COURT OF APPEAL FOR ONTARIO

CITATION: Filice v. Complex Services Inc., 2018 ONCA 763

DATE: 20180919

DOCKET: C62310

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Antonio Filice

Plaintiff (Respondent)

and

Complex Services Inc.

Defendant (Appellant)

Frank Cesario, for the appellant

Margaret A. Hoy, for the respondent

Heard: January 19, 2018

On appeal from the judgment of Justice Antonio Skarica of
    the Superior Court of Justice, sitting without a jury, dated May 17, 2016, with
    reasons reported at 2016 ONSC 3256.

COSTS ENDORSEMENT

[1]

On July 10, 2018, this court released its decision allowing the appeal, and
    awarding costs of the appeal to the respondent in the amount of $10,000.  At
    the same time, we invited the parties to make submissions on the issue of the
    appropriate disposition of the costs of the trial.  We have now received and
    reviewed those submissions.

[2]

The appellant submits that each side should bear their own costs of the
    trial because of the limited success enjoyed by the respondent and because of
    the operation of r. 76.13 of the
Rules of Civil Procedure
, R.R.O.
    1990, c. C.43.  Alternatively, the appellant submits that the respondent should
    be awarded the costs of the trial but reduced in amount to $20,000.  The
    respondent submits that he should be entitled to the costs award made by the
    trial judge.

[3]

After the trial judge announced his decision, he immediately requested
    submissions on costs.  After hearing briefly on the subject, the trial judge
    awarded the respondent costs fixed at $82,600.  This amount reflected a slight
    reduction from the amount requested by the respondent, largely as a result of
    the trial judge reducing the hourly rate claimed by counsel for the
    respondent.  At the same time, the trial judge accepted the number of hours
    spent by respondents counsel, indicating that the respondent, as plaintiff,
    had to spend more time than the defendant to prepare the greater number of
    witnesses he called.  The trial judge also found that the matter was complex.

[4]

The trial lasted for seven days.  The respondent called seven witnesses,
    in addition to himself.  The appellant called one witness.  Much of the
    evidence was directed towards the punitive damages claim, not the constructive
    dismissal claim.

[5]

The respondent, while unsuccessful in part on the appeal, was still
    ultimately successful on his constructive dismissal claim.  The proceedings at
    trial, however, were significantly lengthened by the other issues raised by the
    respondent.  The constructive dismissal claim itself would not have required
    the number of witnesses called nor the length that the trial took.

[6]

Another salient fact is that the respondents constructive dismissal
    claim, by itself, was a claim that fell within the simplified procedure under
    the
Rules of Civil Procedure
.  However, the claim was much broader
    than that when the action was originally commenced.  It was reduced in scope as
    a result of a successful summary judgment motion brought by the appellant that
    resulted in all of the claims, other than the constructive dismissal claim and
    a claim for punitive damages, being struck out.  At that point, the respondent
    could have proceeded under the simplified procedure, as permitted by r. 76.02.
    The respondent did not take that step.

[7]

Rule 76.13 stipulates that a plaintiff shall not recover any costs if
    a claim that properly falls within the simplified procedure is not pursued under
    Rule 76.  While that consequence is mandatory, there is a discretion in the
    court to depart from it if the court considers it reasonable to do so.  We do
    so here.

[8]

As our reasons on the appeal indicate, this was an unusual employment
    law situation because of the gaming registration issue that gave rise to the
    issue of frustration of the contract of employment.  Moreover, it is not clear
    from the record whether, by the time the respondents other claims were struck
    out, the action had progressed to a point where there would have been any
    practical difference to proceeding under the simplified procedure.  We also
    note that there is no indication that, prior to its costs submissions, the appellant
    ever objected to this matter proceeding under the ordinary procedure.  Given
    all of those considerations, we are prepared to excuse the respondents failure
    to proceed under the simplified procedure.

[9]

In the end result, the respondent was successful in his constructive
    dismissal claim.  He is, consequently, entitled to an award of costs for the
    trial.  The amount of the costs must, however, be reduced from the amount
    awarded by the trial judge as a result of the factors that we have set out
    above.

[10]

We
    therefore grant the respondent his costs of the trial.  However, we reduce the
    amount of those costs to $40,000, inclusive of disbursements and HST, payable
    by the appellant.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Galanis v. Kingston General Hospital, 2018 ONCA 786

DATE: 20180927

DOCKET: C65113

Simmons, Miller and Fairburn JJ.A.

BETWEEN

Konstantina Connie Galanis
    and Michael Galanis

Plaintiffs (Respondents)

and

Kingston General Hospital, Dr. Greg Davies, Dr.
    Michael McGrath, Dr. John Doe Anasthesiologist and Nurse Jane Doe

Defendants (Appellants)

Anne Tardif, for the appellants

Ronald P. Bohm, for the respondents

Heard and released orally: September 24, 2018

On appeal from the
    order of Justice Hurley of the Superior Court of Justice, dated February 16,
    2018.

REASONS FOR DECISION

[1]

Relying on misnomer, the motion judge granted the respondents leave to
    amend their statement of claim to substitute the names of three doctors for Dr.
    John Doe Anesthesiologist in the respondents statement of claim.  One of the
    doctors, Dr. Pattee, an anaesthesiologist, did not oppose the request.

[2]

Even assuming the motion judge erred in taking account of the
    allegations in the statement of claim, which the appellants emphasize was
    served after the limitation period expired, we are not persuaded the motion
    judge erred in relying on misnomer to permit the substitution or that he
    misapplied the doctrine.  The motion judge articulated the litigating finger
    test in making his decision.  Although the motion judge relied on allegations
    in the statement of claim, he made an alternative finding based upon the notice
    of action which was served within the limitation period.  The motion judge
    concluded that the two appellant doctors would have known the litigating finger
    pointed at them based upon the allegations against Dr. John Doe
    Anesthesiologist in the notice of action, the medical records, and their status
    as anaesthesiologists at the relevant time (or, in Dr. Dodges case, as a
    resident anaesthesiologist).  This was a finding of mixed fact and law entitled
    to deference from this court absent error in principle or palpable and
    overriding error.  We find no such error in the alternative finding.

[3]

The appellants do not contend that the motion judge erred in failing to
    exercise his residual discretion to refuse to substitute the appellants.

[4]

The appeal is dismissed. Costs of the appeal will be to the respondents
    on a partial indemnity scale, fixed in the amount of $12,000, inclusive of
    taxes and disbursements.

Janet Simmons J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ghiassi v. Singh, 2018 ONCA 764

DATE: 20180920

DOCKET: C64628

Sharpe, van Rensburg and Brown JJ.A.

BETWEEN

Taha Ghiassi, Pouya
    Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh
    Ghiassi personally, and Taher Ghiassi

Plaintiffs (Respondents)

and

Ram Nivas Singh, Aleksander Kornecki, Doreen
    Miyako Matsui, Gurinder Singh Sangha,
Sandra Oswald
,
London Health
    Sciences Centre
, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin

Defendants (
Appellants
)

Simon Clements and Jessica DiFederico, for the
    appellants

Gavin MacKenzie, Barbara Legate, and Brooke MacKenzie,
    for the respondents

Heard: September 4, 2018

On appeal from the
    judgment of Justice Lynne Leitch of the Superior Court of Justice, dated October
    31, 2017, with reasons reported at 2017 ONSC 6541.

REASONS FOR DECISION

FACTS

[1]

The plaintiff Taha Ghiassi was born at London Health Sciences Centre
    (LHSC) on December 22, 2005. Because of his condition at birth, he was cared
    for by paediatricians and nurses in the Paediatric Critical Care Unit and
    subsequently the Clinical Teaching Unit at LHSC for several days.

[2]

At 21:00, December 25, Nurse Sandra Oswald took Tahas temperature and
    noted a change in Tahas colour. He was pink and slightly yellow, which indicated
    that he was slightly jaundiced. Taha only took 10CCs when Nurse Oswald
    attempted to bottle feed him. Nurse Oswald made a notation that Mom plans to
    nurse when able.

[3]

At 7:00, December 26, Nurse Oswald reported Tahas change in colour and
    jaundice to the incoming shift nurse. That nurse assessed Taha at approximately
    8:30. At 8:45, she took a blood sample without a physicians order and sent it
    to the lab to conduct a test to determine Tahas bilirubin level. Bilirubin is
    a waste product in the blood that is a toxin in the brain at high enough
    concentrations. An increased bilirubin concentration is associated with
    jaundice. Jaundice is common in newborns due to immaturity of the liver. The
    lab report at 10:00 indicated severe hyperbilirubinemia, a higher than normal
    level of bilirubin in the blood. The bilirubin level was only slightly less
    than the threshold for critical hyperbilirubinemia, which has the potential to
    cause long-term neurological impairment.

[4]

Phototherapy (putting the infant under lights to reduce the bilirubin
    concentration) was commenced at 11:00. Taha was still neurologically intact at
    this time. Tahas bilirubin level dropped slightly but by 15:00 he began to
    show signs of neurological damage. Further treatment proved unsuccessful and he
    developed the neurological condition kernicterus, caused by his
    hyperbilirubinemia. As a result of kernicterus, Taha suffers from severe
    deficits including dyskinetic cerebral palsy, moderate to severe hearing loss,
    visual impairment, developmental delays, and intellectual disability.

[5]

Taha, his parents, and his two older siblings commenced this action
    against LHSC, Nurse Oswald, and seven doctors involved in treating Taha.

[6]

Before the trial, the parties agreed on the damages that the plaintiffs
    sustained in the amount of $9,500,000.00. At the beginning of trial, the
    plaintiffs settled the claims against the seven doctors and the trial proceeded
    against Nurse Oswald and LHSC.

[7]

After a 12 day trial, the trial judge found that Nurse Oswald fell below
    the standard of care by failing to report to the resident pediatrician on duty
    the onset of jaundice when she noted that condition at 21:00, December 25. In
    her careful and detailed reasons, the trial judge found that but for Nurse
    Oswalds negligence, a resident would have ordered a blood test for bilirubin
    at 24:00. Relying on the timing of the introduction of phototherapy on the
    morning of December 26 after a blood test was finally done, the trial judge
    found that phototherapy to reduce Tahas level of bilirubin would have
    commenced not later than 2:15, December 26. Had that occurred, she found that Taha
    would not have developed kernicterus.

[8]

Nurse Oswald and LHSC appeal Leitch J.s findings on the issue of
    causation only. They do not quarrel with her finding that Nurse Oswald fell
    below the appropriate standard of care.

ISSUES

[9]

The appellants raise three issues in this essentially fact-driven
    appeal:

(1)

Was the trial judges finding of
    causation tainted by her error in relying on what a reasonable resident would
    have done if Nurse Oswald had reported jaundice at 21:00, December 25?

(2)

Did the trial judge err by
    inferring causation in the absence of expert evidence that Taha would not have
    developed kernicterus had phototherapy been commenced at 2:15, December 26?

(3)

Did the trial judge err in
    finding that the conversation between Nurse Oswald and Tahas mother took place
    at 21:00, December 25?

[10]

It
    is common ground that the trial judges factual findings attract deference on
    appeal and can only be upset if they reveal palpable and overriding error.

ANALYSIS

(1)

Was the trial judges finding of causation tainted by her error in
    relying on what a reasonable resident would have done if Nurse Oswald had
    reported jaundice at 21:00, December 25?

[11]

The
    trial judge found that had Nurse Oswald reported the jaundice and other risk
    factors, the resident on duty that night, Dr. Saleh, or a reasonably competent
    resident, would have responded promptly and ordered blood to be drawn for a
    bilirubin test the next time Taha was handled at 24:00. In making this finding,
    the trial judge relied on the opinion of the respondents causation expert, Dr.
    Michael Marrin, that a competent resident would order a blood test at the next
    handling episode. The trial judge also treated the evidence of another resident
    who testified, Dr. Sangha, as a proxy for the evidence of Dr. Saleh, who did
    not testify. She based this on the fact that Drs. Sangha and Saleh had
    equivalent levels of knowledge and experience.

[12]

The
    appellants submit that the trial judge erred in making this finding for several
    reasons. First, Dr. Saleh was not called as a witness and without his evidence
    as to what he would have done, there was a fatal gap in the evidence required
    to prove causation. Second, Dr. Marrin testified that he thought the entire
    medical staff on the unit lacked competence and it follows that the trial judge
    erred in finding that the resident on duty would have lived up to the standard
    of a reasonably competent resident. Third, they argue that the trial judge misapprehended
    the evidence of Dr. Sangha as to when he would have ordered the blood test. It
    is the appellants position that even if Nurse Oswald had reported the jaundice
    at 21:00, the resident would not have ordered a bilirubin test until the start
    of the morning shift on December 26.

[13]

We
    do not agree with these submissions.

[14]

The
    trial judge refused to draw an adverse inference from the failure to call Dr.
    Saleh who was available to both parties. That decision is not challenged on
    appeal.

[15]

The
    combination of Dr. Marrins evidence about what a reasonably competent resident
    would have done and what Dr. Sangha said he would have done provide a
    reasonable foundation for the trial judges finding. Dr. Sangha testified that
    in the normal course he would order a bilirubin test as soon as he was made
    aware that an infant under his care was evidencing signs of jaundice. That
    corresponded to Dr. Marrins evidence of what he would expect a reasonably
    competent resident to do. While at a later point in his evidence, Dr. Sangha
    stated that in some circumstances he might wait for the next blood test to be
    taken, that evidence did not take into account the added risk factors that
    Nurse Oswald should have reported in addition to the early signs of jaundice.
    In any event, the trial judge was entitled to prefer Dr. Sanghas earlier and
    unqualified evidence that he would have ordered the test as soon as he became
    aware of the presence of jaundice.

[16]

Finally,
    we agree with the respondents that the trial judge did not err by refusing to
    adopt the appellants submission that they should escape liability by pointing
    the finger at the hypothetical negligence of a physician that might have caused
    the loss in any event.

[17]

If
    Nurse Oswald and the night resident had been cumulatively negligent, the law
    would not allow each of them to point to each others negligence to rebut a
    finding of causation. In
Sacks v. Ross
, 2017 ONCA 773, 417 D.L.R.
    (4th) 387, this court stated, at para. 116:

Generally
    speaking, with respect to delayed diagnosis medical negligence cases involving
    multiple tortfeasors, it ought not to be possible for any one of the negligent
    tortfeasors to sidestep liability on the basis that there was sufficient
    cumulative delay resulting from the negligent acts or omissions of other
    defendants so that it could not be proven under
Clements
that the
    defendants particular contribution was necessary  that the injury would
    still have been incurred but for the negligent act or omission.

[18]

Accordingly,
    it would be incongruous to permit Nurse Oswald to escape liability by pointing
    to another physicians hypothetical negligence. If an additional defendants
    actual negligence does not provide a defence in a delayed treatment case, it
    follows that the hypothetical negligence of a third party should not provide a
    defence.

(2)

Did the trial judge err by inferring causation in the absence of expert
    evidence that Taha would not have developed kernicterus had phototherapy been
    commenced at 2:15, December 26?

[19]

The
    central issue on this appeal is whether the trial judge erred in finding that
    it was more likely than not that Tahas kernicterus would have been prevented
    had phototherapy been initiated at 2:15 on December 26. In coming to that
    conclusion, the trial judge relied on Dr. Marrins unchallenged evidence that
    Taha would not have developed kernicterus if phototherapy had been initiated at
    either 21:00 on December 25, or 24:00 on December 26.

[20]

The
    appellants submit that as Dr. Marrin was never asked whether Tahas kernicterus
    would have been prevented had phototherapy been initiated at 2:15, the trial
    judges finding on causation amounts to speculation. They assert that the trial
    judge, in effect, could only come to that conclusion by acting as her own
    expert.

[21]

We
    disagree.

[22]

It
    is important to place this issue in the context of how this trial unfolded. As
    we have already noted, the appellants called no expert evidence on causation.
    They simply rested on the theory that the respondents had failed to prove
    causation. During the evidentiary part of the trial, the parties posed two
    conflicting theories. The respondents theory was that had Nurse Oswald
    reported jaundice at 21:00, the resident would have immediately ordered a
    bilirubin test and phototherapy would have been commenced shortly thereafter.
    The defendants took the position that it was acceptable to wait until the
    morning to do a blood test and that even if Nurse Oswald had reported the
    jaundice at 21:00, phototherapy would not have commenced until the morning. It
    was during oral argument that the appellants first advanced the argument that
    even if Nurse Oswald had reported jaundice at 21:00 on December 25,
    phototherapy would not have started until 2:15 on December 26. Only then did
    the appellants submit that in the absence of expert evidence that starting
    phototherapy at that time would have prevented Taha from developing kernicterus,
    the respondents had failed to prove causation.

[23]

The
    trial judge rejected that contention, at para. 552, on the basis of twelve
    facts she found to support her finding. Among those facts were:

·

Dr. Marrins unequivocal and certain evidence that no injury
    would have occurred if phototherapy had been initiated at 24:00 on Dec. 26;

·

That phototherapy is effective in blunting the rise and reducing
    the level of bilirubin;

·

That when phototherapy was introduced the next morning, Tahas
    bilirubin declined; and

·

That Taha was still neurologically intact at 11:00 am, December
    26 and did not exhibit signs of neurological damage until 15:00.

[24]

In
    our view, it was open to the trial judge to infer from this evidence that the
    introduction of phototherapy at 2:15 would have prevented Taha from developing
    kernicterus. This did not amount to the trial judge speculating or acting as
    her own expert. The only expert evidence available, combined with the evidence
    as to how Tahas condition progressed from the point at which jaundice first
    appeared to the point at which he began to show signs of neurological damage,
    provided a solid factual foundation for the inference the trial judge drew.

[25]

The
    appellants contention in oral argument that the respondents failure to ask
    Dr. Marrin whether phototherapy commenced at 2:15 would have been effective
    amounts to a fatal flaw is unpersuasive. The appellants called no expert
    evidence on causation and did not give the respondents or Dr. Marrin the
    opportunity to address that contention by putting it to him in
    cross-examination. The trial judges treatment of the evidence is entirely
    consistent with the principles set out in
Snell v. Farrell
, [1990] 2
    S.C.R. 311. As Sopinka J. stated, at p. 330, in the absence of evidence to the
    contrary by the defendant, an inference of causation may be drawn although
    positive or scientific proof of causation has not been adduced.

[26]

The
    appellants submit that the trial judges reliance on Dr. Marrins evidence that
    the direction of change was a rising bilirubin not a falling bilirubin and
    the rise was linear taints her finding of causation. They submit that the
    trial judge misapprehended Dr. Marrins evidence. While Dr. Marrin did testify
    that there is a linear rise in bilirubin if an infant has physiological
    bilirubin, he testified that the rise in cases of pathologic bilirubin falls
    outside of that pattern. Taha had pathological bilirubin. Because Taha had
    pathologic jaundice, the appellants argue that it is impossible to say how
    quickly his bilirubin level would have risen.

[27]

We
    disagree. First, there is nothing on the evidence to suggest that pathological
    bilirubin could have developed before 2:15 on December 26 or that Tahas
    bilirubin levels exhibited sudden or unpredictable jumps. Second, this is
    merely one fact in a long list of facts that support the trial judges
    inference. Even if the trial judge erred by relying on the linear progression
    of bilirubin, that error was not overriding or sufficient to affect the
    outcome.

[28]

Contrary
    to the respondents submissions, this case is readily distinguishable from delayed
    treatment cases in which this court found there was no evidence of causation.
    In
Cottrelle v. Gerrard
(2003), 67 O.R. (3d) 737 (C.A.), the expert
    evidence was that the plaintiff would have lost her leg even if the defendant
    physician had not been negligent and the expert evidence at best showed loss of
    a chance: at paras. 3, 23. In
Aristorenas v. Comcare Health Services
(2006), 83 O.R. (3d) 282 (C.A.), no experts were qualified to give evidence
    about the disease in question and none of the experts testified that the delay
    in treatment increased the likelihood of contracting the disease: para. 71. In
Barker
    v. Montfort Hospital
, 2007 ONCA 282, 278 D.L.R. (4th) 215, the court found
    that the organ in question had likely died prior to the delay in treatment: at
    paras. 40-41. In
Salter v. Hirst
, 2011 ONCA 609, 107 O.R. (3d) 236,
    the plaintiffs experts led no evidence about what would have happened if the
    plaintiff had been transferred to the hospital without the delay: at paras. 12,
    15-16.

[29]

Finally,
    we agree with the respondentss submission that if there is a gap in the
    evidence about what would have happened had phototherapy been introduced at
    2:15, that gap was the product of Nurse Oswalds negligence. Her failure to
    order the test is the reason there is no data point as to the bilirubin level
    at 2:15. Nurse Oswald should not be permitted to rely on the lack of evidence
    that her own negligence produced see
Goodwin v. Olupona
, 2013 ONCA 259,
    305 O.A.C. 245, at paras. 72-74.

(3)

Did the trial judge err in finding that the conversation between Nurse
    Oswald and Tahas mother took place at 21:00, December 25?

[30]

The
    Agreed Statement of Facts states that at some point during Ms. Oswalds night
    shift on December 25, she had a conversation with Mrs. Ghiassi, Tahas mother.
    Para. 108 of the Agreed Statement of Facts states as follows:

Mrs. Ghiassi attends and asks to
    hold Taha. She asks Nurse Oswald to turn on the lights so she can see him,
    which Nurse Oswald does. She notes his nose is yellow, and he does not arouse
    from sleep. Mrs. Ghiassi asks Nurse Oswald to have his blood tested by the
    doctors in the morning, noting that she has experience with jaundice. She is
    reassured by Nurse Oswald that this is normal jaundice.

[31]

This
    conversation is important because it disclosed to Nurse Oswald several factors
    that increased the risk posed by Tahas jaundice. The trial judge found on the
    basis of the expert evidence on the standard of care that learning these
    factors should have led Nurse Oswald to report the condition to the resident.
    The timing of that conversation was contentious. Tahas mother was uncertain of
    the precise time when the conversation occurred. She testified that it could
    have been at 11:00, maybe 10:00 and later that she thought it was
    midnight11:30 or 2:00 or 1:00 or between 11:00 and 1:00 oclock up or
    down. The appellants argued that the conversation occurred slightly after
    midnight. Nurse Oswald could not recall the time the conversation occurred but
    testified that the information that she noted at 21:00 could have come from the
    information on the medical information system, the fact that Taha was having
    expressed breast milk, or because the initial nursing history obtained on
    admission indicated that Mrs. Ghiassi planned to breastfeed.

[32]

The
    trial judge found as a fact that the conversation took place at 21:00, relying
    on the notation made by Nurse Oswald at that time that Mom plans to nurse when
    able.

[33]

We
    are not persuaded by the appellants argument that this factual finding amounts
    to palpable and overriding error.

[34]

Tahas
    mother was admittedly uncertain in her evidence about the timing, but it was
    open to the trial judge on this record to infer from Nurse Oswalds note that
    the conversation took place at 21:00. Nurse Oswald made no other documentation
    of a visit or information from Tahas mother and she could not recall caring
    for Taha. The trial judge was entitled to privilege the note over the later
    times that Mrs. Ghiassi referred to given that Mrs. Ghiassi made clear that she
    did not exactly remember the time. Mrs. Ghiassis statement that it was late
    evening and that it was night and dark was also consistent with the 21:00
    timing. Moreover, the appellants conceded in oral argument that the crucial
    issue was whether or not the conversation took place before 24:00 and the
    mothers evidence was certainly consistent with that timing.

[35]

Accordingly,
    we would not give effect to this ground of appeal.

DISPOSITON

[36]

For
    these reasons, the appeal is dismissed with costs to the respondents fixed in
    the amount agreed to by the parties, $35,000 inclusive of disbursements and
    taxes.

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gholami v. The Hospital of Sick Children, 2018 ONCA
    783

DATE: 20180927

DOCKET: C63844

Pepall, Roberts and Miller JJ.A.

BETWEEN

Dr. Amir Gholami

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

The Hospital for Sick Children, Dr. Bruce Macpherson,
    and Dr. Mark Crawford

Defendants (Respondents/

Appellants by way of
    cross-appeal)

Chris Foulon and Behzad Hassibi, for the appellant/respondent
    by way of cross-appeal

Robert Weir and Bethan Dinning, for the respondents/appellants
    by way of cross-appeal

Heard: April 12, 2018

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated May 2, 2017, with reasons reported at 2017
    ONSC 1200, and the costs endorsement, dated June 14, 2017.

By the Court:

A.

Overview

[1]

The appellant appeals from the dismissal of his claims for damages for wrongful
    dismissal, bad faith conduct of his employer in the manner of dismissal, and defamation.
    The respondents cross-appeal, asking for damages to be quantified and ordered
    if the appellant is successful. The appellant also appeals from the costs award
    of $137,250.

[2]

The appellant claims that his employment with the Hospital for Sick
    Children (HSC) was wrongfully terminated and his professional reputation and
    career as a specialist in pediatric cardiac anesthesiology in Canada and the
    United States were destroyed by the actions of the respondents.

[3]

The main issues on appeal are whether the trial judge erred in
    concluding that the appellant was not wrongfully dismissed and whether she failed
    to provide adequate reasons with respect to issues of credibility.

[4]

We conclude that the appellant was wrongfully dismissed from his
    position at HSC, but for the reasons that follow, we are unable to determine
    the damages to which he is entitled. We also conclude that the trial judge
    erred in her treatment of the issues of bad faith conduct in the manner of
    dismissal and defamation, and we return those issues and the quantification of
    damages to a judge of the Superior Court for a trial of these issues. Although
    we regret the need to order a further proceeding in this action, we are
    compelled to reach that conclusion due to the inadequacy of the trial judges
    reasons.

B.

Factual background

[5]

From October 4, 2010 to June 8, 2011, the appellant was employed by HSC as
    an associate physician in the Department of Anesthesia and Pain Medicine (the
    Department), under a fixed-term, one-year contract. The contract was subject
    to renewal on the successful completion of various conditions.

[6]

The contract with HSC was part of the Pathway 4 licensing process,
    prescribed by the College of Physicians and Surgeons of Ontario (the CPSO),
    by which the appellant, a Canadian citizen licensed to practise medicine in the
    United States, sought to qualify to practise medicine in Canada. The contract
    with HSC was conditional on the appellants compliance with and successful
    completion of the requirements under the Pathway 4 program.

[7]

Pathway 4 allows US board-certified physicians to work in Ontario under
    a limited licence as a means to obtain full licensing in the province. Physicians
    who apply for registration in Ontario under a Pathway 4 Certificate of
    Registration are granted a conditional licence to practise. They must complete
    a one-year period of supervision and are assigned a supervisor from their
    workplace. At the end of the year, they must pass a Practice Ready Assessment
    conducted by the CPSO.

[8]

By letter dated June 15, 2010, the appellant was offered an appointment
    in the Department. For the first year, he would be considered an associate
    staff member. His re-appointment beyond one year was contingent upon successful
    completion of the first year of clinical work, a Practice Ready Assessment,
    compliance with the policies and procedures of the CPSO, and his enrollment in
    a Masters training program in clinical epidemiology.

[9]

The appellant aspired to specialize in pediatric cardiac anesthesiology.
    The offer letter provided that he would work in the Department, but that [e]very
    effort will be made to integrate you into our sub-group of cardiac
    anesthesiologists.

[10]

The
    offer was contingent upon the appellant obtaining a Certificate of Registration
    from the CPSO. In support of the appellants CPSO application, the Associate
    Chief of the Department, the respondent, Dr. Bruce Macpherson, wrote on July 2,
    2010: Dr. Gholami is a skilled anesthesiologist whose references attest to
    his strong teaching abilities, clinical skills and superb interpersonal
    abilities.

[11]

On
    October 1, 2010, the CPSO issued a restricted Certificate of Registration to
    the appellant.
[1]
He was required to practice under
    supervision, which was coordinated by Dr. Macpherson. The Certificate stated
    that it automatically expired on the happening of certain events, including:
    the supervisor notifying the CPSO of any concerns regarding the appellants
    knowledge, skill, judgment or attitude; the supervisor not providing the
    required reports, or if those reports were unsatisfactory in form or content;
    the supervisor being unable or unwilling to continue to supervise the
    appellants practice; or if the CPSO found the assessment report
    unsatisfactory.

[12]

Dr.
    Macpherson gave certain undertakings to the CPSO, including that he would
    provide the CPSO every six months with a report on the appellants performance,
    and immediately advise the CPSO of any serious issues. The appellant understood
    that if Dr. Macpherson withdrew as his supervisor for any reason, his conditional
    licence to practise would automatically expire and his employment would come to
    an immediate end.

[13]

From
    October 2010 to January 2011, the appellant worked in other areas in the
    Department. He worked from January to early April 2011 on cardiac cases under a
    preceptorship, where he was paired with various members of the cardiac team who
    assisted and familiarized the appellant with the room set-up, charting and
    specifics of cardiac surgery at HSC. During the month of May, the appellant
    pursued research studies and focused on transfusion cases outside of HSC,
    except when he returned on one or two occasions when on call.

[14]

Up
    until about the middle of May, the appellant was advised that there were no
    serious concerns with his clinical performance, although there were some
    ongoing issues about his fit within the cardiac team.

[15]

In
    his April 5, 2011 report, which mistakenly was not sent to the CPSO, Dr.
    Macpherson wrote that the appellants clinical performance has been more than
    adequate and that he is settling in nicely. Dr. Macpherson noted very
    complimentary unsolicited comments with respect to his clinical performance
    as well as his inter professional interactions, and that, according to his own
    direct observation, he found him to be technically sound, with a good
    knowledge base and a solid overall clinical performance.

[16]

The
    only comment in Dr. Macphersons report that was less than positive related to
    the appellants interaction with the Operating Room (OR) team, which Dr.
    Macpherson wrote was OK. However, Dr. Macpherson qualified this by stating
    that after talking to the appellant about his slightly more aggressive
    interactive approach to dealing with allied health care workers, he noticed a
    softening of what was occasionally perceived by some as a slightly abrupt
    approach. Dr. Macpherson concluded that he did not see this as a major issue
    and that he had no concerns about the appellants clinical performance,
    knowledge base, skill, judgment or attitude.

[17]

Some
    members of the cardiac team were highly supportive of the appellant. There
    were, however, personality conflicts between the appellant and other members of
    the team. The appellant felt he was being unfairly micromanaged; the members of
    the cardiac team with whom he clashed (including the chair of the cardiac team,
    Dr. Helen Holtby) believed he was not amenable to instruction. As a result, on
    May 12, 2011, the Chief of the Department, the respondent, Dr. Mark Crawford,
    advised the appellant that he should work in a different area within the
    Department rather than on cardiac cases. Although the appellant maintained his
    preference for cardiac cases, he said he would think about it.

[18]

Matters
    came to a head after a meeting on May 16, 2011, between the appellant and Dr.
    Crawford, during which the appellant repeated his desire to work on cardiac
    cases. He also allegedly advised Dr. Crawford that members of the cardiac
    department, including Dr. Macpherson, were jealous of and disloyal to Dr.
    Crawford. When Dr. Crawford shared this information with Dr. Macpherson on May
    17, the latter determined that he could no longer act as the appellants
    supervisor.

[19]

In
    the meantime, and undisclosed to the appellant, Dr. Crawford had been making
    inquiries of staff members, who had worked with the appellant in the OR, about
    the appellants clinical performance and personal interactions. On May 25,
    2011, Dr. Bruce Dodgson, one of the most senior cardiac anesthesiologists in
    the Department, provided his comments and highlighted an intubation error and
    two drug errors which had occurred earlier in the period when [the appellant]
    was being initiated into the cardiac anesthesia programme. In her letter dated
    May 30, 2011, Dr. Holtby wrote about her impression during the first three to
    four months of 2011. She felt that the appellants deficiencies in clinical
    skills, although relatively minor, meant he was not ready to take calls
    unsupported. She concluded that he was incapable of recognizing and taking
    responsibility for his own errors. She also commented on his abrasiveness and
    lack of collegiality.

[20]

The
    appellant was unaware of Dr. Macphersons decision to withdraw as his
    supervisor. At the first of three meetings with Dr. Crawford on May 30, 2011,
    the appellant asked again to work on cardiac cases, but Dr. Crawford maintained
    that he should work elsewhere in the Department. Later that day, the appellant advised
    Dr. Crawford that he had decided to seek employment outside of HSC and asked
    for his support. Dr. Crawford indicated that he had his full support. The
    appellant also advised that he wanted to work on cardiac cases until his
    departure, to which Dr. Crawford said they would have to see, pending the
    outcome of a departmental meeting to be held on June 15, 2011.

[21]

Later
    that same day, at the last of their meetings, the appellant was reprimanded by
    Dr. Crawford for the appellants treatment of Dr. Crawfords assistant, to whom
    the appellant had already apologized for his abruptness.

[22]

Still
    on the same day, following the reprimand, the appellant sent a strongly-worded
    email to Dr. Crawford in which the appellant stated his concern that there is
    a move underway in the department to make my continued employment here
    untenable. He went on to accuse Dr. Crawford and other members of the
    Department of unfair, discriminatory, misleading and professionally damaging
    treatment.

[23]

The
    appellant nonetheless expressed the desire to come to a resolution in a
    cooperative and rational way, that promotes goodwill and a balanced outcome
    wherein both the department and I maintain the benefits that can accrue from
    cooperation in good faith. Failing such a resolution, the appellant wrote that
    the outcome would be acrimonious, and that the result may end up damaging
    more than fixing any presently existing problems and concerns on both sides. The
    appellant wrote that he was prepared to take all the actions available to
    preserve his professional security and well-being. Not having received any response,
    the appellant sent a follow-up email on June 3, 2011.

[24]

Unbeknownst
    to the appellant, on June 1, 2011, Dr. Crawford wrote to Dr. James Wright, VP
    Medicine and Surgeon-in-Chief of HSC, about Dr. Macphersons decision to step
    down as the appellants supervisor. He also indicated the advisability of the
    appellant immediately leaving HSC because of his ruthless attempts to
    undermine relations and incite discord. Dr. Wright agreed with Dr. Crawfords
    recommendation and sought to review Dr. Macphersons cover letter and report to
    the CPSO given the great potential for legal action arising from this
    situation and having been involved in many similar situations. Dr. Wright
    instructed Dr. Macpherson to include in his report the various issues raised
    about the appellants clinical performance and personal interactions, including
    the earlier drug errors.

[25]

As
    a result, on June 8, 2011, Dr. Macpherson sent a report to the CPSO advising
    that he could no longer act as the appellants supervisor, stating that the appellant
    had clinical performance and personal interaction issues. Dr. Macpherson listed
    the two drug errors and other incidents, all but one of which had occurred
    before but were not included in the earlier April 5
th
report that he
    had intended to send to the CPSO. Dr. Macpherson concluded his report with the
    following negative summary:

In summary, Dr. Gholami has had
    concerns raised about his clinical performance by senior members of the cardiac
    anesthesia team. His interactions with other staff and allied health care
    workers have consistently been described as aggressive, hostile and
    unprofessional. His recent outburst towards our administrative staff member
    seems to be typical of his behavioural profile. His recent attempts to
    undermine my professional relationship with Dr. Crawford, [are] contrary to the
    culture and values we abide by at The Hospital for Sick Children. For the above
    stated reasons, I wish to resign as Dr. Amir Gholamis supervisor in the
    Department of Anesthesia at The Hospital for Sick Children.

[26]

On
    June 8, 2011, Drs. Crawford and Macpherson advised the appellant by letter and
    in a meeting that as Dr. Macpherson had resigned as his supervisor, his Pathway
    4 Certificate would expire and he could no longer practise at HSC. The
    appellant was given a copy of Dr. Macphersons June 8
th
report to the
    CPSO. The appellant was then walked to his locker to collect his belongings and
    escorted off the premises.

[27]

On
    June 9, 2011, the CPSO advised the appellant that his Certificate automatically
    expired on the withdrawal of his supervisor.

[28]

By
    letter dated June 10, 2011, Dr. Wright advised the appellant that his Certificate
    had expired and that he no longer fulfilled the conditions for his appointment and
    could no longer exercise any privileges, including the delivery of clinical
    services at HSC.

[29]

By
    letter dated June 28, 2011, the Chair of the Registration Committee of the CPSO
    advised the appellant that his conditional licence had expired because of the
    withdrawal of his supervisor and the issues with his performance. The Chair
    also wrote: The Registration Committee advises you that it is very concerned
    with the information provided by Dr. Macpherson.

[30]

On
    June 28, 2011, the Chair requested additional information from Dr. Macpherson
    because of the CPSOs concern about the issues raised regarding the appellants
    clinical performance. Dr. Macpherson provided further information to the CPSO by
    letter dated July 15, 2011.

[31]

On
    July 22, 2011, the appellants counsel offered that the appellant would return
    to work at HSC to complete his Pathway 4 process to mitigate his damages. No
    response was provided.

[32]

The
    appellant sought and obtained employment in July 2011 as an anesthesiologist in
    the United States. Dr. Crawford and others from HSC sent very positive letters
    of reference on his behalf.

[33]

On
    July 25, 2012, the appellant commenced an action against the respondents,
    alleging that he was wrongfully dismissed and that he had suffered enormous
    damage to his reputation and his career prospects because of the respondents
    wrongful actions, which he alleged were in breach of their contractual duty of
    good faith. He sought damages for unlawful interference with economic
    relations, inducing breach of contract, civil conspiracy, misfeasance in public
    office, defamation, and negligent and/or intentional misrepresentations.
[2]
He also sought
    damages for mental distress, arising out of the alleged bad faith manner of his
    dismissal, and punitive damages.

[34]

At
    the commencement of trial, the respondents withdrew their allegation of just cause
    for dismissal but denied that the appellant was entitled to any damages,
    contending that he had caused his own damages by refusing to accept assignments
    in other areas of the Department in accordance with the terms of his employment
    contract. They claimed that they acted reasonably, honestly and in good faith
    in accordance with their duties to HSC and their obligations under the Pathway
    4 process.

C.

the trial judges reasons

[35]

The
    trial judge dismissed the action. She found that the contract between the
    appellant and HSC did not guarantee the appellant that he would work on cardiac
    cases; it provided that he would work as an associate in the anaesthesiology
    department. She stated, at para.  41:

It was also apparent from Dr.
    Gholamis evidence that he thought that the emphasis Sick Kids placed on his
    ability to integrate into the cardiac group was unreasonable and unnecessary.
    Unfortunately, this belief and attitude influenced Dr. Gholamis decision to
    refuse the offer made by Drs. Crawford and Macpherson at the May 21 meeting.
[3]
It is apparent from the evidence that if Dr. Gholami had accepted this offer,
    Dr. Macpherson would not have felt that he was forced to resign as Dr.
    Gholamis supervisor and that if necessary another more appropriate supervisor
    could have been found to replace Dr. Macpherson.

[36]

The
    trial judge did not characterize the nature of the appellants termination as a
    wrongful dismissal from employment, nor did she make a finding that HSC terminated
    the employment contract. Rather, she found no breach by HSC of the agreement.
    She noted that when integration into the cardiac group proved impossible, he
    could still work in the Department, as required by the agreement. The
    appellants own actions had destroyed any prospect of building or re-building
    cohesive, collaborative, and/or productive relationships with his colleagues,
    and that, in the circumstances, HSC had no obligation to find the appellant
    another supervisor. She determined that all the negative effects complained of
    by the appellant could have been either entirely avoided or greatly mitigated
    if the appellant had accepted HSCs May 2011 offer to work in another group
    within the Department. She made a further finding at para. 52:

I further find that Sick Kids did
    not breach its Agreement with Dr. Gholami as the Agreement could not be
    continued because Dr. Gholami lost his Certificate. On the basis of the
    evidence, it is my view that Sick Kids acted reasonably in the circumstances
    and did make reasonable attempts to assist Dr. Gholami and to mitigate his
    damages. Unfortunately, these attempts by Sick Kids were rejected by Dr.
    Gholami.

[37]

She
    rejected the claim of bad faith and intentional harm on the part of the respondents,
    stating, at para. 45:

I agree with the submissions of
    Sick Kids that there could not have been and should not have been a guarantee
    that Dr. Gholami be assigned to cardiac cases. There was extensive evidence
    with respect to the high standards and high quality of work performed by the
    Sick Kids cardiac group in very stressful cases. I cannot find any evidence of
    bad faith on the part of any of the Defendants. Rather, I find that having
    regard to the work performed by Sick Kids, they acted reasonably in insisting
    that Dr. Gholami be properly able to integrate into the cardiac group and that
    they did make every effort to integrate him into the group. Further, when such
    integration was not possible, they advised him he could still work as an
    associate in the anaesthesiology department, which was required by the
    Agreement.

[38]

With
    respect to the defamation claim, the trial judge observed that the individual
    respondents had testified that their communications with the CPSO were truthful
    and professional and that they claimed the communications were protected by
    qualified privilege. She further noted, at para. 26, that they had also
    submitted that their comments to the CPSO were expressions of opinion, and
    were fair comment, based on facts, which were true in substance, made in good
    faith and without malice. The trial judge accepted and agreed with these
    arguments.

[39]

The
    only explicit reference to the issues and evidence in respect of the
    appellants claim alleging mental distress appears at para. 18 of the trial
    judges reasons under the heading of Dr. Gholamis Pleadings:

Dr. Gholami pleads that he
    suffered mental distress as a result of the actions of the Defendants. Dr.
    Gholami testified that he was not able to sleep, and suffered migraine
    headaches as a result of the severe stress and anxiety. There is no medical
    evidence to support this claim. He claims that he is therefore also entitled to
    moral damages against Sick Kids in the amount of $500,000.

[40]

Having
    found no breach, the trial judge did not address this issue further, nor did
    she quantify the damages.

D.

ISSUES

[41]

At
    the hearing before this court, the appellant pursued the following interrelated
    arguments:

(i)

The trial judge
    erred in finding that the appellant was not wrongfully dismissed.

(ii)

The trial judge erred
    in failing to assess the conflicting evidence regarding the renewal of the
    appellants contract.

(iii)

The trial judge
    erred in failing to find that the respondents acted in bad faith and in failing
    to address the manner of dismissal and mental distress suffered by the
    appellant.

(iv)

The trial judge
    erred in failing to address defamation.

[42]

The
    respondents cross-appeal asking that, if the appellant is successful, damages
    be quantified and ordered.

E.

analysis

(1)

The trial judge erred in finding that the
    appellant was not wrongfully dismissed

[43]

In
    our view, the trial judge erred in concluding that the appellant was not
    wrongfully dismissed. The trial judge was required to address the legal issue of
    wrongful dismissal as it had been pleaded and presented at trial. HSC defended
    this action by pleading that it had just cause to terminate the appellants
    employment. At the outset of trial, HSC withdrew its allegation of just cause
    and contended that the appellant was entitled to damages in the range of three
    to six months, subject to an argument that he had failed to properly mitigate.
    Accordingly, given HSCs concession that it terminated the appellants
    employment without just cause and without notice or pay in lieu of notice, it
    was not open to the trial judge to find that HSC had not breached the
    employment agreement. In light of these concessions and the pleadings, the only
    conclusion open to the trial judge was that HSC had wrongfully terminated the
    appellants employment.

[44]

Moreover,
    the legal basis for the trial judges conclusion that HSC did not breach the
    contract is unclear. She appears to have accepted the respondents submission
    at trial that the appellant unreasonably refused their suggestion that he work
    in another area of the Department,
prior
to the termination of his
    employment by drawing an analogy to the principle that an employee has an
    obligation to mitigate his damages
after
termination. In other words,
    the appellant was the author of his own misfortune.

[45]

If
    this were so, the trial judge erred. A failure to mitigate cannot flow from the
    appellants refusal to accept work in non-cardiac cases prior to the
    termination of his employment.

[46]

We
    also note that the trial judge made reference, at para. 52 of her reasons, to
    the fact that the agreement could not be continued because the appellant lost
    his Certificate. Where a licence is a fundamental work requirement, a licence
    revocation or the inability to obtain a licence may constitute an event of
    frustration entitling the employer to terminate the employment:
Thomas v.
    Lafleche Union Hospital
(1989), 82 Sask. R. 70 (Q.B.), affd (1991), 93
    Sask. R. 150 (C.A.) and
Cowie v. Great Blue Heron Charity Casino
, 2011
    ONSC 6357, [2012] C.L.L.C. 210-010.

[47]

However,
    in this case, the Fresh as Amended Statement of Defence does not allege that
    the employment agreement was frustrated when the CPSO revoked the appellants
    Certificate. Moreover, the respondents acknowledged in their factum that the
    legal principle of frustration was not pleaded.

[48]

In
    consequence, in light of the way this case was framed, the only relevant issues
    regarding the wrongful dismissal claim for the trial judges determination should
    have been: (1) the damages that flowed from the dismissal; (2) whether the appellant
    had an obligation to mitigate his damages under his fixed-term contract by
    finding comparable employment
following
the termination of his
    employment;
[4]
(3) whether the respondents acted in bad
    faith in the manner of the appellants dismissal of employment; and (4) whether
    the appellant suffered any damages as a result of any bad faith conduct.

(2)

Quantification of the wrongful dismissal damages
    and the renewal of the contract

[49]

The
    trial judge did not assess the appellants damages in relation to his claims
    for wrongful dismissal. The respondents in their cross-appeal submit that if
    the appeal is allowed, this court should quantify the appellants damages,
    subject to a deduction for monies earned in mitigation.

[50]

We
    agree that the trial record permits us to determine the period for which those
    damages are payable.

[51]

The
    trial judge found that the appellant and HSC entered into a contract that was
    effective for a one-year term. While not stated by the trial judge in her
    reasons, there is no dispute that this contract was for a fixed term, subject
    to renewal if certain conditions were met, specifically, the appellants
    successful completion of the year in the Pathway 4 program. The respondents
    abandoned their defence of just cause for dismissal and therefore the trial
    judge was required to consider whether any damages flowed from the dismissal.
    This in turn required a consideration of whether, prior to the dismissal, the
    contract had been renewed.

[52]

In
    reviewing the respondents pleadings and evidence, the trial judge referred to
    the renewal issue at para. 24:

The Defendants also testified that
    no misrepresentations were made to Dr. Gholami. He knew the conditions of his
    Certificate and he knew the conditions of his Agreement with Sick Kids. They
    testified that he was not given any assurances of long-term, secure or stable
    work at Sick Kids and they did not induce him to work at Sick Kids. Further,
    they denied that he was encouraged to buy a house in Toronto. I accept their
    evidence on this point.

[53]

The
    evidence regarding the parties respective versions of what occurred with
    respect to any renewal differed. The appellant submits that the trial judge was
    required to confront these inconsistencies.

[54]

The
    appellant testified that Dr. Crawford confirmed his contract would be renewed
    in response to an inquiry made on or about April 12, 2011. The appellant
    maintained that he purchased a house in Toronto on the strength of Dr.
    Crawfords assurance.

[55]

In
    addition, Drs. Crawford and Macpherson in May 2011 indicated that the appellant
    should consider working elsewhere in the Department and that his return to
    cardiac would be revisited in a year or two.

[56]

Contrary
    to the appellants evidence, Dr. Crawford testified that, while he provided
    suggestions to the appellant on various neighbourhoods, the decision to buy a
    house was the appellants alone. He denied that he had renewed the appellants
    contract because he had no authority to do so at that point when the
    contractual conditions of a successful first year and the CPSOs Practice Ready
    Assessment had not been completed.

[57]

The
    appellant acknowledged that Dr. Crawford could not waive those conditions. Dr.
    Macpherson testified that the Practice Ready Assessment involved an independent
    external review by the CPSO and was not merely a formality.

[58]

Although
    there was a conflict in the evidence, nothing turns on this. The renewal was
    conditional on a satisfactory assessment by the CPSO. Moreover, even if Dr.
    Crawford made the alleged statement, he had no authority to renew the
    appellants contract before the end of the supervisory period and the
    completion of a successful Practice Ready Assessment by the CPSO. As a result, in
    these circumstances, there could be no early renewal of the appellants
    contract by Dr. Crawford. Accordingly, the appellants wrongful dismissal
    damages should be assessed only to October 4, 2011, the end of the fixed
    one-year supervisory period.

[59]

However,
    we are not able to quantify the wages that the appellant would have received if
    he had remained employed by HSC to October 4, 2011. The trial judge made no
    finding in this regard. It is not possible on this record to calculate the
    amount of the appellants damages because of the parties evidentiary dispute
    about his bonuses.

[60]

Neither
    the parties nor the trial judge considered whether the appellant had a duty to
    mitigate his damages under this fixed-term contract.

[61]

These
    remaining issues relating to the quantification of wrongful dismissal damages will
    have to be determined at the further trial of the specific issues identified.

(3)

The trial judge failed to provide adequate
    reasons on the remaining issues of bad faith and defamation

[62]

This
    brings us to the next issue. The appellant alleges that the reasons of the trial
    judge are devoid of a meaningful explanation for her findings of fact and that
    they prevent proper appellate review. In particular, the appellant contends
    that the trial judge failed to provide adequate reasons with respect to issues
    of credibility.

[63]

Appellate
    intervention may be warranted where the insufficiency of trial reasons prevents
    meaningful appellate review. Reasons that permit meaningful appellate review
    justify and explain the result, inform the losing party why he lost, enable
    informed consideration as to whether to appeal and enable the public to
    determine whether justice has been done:
R. v. Sheppard
, 2002 SCC 26,
    [2002] 1 S.C.R. 869, at para. 24;
Diamond Auto Collision Inc. v. The
    Economical Insurance Group
, 2007 ONCA 487, 227 O.A.C. 51, at para. 11;
Dovbush
    v. Mouzitchka
, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 21-22; see also
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10-35.
    Appellate courts take a contextual and functional approach to determining
    whether reasons permit meaningful and effective appellate review.

[64]

Even
    if the reasons of the trial judge do not on their face reveal "what"
    was decided and "why" it was decided, this court is obliged to
    consider the trial record to determine if the reasons are more comprehensible
    when read in that context:
Maple Ridge Community Management Ltd. v. Peel
    Condominium Corp. No. 231
, 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras.
    30-32. This is desirable as it eliminates the expense and delay associated with
    another trial.

[65]

It
    is well-established that a trial judge is not required to reconcile or refer to
    every discrepancy in the evidence. A particular challenge arises when
    credibility findings are required but not made, or if no analysis for the
    rejection of important conflicting evidence is provided. Where a case turns
    largely on a determination of credibility, a failure to sufficiently articulate
    how credibility concerns were resolved may constitute reversible error:
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26 and
Dovbush
,

at paras. 28-29.

[66]

We
    agree that the trial judge failed to explain her findings and conclusions on
    the issues of bad faith and defamation. She simply recited the respondents
    legal position and indicated that she agreed with it. She did not resolve the
    conflicting evidence between the appellants and respondents diametrically
    opposed versions of events. Nor can we determine the basis for the trial
    judges credibility findings that were central to the determination of that
    dispute.

[67]

It
    is well-established that an employer is required to treat the employee fairly on
    the termination of employment. An employers failure to act in good faith in
    the manner of an employees dismissal can lead to foreseeable and compensable
    damages:
Honda Canada Inc. v. Keays
, 2008 SCC 39, [2008] 2 S.C.R. 362,
    at paras. 58-59. That will be the case when, for example, the employer is
    untruthful, misleading or unduly insensitive:
Wallace v. United Grain
    Growers Ltd
., [1997] 3 S.C.R. 701, at para. 98;
Honda Canada Inc.
, at para. 57
.

[68]

The
    trial judge failed to engage in a thorough analysis of the circumstances
    surrounding the dismissal.

[69]

The
    trial judge erred by focusing only on the appellants conduct and confining her
    analysis to the appellants May 30, 2011 letter. As a result, she failed to
    consider whether the respondents actions (and inactions) following the receipt
    of that letter amounted to bad faith conduct, resulting in the damages claimed
    by the appellant. Without limiting the necessary analysis, we point to the
    following examples.

[70]

The
    trial judge did not consider the timing of the dismissal. The appellant was
    told in the May 30
th
meeting that a decision would be made at a
    later departmental meeting about the appellants desire to work on cardiac
    cases until his departure. However, by that date, Dr. Macpherson had already
    made the decision that he could no longer act as the appellants supervisor.

[71]

She
    also did not consider the failure of the respondents to respond to the
    appellants letters of May 30
th
and June 3
rd
, or to give
    earlier notice of Dr. Macphersons withdrawal and the termination of the
    appellants employment, in the circumstances of this case.

[72]

Nor
    did the trial judge critically analyze Dr. Macphersons June 8
th
letter to the CPSO, which was an important component of the appellants
    allegation of bad faith conduct in the manner of his dismissal. The June 8
th
letter set out alleged problems with the appellants practical competencies,
    some of which pre-dated his earlier very positive April 5
th
report that
    Dr. Macpherson had intended to send to the CPSO. The June 8
th
letter
    stood in stark contrast to the April 5
th
report. As Dr. Macpherson
    admitted during his cross-examination, up to April 5
th
, there were
    no issues with the appellants performance that he felt should be reported to the
    CPSO, nor was the appellant told there were any serious issues with his
    performance. The serious discrepancies between these reports merited
    consideration by the trial judge.

[73]

Moreover,
    the trial judge did not consider the discrepancy between the concerns expressed
    in the June 8
th
report and the subsequent positive letters of
    recommendation by Dr. Crawford and two other members of the cardiac group, Drs.
    Igor Luginbuehl and Steven Berdock. Neither did she consider the subsequent
    assurances made by Dr. Crawford to the appellant that there were no clinical
    concerns behind the end of your appointment and that the issues were of an
    interpersonal nature in a small cardiac group.

[74]

The
    issue of Dr. Macphersons June 8, 2011 report to the CPSO is also relevant to
    the appellants claim for defamation. In her reasons, the trial judge sets out
    the respondents defence that their communications with the CPSO about the
    appellant were truthful and professional, expressions of opinion, and were
    fair comment, based on facts, which were true in substance, made in good faith
    and without malice and on an occasion of privilege. Other than those
    references, the trial judge makes no further mention of the appellants claim
    for defamation, other than to say that she agreed with the respondents
    submissions.

[75]

The
    trial judges blanket finding that the respondents did not act in bad faith is
    not adequate to dispose of the appellants claim for defamation. The June 8
th
report to the CPSO grounds the appellants defamation claim. In consequence,
    the trial judge was required to undertake some analysis of the report in the
    context of the defamation claim. She was required to determine whether it was
    defamatory of the appellant, whether it was subject to the defence of qualified
    privilege, whether it was motivated by express malice, and if so, whether the
    defence of qualified privilege and fair comment failed, and whether the
    appellant suffered any harm as a result of it.

[76]

In
    sum, the trial judge failed to refer to and critically analyze relevant
    evidence and failed to make essential credibility findings in accepting certain
    evidence on the issues of bad faith and defamation. It is not possible for this
    court to make the factual findings necessary to determine these issues on the
    existing trial record and, accordingly, we return these issues to a judge of
    the Superior Court for determination.

[77]

These
    reasons should not be interpreted as a reflection of the strengths or weaknesses
    of the issues in this case. Determination of these issues will require the presiding
    judge to properly assess afresh all the relevant evidence and to make the
    findings of fact necessary to resolve the parties dispute.

[78]

Having
    determined that a trial of the issues is required with respect to the
    allegation of bad faith conduct in the manner of dismissal and defamation, we
    make no determination of any damages that might flow in that regard. In
    considering the damages issue, the judge hearing the trial of these issues will
    have to consider whether the absence of medical evidence of mental distress is
    fatal to a claim for damages in the circumstances of this case.

F.

Disposition

[79]

For
    these reasons, we allow the appeal and conclude that the appellant was
    wrongfully dismissed. We dismiss the cross-appeal. The following issues are
    remitted to a judge of the Superior Court for determination: (1) the
    quantification of wrongful dismissal damages; (2) whether the respondents
    engaged in bad faith conduct in the manner of the appellants dismissal; (3)
    defamation; and (4) if the appellant establishes bad faith conduct and/or
    defamation, the quantification of any resulting damages.

[80]

As agreed, the appellant is entitled to his partial indemnity costs of
    this appeal in the amount of $25,000, inclusive of disbursements and applicable
    taxes.

[81]

Given that we have ordered a further proceeding on certain issues, costs
    of the trial will be in the cause. As such, there is no need to consider the
    costs, including the scale of costs,
awarded
    by the trial judge.

Released: September 27, 2018

S.E. Pepall J.A.

L.B. Roberts
    J.A.

B.W. Miller J.A.

[1]

The restricted Certificate of Registration
    applied during the supervisory period. Following the one-year supervisory
    period and successful completion of the Practice Ready Assessment by the CPSO,
    the appellant would have been eligible for a permanent Certificate to practice
    independently in the scope of practice that was assessed.

[2]
The appellant does not appear to have pursued his claim for civil
    conspiracy against the individual respondents at trial
.
    At
the conclusion of trial, he abandoned his claim
    against Dr. Macpherson for alleged misfeasance in public office. The appellant
    does not advance any appeal in respect of the dismissal of his claims for
    unlawful interference with economic relations, inducing breach of contract,
    civil conspiracy, negligent misrepresentation, or punitive damages.

[3]

Based on the record, it would appear that
    the meeting took place on May 12 and that the trial judges reference to a May
    21 meeting was a typographical error.

[4]

This is assuming that the appellant
    had a duty to mitigate in the circumstances of this fixed-term contract, which
    is not always the case: see, for example,
Howard v. Benson Group Inc. (The
    Benson Group Inc.)
, 2016 ONCA 256, 129 O.R. (3d) 677, at para. 44 and
Mohamed
    v. Information Systems Architects Inc
.,
2018
    ONCA 428, 423 D.L.R. (4th) 174, at para. 26.


COURT OF APPEAL FOR
    ONTARIO

CITATION:
Kunuthur v.
    Govindareddigari, 2018 ONCA 730

DATE: 20180910

DOCKET: C65192

Sharpe, Juriansz and Roberts
    JJ.A.

BETWEEN

Srichand
    Reddy Kunuthur

Applicant (Respondent)

and

Deepti Govindareddigari

Respondent (Appellant)

Harminder Dhillon and Sukhman
    Grewal, for the appellant

Manjeet Kaur and Kavita
    Ramnanan, for the respondent

Heard: August 16, 2018

On appeal from the order of Justice Jamie K. Trimble of the
    Superior Court of Justice, dated March 1, 2018.

REASONS FOR DECISION

[1]

This is a custody dispute concerning
    the parties son who is 13 years old. He is currently living in India where he
    has been for the past five years.

[2]

The mother and father married in 2004. Shortly
    thereafter, they relocated to the U.S. where the father had a job. The son was
    born while they were there and is an American citizen.

[3]

The family moved to Brampton in 2011
    and became permanent residents. In April 2013, while the father was away for
    business, the mother took the son to India, she said to visit her ill mother. When
    the father returned from the business trip, all of the sons personal
    belongings had been removed.

[4]

In June and July 2013, the mother
    brought petitions for divorce and custody in India.

[5]

On October 9, 2014, on the fathers
ex parte
motion,
    Sproat J. granted an order that the mother return the child to Ontario and that
    the father be granted temporary custody. The mother did not appeal or move to
    set aside the order, and did not return the child to Ontario.

[6]

The father brought a motion to have the
    mother found in contempt of Sproat J.s order, which came on before the motion
    judge on March 1, 2018. The mother appeared before the motion judge, admitted
    she took the child, having advised the father while on the airplane that they
    were leaving to visit her ill mother, and stated she wanted to return to
    Ontario and address custody and access here. She explained that she had been
    unable to return the son to Ontario because his U.S. passport had expired.

[7]

The motion judge found that the childs
    habitual residence was Ontario and so proceeded on the basis that the Ontario
    courts had jurisdiction. However, in light of the mothers submissions, he did
    not find her in contempt but ordered she surrender any passports she held until
    she returned the child to Ontario. He also made a final order granting the
    father sole custody.

[8]

The mother appeals from the motion
    judges order, submitting that he erred by finding that Ontario has
    jurisdiction and by making a final order granting sole custody to the father.

[9]

Both parties tender fresh evidence. The
    fresh evidence establishes that the child has developed strong links to India.
    He is well settled in school and, it seems, does not wish to return to Canada. The
    fresh evidence also provides information about the proceedings in India.

A.

Jurisdiction

[10]

The motion judge did not discuss the
    basis of the courts jurisdiction in any detail, no doubt as the mother said
    before him that she wanted to return to Ontario to address custody and access
    to the child. The transcript of the hearing shows she said so repeatedly.
    However, given that she was facing contempt unrepresented, her counsel has persuaded
    us that what she said should be understood as indicating an intention to return
    to Ontario to oppose the fathers Ontario application by contesting Ontarios
    jurisdiction, as stated in her Answer to the fathers application.
    Consequently, and in light of the abundant fresh evidence filed, we consider
    the issue of jurisdiction more fulsomely.

[11]

The jurisdiction of the Ontario courts
    to determine the custody of the son is governed by s. 22 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12. The section provides:

22 (1) A court shall only exercise
    its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually
    resident in Ontario at the commencement of the application for the order;

(b) [not relevant]

(2) A child is habitually resident in
    the place where he or she resided,

(a) with both parents;

(b) where the parents are living
    separate and apart, with one parent under a separation agreement or with the
    consent, implied consent or acquiescence of the other or under a court order;
    or

(c) with a person other than a
    parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) The removal or
    withholding of a child without the consent of the person having custody of the
    child does not alter the habitual residence of the child unless there has been
    acquiescence or undue delay in commencing due process by the person from whom
    the child is removed or withheld.

[12]

Relying on s. 22(3), the mother argues
    the father has acquiesced in a change to the childs habitual residence by unduly
    delaying the proceedings. The mother submits that applying the hybrid
    approach to habitual residence adopted by the Supreme Court in
Office of the Childrens
    Lawyer v. Balev
, 2018 SCC 16, 5 R.F.L. (8th) 1, the child had developed
    more extensive and deeper links connecting him to India than Canada by the time
    of the fathers Ontario application.

[13]

The mother also contends that the
    Ontario court should decline jurisdiction because the father has attorned to
    the courts in India.

(i)

Delay

[14]

The mother removed the child to India
    in April 2013. The father received the mothers notice requesting his consent
    to a mutual divorce and asked for two months to respond. When the mother
    started proceedings for custody in India in July 2013, the father responded by
    seeking the dismissal of the mothers custody petition on the grounds that the
    Indian court did not have jurisdiction.

[15]

Although we accept the fathers
    explanation that the almost three-and-a-half-year delay in enforcing the order
    of Sproat J. is due to the fact that he was not aware of when the mother may
    have been present in Canada, we question whether the fathers initial delay in
    commencing an Ontario proceeding was undue.

[16]

The child was taken to India in April
    2013, but the father did not commence a custody application in Ontario until
    more than a year later at the end of June 2014. The father says he received
    confusing and incorrect advice from the police, duty counsel and a lawyer.
    While the father says he approached a lawyer, he filed no evidence and does
    not claim that he actually retained a lawyer to obtain proper advice. In the
    time that elapsed, it seems to us he had ample opportunity to do so.

[17]

However, it is not necessary to decide
    the issue of delay as we are satisfied the father has attorned to the courts in
    India and the Ontario courts should decline exercising jurisdiction.

(ii)

Attornment

[18]

A party attorns to a courts
    jurisdiction when it goes beyond simply challenging the jurisdiction of that
    court and, instead, litigates a claim on the merits: see
Van Damme v. Gelber
,
    2013 ONCA 388, 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused,
    [2013] S.C.C.A. No. 342; and
Wolfe v. Wyeth
, 2011 ONCA 347, 282 O.A.C. 64,
    at para. 44.

[19]

After the mother commenced her custody
    petition in the Family Court in India, the father also filed a petition in the
    Family Court in India in October 2013 disputing its jurisdiction. He also
    brought a Civil Revision Petition before the High Court for a stay of the Family
    Court proceeding relating to custody. On April 17, 2015, the High Court made an
    interim order refusing to stay the Family Court custody proceedings, stating
    the Family Court could deal with the issue of jurisdiction if raised by the
    father.

[20]

The parties provided limited assistance
    in understanding what has happened since then. As of June 14, 2018, it seems
    the father has not obtained a final ruling on his Civil Revision Petition to
    the High Court. The custody petition has been proceeding in the Family Court. No
    ruling of the Family Court relating to jurisdiction has been placed before us.
    The mother submits the father has failed to take any steps to obtain any ruling
    the Family Court does not have jurisdiction. In the Family Court the father has
    made interlocutory applications for interim custody of his son while the father
    was in India, however, there is nothing to show he has abandoned his position regarding
    jurisdiction of the Family Court over the mothers custody petition.

[21]

That said, the father has filed a
    counter petition in India to the mothers petition for divorce. In that counter
    petition, he has invoked s. 6 of the
Hindu Minority and Guardianship Act, 1956
(which he claims clearly lays down that the guardian of [the] Hindu minor in
    respect of the minors person  is the father). The final relief he seeks in
    his counter petition is dismissal of the mothers petition for divorce and that
    custody of the minor boy may be ordered to be given to the respondent with
    immediate effect.

[22]

Even though the fathers present
    position in the custody proceedings in India is unclear, it appears to us that,
    by seeking a final order of custody on the basis of Indian law in the divorce
    proceeding in India, the father has attorned to the courts in India. The
    proceedings in India are well underway. On that basis, we conclude the Ontario
    court should have declined jurisdiction.

B.

Custody

[23]

In any event, the motion judge erred by
    making a final custody order in the fathers favour in a summary manner. Subsection
    24(1) of the
Childrens
    Law Reform Act
states that the merits of a custody application
    shall be determined on the basis of the best interests of the child, in
    accordance with subsections (2), (3) and (4). Subsection 24(2) reads as
    follows:

Best interests of child

(2) The court shall consider all
    the childs needs and circumstances, including,

(a) the love, affection and
    emotional ties between the child and,

(i) each
    person, including a parent or grandparent, entitled to or claiming custody of
    or access to the child,

(ii)
    other members of the childs family who reside with the child, and

(iii)
    persons involved in the childs care and upbringing;

(b) the childs views and
    preferences, if they can reasonably be ascertained;

(c) the length of time the child
    has lived in a stable home environment;

(d) the ability and willingness of
    each person applying for custody of the child to provide the child with
    guidance and education, the necessaries of life and any special needs of the
    child;

(e) the plan proposed by each
    person applying for custody of or access to the child for the childs care and
    upbringing;

(f) the permanence and stability
    of the family unit with which it is proposed that the child will live;

(g) the ability of each person
    applying for custody of or access to the child to act as a parent; and

(h) any familial relationship
    between the child and each person who is a party to the application.

[24]

The motion judge was required to
    consider the factors set out in s. 24(2), in particular, the overarching factor
    of the best interests of the child. There is nothing in the record before us to
    indicate that he did so.

C.

Conclusion

[25]

The appeal is allowed. The order of the
    motion judge is set aside and the fathers motion for custody is stayed. Costs of
    the appeal and the motion to stay are fixed in the mothers favour in the
    amount of $20,000, all inclusive.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: LaFramboise v. Kaisersingh, 2018 ONCA 734

DATE: 20180910

DOCKET: C64742

Sharpe, van Rensburg and Brown JJ.A.

BETWEEN

Doug LaFramboise

Plaintiff (Appellant)

and

Varindra Kaisersingh and Cindy Kaisersingh

Defendants (Respondents)

Doug LaFramboise, in person

D. Jared Brown, for the respondents

Heard and released orally: September 6, 2018

On appeal from the order of Justice Laura A. Bird of the Superior
    Court of Justice, dated November 28, 2017.

REASONS FOR DECISION

[1]

The appellant, Doug LaFramboise, a
    lawyer, appeals from the order of the motion judge granting the respondents
    summary judgment dismissing his action to collect an account for legal services
    in the amount of $51,493.37.

[2]

In his factum, the appellant raises a
    single ground of appeal: the motion judge erred in concluding that there was no
    material non-disclosure or fraudulent representation by, or on behalf of, the
    respondents in respect of the release of the account signed by Mr. Pomer or
    during the proceeding that the respondents commenced to assess the account: at
    para. 30. The thrust of his submissions  and the grounds of appeal enumerated
    in his notice of appeal - is that the motion judge failed to assign proper
    weight to certain evidence in reaching that conclusion.

[3]

We see no error by the motion judge. In reaching her conclusion, she made
    several critical findings of fact that were fully supported by the evidence.

[4]

First, she found, at para. 25, that Mr. Pomer was fully aware of the
    appellants outstanding action against the Kaisersinghs 14 months before he
    signed the release in respect of the legal account. That finding was supported
    by the documentary evidence, in particular Ms. Kaisersinghs July 18, 2014
    email to Mr. Pomer attaching the appellants statement of claim: at para. 24.

[5]

Second, she found the appellant was aware of the assessment proceeding no
    later than July 2014: at para. 28. That finding was supported by the July 10, 2014
    letter from the respondents counsel to the appellants then counsel informing
    him of the assessment and providing the court file number for the assessment.
    It was open to the appellant to seek to be added as a party to the assessment;
    he did not do so.

[6]

Third, she found the respondents were entitled to rely on the statement
    of appellants counsel, in his July 15, 2014 letter, that he would be sending
    the assessment officer a copy of the appellants statement of claim: at paras. 28-29.

[7]

Given those reasonable findings of fact, the motion judge did not err in
    concluding there was no material non-disclosure or fraudulent representation by
    or on behalf of the respondents.

[8]

The appeal is dismissed.

[9]

The appellant shall pay the respondents
    their costs of the appeal, including the motion before Roberts J.A., fixed in
    the amount of $15,000, inclusive of disbursements and applicable taxes.

Robert
    J. Sharpe J.A.

K. van
    Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Markham Village Shoppes Limited v. Gino's Pizza
    Ltd., 2018 ONCA 782

DATE: 20180926

DOCKET: C64999

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Markham Village Shoppes Limited

Plaintiff (Respondent)

and

Ginos Pizza Ltd.
,
    Ginos Pizza Inc., Baljit Gangar, Vick Darubra, Martin Bernard, Redwater
    Capital Realty Inc. and Haroon Amadi

Defendants (
Appellant
)

John G. Morrissey, for the appellant

Mitchell Wine, for the respondent

Heard: August 31, 2018

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated January 24, 2018, with reasons reported at
    2018 ONSC 565.

ADDENDUM

[1]

Subsequent to the release of our decision in this matter on September
    13, 2018, we received correspondence from counsel raising an issue regarding
    the disposition of the costs of the original application.

[2]

Our decision allowed the appeal and set aside the summary judgment that
    had been granted below.  Our decision consequently set aside the disposition of
    costs made in that judgment.  We directed that the matter be returned to the
    Superior Court of Justice for a trial for the quantification of damages.

[3]

In our view, the damages trial is the appropriate forum for the
    determination of which party, if either, should receive the costs of the
    original summary judgment motion.  To be clear, the costs of the summary
    judgment motion are reserved to the judge hearing the damages trial.

Released: September 26, 2018

P. Lauwers J.A.

B.W. Miller J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McGregor v. OSullivan Animal Hospital, 2018 ONCA
    776

DATE: 20180924

DOCKET: C65134

Juriansz, Brown and Huscroft JJ.A.

BETWEEN

Colin McGregor and Alison McGregor

Plaintiffs (Appellants)

and

OSullivan Animal Hospital, Jennifer Duff and
    Jennifer Lund

Defendants (Respondents)

Colin McGregor, acting in person

Ashley Peacock, for the respondents

Charles Sinclair, for David Elmaleh

Heard and released orally: September 20, 2018

On appeal from the judgment of Justice John R. McCarthy
    of the Superior Court of Justice, dated February 6, 2018.

REASONS FOR DECISION

[1]

The appellants appeal from a summary judgment dismissing their action
    against the respondents following a hearing on January 31, 2018. The hearing
    had been scheduled to proceed on February 1, 2018. On January 29, the court
    rescheduled the motion to January 31, 2018. The appellants did not receive the
    email notifying them of the change because they were in an area without
    internet.

[2]

We are satisfied the appellants did not receive adequate notice that the
    motion would be heard on January 31.

[3]

We would have afforded the appellants a full opportunity to make the
    submissions they would have made to the motion judge had they been present, but
    neither side included in their appeal books the material the appellants had
    filed before the motion judge. As a result, it was impossible to determine
    whether remitting the matter to the Superior Court could be avoided.

[4]

In the circumstances, we allow the appeal and set aside the summary
    judgment. The respondents motion may be rescheduled on proper notice to the
    appellants.

[5]

In light of rules 61.05(1) and (2), it was the respondents
    responsibility to ensure the appellants material before the motion judge was
    filed in this court. The appellants included in the Appeal Book the material
    they considered was required for the appeal. The respondents required the
    missing material to support their argument the appeal should not be allowed in
    any event as summary judgment was inevitable. Consequently, we fix costs in
    favour of the appellants in the amount of $1,500 all inclusive.

R.G. Juriansz J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743

DATE: 20180911

DOCKET: M49293/C58536

Doherty, Brown and Roberts JJ.A.

BETWEEN

Midland Resources Holding Limited
, Alex Shnaider and Eduard Shyfrin

Plaintiffs (Respondents)

and

Michael Shtaif
, The Estate of
    Anthony Groag, Gregory Roberts,
Eugene
    Bokserman
, Ilya Entin, Irwin Boock a.k.a.
    Irwin Krakowsky and Stanton De Freitas

Defendants (Appellants)

AND BETWEEN

Michael Shtaif, Gregory Roberts, Eugene Bokserman, and
    Ilya Entin

Plaintiffs by counterclaim (Appellant by counterclaim)

and

Midland Resources Holding Limited, Alex Shnaider and Eduard
    Shyfrin

Defendants by counterclaim (Respondents by counterclaim)

Michael Shtaif and Eugene
    Bokserman, acting in person

Symon Zucker, Kenneth Prehogan and
    Kim A. Mullin, for the respondent Midland Resources Holding Limited

Heard: In writing

REASONS FOR
    DECISION

[1]

By reasons released January 15, 2018 this court dismissed the
    motion by Michael Shtaif and Eugene Bokserman seeking a reconsideration of the
    April 20, 2017 decision of this court (the Appeal Order) dismissing Boksermans
    appeal of the U.S. $1.5 million judgment against him and allowing, in part, the
    appeal by Shtaif, reducing the judgment against him to U.S. $8.27
    million:
Midland Resources Holding Limited v. Shtaif
, 2017 ONCA
    320, 135 O.R. (3d) 481.

[2]

Shtaif and Bokserman now bring a second motion for reconsideration.
    We have considered: their motion materials filed in June 2018; their reply
    motion materials filed at the end of July 2018; the missing exhibit filed at
    the end of August, in response to the request of the panel; and the further
    materials filed on September 5, 2018.

[3]

We dismiss their motion for four reasons.

[4]

First, although the moving parties style their motion as one seeking to
    set aside or vary the Appeal Order on the grounds of fraud, mistake and/or the
    existence of significant new material facts, the affidavit of Bokserman filed
    in support of the second motion to reconsider for the most part simply repeats
    the arguments they made on the appeal about errors made by the trial judge,
    including the argument that Midland Resources Holding Limited (Midland) did
    not suffer any damages. Those arguments were considered and dealt with by this
    court in its reasons for the appeal and the first motion to reconsider. In
    recycling arguments already considered and rejected by this court, the moving
    parties are abusing the process of this court:
Hoang v. Mann Engineering
    Ltd.
, 2015 ONCA 838, at paras. 13-15.

[5]

Second, the moving parties contend this court misunderstood the basis
    for their first motion to reconsider. They argue they brought their motion
    under r. 59.06(1) of the
Rules of Civil Procedure
 the accidental
    slip or omission rule  not r. 59.06(2)(d), which enables a party to seek to
    obtain other relief than that originally awarded.

[6]

The moving parties notice of motion dated August 22, 2017 for their
    first motion to reconsider clearly stated, in para. 25, that they were relying
    on r. 59.06(2)(d). In their factum on the first motion to reconsider, the
    moving parties also advanced an argument under r. 59.06(1). However, as this
    court stated in para. 9 of its reasons on that motion, the moving parties are
    not simply pointing out a mathematical oversight in the trial judges damage
    calculation, as they contend; they are advancing a theory of damages not argued
    on the appeal. Rule 59.06(1) clearly had no application in those
    circumstances.

[7]

Third, Bokserman deposes that in February 2018 the moving parties
    learned of litigation between the principals of Midland, Alex Shnaider and Eduard
    Shyfrin, in the courts of Guernsey that had resulted in a February 14, 2017
    order of the Royal Court of Guernsey, Ordinary Division, winding-up Midland
    (the Winding-Up Order). The order was affirmed on appeal on July 20, 2017.
    The moving parties contend that as a result of the Winding-Up Order, Midland
    had no standing to proceed with the appeal.

[8]

There is no merit in this submission. Midland obtained judgment against
    Bokserman and Shtaif as a result of the February 19, 2014 trial decision. That
    judgment was affirmed on appeal, although the amount of the judgment against
    Shtaif was reduced.

[9]

At the time the appeal was argued in October 2016, no winding-up order
    had been made in respect of Midland. Rule 61.13.1, which applies only to the
    transfer or transmission of an
appellants
interest or liability while
    an appeal is pending, has no application in the circumstances of this appeal.
    As well, the moving parties have filed no evidence that indicates the
    subsequent Winding-Up Order restricts the ability of the company or its joint liquidators
    to collect on its judgment against Bokserman and Shtaif. On the contrary, the
    Winding-Up Order specifically contemplates that Midlands liquidators will
    attempt to recover any assets belonging to or due to Midland. One such asset is
    the judgment against the moving parties.

[10]

Finally,
    Boksermans August 29, 2018 affidavit attached two articles published in
    certain Russian media reporting that criminal charges for economic offences recently
    were laid against Valentin Vinogradov and Peter Ganus, two witnesses who were
    called by Midland at the trial of this action. Bokserman suggests that since
    charges have been brought against Vinogradov and Ganus, their evidence given at
    trial cannot stand. The subject-matter of the charges reported in the Russian
    media does not involve the subject-matter of the dispute adjudicated at the
    trial of this action. It has no relevance to the moving parties motion under
    r. 59.06.

[11]

Accordingly,
    the moving parties motion for reconsideration is dismissed.

[12]

In
    its July 6, 2018 submissions letter, Midlands counsel did not seek costs of
    the motion. Accordingly, we will not order any.

[13]

Midland
    does seek an order prohibiting the moving parties from making further motions
    in this proceeding without leave. Midland notes that the moving parties have
    not satisfied the $5,000 cost award made in the first motion to reconsider and submits
    that the motion by the moving parties was frivolous, vexatious and an abuse of
    the process of the court: r. 2.1.01(1).

[14]

We
    conclude such an order is appropriate in the circumstances. The moving parties
    essentially sought to reargue their appeal on their first motion to reconsider.
    That motion having been dismissed after a written hearing  a procedure
    commonly used by this court on r. 59.06 motions  the moving parties have
    renewed their effort to re-argue the appeal. That is not a proper use of r.
    59.06; it is an abuse of the process of the court. Consequently, we further
    order that Shtaif and Bokserman cannot initiate any further proceeding in this
    court unless they: (i) pay Midland the outstanding costs of the appeal and the
    first motion to reconsider; and (ii) obtain the leave of this panel to bring
    the proceeding.

[15]

It
    should be obvious to the moving parties that any further recourse in respect of
    the judgment against them lies to the Supreme Court of Canada, not to this
    court:
Hoang
, at para. 7.

Doherty J.A.
David Brown J.A.
L.B. Roberts J.A.