COURT OF APPEAL FOR ONTARIO

CITATION: El-Khodr v. Northbridge Commercial
    Insurance Company, 2021 ONCA 440

DATE: 20210621

DOCKET: C68343

Doherty, Pepall
    and Thorburn JJ.
A.

BETWEEN

Kossay El-Khodr

Applicant (Appellant)

and

Northbridge
    Commercial Insurance Company

and Hughes Amys LLP

Respondents (
Respondent
)

Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant

Harvey Klein, for the respondent

Heard: February 19, 2021 by videoconference

On appeal from the judgment of Justice Heather
    J. Williams of the Superior Court of Justice, dated April 17, 2020, with
    reasons reported at 2020 ONSC 2319.

Thorburn J.A.:

OVERVIEW

[1]

In Ontario, parties injured
    in an automobile accident can receive no fault first-party benefits through receipt
    of statutory accident benefits (SABs). SABs are required by statute to be
    included in all automobile insurance policies. They provide a person injured in
    an accident, whether or not they are at fault, access to medical, rehabilitation,
    and other benefits to assist with their recovery.

[2]

An injured person may also
    bring a legal action against the at fault driver in tort (the tort defendant).
    There is often overlap between the compensation provided pursuant to the SABs
    and the award of damages in a civil proceeding.

[3]

Section 267.8 of the
Insurance
    Act
, R.S.O. 1990, c. I.8, therefore provides that tort awards must be
    reduced by corresponding categories of SABs received. This is accomplished by deducting
    those SABs received before trial from the damages awarded and by either holding
    in trust those SABs received after trial or by assigning the SABs benefits payable
    after trial to the tortfeasor or his insurer.

[4]

The appellant, Kossay
    El-Khodr, suffered catastrophic injuries in a motor vehicle accident. Royal
    & Sun Alliance Insurance Company of Canada (Royal) is Mr. El-Khodrs SABs
    insurer. The respondent, Northbridge Commercial Insurance Company
    (Northbridge), is the insurer for the tort defendant and conducted the
    defence on the tortfeasors behalf.

[5]

The jury awarded Mr.
    El-Khodr substantial damages payable by the tortfeasor. Northbridge, as insurer
    for the tortfeasor, sought an assignment of certain accident benefits payable by
    Royal to Mr. El-Khodr. While the trial judge assigned some benefits, the
    assignment of benefits for future medication and assistive devices and future professional
    services was denied.

[6]

Northbridge appealed the decision
    (the Assignment Appeal) to this court. After the Assignment Appeal was heard
    but before reasons were released, Royal, Northbridge, and Mr. El-Khodr entered
    into Minutes of Settlement. Under the minutes of settlement, Royal settled
    $385,000 into a trust for the benefit of the appellant and Northbridge in full
    and final satisfaction of any and all entitlement to medical and
    rehabilitations benefits. The Minutes of Settlement provided, as set out in
    detail below, that this sum would be held by Hughes Amys LLP, counsel to Northbridge,
    and released either to Mr. El-Khodr or Northbridge depending on the outcome of
    the Assignment Appeal. Specifically, Northbridge would receive the funds in
    the event that the said appeal is allowed and an assignment of Kossay El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge.

[7]

In September 2017, the Assignment
    Appeal was granted and this court ordered that the amounts payable by Royal to
    Mr. El-Khodr for future medication and assistive devices, and for professional
    services for specified benefits up to the amount of the jury award, be assigned
    to Northbridge: see
El-Khodr v. Lackie
, 2017 ONCA 716, 139 O.R. (3d)
    659, leave to appeal refused, [2017] S.C.C.A. No. 461.

[8]

The application judge was asked
    to interpret the Minutes of Settlement in light of the Assignment Appeal and determine
    whether the preconditions for the transfer of funds to Northbridge in the
    Minutes of Settlement were satisfied.

[9]

Mr. El-Khodr argued that
    this court, in the Assignment Appeal, did not order the assignment of Mr.
    El-Khodrs entitlement of medical and rehabilitation benefits as it assigned
    only part of those benefits and, as such, the second precondition to the
    transfer of funds was not satisfied. The application judge rejected this
    approach and held that the conditions set out in the Minutes of Settlement were
    met. She therefore ordered that the $385,000 amount in the Settlement Agreement
    be released to Northbridge.

[10]

Mr. El-Khodr appeals the
    application judges order to transfer the $385,000 to Northbridge.

[11]

For the reasons that follow,
    I would dismiss the appeal.

BACKGROUND

[12]

The issue on this appeal is
    whether the application judge made a palpable and overriding error of fact or an
    extricable error of law in failing to properly construe the preconditions for
    payment to Northbridge in the Minutes of Settlement.

[13]

In order to assess whether
    the application judge erred in her interpretation of the Minutes of Settlement,
    it is necessary to understand (a) the available approaches to the assignment of
    the SABs benefits, (b) the background facts and terms of the Minutes of
    Settlement (c) the decision of this court on the Assignment Appeal and (d) the
    reasons of the application judge.

A.

The Available
    Approaches to the Assignment of Sabs

[14]

In Ontario,
Statutory
    Accident Benefits Schedule,
O. Reg. 34/10, under the
Insurance Act
,
    enables parties injured in an automobile accident to receive no-fault first-party
    benefits while at the same time suing the at-fault driver in tort.

[15]

Because of the overlap
    between the compensation provided pursuant to the SABs and the damage awards,
    s. 267.8 of the
Insurance Act
provides that the tort award must be
    reduced by corresponding categories of SABs received. Section 278.8(12) addresses
    the assignment of SABs payable after trial and provides as follows:

Assignment of future collateral benefits

(12) The court that heard and determined the
    action for loss or damage from bodily injury or death arising directly or
    indirectly from the use or operation of the automobile, on motion, may order
    that, subject to any conditions the court considers just,

(a)     the plaintiff who recovered damages in
    the action assign to the defendants or the defendants insurers all rights in
    respect of all payments to which the plaintiff who recovered damages is
    entitled in respect of the incident after the trial of the action,

(i)      for statutory
    accident benefits in respect of income loss or loss of earning capacity,

(ii)      for income
    loss or loss of earning capacity under the laws of any jurisdiction or under an
    income continuation benefit plan,

(iii)     under a
    sick leave plan arising by reason of the plaintiffs occupation or employment,

(iv)     for
    statutory accident benefits in respect of expenses for health care,

(v)     under any
    medical, surgical, dental, hospitalization, rehabilitation or long-term care
    plan or law, and

(vi)     for
    statutory accident benefits in respect of pecuniary loss, other than income
    loss, loss of earning capacity and expenses for health care.

[16]

As noted above, the benefits
    to be assigned are described in the Act only in broad categories: income loss,
    loss of earning capacity, and expenses that have been or will be incurred for
    health care or other pecuniary loss.

[17]

Until the decisions in
Carroll
    v. McEwen
, 2018 ONCA 902,
143 O.R. (3d) 641,
and
Cadieux v. Cloutier
, 2018 ONCA 903, 143 O.R. (3d) 545, leave to appeal
    to refused, [2019] S.C.C.A. No. 63, courts applied two different methods to address
    the overlap between damages awarded and SABs received: (a) the apples-to-apples
    or strict matching approach, which required temporal and qualitative matching
    of SABs to specific heads of tort damages; and, (b) the silo approach, which
    only includes three broad categories of SABs under the
Insurance Act
:
    income replacement benefits, health care benefits, and other pecuniary losses.
    Under the silo approach, tort damages are only required to match generally
    with a corresponding SABs category.

[18]

In
Carroll
and
Cadieux
,
    companion appeals, a five-member panel of this court adopted the silo
    approach to the treatment and matching of SABs to tort damages under section
    267.8 of the
Insurance Act
. The panel held that the strict matching
    approach, developed in
Bannon v. McNeely
(1998), 38 O.R. (3d) 659
    (C.A.), was no longer to be followed. One of the stated benefits of the silo
    approach was that it would promote greater efficiency in motor vehicle accident
    litigation.

[19]

Carroll
and
Cadieux
were rendered after the Assignment
    Appeal was decided in September 2017.

B.

Background Facts and
    Terms of the Minutes of Settlement

The Tort Claim

[20]

In January 2007, the
    tortfeasors vehicle rear-ended a two-truck driven by Mr. El-Khodr, who suffered
    serious injuries. He brought an action against the driver and owner of the vehicle.

[21]

Liability for the collision was
    not at issue by the time of trial, which proceeded before a jury. The parties
    asked the jury to assess the tort damages in respect of the following
    categories: (i) past loss of income; (ii) general damages for pain and
    suffering and loss of enjoyment of life; (iii) future loss of income; and (iv) future
    care costs.

[22]

Mr. El-Khodr was awarded global
    damages in the amount of $2,850,977.80.

[23]

The amounts awarded for
    future care costs included (i) future attendant care costs/assisted living in
    the amount of $1,450,000; (ii) future professional services, such as physiotherapy
    and psychology, in the amount of $424,550; (iii) future housekeeping and home maintenance
    services in the amount of $133,000; and (iv) future medication and assistive devices
    in the amount of $82,429.

[24]

The damages were paid in
    full on August 10, 2015.

[25]

After the verdict, the trial
    judge made a series of rulings addressing, among other things, the assignment
    of SABs: see
El-Khodr v. Lackie
, 2015 ONSC 5244, 79 C.P.C. (7th) 356.

[26]

She held that income
    replacement and attendant care benefits payable by Royal to Mr. El-Khodr be
    assigned to the tortfeasors insurer, Northbridge, for specified periods, and that
    housekeeping benefits be assigned to Northbridge until the SABs received
    equalled the amount of the jury award. No SABs relating to future professional
    services and medications and assistive devices were assigned. In denying the
    assignment of these benefits, she reasoned that benefits should be assigned
    only if it is absolutely clear that the plaintiffs entitlement to such
    benefits is certain and that the plaintiff received compensation for the same
    benefits in the tort judgment, citing
Gilbert v. South
, 2014 ONSC
    3485, 120 O.R. (3d) 703, at para. 9. She found that the Defendants are
    now unable to meet their onus to demonstrate that the jury award compensated
    the Plaintiff for the same loss in respect of which the Defendants now claim an
    assignment of benefits.

Northbridges Appeal

[27]

As discussed above, Northbridge
    appealed the trial judges rulings respecting the assignment of benefits to
    this court. In its Supplementary Notice of Appeal, Northbridge claimed a total
    assignment of future SABS payable to Mr. El‑Khodr from his insurer,
    including all SABs payable for future healthcare expenses that the trial judge
    had denied. Northbridge argued that the approach taken by the trial judge
    effectively allowed double recovery and took the position that the silo
    approach to the assignment of accident benefits should be taken.

[28]

Mr. El-Khodr took the
    position that the matching approach should be followed and that [t]he trial
    judge granted the assignments which she was able to match with the jury verdict,
    and denied those which she could not match for each collateral benefit listed
    in Section 267.8 of the
Insurance Act
. This was in accordance with
    the approach adopted by this court in
Bannon v. McNeely
.

The Minutes of Settlement

[29]

After the Assignment Appeal was
    argued in April 2017 but before the decision was rendered in September, Mr.
    El-Khodr was scheduled to proceed to arbitration before the Financial Services
    Commission of Ontario against Royal in relation to attendant care benefits and
    a rent subsidy. The value of the rent subsidy in dispute was estimated at
    $50,468. Northbridge was added as an interested party by virtue of its standing
    as assignee of the attendant care benefits.

[30]

On June 30, 2017 counsel for
    Mr. El-Khodr sent two emails to opposing counsel which read as follows:

To be clear, we are not asking Northbridge to
    forfeit its appeal. On the contrary,
the outcome of the appeal determines
    who gets the monies that you are going to be holding in trust. We do, however,
    expect these Minutes to settle all issues between Northbridge and [Mr. El-Khodr]
    going forward
.

[A]s
this settlement is intended to resolve
    all outstanding issues between the parties, subject only to the outcome of the
    appeal
, I'm not sure how this comes out of left field for Northbridge. This
    was the point of the winner take all figures that we had agreed upon. [Emphasis
    added.]

[31]

Later that day, the Minutes
    of Settlement were signed with Mr. El-Khodrs accident benefits insurer, Royal,
    which addressed medical and rehabilitation benefits.

[32]

Paragraph 4 of the Minutes
    of Settlement reads as follows:

The sum of $385,000.00, payable under
    paragraph 3 hereof, shall be payable to [Northbridges counsel]
HUGHES AMYS
    LLP IN TRUST
for the benefit of both Applicants herein, pending release of
    the decision of the Court of Appeal for Ontario in
El-Khodr v. Lackie
,
    court file number C60918, which appeal was argued on April 4, 2017, decision
    reserved. The following applies upon receipt of the Court of Appeals decision:

(a)

in the
    event that the appeal with respect to Justice Roccamos refusal to grant an
    assignment of medical and rehabilitation benefits to Northbridge is dismissed
    by the Court of Appeal, the sum of
$385,000.00
held in trust by
HUGHES
    AMYS LLP
shall be released forthwith to Mr. El-Khodr, by cheque made
    payable to [Mr. El-Khodrs counsel]
CONNOLLY OBAGI LLP IN TRUST;

(b)

in the
    event that the said appeal is allowed and an assignment of Mr. El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge,
    the sum of
$385,000.00
held in trust by
HUGHES AMYS LLP
shall be
    released forthwith to the Applicant, Northbridge.

C.

Disposition of the Assignment
    Appeal

[33]

This court rendered its
    judgment in the Assignment Appeal on September 19, 2017. The court allowed the
    appeal, and amended the trial judges order so that Royals future payments to
    Mr. El-Khodr for medication and assistive devices up to a total of $82,429.00 (i.e.,
    the amount the jury had awarded for medication and assistive devices) and
    future payments for specified professional services up to a total of
    $424,550.00 (i.e., the amount the jury had awarded for professional services)
    be assigned to Northbridge.

[34]

In so doing, MacFarland J.A.
    held, at paras. 60-61 and 75-80, that:

The court is required only to match statutory
    benefits that fall generally into the silos created by s. 267.8 of the
Insurance
    Act
with the tort heads of damage. Income awards are to be reduced only by
    SABs payments in respect of income loss and health care awards only by SABs
    payments in respect of health care expenses. The latter item is, I suggest,
    deliberately broad enough to cover all manner of expenses that relate to health
    care and would include medications, physiotherapy, psychology sessions,
    assistive devices and the like. All manner of other expenses that are covered
    by SABs and that do not fall under the income category or the health care
    category fall into the other pecuniary losses category.

[A]lthough the legislation requires us to
    match apples with apples, the relevant categories of apples are the statutes
    categories, not the common laws.

All of the claims in this case that make up
    the awards for future professional service and future medication and assistive
    devices were itemized sufficiently and all were covered by the SABs schedule
. They were claimed from the date of trial to the end of the
    respondents life  the same period that the SABs will cover. The Cost of
    Future Care schedules on which the respondent advanced his case before the jury
    and that were made exhibits, set out the respondents claims in detail.

This was not a lump sum award for future care.
    The jury awarded an amount for future attendant care/assisted living, a
    separate amount for future professional services and separate amounts for
    future housekeeping/home maintenance and for future medication and assistive
    devices.

The respondent did not recover all of the
    amounts that he had claimed. For example, he advanced a claim for the cost of
    future professional services in the amount of $637,125 and the jury awarded
    $424,550.

But it is for the jury to say what the proper
    amount of compensation is for a plaintiff. And once the judgment based on that
    award is paid, a plaintiff has been fully compensated for his loss. This
    plaintiff was paid the full amount of his judgment on August 10, 2015, and has,
    therefore, been fully compensated in respect of all his losses arising from
    this motor vehicle accident.

If there is no trust or assignment in respect
    of the SABs to which he will be entitled and which he will receive in the
    future for medication, assistive devices and professional services, he will be
    over-compensated and his receipt of any such benefits with no obligation to
    account to the tort insurer will constitute double recovery  a result this
    legislative scheme was specifically designed to avoid.

In my view,
the trial judge erred in not
    ordering that there be an assignment in relation to the awards for the cost of
    future medication and assistive devices and future professional services
. I
    would set aside paragraphs 3 and 4 of the trial judges order of August 26,
    2015 and in their place order that any amounts for future medication and
    assistive devices payable by RSA Insurance to the respondent be assigned to
    Northbridge Commercial Insurance Corporation until the sum of $82,429 has been
    received; and that any amounts for future professional services payable by RSA
    to the respondent for psychological, physiotherapy, occupational therapy,
    massage therapy, kinesiology/personal training, case management services, and
    travel to medical or other specialist be assigned to Northbridge Commercial
    Insurance Corporation until the sum of $424,550 has been received. [Emphasis
    in original omitted. Emphasis added]

[35]

In arriving at this
    conclusion, she held, at para. 35, that, strict qualitative and temporal
    matching requirements should not be applied to s. 267.8 and the court should
    instead match benefits that will be received after trial to the broad, enumerated
    statutory categories only in a general way.

[36]

After the Assignment Appeal
    was rendered, the appellant brought an application to the Superior Court to
    interpret para. 4 of the Minutes of Settlement in light of this courts
    decision.

D.

The Application
    Judges Order

[37]

On the application, Mr.
    El-Khodr took the position that the $385,000 held in trust did not need to be
    paid to either himself or Northbridge in its entirety. Although he conceded
    that he did not win the appeal, he argued that para. 4(b) of the Minutes of
    Settlement did not apply because this court ordered that only some, but not
    all, of his future medical and rehabilitation benefits were assigned to
    Northbridge.

[38]

The application judge
    recognized that, at the time of the Assignment Appeal, there were two lines of
    authorities with respect to the assignment of accident benefits: the matching
    approach which requires that the tort award match the benefits sought to be
    assigned and the silo approach that requires no matching but simply that the
    benefits fall within the category of benefit, in this case, the health care
    category. She held at paras. 27 to 35 of her reasons that,

I take Mr. El-Khodrs point that Northbridges
    supplementary notice of appeal requested a total assignment of future SABS
    benefits and that Northbridges appeal factum said that it was seeking an
    Assignment of all future health care expenses While more precision might
    have been applied to both phrases, it is evident from reading the two documents
    in their entirety that Northbridge was appealing the trial judges refusal to
    grant Northbridge an assignment of Mr. El-Khodrs entitlement to future
    benefits for medication and assistive devices and for professional services,
    the benefits referred to in paragraphs 3 and 4 of the trial judges order.

When the minutes of settlement were prepared
    and signed in June 2017, the scope of the appeal as it related to the
    assignment issue was not a mystery to the parties. The appeal had already been
    argued.
The parties knew that if Northbridge was successful on the appeal,
    it would be awarded assignments of the future medical and rehabilitation
    benefits to which the trial judge, in paragraphs 3 and 4 of her August 26, 2015
    order, had held it was not entitled
.

Mr. El-Khodr made the point that his
    $385,000.00 settlement of June 30, 2017 included amounts for benefits that were
    not ultimately assigned to Northbridge by the Court of Appeal, including a rent
    subsidy. He argued that it would be unfair for Northbridge to receive the entire
    amount of the settlement when the assignment it was granted by the Court of
    Appeal was related only to certain specified benefits.

I do not accept this argument because, as I
    have already observed,
Mr. El-Khodr was aware of the scope of the appeal
    when he signed the minutes of settlement. Mr. El-Khodr also knew, when he
    signed the minutes of settlement, that the winner of the appeal would receive
    the entire amount of the settlement. This is evident from the wording of the
    minutes of settlement and also from an email exchange dated June 30, 2017
    between Mr. El-Khodrs lawyer and the lawyer who was then representing
    Northbridge
.

In terms of fairness, as MacFarland J.A.
    observed at para. 78 of the Court of Appeals decision, Mr. El-Khodr was paid
    the full amount of his judgment in August 2015 and was therefore fully
    compensated in respect of all of his losses arising from his motor vehicle
    accident. Further, the amount the jury awarded, and that Northbridge paid to
    Mr. El-Khodr, for future medication and assistive devices ($82,429.00) and
    future professional services ($424,550.00) exceeded the amount of the
    $385,000.00 settlement by $121,979.00.

For these reasons, I also reject Mr.
    El-Khodrs argument that paragraph 4 of the minutes of settlement was
    frustrated by the outcome of the appeal.

[39]

The application judge concluded
    that, Northbridge was wholly successful on the appeal. The application judge therefore
    decided that the $385,000 attributable to Mr. El-Khodrs medical and
    rehabilitation benefits paid by Royal should be released to Northbridge.

THE POSITIONS OF THE PARTIES ON THIS APPEAL

[40]

Mr. El-Khodr renews his
    argument that the Assignment Appeal did not trigger the payment of $385,000.00
    to either party because
both
conditions in the Minutes were not met:
    (a) Northbridges appeal was allowed, but (b) the assignment of
all
future medical and rehabilitation benefits to Northbridge was not granted. Mr.
    El-Khodr submits the provision in the Minutes of Settlement was therefore
    frustrated.

[41]

Mr. El-Khodr claims the
    application judges determination rendered the second precondition meaningless
    and, in doing so, she committed an extricable error of law. Moreover, he claims
    the finding that Northbridge received what it sought on appeal constitutes a
    palpable and overriding error of fact. Mr. El-Khodr therefore seeks an order
    that the remaining settlement monies be apportioned in accordance with the
    value of the SABs assigned and not the value of all SABs both assigned and not
    assigned in the Assignment Appeal.

[42]

Northbridge does not dispute
    that it was seeking a total assignment of all health care expenses and
    advocating for the silo approach. However, Northbridge submits that the
    request for a total assignment of future SABS benefits payable to the
    Plaintiff by [Royal] in the relevant notice of appeal was only in respect of
    the trial judges refusal to award an assignment of future entitlement to
    medical benefits specifically for future medication and assistive devices and
    professional services. There were no other medical and or rehabilitation
    benefits that could possibly have been assigned to Northbridge pursuant to the
    judgment below and the issues raised on appeal. On this basis, the conditions
    set out in para. 4(b) of the Minutes of Settlement were met and properly given
    effect by the trial judge.

STANDARD OF REVIEW

[43]

The issue in this appeal
    turns upon the interpretation of a contract. The appellant must establish a
    palpable and overriding error of fact or an extricable error of law. Such
    errors include the application of an incorrect principle, the failure to
    consider a required element of a legal test, or the failure to consider a
    relevant factor:
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at paras. 52-53.

[44]

The court must interpret the
    contract as a whole and assign meaning to its terms. The Court must avoid
    rendering one or more of those terms ineffective. To do so, constitutes an extricable
    error of law justifying appellate intervention.
Environs Wholesale Nursery
    LTD. v. Environs Landscape Contracting LTD.
, 2019 ONCA 547, at para 44;
3113736
    Canada Ltd. v. Cozy Corner Bedding Inc.
, 2020 ONCA 235, 150 O.R. (3d) 83,
    at para. 34;
Angus v. Port Hope (Municipality)
, 2017 ONCA 566, 28
    E.T.R. (4th) 169, at paras. 66-67 and 109-110, leave to appeal refused, [2017]
    S.C.C.A. No. 382.

ANALYSIS AND CONCLUSION

[45]

The issue on this appeal is
    whether the application judge made a palpable and overriding error of fact or
    an error of law in interpreting the words in the Minutes of Settlement: in the
    event that the said appeal is allowed and an assignment of Mr. El-Khodrs
    entitlement to medical and rehabilitation benefits is granted to Northbridge.

[46]

In my view, the application
    judge was correct to hold that the terms of the Minutes of Settlement were satisfied
    and the contract was not frustrated because:

a)

Although Northbridge spoke of an Assignment of
    all future health care expenses in its factum, the only issue on the Assignment
    Appeal was the assignment of Mr. El-Khodrs entitlement to future benefits for
    medications and assistive devices and for professional services, referred to in
    paras. 3 and 4 of the trial judges order. These were the only benefits at issue
    on appeal. The words entitlement to medical and rehabilitation benefits in
    the Minutes of Settlement must be interpreted in this context;

b)

The parties understood, when the Minutes of
    Settlement were signed, that as a result of the Assignment Appeal, these
    benefits would either be assigned to Northbridge or the trial judges decision
    not to assign these benefits would be upheld;

c)

This court amended the trial judges order
    denying the assignment of these benefits and replaced paras. 3 and 4 with a
    paragraph ordering that
any
amounts for future medication and assistive
    devices and
any
amounts for professional services benefits (emphasis
    added) as enumerated, up to the amount of the jury awards, be assigned. This
    court also held that only the categories set out in the statute need be
    matched;

d)

Although Mr. El-Khodr submitted to the
    application judge that the $385,000 amount in the Minutes of Settlement
    included a rent subsidy in the amount of $50,468 which was not covered by these
    benefits, Mr. El-Khodr was aware (a) that this was a full and final settlement
    subject only to the outcome of the Assignment Appeal and (b) the Assignment
    Appeal was only in respect of future medication and assistive device and professional
    services. This understanding is also reflected in his counsels email communications
    with opposing counsel; and,

e)

Contrary to the suggestion made by counsel for
    Mr. El-Khodr, the application judge did not order the assignment of
all
settlement amounts for these benefits. She only assigned medical and
    rehabilitation benefits in the amount of $385,000 as per the Minutes of
    Settlement.

Mr.
    El-Khodr was awarded and paid $82,429 for future medication and assistive
    devices and $424,550 for professional services before the settlement was reached.
    Those sums exceed the $385,000 settlement amount for medical and rehabilitation
    benefits set out in the Minutes of Settlement by $121,979.

[47]

For these reasons, I do not
    agree with the appellants argument that the outcome of the Assignment Appeal
    was not contemplated by the parties at the time they entered the Minutes of
    Settlement and, thus, the settlement agreement was frustrated.

[48]

The application judges interpretation
    is consistent with the reasoning of this court on the Assignment Appeal. When assigning
    the medication and assistive devices and professional services benefits to
    Northbridge up to the amount of the jury award, this court recognized, at
    paras. 78-79, that:

[I]t is for the jury to say what the proper
    amount of compensation is for a plaintiff. And once the judgment based on that
    award is paid, a plaintiff has been fully compensated for his loss. This
    plaintiff was paid the full amount of his judgment on August 10, 2015, and has,
    therefore, been fully compensated in respect of all his losses arising from
    this motor vehicle accident.

If there is no trust or assignment  he will
    be over-compensated and his receipt of any such benefits with no obligation to
    account to the tort insurer will constitute double recovery  a result this
    legislative scheme was specifically designed to avoid.

[49]

Moreover, the panel hearing
    the appeal in this case in 2017, held that strict qualitative and temporal
    matching requirements should not be applied in deciding which benefits to
    assign, the relevant categories are the statutes categories not the common
    laws and the strict matching approach in
Bannon v. McNealy
may no
    longer be good law in this province.

DISPOSITION

[50]

For these reasons, I find the
    application judge did not fail to take into account a precondition in the
    Minutes of Settlement and thereby make an error of law, nor did she make a palpable
    and overriding error of fact in construing the preconditions for payment to
    Northbridge in the Minutes of Settlement. I would therefore dismiss the appeal.

[51]

In accordance with the
    agreement reached by the parties, costs of the appeal to the respondent in the
    amount of $7,500.

Released: June 21, 2021 D.D.

J.A.
    Thorburn J.A.

I
    agree. Doherty J.A.

I
    agree. S.E. Pepall J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.C., 2021 ONCA 441

DATE: 20210621

DOCKET: C67883

Doherty, Trotter
    and Thorburn JJ.
A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.C.

Appellant

Mark
    Ertel and Jon Doody, for the appellant

Rebecca
    Schwartz, for the respondent

Heard: June 4, 2021 by video conference

On
    appeal from the convictions entered on September 18, 2019 by Justice Geoffrey
    Griffin of the Ontario Court of Justice.

REASONS FOR DECISION

The Issues

[1]

The appellant G.C. appeals his convictions for
    sexual assault involving three complainants, S.J., H.J. (together referred to
    as the first two complainants) and J.W. (the third complainant). The
    appellant was convicted of sexual assault and sexual exploitation of the first two
    complainants, and sexual assault of the third complainant.

[2]

The convictions turned on the trial judges
    assessment of the credibility of the complainants and the appellant when viewed
    in the context of the evidence as a whole, and the Crowns obligation to prove
    the charges beyond a reasonable doubt.

[3]

The appellant claims that (a) the trial judge
    offended the rule in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, by considering
    and accepting the complainants evidence before considering the appellants
    evidence; (b) he erred in rejecting the appellants evidence without providing
    a considered and reasoned acceptance of the evidence; and (c) he erred in
    relying on the absence of a proven motive as the basis to accept the third complainants
    evidence.

The Trial Judges Reasons for Judgment

[4]

The trial judge gave detailed oral reasons for
    judgment.

[5]

At the outset, he explained the applicable
    standard and burden of proof, and the rule in
W.(D.).
He recognized
    that the key question is whether, on the evidence as a whole, the trier of fact
    is satisfied of the accuseds guilt beyond a reasonable doubt.

[6]

In conducting his analysis of the evidence, the
    trial judge reviewed each complainants evidence as well as the evidence of the
    other crown witnesses including other family members and an employee of the
    Childrens Aid Society, the points raised by the defence, and he explained why
    he accepted each complainants evidence.

[7]

Before considering the appellants evidence, the
    trial judge cautioned himself that the acceptance of the evidence of the complainants
    by no means ends the matter as it is essential that the evidence of [the
    appellant], as well as all the defence evidence, should be assessed in light of
    the whole of the evidence to determine whether he was left with a reasonable
    doubt. He then reviewed the appellants evidence, separately laying out the
    appellants evidence respecting the allegations of each complainant.

[8]

In respect of the allegations made by the first
    two complainants, the trial judge recognized that the appellant was under no
    obligation to prove anything and that the fundamental concepts of onus of
    proof and proof beyond a reasonable doubt must be considered. He also held
    there was no specific aspect of the appellants evidence that caused him to
    disbelieve the appellant. However, when he considered the appellants evidence
    in the context of all the evidence and contrasted it with these complainants
    testimony, he concluded that both complainants were telling the truth and that he
    had no reasonable doubt about the charges at all (save for one that was
    dismissed and is not the subject of this appeal). He was therefore satisfied
    beyond a reasonable doubt that the appellant was guilty of sexually assaulting
    and sexual exploitation of the first two complainants.

[9]

The trial judge accepted the evidence of the
    third complainant, rejected the appellants evidence, and was satisfied beyond
    a reasonable doubt that the appellant sexually assaulted her. He found the
    appellants evidence respecting this allegation to be problematic, as parts
    of his evidence were inconsistent or contrary to common sense. He also found
    the appellants reaction to the allegation troubling. In contrast, he found the
    complainants actions in the face of the alleged assaults to be logical, and held
    that it would have made no sense for her to sabotage her living arrangements
    with the appellant and his spouse, which she sought out and enjoyed, by making
    a false allegation and concluded that the complainants testimony about the appellants
    apology to her had the ring of truth.

Analysis and Conclusion

[10]

In cases such as this, the Supreme Court of
    Canada has recently cautioned that appellate courts must not finely parse the trial
    judges reasons in search for error:
R. v. G.F.
, 2021 SCC 20, at
    para. 69. The Court emphasized both the strong deference due to a trial judges
    credibility findings and the presumption that trial judges must be taken to
    know the law. The presumption applies with particular force when it comes to
    settled principles. As the Court said, at para. 75 of
G.F
., trial
    judges do not need to provide detailed maps of well-trod paths. The Court
    further observed, at paras. 76-79, that reasons which are imperfect or
    language which is ambiguous does not
per se
require allowing an appeal.

[11]

The issues raised by the appellant all relate to
    the proper application of bedrock legal principles and fall on the well-trod
    path referred to by the Supreme Court of Canada.

[12]

The trial judges reasons demonstrate an
    understanding of the presumption of innocence and the application of the burden
    of proof faced with irreconcilable versions of events. The trial judge referred
    to the three-step analysis laid down in
R. v. W.(D.)
early in his
    reasons and instructed himself on the applicable legal principles on at least
    three occasions. He succinctly and accurately put forward the defence  first,
    the appellants denials were sufficiently credible to at least raise a doubt;
    second, the complainants evidence was not sufficiently reliable to carry the
    burden of proof.

[13]

With one exception, the trial judge found the
    evidence of the first two complainants totally believable. However, the trial
    judge did not convict on the basis of that assessment, nor did he arrive at
    that conclusion without regard to the appellants evidence. While he candidly
    acknowledged that he could not point to anything in the appellants denial that
    would cause him to reject the appellants evidence regarding the first two
    complainants, he correctly observed the appellants evidence was not to be
    assessed in isolation, but rather in the context of the entirety of the
    evidence, including but not restricted to that of the complainants.

[14]

The trial judge concluded that on the totality
    of the evidence, bearing in mind the onus of proof, he believed the first two complainants,
    beyond any reasonable doubt. His reasons provide a considered and reasoned
    explanation for accepting the complainants evidence and his conclusion that he
    was satisfied beyond a reasonable doubt of the appellants guilt.

[15]

As noted in
R. v. R.A.
, 2017 ONCA 714, 421
    D.L.R. (4th) 100, at para. 55, affd
2018 SCC 13, [2018]
    1 S.C.R. 307,
an accused person is not entitled to an acquittal simply
    because his evidence does not raise any obvious problems. His evidence may be rejected
    based on considered and reasoned acceptance beyond a reasonable doubt of the
    truth of conflicting credible evidence which may provide as much an
    explanation for the rejection of an accuseds evidence as is a rejection based
    on a problem identified with the way the accused testified or the substance of
    the accuseds evidence:
R. v. J.J.R.D.
(2006)
,
218 O.A.C. 37
    (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This
    is what the trial judge did in this case.

[16]

With respect to the third complainant, the trial
    judge accepted the third complainants evidence and gave reasons for rejecting
    the appellants evidence regarding the third complainants allegation.

[17]

The appellant claims the trial judge erred in treating
    the evidence of the third complainant as demonstrating that she had no motive
    to fabricate. The appellant argues this was not a case of proved absence of
    motive, but rather a case of the absence of evidence of a motive to fabricate.

[18]

In our view, the trial judges observation that
    the third complainant appears to have no motive to make false allegation was
    not a finding that the Crown had proved there was no motive, as the appellant
    suggests, but rather that the third complainant had no apparent motive to fabricate
    her evidence. It was open to the trial judge to make that finding and take it
    into account when assessing the third complainants credibility. In any event,
    the trial judges consideration of whether she had a motive to fabricate
    appears to have played a very minor role in his credibility assessment.

[19]

For these reasons, we dismiss the appeal.

Doherty
    J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.R., 2021 ONCA 449

DATE: 20210621

DOCKET: C68339

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.

Appellant

Lindsay Daviau and Rameez Sewani, for
    the appellant

Jennifer Trehearne, for the respondent

Heard: June 16, 2021 by video
    conference

On appeal from the convictions entered
    on September 20, 2019 by Justice Terrence L. J. Patterson of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

J.R. was convicted after a jury trial of sexual
    offences committed against his two young daughters.

[2]

The Crown concedes that J.R.s appeal of his
    convictions must be allowed. The Crown agrees that, in the absence of a similar
    fact application by the Crown, given the charges before the court the trial
    judge was obliged to instruct the jury not to engage in cross-count reasoning.
    He failed to do so and instructed the jury that lines of cross-count reasoning
    were permissible. He also failed to give the jury a required instruction not to
    engage in propensity reasoning.

[3]

We are satisfied that these errors occurred, and
    that they require J.R.s convictions to be set aside. We need not address the
    other grounds of appeal that J.R. raises, which the Crown contests.

[4]

The appeal is allowed, the convictions are set
    aside, and a new trial is ordered.

B.W. Miller J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Ontario, 2021 ONCA 443

DATE: 20210618

DOCKET: M52550

(C69417)

Brown
    J.A. (Motions Judge)

BETWEEN

Glenn
    Johnson, Michael Smith, and Timothy Hayne

Plaintiffs

(Respondents)

and

Her Majesty
    the Queen in Right of Ontario

Defendant

(Respondent/Responding
    party)

Proceeding under the

Class Proceedings Act, 1992,
S.O. 1992. c. 6

Nancy S. Barkhordari, Nital S. Gosai, and
    Mirilyn R. Sharp, for the moving party/appellant, Donald Parker, class member

Sarah Pottle and Rita V. Bambers, for
    the responding party, Her Majesty the Queen in Right of Ontario

Heard: June 17, 2021 by video conference

ENDORSEMENT

[1]

The appellant, Donald Parker, a class member in
    a class proceeding defended by the respondent, Her Majesty the Queen in Right
    of Ontario (Ontario), appeals an order of Grace J. dated April 16, 2021 that
    denied him an extension of time to opt out of the class proceeding. He moves
    for two orders.

[2]

First, he seeks an extension of time to perfect
    his appeal until June 30, 2021. Ontario does not oppose his request.
    Accordingly, an order shall go extending the time for Mr. Parker to perfect his
    appeal to June 30, 2021.

[3]

Second, Mr. Parker seeks an order that he be
    permitted to include in his appeal book and compendium (ABC) a short
    affidavit from one of his counsel who appeared at the hearing before Grace J.
    The request is an unusual one, so a bit of background is required.

[4]

The motion hearing before Grace J. was not
    recorded, in accordance with the general practice of the Superior Court of
    Justice. In the course of preparing the appeal materials, appellants counsel
    sought to obtain a recording of the motion hearing to prepare a transcript and
    were advised that none existed.

[5]

As a result, the appellant wishes to include in
    his ABC an affidavit from Nital S. Gosai (the Affidavit), one of his
    counsel who was present at the hearing. The Affidavit sets out her recollection
    of an exchange between the motion judge and her co-counsel during the motion
    hearing. The material part of the proposed Affidavit reads as follows:

3. This Affidavit was prepared based on my
    independent recollection of what transpired at the hearing on April 15, 2021
    and is limited to the comments made at the outset of the hearing that are
    relevant to Mr. Parkers Appeal.

4. Within less than four minutes of the
    commencement of the hearing, Justice Grace interrupted the submissions of Ms.
    Barkhordari to ask various questions concerning the evidence of when Mr. Parker
    discovered his cause of action. Before Ms. Barkhordari had an opportunity to
    respond to Justice Graces questions, His Honour specifically cautioned Ms. Barkhordari
    to be careful how you answer that question on the record as her answer could
    according to Justice Grace, detrimentally affect the limitation argument in Mr.
    Parkers individual action.

5. Following this stern warning from Justice
    Grace, Ms. Barkhordari asked Mirilyn Sharp, a class action lawyer who had been
    assisting Ms. Barkhordari with the arguments for the motion, to take over the
    submissions to be made on behalf of Mr. Parker, which she did.

[6]

Ontario does not dispute the accuracy of these
    statements. However, Ontario submits that the Affidavit should not find its way
    into the appellants ABC for several reasons: (i) no ground of appeal asserts
    procedural unfairness, therefore there is no need to understand how the hearing
    was conducted; (ii) submissions on a motion do not fall within the
    categories of documents that r. 61.10(1) of the
Rules of Civil
    Procedure
requires in an ABC; and (iii) counsels recollection of a
    colloquy between judge and counsel is not relevant to any issue on this appeal.

[7]

The motion judge gave detailed reasons for his
    decision refusing Mr. Parkers request for an extension of time. Those
    reasons no doubt will be the focus of the panels attention. Absent a ground of
    appeal asserting procedural unfairness, what transpired during a hearing
    between the court and counsel usually plays little role on the determination of
    an appeal. As this court observed in
R. v. Smith
(2001)
, 154 O.A.C. 51, (C.A.), at para 45,
    leave to appeal refused, [2002] S.C.C.A. No. 156:

[I]t is generally neither appropriate nor
    possible to draw inferences concerning a trial judge's reasons for a ruling
    based on colloquy with counsel. Trial judges routinely probe submissions to
    test the viability of various avenues of decision. Particularly where
    comprehensive reasons are given there is no basis for going behind a trial
    judge's reasons.

[8]

In their helpful written submissions, counsel
    advanced detailed arguments about the relevance, or lack of relevance, of the
    in-court colloquy between the court and counsel. I see no need to express a
    view about the relevance of the contents of the Affidavit as I think r.
    61.10(1)(i) permits what the appellant seeks to do. An affidavit of counsels
    recollection of what transpired at a motion hearing certainly is not an
    excerpt[] from a transcript of evidence (r. 61.10(1)(g)) or an exhibit (r. 61.10(1)(h)),
    but it strikes me as arguably falling within the category of any other
    documents relevant to the hearing of the appeal that are referred to in the
    appellants factum, as identified in r. 61.10(1)(i).

[9]

It is not the practice of this court to
    consider, in advance of the hearing of an appeal, whether any specific document
    included in an ABC is relevant or not. A panel ultimately forms its own view
    about the relevance or utility of any such document, such as the Affidavit the
    appellant proposes to include. If a party includes irrelevant documents in an
    ABC, it is open to the panel to sanction that practice by an award of costs
    against the offending party.

[10]

For these reasons, I conclude that r.
    61.10(1)(i) permits the appellant to include the Affidavit in his ABC, if he
    thinks fit to do.

[11]

The appellant seeks his costs of this motion on
    a substantial indemnity basis in the amount of $7,000. Ontario submits there
    should be no costs.

[12]

I would observe that this motion is
    characteristic of far too many civil motions brought in this court. Which is to
    say, it is characteristic of the type of procedural motion  the contents of an
    ABC  that counsel, acting reasonably, should be able to settle without
    consuming judicial time.

[13]

In the circumstances, I fix the costs of the
    motion at $1,500, inclusive of disbursements and applicable taxes. I leave the
    determination of which party is the payor and which is the payee to the panel
    hearing the appeal.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Loan Away Inc. v. Facebook Canada
    Ltd., 2021 ONCA 432

DATE: 20210618

DOCKET: C67908

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Loan Away Inc.

Applicant/Responding Party (Appellant)

and

Facebook Canada Ltd. and
Facebook,
    Inc.

Respondents/
Moving Party
(
Respondent
)

Michael Crampton, for the appellant

Miranda Spence, for the respondent

Philip Underwood, for Facebook Canada
    Ltd., making no submissions

Heard: June 7, 2021 by video
    conference

On appeal from the order of Justice Andra
    Pollak of the Superior Court of Justice, dated December 16, 2019.

Jamal
    J.A.:

Introduction

[1]

The appellant, Loan Away Inc. (Loan Away), appeals
    from the order
of the motion
judge dated December
    16, 2019. In that order, the motion judge stayed Loan Aways application before
    the Ontario Superior Court seeking injunctive relief and a damages reference as
    against the respondent, Facebook, Inc. (Facebook), for having suspended Loan
    Aways advertising on Facebooks online social network (Facebook Service).
    The motion judge stayed the application because a forum selection clause in Facebooks
    Terms of Service provided that any disputes would be resolved exclusively
    before the California courts under California law. The motion judge also refused
    Loan Aways request to adjourn the stay motion. Loan Away claims that the
    motion judge erred in refusing the adjournment and staying its application.

[2]

For the reasons that
follow, I would dismiss the appeal.

Background

[3]

Loan Away is a commercial online lender doing
    business across Canada. A large part of its business came from advertising
    on the Facebook Service.

[4]

Facebook is a global technology company incorporated
    in Delaware with its head office in Menlo Park, California. As a condition of
    signing up for a Facebook account, users of the Facebook Service must agree to Facebooks
    Terms of Service. Section 4(4) of the Terms of Service, Disputes, contains
    forum selection and governing law clauses providing that any disputes with
    commercial (i.e., non‑consumer) users of the Facebook Service must be
    resolved exclusively before the U.S. District Court for the Northern District of
    California or a state court in San Mateo County and under California law:

We try to provide clear rules so
that
we can limit or hopefully avoid disputes
    between you and us. If a dispute does arise, however, its useful to know up
    front where it can be resolved and what laws will apply.

If you are a consumer, the laws of the country
    in which you reside will apply to any claim, cause of action, or dispute you
    have against us that arises out of or relates to these Terms or the Facebook
    Products (claim), and you may resolve your claim in any competent court in
    that country
that has jurisdiction
over the
    claim.
In all other cases, you agree that the claim must be resolved
    exclusively in the U.S. District Court for the Northern District of California
    or a state court
located
in San Mateo County,
    that you submit to the personal jurisdiction of
either
    of these courts for the purpose of litigating any such claim
, and that
    the laws of the State of California will govern these Terms and any claim,
    without regard to conflict of law provisions
. [Emphasis added.]

[5]

Commercial users such as Loan Away must reaffirm
    that they accept Facebooks Terms of Service each time they buy advertising
    from Facebook. Commercial users are also subject to Commercial Terms providing
    substantively the same forum selection and choice of law clauses.

[6]

In October 2018, Facebook suspended Loan Aways
    advertising on the Facebook Service. Loan Away tried, without success, to resolve
    the issue by writing to Facebook Canada Ltd. (Facebook Canada), a Canadian
    company related to Facebook. In late December 2018, Loan Away began an
    application before the Ontario Superior Court against Facebook Canada for
    injunctive relief requiring Facebook Canada to accept Loan Aways advertising
    and for a damages reference.

[7]

In late January 2019, Facebook Canada served its
    responding materials, claiming that Facebook alone operates the Facebook Service
    and that Facebook Canada could not grant the relief that Loan Away sought.

[8]

In late April or May 2019, Loan Away amended its
    application to add Facebook as a respondent. Although Facebook Canada remains a
    named respondent, Loan Away now seeks no relief as against it.

[9]

Around the same time, Facebook served its notice
    of motion asking the court to stay Loan Aways application as against it based
    on the forum selection clause.

[10]

On the stay motion, which was returnable on
    Monday, December 16, 2019, Loan Away filed affidavits of a law clerk employed
    by Loan Aways counsel addressing the litigation history leading up to the stay
    motion. On the Friday before the return of the stay motion, Facebook suspended
    Loan Aways Facebook business page.

[11]

At the return of the motion, Loan Away asked for
    an adjournment to file new evidence about the suspension of its Facebook business
    page. Facebook opposed. The motion judge refused the adjournment, noting that
    while there had been a related and perhaps very relevant event with respect to
    what ha[d] happened, neither counsel was prepared to deal with the issue. She
    also noted that Loan Aways application did not concern this issue.

[12]

The motion judge then granted Facebooks stay
    motion. She noted that Loan Away did not dispute the enforceability of the
    forum selection clause and that the law favours enforcement of such clauses in
    commercial contracts. She stated that a stay should be granted unless Loan Away
    could show strong cause not to enforce the clause. The motion judge determined
    that Loan Away did not meet its burden of showing strong cause because: (1)
    this was a commercial contract; (2) Loan Away filed no evidence addressing the
    convenience of the parties, fairness between the parties, or the interests of
    justice; and (3) the application sought no relief as against Facebook Canada. She
    therefore stayed the application as against Facebook.

Issues

[13]

Loan Away claims that the motion judge erred by refusing
    to adjourn the stay motion and in granting the stay.

Discussion

Issue #1: Did the motion judge err in refusing
    to adjourn the stay motion?

[14]

Loan Aways first ground of appeal asserts that
    the motion judge erred in refusing to adjourn the stay motion despite finding
that
there was a very relevant event  the shutdown
    of Loan Aways Facebook business page  that happened just before the motion. Loan
    Away says it should have been allowed to introduce new evidence about this event
    and the motion judge thus decided the stay motion on an incomplete record.

[15]

I do not accept this submission.

[16]

An appellate court can intervene with a motion judges
    discretionary decision on whether to grant an adjournment only if the discretion
    is not exercised judicially based on proper principles, after considering all
relevant
factors:
Romanko v. Aviva Canada Inc.
,
    2018 ONCA 663, at para. 4;
Estrada v. Estrada
, 2016 ONCA 697, at para.
    2.

[17]

No such error has been shown here. The motion
    judge
was entitled to find
that even though
    the shutdown of Loan Aways Facebook business page related to the broader
    dispute raised in the application, she should proceed with the stay motion as
    scheduled. Loan Aways application did not concern the shutdown of its business
    page and neither counsel was prepared to deal with this development. The motion
    judge
was also entitled to find
that the
    evidentiary record on the stay motion was complete and that no further evidence
    should be permitted at that late stage. In any event, evidence about the
    substantive legal issues underlying the dispute between the parties was not
    relevant to the motion to enforce the forum selection clause:
Z.I. Pompey
    Industrie v. ECU-Line N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450, at para. 31.
    I therefore see no basis for this court to intervene with the motion judges exercise
    of discretion to deny the adjournment.

Issue #2: Did the motion judge err in granting a stay based on the
    forum selection clause?

[18]

Loan Aways second ground of appeal asserts that
    the motion judge erred in enforcing the forum selection clause and staying Loan
    Aways application.

[19]

The following legal principles
govern the enforcement of a forum selection clause in
    the commercial or non-consumer context.

[20]

Forum selection clauses purport to oust the
    jurisdiction of otherwise competent courts in favour of a foreign jurisdiction.
    In commercial contexts, absent exceptional circumstances, forum selection
    clauses are generally enforced to hold sophisticated parties to their
    contractual bargain:
Douez v. Facebook, Inc.
, 2017 SCC 33, [2017] 1 S.C.R.
    751, at para. 1.

[21]

Courts apply a two-step approach in determining
    whether to enforce a forum selection clause and stay an action brought contrary
    to it:

1.

At the first step, the party seeking a stay must
    establish that the forum selection clause is valid, clear, and enforceable, and
    that it applies to the cause of action before the court. The court makes this
    determination based on the principles of contract law. The plaintiff may resist
    the enforcement of the forum selection clause by raising defences such as
, for example,
unconscionability, undue influence, or
    fraud. If the party seeking the stay establishes the validity of the forum
    selection clause, the onus shifts to the plaintiff:
Douez
, at paras. 28-29;
Pompey
, at para. 39
.

2.

At the second step, the plaintiff must establish
    strong cause not to enforce the forum selection clause. A court exercising
    its discretion at this step must consider all the circumstances, including the
    convenience of the parties, fairness between the parties, the interests of
    justice, and public policy. The list of strong cause factors is not closed
    and provides a court with some flexibility in exercising its discretion. In the
    commercial context, the strong cause factors have been interpreted and
    applied restrictively. Forum selection clauses are encouraged and generally
    enforced because they promote order and fairness by providing stability and foreseeability
    to international commercial relations:
Douez
, at paras. 29-31;
Pompey
,
    at paras. 19, 30-31; and
GreCon Dimter inc. v. J.R. Normand inc.
, 2005
    SCC 46, [2005] 2 S.C.R. 401, at para. 22.

[22]

Both before the motion judge and this court, Loan
    Away accepted that the forum selection clause in Facebooks Terms of Service is
    valid, clear, and enforceable. It thus accepted that the first step was met.

[23]

Instead, Loan Away asserts that the motion judge
    made essentially three errors at the second step.

[24]

First, Loan Away asserts
that
there is a
prima facie
injustice in allowing Facebook
    to rely on a forum selection clause when the relief Loan Away seeks is straightforward.
    Loan Away claims it should not have to sue in California just to learn why Facebook
    has a problem with its advertising. Loan Away says that if Facebook explains
    the problem, Loan Away can fix it.

[25]

I do not accept this submission. Loan Aways
    application does not simply seek to understand why Facebook has suspended its
    advertising. It also seeks injunctive relief as against Facebook and a damages
    reference. If Loan Away seeks such relief, it must sue in California, as agreed
    in the Terms of Service.

[26]

Second, Loan Away asserts that the motion judge
    failed to consider that, as a result of her ruling, Loan Away must now sue
    Facebook in California and Facebook Canada in Ontario. This multiplicity of
    proceedings, it claims, highlights the inconvenience and unfairness in enforcing
    the forum selection clause.

[27]

I disagree. The application seeks no relief as against
    Facebook Canada and at the hearing of the appeal Loan Away acknowledged that it
    has no contract with Facebook Canada. Loan Away cannot resist enforcement of
    the forum selection clause by invoking a multiplicity of proceedings arising because
    it has sued what appears to be an improper party.

[28]

Third, Loan Away asserts
that
there was strong cause not to enforce the forum selection
    clause because of the inequality of bargaining power between it and Facebook.
    Loan Aways factum submits that Facebook is an online giant that sets its own
    terms without negotiation, forcing small players such as Loan Away to either take
    it or leave it.

[29]

I do not agree. Even in the consumer context, where
    gross inequality of bargaining power may be a relevant circumstance in the strong
    cause analysis, gross inequality of bargaining power is not in itself
    determinative:
Douez
, at para. 39. Here, the motion judge
    considered all the
relevant
circumstances of
    the case, including its commercial context, and concluded that Loan Away ha[d]
    not led any evidence with respect to the inconvenience of the parties, fairness
    between the parties and the interests of justice. She thus found that Loan
    Away had not met its burden of proving to this court that there is strong
    cause not to enforce the forum selection clause. Those findings are
    unassailable on the record before the motion judge. I see no basis for this
    court to intervene.

Disposition

[30]

I would dismiss the appeal with costs payable by
    Loan Away to Facebook
in the amount of $7,500
all
    inclusive.

Released: June 18, 2021 J.M.F.

M.
    Jamal J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labrosse-Quinn, 2021 ONCA
    444

DATE: 20210618

DOCKET: C68922

Feldman, Miller and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Labrosse-Quinn

Appellant

Karin S. Stein, for the appellant

Andrew Hotke, for the respondent

Heard: June 15, 2021 by video
    conference

On appeal from the sentence imposed on December
    29, 2020 by Justice Mitch Hoffman of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Following the oral hearing of this sentence
    appeal, the court found that leave to appeal sentence would be granted but the
    appeal dismissed, and announced the result to counsel with reasons to follow.
    These are the reasons.

[2]

The appellant pleaded guilty to robbery and
    possession of stolen property. He was the getaway driver for two masked men who
    robbed a convenience store at knifepoint, taking cash, cigarettes, and lottery
    tickets. The two men did not tell the appellant they were planning to rob the
    store. However, the appellant admitted that once they returned to the vehicle he
    knew or was wilfully blind to the fact that they were robbing the store. They
    instructed the appellant to drive away, which he did. The appellant received stolen
    lottery tickets as payment, which he later cashed at various retail outlets.
    The appellant was identified as a result of cashing the lottery tickets.

[3]

The sentencing judge imposed a six-month
    sentence and 18 months probation.

[4]

The appellant appeals his sentence on the basis
    that (1) the sentence was disproportionate because  the sentencing judge misconstrued
    the appellants role in the offences and imputed a higher level of moral
    culpability than warranted; and (2) the sentencing judge erred in not imposing
    a conditional sentence or intermittent sentence, and his reasons for so doing effectively
    established a mandatory minimum sentence for convenience store robberies.

[5]

For the reasons below, we do not agree that the
    sentencing judge erred.

Assessment of moral culpability

[6]

First, the appellant argues that the sentencing
    judge wrongly imputed to the appellant knowledge of the robbery that he did not
    have, resulting in the sentencing judge elevating the appellants moral
    culpability. We do not agree. The sentencing judges reasons, as well as the
    transcript of the guilty plea, demonstrate that the sentencing judge well understood
    the limited nature of the appellants knowledge of, and involvement in, the
    robbery. The appellants guilty plea established that  when the two men
    returned to the vehicle with the lottery tickets, cigarettes, and cash, he knew
    or was wilfully blind to the fact that they had robbed the store. It is
    inherent in the nature of the offence of robbery that it involves coercion. The
    appellant had to have known from the nature of the items taken that they would
    not have been accessible to the two men on open shelves and could only have been
    obtained through some measure of coercion of the store clerk. The sentencing
    judge accepted, however, that the appellant would not have known that the men
    had threatened the clerk with a knife. The sentencing judge expressly
    acknowledged that the appellants involvement in the robbery began only after
    his acquaintances had returned to the vehicle. The appellant was faulted for his
    decision to provide the means of escape, and for accepting the stolen lottery
    tickets as payment.

[7]

At the sentencing hearing, counsel for the
    appellant submitted that the appropriate range for the offences was 3  6
    months. Accordingly, it is difficult to now take the position that 6 months is disproportionate
    and excessive. We are not persuaded by the submission that parity with
R.
    v. Gray
, 2021 ONCA 86, mandates a lesser sentence. There were relevant differences
    between the appellant and the offender in
Gray
that justify different
    treatment, notably the application of
Gladue
principles in
Gray
and Grays positive steps towards rehabilitation post-conviction. Additionally,
    the appellant has the added conviction for possession of stolen property. In
    any event, the sentence imposed is not outside the relevant range.

Conditional or intermittent sentence

[8]

The sentencing judge expressly considered
    whether to impose a conditional sentence or an intermittent sentence. The
    sentencing judge noted the appellants age and that this was his first
    conviction for a criminal offence. He ultimately decided against a conditional
    or intermittent sentence based on the degree of the appellants moral
    culpability and the need for deterrence and denunciation of this type of crime.
    We do not agree with the submission that in so deciding the sentencing judge
    overemphasized deterrence and denunciation, or thereby categorically
    established a mandatory minimum for convenience store robberies. The sentencing
    judge was attentive to the particulars of the appellants actions and personal circumstances,
    was guided by all the relevant principles of sentencing and came to a sentence that
    was open to him. The appellant has not identified any error in principle that that
    would permit this court to interfere with the sentence imposed: see
R. v. Lacasse
,
    2015 SCC 64, para. 11.

Disposition

[9]

Leave to appeal sentence is granted and the appeal
    of sentence is dismissed.

K.
    Feldman J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Berman v. Berman, 2021 ONCA 439

DATE: 20210617

DOCKET: C68897

Gillese, Tulloch and Roberts
    JJ.A.

BETWEEN

Yakov Eitan Berman

Appellant

and

Alissia Berman

Respondent

Aaron Franks, Michael Zalev and
    Courtney Wile, for the appellant

Dani Z. Frodis and Arin Tint, for the respondent

Heard and delivered orally: June
    15, 2021

On appeal
    from the order of Justice Peter A. Douglas of the Superior Court of Justice,
    dated November 5, 2020, and from the costs order, dated December 1, 2020.

REASONS FOR DECISION

[1]

The appellant father appeals from the dismissal
    of his motion to prevent the parties daughter from changing elementary schools
    and the motion judges costs order against him. The parties daughter has been
    raised in the Jewish faith. The respondent mother, the custodial parent with
    sole decision-making authority, wishes to enrol their daughter in the local
    Catholic school.

[2]

The appellant raises the same main issue on appeal as he argued before
    the motion judge: he says their daughters attendance at a Catholic school is
    in breach of paragraph 3 of the final order of Fryer J. that she be raised in
    the Jewish faith. Paragraph 3 reads as follows: Eliana shall be raised in the
    Jewish faith, however, she shall not be prevented from participating in
    Catholic holidays with the respondent and her family.

[3]

The motion judge rejected the appellants argument. He accepted that the
    respondents decision to change the daughters school was within the
    respondents sole decision-making authority and the daughters best interests
    in the circumstances that included the unchallenged facts that the daughter was
    being bullied at her present school and the local Catholic school was
    academically superior. Importantly, he also found that the respondent was
    committed to raising the daughter in the Jewish faith and had confirmed with
    the Catholic school that she would be exempt from attending religious
    instruction and practice. He did not accept the opinion proffered by the
    appellants expert because he found that the expert was unaware of the
    accommodations that the Catholic school was prepared to make which,
    significantly, the motion judge included in his order. As a result, he found no
    breach of paragraph 3 of Fryer J.s order. He ordered the appellant to pay the
    respondent costs of $4,500.

[4]

We see no error warranting appellate intervention. The motion judge
    carefully considered the evidence before him. He was not required to accept the
    experts opinion and explained why he did not. Absent reversible error, it is
    not this courts role to reweigh the evidence, as the appellant is inviting us
    to do. Similarly, we see no error in the motion judges costs award, which was
    reasonable, fair and proportionate.

[5]

Accordingly, the appeal is dismissed.

[6]

As agreed, the respondent is entitled to her costs of the appeal, fixed
    at $7,500, all inclusive, payable by the appellant within 90 days.

E.E.
    Gillese J.A.

M.
    Tulloch J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hart v. Fullarton, 2021 ONCA 438

DATE: 20210617

DOCKET: M52515

Brown
    J.A. (Motions Judge)

BETWEEN

Melissa
    Hart

Applicant

(Moving
    Party)

and

Kevin
    Fullarton

Respondent

(Responding
    Party)

Melissa Hart, acting in person

Steve Benmor, for the responding party

Heard: June 15, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Melissa Hart, who is self-represented,
    seeks an order extending the time to file a notice of appeal from that part of
    the November 5, 2020 order of Nakonechny J. (the Final Order) which dismissed
    her application for spousal support. Ms. Hart does not seek to appeal that part
    of the Final Order which, in essence, declared her to be a vexatious litigant
    under s. 140(1) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).

BACKGROUND

[2]

By application issued October 15, 2019, Ms. Hart applied in the Superior
    Court of Justice for retroactive and ongoing spousal support from the
    respondent, Kevin Fullarton. A one-day trial was held before
Nakonechny J.
on October 29, 2020. In paras. 1-3 of her
    reasons, the trial judge identified the issues for her determination:

The Applicant, Melissa Hart, seeks retroactive
    and ongoing spousal support from the Respondent, Kevin Fullarton, under Part
    III of the
Family Law Act
.

The Applicants Application issued October 15,
    2019, also contained a claim for an interest in the property known municipally
    as Unit 502-245 Dalesford Road, Toronto, owned solely by the Respondent. The
    Applicant withdrew this claim at the commencement of trial.

The Respondent asks that the Applicants claim
    for spousal support be dismissed, for a finding that the Applicant is a
    vexatious litigant and an order that the Applicant shall not bring any further
    proceedings against the Respondent.

[3]

In the Final Order, the trial judge dismissed the application in its
    entirety and, pursuant to
CJA
s. 140(1), ordered that Ms. Hart shall
    not commence any further proceeding against [Mr. Fullarton]
in any court
except with leave of a judge of the Ontario
    Superior Court of Justice. [Emphasis added.]

[4]

In response to subsequent motions by Ms. Hart to re-open the trial, the
    trial judge released an endorsement dated December 16, 2020 in which she wrote:

The Applicant has been advised by the Family Trial Office that
    if she wishes to appeal the Judgment, the proper procedure is to file an appeal
    with the appropriate court. Despite receiving this information, the Applicant
    continues to file motions for leave with the Ontario Superior Court of Justice.

Paragraph 83 (2) of the Reasons for Judgment states that the
    Applicant shall not commence a further proceeding against the Respondent
    without leave of a judge of the Ontario Superior Court of Justice. Rule 1.03 of
    the
Rules of Civil Procedure
defines a
    proceeding as an action or an application, not an appeal.

This Endorsement is to clarify that, in accordance with the
    Judgment, the Applicant does not require leave from a judge of the Ontario
    Superior Court of Justice to commence an appeal of the trial decision.

[5]

While it is true that r. 1.03 does not include
    an appeal within its definition of proceeding, this court has held that the
    language proceeding  in any court in s. 140(1)(c) of the
CJA
includes a proceeding in the Court of Appeal and proceeding includes an
    appeal:
Varma v. Rozenberg
, [1998] O.J. No. 4183 (C.A.), at para. 5.

[6]

Ms. Hart did not receive the December 16
    endorsement until March 11, 2021. The record is not clear on why she did not.

[7]

In any event, Ms. Hart next filed a notice of
    appeal from the Final Order in the Divisional Court. That resulted in a January
    12, 2021 endorsement by Corbett J., sitting as a single judge of the
    Divisional Court, informing the applicant that: (i) any appeal from the
    order declaring her to be a vexatious litigant lies to the Court of Appeal; and
    (ii) an appeal of any other part of the Judgment first required leave under
CJA
s. 140(3) from a Superior Court judge.

[8]

As disclosed by the reasons of OBrien J. dated
    April 6, 2021, Ms. Hart moved for leave under s. 140(3) of the
CJA
to
    appeal the judgment of the trial judge dismissing her claim for spousal
    support: at para. 1. OBrien J. dismissed the motion. While she did not find
    the proposed appeal to be an abuse of process, OBrien J. concluded that Ms.
    Hart had not shown reasonable grounds for bringing the appeal.

[9]

In the course of her reasons, OBrien J.
    considered the effect of the trial judges December 16, 2020 endorsement,
    reproduced in para. 4 above. She held, at para. 23:

Finally, I have considered whether the
    Applicant should be permitted to proceed with the appeal on the basis of the
    December 16, 2020 endorsement of Nakonechny J. indicating that she was entitled
    to do so in spite of the s. 140(1) order. The subsequent endorsement of Corbett
    J. clarified that the Applicant could not appeal as of right and was required
    to first seek leave from a judge of this court. There is a long line of
    authority providing that, as stated by Corbett J., s. 140 of the
CJA
prevents appeals without leave: see, for example,
Kalaba v. Bylykbashi
(2006), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 26;
Varma v. Rozenberg
,
    1998 CanLII 4334 (Ont. C.A.), at para. 5; and
Vermette v. Nassr
, 2016
    ONCA 658, at para. 5. It appears these authorities were not before Nakonechny
    J. when she issued her endorsement. I read Nakonechny J.s endorsement as
    setting out her understanding of the meaning of proceeding under the
Rules
    of Civil Procedure
.
I do not read it as intending
    to provide the Applicant with a right of appeal that she did not otherwise have
.

[10]

On April 26, 2021 Ms. Hart attempted to file
    with this court a notice of appeal from the Final Order. The Registrar refused
    to accept the notice as it was beyond the 30-day appeal period for the Final
    Order. Consequently, Ms. Hart now moves for an order extending the time to file
    her notice of appeal.

Analysis

[11]

Sections 140(1) and (3) of the
CJA
state:

140 (1) Where a judge of the
    Superior Court of Justice is satisfied, on application, that a person has
    persistently and without reasonable grounds,

(a) instituted vexatious proceedings
    in any court; or

(b) conducted a proceeding in any
    court in a vexatious manner,

the judge may order that,

(c) no further
proceeding
be instituted by the person
in any court
; or

(d) a proceeding previously
    instituted by the person in any court not be continued,

except by leave of a judge of the
    Superior Court of Justice.

(3) Where a person against whom an
    order under subsection (1) has been made seeks leave to institute or continue a
    proceeding, the person shall do so by way of an application in the Superior
    Court of Justice. [Emphasis added.]

[12]

The jurisprudence of this court regarding
CJA
s. 140 has established the following principles regarding the sections
    applicability to appeals to this court:

(i)

The language proceeding  in any court in s.
    140(1)(c) includes a proceeding in the Court of Appeal and proceeding
    includes an appeal:
Varma v. Rozenberg
, at para. 5;

(ii)

This court generally will require leave to appeal where a
    litigant seeks to initiate or continue litigation after a vexatious litigant
    order has been made against the litigant:
Kallaba v.
    Bylykbashi
(2006), 207 O.A.C. 60, (C.A.), at para.
    33, leave to appeal refused, [2006] S.C.C.A. No. 144;

(iii)

However, leave to appeal a vexatious litigant
    order itself is not required. Such an order is final in nature and appealable
    as of right to the Court of Appeal pursuant to s. 6(1)(b) of the
CJA
.
    The effect of a s. 140(1) order does not extend so far as to require leave to
    appeal from the very order that declares a person to be a vexatious litigant
    and restricts her right to access the courts:
Kallaba,
at paras. 23 and
    29.

[13]

During the hearing of this motion, in response
    to my inquiries, Ms. Hart confirmed that she is not seeking to appeal the
    vexatious litigant portion of the Final Order but the portion that dismissed
    her claim for spousal support. Consequently,
CJA
s. 140(3), as
    interpreted by the decisions of this court, requires Ms. Hart to obtain leave
    from a Superior Court judge to do so.

[14]

I agree with OBrien J.s reading of the
    December 16, 2020 endorsement that the trial judge did not intend to provide
    Ms. Hart with a right of appeal that she did not otherwise have.

[15]

Ms. Hart sought leave to proceed with an appeal
    of the spousal support aspect of the Final Order from OBrien J.
[1]
Her request for
    leave was denied.
CJA
s. 140(4)(e) clearly states that no appeal lies
    from a refusal to grant leave to proceed:
Chavali v. The Law Society of
    Upper Canada
, 2007 ONCA 482, at paras. 4-5. Consequently, there is no
    merit to the appeal that Ms. Hart now seeks to bring before this court in
    respect of the dismissal of her application for spousal support and the justice
    of the case requires dismissing her motion for an extension of time.

[16]

For these reasons, I dismiss Ms. Harts motion.

[17]

Mr. Fullarton seeks his partial indemnity costs
    of this motion, including costs caused by its adjournment last week, in the
    amount of $2,000. I am not prepared to award costs for the adjourned motion;
    communication glitches between the court and Ms. Hart seem to have been the
    cause of the adjournment. However, Ms. Hart shall pay Mr. Fullarton his partial
    indemnity costs of the motion fixed in the amount of $1,500, inclusive of
    disbursements and applicable taxes, within 30 days of the release of these reasons.

David
    Brown J.A.

[1]
Neither party raised the issue of whether an appeal of the dismissal of the
    spousal support aspect of the Final Order would lie to the Divisional Court
    under
CJA
s. 19(1)(a) or to this court under
CJA
s. 6(1)(b).
    However, Ms. Hart is self-represented. Consequently, during the hearing of the
    motion, at my request, respondents counsel provided a copy of Ms. Harts
    October 15, 2019 Form 8 Application. Her claim did not specify the amount of
    monetary relief that she was seeking. The absence of any quantification of the
    relief claimed, coupled with Ms. Harts filing of a notice of appeal to the
    Divisional Court, have satisfied me that she was proceeding on the basis that
    the Divisional Court was the appropriate court to proceed with an appeal of the
    dismissal of her spousal support claim. In any event, even if her claim had
    exceeded $50,000, the jurisprudence on
CJA
s. 140(3) would require her
    to move before a judge of the Superior Court for leave to proceed with an
    appeal to this court. She did, and OBrien J. dismissed her request for leave
    to proceed with an appeal.