COURT OF APPEAL FOR ONTARIO

CITATION: Baker v. Bell Media Inc., 2015 ONCA 835

DATE: 20151202

DOCKET: C60330

Simmons, van Rensburg and Hourigan JJ.A.

BETWEEN

Keith A. Baker and UC Live Inc.

Plaintiffs

(Appellants)

and

Bell Media Inc. and David Corey

Defendants

(Respondents)

James Zibarras, for the appellants

Andrea Laing and Peter H. Smiley, for the respondents

Heard and released orally:  November 13, 2015

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated March 11, 2015.

ENDORSEMENT

[1]

The appellants Keith Baker and his company, UC Live Inc., are concert
    promoters who advertised on radio stations owned by the respondent Bell Media
    Inc. It is alleged that, due to the outstanding litigation brought by the
    appellants against a Bell related company, Bell refused to sell them radio
    advertising for a concert they were promoting.

[2]

The appellants eventually cancelled the concert due to low ticket sales.
    The appellants then brought an action against Bell for breach of contract,
    promissory estoppel and breach of fiduciary duty, seeking to recoup the losses
    from the cancelled concert.

[3]

Bell brought a motion to strike the statement of claim and dismiss the action
    on the basis that the pleading failed to disclose a reasonable cause of action.
    The motion judge struck the claims for breach of contract and promissory
    estoppel, with leave to amend. This appeal relates only to the motion judges
    decision to strike the claim for breach of fiduciary duty without leave to
    amend.

[4]

The motion judge found, that accepting the contents of the statement of
    claim as true, it is arguable that Bell had the scope for the exercise of
    discretion or power over the appellants and that the power could have been
    unilaterally exercised. He also found that it was possible that the necessary
    element of vulnerability was present. However the motion judge declined to find
    a new category of fiduciary relationship in these circumstances. The appellants
    raised a number of issues in their factum. In oral argument however, the
    appellants ultimately confined their submissions to a request that they be
    granted leave to amend. The proposed amended claim, which was not provided in a
    written form to the court, had at its essence a breach of fiduciary duty claim
    based on a failure to contract.  A failure to contract in these circumstances
    does not qualify as a breach of fiduciary duty. Therefore, the proposed amended
    statement of claim would not cure the defect and the motion judge did not err
    in refusing leave to amend.

[5]

The appeal is dismissed.

[6]

Costs of the appeal are to the respondent on a partial indemnity scale,
    fixed in the amount of $10,000, inclusive of all fees, disbursements and applicable
    taxes.

Janet
    Simmons J.A.

K.
    van Rensburg J.A.

C.
    W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Berta v. Berta, 2015 ONCA 918

DATE: 20151223

DOCKET: C59380

[
Corrigendum released on January 18, 2016
]

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Delia Joan Berta

Appellant

and

Raymond Louis Berta

Respondent

Douglas A. Quirt, for the appellant

Peter M. Callahan, for the respondent

Heard: September 1, 2015

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated August 20, 2014, with reasons reported at 2014
    ONSC 3919, and the costs order, dated June 11, 2015, with reasons reported at
    2015 ONSC 1493.

Cronk J.A.:

[1]

This matrimonial litigation arose from the collapse of a long-term marriage
    (27 years) between Delia Joan Berta (the Wife) and Raymond Louis Berta (the
    Husband).   Following separation, the Wife applied in the Superior Court for
    a divorce, spousal support, equalization of property, and various other forms
    of relief under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.) and the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).  At trial,
    the main issues in contention concerned the parties annual incomes for spousal
    support purposes and the equalization of their net family properties (NFPs).

[2]

The trial judge ordered that the Wife pay an equalization payment of
    $101,223.13 to the Husband.  He further ordered that the Husband pay indefinite
    periodic spousal support of $5,380 per month to the Wife, commencing February
    1, 2014.  The trial judge also awarded full indemnity costs of $460,179.57 to
    the Husband.

[3]

The Wife appeals the trial judges rulings on the appropriate quantum of
    spousal support and the equalization payment.  She further appeals from his costs
    award against her.
[1]

I.        Background in Brief

(1)

The Marriage

[4]

The parties married on December 31, 1982 and separated on March 26, 2010.
    At the time of trial, the Wife was 75 years old and the Husband was 68 years
    old.  Each party has adult children from his or her previous marriage and several
    grandchildren.

[5]

When the parties married in 1982, the Wife was employed as an executive
    with the Steel Company of Canada (Stelco), now known as U.S. Steel, in
    Hamilton, Ontario.  She held senior management positions with Stelco until she
    retired, after lengthy service with the company.  On retirement, she formed her
    own consulting company.

[6]

The Husband worked throughout his career in clinical research.  When the
    parties married, he was employed in that field by a company in Atlanta,
    Georgia.  After their marriage, the Wife supported the Husband until he
    obtained landed immigrant status in Canada.

[7]

In 1985, the Husband obtained a clinical research position in Ontario.  The
    following year, when his employers business was sold, the Husband decided to
    commence his own clinical research-based business.  He incorporated Applied
    Consumer Clinical Evaluations Incorporated (ACCE), together with 911184
    Ontario Ltd. (911 Ltd.), for this purpose.  The trial judge found, at para.
    10 of his reasons, that 911 Ltd. was a vehicle whereby monies could flow to
    [the parties] without the employees of ACCE knowing what remuneration the
    owners took.

[8]

The parties were equal shareholders in ACCE and served as directors of
    the company.  ACCE is the sole shareholder of 911 Ltd.

[9]

On the evidence before the trial judge, both parties dedicated labour
    and funds to the establishment and growth of ACCE, although the Husband operated
    the company on a day-to-day basis save for a brief period in the early 1990s.

[10]

Over
    time, ACCE prospered, attracting several large food companies as clients.  The
    Wifes consulting business also flourished.  As a result, the parties enjoyed a
    high standard of living throughout their marriage.  The trial judge described
    their lifestyle, at para. 15, as quite lavish.  It included expensive travel,
    generous gifts to each other, the costly purchase and renovation of their
    matrimonial home, the use of a cottage owned by 911 Ltd., and entertaining, on
    some occasions, more than 100 guests.

(2)

The Separation

[11]

In
    March 2010, the parties agreed to separate.  At that time, their principal
    assets consisted of their matrimonial home and their shares in ACCE.

[12]

Following
    separation, the matrimonial home was sold, the proceeds were divided equally
    between the Husband and the Wife, and each of the parties purchased separate
    residences.  The Wife also acquired a condominium in Florida.

[13]

On
    April 3, 2012, the Husband purchased the Wifes shares in ACCE for $2.2
    million.  Under the terms of the share purchase agreement, the purchase price
    was payable in part on closing of the share transaction and the balance of
    $1.85 million over time.

(3)

The Trial Judgment

[14]

In
    late July 2010, the Wife commenced proceedings under the
Divorce Act
and the
FLA
for spousal support from the Husband, equalization of the
    parties NFPs, and a divorce.

[15]

On
    August 20, 2014, following a nine-day trial, the trial judge ordered that the
    Wife pay a $61,530.12 equalization payment to the Husband and that the Husband pay
    indefinite periodic spousal support to the Wife of $5,380 per month, based on
    imputed annual incomes of $644,172 for the Husband and $484,356 for the Wife.
    He also granted the Wifes request for a divorce and awarded full indemnity
    costs of $460,179.57, inclusive of disbursements and HST, to the Husband.

[16]

After
    his August 2014 ruling, the parties jointly requested that the trial judge
    correct various errors in his calculations of the parties NFPs.  By
    corrigendum dated July 21, 2015, the trial judge did so.  As a result of
    adjustments to the parties NFPs, the trial judge directed that the Wife pay an
    adjusted equalization payment to the Husband in the amount of $101,223.13.

(4)

Additional Facts

[17]

Where
    additional facts are relevant, I will address those facts in the context of the
    issues to which they relate.

III.      Issues

[18]

There
    are three issues on appeal:

[2]

(1)

Did the
    trial judge err in determining the parties annual incomes for the purpose of
    spousal support?

(2)

Did the
    trial judge err in equalizing the parties NFPs by valuing the notional costs
    of the Wifes disposition of her ACCE shares at $0.00?

(3)

Did the
    trial judge err in awarding costs to the Husband on a full indemnity basis: i) by
    holding that the result achieved by the Husband at trial was as favourable as
    or more favourable than his pre-trial settlement offers; ii) by relying on allegations
    of fraud; and iii) by imposing a costs award that was disproportionate in the
    circumstances and unsupported by the evidence?
[3]

IV.     Analysis

(1)

The Parties Annual Incomes

[19]

The
    Wife appeals the amount of her periodic spousal support award, arguing that it rests
    on flawed calculations of the parties respective annual incomes.  She submits that
    the trial judge overstated her annual income by about $461,000 and understated
    the Husbands annual income by approximately $204,107.

(a)

Wifes Annual Income

[20]

The
    Wife attacks the trial judges calculation of her annual income on three
    grounds.  First, she argues that the trial judges reasons fail to reveal the
    basis and justification for his imputation of annual income to her in the
    amount of $484,356.  Second, she submits that his income calculation involved
    impermissible double dipping because it included earnings from sources that had
    already been addressed in the Wifes NFP, and equalized, namely: i) her Stelco
    pension; ii) her registered retirement income fund (RRIF); and iii) capital
    gains.  Third, the Wife maintains that the annual income imputed to her
    impermissibly included spousal support.

[21]

The
    Wife contends that, properly calculated, her annual income for the purpose of
    spousal support should include only income received by her under the Canada
    Pension Plan (CPP Benefits) ($11,567.04), investment income ($2,561.68) and
    U.S. Social Security benefits (US Benefits) ($9,216), as set out in her 2012
    income tax return, for a total of $23,344.72.

[22]

A
    trial judges award of spousal support will not be interfered with lightly by a
    reviewing court.  Deference to such awards promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge.  However, appellate intervention is appropriate where there is
    an error in principle, a significant misapprehension of the evidence, or the
    award is clearly wrong:
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at
    para. 11.  For the reasons that follow, I agree that the trial judges
    determination of the Wifes annual income for support purposes is
    unsustainable.

[23]

The
    trial judge commenced his spousal support analysis by reviewing the evidence of
    two experts regarding the parties incomes for support purposes.  For reasons
    that he explained, he placed little weight on the opinion evidence of the
    Wifes expert, Bruce Horsley, concluding that he had engaged in multiple,
    unnecessary disclosure requests and acted in an adversarial and partial
    manner.  In contrast, he accepted the evidence of Steve Ranot, the Husbands expert,
    describing him, at para. 62, as very thorough, fair and objective.

[24]

The
    Husband also called Brian Braun of MacGillivray and Associates, a chartered
    accountancy firm, as an expert witness at trial.  MacGillivray and Associates
    performed audits of ACCE and 911 Ltd.s books and records for 2010 and 2011,
    and conducted a review of the companies books for 2012.  The trial judge found,
    at para. 77, that Mr. Braun also testified in a fair, objective and neutral
    manner.

[25]

The
    trial judge next addressed the factors governing an award of spousal support set
    out in s. 15.2(4) and (6) of the
Divorce Act
and some of the Supreme
    Court of Canadas related jurisprudence.  He noted, at para. 92, that the court
    must examine the payee spouses need, the payor spouses ability to pay and,
    to some extent, the issue of double recovery.

[26]

The
    trial judge then turned to the application of the governing principles
    regarding spousal support to the Wifes circumstances.  He found, at para. 104,
    that the Wife had been fully compensated for her contributions to the marriage
    and to ACCE prior to the date of separation.  Accordingly, he held that she was
    not entitled to compensatory support.  This ruling is not challenged on appeal.

[27]

With
    respect to the Wifes need for support, the trial judge made the following key
    findings regarding the Wifes post-separation circumstances and conduct:

(1)

the Wife
    had significant assets with which to contribute to her own support, including
    her Stelco pension and her CPP and U.S. Benefits.  In combination, these assets
    yielded approximately $4,974 per month or $59,688 per annum in income (at para.
    106(a));

(2)

the Wife
    also had significant funds invested in a RRIF account ($380,673.71), together
    with $59,326.29 in further savings (at paras. 106(c) and (f));

(3)

by the
    time of trial, the Wife had received $1,050,000 from the Husband on account of
    the purchase price for her ACCE shares, plus about $350,000 as her share of the
    proceeds of sale from the parties 2011 disposition of the matrimonial home (at
    paras. 106(d) and (e));

(4)

the Wife had
    chosen not to use her post-separation assets in order to maximize her income
    and, by her own admission, had done nothing to achieve the best return on her
    capital (at paras. 98, 107 and 12223);

(5)

the Wife
    had also failed to make full disclosure of her income and assets in the
    matrimonial litigation, including with respect to her acquisition of a rental
    property in London, Ontario, her receipt of rental income from this property
    and, as well, interest income on a $200,000 loan made by her to her daughter
    (at paras. 98, 108 and 11112); and

(6)

the Wife
    did not feel any responsibility to contribute to her own support.  Instead, she
    had exhibited an attitude of entitlement (at paras. 110 and 11718).

[28]

Against
    this factual backdrop, the trial judge determined the parties respective
    annual incomes for support purposes and the appropriate quantum of periodic
    support to be awarded to the Wife.  As I have said, he awarded the Wife indefinite
    periodic spousal support of $5,380 per month.  He based this award on his calculations
    of the parties annual incomes and his finding that, post-separation, the Wife
    had failed to utilize her available assets to maximize her income and return on
    capital.

[29]

In
    imputing annual income to the Wife, the trial judge said merely, at para. 120,
    I find [the Wifes] income to be as follows: $484,356, which includes pension
    income and investment income.

[30]

However,
    the trial judge did not indicate the amounts of the Wifes pension and
    investment income that he included in his income imputation analysis.  Nor do
    his reasons furnish any other explanation as to the basis for the quantum of income
    imputed to the Wife or as to why it was appropriate in the circumstances.

[31]

At
    the appeal hearing, the Husbands counsel candidly acknowledged that nothing in
    the trial judges reasons reveals his methodology or any formula used by him to
    impute annual income to the Wife.  Nonetheless, counsel argued that the annual
    income fixed by the trial judge for the Wife is explained by three factors: i)
    the Wifes pension and investment income as disclosed in her 2012 income tax
    return; ii) interest earned on the Wifes RRIF post-separation; and iii)
    capital gains realized by the Wife in 2012.

[32]

I
    disagree.  Based on the trial judges reasons, I am unable to accept that these
    factors adequately account for the annual income that the trial judge imputed
    to the Wife.

[33]

There
    is no dispute that the Wifes gross income from all sources for 2012 was
    $593,709.68 (including spousal support received).  This amount was comprised of
    the following:

Other Employment Income

$522.00

Old Age Security Pension

$6,510.60

CPP or QPP Benefits

$11,567.04

Other Pension Income

$63,716.36

i)

US Benefits - $9,216

ii)

Stelco Pension - $39,729.60

iii)

RRIF - $14,774.45

Interest and Other Investment
          Income

$2,561.68

Taxable Capital Gains

$350,432.00

Support Payments Received

$158,400.00

__________

TOTAL:

$593,709.68

[34]

Thus,
    based on her 2012 income tax return, the Wifes pension and investment income totalled
    $84,355.68 (comprised of: i) Old Age Security Pension; ii) CPP Benefits and Other
    Pension Income; and iii) Interest and Other Investment Income).

[35]

The
    Husband contends that the remaining $400,000 of annual income imputed to the
    Wife is based on her post-separation earnings on her RRIF and capital gains.
    The Wifes 2012 tax return suggests that $14,774.45 (included in the Wifes
    Other Pension Income) could be attributed to annual RRIF income.  The trial
    judge also mentioned approximately $6,000 per year in interest income on the
    Wifes loan to her daughter and approximately $14,400 in rental income on the
    London property acquired by the Wife.  This leaves approximately $380,000 to be
    accounted for by capital gains or other investment income.

[36]

It
    is true that the Wifes 2012 income included $350,432 in taxable capital
    gains.  It is also the case that, under the ACCE share purchase agreement, she
    receives capital payment instalments for several years on account of the
    purchase price for her ACCE shares.  Under the terms of that agreement, the
    $2.2 million purchase price was to be paid to the Wife as follows: i) $350,000 at
    or around closing; and ii) in instalments: $50,000 on May 1, 2012, $150,000 on
    July 1, 2012, and 16 equal quarterly instalments of $100,000 each (for an
    annual total of $400,000) from October 1, 2012.  The last instalment of $50,000
    is payable on October 1, 2016.

[37]

While
    consideration of all sources of the Wifes income, together with her capital receipts
    under the ACCE share purchase agreement, to some extent might explain the trial
    judges imputation of $484,356 in income per year for the years 2013 to 2016,
    it does not adequately explain the attribution of this income for the purpose
    of calculating
indefinite
spousal support.  Further, I note that it is
    also unclear from the trial judges reasons whether he distinguished the Wifes
    capital receipts from her capital gains.

[38]

In
Boston v. Boston
, [2001] 2 S.C.R. 413, the Supreme Court held that if
    a payee spouse receives significant assets as part of equalization and does not
    invest those assets in an attempt to produce an income, the court should impute
    an income to the payee spouse based on what income those assets could
    reasonably produce if invested.  This assessment, however, cannot be based on
    artificial assumptions.

[39]

In
    this case, looking forward from October 1, 2016, the Wife could at the most be
    expected to have an asset portfolio of $2.2 million from the sale of her ACCE
    shares, plus: i) approximately $380,000 in her RRIF; ii) $350,000 from the sale
    of the matrimonial home; and iii) about $60,000 in additional savings.  This
    would yield a total asset portfolio of approximately $2.99 million.

[40]

The
    trial judge, at para. 107, criticized the Wife for investing in investment
    vehicles that earned only marginal annual interest (between 1.35 to 1.9 per
    cent).  Even at a generous annual interest rate of 6%, and taking account of the
    Wifes other pension and benefits income of $67,545 (other employment income, Old
    Age Security Pension, CPP and US Benefits and her Stelco pension), income from
    her RRIF, and her loan and rental income, this might be expected to yield
    approximately $282,119 in annual income ($179,400 (interest) + $67,545 + $14,774
    + $20,400 (loan and rental income)).

[41]

This
    calculation, while not intended to be precise, illustrates that an indefinite
    attribution of $484,356 in annual income to the Wife remains both entirely
    unexplained and without any apparent justification on both the trial judges
    reasons and the evidentiary record.  In my opinion, to award $5,380 in monthly
    periodic support,
indefinitely
, on the basis of an imputed income of
    $484,356, in the absence of any explanation for this imputation, constitutes
    reversible error.

[42]

In
    the result, I am compelled to conclude that the trial judges reasons on the
    important issue of the amount of annual income to be imputed to the Wife for
    spousal support purposes preclude meaningful appellate review.  Neither his
    imputation methodology nor his justification for the income imputed to the Wife
    can be discerned from his reasons.  The parties and this court should not be
    left to guess at the basis and justification for the trial judges calculation
    of the Wifes annual income.

[43]

Accordingly,
    I would set aside the trial judges spousal support award.  In light of this
    conclusion, it is unnecessary to address the Wifes remaining complaints concerning
    the trial judges calculation of her annual income.

(b)

Husbands Annual Income

[44]

The
    trial judge accepted Mr. Ranots evidence concerning the Husbands annual
    income in 2010 to 2012.  He averaged the Husbands annual earnings during that
    three-year period and concluded that the Husbands annual income for spousal
    support purposes was $644,172.

[45]

The
    Wife does not dispute that the Husbands annual income should be based on his
    average annual earnings for 2010 to 2012.  However, she argues that the trial
    judge erred by understating the Husbands average annual income by
    $204,107.30.  In particular, the Wife says, the trial judge failed to account
    for the following earnings that the Husband realized, or ought to have realized:
    i) $83,500 in income advances by ACCE to the Husband in 2011; and ii)
    $120,607.30 in advances accrued at ACCEs 2011 year end.

[46]

The
    Wife maintains that Mr. Brauns and Mr. Ranots evidence established that the
    amount at issue  $204,107.30  should have been taxed personally to the
    Husband.  Because Mr. Ranot failed to take this income adjustment into account
    in calculating the Husbands income, the trial judge erred by relying on his
    calculations.

[47]

The
    Wife submits that, properly calculated, the Husbands income in 2011 was
    $921,896.30, rather than $717,789 as posited by Mr. Ranot.  Adjusting for the
    2011 understatement yields $712,141.10 average annual income for the three-year
    period ending 2012.  This amount, the Wife says, should have been used to
    determine the amount of spousal support to be paid by the Husband.

[48]

I
    would reject the Wifes challenge to the trial judges ruling on the Husbands
    annual income for support purposes.  In my opinion, based on the evidentiary
    record before him, it was open to the trial judge to accept and rely on Mr.
    Ranots calculations of the Husbands annual income during 2010 to 2012.

[49]

Mr.
    Ranot testified that the Husband realized the following income: 2010 -
    $620,472; 2011 - $717,789; and 2012 - $594,055.  The trial judge accepted this
    evidence.  He held, at para. 75:

I accept Mr. Ranots opinion as to the available income of [the
    Husband] for support purposes.  It represents in my view the fairest and most
    realistic approach to the determination of income available for support.

[50]

The
    dispute regarding the Husbands 2011 earnings arises primarily from the
    evidence of Mr. Braun.  Based on his firms 20102011 audits of ACCE and 911
    Ltd. and review of the companies 2012 financial records, Mr. Braun testified
    that an accounting error had been made in 2011 relating to: i) a shareholders
    loan of $355,944 that was debited to the Husband and then credited to ACCEs
    retained earnings (the Shareholders Loan); and ii) a debit of $200,625
    regarding retained earnings that was credited in 2012 as an accrued commission
    to the Husband (the Accrued Commission).

[51]

Mr.
    Braun indicated that the necessary accounting adjustments for the Shareholders
    Loan were made and the Husbands loan account with ACCE was charged with this
    amount.  Further, ACCEs management informed him that the amount of the Accrued
    Commission was going to be included in the Husbands income.

[52]

Mr.
    Braun also testified that ACCE and 911 Ltd.s 2010 and 2011 financial
    statements fairly represented the income, expenses, assets and liabilities of
    the companies and that he found no evidence of any inaccuracy in the companies
    2012 financial statements.

[53]

As
    summarized by the trial judge in his reasons, at paras. 69 and 79, Mr. Ranot testified
    that all the parties expenses paid for by the companies had been accounted
    for; that he did not see anything that would represent anything other than
    errors that could be and were corrected by accounting adjustments; and that he
    had no doubt that he saw all the money in the companies.

[54]

The
    trial judge addressed the issue of the 2011 accounting error and made the
    following findings, at para. 77:

This [error] was picked up in the following year and resulted
    in [the Husband] paying more taxes as an adjustment had to be made to his loan
    account in the following year to correct the error.  This was in fact done and
    [the Husband] was taxed on the higher amount in 2012.

[55]

The
    Wife contends that these findings are tainted by palpable and overriding error
    because there was no evidence at trial that the amount of the Accrued
    Commission error was actually included as income in the Husbands income tax
    returns.  In other words, although the Husbands expert witnesses acknowledged
    that the Husband should be taxed on this amount and the requisite adjustment to
    the Husbands income should be made, in fact there was no evidence that this had
    actually occurred.

[56]

The
    record supports this assertion.

[57]

The
    trial judges impugned statements that an adjustment had to be made to [the
    Husbands] loan account in the following year to correct the error.  This was
    in fact done and [the Husband] was taxed on the higher amount in 2012, must be
    viewed in the context of the evidence at trial regarding the accounting error
    at issue.  That evidence does not establish that the amount of the Accrued
    Commission error was included in the Husbands income for tax purposes in 2011
    or 2012.  Nor, however, does the record confirm that it was not.

[58]

Mr.
    Braun testified that the necessary accounting entries to adjust for the
    Shareholders Loan error were made, and the Husbands loan account was charged
    with this amount.  However, he was unable to confirm that the Husband had
    included the amount of the Accrued Commission error in his income because he
    had neither prepared nor reviewed the Husbands tax returns.

[59]

Mr.
    Ranots evidence was to similar effect.  He said that the best approach to correcting
    the 2011 accounting error was to make the appropriate adjustments to ACCEs and
    911 Ltd.s 2011 financial records, rather than adjusting their 2012 records.  But,
    as with Mr. Braun, he could not confirm whether the Husband included the income
    attributable to the Accrued Commission error in his personal income tax
    returns.

[60]

Nor
    did the Husbands evidence at trial clarify the issue.  During his testimony,
    the Husband was not asked if he included the amount of the Accrued Commission
    error in his 2011 or 2012 income for tax purposes.  On cross-examination, he
    said only that he did not recall if his accountant brought the discrepancy to
    his attention.  I note that the Husbands 2012 income tax return does not form
    part of the record before this court.

[61]

Thus,
    there was evidence at trial that the necessary accounting adjustments were made
    to correct the Shareholder Loan error.  But the evidentiary record does not
    establish that the necessary adjustments to correct the Accrued Commission
    error were also made, at least in respect of the requisite adjustment to the
    Husbands income.  This gap in the evidence militates in favour of the
    conclusion that the trial judges description of the evidence relating to the
    accounting adjustments, quoted above, in fact pertained to the Shareholder Loan
    error, but not to the Accrued Commission error.

[62]

Clearly,
    the evidentiary record on this issue is less than satisfactory.  I would
    summarize the pertinent, available evidence in this fashion:

1)

the
    expert accounting evidence established the 2011 Accrued Commission error and
    the need for accounting adjustments to correct it, including adjustments to the
    Husbands income;

2)

ACCE
    and 911 Ltd.s auditors were informed that the necessary accounting adjustments
    for the Accrued Commission error would be made by ACCE management;

3)

the

auditors

were

satisfied

that ACCE and 911 Ltd.s 20102011
    consolidated financial statements fairly represented the companies income,
    expenses, assets and liabilities and that the 2012 financial statements reflected
    no inaccuracies;

4)

Mr.
    Ranot concluded that any accounting errors could be and were corrected by
    accounting adjustments.  He proceeded on this basis in calculating the
    Husbands annual income.  However, neither he nor Mr. Braun were in a position
    to confirm that the Husbands income, as opposed to the companies books, was adjusted
    to account for the Accrued Commission error; and

5)

by
    the same token, there was no evidence at trial, accepted by the trial judge,
    establishing that the Husband had failed to personally account for his income
    relating to the Accrued Commission error.

[63]

The
    Wife bore the onus at trial to establish an evidentiary foundation for the
    imputation of income that she requested for the Husband:
Homsi v. Zaya
,
    2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28;
Nielson v. Nielson
,
    2007 BCCA 604, 47 R.F.L. (6th) 26, at para. 22;
C.L.E. v. B.M.R.
, 2010
    ABCA 187, 86 R.F.L. (6th) 26, at para. 27.  For the reasons outlined above, she
    failed to do so.

[64]

It
    follows that the Wife has not demonstrated a palpable and overriding error in
    the trial judges calculation of the Husbands annual income.  On the
    evidentiary record at trial, it was open to the trial judge to accept Mr.
    Ranots income calculations as the best available evidence of the Husbands
    income for support purposes.

[65]

I
    would reject this ground of appeal.

(2)

Notional Disposition Costs of ACCE Shares

[66]

The
    trial judge ordered the Wife to pay an equalization payment to the Husband in
    the amount of $101,223.13, based on NFPs of $2.89 million for the Wife and $2.68
    million for the Husband.  In calculating the parties NFPs, the trial judge
    assigned a nil value ($0.00) to the notional costs of disposition of each of
    the Wifes and the Husbands ACCE shares (the Share Disposition Costs).

[67]

The
    Wife argues that the trial judge erred in his equalization analysis by failing
    to value her Share Disposition Costs at $364,884.  She submits that, as of March
    26, 2010, the date of separation (V-Day), the sale of her ACCE shares was
    imminent and sufficient evidence was adduced at trial to support a $364,884
    valuation of her Share Disposition Costs.  I disagree.

[68]

The
    significance of this issue flows from the equalization of property scheme
    contemplated by s. 5 of the
FLA
.  Under that scheme, on marriage breakdown,
    the spouse with the lesser NFP is entitled to an equalization payment from the
    other spouse in an amount equal to one-half the difference between the spouses
    respective NFPs.  Section 4(1) of the
FLA
defines the term net family
    property (NFP) as the value of all the property, except property exempted
    under s. 4(2), that a spouse owns on the valuation date (V-Day), after
    deducting specified debts and other liabilities.  Section 4(1.1) of the
FLA
stipulates that the specified liabilities to be deducted from a spouses NFP
    include any applicable contingent tax liabilities in respect of the property.

[69]

In
    this case, the parties accept that, for property equalization purposes, V-Day
    is the date of separation.  The deduction from the Wifes NFP of any Share Disposition
    Costs in excess of $0.00 would narrow the difference between her NFP and that
    of the Husband.  This, in turn, would reduce and potentially eliminate any
    equalization payment owed to the Husband.

[70]

In
    support of her argument that the trial judge erred by failing to value her
    Share Disposition Costs at $364,884, the Wife relies on the undisputed evidence
    of the Husbands April 2012 purchase of her ACCE shares for $2.2 million, together
    with the evidence of the taxes paid by her in 2012 on the capital gains arising
    from this share purchase transaction, as reflected in her 2012 income tax
    return.

[71]

The
    Wife also relies on the evidence of David Straughan of MacGillivray and
    Associates, who was initially retained by the Husband to assist in structuring
    the Husbands purchase of the Wifes ACCE shares following separation.

[72]

Mr.
    Straughan testified that his firm advised both parties on the income tax
    implications of the proposed share purchase transaction and various options to
    minimize potential detrimental tax consequences for the Wife arising from the
    transaction.  He explained that, based on an assumed purchase price of $2
    million for her ACCE shares, the Wife would realize after-tax proceeds of $1,635,116.
    The difference between this amount and the assumed purchase price of $2 million
    ($364,884) represented the Wifes Share Disposition Costs.

[73]

Based
    on Mr. Straughans calculations, the Wife says that, in calculating her NFP,
    $364,884 Share Disposition Costs should have been deducted from the value of
    her property in accordance with ss. 4(1) and 4(1.1) of the
FLA
.

[74]

The
    trial judges reasons confirm that he appreciated the applicable legal
    principles governing the valuation of the parties Share Disposition Costs.  He
    stated, at para. 24, the court must make a meaningful determination of the
    value to be attributed [to the costs of disposition] at the date of separation.
    Citing this courts decision in
Zavarella v. Zavarella
, 2013 ONCA 720,
    117 O.R. (3d) 641, he framed the applicable test in this fashion, at para. 24:
    What is the reasonable likelihood that the debt will be incurred and what is
    the reasonable estimate of value?

[75]

Applying
    this test to the facts of this case, the trial judge concluded that a nil value
    should be assigned to the Wifes Share Disposition Costs, as well as to those
    of the Husband.  In reaching this conclusion, he made no reference to Mr.
    Straughans testimony, or to the tax calculations performed by MacGillivray and
    Associates.  That evidence, contrary to the trial judges suggestion, did
    provide some basis for the calculation of the tax consequences to the Wife associated
    with the disposition of her ACCE shares.

[76]

That
    said, the fact that the trial judge did not specifically address this evidence is
    of no moment.  I say this for the following reasons.

[77]

First,
    the calculations performed by Mr. Straughan, as set out in a summary report
    dated November 22, 2011, were undertaken in connection with the proposed post-V-Day
    sale by the Wife of her ACCE shares to the Husband.  The sale occurred in April
    2012, two years after V-Day.

[78]

The
    relevant inquiry was not what reasonable or notional Share Disposition Costs should
    be assigned to the Wifes ACCE shares at the time of the 2012 share transaction
    but, rather, whether there was a reasonable likelihood, as of V-Day, that the Wife
    would sell her shares and, if so, at what reasonably estimated value.  Mr.
    Straughan provided no evidence about the Share Disposition Costs, for either
    party, as of V-Day.  Indeed, there was no direct evidence at trial from any
    source concerning such costs, as of V-Day.

[79]

Second,
    the trial judge found that, as of V-Day, the Wifes sale of her ACCE shares was
    contemplated only as part of the parties proposed joint sale of  ACCE to a
    third party.  This sale ultimately collapsed.  The trial judge held, at para.
    24, that he was not given sufficient evidence in order to meaningfully assess
    the value of any notional disposition costs.  He concluded, at para. 26, that
    the only thing that was certain was that the parties owned equal shares and
    would have incurred similar costs of disposition for their ACCE shares on the
    sale of the company, which would have resulted in no imbalance in the net family
    property.

[80]

These
    findings were open to the trial judge.  As I have said, Mr. Straughans expert
    evidence did not pertain to the Share Disposition Costs, as of V-Day, of a sale
    by the Wife of her ACCE shares.  Further, the Husband led no evidence of his anticipated
    Share Disposition Costs as of V-Day, or at any other date.

[81]

Nor
    was the Wifes trial testimony inconsistent with the trial judges findings.
    The transcript does not support the conclusion that she had a clear intention
    to sell her ACCE shares as of V-Day.  Both parties testified that the Wife had
    wanted to sell her ACCE shares prior to separation, and the Wife said that she
    had offered or was at least willing to sell her shares.  But there was also
    evidence, described above, that as of V-Day, the parties were attempting to
    sell their entire joint interest in the company to a third party.

[82]

The
    trial judges appreciation of the evidence concerning the Wifes Share Disposition
    Costs and his assignment of weight to that evidence attract considerable
    deference from this court.  See for example,
Ottawa Community Housing
    Corporation v. Foustanellas (Argos Carpets)
, 2015 ONCA 276, 332 O.A.C.
    354, at para. 64.  In the circumstances described above, the trial judge was
    entitled to conclude that the only reliable evidence before him was that, if
    the parties ACCE shares were sold, they would both incur similar Share Disposition
    Costs, thus creating no imbalance in their respective NFPs.  I see no basis on
    which to interfere with this aspect of the trial judges NFP calculation for
    the Wife.

(3)

Remedy

[83]

On
    the disposition of this appeal that I propose, the trial judges spousal
    support award must be set aside because the basis for his determination of the
    Wifes annual income for support purposes is unclear, as is any justification
    for the amount of annual income imputed to the Wife.

[84]

At
    the appeal hearing, the parties took the position that if this court set aside
    the trial judges spousal support award based on an error by the trial judge in
    imputing annual income to the Wife, this court should substitute its own
    opinion regarding the appropriate quantum of the Wifes annual income for
    support purposes.  In the alternative, the Husband argued that the issue should
    be returned to the trial judge for clarification.

[85]

This
    court does not have the benefit of meaningful reasons from the trial judge
    concerning his income imputation to the Wife, a key component of his spousal
    support analysis.  Nor has this court been provided with any information
    regarding the Husbands and the Wifes post-2012 annual incomes.  In these
    circumstances, in my view, it is inappropriate for this court to attempt to
    ascertain the appropriate quantum of the Wifes periodic spousal support.

[86]

Accordingly,
    I would order that the issue of the proper quantum of the Wifes annual income
    for support purposes, and the consequences, if any, of that determination on
    the amount of periodic spousal support to be paid to her by the Husband, be
    remitted to the trial judge for reconsideration.  In the interim, unless
    otherwise agreed by the parties and without prejudice to the trial judges
    reconsideration of the issue, the Husband shall pay monthly spousal support to
    the Wife commencing January 1, 2016 in the same monthly amount as applied in 2011
    and 2012.  Depending on the outcome of the trial judges reconsideration of
    spousal support, the Husband may be credited for any overpayment by him of
    periodic spousal support from and after January 1, 2016, as the trial judge may
    direct.

(4)

Trial Judges Costs Award

[87]

The
    Wife argues that the trial judge erred in awarding costs on a full indemnity
    basis: i) by holding that the Husband achieved a result at trial that was as
    favourable as or more favourable than his pre-trial settlement offers, thus
    triggering the costs consequences of r. 18(14) of the
Family Law Rules
,
    O. Reg. 114/99 (the
Rules
); ii) by relying on allegations of fraud;
    and iii) by imposing a costs award that was disproportionate in the
    circumstances and unsupported by the evidence.

[88]

A
    trial judges costs award attracts considerable deference from a reviewing
    court.  Absent an error in principle, or unless a costs award is plainly wrong,
    appellate intervention with a trial judges discretionary costs ruling is
    precluded:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1
    S.C.R. 303, at para. 27.  In this case, I agree with the Wife that the trial
    judge erred in principle in fashioning his costs award.

[89]

In
    family law cases, a trial judges discretion to award costs is subject to the
    provisions of the
Rules
.  Rule 24(1) creates a presumption that a
    successful party is entitled to the costs ofa case.  But it does not require
    that a successful party is always entitled to costs:
M.(A.C.) v. M.(D.)
(2003), 67 O.R. (3d) 181 (C.A.), at para. 40.  Rule 24(4) states that a
    successful party who has behaved unreasonably may be deprived of all or part
    of his or her costs or ordered to pay all or part of the unsuccessful partys
    costs.  Further, in cases where a party has acted in bad faith, r. 24(8)
    directs that the court shall decide costs on a full recovery basis and shall
    order the party to pay them immediately.

[90]

Rule
    24(11) outlines the factors to be considered in awarding costs.  These include
    the importance, complexity or difficulty of the issues (r. 24(11)(a)), the
    reasonableness or unreasonableness of each partys behaviour in the case (r.
    24(11)(b)), the lawyers rates (r. 24(11)(c)), and the time properly spent on
    the case (r. 24(11)(d)).

[91]

Moreover,
    as in other civil cases, offers to settle in family law cases carry costs
    consequences.  Rule 18(14) stipulates that if a party makes an offer and
    obtains an order that is as favourable as or more favourable than the offer,
    that party is entitled to full recovery of costs from that date.  However,
    the court retains a discretion not to make an award of full recovery of costs
    even where a party has met the conditions in r. 18(14):
M.(A.C.)
, at
    para. 43.

[92]

In
Biant v. Sagoo
(2001), 20 R.F.L. (5th) 284 (Ont. S.C.), the court
    considered the costs award scheme under the
Rules
and commented, at
    para. 20:

[T]he preferable approach in family law cases is to have costs
    recovery generally approach full recovery, so long as the successful party has
    behaved reasonably and the costs claimed are proportional to the issues and the
    result.  There remains, I believe, a discretion under r. 24(1) to award the
    amount of costs that appears just in all the circumstances, while giving effect
    to the rules preeminent presumption, and subject always to the rules that
    require full recovery or that require or suggest a reduction or an
    apportionment.

[93]

This
    court has repeatedly endorsed the
Biant
courts approach to the
    determination of costs in family law disputes: see for example,
Ruffudeen-Coutts
    v. Coutts
, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4;
Sordi v.
    Sordi
, 2011 ONCA 665, 13 R.F.L. (7th) 197, at para. 21;
M.(A.C.)
,
    at para. 40.

[94]

Thus,
    a successful party in a family law case is presumptively entitled to costs.  An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party:
M.(A.C.)
, at paras. 40–43.

[95]

The
    trial judge explicitly addressed the principles governing costs under the
Rules
,
    including the costs considerations set out in r. 24(11).  With respect to these
    considerations, he found, at paras. 1823 of his costs reasons:

(1)

the issues
    in contention at trial were important and complex;

(2)

the Wife
    and her expert both acted unreasonably throughout the litigation.  For
    instance, the Wife refused to acknowledge the parties date of separation until
    the opening of trial.  She also took untenable positions regarding the parties
    NFPs and created the climate that fed her experts unreasonable litigious
    conduct, which, in turn, throated efforts to settle and led to
    disproportionate and unending requests for disclosure;

(3)

the Wife
    also made baseless allegations of fraud against the Husband; and

(4)

in
    contrast, the Husband and his experts acted in a reasonable manner throughout
    the proceedings.

[96]

These
    findings are amply supported by the evidentiary record.  They strongly support
    an award of costs to the Husband on a full recovery basis.  In particular, I
    note that, although the Wife did not expressly plead fraud, the record confirms
    that, supported by her expert, the Wife repeatedly alleged or insinuated fraudulent
    conduct by the Husband throughout the trial.  On the trial judges findings,
    the Wife failed to establish fraud and, generally, acted unreasonably in the
    conduct of the litigation.

[97]

The
    trial judge also considered the costs consequences of the Husbands pre-trial
    offers to settle.  After reviewing the Husbands first offer to settle and
    concluding that it did not attract costs consequences, the trial judge turned
    to the Husbands second offer to settle, dated November 5, 2013.  In respect of
    this offer, he stated, at para. 24:

I agree with counsel for the [Husband] that the [Husbands]
    second offer provided that the [Husband] pay a lump sum of $200,000 for
    support.  That amount would not have been taxable in the [Wifes] hands and
    would be equivalent to approximately $300,000.  At the rate of spousal support
    that I did order ($5,380.00 per month) the $300,000.00 equivalent would be
    equal to approximately 56 months of support that was ordered.  Given the
    respective ages and health of the parties that lump sum offer was most reasonable.

[98]

The
    trial judge concluded, at paras. 2526:

As a result of the above findings that include:

a)

the
    unreasonable conduct on the part of the [Wife] in the conduct of the case;

b)

the
    allegations of fraud that were not supported by any evidence;

c)

the
    [Husbands] offers to settle that were as good as if not better than the
    outcome at trial; and

d)

the
    success of the [Husband on] all material issues,

I order that the [Wife] shall pay to the [Husband] full
    indemnity costs.

[99]

And
    it is here, with respect, that I conclude that the trial judge fell into error
    in two ways.

[100]

First, the
    Husbands November 2013 offer to settle was not as good as if not better than
    the outcome at trial achieved by the Husband.  As the trial judge noted, the
    lump sum support amount contained in that offer, on an after tax basis, was the
    equivalent of approximately 56 months (4.8 years) of spousal support at the
    monthly rate awarded by the trial judge.  But, the trial judge awarded the Wife
indefinite
periodic spousal support.  In her costs submissions before
    the trial judge, the Wife provided life expectancy data that indicated her
    anticipated life expectancy was close to 13 years.  The Husband led no evidence
    to the contrary.

[101]

Thus, it was an
    error in principle to hold, as the trial judge did, that the Husbands November
    2013 offer was as good as if not better than the results at trial.  Consequently,
    the November 2013 offer could not trigger the costs consequences of r. 18(14).

[102]

Second, the
    trial judge held that the Husband had been successful at trial [on] all
    material issues.  This, too, was incorrect.  Spousal support was a hotly
    contested issue at trial.  The Husband maintained that the Wife was not
    entitled to spousal support.  The Wife prevailed on this issue as the trial
    judge ordered indefinite periodic spousal support.  He also ordered the Wife to
    pay an equalization payment to the Husband.  Accordingly, the Husband was not
    successful at trial on all material issues.  Rather, success at trial was
    divided on the main issues in dispute.

[103]

The trial judge
    made no explicit finding of bad faith against the Wife, so as to trigger r.
    24(8).  Yet, he found that the Wife and her expert acted unreasonably in the
    conduct of the litigation; that the Wife made serious, unsupported allegations
    of fraud; and that, in contrast to the Wife, the Husband acted reasonably
    throughout.  Under r. 24(4), these findings permitted the trial judge to
    deprive the Wife of any or all of her costs despite her partial success at
    trial, and to grant the Husband any or all of his costs.

[104]

That said, I
    have already concluded that two of the factual findings relied on by the trial
    judge to anchor his award of full indemnity costs (the November 2013 offer and
    success at trial) are based on a significant misapprehension of the evidence.
    It is unclear how much weight the trial judge attached to these findings in
    crafting his costs order.

[105]

Given the errors
    that I conclude the trial judge made in fixing the quantum of spousal support,
    the appropriate remedy is to remit the matter for the trial judges
    reconsideration, in light of these reasons.  The trial judge is in the best
    position on that reconsideration to fix an appropriate award of costs, in light
    of the relative success of the parties, their conduct at trial, and other relevant
    considerations under the
Rules
.

V.      Disposition

[106]

For the reasons
    given, I would allow the appeal in part by setting aside para. 3 of the divorce
    order (spousal support) and remit the question of the proper quantum of the
    Wifes annual income for spousal support purposes and the consequences, if any,
    of that determination on the amount of periodic spousal support to be paid to
    the Wife by the Husband to the trial judge for reconsideration in light of
    these reasons.  Pending the trial judges reconsideration ruling, the Husband
    shall continue to pay monthly spousal support to the Wife in accordance with
    para. 86 of these reasons.  I would also grant leave to appeal costs and remit
    the question of costs to the trial judge.  In all other respects, I would
    dismiss the appeal.

[107]

As success on
    this appeal has been divided, I would make no order as to the costs of the
    appeal.

Released:

KMvR                                    E.A. Cronk
    J.A.

DEC 23 2015                          I agree P. Lauwers
    J.A.

I agree
    K. van Rensburg J.A.

[1]
The Husband initially filed a cross-appeal.  He abandoned his cross-appeal in
    August 2015.

[2]
In her factum, the Wife also argued that the trial judge made several
    calculation errors concerning the value of various of the parties assets.  The
    trial judge corrected these errors in his corrigendum dated July 21, 2015.

[3]
In her factum, the Wife challenged the trial judges award of costs on a
    substantial indemnity basis.  In fact, the trial judge awarded costs on a full
    indemnity basis.


COURT OF APPEAL FOR ONTARIO

CITATION: Bryce v. Bryce, 2015 ONCA 871

DATE: 20151211

DOCKET: C60793

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Karen Bryce

Applicant (Appellant)

and

Wayne Bryce

Respondent (Respondent)

Karen Bryce, acting in person

Michael J. Polisuk, for the respondent

Heard: December 2, 2015

On appeal from the judgment of Justice S.M. Rogers of the
    Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1]

The appellant appeals from a final order setting out: (1) that the
    matrimonial home be listed for sale and stipulating the division of the
    proceeds of sale, (2) a determination of the quantum of child support,
    retroactive and prospective, (3) a determination of spousal support,
    retroactive and prospective, and (4) a determination of the allocation of s.7
    expenses.

[2]

The appellant seeks a new trial, primarily on the basis that: (1) the
    trial ought to have been adjourned to enable her to obtain better financial
    disclosure from the respondent, and a more comprehensive valuation of the
    respondents income and businesses, and (2) the trial judge was biased against
    her. She also objects to several procedural and evidential rulings made at
    trial, including the decision not to allow the appellant to claim an unequal
    division of property or relief under the
Canada Business Corporations Act
,
    R.S.C. 1985, c. C-44, neither of which had been pleaded by her.

[3]

The appellant also appeals on the basis that the substantive result is
    unconscionable. Essentially, the appellants position is that: (1) it is not in
    the childrens best interests for the matrimonial home to be sold; (2) the
    spousal support that she receives is inadequate to compensate her for the
    income earning disadvantage that she continues to face as a result of having
    been a stay-at-home mother; and (3) the calculation of child support is based
    on an incorrect assessment of the respondents income.

Adjournment

[4]

At the outset of trial, the appellants adjournment request was
    dismissed. The matter had already been set down twice for trial, and the trial
    judge was concerned that the expert evidence would become stale, and that an
    end to the litigation was necessary for the sake of the children and their
    financial viability.

[5]

The decision to grant or refuse an adjournment is a highly discretionary
    one and entitled to deference. Here, the trial judge took into account the
    previous adjournments, and was appropriately concerned with preserving the
    currency of expert evidence. Furthermore, the appellant offered no concrete
    proposal as to how she would obtain further evidence, and the trial judge had
    doubts about her financial means to retain another expert.

[6]

The trial judge concluded that although the appellant, as a self-represented
    party, was generally anxious about proceeding, this was not a valid ground for
    an adjournment.

[7]

The trial judge made no error in exercising her discretion to refuse the
    request for an adjournment. This ground of appeal is dismissed.

Bias

[8]

After the trial was concluded but before judgment had been given, the
    appellant brought a motion before the trial judge asking that the trial judge
    recuse herself for bias. The appellant states that the grounds for the motion
    were that the trial judge took part in a prior step in the proceedings: a
    motion for an interim access order on October 19, 2011. The trial judge
    dismissed the appellants motion that she recuse herself, noting that the trial
    was concluded, she had not presided over any settlement discussions, and had
    made no findings of credibility on the motion.

[9]

The trial judge was correct not to recuse herself on this basis, and in
    any event, her order was not appealed. Participation in an earlier step in
    proceedings of the type at issue here does not in of itself constitute bias.

[10]

The
    appellant also argues that the trial judge exhibited bias through her
    evidential and procedural rulings, as well as through her general demeanour.

[11]

We
    disagree. A trial judge has the responsibility to run a fair and efficient
    trial by ensuring that the rules of evidence and the
Rules of Civil
    Procedure
are followed. The appellant has not identified any errors with
    respect to the trial judges rulings, let alone any rulings that suggest bias
    against the appellant. This ground of appeal is dismissed.

Substantive findings

[12]

The
    appellant argues that the trial judge made reviewable errors: (1) with respect
    to her findings as to the date of separation; (2) in ordering the matrimonial
    home to be listed for sale and the stipulation of the distribution of proceeds;
    (3) in the quantum of child and spousal support ordered; and (4) in the
    apportionment of s.7 expenses.

[13]

In
    each case, the trial judge applied correct legal principles to factual findings
    that were supported by the evidence before her. The appellant has not
    identified any reversible errors of fact or of law on the part of the trial
    judge.

[14]

The
    trial judge made findings, based on the expert valuation evidence before her,
    that the value of the appellants equity in the respondents businesses was nil
    at the separation date. Her findings, both with respect to the date of
    separation and the valuation of the businesses, were supported by evidence and
    entitled to deference.

[15]

This
    is not to deny, and the trial judge did not deny, that the sale of the
    matrimonial home will be a hardship for both the appellant and the children in
    all the ways that the appellant describes. Nevertheless, as the trial judge
    held: the servicing of [the parties] debt is crippling them. This cannot continue.

[16]

The
    appellant rightly identifies a technical error in the reasons, with respect to
    the proportionate sharing of s. 7 expenses. The Order and the reasons both
    state that the proportionate share shall be 70% for the appellant and 30% for
    the respondent. This is clearly a transposition error, as the respondent
    concedes, and ought to have been corrected by motion to the Superior Court of
    Justice under rule 59.06(1). The proportionate sharing should be reversed, with
    70% of the s.7 expenses to be borne by the respondent, and 30% by the appellant
    and we so order.

Disposition

[17]

The
    appeal is dismissed.

Costs

[18]

Should
    the respondent seek costs of this appeal, we will receive written submissions
    of no more than two pages in length, exclusive of bill of costs, within seven
    days of this endorsement. The appellant will have seven days thereafter to
    deliver any written reply, not more than two pages in length.

Robert J. Sharpe J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Insurance Ltd. v. Caledon
    Mayfield Estates Inc., 2015 ONCA 864

DATE: 20151209

DOCKET: C60371

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Business Development Insurance Ltd.

Appellant/Plaintiff

and

Caledon
    Mayfield Estates Inc. and

the
    Estate of Palmyra Kucinskaite by the

Estate Trustees Constance
    Deltuvaite and Dana Dargis

Respondents/Defendants

Todd C. Hein, for the appellant

William S.M. Cord, for the Estate of Palmyra Kucinskaite

An Nguyen, for Caledon Mayfield Estates Inc.

Heard and released orally: December 7, 2015

On appeal from the judgment of Justice Michael G. Emery
    of the Superior Court of Justice, dated March 27, 2015.

ENDORSEMENT

[1]

The respondent sellers entered into an Agreement of Purchase and Sale
    (Agreement) with the appellant buyer for the purchase and sale of a property
    in Caledon (the Property). The respondents had previously agreed to sell the
    Property to a third party, 2079664 (207). The respondents reasonably believed
    the prior agreement to be at an end, however, 207 registered a caution against
    the Property.

[2]

The respondents asked the Land Registrar to delete the caution for
    insufficient documentation. Ultimately, the Land Registrar agreed that the
    caution would be removed on the day set for its expiry, which coincided with
    the day of the closing, Monday, December 16, 2013. The closing could proceed.
    On Friday, December 13, 207 registered a Certificate of Pending Litigation
    (CPL) against the Property.

[3]

The appellants indicated they were ready, willing and able to close but
    would not do so because they required the CPL to be removed from title. The
    respondents took the position that they were unable to discharge the CPL prior
    to closing and relied on an annulment clause within the Agreement to terminate
    the deal.

[4]

The appellant brought an action for specific performance and damages in
    the alternative. The respondent brought a motion for summary judgment
    dismissing the appellants action. The trial judge granted the respondents
    motion.

[5]

The issue on this appeal is whether there is a triable issue as to
    whether the respondents were entitled to rely on the annulment clause in the
    Agreement. The appellants position is that there is a genuine issue regarding
    whether the respondents were the cause of the title problem.

[6]

The appellant submits that the trial judge erred because he did not
    consider a letter from the appellants solicitor to the respondents solicitor
    on December 16 as a whole. That letter does not say that the CPL needed to be
    discharged that day. The respondents counsel interpreted the letter that way
    but his reply came in at 5:30 pm on December 16. The appellants letter of
    December 17 requests an extension of time to close. Indeed there were
    discussions about the respondent bringing a motion to discharge the CPL after
    that and the respondent did bring a motion in Toronto to discharge the CPL. That
    motion was adjourned from Toronto to Brampton and not pursued.

[7]

We disagree that, considered as a whole, the letter from the appellants
    counsel on December 16 should be interpreted as indicating that the appellants
    position was that the Agreement was to continue after the closing date. The
    letter says, Our client will be looking to your clients for damages as a
    result of the inability of your clients to provide clear title to our client
    and to complete this transaction on the closing date. The trial judge did not
    err in his interpretation of the letter, that it amounted to a demand to remove
    the CPL and not a request to extend closing.

[8]

The appellants second submission is that the trial judge ought not to
    have granted summary judgment because the action respecting 207 has not been determined.
    The appellant has no authority which would support this submission. Time was
    stipulated to be of the essence in the Agreement. This submission is
    dismissed.

[9]

The appellants third submission is that the motions judge subjected the
    evidence of the appellant and respondent to unequal scrutiny. He required the
    appellant to act in good faith but did not impose the same duty on the
    respondents. We see no merit in this submission.

[10]

Accordingly
    the appeal is dismissed. The respondent is entitled to the costs of the appeal
    which, by agreement, are fixed in the amount of $5000, inclusive of
    disbursements and all applicable taxes.

Karen M. Weiler J.A.

G. Pardu J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carneiro v. Durham (Regional Municipality), 2015
    ONCA 909

DATE: 20151222

DOCKET: C60366

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Leena Carneiro and Jessica Carneiro

Plaintiffs

and

Regional
    Municipality of Durham
, Miller Maintenance Limited

o/a The
    Miller Group, Her Majesty the Queen in Right of Ontario

Brandon Lee and Judson
    Alexander Moore

Defendants/
Appellant

and

Zurich
    Insurance Company Ltd.

Third party/
Respondent

David G. Boghosian and Laura M. Day, for the appellant

Van Krkachovski, for the respondent

Heard: November 27, 2015

On appeal from the order of Justice Gordon Lemon of the
    Superior Court of Justice, dated April 15, 2015, with reasons reported at 2015
    ONSC 2427.

By the Court:

[1]

The Regional Municipality of Durham appeals the dismissal of its motion
    for an order requiring Zurich Insurance Company Ltd. to defend the claims made
    against it in this automobile negligence case.

[2]

We allowed the appeal with reasons to follow. These are our reasons.

Background

[3]

Antonio Carneiro Jr. died in a car accident on a snowy day in Pickering,
    in the Regional Municipality of Durham. His family members, who are not
    involved in this appeal, claim damages for the alleged negligence of Durham,
    Miller, Ontario and two individual defendants.

[4]

Durham contracted Miller Maintenance Limited to plow its roads in the
    winter. The contract required Miller to include Durham as an additional insured
    under its liability policy. Millers policy with Zurich did so.

[5]

The statement of claim alleges that the accident occurred when the car driven
    by the deceased suddenly and without warning  began to slide and spin on ice
    on Brock Road, and slid down the hill until it was hit by cars operated by the individual
    defendants.

[6]

The claim sets out a laundry list of identical particulars of negligence
    against Miller, Durham and Ontario. It asserts all manner of failings,
    including a failure to keep the road free of ice and snow, inadequate design
    and construction of the road and failure to close the road during a heavy
    snowstorm.

[7]

Durham and Miller cross-claimed against each other. Miller claims, among
    other things, that Durham was responsible for supervising its work and for
    calling for snow removal equipment as necessary. It also claims that Brock Road
    was dangerous in design and construction.

The Superior Court Motion

[8]

Durham brought a Third Party claim against Zurich. It sought a
    declaration that Zurich has a duty to defend it in the action, to pay for
    counsel of its choice and to indemnify it for any amounts for which it may be
    found liable to the plaintiffs.

[9]

Zurich claimed that it has no duty to defend Durham. This, it said, was because
    some of the particulars of negligence in the statement of claim  those
    unrelated to Millers winter maintenance work  fall outside the scope of the
    coverage it provided to Durham.

[10]

Zurich
    acknowledged before us, however, that some of the allegations against Durham in
    the statement of claim
are
covered by its policy. They relate to
    Durhams liability arising out of Millers winter maintenance responsibilities.

[11]

Zurich
    argues that by defending Miller it is protecting Durham against any liability
    it may have for Millers negligence. It adds that, given the other allegations
    of negligence against Durham, it should have no obligation to defend Durham. It
    says Durham must defend all claims itself, leaving for another day the issue of
    whether Zurich is required to pay for any portions of the defence costs.

[12]

The
    motion judge dismissed Durhams motion. He found that Zurich was only required
    to defend Durham with respect to the claims insured for Miller. He added that
    Durham will continue with its own counsel to defend with respect to all other
    causes as alleged in the claim. It appears the motion judge accepted Zurichs
    argument that by defending Miller it was effectively protecting Durham against
    liability for Millers failure to discharge its contractual obligations.

Analysis

[13]

Durham
    was an additional insured under Zurichs policy. The policy contained an
    unqualified promise to defend the insured for actions covered by the policy. Zurich
    is therefore obligated to pay the reasonable costs of Durhams defence of
    covered claims, even if that defence furthers the defence of uncovered claims. However,
    it is not obligated to pay costs related
solely
to the defence of
    uncovered claims:
Hanis v. Teevan
, 2008 ONCA 678, 92 O.R. (3d) 594, at
    para. 2.

[14]

We
    come to this conclusion for the following reasons. First, the allegations in
    the statement of claim triggered Zurichs duty to defend Durham. Second, nothing
    in the policy qualified Zurichs duty to defend. Third, Zurich did not satisfy
    its duty to Durham by defending Miller. Fourth, Zurichs best interests do not
    negate its obligation to Durham. Fifth, the duty to defend is a separate
    contractual obligation that is not met by Zurich simply indemnifying Durham at
    the end of the day. Each of these is explained in turn.

[15]

First,
    when pleadings allege facts that, if true, require the insurer to indemnify the
    insured, the insurer is obliged to defend the claim:
Monenco v.
    Commonwealth,
2001 SCC 49, [2001] 2 S.C.R. 699, at para. 28. The mere
    possibility that a claim may fall within the policy is sufficient to trigger
    the duty to defend:
Monenco,
at para. 29. In assessing whether the facts
    pleaded fall within the policy, the court must consider the substance and true
    nature of the claim:
Monenco,
at paras. 34-36. Extrinsic evidence
    expressly referred to in the pleadings may be considered:
Monenco
,

at
    para. 36.

[16]

The
    true nature of the claim was clearly expressed in the statement of claim  the
    deceased lost control of his car because it skidded on ice and snow on the
    roadway. That pleading, coupled with the allegation that Durham and Miller
    failed to keep the road clear of ice and snow, relates directly to Millers
    obligations under the contract. It engages Zurichs obligation to defend Durham,
    subject to any qualification in the policy.

[17]

The
    trial judge erred in holding otherwise. Although he identified the correct test
     set out in
Progressive Homes Ltd. v. Lombard General Insurance Co. of
    Canada
, 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 19, and
Nichols v.
    American Home Assurance Co
., [1990] 1 S.C.R. 801  he failed to correctly apply
    that test.

[18]

Second,
    Zurichs policy required it to defend the action, not just the covered claims.

[19]

In
Hanis
, this court addressed the situation where, as here, some but not
    all of the claims made in the lawsuit are covered by the policy, and there is
    an unqualified obligation in the policy to provide the defence. In that event,
    this court held that the insurer is required to pay all reasonable costs
    associated with the defence of those claims,
even if
those costs further
    the defence of uncovered claims.  It added that the insurer is not obliged to
    pay costs related
solely
to the defence of uncovered claims.

[20]

Here,
    Zurichs policy of insurance imposed on it a duty to defend its insured,
    including an added insured, against any action seeking damage to which the
    insurance applies. It provided that there was no duty to defend any action
    seeking damages to which the policy did not apply. An action is defined to
    mean a civil proceeding in which compensatory damages are alleged because of
    bodily injury or property damage to which the policy applies.

[21]

As
    in
Hanis
, there was nothing in the language of the Zurich policy to qualify
    the duty to defend or to suggest that the duty to defend did not apply to
    mixed claims.

[22]

As
    the action against Durham sought damages to which the insurance applied, Zurich
    had a duty to defend Durham against the action.

[23]

Third,
    there is no authority for Zurichs argument that it satisfied its duty to
    Durham by defending Miller. Arguments to that effect were rejected by this
    court in
Papapetrou v. 1054422 Ontario Limited
, 2012 ONCA 506, 111 O.R.
    (3d) 532, at paras. 53-54. See also
Atlific Hotels and Resorts Ltd. v. Aviva
    Insurance Co. of Canada
(2009), 97 O.R. (3d) 233 (S.C.J.), at para. 21.

[24]

Indeed,
    counsel for the respondent acknowledged that there is no authority for this
    position. It would render meaningless Durhams status as an additional insured.
    As an additional insured, Durham has independent rights, including a right to a
    defence, regardless of the defence provided to the named insured. If Zurichs
    position were correct, it would seldom be required to provide a defence to an
    additional insured because it would usually be defending the named insured against
    the same liabilities.

[25]

Fourth,
    in deciding that it was not in Zurichs best interests to defend Miller when
    there were both insured and uninsured claims, the motion judge gave preference
    to Zurichs interests over those of the insured. That ignored Zurichs
    contractual
duty
to defend.

[26]

Fifth,
    and finally, we disagree with the motion judges conclusion that Durham was
    protected because it would be entitled to recover costs at the end of the
    litigation if it were not found liable. That misses the point. The duty to
    defend is a separate contractual obligation. The outcome of the trial is
    irrelevant to the duty to defend. The duty would be a hollow one if the
    insurers only obligation were to indemnify its insured at the end of the day.
    That was not the obligation Zurich undertook when it issued a policy naming
    Durham as an additional insured. It promised to defend Durham and it should
    have been held to that promise.

Conclusion

[27]

In
    our view, the motion judge should have ordered Zurich to provide Durham with
    independent counsel, at Zurichs expense, to defend the action in its entirety,
    having regard to (i) Zurichs unqualified contractual undertaking to defend
    Durham; and (ii) the conflict between the interests of Durham and Miller, and between
    those of Durham and Zurich: see
Zhou v. Markham (Town)
, 2014 ONSC 435;
Day
    v. Wood
(2008), 92 O.R. (3d) 438 (S.C.), at paras. 12-13, 15;
Appin
    Realty Corp v. Economical Mutual Insurance Co.
, 2008 ONCA 95, 89 O.R. (3d)
    654.

[28]

At
    the end of the proceedings, Zurich is entitled to seek an apportionment of the
    defence costs, to the extent they deal
solely
with uncovered claims, or
    exceed the reasonable costs associated with the defence of the covered claims:
Tedford
    v. TD Insurance Meloche Monnex
, 2012 ONCA 429, 112 O.R.(3d) 144, at para.
    24.

[29]

In
    closing, we repeat this courts observation in
Halifax Insurance Co. of
    Canada v. Innopex
, (2004), 72 O.R. (3d) 522, at para. 55, that the duty to
    defend issue must be determined expeditiously, on the basis of the allegations
    in the underlying litigation, read with the insurance coverage. The failure to
    do so in this case has undoubtedly increased the costs of the litigation and
    has caused delay to all parties.

Disposition

[30]

For
    these reasons, the appeal is allowed. Zurich is directed to defend Durham, to
    provide it with independent counsel at Zurichs expense and to reimburse Durham
    for reasonable defence costs incurred to this date.

[31]

If,
    at the end of the day, the parties are unable to agree on an allocation of the
    costs, Zurich shall be entitled to apply to the Superior Court of Justice to
    determine the allocation in accordance with
Hanis
.

[32]

Durham
    is entitled to its costs in this court and in the court below. Its costs in
    this court are fixed at $12,500, inclusive of taxes and all applicable
    disbursements.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

G. Huscroft J.A.

Released: December 22, 2015


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

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

45(7)  The court may make an order,

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto v. L.G., 2015
    ONCA 840

DATE: 20151203

DOCKET: C60743

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Childrens
    Aid Society of Toronto

Applicant (Respondent
    to the appeal)

and

L.G.

Respondent (Appellant)

Reide L. Kaiser, for the appellant

Michelle Cheung, for the respondent

Heard: November 30, 2015

On appeal from the judgment of Justice Michael A. Penny of
    the Superior Court of Justice, dated June 9, 2015.

ENDORSEMENT

[1]

The appellant appeals the decision of the Superior Court dismissing her
    appeal from the trial judgment of the Ontario Court of Justice directing that
    her son, K.H., be made a Crown ward without access by the appellant, her mother
    or K.H.s biological father.

[2]

Of the various grounds of appeal advanced in her factum, the appellants
    argument at the appeal hearing focused on one main issue.  She renews her
    argument, advanced before the Superior Court, that the trial judge erred by
    failing to find that the respondent Childrens Aid Society of Toronto (the
    CAS) breached its duty under s. 15(3)(c) of the
Child and Family Services
    Act
, R.S.O. 1990, c. C.11 (the Act) to provide guidance, counselling and
    other services to the appellant for the protection of K.H. and the prevention
    of circumstances requiring his protection.

[3]

We reject this submission.

[4]

The appeal judge considered this claim in detail, concluding that the
    evidentiary record did not support the assertion that the CAS failed to
    discharge its s. 15(3)(c) statutory duty.  For the following reasons, we agree
    with the appeal judges conclusion and his reasoning on this issue.

[5]

There was overwhelming evidence at trial of a long-standing pattern by
    the appellant of entering into violent relationships and conflicted situations
    with current or former domestic partners, thus placing both herself and her son
    at risk of serious harm.  This conduct, which persisted up to the time of
    trial, was exacerbated by the appellants lack of insight into the damaging and
    potentially dangerous consequences of her behaviour, her failure to take
    sufficient steps to address this pattern of conduct, and her documented
    inability, on frequent occasion, to regulate her emotions and anger and put
    K.H.s best interests ahead of her own.

[6]

The record reveals that, in this volatile and emotionally-charged
    environment, the CAS made numerous attempts to work with the appellant to
    address the issues of violence and emotional turmoil in her life that were
    impeding her ability to safely and adequately parent K.H., and to access
    available services to obtain assistance.  Regrettably, many of these overtures
    were rebuffed by the appellant or frustrated by her own conduct.

[7]

Counsel for the CAS candidly acknowledged that there may have been some
    delay in processing information and documentation for the appellant.  However,
    when the record is examined as a whole, it cannot be said that the CAS was
    derelict or deficient in any material way in the performance of its statutory
    duties under the Act.

[8]

The trial judges task was to determine the disposition that accorded
    with K.H.s best interests, having regard to the factors outlined in s. 37(3)
    of the Act.  The trial judge considered the factors relevant to the application
    of the best interests test in K.H.s case, and reviewed the relevant evidence
    bearing on those factors.  We agree with the appeal judge that there is no
    basis to interfere with the trial judges decision to reject the appellants
    argument that the CAS  had failed in its statutory duty.  Her ruling on this
    issue is firmly grounded in the evidence.

[9]

The appellant further argues that the trial judge erred by failing to
    extend the period of CAS wardship for K.H. under s. 70 of the Act.

[10]

This
    argument also fails.  The appeal judge considered this issue and concluded
    that, even if such an extension was available as a matter of law, an extension
    order was neither appropriate nor justified on the record in this case.

[11]

We
    agree.  By the time of trial, K.H. was three years of age.  He had been the
    subject of child protection litigation since his birth and in CAS care for more
    than 24 months.  Assuming, without deciding, that a further extension of this
    period of care is possible, we see nothing on the facts of this case warranting
    an extension well beyond the 18 months contemplated under the Act.

[12]

We
    have no doubt that the appellant cares for her son and he for her.
    Nonetheless, the aim of the law is to act in K.H.s best interests.  In the
    circumstances of this case, there is simply no basis for appellate intervention
    with the trial judges discretionary decision that K.H.s best interests compel
    that he be made a Crown ward, with no access to the appellant, K.Hs maternal
    grandmother or his biological father.

[13]

The
    appeal is dismissed.  This is not an appropriate case for any order of the
    costs of the appeal.

Robert Sharpe J.A.

E.A. Cronk J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: CIBC Mortgages Inc. (FirstLine Mortgages) v.
    Computershare

Trust Co. of Canada, 2015 ONCA 846

DATE: 20151204

DOCKET: C60056, C60057

Sharpe, Cronk and Miller JJ.A.

BETWEEN

CIBC Mortgages Inc., Trading as FirstLine
    Mortgages

Applicant (Appellant)

and

Computershare Trust Company of Canada

Respondent (Respondent)

AND BETWEEN

Computershare Trust Company of Canada

Applicant (Respondent)

and

CIBC Mortgages Inc., Trading as FirstLine
    Mortgages
and the Director of Titles pursuant to s. 57(14) of the
Land
    Titles Act

Respondent (Appellant)

Benjamin Frydenberg and Sam Rappos, for the appellant

Jeffrey Spiegelman and Christine Jonathan, for the respondent

Heard: December 1, 2015

On appeal from
    the judgment of Justice John C. Murray of the Superior Court of Justice, dated January
    23, 2015, with reasons reported at 2015 ONSC 543.

By the Court:

[1]

We agree with the respondent that this Court does not have jurisdiction
    to entertain these appeals. For the following reasons, we order that the appeals
    be transferred under s. 110 of the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, to the Divisional Court, which has jurisdiction to entertain the
    appeals pursuant to the
Land Titles Act
, R.S.O. 1990, c. L-5, s. 27.

[2]

The orders under appeal were made by a Superior Court judge on two
    applications brought to resolve a priority issue in relation to mortgages
    registered under the
Land Titles Act
. The application judge found that
    the owner of the property had fraudulently discharged the mortgage in favour of
    Computershare Trust Company of Canada (Computershare) and that the
    Computershare mortgage should be restored and given priority over the
    subsequently registered mortgage in favour of CIBC Mortgages Inc., trading as FirstLine
    Mortgages (FirstLine).

[3]

Both applications were brought under the
Land Titles Act
. The FirstLine
    Notice of Application referred to ss. 72, 78, 159 and 160 and the Computershare
    Notice of Application referred to ss. 57(13), 57(14), 78(4.1), 159 and 160. The
    crucial provisions are s. 78(4) and (4.1) dealing with the effect of the
    registration of fraudulent instruments. Section 57(13) and (14) provides that a
    judge may order rectification of the register in the event of fraud and ss.
    57(13), 57(14), 159 and 160 make general provision for rectification of the
    register to comply with determinations made by the court.

[4]

Section 24(1) provides: Any jurisdiction of the court under this Act,
    other than an appeal to which section 19 of the
Courts of Justice Act
applies, may be exercised by a judge of the court. Court is defined in s. 1
    as the Superior Court of Justice and s. 19 of the
Courts of Justice Act
provides for appeals from certain orders to the Divisional Court.

[5]

The appeal provisions in the
Land Titles Act
are found in ss.
    26 and 27 and read as follows:

Appeal to court

26. A party to a hearing held under this Act may appeal the
    decision or order of the Director of Land Registration or the Director of
    Titles to the court within 30 days of the date of the decision or order, as the
    case may be, and the appeal shall be by way of a new trial.

Further appeal

27. Any person affected by an order made under this Act by a
    judge of the court may appeal to the Divisional Court within 30 days of the
    date of the decision and, subject to the rules, in like manner as in the case
    of other appeals to that court.

[6]

The issue to be resolved is whether these appeals fall within the reach
    of s. 27. If they do, the appeals lie to the Divisional Court and not this
    Court:
Courts of Justice Act
, s. 6(1)(b).

[7]

The appellants first submission relies on the heading Further appeal.
    The appellant says that when s. 27 is read in the light of that heading and the
    provisions authorizing the Director of Land Registration or the Director of
    Titles to conduct hearings, it can only refer to orders made under s. 26,
    dealing with appeals from decisions of the Director.

[8]

We disagree. While headings in statutes may be used as an interpretive
    aid, they are not determinative, especially where the language of the statute
    itself clearly points in a different direction: see
Interpretation Act
,
    R.S.O. 1990, C. I.11, s. 9;
Canada (Attorney General) v. Jackson
,
    [1946] S.C.R. 489, at pp. 495-96;
R. v. Lohnes
, [1992] 1 S.C.R. 167,
    at p. 179. Section 24 and the other provisions referred to above specifically
    contemplate applications coming directly to a Superior Court judge. The heading
    Further appeal fails to reflect that aspect of the statutory scheme and
    cannot deprive s. 27 of its ordinary meaning that
any
    person
affected by
an order made under this Act

    (emphasis added) has an appeal to the Divisional Court.

[9]

The appellant also argues that we should assume jurisdiction under s. 6(2)
    of the
Courts of Justice Act
, which gives this court jurisdiction to
    hear an appeal that lies to the Divisional Court if an appeal in the same
    proceeding lies to and is taken to this court. The appellant argues that its
    appeal against the application judges finding that Computershare did not have
    actual notice of the discharge of its mortgage is such an issue.

[10]

We
    disagree. That factual finding was not a separate and discrete issue but rather
    part and parcel of the application judges overall consideration of which
    mortgage had priority under the
Land Titles Act
. No term of the orders
    under appeal deal with that finding as a separate matter or proceeding. It was
    simply a factual finding made in the course of the
Land Titles Act
applications and must be treated accordingly for the purposes of jurisdiction
    for the appeals.

[11]

We
    recognize this court has previously entertained appeals from orders of the Superior
    Court made under the
Land Titles Act
: see e.g.
R.A. & J Family
    Investment Corporation v. Orzech
(1999), 44 O.R. (3d) 385 (C.A.);
Household
    Realty Corp. Ltd. v. Liu
(2005), 261 D.L.R. (4th) 679 (C.A.);
Lawrence
    v. Wright
, 2007 ONCA 74, 84 O.R. (3d) 94;
Di Michele v. Di Michele
,
    2014 ONCA 261, 319 O.A.C. 72.

[12]

While
    this court did entertain those appeals, the issue of jurisdiction was not
    raised or decided. Those decisions do not establish the jurisdiction of the
    court in a subsequent appeal: see
Amaranth L.L.C. v. Counsel Corporation
(2004), 71 O.R. (3d) 258 (C.A.), at paras. 13-15;
Pruner v. Ottawa Hunt and
    Golf Club, Limited
, 2015 ONCA 609 (CanLII), at para. 51.

[13]

In
    the circumstances, the appropriate order is to transfer these appeals to the
    Divisional Court pursuant to s. 110 of the
Courts of Justice Act
.

[14]

There
    will be no order as to costs.

Released: December 4, 2015

Robert J. Sharpe
    J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chowdhury v. Bangladeshi-Canadian Community
    Services, 2015 ONCA 844

DATE: 20151204

DOCKET: C60609

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

MD Ahasanullah
    Chowdhury

Plaintiff

(Appellant)

and

Bangladeshi-Canadian
    Community Services, Business #866914013RR0001,

City of Toronto, Toronto
    Community Housing Corporation, Toronto Police Services Board, Doctor Abu Shamim
    MD Arif, Alam Moral, and Warden Woods Church and Community Centre, Business
    #108190315RR0001

Defendants

(Respondents)

MD Ahsanullah Chowdhury, acting in person

Nasima Akter, for the respondent Bangladeshi-Canadian
    Community Services

David Tortell, for the respondents City of Toronto/Toronto
    Police Services

Orna Raubfogel, for the respondent Toronto Community
    Housing Corporation

Paul J. Davis, for the respondent Dr. Abu Arif

Jayanta K. Singha, for the respondent Alam Moral

Simon A. Clements, for the respondent Warden Woods

Heard:  November 27, 2015

On appeal from the orders of Justice Kelly P. Wright of
    the Superior Court of Justice, dated May 26, 2015, with reasons reported at
    2015 ONSC 3903.

ENDORSEMENT

[1]

The appellant appeals from orders of the motions judge striking his statement
    of claim against all seven respondents without leave to amend. The allegations
    against some of the respondents include invasion of privacy, harassment, and
    torture, among other things. Six of the respondents were sued for $1 million in
    damages each. The City of Toronto was sued for $10 million in damages.

[2]

Concerning the respondent Toronto Community Housing (TCH), the motions
    judge also set aside a noting in default, finding that the respondent TCH acted
    in good faith at all times and made clear its intention to defend the matter
    from the outset; that the appellant acted in bad faith from the outset; that the
    respondent TCH would suffer serious prejudice if the noting in default were not
    set aside; and that the appellant would suffer no prejudice. The motions judge found,
    further, that the appellants allegations are either beyond the jurisdiction of
    the court or completely lacking in evidentiary foundation and nonsensical, and
    that the entire claim is frivolous, vexatious, and an abuse of process.

[3]

Concerning the City of Toronto and the Toronto Police Services Board,
    the motions judge found that the various allegations are beyond the
    jurisdiction of the court, have no basis in law, or are completely unsupported,
    and are inflammatory, frivolous, vexatious, and an abuse of process.

[4]

Concerning the respondent Dr. Abu Arif, the motions judge found that the
    claim was discoverable in 2011 and that the action was not commenced until
    2014, outside the two-year limitation period under the
Limitations Act
,
    2002, S.O. 2002, c. 24, Sched. B. She also found that the pleadings fail to
    disclose any reasonable cause of action against Dr. Arif, have no reasonable
    prospect of success, and are nonsensical, outrageous, and unsupported. The
    allegations are scandalous, frivolous, vexatious, and/or an abuse of process.

[5]

Concerning the respondent Alam Moral, the motions judge found that the
    appellant was properly served with the materials in accordance with the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. She found, further, that the
    appellants claims are so vague and nonsensical that it would be impossible for
    the respondent to reply. The bald and baseless allegations are frivolous,
    vexatious, and an abuse of process.

[6]

Concerning the respondent Warden Woods Church and Community Centre, the
    motions judge found that the acts alleged by the appellant do not give rise to
    a recognized cause of action and that the acts could not be attributed to the
    respondent in any event. She found, further, that the allegations are completely
    and totally nonsensical, lack an evidentiary foundation, and are without merit
    and that the action is frivolous, vexatious, and an abuse of process.

[7]

Finally, concerning the respondent Bangladeshi-Canadian Community
    Services, the motions judge found the appellants claim to be indecipherable and
    so vague and nonsensical that it would be impossible for the respondent to
    reply. The allegations are bald and baseless, frivolous, vexatious, and an
    abuse of process.

[8]

The motions judges decision to set aside the noting in default against
    the respondent TCH follows the test set out by this court in
Intact
    Insurance Company v. Kisel
, 2015 ONCA 205, 125 O.R. (3d) 365, and there is
    no basis to interfere with it.

[9]

Although the motions judge did not specify the rules under which she was
    acting in each of her decisions, we are satisfied that it was appropriate to
    strike all of the various pleadings on either or both of two bases.

[10]

First,
    under r. 21.01(1)(b) it was appropriate to dismiss those claims that pleaded no
    reasonable cause of action. A plaintiff must plead all of the elements required
    for a recognized cause of action and must plead all the facts required to
    establish the cause of action. Although a court is required to read a statement
    of claim generously on a motion to dismiss, it need not accept the allegations
    pleaded allegations if they are patently ridiculous or incapable of proof. The
    claims could not possibly succeed and could not be saved by amendment.

[11]

Second,
    it was appropriate for the motions judge to strike all of the claims under r.
    25.11(b) without leave to amend. Her conclusion that the claims are frivolous,
    vexatious, or an abuse of process is amply supported by the record.

[12]

Accordingly,
    the appeal is dismissed.

[13]

None
    of the parties sought costs and none are ordered.

George
    R. Strathy C.J.O.

H. S. LaForme J.A.

Grant
    Huscroft J.A.