COURT OF APPEAL FOR ONTARIO

CITATION: Soraya v. Claron Technology Inc., 2017 ONCA 935

DATE: 20171130

DOCKET: C63201

Sharpe, Benotto and Roberts JJ.A.

BETWEEN

Reuven Soraya

Applicant

(Respondent in Appeal)

and

Claron Technology Inc.

Respondent

(Appellant in Appeal)

Robert Cohen and Christopher Selby, for the appellant

John Adair, for the respondent

Heard and released orally: November 29, 2017

On appeal from the judgment of Justice Glenn A. Hainey of
    the Superior Court of Justice, dated November 14, 2016.

REASONS FOR DECISION

[1]

This appeal involves the claim of the respondent employee under his
    employment contract that included stock options. The application judge found
    that the Lexmark sale of part of the appellants business amounted to the sale
    of all or substantially all of the assets of the Company constituting a
    triggering event that caused the respondents remaining 20,000 unvested
    options to vest under the appellants Option Plan.

[2]

The appellant raises five grounds of appeal.

1.

Did the application judge err in finding that the respondent was
    entitled to the benefit of the appellants Option Plan?

[3]

The appellant contends that as the respondent did not receive a copy of
    the Option Plan when he was hired and did not obtain a copy until after the
    sale alleged to constitute a triggering event, he is not entitled to benefit
    from it.

[4]

We disagree. This was a factual issue to be determined by the
    application judge. When he was hired, although he was not given a copy, the
    respondent was told that the appellant had a great stock option plan. That
    indicated that an Option Plan did in fact exist. The position taken by the
    appellant with respect to the respondent following the Lexmark sale was
    completely inconsistent with the contention that the Option Plan did not form
    part of the appellants employment contract. The appellant dealt with both the
    respondent and other employees on the basis that the provisions of the Option
    Plan governed and it was only after this litigation commenced that it took the
    position vis-à-vis the respondent that it was a non-binding draft. There was
    ample evidence to support the application judges finding that the Option Plan
    was binding on the company.

2.

Did the application judge err in finding that there was a triggering
    event and in rejecting the appellants Boards determination that the sale to
    Lexmark did not constitute a triggering event?

[5]

The appellant submits that the Lexmark transaction was not a triggering
    event under the Option Plan for two reasons.

[6]

First, the appellant argues that the sale to Lexmark was not a sale of
    all or substantially all of the assets of the Company.

[7]

We agree with the respondent that this was a factual question and that
    there was ample evidence to support the application judges finding that the
    sale to Lexmark represented 87 to 89% of the value of the appellants assets
    and therefore amounted to a triggering event. The respondents evidence as to
    the value of the assets sold was supported by the only expert witness called on
    the point.  Both Gatti and Doron, the co-CEOs and beneficial owners of Claron,
    had previously made statements giving the remaining part of Claron a value
    consistent with the experts opinion.

[8]

Second, the appellant argues that the application judge erred by failing
    to apply terms in the Option Plan making the determinations of the Board
    final, conclusive and binding and not subject to any dispute by any
    participant. In our view, the application judge properly applied the decision
    of this Court in
Marshall v. Bernard Place Corp.
[2002] OJ No 463
    (C.A.), holding that sole discretion clauses of this nature do not confer
    absolute discretion but rather must be exercised honestly and in good faith.
    The only members of the Board were Gatti and Doron. The application judge found
    that they would personally benefit from rejecting the respondents contention
    that a triggering event had occurred and that their determination that there
    had not been a triggering event was not made in good faith. Again, that finding
    was plainly open to the application judge on this record.

3.

Did the application judge err in failing to find that the respondent did
    not properly exercise his options?

[9]

The appellant submits that the respondent failed to exercise his options
    in the required manner. When the appellants counsel provided notice that he
    was exercising his options, the required payment was not made. Payment was
    eventually made, but the appellant argues that there were strings attached as
    the letter enclosing payment specified that if the appellant cashed the cheque,
    it would be taken to have accepted the respondents position that all 40,000
    shares had vested.

[10]

We
    do not agree that by taking this position, the respondent imposed an improper
    condition on the payment. He was simply making clear the consequences of
    accepting the payment.

[11]

The
    appellant now concedes that as the respondent made the payment prior to the
    expiry of the notice period ordered by the application judge, the options had
    not expired.

[12]

The
    application judge did not err with respect to the alternate ground on this
    issue, namely, that if necessary, he would grant relief from forfeiture. We
    agree with the respondent that the assertion that this remedy is unavailable
    because the respondent did not strictly comply with the terms of the Option
    Plan is inconsistent with the legal basis for the remedy, namely to relieve a
    party from strict compliance.

4.

Did the application judge err in finding that the appellant had
    discharged his duty to mitigate his claim for wrongful dismissal?

[13]

The
    appellant contends that the respondent should have mitigated his damages by
    accepting employment with Lexmark. Gatti had dismissed the respondent and had
    questioned his integrity. Gatti became a senior officer in the company in which
    the respondent would have been employed. In these circumstances, it was open to
    the application judge to conclude that it was reasonable for the respondent not
    to seek employment with Lexmark.

5.

Did the application judge err in requiring the appellant to purchase the
    respondents options through Claron Holdings Inc., a non-party?

[14]

The
    appellant had purchased the options of the other employee option holders
    through Claron Holdings Inc. so that the employees gains would be considered
    capital gains for income tax purposes. In a supplementary endorsement settling
    the terms of the judgment, the application judge required the appellant to
    acquire the respondents options through Claron Holdings Inc. The appellant
    argues that the application judge erred by making an order on an issue that was
    not pleaded and against a non-party.

[15]

We
    disagree. Doron and Gatti, who beneficially owned and controlled the appellant,
    chose to use Claron Holdings Inc. as a vehicle to satisfy the appellants obligations
    under the Option Plan when dealing with its other employees and there was no
    reason to treat the respondent differently. There was evidence from which the
    application judge was entitled to infer that Doron and Gatti were the
    beneficial owners of and controlled Claron Holdings Inc. The application judge
    did not err in holding that their conduct amounted to oppression under the
    Ontario
Business Corporations Act

R.S.O. 1990, c. B.16.

Disposition

[16]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    at $25,000 inclusive of taxes and disbursements.

Robert
    J. Sharpe J.A.

M.L.
    Benotto J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Surighin v. Surighina, 2017 ONCA 877

DATE: 20171116

DOCKET: C63867

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Serghei Surighin

Applicant (Appellant)

and

Galina Surighina

Defendant (Respondent)

No one appearing for Serghei Surighin

Galina Surighina, in person

Heard and released orally: November 15, 2017

On appeal from the judgment of Justice Carole Curtis of
    the Ontario Court of Justice, dated March 10, 2017, with reasons reported at
    2017 ONCJ 384.

REASONS FOR DECISION

[1]

The appellant father appeals from the decision of C. Curtis J. of the
    Ontario Court of Justice, dated March 10, 2017, ordering the appellant to pay
    retroactive and prospective child support, including extraordinary expenses,
    and arrears in child support for the two children of the marriage.

[2]

Both parties to this appeal are self-represented.  The appellant did not
    appear at the appeal hearing.  The respondent appeared in person, accompanied
    by a support person.

[3]

Prior to the appeal hearing, both parties were informed of the possible
    application of s. 48 of the
Family Law Act
, R.S.O. 1990, c. F.3 (the FLA)
    to the matters at issue on this appeal.  Section 48 provides: An appeal lies
    from an order of the Ontario Court of Justice under this Part [Part III,
    Support] to the Superior Court of Justice.

[4]

The order under appeal was made by a judge of the Ontario Court of
    Justice on the respondent mothers motion to change support, brought under ss.
    37(1) and (2.1) of the FLA.

[5]

We are satisfied that s. 48 of the FLA applies to this case.
    Accordingly, this court lacks jurisdiction to hear this appeal, which properly
    lies to the Superior Court of Justice.

[6]

The appeal, therefore, is quashed.  The respondent is entitled to costs
    of this appeal, fixed in the requested amount of $1,500, inclusive of
    disbursements and all applicable taxes.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Trillium Motor World Ltd. v. Cassels Brock &
    Blackwell LLP,

2017 ONCA 840

DATE: 20171103

DOCKET: M48164 (C60828)

Cronk, van Rensburg and Pardu JJ.A.

BETWEEN

Trillium Motor World Ltd.

Moving Party

(Respondent/Appellant
    by way of cross-appeal)

and

General
    Motors of Canada Limited and

Cassels Brock &
    Blackwell LLP

Respondent

(Appellant/Respondent
    by way of cross-appeal)

Bryan Finlay, Q.C., Marie-Andrée Vermette, Michael
    Statham, David Sterns, Allan D.J. Dick and Andy Seretis, for the moving party

Peter H. Griffin and Rebecca Jones, for the respondent

Heard: In Writing

REASONS FOR DECISION

Introduction

[1]

This courts decision in this solicitors negligence case was released
    on July 4, 2017:
Trillium Motor World Ltd. v. Cassels Brock & Blackwell
    LLP
, 2017 ONCA 544 (
Trillium v. CBB
).  The moving party, Trillium
    Motor World Ltd. (Trillium), brings a motion in writing to vary the courts direction
    to the trial judge set out at para. 404(3) of the courts reasons.  Specifically,
    Trillium seeks an order stipulating that, on the new damages hearing directed
    by this court at para. 404, the trial judge retains discretion to determine the
    final quantification of damages and the process for calculating the final award
    of damages, subject to a ceiling of $36.9 million.

[2]

The respondent, Cassels Brock & Blackwell LLP (CBB), resists the
    motion.

[3]

For the reasons that follow, we dismiss the motion.

Discussion

[4]

In support of its motion, Trillium relies on rr. 1.04, 37.14(6), 59.06
    and 61.16 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.  Rule
    61.16(6.1) states:

Subject to rules 37.14 and 59.06, an order or decision of a
    panel of an appellate court may not be set aside or varied under these rules.

[5]

Rule 61.16(6.1) applies to the decision that Trillium seeks to vary.  Thus,
    in order for this court to grant the relief sought, Trillium must bring itself
    within rr. 37.14 or 59.06.

[6]

In our view, Trillium is unable to do so.  Rule 37.14 has no application
    to this case.  Rule 59.06 permits a party to bring a motion for relief other
    than that initially awarded.  However, this courts authority under r. 59.06 to
    reconsider a decision is limited and will be exercised sparingly and only where
    it is clearly in the interests of justice to do so: see
Hoang v. Mann
    Engineering Ltd
., 2015 ONCA 838;
First Elgin Mills Development Inc. v.
    Romandale Farms Ltd
., 2015 ONCA 54, 381 D.L.R. (4th) 114;
Mujagic v.
    Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715.

[7]

The need for the urged variation, according to Trillium, arises from one
    particular interpretation of para. 404(3) of this courts reasons in
Trillium
    v. CBB
, in particular, the words
x
percent set out in
    parentheses in that paragraph.  Paragraph 404, in its entirety, reads as
    follows:

[404]  For these reasons, I would hold that the question of the
    final quantification of damages be returned to the trial judge for further
    consideration in accordance with the following:

(1)     the proper starting value for the loss of chance
    should be $74.5 million (and not, as the trial judge found, $92 million).
    Applying a 55 percent contingency, the damages award would be $40.975 million.
    This figure should be rounded to $41 million;

(2)     account should be taken of the opt-outs from the
    Class, (10 percent), bringing the figure to $36.9 million; and

(3)     a determination should then be made, to the extent
    possible, of how many class members were Participation Form Dealers (
x
percent) to arrive at a new, final number.

[8]

Trillium contends that it is possible to interpret the language of para.
    404(3) as directing the trial judge to determine the final quantification of
    damages by the mathematical exercise of simply multiplying the $36.9 million
    figure referenced in para. 404(2) by the percentage of class members found to
    be Participation Form Dealers and Saturn Dealers, an approach to the
    calculation of damages expressly rejected by the trial judge on the parties
    March 22, 2016 motion to settle the terms of the trial judgment.

[9]

We are not persuaded that this is one of those rare cases in which it
    would be in the interests of justice to invoke this courts narrow jurisdiction
    under r. 59.06.

[10]

The
    July 2017 reasons of this court must be read as a whole and in the context of
    the issues raised and arguments advanced on appeal.  The reasons do not address
    the mathematical approach to the calculation of damages at issue on this
    motion, as urged by CBB before the motion judge and rejected by him.  That
    issue was not argued on the appeal.

[11]

Given
    this courts decision on appeal, the appropriate methodology and process for
    the calculation of damages in this case, including whether or not to adopt a
    mathematical approach to the quantification of damages in the manner urged by
    CBB, will be for the trial judge to determine at the new damages hearing.
    Subject to the directions provided by this court at para. 404, nothing in this
    courts reasons purports to constrain the trial judges discretion in this
    regard.

Disposition

[12]

For
    these reasons, the motion is dismissed.  CBB is entitled to its costs of the
    motion.  If counsel are unable to agree on the quantum of those costs, CBB shall
    deliver its brief written costs submissions to the Registrar of this court
    within 14 days from the date of these reasons.  Trillium shall deliver its
    responding, and similarly brief, costs submissions within 14 days thereafter.

E.A. Cronk J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Norton, 2017 ONCA 866

DATE: 20171110

DOCKET: C63440

Simmons, van
    Rensburg and Nordheimer JJ.A.

IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Attorney General of Canada on behalf of the
    United States of America

Respondent/Requesting State

and

James Sheldon Norton

Applicant/Person Sought

Gordon Scott Campbell & Karen G. Kernisant, for the
    applicant

Richard A. Kramer, for the Attorney General of Canada

Heard: November 3, 2017

On application for judicial review of the surrender order
    of the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney
    General of Canada, concerning an application brought pursuant to s. 43(2) of
    the
Extradition Act
.

REASONS FOR DECISION

[1]

The applicant seeks judicial review of the decision of the Minister of
    Justice, dated February 9, 2017, that ordered his surrender to the authorities
    of the United States of America.  The applicant seeks to have that order
    quashed or, in the alternative, have the matter remitted back to the Minister
    for reconsideration.

[2]

The background facts may be stated briefly.  On March 26, 2010, after
    making arrangements by cell phone, Mr. Norton agreed to sell and deliver
    marijuana to an undercover police officer in the State of New Jersey. Mr.
    Norton delivered three large duffel bags containing 80 pounds of marijuana to
    the undercover officer at a hotel in New Jersey.  Mr. Norton was immediately
    arrested.

[3]

Mr. Norton was indicted by a grand jury on September 30, 2010. On March
    21, 2011, he attended court with counsel and signed a voluntary plea agreement
    with the prosecutor in which he admitted to the essential elements of the
    offence. The plea agreement stipulated that Mr. Norton would serve a term of
    eight years in custody in a New Jersey Correctional facility in exchange for
    his admission of guilt. Mr. Norton was ordered to appear in court for
    sentencing on June 24, 2011. The sentencing was adjourned on consent on a
    number of occasions.  It was finally set for March 23, 2012. On March 23, 2012,
    Mr. Norton failed to appear in court. The matter was adjourned to March 30,
    2012, at which point Mr. Norton again failed to appear and a warrant was issued
    for his arrest.

[4]

On September 16, 2015, at the request of the United States, Mr. Norton
    was provisionally arrested, pursuant to s. 13 of the
Extradition Act
,
    S.C. 1999, c. 18.  On May 26, 2016, a judge of the Superior Court of Justice
    found that there was sufficient evidence to commit Mr. Norton on trafficking in
    a controlled substance as set out in the Authority to Proceed. Mr. Norton was
    ordered into custody to await the Ministers decision on surrender pursuant to
    the
Extradition Act
.  Mr. Norton did not appeal the decision of the
    extradition judge.

[5]

Mr. Norton is 54 years old.  He was born in the United States and is a
    Mohawk of Akwesasne. He is registered as an Indian under the
Indian Act
,
    R.S.C., 1985, c. I-5 and is officially recognized as a member of the Mohawks of
    Akwesasne. Mr. Norton has familial and cultural roots throughout the Akwesasne
    territory, which overlaps Ontario, Quebec and New York State. Mr. Norton's
    maternal grandparents are both Mohawk, with his grandmother being from Christie
    Island in Canada, and his grandfather being from Akwesasne in St. Regis, New
    York.  It is unclear whether Mr. Norton is a Canadian citizen.

[6]

As a young man, Mr. Norton joined the United States military, where he
    stayed for eight years. When he left the military, Mr. Norton had trouble
    finding steady employment. He spent approximately four years in custody in the
    United States for drug conspiracy related offences, as well as six months in
    custody for a conviction related to a fight. He has been diagnosed as an
    alcoholic, and in recent years has attempted to overcome his addiction. Mr.
    Norton now reports that he rarely drinks. Mr. Norton has three children aged
    26, 16, and 6 years old, who do not live with him and appear to all live in the
    United States. Mr. Norton is currently in a relationship with a woman who lives
    in the Cornwall, Ontario area.

[7]

Submissions were made on behalf of Mr. Norton to the Minister regarding
    her decision on surrender on October 13, 2016, January 10, 2017 and January 11,
    2017.  In particular, Mr. Norton submitted that his surrender should be denied
    based on his personal circumstances, including his Aboriginal heritage under s.
    7 of the
Canadian Charter of Rights and Freedoms

and under s.
    6(1) of the
Charter
.
On February 9, 2017, the Minister gave
    detailed reasons for her decision to surrender Mr. Norton to the authorities of
    the United States of America.

[8]

The applicant asserts that the Minister failed to give proper
    consideration to the principles set out in this courts decision in
United
    States of America v. Leonard
, 2012 ONCA 622, 112 O.R. (3d) 496 and the
    principles established in
R. v. Gladue
, [1999] 1 S.C.R. 688.  The
    applicant also seeks to have us provide clarification of the requirement to
    accord special consideration to Aboriginal defendants, at para. 57 of the decision
    in
Leonard

which he asserts requires the Minister to place predominant
    emphasis in her surrender decision on Aboriginal heritage, to address the
    systemic problems for Indigenous offenders identified in
Gladue

and
    emphasized in
R. v. Ipeelee
, [2012] 1 S.C.R. 433.

[9]

We do not agree that the Minister failed to properly apply the decision
    in
Leonard
.  In her lengthy and detailed reasons responding to the
    applicants submissions, she canvassed all of the relevant factors.  She
    specifically reviewed the reasons in
Leonard
and applied the
    principles articulated in that case, taking Mr. Nortons
Gladue

factors
    into special consideration both in assessing whether his surrender would
    violate the principles of fundamental justice under s. 7 of the
Charter

and in determining whether extradition was a justifiable limitation of his
    s. 6(1)
Charter

rights.

[10]

Recognizing
    that an individual assessment was required, the Minister nevertheless responded
    to the applicants arguments that his circumstances were similar to those of
    Mr. Leonard and Mr. Gionet (whose surrender was also at issue in the
Leonard
case), and warranted the same result. She pointed out, correctly in our view,
    that there were significant differences between the individual circumstances of
    Mr. Leonard and Mr. Gionet, on the one hand, and the applicant on the other.
    Those differences included:

(i)   that the applicant had a criminal
    record in the United States for similar offences;

(ii)  that it was not clear that the
    applicant was a Canadian citizen;

(iii)  that the applicant could not be
    prosecuted in Canada for the offence to which he pled guilty in New Jersey;

(iv)  that, unlike the situation with
    Messrs. Leonard and Gionet, the sentence that the applicant faces in New Jersey
    (and which was part of his plea arrangement) was not so different than what he
    might face if successfully prosecuted here.

[11]

The
    Minister also expressly considered the factors identified in
Gladue
.  The
    Minister noted that the applicants Aboriginal background, along with his other
    personal circumstances, would be considered at the time of sentencing.
[1]
She also noted that his Aboriginal background would be considered and
    accommodated while he was incarcerated in New Jersey.  Unlike the situation in
Leonard
,
    there is simply nothing to which the applicant can point that would establish
    that the Minister did not give meaningful consideration to the principles in
Gladue
in reaching her conclusion that the applicants surrender should be ordered.

[12]

In
    addition, the Minister had other matters that she had to take into account in
    reaching her decision on surrender, including Canadas international treaty
    obligations.  As Sharpe J.A. said in
Leonard
, at para. 69:

The Minister's decision involves a fact-intensive balancing
    inquiry, weighing not only the
Cotroni
factors [which are applicable to
    the s. 6(1) analysis] but also political and international relations concerns.

[13]

This
    court must accord substantial deference to the Ministers decision.  The
    standard of review is reasonableness.  Unlike the situation in
Leonard
,
    apart from claiming the Minister failed to give proper consideration to
Gladue
principles, the appellant has not asserted any discrete legal error in the
    Ministers decision. In light of the considerations outlined in the Ministers
    reasons, the applicant has failed to establish that the Ministers decision
    does not fall within a range of possible, acceptable outcomes which are
    defensible in respect of the facts and law:
Dunsmuir v. New Brunswick
,
    [2008] 1 S.C.R. 190, at para. 47.

[14]

Finally,
    we do not see any reason or need, in the context of this case, to provide any
    clarification of this courts decision in
Leonard
.

[15]

The
    application is dismissed. The sealing order made by Doherty J.A. on September
    14, 2017 remains in full force and effect.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

[1]

The Minister noted that the sentencing judge in New Jersey
    would have the authority to shorten an agreed upon sentence and that the plea
    agreement expressly recognized this authority.


COURT OF APPEAL FOR ONTARIO

CITATION: Virc v. Blair, 2017 ONCA 849

DATE: 20171106

DOCKET: C63624

MacFarland, Pepall and Pardu JJ.A.

BETWEEN

Patricia Anne Virc

Applicant (Respondent)

and

Michael F. Blair

Respondent (Appellant)

Michael F. Blair, acting in person

Michael Kril-Mascarin, for the respondent

Heard: October 24, 2017

On appeal from the order of Justice David Jarvis of the
    Superior Court of Justice, dated March 20, 2017, with reasons reported at 2017
    ONSC 1766.

REASONS FOR DECISION

[1]

The appellant, Michael Finley Lawrence Blair, appeals from the March 20,
    2017 order of Jarvis J. dismissing the appellants dispute of the garnishment
    of his pension benefits paid through the vehicle of a Retirement Compensation Arrangement
    (the RCA) contractually negotiated between a trustee and his former employer
    (a company owned and controlled by the appellant).

[2]

The appellant principally argues that his RCA is exempt from garnishment
    due to the provisions of the
Pension Benefits Act
, R.S.O. 1990, c. P.8
    (the
PBA
).  In the alternative, he argues that the garnishment of his
    RCA is limited to 50 percent under either the
Wages Act
, R.S.O. 1990, c.
    W.1 or the
Family Responsibility and Support Arrears Act
, S.O. 1996, c.
    31.  We would dismiss the appeal on all of these bases.

[3]

Subsection 66(1) of the
PBA
protects from garnishment money
    payable under a pension plan as defined in the
PBA
.   No protection is
    provided if the plan does not fall within the definition.

[4]

Section 1 of the
PBA
defines pension plan as a plan organized
    and administered to provide pensions for employees, but excludes some pension
    arrangements, as well as any other prescribed type of plan.

[5]

Prescribed is defined in s. 1 of the
PBA
as meaning prescribed
    by the regulations.

[6]

Subsection 47(3) of the
PBA
s General Regulation 909, R.R.O. 1990,
    states that a RCA as defined in s. 248(1) of the
Income Tax Act
, R.S.C. 1985, c. 1 (5th Supp.)

is
    exempted from the application of the
PBA
and its regulations.

[7]

A senior trust officer for Royal Trust Corporation of Canada, who
    administers the RCA trust of which the appellant is the only beneficiary,
    confirmed that the appellants plan is such a RCA. The appellant also admits
    that it is a RCA.

[8]

As the appellants plan is a RCA, the appellant cannot benefit from the
    provisions of the
PBA
to protect his RCA from garnishment.

[9]

Nor are payments made through the RCA wages as defined by s. 1 of the
Wages
    Act
.  Therefore provisions in the
Wages Act
restricting the
    percentage that can be seized do not apply.  Also, because the garnishment is
    pursued in execution of a judgment for an equalization payment, provisions
    restricting the amount that can be garnished for support under the
Wages Act
or by the Director of the Family Responsibility Office under the
Family
    Responsibility and Support Arrears Act
are inapplicable.

[10]

For
    these reasons, the appeal is dismissed.  The appellant took no objection to the
    respondents request of costs in the amount of $4,500 inclusive of
    disbursements and applicable tax, subject to filing a bill of costs.

J. MacFarland J.A.

S.E. Pepall J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: White v. White, 2017 ONCA 844

DATE: 20171102

DOCKET: C62544

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Dalton White and Sonia White

Plaintiffs (Appellants)

and

Norman White, Karen White, Neville White (a.k.a.
    Junior) and Melville White

Respondents (Respondents)

Matthew Tubie, for the appellants

Rick Bickhram, for the respondents

Heard and released orally: October 26, 2017

On appeal from the order of Justice Conway of the Superior
    Court of Justice, dated July 21, 2016.

REASONS FOR DECISION

[1]

In our view the issue before the summary motion judge was a question of
    law:  whether describing the deceased as divorced in his death certificate
    could be defamatory of the appellant. The appellant was his former wife.
    Although divorce proceedings had been started, the divorce was not final at the
    time of his death. In our view it was perfectly appropriate for the motion
    judge to deal with this question on a summary judgment motion and we agree with
    her disposition that those words are not capable of being defamatory of the
    appellant.

[2]

The fresh evidence here, assuming its relevance, does not meet the
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759 criteria in any event. These records
    could have been easily obtained with the exercise of due diligence at the time
    the motion was argued.

[3]

As to the second issue as to whether the matter ought to have been
    transferred from the estates court to the civil list, this is not a final order
    in any sense. And while this court has jurisdiction because of the defamation
    claim, it is a discretionary jurisdiction and here the decision of whether the
    estates court or the civil court should deal with these matters, is in our view
    better left to the Superior Court.

[4]

The appeal and the motion for fresh evidence are dismissed. Costs of the
    appeal and of the motion are awarded to the Respondent fixed in the sum of
    $12,000 inclusive of disbursements and HST.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wilfert v. McCallum, 2017 ONCA 895

DATE: 20171122

DOCKET: M48387 (C64088)

Feldman J.A. (In Chambers)

BETWEEN

Bryon Wilfert and Elizabeth Wilfert

(Appellants/Moving Parties)

and

Ian McCallum and Jacqueline Boughner

(Respondents/Responding Parties)

Paul Starkman, for the moving parties

Shaun A. Hashim, for the responding parties

Heard: October 18, 2017

REASONS FOR DECISION

A.

Introduction

[1]

The appellants move for a stay pending their appeal of the judgment of
    Faieta J., dated June 23, 2017, which dismissed their action on a motion
    brought by the respondents under Rule 21 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194. See
Wilfert v. McCallum
, 2017 ONSC 3853, 49
    C.B.R. (6th) 272.

B.

Background

[2]

The action was brought under s. 38 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3 (the
BIA
), for an order setting aside
    as a fraudulent conveyance, the 1993 conveyance by McCallum of his one half interest
    in the matrimonial home to his wife, Boughner. The appellants have appealed the
    dismissal of the action to this court and seek a stay to prevent Boughner from
    disposing of the property pending the appeal.

[3]

The appellants are judgment creditors of the respondent McCallum, as a
    result of an action for defamation they brought against him in respect of statements
    made in 2014. They obtained default judgment on May 12, 2015, following which,
    McCallum filed an assignment in bankruptcy in September 2015. The appellants
    obtained an assignment of rights under s. 38 of the
BIA

to
    bring the fraudulent conveyance action.

[4]

The relevant portions of the statement of claim are in paras. 8-12,
    which plead:

8.       In order to judgment proof himself, McCallum, with the
    cooperation and assistance of Boughner, has taken steps to defeat, hinder,
    delay or defraud his creditors and future creditors including the Plaintiffs,
    by among other things:

(a)      Arranging for the Property, which was jointly owned
    by McCallum and Boughner to be transferred for no or nominal consideration so
    that it became registered solely in the name of Boughner;

(b)      Effecting the transfer in subparagraph (a) above,
    in spite of the fact that McCallum paid all or substantially all of the down
    payment for the Property as well as paid and continued to pay the expenses
    associated with it and continued to live in the Property.

9.       At the time of the Transfer of the Property to Boughner solely, namely
    November 1, 1993, there was a Charge/Mortgage of Land in favour of the Royal
    Trust Corporation of Canada registered as Instrument No. R432228 on May 11,
    1987 (the RT Charge) naming both McCallum and Boughner as Chargors. The RT
    Charge was not discharged until the registration of a Discharge of Charge on
    January 31, 2007.

10.     At the time of the transfer, McCallum had creditors
    including, but not limited to Royal Trust Corporation.

11.     The transfer referred to above was completed for the
    purpose of defeating, delaying, hindering or defrauding McCallums creditors and
    further creditors and should be declared void as against the Plaintiffs and
    other creditors.

12.     The registered owner, Boughner, did not take title in
    good faith. Boughner knew or ought to have known that the Property was being
    registered solely in her name as part of a scheme to delay, hinder, defeat or
    defraud creditors and future creditors of McCallum.

[5]

On the motion brought under Rule 21 to dismiss the claim, the motion judge
    addressed three issues and found: (i) the Wilferts were not creditors or others
    within the meaning of s. 2 of the
Fraudulent Conveyances Act
, R.S.O.
    1990, c. F.29 (the
FCA
), and therefore had no standing to bring the
    action; (ii) the court could not address the limitation issue as to whether the
    claim was statute barred on the Rule 21 motion; and (iii) there was an
    irregularity in the procedure used by the Wilferts but it could be cured
nunc
    pro tunc
.

C.

The motion for a stay

[6]

The test on a motion for a stay pending appeal under Rule 63.02(1) is
    the same as the test for an interlocutory injunction: (i) whether there is a serious
    issue to be tried; (ii) whether the moving party will suffer irreparable harm
    if the stay is not granted; and (iii) whether the balance of convenience
    favours the granting of the stay. See
Circuit World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A., in Chambers), at para. 8;
Pathan v. Qureshi
,
    2009 ONCA 575 (in Chambers), at para. 11; and
Starkman v. Home Trust
    Company
, 2015 ONCA 436 (in Chambers), at para. 7.

[7]

In my view, none of the grounds favour a stay on this record.

(1)

Serious issue to be tried

[8]

The primary legal issue on the appeal is whether the 1993 conveyance was
    a fraudulent conveyance within the meaning of s. 2 of the
FCA

and
    whether the appellants are creditors or others within the meaning of the
    section. Section 2 provides:

Every conveyance of real property or personal property and
    every bond, suit, judgment and execution heretofore or hereafter made with
    intent to defeat, hinder, delay or defraud
creditors
    or others
of their just and lawful actions, suits, debts, accounts,
    damages, penalties or forfeitures are void as against such persons and their
    assigns. [Emphasis added.]

[9]

The appellants became creditors of the respondents many years after the
    impugned conveyance. The leading case on the test for when a subsequent
    creditor can set aside a conveyance as fraudulent is
Gauthier v. Woollatt
,
    [1940] 1 D.L.R. 275 (Ont. Sup. Ct.) which identified two circumstances: (i) if
    there remains unpaid a creditor from the time of the conveyance who would have
    been entitled to impeach the conveyance; or (ii) if the debtors purpose in
    making the conveyance was to defraud present and future creditors generally.
    See also
IAMGOLD Ltd. v. Rosenfeld
(1998), 81 O.T.C. 215 (Gen. Div.),
    at para. 11.

[10]

On the record before the court, there was a mortgage on the property to the
    Royal Trust Corporation of Canada at the time of the conveyance which was
    discharged in 2007.

[11]

There is a bare pleading that there were other creditors, beyond Royal
    Trust, in 1993 and that the respondents intent was to defraud. However, there
    are no particulars whatsoever to support that bare allegation, for example the
    names of any such creditors and whether their debts remain unpaid, any precarious
    financial position of McCallum at the time of the conveyance, or an impending
    risky financial venture at that time.

[12]

The appellants rely on the principle that on a Rule 21 motion the facts
    pleaded are taken to be true. However, that principle must be tempered by the
    principle that fraud must be pleaded with particularity: see Rule 25.06(8);
Balanyk
    v. University of Toronto
(1999), 1 C.P.R. (4th) 300 (Ont. S.C.), at para.
    28; and
South Holly Holdings Limited v. The Toronto-Dominion Bank
,
    2007 ONCA 456, at para. 2.

[13]

In my view, on the basis of the record and the law, the issue to be
    tried cannot be said to be a serious one.

(2)

Irreparable harm and balance of convenience

[14]

The appellants filed no evidence to support a claim of irreparable harm,
    or to demonstrate that the balance of convenience favours the granting of a
    stay pending appeal. They rely on the discharge of the CPL as establishing
    irreparable harm. However, there is no evidence that the respondent Boughner
    intends to sell the property imminently, or that if she did, the proceeds would
    not be available to satisfy a judgment if the appeal were to be successful.

D.

Disposition

[15]

I would therefore dismiss the motion for a stay with costs of $1,500,
    inclusive of disbursements and HST.

K.
    Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Yami Talk Catering Management Ltd. v. 2309603
    Ontario Inc.,

2017 ONCA 888

DATE: 20171121

DOCKET: C63542

Pardu, Trotter and Paciocco JJ.A.

BETWEEN

Yami Talk Catering Management Ltd. and Chenbin
    Zhong

Plaintiffs (Respondents)

and

2309603 Ontario Inc., Pasofina Canada Corporation
    and Zahid Naseer

Defendants (Appellants)

Mohamed El Rashidy and Chandralal Handapangoda, for the
    appellants

Shane E. Kazushner, for the respondents

Heard and released orally: November 15, 2017

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated February 28, 2017.

REASONS FOR DECISION

[1]

The appellant challenges the motion judges interpretation of a
    contractual term, his factual finding that the respondent waived the time limit
    for performance of the term, but did not waive the obligation of the landlord
    to perform that term, and also challenges his award of damages.

[2]

Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, requires
    deference to a trial judges interpretation of a contract. Having regard to the
    combination of the factual circumstances of the parties and a poorly drafted
    clause, we do not conclude that the trial judges interpretation of the
    contract was unreasonable or that there was any palpable and overriding error
    in his findings of fact. The award of reliance damages was not unreasonable.

[3]

The appeal is dismissed with costs to the respondent fixed at $20,000
    all inclusive.

G. Pardu
    J.A.

G.T. Trotter
    J.A.

David Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: York (Municipality) v. Irwin, 2017 ONCA 906

DATE: 20171124

DOCKET: C63515

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

The Regional Municipality of York

Applicant (Respondent)

and

Robert Irwin

Respondent (Appellant)

Gerard C. Borean, for the appellant

Chris G. Bendick, for the respondent

Heard: November 22, 2017

On appeal from the order of Justice M.L. Edwards of the Superior
    Court of Justice, dated February 23, 2017.

REASONS FOR DECISION

[1]

The appellant Robert Irwin is charged with
    various offences under Part III of the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the POA). He is alleged to have violated
    the
Building Code Act,
1992, S.O. 1992, c. 23,
    by not complying with six orders to comply the respondent issued in 2013 under
    that Act. The trial is proceeding before a justice of the peace.

[2]

The respondent, The Regional Municipality of
    York (York) asserts that various additions and alterations to Irwins
    property were constructed without a building permit. At trial Irwin testified
    that the 2013 orders were identical to orders to comply that had been issued
    against him in 1995 and 1996 (the Earlier Orders), that led to charges that
    were withdrawn. Irwin sought an order requiring York to provide disclosure of
    prior charges and prosecutions against him. The justice of the peace issued the
    disclosure order after hearing argument.

[3]

The respondent applied to the Superior Court for
    an order for
certiorari
under s. 140 of the
    POA. The application judge granted an order quashing the disclosure order and
    requiring the justice of the peace to continue with the trial of the charges.
    The application judge concluded that, although the Earlier Orders may well have
    applied to the same buildings on the property and required the same actions,
    they had different compliance deadlines and therefore constituted distinct
    offences.  York was entitled to issue more than one order to comply and each
    failure to comply would be a distinct offence. The application judge also
    accepted that, while the appellant might have relied on the withdrawal of the
    1996 charges had he appealed the six orders, he could not now attack the
    validity of the order having failed to avail himself of the appeal mechanisms
    under the
Building Code Act
.

[4]

The appellant appeals to this court by right,
    under s. 140(3) of the POA.  He says that the application judge ought not to
    have granted
certiorari
during the trial and
    that any issue as to the relevance of the Earlier Orders ought to have awaited
    an appeal post-trial. He argues that the application judge ought not to have
    granted the order he did without finding that a substantial wrong or
    miscarriage of justice had occurred, as required by s. 141(4) of the POA, and
    that the test is not met in this case.

[5]

The respondent accepts that the 2013 orders to
    comply replaced the Earlier Orders in respect of the same buildings and
    structures, but argues that the material difference between the orders is their
    compliance deadlines, and that therefore the application judge did not err in
    considering the disclosure request to pertain to irrelevant matters.

[6]

The respondent also contends that, even if the
    application judge did not expressly apply the s. 141(4) test for a substantial
    wrong or miscarriage of justice, that test is met on this record. Unless
certiorari
is granted the prosecution has no alternative but to
    disclose the records sought. The respondent says that it would be a substantial
    wrong to require the prosecution to produce documents that are patently irrelevant.
    The respondent argues that the disclosure order would have taken the trial down
    the wrong path and significantly complicated and prolonged the trial.

[7]

A justice of the peace who is hearing a trial of
    charges under Part III of the POA is entitled to determine questions of the
    relevance of evidence and to make disclosure orders, without such decisions
    being challenged mid-trial. Applications for
certiorari
should be granted only rarely. Most erroneous rulings made during a
    trial are appealable only at the end of the trial as part of an appeal against
    conviction, dismissal or sentence:
R. v. 1353837 Ontario Inc
., [2005] O.J. No. 656 (C.A.), at para. 18. The test for
    intervention mid-trial by
certiorari
under s.
    140 of the POA is whether the erroneous ruling makes the proceeding so unfair
    that the interests of justice require the court to intervene and grant
    prerogative relief:
135387
, at para. 24.

[8]

In our view the application judge erred by
    failing to consider the substantial wrong or miscarriage of justice test in s.
    141(4) of the POA, and in determining on the merits and mid-trial the issue of
    whether the Earlier Orders were relevant to the appellants defence. Even if
    the disclosure order were wrong, complying with it does not amount to a
    substantial wrong or miscarriage of justice. The disclosure order will not
    preclude the respondent from arguing that the materials disclosed are not in
    fact relevant and that what is disclosed does not afford a defence. By
    contrast, the effect of the application judges order is that any defence based
    on earlier compliance is effectively taken off the table. Whether or not the
    appellants argument amounts to a collateral attack on the order to comply,
    that issue should have been resolved at trial on a proper record, and it was
    premature for the respondent to bring the issue forward before the trial was
    concluded.

[9]

The appeal therefore is allowed and the order of
certiorari
is set aside.

[10]

Costs to the appellant fixed at $2,500,
    inclusive of applicable taxes and disbursements.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Zafar v. Saiyid, 2017 ONCA 919

DATE: 20171128

DOCKET: M48523 (C64581)

Hourigan J.A. (In Chambers)

BETWEEN

Mahmud Zafar

Applicant

(Respondent in the Appeal)

and

Qurratul Ain Saiyid

Respondent

(Appellant in the Appeal)

Anser Farooq, for the respondent

Robert McQueen, for the applicant

Heard and released orally: November 27,
    2017

REASONS FOR
    DECISION

Introduction

[1]

The appellant moves for a stay of the order of the application judge
    dated November 7, 2017. The respondent brings a crossmotion to dismiss the
    appeal.

Background

[2]

The parties were married on March 9, 2007 and have two children, A, aged
    5 and N, aged 1 1/2. Both children were born in London, England.

[3]

In May 2016, the appellant took a trip with the children to Canada with
    the consent of the respondent. The trip was to last from May 8, 2016 to August
    1, 2016. She communicated with the respondent while in Canada about extending
    the trip to September 11, 2016. The respondent was agreeable to an extension.

[4]

On August 23, 2016, the appellant telephoned the respondent and told him
    that their marriage was over and she was not returning the children to England.

[5]

The respondent brought an application pursuant to the
Convention on
    the Civil Aspects of International Child Abduction
, 25 October 1980,
    C.T.S. 1983/35; 19 I.L.M 1501 (the
Hague Convention
)
as incorporated in s. 46(2) of the
Childrens
    Law Reform Act
, RSO 1990, c. C,12 for the children to be immediately
    returned to London, England.

[6]

The appellant opposed the order on various grounds. She conceded many of
    her arguments before the application judge. In particular, she conceded that
    the habitual residence of the children was England.

[7]

In reasons dated September 13, 2017, the application judge rejected the
    appellants argument that the respondent had acquiesced to the removal of the
    children. The application judge also did not accede to her argument that the
    children would be exposed to a grave risk of harm by the respondent if they
    were returned to England. On that issue, he found that any concerns regarding
    the respondents alleged misconduct could be dealt with in England and it would
    not be intolerable to order A and N (and, implicitly, Ms. Saiyid) back to
    their habitual residence.

[8]

The application judge granted the application: For the above reasons,
    Mr. Zafars
Hague
application is allowed. The correct jurisdiction to
    hear any custody and access issues is London, England. Ms. Saiyid and the
    children must return there to deal with these issues.

[9]

In those reasons, he directed the parties that if they could not agree
    upon the necessary orders and undertakings for the childrens return to England
    then he could be spoken to.

[10]

A
    notice of appeal was not filed in time with respect to the September 13, 2017
    order. The parties were unable to agree to arrangements for the return of the
    children and made further submissions to the application judge.

[11]

On
    November 7, 2017, the application judge made a further order regarding the
    undertakings and arrangements for the return of the children. He ordered:

Until further order
    by the British Court, I therefore order:

a)

Dr.
    Zafar shall provide Ms. Saiyid and the children with exclusive possession of
    the matrimonial home municipally known as 396B Baring Road, London, England,
    Se12 0EF.

b)

Dr.
    Zafar shall pay the monthly rent for the home and all the monthly utilities and
    council tax.

c)

On a
    without prejudice basis, Dr. Zafar shall pay £225 GBP per week for the support
    of the children and Ms. Saiyid.

d)

Should
    Ms. Saiyid fail to return the children to London, England by December 1, 2017;

I.

Dr.
    Zafar shall have sole custody of the children and Dr. Zafar shall be permitted
    to return to England with the children.

II.

All
    local, provincial, federal, international police and all law enforcement
    officials to whose attention this order is brought shall assist, if required,
    in locating, apprehending and delivering the children to Dr. Zafar or to a
    person authorized on his behalf.

III.

This
    order shall be in force until June 1, 2018 unless extended by further court
    order.

IV.

For
    the purpose of locating and apprehending the children in accordance with this
    order, a sheriff or police officer may enter and search any place where he or
    she has reasonable and probable grounds for believing the children may be, with
    such assistance and such force as are reasonable in the circumstances at any
    time during the day.

V.

Ms.
    Saiyid shall deliver up forthwith to Dr. Zafar or his lawyer, Robert K.
    McQueen, the originals of the childrens passports, Social Security cards and
    birth certificates.

e)

Once
    the children are returned to London, England, Ms. Saiyid shall not remove the children
    from that jurisdiction without the written consent of Dr. Zafar or an order of
    the English Court.

f)

If
    Ms. Saiyid returns with the children forthwith to London, England, Dr. Zafar
    shall not remove the children from England.

Analysis

(a)

Cross-Motion

[12]

The
    respondent submits that the appeal should be dismissed because the September
    order was a final order and it was not appealed in time. He further submits
    that the November order is an interlocutory order and that the appellant should
    seek leave to appeal that order in the Divisional Court.

[13]

I
    disagree. In my view, the two sets of reasons amount to one order. The
    September reasons ordered that the children be returned to England. The
    application judge stated that he could add to those reasons and provide for a
    process to send the children home. He chose not to, instead directing the
    parties to work out the details and, failing agreement, to make further
    submissions.

[14]

In
    my view, the two sets of reasons amounted to one final order and the appellant
    appealed within the timeframe provided for in the
Rules of Civil Procedure
R.R.O. 1990, Reg. 194
. The cross-motion
    is dismissed.

(b)

Stay

(i)

Orders to be considered

[15]

The
    appellant submits that the application judge made several errors in his legal and
    factual analysis. She argues, for example, that the application judge had no
    authority to order her return to England. It is not clear from the reasons
    whether the application judge was actually ordering the appellant to England
    or, as he indicated earlier in his reasons, only implicitly making such an
    order. The appellant also submits that the trial judge did not have the
    authority to order a change in custody if the children were not returned by the
    deadline.

[16]

For
    the purposes of my analysis, I will assume that the application judge made an
    order for the appellants return to England. I will consider below whether the
    order for the return of the children and/or the order for the return of the
    appellant should be stayed. I will also consider whether the order potentially
    changing custody should be stayed.

(ii)

General Principles

[17]

The
    test for staying an order pending appeal under r. 63.02 of the
Rules of
    Civil Procedure
, requires the court to consider the following factors: (1)
    a preliminary assessment must be made of the merits of the case to ensure that
    there is a serious question to be tried; (2) it must be determined whether the
    applicant would suffer irreparable harm if the application were refused; and
    (3) an assessment must be made as to which of the parties would suffer greater
    harm from the granting or refusal of the remedy pending a decision on the
    merits:
Circuit World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674
    (C.A. [In Chambers]), at para. 8;
Warren Woods Land Corp. v. 1636891
    Ontario Inc.
, 2012 ONCA 12 [In Chambers], at para. 1.

[18]

These
    three factors are not watertight compartments; the strength of one may
    compensate for the weakness of another. The overarching consideration is
    whether the interests of justice call for a stay:
International Corona
    Resources Ltd. v. LAC Minerals Ltd.
(1986), 21 C.P.C. (2d) 252 (Ont.
    C.A.);
Longley v. Canada (Attorney General)
, 2007 ONCA 149, 223 O.A.C.
    102 [In Chambers], at paras. 14-15.

(iii)

Order for the Return of the Children

[19]

Turning
    first to whether there is a serious question to be tried, it must be emphasized
    that this is a low threshold. It is evident from a review of the reasons of the
    application judge that the appellant abandoned many of her arguments during the
    course of the application. Her primary submission now is that the application
    judge failed to properly consider her argument about intolerable circumstances.

[20]

While
    I would not categorize her appeal as strong, it does pass the serious issue to
    be determined threshold. This factor militates in favour of a stay.

[21]

With
    regard to irreparable harm, I am not satisfied that the appellant has met her
    onus. The primary arguments asserted by the appellant on this issue are that
    without a stay the status quo would be altered, that her relationship with the
    children would be ruptured, and the children would be subjected to harm.

[22]

The
    purported status quo of the children remaining in Canada, which is not their
    habitual residence, was a situation that the appellant engineered and should
    not be continued by this court absent good reason. I am not satisfied that
    there is any such good reason. Nor am I am satisfied that the appellants
    relationship with her children will suffer. There is every reason to believe
    that she can continue her relationship with her children in their habitual
    residence. With respect to her safety concerns, I agree with the assessment of
    the application judge that those issues can be dealt with expeditiously in
    England.

[23]

On
    the issue of irreparable harm, I adopt the analysis of Benotto J.A. in
Balev
    v. Baggott
, 2016 ONCA 996 at para. 33:

There is no irreparable harm if the children are returned.
    There is greater harm being done to the children by delaying the determination
    of custody. Applications pursuant to the Hague Convention are to be dealt with
    expeditiously. Continuing delays frustrate the purpose of the legislation,
    favour the non-complying parent, and postpone the determination of the
    childrens best interests in the country where they are habitually resident.

[24]

With
    regard to the balance of convenience, the appellant submits again that the
    status quo should not be disturbed, the father has no plan of care, and that
    the appeal would be rendered moot if a stay is not granted.

[25]

I
    reject the status quo argument for the same reasons given above. Any issue re a
    plan of care can be dealt with by the English courts.

[26]

With
    regard to the mootness point, I adopt the reasons of Roberts C.J. of the United
    States Supreme Court in
Chafin v. Chafin
(2012), 133 S.Ct. 1017, at p.
    1027, as quoted in
Balev
in para. 35:

In cases in which a stay would not be granted but for the
    prospect of mootness, a child would lose precious months when she could have
    been readjusting to life in her country of habitual residence, even though the
    appeal has little chance of success. Such routine stays due to mootness would
    be likely but would conflict with the
Conventions mandate of prompt return
    to a childs country of habitual residence
. [Emphasis added.]

[27]

The
    balance of convenience favours the respondent.

[28]

In
    balancing all of the factors, I am of the view that a stay should not be
    granted. There is a serious issue to be tried, but the appellant will not
    suffer irreparable harm if the stay is not granted, and the balance of
    convenience also does not favour a stay. This is a situation where the court
    must follow its mandate of ensuring that
Hague Convention
cases are
    dealt with expeditiously by ensuring prompt return of children to their
    habitual residence.

[29]

The
    motion for an order staying the order for the return of the children to England
    is dismissed.

(iv)

Order for the Return of the Appellant

[30]

As
    stated above, it is not clear to me that the application judge intended to
    order the appellant to return to England. No formal orders were provided by the
    parties, so I must govern myself by what is in the reasons.

[31]

If
    such an order was made, there is good reason to doubt its correctness. The
    court would appear to be without jurisdiction to make such an order and it
    would raise serious constitutional concerns.

[32]

The
    appellant would suffer irreparable harm if she were effectively ordered out of
    Canada to a country where she does not hold citizenship.

[33]

The
    balance of convenience would also clearly favour the appellant as she could
    suffer real prejudice if she is ordered out of Canada against her wishes.

[34]

A
    balancing of the factors and the justice of the case favours granting a stay of
    this part of the application judges reasons.

[35]

An
    order will go staying that portion of the application judges reasons that
    ordered the appellant to return to England.

(v)

Order for a Change in Custody

[36]

The
    application judge ordered that if the appellant did not return the children to
    England by December 1, 2017, the respondent shall have sole custody of the
    children and the respondent shall be permitted to return to England with the
    children.

[37]

I
    agree with the submission of the appellant that there is good reason to doubt
    the correctness of an order changing custody. That is, of course, a matter to
    be determined in England. Such an order would also appear to violate article 16
    of the
Hague Convention
.

[38]

The
    appellant may suffer irreparable harm if an order is made in Canada changing
    custody of the children, as it could adversely impact her position before the
    English courts.

[39]

The
    balance of convenience also favours the appellant. Such an order significantly
    changes the status quo in terms of the parties having custody issues
    determined by the English courts.

[40]

The
    justice of the case favours a stay of that portion of the order awarding custody
    of the children to the respondent if the appellant does not return them to
    England. A stay will issue with respect to that part of the application judges
    reasons. To be clear the order remains extant with respect to all other parts
    of the order for the return of the children, including, but not limited to, an
    order that the children be returned to England by December 1, 2017, failing
    which the respondent is permitted to return the children to England.

Disposition

[41]

The
    cross-motion is dismissed. A stay will go with respect to those portions of the
    application judges reasons that purport to order the appellant to return to
    England and to award the respondent custody of the children if they are not
    returned to England by the appellant by December 1, 2017. The stay motion is
    otherwise dismissed.

[42]

There
    was mixed success on the motion and cross-motion. However, the most significant
    issue was the stay of the order returning the children to England. The
    respondent was largely successful on that part of the motion. He is entitled to
    a costs award that reflects that success and factors in the overall mixed
    success. The appellant shall pay costs to the respondent forthwith in the
    amount of $3,000, inclusive of fees, disbursements, and taxes.

Released: C.W.H. November 28, 2017

C.W. Hourigan J.A


COURT OF APPEAL FOR ONTARIO

CITATION: 1079268 Ontario Inc. v.
    GoodLife Fitness Centres Inc., 2017 ONCA 1012

DATE: 20171220

DOCKET: C61367

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

1079268 Ontario Inc.

Applicant (Respondent)

and

GoodLife Fitness Centres Inc.

Respondent (Appellant)

John K. Downing and Brian Whitwham, for the appellant

Kevin D. Sherkin, Elizabeth Barrass and Carmine Scalzi,
    for the respondent

Heard: September 19, 2016

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated October 5, 2015, with reasons reported at 2015
    ONSC 6772.

COSTS ENDORSEMENT

[1]

On January 10, 2017, this court released its decision on this appeal,
    setting aside the order of Mesbur J. dated October 5, 2015. The parties were
    invited to make written submissions on costs. However, the written submissions
    received addressed only the costs of the appeal and did not provide the
    parties positions on the costs of the application below.

[2]

The appellant was awarded its costs of the appeal, fixed by agreement of
    the parties at $20,000, inclusive of taxes and disbursements. The costs award
    on the application below was reversed.

[3]

The parties have been unable to agree on the costs to be awarded on the
    application below.

[4]

The parties primarily contested two issues on the application. Success
    on the application was divided. As a result, in her endorsement released
    November 2, 2015, the application judge reduced the respondents costs from the
    agreed amount of $42,500 to $30,000, stating, at para. 112:

The parties agreed the appropriate amount of costs for the
    successful party on the application would be $42,500 inclusive of disbursements
    and taxes. Since the applicant did not succeed on its claim for rectification,
    it enjoyed only partial success. The applicant will therefore have its costs
    fixed at $30,000 all inclusive.

[5]

The parties disagree on whether this courts decision to reverse the
    costs award on the application requires the respondent to pay to the appellant
    $30,000 or $42,500 for the application below.

[6]

Given that the appellant succeeded on both issues argued at the
    application, the appellant is entitled to the costs of the application agreed
    upon by the parties before the application judge. The appropriate costs award
    on the application is the agreed amount of $42,500.

[7]

Accordingly, paragraph 45 of this courts January 10, 2017 reasons is
    amended to read as follows:

GoodLife is entitled to its costs of the appeal, fixed by
    agreement of the parties at $20,000, inclusive of taxes and disbursements.
    GoodLife is also entitled to costs of the application in the originally agreed amount
    of $42,500, inclusive of taxes and disbursements.

E.A. Cronk
    J.A.

Paul Rouleau
    J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1162251 Ontario Limited v. 833960 Ontario Limited
    (M-Plan Consulting), 2017 ONCA 1025

DATE: 20171228

DOCKET: C62761

Laskin, Lauwers and Brown JJ.A.

BETWEEN

1162251
    Ontario Limited

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

833960
    Ontario Limited carrying on business as M-Plan Consulting

Defendant (Appellant/

Respondent by way of cross-appeal)

Ronald G. Slaght and Patrick Healy, for the appellant

Sean Zeitz, for the respondent

Heard: May 4, 2017

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated September 8, 2016.

COSTS ENDORSEMENT

[1]

The appellant is entitled to its costs of the motions before the motion
    judge in the amount $85,000 inclusive of disbursements and HST.

John
    Laskin J.A.

P.
    Lauwers J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1268223 Ontario Limited v. Fung Estate, 2017 ONCA
    1003

DATE: 20171220

DOCKET: C63249

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

1268223 Ontario Limited

Plaintiff (Respondent)

and

Estate of Po Fung, by its Trustee, Keng Fai Fong

Defendant (Appellant)

Defendant (Respondent and Appellant by cross-appeal)

Eduardo F. Lam, for the appellant

Justin M. Jakubiak & Sara Hickey, for the respondent

Heard
and released orally
:  December 14, 2017

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice sitting without a jury, dated December 23,
    2016.

REASONS FOR DECISION

[1]

The defendant appeals from the judgment awarding
    the sum of $1,070,000 to the plaintiff.  The defendant also appeals the costs
    award made by the trial judge.

[2]

The claim arises from an unfortunate dispute
    between a father and his daughter.  The issue is whether the father or the
    daughter owned a commercial property located on Parliament Street in Toronto
    that was sold.  The daughter says that the property was a gift to her from her
    father.  The father says that the property was his.  Indeed, the father took
    the sum involved from the proceeds of sale and refused to return it.  The
    father has since passed away.

[3]

The trial judge heard the evidence from a
    variety of parties including the daughter, three of her brothers and read-ins
    from the deceased fathers examination for discovery.  The trial judge
    concluded that the father had gifted the property to his daughter and thus the
    monies taken by the father belonged to her.

[4]

In our view, there is no basis for the challenge
    to the trial judges conclusion.  The conclusion is based on factual findings
    made by the trial judge, all of which were open to him on the evidence.  His
    conclusion that the property was gifted by the father to the daughter is
    supported by, among other facts:

·

The property was held by the plaintiff company
    and the daughter was the sole shareholder, officer and director of the company;

·

The father had assisted two of his sons to
    purchase commercial properties;

·

Two of the fathers sons gave evidence that both
    their father and mother had referred to the property as belonging to the
    daughter;

·

None of the documentation surrounding the
    purchase of the property suggested that it was a purchase in trust for the
    father; and

·

It was the daughter who suggested that the
    property be sold.

[5]

Contrary to the appellants submission, these
    factual findings made by the trial judge met the three criteria for a gift set
    out in
McNamee v. McNamee
, 2011 ONCA 533, 106
    O.R. (3d) 401 (C.A.).

[6]

The appellant complains that the trial judge did
    not refer to any case law or statutory authority in the course of his reasons.
    The trial judge was not required to.  There was no apparent dispute over the
    law that was applicable to this case.  It was a trial that required the facts
    to be found, not the law that was to be applied.

[7]

The merits appeal cannot succeed.

[8]

In argument, counsel for the appellant clarified
    that the costs appeal was linked to success on the merits appeal.
    Consequently, we do not need to address it separately.

[9]

The appeal is dismissed.

Costs will be awarded on a partial indemnity basis in
    the amount of $15,000, inclusive of disbursements and HST, to the respondent.

K. Feldman J.A.

Fairburn J.A.

I.V.B. Nordheimer J.A.