-examinations of
    the affiants to assist him in determining whether he could make the necessary
    findings of fact, which led him to conclude:

[17]  In this case, the issues can be determined fairly and
    justly without a trial.  The documentary record is both extensive and reliable.
     Several affiants have been cross-examined.  While the parties may not agree on
    all the facts, the material facts necessary to achieve a just result are
    established by the available evidence and form part of the record on this
    motion.  Cases involving the determination of a reasonable notice period are
    well-suited to be dealt with by way of a motion for summary judgment.

[10]

Second,
    while in
Thorne
the employee was
    not prepared to accept the employers characterization of his employment for
    purposes of the summary judgment motion, in the present case Arnone did so.  As
    noted by the motion judge:

[9]  The plaintiff says that he was working as a manager prior
    to his dismissal but because the defendant takes issue with the
    characterization of his job description and duties, the plaintiff is prepared
    to concede for the purposes of this motion to the defendants contention that
    the plaintiffs employment can best be characterized as that of a supervisor
    rather than a manager.  The plaintiff does so in an effort to neutralize the
    defendants argument that the determination of the character of the plaintiffs
    employment requires a trial.

[11]

Also,
    the jurisprudence on the
Bardal
factors not only stresses that no one factor should be given disproportionate
    weight,
[5]
but more recently indicates that the character of employment is a factor of
    declining importance in the
Bardal
analysis.
[6]

[12]

Finally,
    while the appropriateness of bringing a summary judgment motion must be
    assessed in the particular circumstances of each case, a straight-forward claim
    for wrongful dismissal without cause, such as the present one, strikes me as the
    type of case usually amenable to a Rule 20 summary judgment motion.

[13]

In
    sum, the motion judges findings about the character of Arnones employment
    provided ample support for the conclusion that no genuine issue requiring a
    trial existed on the issue of the character of employment.

Second Issue:  Did the motion judge err in his calculation of the
    period of reasonable notice to which Arnone was entitled upon termination
    without cause?

[14]

Although
    the motion judge correctly referred to the
Bardal
factors as the starting point for an assessment of the appropriate period of
    reasonable notice, he calculated the period of reasonable notice by reference
    to the time between the date of termination and the date Arnone would be
    entitled to an unreduced pension upon early retirement under the Best
    Theratronics defined benefit pension plan of which he was a member.

[15]

Best
    Theratronics submits that the motion judge erred by calculating the common law
    period of reasonable notice so as to bridge Arnones notice period to the
    date of his eligibility for an unreduced pension at his early retirement date,
    instead of assessing a reasonable notice period using the
Bardal
factors.  On this appeal, Arnone
    concedes that the motion judge erred in applying a bridging approach to the
    determination of the reasonable period of notice.

[16]

In
    my view, that was an appropriate concession to make.  Damages for wrongful
    dismissal operate to compensate an employee for the employers breach of the
    implied obligation in the employment contract to give reasonable notice of an
    intention to terminate the relationship in the absence of just cause.  Damages
    are confined to the loss suffered as a result of the employers failure to give
    proper notice, measured by the loss of wages and salary, and other benefits,
    that would have been earned during the reasonable notice period.
[7]
The
Bardal
analysis remains the approach courts must apply to
    determine what constitutes reasonable notice of termination,
[8]
an approach which has not included a consideration of the time between the date
    of dismissal and the point at which the employee would be eligible for a full
    pension.  In the present case, calculating the period of reasonable notice by
    reference to the amount of time required to bridge the dismissed employee to
    his date of eligibility for a full pension did not accord with the
Bardal
analysis.  Consequently, the motion judge erred in setting the period of
    reasonable notice to which Arnone was entitled at 16.8 months, the period of
    time needed to bridge his entitlement to a full pension.

[17]

Nevertheless,
    the motion judge did go on to make an alternative finding that a reasonable
    notice period otherwise would amount to 22 months.  In
Minott v. O'Shanter Development Co.
,
[9]
this court described the appropriate standard of appellate review for the issue
    of the period of reasonable notice in wrongful dismissal cases:

This submission must be judged against the standard of
    appellate review of wrongful dismissal awards.  Determining the period of
    reasonable notice is an art not a science.  In each case trial judges must
    weigh and balance a catalogue of relevant factors.  No two cases are identical;
    and, ordinarily, there is no one right figure for reasonable notice.  Instead,
    most cases yield a range of reasonableness.  Therefore, a trial judge's
    determination of the period of reasonable notice is entitled to deference from
    an appellate court.  An appeal court is not justified in interfering unless the
    figure arrived at by the trial judge is outside an acceptable range or unless,
    in arriving at the figure, the trial judge erred in principle or made an
    unreasonable finding of fact.  If the trial judge erred in principle, an
    appellate court may substitute its own figure.  But it should do so sparingly
    if the trial judge's award is within an acceptable range despite the error in
    principle.
[10]

[18]

Arnone
    submitted that the 22-month notice period assessed by the motion judge fell
    within an acceptable range set by the case law for an employee in his
    position.  Best Theratronics contended 14.4 weeks constituted a reasonable
    notice period in the circumstances.  Arnone supported his submission by
    pointing to numerous cases establishing a range of 19 to 28 months as the
    period of reasonable notice for supervisors

of a similar age and
    length of service.  By contrast, Best Theratronics did not refer to any case
    law in support of its position.

[19]

In
    my view, the 22-month notice period, as found by the motion judge, fell within
    an acceptable range of notice periods for employees in circumstances similar to
    those of Arnone.  Consequently, I see no basis upon which to interfere with
    that conclusion.

Third Issue:  Did the motion judge err by failing to deduct
    the income earned by Arnone from his new employment from the damage award?

[20]

As
    a result of taking a bridging-until-retirement approach to calculating the
    period of reasonable notice, the motion judge did not deduct from his award of
    damages for wrongful dismissal the income earned by Arnone from his new
    employment during the claimed notice period.  The parties agreed that the
    motion judge erred in law by failing to deduct that income from the wrongful
    dismissal damages award.  I would accept that agreement and vary the Order
    accordingly.

Fourth Issue:  Did the motion judge err in awarding Arnone a
    retirement allowance?

[21]

Arnone
    also claimed payment of a retirement bonus or allowance.  Arnone deposed:

It is customary for employees to receive a significant
    retirement bonus equivalent to one week of salary for each year of service.
    Had I continued employment with Theratronics, I would have reasonably expected
    receiving this retirement bonus.

Poonam Sharma, the Director, Human Resources and
    Payroll at Best Theratronics, deposed:

Best Theratronics provides a retirement allowance of one week
    per year of service to a maximum of 30 weeks to employees who retire.  The
    Plaintiff was not eligible for this allowance as he was terminated due to
    restructuring.

That was the extent of the evidence in the record about
    the terms of the Best Theratronics retirement allowance.  Neither affiant was
    cross-examined on the point.

[22]

From
    that evidence, the motion judge concluded:

[30] Additionally, the plaintiff was entitled to a retirement
    allowance of one week for each year of employment to a maximum of thirty weeks.
     The availability of this allowance ought to have been part of an arrangement
    to bring the employees employment to an end without affecting his pension.

When read as a whole, the reasons of the motion judge
    disclose he sought to put in place a termination arrangement which would
    provide Arnone with all the benefits available to him on retirement.  This
    approach drove his calculation of the period of reasonable notice  in which he
    erred  as well as his determination that Arnone was entitled to the Best
    Theratronics retirement allowance.

[23]

The
    evidence about the retirement allowance, as limited as it was, disclosed that
    entitlement to the retirement allowance arose not under the Best Theratronics pension
    plan but, instead, formed part of the contract of employment between Best Theratronics
    and its employees.  The interpretation of that aspect of Arnones contract of
    employment with Best Theratronics would involve an issue of mixed fact and law
    on which an appellate court should defer to the motion judge, except in cases of
    a palpable and overriding error or where it is possible to identify an
    extricable question of law.
[11]

[24]

However,
    the motion judge did not consider Arnones claim to a retirement allowance as a
    claim under his contract of employment; instead, he approached the issue as one
    involving his pension benefits.  At para. 30 of his reasons, the motion judge
    wrote:  The availability of this allowance ought to have been part of an
    arrangement to bring the employees employment to an end without affecting his
    pension.  In taking such an approach the motion judge misapprehended the
    evidence.  Eligibility for the Best Theratronics retirement allowance was not tied
    to an employees entitlement to a pension, but was a separate contractual
    entitlement based upon an employees length of service, be it one year or 30
    years.  As a result of making that error, the conclusion of the motion judge about
    Arnones entitlement to a retiring allowance is not entitled to deference.

[25]

The
    determination of whether a contract of employment entitles an employee to the
    receipt of a retirement allowance where his employment has been terminated
    without cause is an inherently-fact specific exercise.  In the present case,
    there was no dispute that it was a term of Arnones contract of employment with
    Best Theratronics that he would receive a retirement allowance of one week for
    each year of service up to 30 weeks.  Both parties clearly benefited from that
    term.  From the point of view of Best Theratronics, the term gave employees an
    incentive to remain with the company for a long time.  From an employees point
    of view, the term allowed him to accumulate a monetary benefit which grew as
    his service with Best Theratronics increased over time and which would become
    available to him upon retirement.

[26]

In
    my view, from that operation of the Best Theratronics retirement allowance
    comes an implied term that if an employee is terminated without cause, he would
    be entitled to payment of the accumulated retirement allowance in consideration
    for his long service and fidelity to the company.

[27]

In
    the absence of any written term to the contrary, effect should be given to this
    implied term of the contract of employment.  If Best Theratronics wanted to
    limit an employees entitlement to this benefit, it should have reduced the
    limitation to writing, as was done by the employer in the decision of the
    British Columbia Supreme Court in
Moody v.
    Lafarge Canada Inc.
[12]
In that case, the employee was entitled to receive a retirement allowance at
    your retirement (as defined in our pension plan), but the contract went on to stipulate
    that if your employment with Lafarge is terminated for any other reason, you
    will not be eligible to receive this benefit.
[13]
Lafarge terminated the employment of the employee, leading the court to
    conclude that the employee was not entitled to the retirement allowance.

[28]

No
    such written restriction existed in the contract of employment between Best
    Theratronics and Arnone.  Although Sharma deposed that Arnone was not entitled to
    the retirement allowance upon his termination, that was simply her own view and
    was inconsistent with the implied term of the contract of employment.

[29]

For
    those reasons, I would dismiss the appeal of Best Theratronics on this issue.

Fifth Issue:  Did the motion judge err in awarding Arnone
    compensation to replace the loss of his pension benefits during the notice
    period?

[30]

The
    motion judge awarded Arnone damages in the amount of $65,000 representing the
    present value of the loss of pension benefits to him based on the difference
    between a notice period ending on March 7, 2013 (the 14.4 weeks of notice paid
    by Best Theratronics) and one ending on July 31, 2014 (representing 20 months
    notice).  The amount of damages was based upon a calculation performed by an
    actuary contained in an expert opinion adduced by Arnone.

[31]

Although
    Best Theratronics contended in its notice of appeal that the motion judge had
    erred in making such an award, it did not pursue the point in its Factum.

[32]

The
    award made by the motion judge was consistent with the principle expressed by
    this court in
Taggart v. Canada Life
    Assurance Co.
: a terminated employee is entitled to claim damages
    for the loss of pension benefits that would have accrued had the employee
    worked until the end of the notice period, unless some contractual term limits
    that right.
[14]
No evidence of any such limit was before the motion judge.  Accordingly, I see
    no basis to interfere with his award on this issue.

Sixth Issue (Cross-appeal):  In assessing costs, did the
    motion judge err by failing to afford the parties an opportunity to disclose
    their respective offers to settle?

[33]

Arnone
    cross-appeals the award of costs, arguing that the motion judge dealt with
    costs without affording him an opportunity to make submissions about the effect
    on costs of his offers to settle the motion.

[34]

As
    noted by the motion judge, at the conclusion of oral argument on the motion the
    parties provided him with copies of their cost outlines.  The motion judge
    reserved his decision on the motion.  In his July 14, 2014 reasons the motion
    judge dealt with the issue of costs.  The next day Arnones counsel wrote to
    the motion judge enclosing two without prejudice offers made to Best
    Theratronics.  Counsel advised that he could not have provided the offers to
    the court until liability had been determined, and he requested an opportunity
    to make brief submissions on the scale of costs awarded.  At the hearing of the
    appeal, counsel advised that a case conference is to be held before the motion
    judge to consider the effect of the offers to settle on the costs awarded, even
    though the Order has been issued and entered.

[35]

Since
    a motion judge should take into account the effect, if any, of offers to settle
    on the ultimate award of costs for the motion, the most appropriate way to
    proceed is to set aside the cost award contained in para. 5 of the Order and
    remit the issue of costs back to the motion judge for his determination.

DISPOSITION

[36]

Accordingly,
    I would allow the appeal, in part, set aside para. 1 of the Order and substitute
    an order that Best Theratronics pay Arnone damages for wrongful dismissal
    calculated on the basis of a reasonable period of notice of 22 months, from
    which shall be deducted the statutory payments of 14.4 weeks already made by
    Best Theratronics and the income earned by Arnone during the notice period.  I
    would allow the cross-appeal, set aside para. 5 of the Order dealing with
    costs, and remit the issue of costs back to the motion judge for his
    determination.

[37]

If
    the parties are unable to agree upon the costs of the appeal and cross-appeal, I
    would permit them to file brief cost submissions, to a maximum of three pages, within
    10 days of the date of the release of these reasons.

Released: February 2, 2015 (GS)

David
    Brown J.A.

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

I
    agree John Laskin J.A.

[1]
2014 SCC 7, [2014] 1 S.C.R. 87.

[2]

Hryniak
, at para. 81.

[3]
(1960), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145.

[4]
2011 ONSC 6010, 96 C.C.E.L. (3d) 35 (S.C.).

[5]
Honda Canada Inc. v. Keays
, 2008 SCC 39,
    [2008] 2 S.C.R. 362, at para. 32.

[6]

Di Tomaso v. Crown Metal Packaging Canada
    LP
, 2011 ONCA 469, 282 O.A.C. 134, at para. 27.

[7]

Keays,
at para. 50;
Taggart v. Canada Life Assurance Co.
(2006),
    50 C.C.P.B. 163 (Ont. C.A.), at para. 13.

[8]

Keays,
at paras. 28-29.

[9]
(1999), 42 O.R. (3d) 321 (C.A.).

[10]

Minott
, at pp. 343-344.  [Citations omitted.]

[11]

Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, 373 D.L.R.
    (4th) 393, at paras. 50-55;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 30-31; and
Hryniak
, at para. 81.

[12]
2000 BCSC 1847.

[13]

Moody
, at para. 16.

[14]

Taggart
, at paras. 13, 15.


COURT OF APPEAL FOR ONTARIO

CITATION: Baines v. Sigurdson Courtlander Burns and
    Silverstone Barristers & Solicitors, 2015 ONCA 80

DATE: 20150204

DOCKET: C59081

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Eleanor Denise Baines

Appellant/Plaintiff

and

Sigurdson
    Courtlander Burns and Silverstone

Barristers
    & Solicitors

Respondent/Defendant

Eleanor D. Baines, acting in person

Adam Pantel, for the respondent

Heard and released orally: January 23, 2015

On appeal from the order of Justice Carole J. Brown the
    Superior Court of Justice, dated May 12, 2014.

ENDORSEMENT

[1]

The appellant was the unsuccessful plaintiff in an action arising from a
    motor vehicle accident. She subsequently commenced an action against the
    respondent, the lawyers who represented the defendants in the motor vehicle
    litigation, for the tort of intrusion upon seclusion, breach of privacy and
    negligence.

[2]

The appellant alleges that the respondent violated her privacy by: (a)
    providing her medical information to defence experts without her consent for
    the purpose of the trial and obtaining addendum reports from the defence experts
    based on her medical information; (b) serving copies of a rule 30.10 motion
    record on her former employer and the Ontario Disabilities Support Program
    without her consent; and (c) obtaining official transcripts of her marks from
    the University of Waterloo without her consent.

[3]

The respondent brought a motion for summary judgment to dismiss the
    appellants claim. The motion judge granted the motion and awarded the
    respondent $3,500 in costs.  The appellant appeals that order.

[4]

We see no basis to interfere with the order of the motion judge.

[5]

The appellants claim in the underlying personal injury action put in
    issue her medical and psychological injuries, as well as her ability to work
    and pursue her studies.  She thereby waived any privacy interest in her medical
    records and academic records for the purpose of the litigation.

[6]

Moreover, the respondents impugned conduct throughout, including
    service of the rule 30.10 motion, was justified by law as it was undertaken for
    the purposes of the litigation pursuant to the Rules of Civil Procedure. In
    these circumstances, there was no breach of the appellants privacy and the
    tort of intrusion upon seclusion cannot be established.

[7]

The respondents reference to the appellants medical condition during
    the trial also does not amount to negligence or any breach of duty by the
    respondent.  The respondent owed no duty to the appellant.

[8]

The appellant also alleges a breach of her right to natural justice on
    the basis that the respondent raised an issue  that it was improperly named in
    the statement of claim  for the first time on the return of the motion.
    However, the naming issue is not relevant to the summary judgment motion
    because the respondent agreed that it was properly named for the purposes of
    that motion.  There was, therefore, no breach of natural justice.

[9]

Finally, the appellant submits that the motion judge ignored evidence of
    her impecuniosity in making the costs award. The evidentiary onus is on the
    party asserting impecuniosity and we see no grounds to interfere with the
    motion judges ruling. The appellant did not meet her onus. There is also no
    basis to interfere with the quantum of the costs award, which was entirely
    reasonable and far below the respondent's actual costs.

[10]

The
    appeal is dismissed.  The respondent is entitled to its costs, which we fix at $2,000,
    inclusive of HST and disbursements.

K.
    Feldman J.A.

E.A.
    Cronk J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Branch 1 of the Polish National Union of Canada v. Polish National Union of Canada Inc., 2015 ONCA 91

DATE: 20150209

DOCKET: C59015

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Branch 1
    of the Polish National Union of Canada,

an
    unincorporated association, led by the individual board members,

Jozeff
    (Joseph) Aleksandrowicz, Henryk (Henry) Kacprzak,

Anna
    Kacprzak, Barthlomiej (Bart) Habrowski, and Antoni Kantor

Appellants

(Applicants)

and

Polish
    National Union of Canada Inc., and Polish National Union of

Canada,
    and Bogan Adamczak, Stanislawa (stella) Adamczak, Euggeniusz

Boryszko,
    Danuta Boryszko, Bogus Law (Jack) Bukin, Danuta Bukin,

Jerry Chalubinski,
    Jan Cylke, Jan Cuba, Stanislaw Godzisz, Jan

Komor,
    Andrezej Legends, Josef Malexcki, Wieslaw Magiera, Iwona

Rebiszewski,
    Stefan Skulski, Stanislaw (Stan) Szustak, Marek Urbaniak,

Grzegorz
    (Greg) Wasniewski

Respondents

(Respondents)

James F. Diamond, for the appellants

Ronald S. Segal and Maria Constantine, for the
    respondents

Heard and released orally: January 29, 2015

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated May 28, 2014.

ENDORSEMENT

[1]

The appellants appeal the judgment of the application judge and argue
    essentially that he failed to deal with all of the issues that were before him.
    This litigation arises as the result of a disagreement between the Branch and
    the Union over the ownership and the use of certain property.

[2]

Each side brought an application competing applications as described
    by the application judge and the relief generally sought by each of the parties
    is summarized in the first four paragraphs of the reasons.

[3]

There were two central issues. The first was the ownership of the
    properties where Branch 1 had been meeting for many years and the second was
    described as governance issues.

[4]

The application judge decided the property issue and no appeal is taken
    from that decision. On the governance issues, the court determined that the
    appellants had not been afforded natural justice at a special meeting called by
    the president of the HEB on February 15, 2013. The appellants asked the court
    to invalidate the actions taken by the Union at that meeting as follows:

1)  the removal of Aleksandrowicz as a member
    and officer of the Branch;

2) the dissolution of Branch 1 and the
    termination of membership in the         Union of all Branch 1 members;

3) the establishment of Branch 26 as the
    successor to Branch 1.

[5]

The court quashed the decision to strip Aleksandrowicz of his membership
    and his office and it quashed the decision to dissolve Branch 1 and invalidated
    the termination of all Branch 1 members and the purported replacement of
    Branch 1 with the successor Branch 26.

[6]

Before the application was heard, the appellant sought an injunction to
    prevent the Union from holding its national convention on December 14, 2013.
    Before this date, there had been some negotiations between the parties, a
    mediation attempt that unfortunately was unsuccessful and the convention had
    been adjourned to this date.

[7]

The motion proceeded before Brown J. on December 12, 2013, and his
    reasons refusing the injunction were released the next day. The agenda for the
    proposed business that would be conducted at that meeting was before the court
    and is referenced in para.  31 of the motion judges reasons.  At para. 47 of
    his reasons, the motion judge said:

Consequently, while I am not prepared to grant a broad
    injunction restraining the Union from holding its National Convention tomorrow,
    I do order that the Convention may only proceed subject to the following
    condition  although the Union can conduct the general business and proceed to hold
    the various elections described in its agenda, the Union cannot otherwise
    conduct any business or pass any resolution concerning any of the issues
    described in the prayer for relief
in the

Unions notice of
    application
.  (Emphasis added.)

[8]

I emphasize his words in the Unions notice of application. The order
    did not preclude anything else. The convention proceeded, the elections were
    held as outlined in the agenda.

[9]

In this court, the appellants argue that their victory before Penny J.
    is a hollow one because he did not take the further step and invalidate all of
    the actions taken at the national convention in December 2013. They say that
    because of the actions taken by the HEB in February of 2013 where their
    membership was effectively terminated, they were precluded from participation
    in the convention held in December. In the final result, those actions had all
    been quashed and so too they say should the business conducted at the national
    convention which they couldnt participate in because of the actions taken in
    February.

[10]

The
    application judge in his reasons noted that both sides had submitted draft
    forms of judgment that raised collateral issues that were not addressed in  argument.
    The appellants say invalidation of the elections held at the national
    convention were not collateral and this issue was put before the motion judge.
    There are two problems with this argument.

[11]

First,
    the application judge in his reasons specifically states that other than the
    matters he did deal with the other matters raised in the draft forms of
    judgment were collateral and because they were not specifically addressed he
    would not make orders in relation to them. If as the appellants now argue these
    matters were specifically addressed, then the obligation was to return to the
    application judge and seek adjudication on those issues not to raise it in this
    court by way of appeal.

[12]

Second,
    the order of Brown J. specifically permitted the Union to carry on with the
    national convention and the elections as specifically set out in the agenda
    which the motion judge recited in his reasons as described above. That order
    was not appealed and the elections proceeded as authorized by it. The damage
    has been done and the irreparable harm foreseen by the motion judge had occurred,
    yet the injunction did not issue and the application judge stated the matter to
    be collateral and not specifically addressed.

[13]

In
    these circumstances, the appellants cannot succeed. Their remedies were to
    attempt to appeal the refusal to grant them an injunction to prevent the
    convention being held and failing that to put the issue of the validity of
    those elections held at that time front and centre and squarely before the
    application judge. This court has no original jurisdiction and in these circumstances,
    the appeal must be dismissed.

[14]

For
    oral reasons given, the appeal is dismissed. Costs to the respondent fixed in
    the sum of $24,832.76 inclusive of disbursements and HST.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian National Railway Company v. Kitchener
    (City), 2015 ONCA 131

DATE: 20150226

DOCKET: C59372

Rouleau, Watt and Pardu JJ.A.

BETWEEN

Canadian National Railway Company

Plaintiff (Appellant)

and

The
    Corporation of the City of Kitchener, Public Utilities

Commission of Kitchener
    and Hogg Fuel & Supply Limited

Defendants (Respondents)

Jeremy Devereux and Andrea Campbell, for the appellant

Karen Perron, for the respondent City of Kitchener

Michael Binetti and David N. Vaillancourt, for the
    respondent Hogg Fuel & Supply Limited

Heard: February 5, 2015

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated August 25, 2014, with reasons reported at
    2014 ONSC 4929.

ENDORSEMENT

[1]

Canadian National Railway Company (CNR) appeals from a decision
    dismissing this action for delay, pursuant to rule 24.01. It argues that
    although the motion judge applied the correct legal test, he erred in reaching
    the following conclusions:

1.

The delay after 2003 was inexcusable;

2.

There was a strong presumption of prejudice;

3.

CNR had not rebutted the presumption of prejudice.

[2]

CNR started this action in 1989. It alleges that from 1924 to 1958 the
    Public Utilities Commission of the City of Kitchener dumped coal tar on land now
    owned by the respondent Hogg Fuel & Supply Limited, and that some of this
    coal tar migrated onto CNRs land nearby. The respondents deny that coal tar
    was disposed of as alleged.

[3]

The lawsuit was prompted by Ministry of the Environment reports disclosing
    the presence of coal tar waste on CNRs property. The parties initially engaged
    in a process to explore remediation of the properties and jointly retained
    experts. In November 1994 CNR demanded statements of defence. The City and Hogg
    Fuel delivered their statements of defence in 1996 and 1997, respectively.

[4]

The City proposed and the other parties accepted that the evidence of five
    witnesses be taken and preserved by examination under oath under Rule 36, as the
    witnesses were elderly or infirm. The evidence was taken in 1997. CNR did not
    respond to a request by the City to examine a retired Public Utilities
    Commission foreman who had worked there from 1935 to 1968. He passed away in
    1999.

[5]

The parties initially showed some willingness to address the issues
    underlying the claims collaboratively. By letter of January 1997, one of the
    jointly retained experts advised the Ministry of the Environment that [i]t is
    the desire of the  parties to co-operatively demonstrate an initiative to
    remediate this area and defer the MOEE Control Order.

[6]

By 2001 the legal landscape had changed with the introduction of case
    management under the
Rules of Civil Procedure
. Counsel attended before
    Wilkins J. on November 21, 2003. By then the action was 14 years old. Justice
    Wilkins rejected counsels joint request to set a schedule for completion of
    examinations for discovery by June 2004, and assigned the case to case
    management. The case management master made multiple efforts to require the
    parties to adhere to a schedule for the completion of discoveries and proceeding
    to trial. Ultimately, Master Dash approved a schedule which required the parties
    to conduct examinations for discovery, to mediate the dispute on October 14,
    2004, and to appear in trial scheduling court on December 1, 2004.

[7]

The day before the trial scheduling court date, counsel for CNR wrote Master
    Dash to ask that the appearance be delayed so that numerous steps could be
    undertaken, including obtaining expert reports and transcripts of discoveries,
    answering outstanding discovery undertakings by February 15, 2005 and dealing
    with discovery motions. None of the steps advanced as a basis to adjourn the
    trial scheduling court were ultimately completed. CNRs final responses to
    undertakings on discovery were delivered on August 15, 2014, just before the
    motion to dismiss for delay was heard.

[8]

Very little happened after the adjournment of the trial scheduling court
    date. CNR and Hogg Fuel both changed lawyers. Hogg Fuels counsel advised CNR
    on February 12, 2010 to either get on with the action or abandon it.

[9]

To avoid dismissal of the action under Rule 48, which mandates automatic
    dismissal of actions that have not been set down for trial after an extended
    period of time, CNR set the matter down for trial on December 16, 2011. In the
    certification form requesting trial dates, CNR advised the court that its
    pleadings required amendment, that discoveries had not been completed, that all
    requests to admit had not been delivered and that documentary production was
    not complete.

Motion Judges Decision

[10]

Applying
    the test set out in
Langenecker v. Sauvé
, 2011 ONCA 803, the motion
    judge concluded that CNRs delay was inordinate, inexcusable and such that it
    gives rise to a substantial risk that a fair trial of the issues in the
    litigation will not be possible because of the delay.

[11]

The
    motion judge explained that while it was initially reasonable for the parties
    to pursue a collaborative approach, the delay after 2003 was not justified:

Thus, while I see the first 14 years of delay as excusable
    (although the first five of those weakly so) I can see no reasonable and
    cogent or sensible and persuasive reasons for the ongoing delays after 2003.
    CN and its counsel understood that the litigation had to move forward and yet
    they kept it on the backburner for another eight years.

[12]

The
    motion judge concluded that there was a strong presumption of prejudice, given that
    25 years had elapsed since the action was started. He applied the test set out
    in
Armstrong v. McCall
, [2006] O.J. No. 2055 (C.A.), at para. 11:

Where there is a presumption of prejudice, the defendant need
    not lead actual evidence of prejudice and the action will be dismissed for
    delay unless the plaintiff rebuts the presumption. The presumption of prejudice
    may be rebutted by evidence that all documentary evidence has been preserved
    and the issues in the lawsuit do not depend on the recollection of witnesses or
    that all necessary witnesses are available with detailed recollection of the
    events. If the presumption is rebutted then the action may still be dismissed
    if the defendant leads convincing evidence of actual prejudice.

[13]

The
    motion judge held that CNR had not met its onus to rebut the presumption of
    prejudice. He identified a number of witnesses who would have had relevant
    evidence but were no longer available. There was no longer any documentary
    evidence available on the key issue of who dumped coal tar and where. He concluded
    that a trial in these circumstances would not be a fair and just resolution of
    the dispute.

Standard of Review and Analysis

[14]

The
    motion judges decision should not be overturned unless he made a palpable and
    overriding error  that is to say, that he made unreasonable findings that were
    not supported by the evidence.

[15]

This
    action is 25 years old. It lay essentially dormant for lengthy periods, despite
    case management efforts directed at bringing the matter to trial.
    Notwithstanding the intermittent collaborative approach and the joint retainer
    of experts, it was open to the motion judge to conclude that the overall delay
    from 2003 was both inordinate and inexcusable. He clearly took into account the
    nature and complexity of the action.

[16]

A
    presumption of prejudice flows from lengthy delay. Memories fade, witnesses
    become unavailable and documents may be lost. As observed in
Clairmonte v.
    Canadian Imperial Bank of Commerce
, [1970] 3 O.R. 97 (C.A.), at p. 116,
    [w]hile the presumption will speak as a barely audible caution immediately
    after a limitation period has expired, it may command with increasing
    imperativeness on the passage of a substantial time, depending on the cause of
    action. Use of the presumption is particularly appropriate when dealing with a
    25 year old action relating to events in the period from 1924 to 1958. There is
    an inherent difficulty in proving that there is relevant evidence from long ago
    which no longer exists. Given the lengthy delay in this case, the motion judge
    did not err in finding that there was a presumption of prejudice. Further, he
    did not err in concluding that CNR had failed to rebut this presumption. He did
    not require CNR to meet the impossible standard of establishing that the
    evidence of every conceivable person who might have had any relevant
    observation had been preserved. Instead, he identified key individuals, such as
    the retired foreman for the Public Utilities Commission and a former employee
    of Hogg Fuel, who likely had some relevant information but whose evidence was
    no longer available. It was open to the motion judge to conclude on the record
    before him that CNR had not rebutted the presumption of prejudice flowing from
    the very long delay. Although, as noted by the appellant, some of the witnesses
    became unavailable during the period of excused delay, that is, before 2003,
    the record also shows that a number became unavailable during the period of
    unexcused delay, that is, after 2003.

[17]

Finally,
    the motion judge did not err by failing to distinguish between the claims
    against the two respondents. The source and location of the coal tar dumping
    was a common issue in the claims against both the City and Hogg Fuel.

[18]

As
    no palpable and overriding error has been shown, the appeal on the merits must
    be dismissed.

[19]

CNR
    also appeals from the disposition of costs by the motion judge. It argues that
    it should have been awarded costs thrown away from 2008 because the respondents
    did not bring their motion to dismiss for delay until 2014. Cost awards are
    entitled to deference. Given that the responsibility for advancing the action
    rested with CNR, we see no error in the motion judges award of costs.

[20]

Finally,
    CNR submits that the costs of the one-day motion awarded to the successful
    respondents, in the sums of $83,000 and $29,000, were excessive. Again, we see
    no basis to interfere with the motion judges cost awards.

[21]

For
    these reasons, the appeal is dismissed, with costs to the City fixed at
    $23,911.81 and to Hogg Fuel in the sum of $5,000, both all inclusive.

Paul
    Rouleau J.A.

David
    Watt J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ciano Trading & Services C.T. v. Skylink
    Aviation Inc., 2015 ONCA 89

DATE: 20150209

DOCKET: C58685 and C58686

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Ciano
    Trading & Services C.T. & S.R.L.

Applicant (Appellant)

and

Skylink
    Aviation Inc.

Respondent (Respondent
    in Appeal)

Application Under Rule 14.05(2) and (3)(d), (g) and (h) of the
Rules
    of Civil Procedure

AND BETWEEN

Ciano Trading
    & Services C.T. & S.R.L.

Plaintiff (Appellant)

and

Skylink
    Aviation Inc., David Miller, Dewy (a.k.a. Kris)

Bebbington,
    Eitan Dehtiar, Robert Waring, Dayle Waring,

Tracy
    Munday, Harry Green, Andrew Hamlin, Philip Hamson,

Rael
    Nurick and Jan Ottens

Defendants (Respondents
    in Appeal)

Melvyn L. Solmon and Raffaele Sparano, for the appellant
    Ciano Trading & Services C.T. & S.R.L.

Francy Kussner and Brad Halfin, for the respondent

Heard and released orally:  January 26, 2015

On appeal from the order of Justice David M. Brown of the
    Superior Court of Justice, dated March 17, 2014.

ENDORSEMENT

[1]

This is an appeal of the order of the motion judge granting a stay of
    proceedings pending arbitration.

[2]

The parties entered into a Services Agreement that contained an
    arbitration clause and a survival clause, which provided a list of provisions that
    would survive termination of the agreement.  The survival clause did not
    include a reference to the arbitration clause.

[3]

The respondent terminated the Services Agreement. The appellant
    commenced an action against the respondent for numerous breaches of the Service
    Agreement as well as several torts. In addition, the appellant brought an
    application for declaration that the arbitration clause did not apply. The
    respondent brought a motion to stay the proceedings pending arbitration.

[4]

The motion judge granted the respondents motion and dismissed the
    appellants application. He found that it was unclear whether the arbitration clause
    survived the termination of the Services Agreement and, pursuant to the
    competence-competence principle, referred the matter to an arbitrator to
    determine whether the arbitrator had jurisdiction.

[5]

The appellant submits that the motion judge erred in his interpretation
    of the Services Agreement and that he should have found that the arbitration
    clause did not survive the termination of the agreement. We disagree.

[6]

Under the
International Commercial Arbritrator Act
, R.S.O.
    1990, c.I.9 and the UNCITRAL  Model Law on International Commercial Arbitration,
    the motion judge was obliged to defer the issue of applicability of the
    arbitration clause to the arbitrator unless the agreement is null and void,
    inoperative or incapable of being performed.

[7]

The court has the discretion to determine a challenge to an arbitrators
    jurisdiction on a pure question of law or a question of mixed fact and law that
    requires for its disposition only superficial consideration of the documentary
    evidence. However, the case law recognizes that where it is unclear if the
    arbitrator has jurisdiction, it is preferable to leave the issue to the
    arbitrator pursuant to the competence-competence principle.

[8]

In the present case, the motion judge held that the positions advanced
    by both parties as to whether the arbitration clause survived termination were
    arguable. We see no error in his analysis and his decision, in light of that
    finding, to refer the issue of jurisdiction to the arbitrator.

[9]

In these circumstances, the motion judge was under no obligation to make
    a determinative finding regarding the operability of the arbitration clause.

[10]

We
    also see no error in the motion judges articulation of the exceptions to the
    competence-competence principle.

[11]

Finally,
    we are not persuaded that the stay ordered was contrary to the principles
    articulated in the Supreme Court of Canadas decision in
Hyrniak v. Maudlin
,
    2014 SCC 7.

[12]

The
    appeal is dismissed, the matter is referred to arbitration.

[13]

The
    respondent is entitled to its costs, which we fix at $20,000, inclusive of
    disbursements and HST.

J. MacFarland J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Daoust-Crochetiere v. Ontario (Natural Resources), 2015 ONCA 68

DATE: 20150202

DOCKET: C58577

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

BETWEEN

Jason Daoust-Crochetiere

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of the Province of
    Ontario as represented by the Minister of Natural Resources for the Province of
    Ontario

Defendant (Respondent)

Andrew Kerr, for the appellant

Thomasina Dumonceau, for the respondent

Heard: Submissions in writing as to costs.

COSTS ENDORSEMENT

[1]

Having reviewed the written submissions of the respondent, we order costs
    payable to the respondent in the amount of $2,500.00, inclusive of
    disbursements and all appliance taxes.

G.R. Strathy C.J.O.

K. Feldman J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dexter Road
    Development Corp. v. Itkine, 2015 ONCA 81

DATE: 20150204

DOCKET: C59049  C59050

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Dexter Road Development
    Corp.

Applicant

(Respondent in Appeal)

and

Victor
    Itkine and Rina Itkina

and Canadian Imperial
    Bank of Commerce

Respondents

(Appellant)

AND  BETWEEN

Victor Itkine and Rina Itkina

Plaintiffs (Appellants)

and

Frederick
    Joseph Leach and

Frederick
    Joseph Leach and Arleen Jane Podohordeski

Estate
    Trustees of the Estate of Elsie Jane Leach, Deceased

Defendants (Respondents)

Douglas Christie, for the appellants

Howard D. Gerson, for the respondents in the Leach Proceedings

Marco Drudi, for the respondent Dexter Road Development
    Corp.

Heard and released orally:  January 22, 2015

On appeal from the judgments of Justice Kelly P. Wright of
    the Superior Court of Justice, dated June 4, 2014.

ENDORSEMENT

[1]

This is a consolidated appeal of two judgments following a Rule 21
    motion.  The appellants sought a determination that an option agreement (the Option
    Agreement) was invalid because it failed to comply with the provisions of s. 50(21)
    of the
Planning Act
, R.S.O. 1990, c.P.13 (the Act).  The motion
    judge declared that the Option Agreement was valid.

[2]

The underlying action arose from the sale, approximately 20 years ago,
    of 107 Pemberton Road, in Richmond Hill, Ontario (the Property). The Property
    represents the whole of a lot on a plan of a subdivision. The purchasers, the
    Montesanos, acquired the Property from Frederick and Elsie Leach and granted
    the Leaches an option to repurchase a portion of the Property within 21 years,
    less 10 days from the date of closing. The Option Agreement was conditional on
    compliance with the Act and the Leaches were made responsible for all costs
    related to the severance. The Option Agreement did not specifically reference
    s. 50 of the Act.

[3]

The Option Agreement has been assigned twice since the original
    purchase.  The first assignment was made to a numbered company.  The second
    assignment was made to the respondent Dexter Road Development Corp. (Dexter).
    The appellants acquired the Property from a successor in title to the
    Montesanos.

[4]

The appellants brought a motion pursuant to rule 21.01 for a
    determination that the Option Agreement did not comply with the Act because it
    failed to expressly refer to s. 50 of the Act, as they say was required by s.
    50(21). The Leaches brought a cross-motion for summary judgment pursuant to Rule
    20, seeking to validate the Option Agreement. Dexter commenced an application
    seeking the same relief.

[5]

The motion judge held that the Option Agreement is compliant with the
    Act and that the respondents have a valid and enforceable interest in the Property.

[6]

The appellants advanced two principal arguments on appeal. First, they
    submit that for the Option Agreement to be valid, it must refer on its face to
    compliance with s. 50 and not merely the Act in general. Second, the motion
    judge erred in relying on the
Legislation Act
,
2006
, S.O.
    2006, c. 21, in coming to her conclusion that the Option Agreement was valid.

[7]

We would not give effect to either ground of appeal.

[8]

We do not accept the submission that the case law supports the
    proposition that s. 50 must be specifically referenced. To the contrary, in our
    view, by making the Option Agreement conditional upon compliance with the Act,
    the Option Agreement satisfied the statutory requirement that there be an
    express condition that it would only be effective if the requirements of s. 50
    were satisfied. Reference to the Act in general is sufficient to meet the
    obligation imposed by s. 50(21) because it is impossible to effect a severance
    that is in compliance with the Act, but not s. 50 of the Act.

[9]

The motion judge did not improperly apply the
Legislation Act 2006
.
    She noted that the legislation was not in force at the time of the execution of
    the Option Agreement and, in any event, it does not apply to private contracts.
    The motion judge simply referred to that legislation by analogy, as she was
    entitled to do, in her analysis whether a general reference to the Act
    constitutes a reference to the provisions of the Act.

[10]

The
    appeal is, therefore, dismissed with costs fixed in the amount of $7,500 to the
    Leach respondents and $4,000 to Dexter, inclusive of disbursements and HST.

K.
    Feldman J.A.

E.
    A. Cronk J.A.

C.
    W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Garic v. Mack
    Trucks Canada, 2015 ONCA 90

DATE: 20150206

DOCKET: C58958

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Ljiljana Garic and
Pero Garic

Plaintiffs/Defendants

By Counterclaim

(Appellant)
    (Respondent)

and

Mack
    Trucks Canada, Mack Trucks International,

Cambridge
    Mack, MacK Sales & Service of Stoney

Creek
    Ltd., Performance Equipment Ltd., Arvin

Meritor,
    Inc., Arvinmeritor CVS Canada Inc., General

Bearing
    Corporation and Volvo Group Canada Inc.

Defendants

and

Arvinmeritor, Inc., and
    Arvinmeritor CVS Canada Inc.

Plaintiffs by Counterclaim

Paul R. Sweeny and Adam J. Huff, for the appellant
    Ljiljana Garic

David S. Young and Kevin R. Bridel, for the respondent Pero
    Garic

Heard and released orally:  January 29, 2015

On appeal from the order of Justice David A. Broad of the
    Superior Court of Justice, dated May 20, 2014.

ENDORSEMENT

[1]

This is an appeal from the decision of Broad J. dismissing the
    plaintiffs motion to add a co-plaintiff as a party defendant. This single
    vehicle accident occurred in July 2006. In November 2008 a statement of defence
    and counterclaim was delivered on behalf of Mack Trucks wherein specific allegations
    were pleaded about the failure to maintain the truck and pursuant to which the
    co-plaintiff soon after was made a third party.

[2]

The appellant did not move to add the proposed defendant till May of
    2012. In our view, it would have been clear to the appellant in November 2008
    that there may be some liability on the part of Pero Garic.

[3]

In our view, the application was too late. We see no error in the
    decision of the motion judge and the appeal is dismissed.

[4]

Costs of the appeal to the respondent fixed in the agreed sum of $5000
    inclusive of disbursements and HST.

J.
    MacFarland J.A.

C.
    W. Hourigan J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Glasco v. Bilz, 2015 ONCA 83

DATE: 20150204

DOCKET: C59331

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Kimberly Glasco

Applicant

(Respondent on Appeal)

and

Christopher Bilz

Respondent

(Appellant)

Dani Z. Frodis and Daniel Bernstein, for the appellant

Steven M. Bookman, Chris Stankiewicz and Maia
    Rabinovitch, for the respondent

Heard and released orally: January 15, 2015

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated September 2, 2014.

ENDORSEMENT

[1]

We consider the decision of Mesbur J. to be a final order.  In our view,
    the subsequent decision of Kruzick J. declining to consider on the merits a motion
    to reinstate the pleadings has no impact on our jurisdiction to hear this
    appeal from the order of Justice Mesbur.

[2]

The decision of Mesbur J. to strike the appellants pleadings on certain
    issues for non-compliance with various disclosure orders was an exercise in her
    discretion which is entitled to deference in this court absent error in
    principle or material misapprehension of the evidence.

[3]

The motion judge correctly identified the operative principles in the
    last sentence of paragraph 24 of her reasons.

The issues is whether the respondent remains in default,
    whether his default is wilful, and if so, whether striking his pleadings is the
    only appropriate remedy available.

[4]

We will address each of those three criteria.

[5]

On the material, there can be no doubt that required disclosure remained
    outstanding at the time of the motion before Mesbur J.  The respondents
    affidavit identified in detail many deficiencies in the appellants
    productions.  The appellants affidavit addressed many of those alleged deficiencies
    but also left many entirely unaddressed.  There was ample ground upon which the
    motion judge could find that the respondent was in default of the production
    orders at the time of the motion.

[6]

There was also ample evidence from which the motion judge could find
    that the default was wilful.  That evidence included the evidence that the
    default continued over almost two years and had been the subject of various
    court orders.  As the motion judge indicated, the appellant had many
    opportunities to comply with the disclosure order and failed to do so.

[7]

The responses fashioned by the appellant on the motion to strike are
    also relevant to the question of wilfulness.  The appellant chose on the motion
    judges finding to obfuscate the nature and extent of his response to the
    disclosure obligation leaving the motion judge unable to satisfy herself as to
    the extent to which the appellant had complied with the order.  The motion
    judge observed at paragraph 30:

I am not going to do the respondents work for him.  The
    applicant, as required, has set out specifically the disclosure still missing
    from what the respondent was ordered to produce.  If the respondent cannot show
    that he has produced the information, or provides a credible and compelling
    reason why he cannot do so, (as he was ordered to do) his pleadings must be
    struck.  I am not persuaded the respondent has met his burden.  He could have
    done so, simply by responding specifically regarding the missing information.
    He has not.  I infer he deliberately chose how to respond to this motion.  His
    response speaks volumes  both literally and figuratively.

[8]

It was open to the motion judge to view the appellants response as part
    of a strategy designed to avoid compliance with the outstanding disclosure
    orders.  In our view, that strategy is indicative of a wilful disobedience.

[9]

Finally, with respect to the remedy imposed, we acknowledge that
    striking pleadings is a drastic remedy.  However, in this case the motion judge
    mitigated that remedy by including the provision that the appellant could move
    to reinstate his pleadings on proper evidence.  The motion judge made it
    clear in her reasons what would be needed by way of proper evidence to
    facilitate the reinstatement of the pleadings.  The appellant chose not to
    pursue that avenue in a timely fashion.

[10]

The
    appeal is dismissed.  Costs are awarded to the respondent in the amount of
    $10,000 inclusive of disbursements and relevant taxes.

Doherty
    J.A.

R.G.
    Juriansz J.A.

Huscroft
    J.A.