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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. W.C.H., 2019 ONCA 910

DATE: 20191120

DOCKET: C63687

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.C.H.

Appellant

Joseph Heller, for the appellant

Joanne Stuart, for the respondent

Heard: November 12, 2019

On appeal from the
    conviction entered by Justice John A. Desotti of the Superior Court of Justice
    on December 11, 2015, with reasons reported at 2015 ONSC 7729.

REASONS FOR DECISION

[1]

The appellant was charged with sexual offences against the complainant,
    A.K., his then spouse, and against his children. He was acquitted of the
    offences against his children but convicted of a single incident of sexual
    assault of the complainant. He received a conditional sentence of imprisonment
    of 21 months.

[2]

He appeals against conviction only. For the reasons that follow, the
    appeal is dismissed.

[3]

The appellant was tried by judge alone, more than 16 and one half years
    after the offence occurred. The appellant did not testify at trial.

[4]

The trial judge accepted the complainants evidence that: the appellant
    forced her to have vaginal intercourse while she was recovering from a
    hysterectomy; the intercourse was very painful; after, she experienced bleeding
    and, later that day, noticed feces coming out of her vagina; and she required
    multiple surgeries to repair the resultant hole between her vagina and her
    bowels and to repair scar tissue in her vagina.

[5]

After the trial judge found the appellant guilty of sexually assaulting
    the complainant, and before sentencing, the appellant filed an application
    seeking an order re-opening the trial and a mistrial based on fresh evidence.
    The proposed fresh evidence consisted of Day Timer entries the appellant found
    before his preliminary inquiry. They appear to have been authored by the
    complainant. They suggest that the hysterectomy may have occurred about ten
    months later than she testified it had occurred, and that she may have been
    wrong about how quickly following the hysterectomy the assault occurred. The
    timeframe in the indictment encompasses both dates.

[6]

The trial judge dismissed the appellants application. While he found
    that the proposed fresh evidence could have been available at trial had the
    appellant exercised due diligence, he did not rely on this in dismissing the
    application. The trial judge also found that the proposed fresh evidence was
    relevant and credible. His decision turned on his assessment of whether, if
    believed, and when taken with the other evidence at trial, the proposed fresh
    evidence could reasonably be expected to have affected the result. He found
    that the impact of the proposed fresh evidence was inconsequential and not a
    reason to question the finding of the accuseds guilt beyond a reasonable
    doubt. He further concluded that the

evidence of the change of the date of the hysterectomy would
    not have impacted negatively on the credibility of the complainant, [A.K.], as
    she described her sexual assault of the accused, [W.C.H.], after her
    hysterectomy and the many problems occasioned thereafter because of the sexual
    assault.

[7]

The appellant argues that, in assessing the cogency of the proposed
    fresh evidence, the trial judge erred in principle by only considering whether
    the proposed fresh evidence impacted negatively on the credibility of the
    complainant and failing to consider whether the proposed fresh evidence
    impacted negatively on the
reliability
of the
    complainants evidence. He submits that the proposed fresh evidence impacts
    negatively on the reliability of the complainants evidence, that it could have
    reasonably affected the verdict, and that a new trial must be ordered.

[8]

The appellant concedes that the trial judges specific determination
    that the proposed fresh evidence would not have impacted negatively on the
    credibility of the complainant is entitled to deference. He does not challenge
    the reasonableness of that finding.

[9]

We are not persuaded that the trial judge erred in principle in his assessment
    of the cogency of the proposed fresh evidence. He correctly considered whether
    the proposed fresh evidence, if believed, and when taken with the other
    evidence at trial, could reasonably be expected to have affected his verdict.
    He concluded that it would not.

[10]

The trial judge was alive to the issue of the reliability of the
    evidence of all the complainants about events that occurred many years before.
    Indeed, he acquitted the appellant of the counts with respect to his children
    because of his concerns with the reliability of their testimony, even though he
    had no concerns with their credibility.

[11]

In contrast, the trial judge found that the complainant was a credible
    and reliable witness. As noted above, in dismissing the appellants
    application, the trial judge found that the impact of the proposed fresh
    evidence was inconsequential and not a reason to question the finding of the
    accuseds guilt beyond a reasonable doubt. The fact that the trial judge did
    not specifically mention the impact of the proposed fresh evidence on the
    reliability of the complainants core assertion that the appellant assaulted
    her while she was recovering from her hysterectomy does not take away from that
    finding.

[12]

Moreover, the trial judge reasonably concluded that the proposed fresh
    evidence was not material to the ultimate finding of guilt. The cogency inquiry
    must be done in the context of the totality of the evidence led at trial and
    having regard to the positions advanced at trial:
R. v. M.G.T.
, 2017
    ONCA 736, 357 C.C.C. (3d) 109, at para. 103. In his very brief
    cross-examination of the complainant, the appellant did not challenge the
    complainants testimony that he had intercourse with her following her
    hysterectomy, before the doctor had advised it was safe to do so. The thrust of
    the cross-examination was to attempt to cast doubt that the post-hysterectomy
    intercourse was non-consensual:

Q. And this wouldve been after youd had hundreds if not
    thousands of sexual encounters with [W.C.H.] and bore him three children. Is
    that correct?

A: Yeah.

[13]

The specific date of the forced intercourse was never an issue at trial.
    The complainant was not asked a single question in cross-examination about the
    timing of the forced intercourse. In this case, no part of the defence on this
    count turned on when the forced intercourse occurred.

[14]

Further, there is nothing in the proposed fresh evidence that suggests
    that the forced intercourse did not occur while the complainant was recovering
    from her hysterectomy. In fact, as the trial judge noted in ruling on the
    application, the entries in the Day Timer are consistent with her evidence that
    she experienced complications in recovering from her hysterectomy. This lends
    some support to her claim that the forced intercourse caused the injuries she
    described.

[15]

The trial judges decision involved the exercise of judicial discretion
    and is entitled to significant deference on appeal:
M.G.T.
, at para.
    55. We are not persuaded that there is any basis to interfere with his decision
    dismissing the appellants application to permit a post-verdict re-opening of
    the defence case.

[16]

Accordingly, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Watson, 2019 ONCA 878

DATE: 20191106

DOCKET: C66115

van Rensburg, Hourigan and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Scott Watson

Appellant

Robert Scott Watson, appearing in person

Philip Norton, duty counsel

Luke Schwalm, for the respondent

Heard and released orally: November 5, 2019

On appeal from the sentence imposed on November 1, 2018
    by Justice McMahon of the Superior Court of Justice, sitting with/without a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his sentence resulting from a spree of robberies
    committed over a two-week period. He received a global sentence of 10 years,
    less pre-trial custody.

[2]

Duty counsel advances a single ground of appeal. He argues that the
    sentencing judge wrongly relied on the submission of the parties that the
    appellant was sentenced to six and a half years for a series of robberies in
    2006. In fact, the appellant was sentenced to five years and 11 months on that
    occasion.

[3]

Duty counsel submits that because the sentencing judge relied on the
    step principle, this error impacted the sentence imposed and justifies
    intervention by this court.

[4]

We disagree.

[5]

The convictions in 2006 were just one in a series of factors considered
    by the sentencing judge in very thorough sentencing reasons. Ultimately, he
    concluded that a 12-year sentence would be reasonable. However, he reduced the
    sentence to ten years to reflect the rehabilitative steps taken by the
    appellant.

[6]

In these circumstances, we are satisfied that the error regarding the
    previous sentence was immaterial and had no impact on sentence.

[7]

In any event, the sentence imposed was fit and fully justifiable on the
    record. These were serious violent offences by a repeat offender. We decline to
    intervene. The sentence appeal is dismissed.

K. van
    Rensburg J.A.

C.W.
    Hourigan J.A.

Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ramkey Communications Inc. v.
    Labourers' International Union of North America, 2019 ONCA 859

DATE: 20191101

DOCKET: C66613

Hoy A.C.J.O., Tulloch and Jamal
    JJ.A.

BETWEEN

Ramkey Communications Inc.

Applicant (Respondent)

and

Labourers
    International Union of North America, Ontario Provincial District Council
,
Utility Contractors Association of Ontario
, and
Ontario
    Labour Relations Board

Respondents (
Appellant
/
Respondents
)

L.A. Richmond and Ben Katz, for the
    appellant Labourers International Union of North America

Frank Cesario and Amanda Cohen for the
    respondent Ramkey Communications Inc.

Bonnea Channe and Giovanna Di Sauro,
    for the respondent Utility Contractors Association of Ontario

Aaron Hart, for the respondent Ontario
    Labour Relations Board

Courtney Harris and Ravi Amarnath, for
    the intervener Attorney General of Ontario

Heard: September 12, 2019

On appeal from the order of the
    Divisional Court (Regional Senior Judges Geoffrey B. Morawetz and Robbie D.
    Gordon and Justice Julie A. Thorburn), dated August 13, 2018, with reasons
    reported at 2018 ONSC 4791, 142 O.R. (3d) 193, quashing two decisions of the
    Ontario Labour Relations Board, dated March 23, 2017, with reasons reported at [2017]
    O.L.R.B. Rep. 261, and dated May 17, 2017, with reasons reported at 300
    C.L.R.B.R. (2d) 141.

Hoy A.C.J.O.:

A.

OVERVIEW

[1]

Ontario has presumptive constitutional
    jurisdiction over labour relations within its boundaries. The issue in this
    appeal is whether that presumptive jurisdiction has been displaced through the
    operation of derivative jurisdiction such that federal labour laws apply to
    construction labourers employed in Ontario by the respondent, Ramkey
    Communications Inc.

[2]

On August 8, 2015, the appellant, Labourers
    International Union of North America, Ontario Provincial District Council,
    applied to the Ontario Labour Relations Board for certification under the
    construction industry provisions of the
Labour Relations Act, 1995
, S.O.
    1995, c. 1, Sched. A, as amended, of all Ramkeys construction labourers
    employed in six Ontario counties, except for those in the industrial,
    commercial and institutional sector and persons at or above the rank of
    non-working foremen. These construction labourers were a subset of Ramkeys employees
    in Ontario.

[3]

Ramkey opposed certification. It argued that its
    construction labourers  which it calls construction technicians  performed
    essential work for federally regulated telecommunications companies and that their
    labour relations should, therefore, be federally regulated.

[4]

The Board was not satisfied that the presumption
    of provincial jurisdiction was displaced and granted certification as a
    provincially regulated bargaining unit. Ramkey sought judicial review. The
    Divisional Court found that Ramkeys construction technicians were engaged
    derivatively in work that is vital, essential, or integral to a federal
    undertaking and, therefore, should be federally regulated. It quashed the
    Boards decision.

[5]

The Union now appeals to this court. It argues
    that the Divisional Court misconstrued and misapplied the relevant case law,
    applied the wrong legal test for derivative jurisdiction and failed to defer to
    the Boards extensive factual findings in its 119-page decision.

[6]

I conclude that the Divisional Court erred by
    failing to give effect to the Boards clear finding that Rogers was not dependent
    on the services of Ramkeys construction technicians. Considering and giving
    appropriate weight to that finding, I would not impose exceptional federal
    jurisdiction over Ramkeys construction technicians.

[7]

Below, I provide some further background, drawn
    from the findings of fact made by the Board, outline the decisions of the Board
    and the Divisional Court, and then turn to my analysis.

B.

BACKGROUND

[8]

Ramkey is incorporated under the laws of
    Ontario. It does not itself own, have any interest in, or operate any
    telecommunications undertaking. It is not owned by any federally regulated
    undertaking. It is a local contractor, with operations in London, Ontario, and
    some surrounding areas.

[9]

At the time of the Unions application, Ramkey
    provided services as a third-party contractor, on a non-exclusive basis, mainly
    to Rogers, but also to other federally regulated telecommunications companies. To
    a significantly smaller extent, Ramkey also provided some services to entities
    that are not federally regulated telecommunications companies.

[10]

Ramkey has two different kinds of technicians, whom
    it refers to as sales technicians and construction technicians.

[11]

The sales technicians perform residential and
    commercial installation and service work, mostly, if not exclusively, for
    Rogers, which owns and operates a federally regulated telecommunications network.
    The sales technicians are not part of the agreed-upon bargaining unit the Union
    seeks to certify. This appeal is solely about Ramkeys construction
    technicians.

[12]

Ramkey established a small group of construction
    technicians in 2012. Its construction technicians began to provide services to
    Rogers in 2014, and it established a construction division. The construction
    technicians worked on Rogers telecommunications network closer to the headend,
    where the signals originate. This work, which includes placement of new lines
    and supporting infrastructure as well as plant maintenance on existing ones,
    requires the use of equipment, skills and construction capabilities that are
    not necessary for the residential installation service work performed by sales
    technicians.

[13]

Rogers was Ramkeys dominant client at the time
    of the application. In the 2013 and 2014 fiscal years, as well as the first
    portion of 2015, Rogers constituted over 90% of Ramkeys total revenues. The
    majority of Ramkeys work for Rogers was service installation, as opposed to
    construction, which was done by the sales technicians. The Rogers construction
    work accounted for somewhere between 10-13% of Ramkeys revenues. Ramkey also
    did a small amount (never more than 1.5% of its total revenues) of construction
    work for non-telecommunications clients. This work was similar to the work it
    performed for Rogers. Ramkey wants to increase the construction work it does
    for non-telecommunications clients.

[14]

At the time of the Unions application in August
    of 2015, Ramkey employed approximately 35 construction technicians. During the
    hearing before the Board in 2016, however, Rogers pulled back all the
    construction work it had given to Ramkey, for reasons unrelated to this
    proceeding. This necessitated layoffs.

[15]

Ramkey performs services for Rogers under the
    terms of a written contract which Rogers can essentially terminate on 30 days
    notice. Ramkey is not the exclusive provider of these services to Rogers, nor
    is Ramkey guaranteed any kind or amount of work from Rogers. In fact, Rogers
    always has more than one contractor in an area. There are active and successful
    competitors for the Rogers work in the geographic areas in which Ramkey
    carries on business, some of which are provincially certified by the Union.
    Some of them continue to perform the construction work that Ramkey no longer
    performs for Rogers.

[16]

Prior to the Unions application, it appears
    that Ramkey followed and complied with Ontarios employment statutes and
    regulations. It asserted that it was subject to federal jurisdiction for the
    first time in this proceeding.

(1)

The Boards Decision

[17]

The Board reviewed key authorities, which I discuss
    later in these reasons, addressing when presumptive provincial jurisdiction
    over labour relations is displaced. In the Boards view, those authorities
    signal that the presumption of provincial jurisdiction over labour relations
    will only be displaced in the clearest of cases.

[18]

Construction Montcalm Inc. v. Min. Wage Com.
, [1979] 1 S.C.R. 754, played a significant role in the Boards
    analysis. In
Montcalm
, the Supreme Court held that provincial minimum
    wage legislation and related labour legislation applied to a contractor
    building a runway at an airport, a federally regulated undertaking. In the
    Boards view,
Montcalm
stands for the proposition that labour
    relations of construction industry employers are subject to provincial
    jurisdiction, even when the employees are constructing a federally regulated
    undertaking. The Board explained that simply building a federal undertaking is
    not vital or integral to the operation of a federal undertaking; building,
    constructing, repairing (and even connecting to) the federal undertaking is not
    equivalent to operating the federal undertaking. Applying
Montcalm
,
    the Board concluded that presumptive provincial jurisdiction over Ramkeys
    construction labourers was not displaced.

[19]

The Board noted that it is not unusual to
    certify construction activities of an employer separate from its
    non-construction activities (which may not be certified at all). It also noted
    that the fact that one part of an employers operations is subject to one
    jurisdiction does not,
per se
, preclude the labour relations of
    another part from being subject to another jurisdiction. In this case, the
    Union did not concede, and the Board did not determine, that the sales
    technicians were subject to federal jurisdiction. But the Board found that,
    even if they were, any resulting practical or logistical problems would be neither
    impossible to overcome nor sufficient to displace the presumption of provincial
    jurisdiction over the construction labourers.

[20]

Nor, the Board concluded, did the fact that the
    overwhelming majority of Ramkeys work was for Rogers displace the presumption
    of provincial jurisdiction over labour relations. The focus for the Board was
    not whether Rogers business was vital, essential, or integral to Ramkey, but
    whether Ramkey was vital, essential, or integral to Rogers. The work done by
    Ramkey was not so vital that Rogers insisted it be done by its own employees.
    The controls that Rogers had over Ramkey were not greater than any owner/client
    or general contractor in the construction industry might exercise over any
    subcontractor. Moreover, the work given by Rogers to Ramkey was neither permanent
    nor particularly secure. If Ramkey was unavailable to perform the work, Rogers
    would simply use another contractor. Rogers could easily survive without Ramkey.

[21]

The Board was not persuaded that Ramkey was
    vital, essential, or integral to the operation of a federal undertaking (Rogers
    or other telecommunications companies); Ramkey was not, therefore, derivatively
    subject to federal jurisdiction.

[22]

Following receipt of a letter from the federal
    government (discussed in more detail below), Ramkey asked the Board to
    reconsider its decision. The Board refused, and Ramkey applied for judicial
    review of both decisions.

(2)

The Divisional Courts Decision

[23]

After reviewing the jurisprudence and noting
    that Ramkey was provincially incorporated and independently owned, the
    Divisional Court summarized the relevant presumption of provincial jurisdiction
    and how it is displaced, at para. 49:

There is therefore a presumption that [Ramkey]
    is provincially regulated unless Ramkey is associated with a core federal
    undertaking, the habitual operation of Ramkeys employees is to service the
    federal undertaking, or there is a vital, essential or integral relationship
    with the federal undertaking(s).

[24]

For the purposes of its analysis, the Divisional
    Court defined the federal undertaking as the telecommunications companies with
    which Ramkey does business. It then described the work of Ramkeys construction
    technicians, at para. 51:

Ramkeys technicians perform construction
    services that include installing, maintaining and repairing telecommunications
    networks. Almost all of their work (approximately 99% between 2013 and 2015)
    was for telecommunications companies, most of which was for Rogers. Ramkey now
    does less work for Rogers but almost all of the work it used to do Rogers, is
    done for other telecommunications companies that are also federally regulated.

[25]

The Divisional Court distinguished
Montcalm
,
    on which the Board had relied, on the basis that the construction technicians
    were not simply engaged in construction, at para. 53:

In this case by contrast, the core of Ramkeys
    work is to install and maintain the fibre optic telecommunications network in
    good working order for existing and prospective clients. This work is highly
    integrated with that of Rogers and other telecommunications companies and has
    been so integrated for an extended period. The type of work they do installing,
    maintaining and enhancing fibre optic cable, is integral to providing
    telecommunications and that work is operational (as it involves maintaining and
    enhancing the network on an ongoing basis not simply construction).

[26]

The Divisional Court emphasized, at para. 54,
    that the network could not function without the work done by Ramkey. Each part
    [of the network] is essential to the functioning of the network as, without
    these services there would be no functioning network.

[27]

The Divisional Court continued by underscoring
    the importance of Ramkeys work to telecommunications companies and Ramkey
    itself, at paras. 55, 59:

In short, Ramkey is beholden to the
    telecommunications companies for the work that it does and the work that Ramkey
    does is integral to the services provided by telecommunications companies like
    Rogers, to its clients. Telecommunications services cannot be offered without a
    functioning network line

In short, when looking at the past and present
    work done by Ramkey, almost all of the volume of work was done for
    telecommunications companies, and the type of work done is an important
    component and integral to the services offered by cable companies and their
    ability to offer their service.

[28]

The Divisional Court concluded by finding that
    there was derivative jurisdiction in this case, at para. 60:

We therefore find that Ramkeys construction
    technicians are engaged derivatively in work that is vital, essential or
    integral to a federal undertaking and therefore should be federally regulated.

[29]

The Divisional Court granted the application for
    judicial review and quashed both of the Boards decisions.

C.

ANALYSIS

[30]

The heart of this appeal is whether the
    Divisional Court correctly applied the test for displacing the provinces
    presumptive labour jurisdiction over Ramkeys construction technicians. As I will
    explain, respectfully, in my view, it did not. Significantly, it failed to
    consider whether the effective performance of the telecommunications network
    operated by Rogers was dependent on the particular employees under scrutiny,
    namely Ramkeys construction technicians, especially given that Rogers had
    ceased using Ramkeys construction technicians. On the facts found by the
    Board, the effective performance of Rogers telecommunications network is
    clearly not dependent on Ramkeys construction technicians. In my view,
    applying the correct analytical framework, as recently re-articulated by the
    Supreme Court in
Tessier Ltée v. Quebec (Commission de la santé et de la
    sécurité du travail)
, 2012 SCC 23, [2012] 2 S.C.R. 3, and considering and
    giving appropriate weight to the factor of dependency in this analysis,
    provincial labour jurisdiction over the construction technicians is not
    displaced.

[31]

Below, I review the chain of jurisprudence considered
    in and leading to
Tessier
and then apply the principles emerging from
    this jurisprudence to the facts of this case.

(1)

The jurisprudence

[32]

Turning to first principles, labour relations is
    presumptively a provincial matter since it engages the provinces authority
    over property and civil rights under s. 92(13) of the
Constitution Act,
    1867
. Parliament has jurisdiction to regulate employment in two
    circumstances: when the employment relates to a work, undertaking, or business
    within the legislative authority of Parliament; or when it is an integral part
    of a federally regulated undertaking, sometimes referred to as derivative
    jurisdiction:
Tessier
, at paras. 11, 17.

[33]

The first circumstance is not applicable
    here: Ramkey is a local work and does not itself own or operate a federally
    regulated telecommunications network. This appeal concerns the second
    circumstance. Is the employment of Ramkeys construction technicians an
    integral part of a telecommunications network  a federally regulated
    undertaking  such that Parliament has derivative jurisdiction over it?

(a)

The
Stevedores Reference

[34]

The doctrine of derivative jurisdiction is often
    traced back to the Supreme Courts decision in
Reference re Industrial
    Relations and Disputes Investigation Act
, [1955] S.C.R. 529 (the
Stevedores
    Reference

). In the
Stevedores
    Reference
, eight of nine judges concluded in separate reasons that federal
    labour law applied to the stevedores in question because their work was
    integral to the federally regulated shipping companies that used them. The
    majority reasoned that the employees devoted all their time to the shipping
    companies and that those companies relied on them exclusively to load and
    unload all of their cargo.

[35]

In coming to this conclusion, Estey J. observed,
    at p. 568, that [i]f  the work of stevedoring, as performed under the
    foregoing contracts, is an integral part or necessarily incidental to the
    effective operation of these lines of steam ships, legislation in relation
    thereto can only be competently enacted by the Parliament of Canada. This
    approach, Abella J. would later observe in
Tessier
, at para. 31,
    reflects the proper framework for analyzing derivative jurisdiction. As Dickson
    C.J., writing for the majority in
United Transportation Union v. Central
    Western Railway Corp.
, [1990] 3 S.C.R. 1112, at p. 1137, subsequently
    commented, Federal jurisdiction [in the
Stevedores Reference
] seems
    to have been based on a finding that the core federal undertaking was dependent
    to a significant degree on the workers in question.

(b)

Letter Carriers

[36]

The Supreme Court next addressed derivative jurisdiction in
Letter Carriers Union v. C.U.P.W.
, [1975] 1 S.C.R. 178.
    In
Letter Carriers
, at pp. 185-86, Ritchie
    J., writing for a unanimous court, adopted Estey J.s observation from the
Stevedores Reference
, at p. 568,
that the court should look
    at whether the local operation is an integral part or necessarily incidental
    to the effective operation of the federal undertaking. As Dickson C.J. later commented
    in
United Transportation
, at p. 1137, in
    finding that the respondent companys employees performing work under contracts
    with the Post Office were subject to federal jurisdiction, the court [in
Letter Carriers
] seems to have been much influenced by
    the dependence of the post office upon its subcontractors for mail delivery.

(c)

Telecom 1

[37]

In
Northern Telecom v. Communications Workers
,
    [1980] 1 S.C.R. 115 (
Telecom 1

),
    the issue was whether a subset of Northern Telecoms employees who worked as
    supervisors in its installation department were subject to federal labour laws.
    The installation department installed telecommunications equipment in the
    federally regulated telephone network of Northern Telecoms parent corporation,
    Bell Canada. Dickson J. (as he was then) explained the analytical framework for
    assessing whether an operation is vital to a federal undertaking, at p. 132:

First, one must begin with the operation which
    is at the core of the federal undertaking. Then the courts look at the
    particular subsidiary operation engaged in by the employees in question. The
    court must then arrive at a judgment as to the relationship of that operation
    to the core federal undertaking, the necessary relationship being variously characterized
    as vital, essential or integral.

[38]

As Abella J. later explained in
Tessier
,
    at para. 38, the focus of the analytical framework established in
Telecom 1
is on the relationship between the activity, the particular employees under
    scrutiny, and the federal operation that is said to benefit from the work of
    those employees.

[39]

The appeal in
Telecom 1
was dismissed
    because of the absence of relevant evidence.

(d)

Telecom 2

[40]

The issue of derivative jurisdiction returned
    before the Supreme Court in
Northern Telecom v. Communications Workers
,
    [1983] 1 S.C.R. 733 (
Telecom 2

),
    which dealt with a different labour dispute.
Estey J., writing for the
    majority, applied the analytical framework established in
Telecom
    1

to a different subset of Northern
    Telecoms employees engaged in installing equipment in the telephone network of
    Bell and in the facilities operated by Northern Telecoms other customers and
    found that the labour relations of these employees should be assigned to the
    federal sphere. Dickson J., writing concurring reasons, observed that the case
    was close to the boundary line but that the labour relations of Northern
    Telecom should be federally regulated: at p. 774.

[41]

As was the case in
Telecom 1
,
    Northern Telecom was a subsidiary of Bell. Bell acquired 90% of its switching
    and transmission equipment from Northern Telecom and 95% of all such equipment
    was installed by Northern Telecom. Northern Telecoms installers had no contact
    with the other Northern Telecom employees engaged in manufacturing, but instead
    worked closely with Bell employees, spending the great bulk of their time on Bells
    premises (at p. 767) and never working on Telecoms premises (at p. 770). The
    work for Bell consumed a very high percentage of the work done by the
    installers (at p. 767). Key factors weighing in favour of federal jurisdiction included
    [t]he almost complete integration of the installers daily work routines with
    the task of establishing and operating [Bells] telecommunications network (at
    pp. 766-67) and the interprovincial scope of the work of the employees, which
    extended into at least five provinces (at p. 768).

(e)

United Transportation

[42]

In
United Transportation
, by contrast,
    the Supreme Court declined to find derivative jurisdiction over a local
    railways employees. That case

arose out of the sale of a 105-mile
    railway line in Alberta from Canadian National Railway, a federally regulated railway
    company, to a provincial railway company, Central Western Railway Corporation.
    Did federal labour legislation continue to apply to the employees working on
    this railway line? Dickson C.J., writing for the majority, answered no.

[43]

Unlike in
Telecom 1
, there was no daily
    or simultaneous connection between the two enterprises. Each company operated
    independently within its own sphere:
United Transportation
, at p.
    1141. Also, unlike in
Telecom 1
and
Telecom 2
, the employees
    were located wholly within a single province.

[44]

Significantly, Dickson C.J. considered, at p.
    1142, whether CN was dependent on Central Western, an important factor which,
    in his view, emerged from the
Stevedores Reference
and
Letter
    Carriers
:

Finally, and perhaps most importantly, it
    cannot be said that CN is in any way dependent on the services of [Central Western].
     Consequently, in contrast to the
Northern Telecom
cases, the core
    federal undertaking (CN) would not be severely disadvantaged if [Central
    Westerns] employees failed to perform their usual tasks. In sharp contrast to
    the
Stevedores Reference
or
Letter Carriers
case,
the effective performance of CNs obligations as a national
    railway is not contingent upon the services of [Central Western]
. These
    factors point strongly, almost decisively, against a finding of federal
    jurisdiction over the employees in question. [Emphasis added.]

(f)

Westcoast Energy

[45]

The role of dependency in the derivative
    jurisdiction analysis was next addressed in McLachlin J.s (as she was then)
    dissent in
Westcoast Energy Inc. v. Canada (National Energy Board)
,
    [1998] 1 S.C.R. 322. Unlike the other cases in this line of jurisprudence,
Westcoast
    Energy
was not a labour dispute. It concerned the jurisdiction of the
    federal government to regulate two natural gas processing plants and related
    gathering pipelines that were connected to a mainline transmission pipeline
    that undisputedly came within federal jurisdiction. The majority found that the
    pipeline system came with federal jurisdiction under s. 92(10)(a) of the
Constitution
    Act, 1867
. Consequently, the majority did not consider derivative
    jurisdiction.

[46]

McLachlin J. dissented, finding that the
    processing plants did not fall under federal jurisdiction under either s.
    92(10)(a) or a derivative jurisdiction analysis. Drawing on Dickson C.J.s
    reasons in
United Transportation
, she noted that dependency was one of
    the relevant factors in the derivative jurisdiction analysis, at para. 141:

[t]o be relevant at all, the dependency must
    be permanent ... It is also clear that dependency of the local work or
    undertaking on the interprovincial enterprise is immaterial  Dependency is
    relevant only where the interprovincial work or undertaking is dependent on the
    local enterprise in the sense that the latter is essential to the
    interprovincial enterprises delivery of services.

[47]

McLachlin J. explained that, even where the federal work or
    undertaking is permanently dependent on a provincial work or undertaking, the
    provincial work or undertaking may not be transferred to federal jurisdiction.
    If the provincial undertaking retains its distinct identity and is not
    functionally integrated with the federally regulated enterprise, it remains
    under provincial jurisdiction: at para. 143. Thus, dependency alone may not be
    sufficient to transfer a work or undertaking to federal jurisdiction.

(g)

Tessier

[48]

Tessier
, the Supreme
    Courts most recent decision addressing derivative jurisdiction, also comments
    on dependency as a factor in the analysis.

[49]

Tessier Ltée
was a provincially regulated company that had a fleet of 25 cranes,
    some of which were used for loading and unloading ships. Tessier argued that
    its stevedoring activities fell under federal jurisdiction over shipping, with
    the result that its employees should not be governed by provincial occupational
    health and safety legislation. However, stevedoring represented only 14% of
    Tessiers overall revenue and 20% of the salaries paid to employees. Further, Tessiers
    employees worked across various areas of its operations. An employee who
    operated a crane at a port one day might operate it at a construction site, or
    drive a truck, the next.

[50]

Abella J., writing for the court, explained that
    where derivative jurisdiction is asserted, it must be assessed whether the
    work, business or undertakings essential operational nature renders the work
    integral to a federal undertaking:
Tessier
, at para. 18.

[51]

She then went on to articulate the analytical
    framework for assessing whether a related work is integral to a federal
    undertaking. She adopted Dickson C.J.s explanation from
United
    Transportation
of the role of dependency in determining whether a local work
    is sufficiently integrated with a federal undertaking for federal jurisdiction
    to extend to the local operations workers. She also observed that McLachlin
    J.s dissent in
Westcoast Energy
was of particular assistance,
    noting in particular her comment to the effect that the test is flexible, with
    different decisions emphasizing different factors, and her consideration of
    dependency:
Tessier
,
at para 45.

[52]

Tying these cases together, she wrote, at para.
    46:

So this Court has consistently considered the
    relationship from the perspective both of the federal undertaking and of the
    work said to be integrally related,
assessing the extent
    to which the effective performance of the federal undertaking was dependent on
    the services provided by the related operation
, and how important those
    services were to the related work itself. [Emphasis added.]

[53]

Abella J. observed that the Supreme Court had thus
    far applied the derivative jurisdiction test in two different contexts: when
    the services provided to the federal undertaking form the exclusive or the
    principal part of the related works activities, as in the
Stevedores
    Reference
; and when the services provided to the federal undertaking are
    provided by a unit of employees that is functionally independent of the rest of
    the related operation, as in
Telecom 2
. Abella J. explained that, in
    the latter context, the court will assess the essential operational nature of
    the unit as a separate entity, rather than focusing on the local work as a
    whole.

[54]

Tessier

presented the court with a third context in which to apply the
    derivative jurisdiction test, namely when the employees performing the work do
    not form a discrete unit and are fully integrated into the related operation:
Tessier
,
    at para. 50. Abella J. wrote, at paras. 50-51, that in such a case:

[E]ven if the work of
    those employees is vital to the functioning of a federal undertaking
, it will not render federal an operation that is otherwise local if
    the work represents an insignificant part of the employees time or is a minor
    aspect of the essential ongoing nature of the operation.

[F]ederal jurisdiction is only justified if
    the federal activity is a significant part of its operation. [Emphasis added.]

[55]

Assessing the extent to which the effective
    performance of the federal undertaking was dependent on Tessiers services and
    how important those services were to Tessier itself, Abella J. concluded that Tessiers
    essential operational nature was local, and its stevedoring activities were integrated
    with its overall operations and formed a relatively minor part of its overall
    operation: at para. 59.

[56]

This conclusion was sufficient to dispose of the
    appeal. However, Abella J. added, that, to be relevant, a federal undertakings
    dependency on a related operation must be ongoing: at para. 61. Since there was
    nothing to demonstrate the extent to which the shipping companies were
    dependent on Tessiers employees, the absence of evidence of dependence also
    argued against imposing exceptional federal jurisdiction:
Tessier
,
    at para. 61.

(2)

Applying these principles to the facts of this case

(a)

A preliminary
    comment

[57]

It
    is important to remember that, just as
Telecom 1
and
Telecom 2
were about subsets of Northern Telecoms
    employees (its supervisors and installers, respectively), the particular
    employees under scrutiny on this appeal are a distinct subset of Ramkeys
    employees, its construction technicians, who are organized into a separate
    division. It is not about the sales technicians, who form the bulk of Ramkeys
    employees, nor about the services they provide to Rogers and others. The
    presumption, absent evidence to the contrary, is that those employees are subject
    to provincial jurisdiction.

[58]

As
    noted earlier in these reasons, until this proceeding, Ramkey accepted that it
    was subject to Ontarios labour laws. After Ramkey had finished its closing
    submissions before the Board, Ramkey received a letter dated December 2, 2016
    from the federal governments Employment and Social Development Canada Labour
    Program. In the letter, a federal government inspector advised that she had
    concluded an investigation regarding the jurisdiction of Ramkey with respect to
    labour standards legislation. The letter states, in relevant part:

Based on information provided to
    me, I have determined that Ramkey Communications Inc. is engaged in
    telecommunications installation, maintenance and repair, a dedicated service
    that is considered vital, essential, integral or necessarily incidental to a
    federal undertaking. Therefore, Part III of the
Canada
    Labour Code
applies to your company.

Relying in part on the letter, Ramkey asked the Board
    to reconsider its decision. The Board declined to do so.

[59]

The
    letter is clearly not determinative of the issue of federal jurisdiction over
    the construction technicians. That is the issue before this court. The Attorney
    General of Canada was served with a Notice of Constitutional Question but it
    opted not to intervene in the proceedings. Further, after the letter was issued
    to Ramkey, and subsequent to the Boards decision, Ramkey was convicted in the
    Ontario Court of Justice of offences under the
Occupational Health and
    Safety Act
, R.S.O. 1990, c. O.1, as
    amended,
in relation to an incident on October 8, 2014 involving a
    construction technician: see
R. v. Ramkey Communications
    Inc.
(6 March 2018; 27 March 2018), Brantford, File No. 0260 999 15
    6497 (Ont. Prov. Ct.). Counsel for the Attorney General of Ontario advised the
    court that Ramkeys appeal of the finding that its construction technicians are
    provincially regulated and of the sentence is being held in abeyance by
    agreement pending the outcome of this appeal.

[60]

Nor, for the purposes of my analysis, does the letter displace the
    presumption that the sales technicians are subject to provincial jurisdiction.
    The Union does not concede that the sales technicians are subject to federal
    jurisdiction. And, until the Union brought its application, Ramkey did not
    assert that it was subject to federal jurisdiction. Indeed, as the Board noted
    in its reasons, at para. 42, in 2007 a predecessor of Ramkey successfully
    argued that it was subject to provincial jurisdiction:
Correia
    v.
Conex Cable Technology Specialists Inc.
,
    [2007] C.L.A.D. No. 483. Whether the presumption that the sales technicians are
    subject to provincial jurisdiction is displaced is an issue for another day, on
    a complete record.

(b)

Applying
Tessier

[61]

Unlike
    the employees in
Tessier
, who routinely worked
    across various areas of Tessiers operations, performing different tasks, the
    construction technicians are a distinct subset of Ramkeys employees and can be
    constitutionally characterized separately from the rest of Ramkeys employees.

[62]

As
Tessier
instructs, at para. 46, I therefore consider the relationship
    from the perspective of the federal undertaking and of the construction work
    said to be integrally related, assessing (1) how important Ramkeys
    construction services for the federal undertaking were to Ramkeys construction
    division, and (2) the extent to which the effective performance of the federal
    undertaking was dependent on Ramkeys construction services.

[63]

While
    the construction services provided by Ramkey to Rogers and other federal
    undertakings formed a relatively minor part of Ramkeys overall activities, at
    the time of the Unions application, they unquestionably formed the overwhelming
    part of the construction divisions activities. And Rogers was Ramkeys
    dominant client. However, during the course of the hearing before the Board,
    Rogers ceased using Ramkeys construction technicians.

[64]

More
    importantly, the effective performance of Rogers was not in any way dependent
    on Ramkeys construction services. Unlike in
Tessier
or in the Federal Court of Appeals recent decision
    in
Telecon Inc. v. International Brotherhood of Electrical
    Workers, Local Union No. 213
, 2019 FCA
    244,
in this case, the Board made clear findings that Rogers was
    not dependent on Ramkeys construction technicians. The effective performance
    of Rogers telecommunications network was not contingent upon the services of
    Ramkeys construction technicians. The controls Rogers had over Ramkey were no
    greater than any owner/client or general contractor in the construction
    industry might exercise over any subcontractor. Rogers only began using
    Ramkeys construction technicians in 2014. It had no long-term commitment to
    use Ramkeys construction technicians. It never relied exclusively on Ramkeys
    construction technicians. In 2016, in the course of the hearing before the
    Board, Rogers pulled back all the construction work it had given to Ramkeys
    construction technicians. Ramkeys competitors performed the construction work
    Ramkey used to do for Rogers. Moreover, while the hearing before the Board
    focused on the relationship between Ramkey and Rogers, there is no evidence before
    this court (and the Board did not find) that any other telecommunications
    network to which Ramkeys construction technicians provided services was
    dependent on those services.

[65]

I
    acknowledge that, in
Tessier
, Abella J.
    observed, at para. 45, that the test for derivative federal jurisdiction is
    flexible: Different decisions have emphasized different factors and there is
    no simple litmus test. Here, however, in the absence of dependency  and in
    circumstances where Ramkeys construction technicians ceased to do any work for
    Rogers  it simply cannot be said that Ramkeys construction technicians are
    vital or integral to Rogers operations as a federal telecommunications
    undertaking.

[66]

Respectfully,
    the Divisional Court erred by considering the extent to which the delivery of
    telecommunications services by Rogers and other telecommunications companies
    like Rogers was dependent on having a functioning network line and on work of
    the type performed by Ramkeys construction technicians. The proper focus is
    the extent to which Rogers and the other telecommunications companies, to which
    Ramkeys construction technicians provided construction services, were
    dependent on the services of Ramkeys construction technicians  the particular
    employees under scrutiny:
Tessier
, at para. 38.

[67]

Given
    the clear findings by the Board that Rogers was not dependent on Ramkeys
    construction technicians, I conclude that this is not a case where exceptional
    federal jurisdiction can be found.

(c)

A note on
Montcalm

[68]

While
    I agree with the Boards decision that Ramkeys construction technicians are
    not subject to federal jurisdiction over labour relations, I do not agree to
    the extent that the Boards reasons might be taken as suggesting that
Montcalm
stands for the proposition that there is a special presumption that the labour
    relations of construction industry employers are subject to provincial
    jurisdiction. There is no construction presumption. Rather there is a
    provincial presumption over labour relations generally. The same principles
    apply to construction employees as to other employees in determining whether
    they are subject to derivative federal jurisdiction.

D.

DISPOSITION AND COSTS

[69]

For these reasons, I would allow the appeal, set aside the order
    of the Divisional Court, and restore the Boards order granting certification
    to the Union. I would order that Ramkey pay costs of the application for
    judicial review to the Divisional Court, of the motion for leave to appeal, and
    of the appeal to the Union in the aggregate amount of $20,000, inclusive of HST
    and disbursements.

Released: AH NOV 01 2019

Alexandra
    Hoy A.C.J.O.

I
    agree M. Tulloch J.A.

I
    agree M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Riar v. Dali Homes Inc., 2019 ONCA 933

DATE: 20191126

DOCKET: C66608

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Mini Riar and Nadeem
    Ahmed

Plaintiffs (Appellants)

and

Dali Homes Inc., Sohail Ali Hamid Chaudry and Duriya
    Patel

Defendants (Respondents)

Eric K. Gillespie and Monica Poremba, for the appellants

Damon Stoddard, for the respondents

Heard and released orally: November 12, 2019

On appeal from the
    judgment of Justice Antonio Skarica of the Superior Court of Justice, dated January
    28, 2019, with reasons reported at 2019 ONSC 616.

REASONS FOR DECISION

[1]

The appellant homeowners appeal from the January 28, 2019 order
    dismissing their motion for a declaration that the respondents were in breach
    of Minutes of Settlement and granting the respondents declaratory relief
    enforcing the Minutes of Settlement.

[2]

The appellants and respondents signed Minutes of Settlement in October
    2015. The motion judge determined that the respondents had complied with the Minutes
    of Settlement. The appellants advance numerous grounds of appeal, none of which
    we would give effect to.

[3]

The motion judges decision did not depend -as the appellants submit - on
    a finding that the $100,000 had been released to the appellants. He concluded
    that the respondents had complied with the Minutes of Settlement because the
    work had been done. He examined the Minutes of Settlement, the executed full
    and final releases, and the appellants sign-off on the HVAC work. Amongst
    other things, he noted that the respondents were never given a roofing warranty.
    According to the appellants own expert, the shower tiles needed replacing, and
    the respondents had perfected their plumbing obligations. It was also open to
    the motion judge to find that Nadeem Ahmed had never sworn an affidavit saying
    he had made a mistake in signing his satisfaction letter of May 18, 2016. The
    permits, which were the respondents responsibility, were all closed as
    required by the Minutes of Settlement, and any delays were inconsequential breaches.

[4]

The motion judge read the Minutes of Settlement as a whole and gave
    effect to their terms. He made no palpable and overriding errors and his
    conclusion that the respondents did not breach the Minutes of Settlement is
    entitled to deference.  See
Sattva Capital Corp. v. Creston Moly Corp.
,
    [2014] 2 S.C.R. 633, 2014 SCC 53.

[5]

For these reasons, the appeal is dismissed with costs to be paid by the
    appellants fixed in the amount of $10,000 on a partial indemnity scale,
    inclusive of disbursements and applicable tax.

S.E. Pepall J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Robins Appleby LLP v. Todd Family Holdings Inc.,
    2019 ONCA 920

DATE: 20191122

DOCKET: C67162

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Robins Appleby LLP

Creditor (Respondent)

and

Todd Family Holdings Inc.

Debtor (Appellant)

and

Roy John William Gardiner

Garnishee

Gary
    Sugar, for the appellants Todd Family Holdings Inc. and GMS Law Professional
    Corporation

Ellad Gersh and Joseph
    Jamil, for the respondent

Heard and released
    orally: November 20, 2019

On appeal from the order of
    Justice Laura A. Bird of the Superior Court of Justice, dated December 27, 2018.

REASONS FOR DECISION

[1]

Robins Appleby LLP (Robins) represented Todd Family Holdings Inc. (Todd)
    in a lawsuit against Mr. Gardiner. Robins attempted to get off the record,
    mid-trial, for non-payment of fees but was ordered to continue. Despite the
    rift between solicitor and client, Robins successfully pursued the lawsuit,
    securing a judgment of $2.2 million, and a massive costs award approaching $1
    million. After trial, Robins was released as counsel of record.

[2]

After continued non-payment of fees by Todd, Robins obtained a charging
    order and a summary judgment for unpaid fees (fee judgment).

[3]

In the meantime, Mr. Gardiner had appealed the trial decision. The
    appeal was allowed in part. Specifically, Todd had obtained control of Mr. Gardiners
    business six years before the lawsuit was completed. Mr. Gardiner contends that
    the returns Todd received in doing so are greater than the damage award. Based
    on the evidence before it, this court has ordered an accounting and
    reconsideration of the damages award. The litigation continues.

[4]

GMS Law Professional Corporation (GMSL) is now acting for Todd in that
    continuing litigation pursuant to a contingency fee agreement. In the course of
    that continuing litigation GMSL secured a costs award against Gardiner in
    connection with a motion. Robins discovered this and issued 16 notices of garnishment,
    allegedly to intercept the costs owed to Todd.

[5]

In response to the notices of garnishment, Todd and GMSL brought a
    motion seeking:

1.

A declaration that GMSL has a charging order or lien pursuant to the
Solicitors
    Act
, R.S.O. 1990, c. S-15, s. 34(1) (charging order);

2.

A declaration that the GMSL charging order has priority over Robins
    charging order;

3.

An order vacating the notices of garnishment; and

4.

A sealing order.

[6]

The sealing order request was made in response to the pleading and
    supporting materials filed by Robins. Todd alleges that these documents include
    confidential information. Robins does not admit that it improperly disclosed confidential
    information but consented to the sealing order. After a contested motion on the
    remaining issues, the other relief sought by Todd and GMSL in the motion was
    denied.

[7]

Todd and GMSL now appeal all orders made in the motion decision, save
    for the sealing order. We would dismiss their appeals.

[8]

The motion judge denied the charging order because she was not satisfied
    that there was evidence that Todd cannot or will not pay GMSLs fees. Such a
    finding, including a finding that it is likely that the fees will not be paid
    without a lien or charging order, is a prerequisite to a charging order:
Weenan
    v. Biadi
, 2018 ONCA 288, 141 O.R. (3d) 276, at paras. 15, 24. The motion
    judge was entitled to come to the decision that GMSL had not met this burden.
    The motion record confirmed Todds desire to pay GMSL, and the motion judge
    found the affidavit evidence relating to the ability of Todd to pay to be
    inconsistent. Moreover, depending on the terms of the contingency agreement,
    there may be no fees due and payable, or the agreement may make the risk of
    non-payment negligible. Yet the terms of the contingency agreement between Todd
    and GMSL were not proved by Todd and GMSL, who bore the burden of proving an
    inability to pay.

[9]

Further, Todd and GMSL say that the contingency fee agreement is
    completely irrelevant and that the evidence about Todds impecuniosity was
    uncontroverted. The existence of the contingency fee agreement was clearly
    material and relevant. The motion judge rejected the assertion that GMSL would
    not be paid, in part because of the contingency fee agreement. She noted that
    the fact that GMSL entered into a contingency fee agreement with the debtor
    suggests that the law firm believes that it will secure a judgment from which
    it can recover its fees.

[10]

In these circumstances, the motion judge was entitled to exercise
    discretion not to grant the GMSL the charging order. There is therefore no need
    for us to address the priority dispute.

[11]

Nor did the motion judge err in refusing to vacate the garnishment notices.

[12]

Todds argument that the motion judge erred in this regard is predicated
    on Todds claim that the garnishment notices contravene the continued duty of
    loyalty Robins owes to Todd. Todd argues that enforcement of the judgment would
    prejudice Todds ability to pursue the action and would constitute an
    adversarial position against a former client relating to the previous retainer.

[13]

We do not agree. Rather, we agree generally with the views expressed by
    the motion judge. Lawyers who have earned their fees in an action will not ordinarily
    be required to wait for that action to end before enforcing judgment for unpaid
    fees. Former lawyers have no control over the conduct or completion of the
    action and should not have to wait indefinitely for outstanding fees. Absent
    exceptional circumstances, enforcing payment pending completion of the action will
    not be inconsistent with the ongoing duty of loyalty or put the lawyer in an
    adversarial position relating to the previous retainer. The motion judge was
    not satisfied on the evidence before her that this was such a case. She found
    that Todd had not established that enforcement of the fee judgment would impede
    Todds ability to maintain the action or constitute an adversarial position
    relative to Robins former retainer. We see no error in that decision.

[14]

Nor was the motion judge obliged in resolving the issues before her to
    address Todds claim that privileged and confidential information was
    wrongfully disclosed by Robins in its materials responding to the motion. The
    motion judge found that Todd and GMSL were not eligible for a charging order because
    of the inadequacy of their own evidence about Todds ability to pay.
We are not persuaded that the information the appellants
    contend is confidential is actually so.
Even if it occurred, the disclosure
    of confidential information is not relevant to whether the garnishment notices
    should be set aside. The right to garnish arises from the debt created by the
    fee judgment, not from the materials filed in response to the motion to set
    aside the garnishment notices. Whether confidential information was improperly
    disclosed in connection with this motion has no bearing on whether the notices
    of garnishment should be vacated.

[15]

The appeal of the motion decision is therefore dismissed.

[16]

We would grant leave to appeal the costs order but deny the costs appeal.
    The motion judge was not obliged to treat success on the motion as divided, or
    to split responsibility for costs on this basis. We owe deference to the motion
    judges discretion and would not interfere.

[17]

The costs appeal is therefore also dismissed.

[18]

Finally, we order, on consent, that the transcript of Todds examination
    in aid of execution found at Tab 20 of the Exhibit Book and Tab 20 of the
    Appeal Book and Compendium be sealed and not form part of the record in this
    appeal.

[19]

Costs in this appeal are ordered to be paid by the appellants in the
    amount of $15,000, inclusive of applicable taxes and disbursements.

K. van Rensburg J.A.

David M. Paciocco
    J.A.

Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rumanek & Company Ltd. v.
    Abuomar, 2019 ONCA 908

DATE: 20191115

DOCKET: C66687

Simmons, Pardu and Nordheimer
    JJ.A.

BETWEEN

Rumanek &
    Company Ltd. (Equitable Receiver for Xuan Luu)

Applicant (Respondent)

and

Mohamed
    Abuomar also known as Mohamed Abu-Omar also known

as
    Mohamed A.R. Abuomar also known as Mohamed A. Abu-Omar

and
    Horya El-Rakeb

Respondents (Appellants)

Mohamed Abuomar, acting in person

Horya El-Rakeb, acting in person

Timothy Morgan, for the respondent

Heard: November 8, 2019

On appeal
    from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated
    March 11, 2019, with reasons reported at 2019 ONSC 1589.

APPEAL BOOK ENDORSEMENT

[1]

The appellants appeal from an order for sale
    under the
Partition Act
, R.S.O.
    1990, c. P.4
. Under s. 7 of the
Partition Act
this appeal
    lies to the Divisional Court. The appeal is therefore quashed for want of
    jurisdiction.

[2]

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


COURT OF APPEAL FOR ONTARIO

CITATION:
Tomec v.
    Economical Mutual Insurance Company, 2019 ONCA 882

DATE:
    20191108

DOCKET:
    C66763

Hourigan, Benotto and Fairburn JJ.A.

BETWEEN

Sotira Tomec

Applicant
    (Appellant)

and

Economical Mutual Insurance Company

Respondent
    (Respondent)

John Adair, William Keele, Michele Valentini, and Joseph
    Cescon, for the appellant

Philippa Samworth, Lisa Armstrong and Shalini Thomas, for
    the respondent

Trevor Guy and Kathryn Chung, for the Licence Appeal
    Tribunal

Steven Rastin, Alexander Voudouris and Stanley Pasternak, for
    the intervener Ontario Trial Lawyers Association

Heard:
    October 16, 2019

On appeal from the
    order of Divisional Court (Regional Senior Judge Morawetz, Justices Whitten and
    Gray), dated October 2, 2018, with reasons reported at 2018 ONSC 5664, affirming
    a decision of the Licence Appeal Tribunal, dated September 7, 2017.

Hourigan J.A.:

I.        Overview

[1]

The primary issue for determination on this
    appeal is whether the two-year limitation period in both s. 281.1(1) of the
Insurance
    Act
, R.S.O. 1990, c. I.8 and s. 51(1) of the
Statutory Accident Benefits Schedule - Accidents On or
    After November 1, 1996
, O. Reg. 403/96

(
SABS
), is
    subject to discoverability.

[2]

The Licence Appeal Tribunal (LAT) and the Divisional
    Court concluded that discoverability did not apply to these sections. Instead, they
    found that the limitation period was a hard limitation period that proscribed
    the appellant from asserting her claim for certain statutory accident benefits
    before she was legally entitled to make that claim.

[3]

After the Divisional Courts decision in this
    case, the Supreme Court released
Pioneer Corporation v. Godfrey
, 2019 SCC 42,
    26 B.C.L.R. (6th) 1, which provided guidance regarding when a limitation period
    should be construed as a hard limitation. Applying
Pioneer
and well
    established rules of statutory construction to this case make clear that the
    LATs and Divisional Courts orders cannot stand. I would therefore allow the
    appeal.

II.       Background

[4]

The appellant was a pedestrian and was struck by
    a motor vehicle on September 12, 2008. She was hospitalized and required
    surgery. The appellant applied to her insurer, the respondent, Economical
    Insurance Corporation, and received statutory accident benefits for: (i)
    attendant care benefits, pursuant to s. 18 of the
SABS
; and (ii)
    housekeeping benefits pursuant to s. 22 of the
SABS
.

[5]

These benefits are payable for 104 weeks
    following an accident, unless the beneficiary sustains a Catastrophic
    Impairment (CAT) and is designated as such. In CAT cases, the 104-week time
    limit does not apply:
SABS
,

ss. 18(3) and 22(4).

[6]

On August 26, 2010, Economical provided a letter
    to the appellant wherein it purported to advise her that she would no longer qualify
    for housekeeping or attendant care benefits past September 12, 2010. It is
    common ground that as of August 2010, the appellants injuries did not rise to
    the level of CAT. Her physician did not, at that time, apply for such a
    designation, and the appellant did not appeal the termination of benefits to
    the LAT.

[7]

Over the next five years, the appellant
    underwent various medical tests under the
SABS
scheme and submitted her
    test results to Economical. The appellants condition worsened over time. On
    May 13, 2015, her doctor opined that she now met the definition of CAT, and
    that her condition was result of the September 12, 2008 car accident.

[8]

On November 4, 2015, Economical accepted that
    the appellant was CAT and provided various elevated statutory accident benefits
    on that basis. It refused, however, to provide further attendant care and
    housekeeping benefits, either for the intervening period between September 2010
    and November 2015, or at any point going forward. Economical took the position
    that it had denied the benefits in its August 26, 2010 letter, and the
    appellant was out of time.

[9]

The appellant appealed Economicals decision to
    the LAT. Economical relied on s. 281.1(1) of the
Insurance Act
and s.
    51(1) of the
SABS
. Both sections provided that any dispute over
    benefits must be brought within two years of the insurers refusal to pay the
    benefits.

III.      Decisions Below

[10]

In dismissing the appeal, the LAT Vice-Chair
    determined that the August 26, 2010 letter to the appellant was a clear and
    unequivocal denial of her
SABS
benefits. In addition, the Vice-Chair found that Economicals
    denial of benefits triggered the commencement of the limitation period and that
    the doctrine of discoverability did not apply.

[11]

On further appeal to the Divisional Court, the
    court framed the issues as follows: (i) whether there was a refusal to pay the
    benefit claimed, thus triggering the applicable limitations period; and (ii) whether
    a proceeding must be commenced within two years after the refusal, regardless
    of whether the claimant qualifies for payment of the benefit at the time of the
    refusal.

[12]

With respect to the first issue, whether Economical
    s letter was a clear and unequivocal denial, the court determined that the
    standard of review was reasonableness. The court further found that the
    Vice-Chair considered and applied the governing test from
Smith v. Co-Operators General Insurance Co.
, 2002 SCC 30, [2002] 2 S.C.R. 129, analyzed the evidence, and came
    to a reasonable conclusion.

[13]

With respect to the issue of discoverability,
    the court stated that the standard of review was less clear. The court
    ultimately found that it was not necessary to decide the issue, as the LAT
    decision would stand on either a correctness or reasonableness standard of
    review.

[14]

The Divisional Court recognized that, as a
    general proposition, a limitation period did not arise until the claimant discovers
    that he or she has a claim:
Kamloops v. Nielson
, [1984] 2 S.C.R. 2, 10
    D.L.R. (4th) 641, at p. 40 and
Peixeiro v. Haberman
, [1997] 3 S.C.R. 549, 151
    D.L.R. (4th) 429, at para. 39. However, the court noted that there is
    nevertheless a category of hard limitation periods, which are triggered by a
    fixed and known event, and where it is possible for a claim to be barred even
    before the claimant is aware that she has a claim.

[15]

The court cited this courts recent decision in
Levesque v. Crampton Estate
, 2017 ONCA 455, 136 O.R. (3d) 161 as an example of a hard
    limitation period. That case involved a limitation period in the
Trustee
    Act
, R.S.O. 1990, c. T.23, for claims against an estate. The limitation period
    under that statute expires on the two-year anniversary of the deceaseds death.

[16]

The Divisional Court found that the legislature,
    in enacting the limitation period in issue in this case, had similarly tied the
    commencement of the limitation period to a fixed event  the insurers refusal to
    pay the benefit claimed. According to the court, it is irrelevant that the
    insured did not qualify for the benefit at the time of the refusal, or indeed
    at any time prior to the limitation periods expiration.

[17]

The court recognized that this is a harsh result
    for the appellant. However, it reasoned that, as with any hard limitation
    period, there are policy considerations on both sides. It noted that the
    insurer has no control over when an insured applies for a CAT designation. The
    court inferred that the legislature thought it important to provide for a
    reasonable period, after which the insurers obligation would be discharged, regardless
    of whether meritorious claims may be discovered later.

IV.     Issues

[18]

The appellant focused on two issues in her
    submissions before this court. First, she argued that Economicals letter was
    not a clear and unequivocal denial of benefits that would trigger the running
    of the limitation period. Second, she submitted that the LAT and Divisional
    Court erred in determining that discoverability did not apply to the limitation
    period in the
Insurance Act
and
SABS
.

[19]

I am of the view that the LAT and Divisional
    Courts decisions on the second issue cannot stand. Consequently, it is
    unnecessary to consider the first issue. Nothing in these reasons should be
    construed as an endorsement of the sufficiency of the notice in Economicals
    letter.

V.      Analysis

(a)

Standard of Review

[20]

Before turning to an analysis of the limitation
    period, consideration must be given to the standard of review on this issue.
    The appellant submits that the standard of review is correctness, while
    Economical and the LAT argue that the standard of review is reasonableness
[1]
.

[21]

This case concerns an administrative
    decision-maker interpreting a statute closely related to its function. The
    presumption of reasonableness review applies to such cases:
Edmonton (City)
    v. Edmonton East (Capilano) Shopping Centres Ltd.
, 2016 SCC 47, [2016] 2
    S.C.R. 293, at para. 22. Here, the LAT is determining whether discoverability
    applies to a limitation period contained in the
Insurance Act

and
SABS
, which the LAT must apply frequently to resolve compensation
    disputes.

[22]

In my view, the presumption of reasonableness
    review is not rebutted. This case does not clearly concern a question of law of
    central importance to the legal system and outside the adjudicators
    specialized area of expertise, which would attract correctness review:

Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 55.
The
    Supreme Court has found this correctness category to apply in only two cases:
Alberta
    (Information and Privacy Commissioner) v. University of Calgary
, 2016 SCC
    53, [2016] 2 S.C.R. 55; and
Mouvement laique Quebecois v. Saguenay (City)
,
    2015 SCC 16, [2015] 2 S.C.R. 3.

[23]

The discoverability issue in this case is
    confined to the accident benefits context in Ontario. It is difficult to
    analogize to the scope of the states duty of religious neutrality as in
Saguenay
,
    or the question of what statutory language is sufficient to set aside
    solicitor-client privilege, as in
Alberta
. Limitation periods are
generally
of central importance to the fair administration of justice, but it does not
    follow that
this
limitation period must be reviewed for correctness (emphasis
    in original):
McLean v. British Columbia (Securities Commission)
, 2013
    SCC 67, [2013] 3 S.C.R. 895, at para. 28.

[24]

Reasonableness is a more deferential standard of
    review than correctness. Having said that, reasonableness also takes its
    colour from the context and must be assessed in the context of the particular
    type of decision making involved and all relevant factors:
Catalyst Paper
    Corp. v, North Cowichan (District)
, 2012 SCC 2, [2012] 1 S.C.R. 5, at.
    para. 18. Here, we are concerned with a question of law  whether a common law
    doctrine applies to a statutory provision. This differs, for instance, from a
    highly discretionary ministerial decision, which would likely result in a much
    wider range of reasonable outcomes.

[25]

In fact,
McLean
acknowledged the
    possibility that where the ordinary tools of statutory interpretation lead to
    a single reasonable interpretation and the administrative decision maker adopts
    a different interpretation, its interpretation will necessarily be unreasonable
     no degree of deference can justify its acceptance: at para. 38.

[26]

In my view, as will be discussed below, the LATs
    decision was unreasonable.

(b)

Limitation Periods

[27]

Our courts have recognized that the rule of
    discoverability may apply to limitation periods. Discoverability generally
    provides that a limitation period will not begin to run until the material
    facts on which the cause of action is based are known to the plaintiff or ought
    to have been known through the exercise of reasonable diligence. It is not a
    universal rule applicable to all limitation periods but a rule of construction
    to aid in interpreting limitation periods:
Pioneer
, at paras. 31  32.

[28]

Both the LAT and the Divisional Court concluded
    that the applicable limitation period is a hard limitation period, i.e. a
    limitation to which the rule of discoverability does not apply.

[29]

Section 281.1(1) of the
Insurance Act
,
    which has since been repealed, reads as follows:
A
    mediation proceeding or evaluation under section 280 or 280.1 or a court
    proceeding or arbitration under section 281 shall be commenced within two years
    after the insurers refusal to pay the benefit claimed.

[30]

At the material time,
    s. 51(1) of the
SABS
provided: A mediation proceeding or evaluation under
    section 280 or 280.1 of the
Insurance Act
or a court proceeding or arbitration under
    clause 281 (1) (a) or (b) of the Act in respect of a benefit under this
    Regulation shall be commenced within two years after the insurers refusal to
    pay the amount claimed.
[2]

(c)

Application of
Pioneer

[31]

In
Pioneer
, which the Divisional Court
    did not have the benefit of, the Supreme Court provided guidance for
    determining when a limitation period is subject to the rule of discoverability
    and when it is a hard limitation period.
Pioneer
analyzed the cause of
    action found in s. 36 of the
Competition Act
, R.S.C. 1985, c. C-34. In
    that analysis, Brown J. made the following comments, at paras. 34-35:

First, where the running of a limitation
    period is contingent upon the accrual of a cause of action or some other event
    that can occur only when the plaintiff has knowledge of his or her injury, the
    discoverability principle applies in order to ensure that the plaintiff had
    knowledge of the existence of his or her legal rights before such rights
    expire.

Secondly (and
    conversely), where a statutory limitation period runs from an event unrelated
    to the accrual of the cause of action or which does not require the plaintiffs
    knowledge of his or her injury, the rule of discoverability will not apply.
    [Citations omitted.]

[32]

Thus, the analysis is not focused on whether a
    limitation period is tied to a fixed event, as the Divisional Court opined.
    Rather, the question is whether the limitation period is related to the cause
    of action or the plaintiffs knowledge.

[33]

In
Pioneer
, Brown J. made this point by
    distinguishing
Ryan v. Moore
, 2005 SCC 38,
    [2005] 2 S.C.R. 53, where the court considered the limitation period in the
Survival
    of Actions Act
, R.S.N.L., 1990, c. S-32, for a
    claim against an estate. That limitation period expires two years after the
    death of a potential defendant. Justice Brown stated that
discoverability
    did not apply in
Ryan
,
because the action was complete in all
    its elements before the operation of the event triggering the limitation
    period:
Pioneer
, at para. 39. The limitation period was not dependent
    upon the accrual of the cause of action.
[3]
However, the court noted that had the event triggering the
    limitation period been an
element
of the cause of action, or had it
    been required to occur before the cause of action could accrue, discoverability
could
apply (emphasis in original):
Pioneer
, at para. 40.

[34]

Economical submits that the refusal to pay a
    benefit referenced in s. 281.1(1) of the
Insurance Act
and s. 51(1) of
    the
SABS
is a specific event that is not tied to a cause of action. In
    support of this argument, counsel notes that in previous iterations of the
Insurance
    Act
, the limitation period ran from the date on which the cause of action
    arose.

[35]

I would not give effect to this argument. It is
    contrary to the admonition from the Supreme Court in
Pioneer
at para.
    36 that:

In determining
    whether a limitation period runs from the accrual of a cause of action or
    knowledge of the injury, such that discoverability applies, substance, not
    form, is to prevail: even where the statute does not explicitly state that the
    limitation period runs from the accrual of the cause of action,
    discoverability will apply if it is evident that the operation of a limitation
    period is, in substance, conditioned upon accrual of a cause of action or
    knowledge of an injury.

[36]

The refusal to pay a benefit is clearly tied to the
    appellants cause of action. Absent a refusal to pay the benefit sought, there
    cannot be a claim made for mediation or an evaluation. Thus, the refusal to pay
    a benefit and the ability to make a claim are inextricably intertwined in the
    cause of action. The refusal cannot be stripped out of the cause of action and
    treated as if it is independent from it.

[37]

This distinguishes the case at bar from the
    situations in
Ryan
and
Levesque
. In both those cases, the
    courts were considering limitation periods that were wholly independent from
    the cause of action. The commencement of the limitation period was tied to the
    date of the deceaseds death. In contrast, the applicable limitation period in
    this case is tied to the accrual of the cause of action.

[38]

Economical submits that this case is
    distinguishable from
Pioneer
because of s. 19 of the
Limitations
    Act
, 2002, S.O. c. 24, Sched. B. That section specifically exempts s.
    281.1(1) of the
Insurance Act
, among other limitation periods, from
    the operation of the
Limitations Act
, which codifies discoverability.
    Economical argues that s. 19 of the
Limitations Act

demonstrates
    that the legislature intended to exclude discoverability from applying to s.
    281.1 of the
Insurance Act
.

[39]

I am not persuaded by this submission. It is
    open to a legislature to exempt a limitation period from the discoverability
    rule. However, it must do so with clear legislative language: see
Pioneer
,
    at paras. 32 and 36. There is no such clear statutory text in the
Limitations
    Act
. Economicals argument is premised entirely on an inference that
    counsel invites this court to draw. That does not meet the test of clear
    legislative intent.

[40]

I note as well, that
this court has
    stated that discoverability applies to the limitation period in the
Libel and Slander Act
,
R.S.O. 1990, c. L12, s. 6:
Shtaif v. Toronto Life Publishing Co. Ltd.
, 2013
    ONCA 405, 306 O.A.C. 155, at para. 42. This limitation period

is also
    exempted by s. 19 of the
Limitations Act
. Therefore,
    inclusion under s. 19 of the
Limitations Act

does not automatically mean the rule of discoverability does
    not apply.

(d)

Purposes of the
SABS

[41]

In
Pioneer
, after analyzing the law
    regarding discoverability and hard limitation periods, the court undertook a
    detailed analysis of the
Competition Act
. This included considering
    the statutes purpose. A similar analysis of the
SABS
is instructive
    in understanding whether the limitation period in issue is intended to operate
    as a hard limitation period.

[42]

Unlike the situation in
Ryan

and
Levesque
,
the
SABS
contains both the limitation period
    and the statutory mechanisms designed to provide no-fault benefits. In
Arts
    (Litigation Guardian of) v. State Farm Insurance Co.
, (2008) 91 O.R. (3d)
    394 (S.C.), MacKinnon J. provided a compelling analysis of the
SABS

    purposes and offered guidance regarding the interpretation of the
SABS
,
    at paras. 14 and 16:

The legislature's definition of
    "catastrophic impairment" is intended to foster fairness for victims
    of motor vehicle collisions by ensuring that accident victims with most health
    needs have access to expanded medical and rehabilitation benefits. That
    definition is intended to be remedial and inclusive, not restrictive.

The SABS are
    remedial and constitute consumer protection legislation. As such, it is to be
    read in its entire context and in their ordinary sense harmoniously with the
    scheme of the Act, the object of the Act, and the intention of the legislature.
    The goal of the legislation is to reduce the economic dislocation and hardship
    of motor vehicle accident victims and as such, assumes an importance which is
    both pressing and substantial.

[43]

The decisions below and Economicals narrow interpretation
    of the limitation are incongruous with the
SABS
consumer protection
    purposes. The appellant falls within a small category of victims who suffer
    from lasting and very serious health impacts as result of a motor vehicle
    accident. The
SABS
is supposed to maximize benefits for that class of
    victims. A hard limitation period prevents the appellant from making a claim for
    the benefits the
SABS
are intended to provide. I do not see how such a
    result could be consistent with consumer protection legislation designed to
    provide fair compensation and minimize economic disruption in the lives of
    accident victims.

[44]

The
SABS
is unlike the statutory
    regimes in
Ryan

and
Levesque
, which are aimed at
    creating finality in the context of claims against an estate. A hard limitation
    period is consistent with such regimes.

[45]

Given the choice of a statutory interpretation
    that furthers the public policy objectives underlying the
SABS
and one
    that undermines it, the only reasonable decision is to side with the former.

(e)

Absurd Result

[46]

Statutes are to be interpreted in a manner that
    does not lead to absurd results. An interpretation is absurd if it leads to
    ridiculous or frivolous consequences, if it is extremely unreasonable or
    inequitable, if it is illogical or incoherent, or if it is incompatible with
    other provisions or with the object of the legislative enactment:
Rizzo
    & Rizzo Shoes Ltd. (Re)
,
[1998] 1 S.C.R. 27, 36 O.R. (3d) 418,
    at para. 27.

[47]

Here, the decisions below thrust the appellant
    into a Kafkaesque regulatory regime. A hard limitation period would bar the
    appellant from claiming enhanced benefits, before she was even eligible for
    those benefits. However, if the appellant had not claimed
any
benefits
    until she obtained CAT status in 2015, she would not be caught by the
    limitation period:

Machaj v. RBC
    General Insurance Company
, 2016 ONCA 257, at para. 6
.
Alternatively, if
    the appellant had coincidentally obtained CAT status before 2012, the hard
    limitation period would not bar her claim for enhanced benefits.

[48]

This outcome is absurd. There is no principled reason
    for barring the appellants claim for enhanced benefits in the first scenario but
    allowing the claim in the second and third scenario. To do so would effectively
    penalize the appellant for accessing benefits she is statutorily entitled to, or
    for developing CAT status too late.

[49]

The impossible position a hard limitation places
    the appellant is best illustrated by having regard to Economicals counsels oral
    submissions. Counsel denied that the appellant was put in a lose-lose situation.
    She argued that the appellant could have applied to the LAT before the expiry
    of the limitation period for a declaration that, in the future, she would be
    entitled to extended benefits if she were subsequently found to be CAT.

[50]

I start by noting that courts must be cognizant
    of the
significant disparity in resources
    between large insurance companies and their insureds, who do not have unlimited
    resources to bring multiple proceedings, including prophylactic claims based on
    a future contingency: see
MacDonald v. Chicago Title Insurance
    Company of Canada
, 2015 ONCA 842, 127 O.R.
    (3d) 663, at para. 88, leave to appeal refused, [2016] S.C.C.A. No. 39.

[51]

In any event, if such a
    proceeding were commenced for a declaration, it is difficult to imagine how it could
    succeed. At best, the appellant could only lead speculative evidence that she
    might be CAT at some unknown point in the future. Faced with that evidentiary
    record, the LAT would likely decline to make the requested declaration.

[52]

In my view, the hard limitation
    period puts the appellant in an impossible situation, where the time for
    claiming a benefit commences when she is ineligible to make such a claim. This
    is an absurd result. To choose it, as the LAT did, is unreasonable.

(f)

Policy Rationales for Limitation Periods

[53]

Finally, it is worth considering the three
    policy rationales that underlie limitation periods to determine whether they
    support the finding of a hard limitation period. Those rationales are that
    limitation periods: (i) foster certainty; (ii) are intended to help prevent
    evidence from going stale; and (iii) encourage plaintiffs to be diligent in
    pursuing their claims:
Pioneer
at para. 47.

[54]

None of those rationales support a finding of a
    hard limitation period in this case. There is little certainty achieved, since there
    is no limitation period for initially bringing benefits claims resulting from
    CAT status:

Machaj
,
at para. 6
.
There is no risk of evidence going stale. To the contrary, a hard
    limitation period bars potentially meritorious claims based on current
    evidence. A hard limitation period will also not ensure the insureds diligence
    in pursuing a claim, because the insured has no claim to pursue until a CAT
    designation is made.

(g)

Unreasonable Decision

[55]

In summary, it is
    unreasonable to construe the relevant limitation period as a hard limitation.
There is a single reasonable interpretation of s. 281.1(1) of the
Insurance
    Act
and s. 51(1) of the
SABS
. The limitation period contained in
    those sections is subject to the rule of discoverability because
it is directly tied to the cause of action that an insured
    can assert when denied benefits. A hard limitation period is contrary to the
    purposes of the
SABS
and the Supreme
    Courts guidance in
Pioneer
. In
    addition, a hard limitation period in these circumstances would lead to absurd
    results and is not consistent with the policy rationales that underlie
    limitation periods.

VI.     Disposition

[56]

For the foregoing reasons, I would allow the
    appeal and set aside the orders of the Divisional Court and the LAT.

[57]

I would make an order declaring that the
    limitation period regarding the appellants entitlement to attendant care
    benefits, and housekeeping and home maintenance benefits has not expired, and
    that accordingly, the appellant is entitled to proceed with her application for
    those benefits.

[58]

I would further order that Economical pay the
    appellant her costs of the appeal fixed in the agreed upon, all-inclusive, sum
    of $10,000.

Released: C.W.H. November 8, 2019

C.W. Hourigan J.A.

I agree. M.L. Benotto J.A.

I agree. Fairburn J.A.

[1]
In
Pioneer
at para. 30, the court stated the standard of
    review regarding whether discoverability applies to a limitation period is
    correctness. However, that case considered an appeal from a court ruling, not a
    ruling from an administrative tribunal.

[2]
Section 51(1) of the
SABS
was revoked and replaced with
    slightly different wording in April 2016. This analysis is confined to the
    legislation as it read when Economical purported to deny the appellant benefits
    (i.e. in August 2010).

[3]
For a similar result see
Levesque
, which considered a
    comparable provision in the
Trustee Act
.