COURT OF APPEAL FOR ONTARIO

CITATION: Champion Products Corp. v. Intact Insurance
    Company, 2020 ONCA 111

DATE: 20200212

DOCKET: C63947

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

Champion
    Products Corp., Walkerville Commercial

Centre Inc., formerly
    1206738 Ontario Limited,

and 19298446 Ontario
    Inc., carrying on business as

The
    Party Warehouse

Plaintiffs (Respondents/

Appellants by way of cross-appeal)

and

Intact Insurance
    Company, formerly AXA Insurance

(Canada),
    and AXA Insurance (Canada)

Defendants (Appellants/

Respondents
    by way of cross-appeal
)

Paul J. Pape and Brodie Noga, for the
    appellants/respondents by way of cross-appeal

Myron W. Shulgan, Q.C. and Donald Leschied, for the
    respondents/appellants by way of cross-appeal

Heard: November 5, 2019

On appeal from the
    order of Justice George W. King of the Superior Court of Justice, dated May 18,
    2017, with reasons reported at 2017 ONSC 1740.

Simmons
    J.A.:

I.

introduction

[1]

The respondents,
collectively
    Champion, are related companies that owned or occupied a commercial building
    in Windsor, Ontario. Much of the building was destroyed by fire on February 15,
    2011.

[2]

The appellants, collectively Intact, insured the destroyed building
    under a multi-peril commercial insurance policy.

[3]

The main issue on appeal is
    whether, on a summary judgment motion, the motion judge erred in holding Intact
    must indemnify Champion for recoverable depreciation (essentially, the
    difference between the destroyed buildings actual cash value at the time of
    the fire, and the cost to replace it).

[4]

Under a rider to the policy,
    Champion was entitled to replace the destroyed building at the same or a
    different site and be indemnified for recoverable depreciation provided it
    effected replacement with due diligence and dispatch and a building of like
    kind and quality.

[5]

Nearly two years after the fire, Champion had not replaced the destroyed
    building. On February 6, 2013 it issued a statement of claim seeking indemnity
    under its policy and damages.

[6]

On May 6, 2013 the parties entered into an agreement (the May 6, 2013
    settlement agreement) under which they settled some of the claims in the
    pending action. They agreed on the actual cash value and replacement cost of
    the destroyed building; a formula for determining the recoverable depreciation payable
    if Champion replaced it; and a requirement that Champion account for land
    acquisition costs if it effected replacement at a different site. They also
    agreed that Champion would have 24 months from May 6, 2013 to proceed with
    replacement of the destroyed building, failing which it would be deemed to have
    forever waived and forfeited any claim for recoverable depreciation.

[7]

Champion subsequently entered into two agreements to purchase
    replacement properties prior to the expiry of the 24-month deadline. It terminated
    the first agreement in April 2014. On February 17, 2015, Champion entered into
    an agreement to purchase a Scarborough property to replace the destroyed
    building.

[8]

Shortly before the expiry of the 24-month deadline, on April 29, 2015, Intact
    confirmed the Scarborough property met the like kind and quality requirement.

[9]

On May 1, 2015 the parties exchanged correspondence confirming they had reached
    settlement of the outstanding issues regarding the building loss claim on the
    basis of a further payment of $3 million (the May 1, 2015 agreement). However,
    the May 1, 2015 agreement was subject to various conditions, including Champion
    closing the February 17, 2015 agreement to purchase the Scarborough property.

[10]

On May 12, 2015, Champion entered into a revised agreement to purchase
    the Scarborough property. The revised agreement required the vendor to complete
    certain roof repairs prior to closing.

[11]

Without advising Intact, on November 9, 2015 Champion entered into an agreement
    to purchase a different replacement property, this time in Pickering. Shortly
    thereafter, in mid-November 2015, Champion terminated its agreement to purchase
    the Scarborough property.

[12]

Intact learned of these developments on November 27, 2015. Almost three months
    later, on February 16, 2016, Intact informed Champion that as a result of
    Champion failing to close the purchase of the Scarborough property Champion had
    forfeited its entitlement to recoverable depreciation under the policy and the
    May 6, 2013 settlement agreement as quantified in the May 1, 2015 agreement.

[13]

During the intervening period, however, Intact had taken steps to assess
    the suitability of the Pickering property as a replacement for the destroyed
    building.

[14]

Champion subsequently moved for summary judgment, seeking a declaration
    that Intact had waived Champions obligation to replace the destroyed building
    within 24 months of May 6, 2013. In the alternative, Champion claimed relief
    from forfeiture.

[15]

The motion judge found that the May 6, 2013 settlement agreement
    required Champion to complete the purchase of another building of like kind and
    quality within the stipulated 24-month replacement deadline. However, he
    concluded the May 1, 2015 agreement effectively amended the May 6, 2013
    settlement agreement through a qualified waiver of the 24-month replacement deadline,
    which instead required Champion to complete the purchase of the Scarborough property.

[16]

Further, the motion judge held that, by its conduct after November 27,
    2015, Intact had waived Champions failure to complete the purchase of the
    Scarborough property and its right to deem that Champion had forfeited any
    claim for recoverable depreciation. He concluded that Champion was therefore
    entitled to be indemnified for recoverable depreciation. However, he also found
    that Intacts waiver was limited. All that was waived was the condition that Champion
    had to close the Scarborough purchase to receive $3,000,000; the waiver did not
    extinguish the policy or subsequent agreements under which the replacement
    property issue was settled.

[17]

Having made those findings, the motion judge granted partial summary judgment
    to Champion for $3,000,000. He did not reach the issue of relief from
    forfeiture.

[18]

On appeal, Intact argues the motion judges findings were premised on an
    erroneous conclusion that Intact had to give notice to Champion that by failing
    to close the Scarborough transaction, it had forfeited its entitlement to
    recoverable depreciation under the policies and the subsequent agreements. Intact
    asserts the policies and agreements were forfeited in accordance with their
    terms when Champion failed to complete the Scarborough purchase. By its
    subsequent conduct Intact did no more than fulfill its good faith obligations
    as an insurer.

[19]

Champion responds that the motion judges finding that Intacts conduct
    in May and June 2015 was a
qualified
waiver of its entitlement to deem
    Champion had forfeited its right to replace its destroyed building was an error.
    Rather, Intacts conduct was a complete waiver of its right to rely on the
    24-month deadline. In any event, the motion judges finding that Intact waived
    Champions failure to close the Scarborough transaction is entitled to
    deference.

[20]

By way of cross-appeal, Champion seeks a declaration that on May 1, 2015
    and thereafter Intact waived the 24-month deadline in the May 6, 2013 settlement
    agreement. In the alternative, Champion seeks an order that it is entitled to
    relief from forfeiture.

[21]

At the request of the panel, in post-hearing submissions the parties
    confirmed that Champion never completed the Pickering transaction. The panel
    also requested that Champion clarify the appropriate remedy for its relief from
    forfeiture claim. Champion responded that the remedy should remain a monetary
    award of damages  of $3,000,000. In the alternative, Champion requested a
    trial of the issue of the amount Intact should have paid as recoverable
    depreciation to fund the purchase of the Pickering property. In support of its
    position, Champion asserted that to simply find that Champion still had the
    right to purchase a replacement property would be unjust because of the
    dramatic rise in the cost of commercial real estate in the Greater Toronto Area.

[22]

Intact asserts that Champions original failure and current refusal to
    replace the destroyed building disentitle it to relief from forfeiture
.

[23]

For the reasons that follow, I would allow the appeal, set aside the summary
    judgment, and substitute a declaration that Intact did not waive Champions failure
    to replace its destroyed building as required under the policies and agreements
    of the parties. I would dismiss Champions cross-appeal.

II.

background

(1)

The Policies

[24]

The destroyed building was insured under a commercial insurance policy and
    a Megaproperty Rider. The commercial insurance policy required payment of the
    actual cash value of the building in the event of a loss. The Megaproperty Rider
    provided replacement cost coverage.

[25]

Clause 18, paragraph f, of the Megaproperty Rider provided for an actual
    cash value valuation. Paragraph 4 ac. of the Rider set out the replacement cost
    coverage extension and the requirements for the insured to effect replacement
    with due diligence and dispatch and to complete replacement prior to
    settlement being made:

4 ac.
Replacement cost:
the basis of valuation described
    in paragraph f. of clause 18. is changed to the following:

All other insured property for which
    no more specific conditions have been set out: the replacement cost at the
    time and place of loss or damage, but not exceeding the amount actually and
    necessarily expended to complete the replacement, provided:

1)

Replacement
    shall be effected by the insured with due diligence and dispatch.

2) Settlement on a replacement
    cost basis shall be made only when replacement has been completed by the
    Insured.

If the Insured does not comply with
    requirements (1) and (2) above, settlement shall be made as if this extension
    was not in effect. [Emphasis in original.]

[26]

Replacement and Replacement cost are both defined in clause 22 of
    the Rider:

22. DEFINITIONS

Wherever used in this rider or its endorsements:

u. Replacement includes repair, construction or re-construction
    with new property of like kind and quality. If new property of like kind and
    quality is unobtainable, new property as similar as possible to that lost or
    damaged and which is capable of performing the same function shall be
    considered to be new property of like kind and quality for the purpose of this
    definition.

v. Replacement cost means whichever is the least of the cost
    of replacing, repairing, constructing or re-constructing the property on the
    same site with new property of like kind and quality and for like occupancy
    without deduction for depreciation.

(2)

The May 6, 2013 Settlement Agreement

[27]

By May 6, 2013, more than two years had elapsed from the fire and
    Champion had sued Intact for indemnity and damages. One major issue between the
    parties was the building loss claim. On May 6, 2013 the parties entered into a
    settlement agreement to resolve aspects of that claim as well as other claims.
[1]

[28]

As part of the May 6, 2013 settlement agreement, the parties agreed that
    the actual cash value of the building claim was $2,850,000. After deducting
    advance payments of $1,860,000, Intact paid a further $990,000 under the May 6,
    2013 settlement agreement to fully indemnify Champion for the actual cash value
    of the destroyed building.

[29]

The parties also agreed on the Replacement cost of the destroyed building:
    a total of $7,600,000. Champion would only be entitled to Replacement cost if
    the new property was of like kind and quality and for similar occupancy as
    the destroyed building. The amount payable upon replacement would be the lesser
    of $7,600,000 minus $2,850,000 and the actual replacement cost minus
    $2,850,000. If Champion replaced the property at a different site, Champion would
    have to account to Intact for land acquisition costs to determine the
    recoverable depreciation amount. If the parties could not reach an agreement on
    land value, it was to be determined through the appraisal process as provided
    for in the policy and under the
Insurance Act
, R.S.O. 1990, c.
I.8.

[30]

The 24-month deadline for replacement of the destroyed building was
    stipulated under paragraph 2 j. of the May 6, 2013 settlement agreement, which
    provided, in part:

The insured/Plaintiff will have
24 months from the date of
    settlement to proceed with replacement
in accordance with the policy and
    claim and the recoverable depreciation entitlements under this settlement
failing
    which the insured/plaintiff will be deemed to have forever waived and forfeited
    any claim
on the policies or under this settlement
for recoverable
    depreciation
. [Emphasis added.]

(3)

The Vaughan Agreement of Purchase and Sale

[31]

Champions first attempt at obtaining a replacement for the destroyed
    building involved a March 7, 2014 agreement of purchase and sale for a
    warehouse property located in Vaughan.

[32]

Champion and the vendor of the Vaughan property set the value of the
    land at $2,400,000, whereas Intacts appraiser valued the land at $4,600,000.
    Ultimately, Champion could not secure the additional financing required to
    complete the purchase and did not close the transaction. Champion communicated
    this to Intact on April 29, 2014.

(4)

The February 17, 2015 Scarborough Agreement of Purchase and Sale

[33]

On February 17, 2015 Champion entered into an agreement to purchase a
    building located in Scarborough. The original closing date was April 29, 2015.

[34]

However, as noted by the motion judge, there were numerous
    complications and considerations related to whether this property would meet
    the like kind and quality for similar occupancy requirement. Eventually, on
    April 29, 2015 Intact indicated the Scarborough property met that requirement.

(5)

The May 1, 2015 Settlement Agreement

[35]

The parties reached an agreement on April 30, 2015 concerning
    replacement cost. The agreement was confirmed by correspondence between counsel
    on May 1, 2015.

[36]

On May 1, 2015 counsel for Intact wrote, in part:

I write to confirm that we have reached settlement of the
    outstanding issues regarding the building loss claim on the basis of a further
    payment of $3 million. The settlement is subject to:

1. The closing of the purchase of the
    [Scarborough property] in accordance with the Agreement of Purchase and Sale
    dated February 17, 2015 reflecting a purchase price of $7,450,000.00, subject
    to the usual adjustments on closing.

4.  Should the purchase price
    turn out to be less than represented then the amount payable by the
    Defendant/Insurer will be reduced by the amount to which the purchase price is
    less than $7,450,000.00.
[2]

[37]

Counsel for Champion responded by email the same day: We will comply
    with the terms of the closing of the Scarborough property, as you spelled out.

(6)

The May 12, 2015 Scarborough Agreement of Purchase and Sale

[38]

The February 17, 2015 Scarborough agreement of purchase and sale allowed
    Champion the right to inspect the property before closing. On doing so,
    Champion discovered that the roof of the Scarborough property required repairs
    and declined to complete the original agreement of purchase and sale.

[39]

On May 12, 2015 Champion entered into a second agreement to purchase the
    Scarborough property, which superseded the February 17, 2015 agreement of
    purchase and sale. This agreement required the vendor to effect roof repairs
    prior to closing.

[40]

Closing was scheduled for June 29, 2015. By letter dated June 25, 2015, in
    which Intacts counsel acknowledged reviewing the May 12, 2015 Scarborough
    agreement of purchase and sale, counsel for Intact forwarded a cheque payable
    to counsel for Champion, in the amount of $3,000,000 to be held in trust in
    accordance with the May 6, 2013 settlement agreement. Subject to any
    agreed-upon extension of the closing date, counsel for Intact requested that
    the cheque be returned if the transaction did not close as scheduled. Counsel
    for Intact also requested, in accordance with his May 1, 2015 correspondence,
    that a cheque for the amount of any reduction in the purchase price be sent to
    him if the final purchase price was less than $7,450,000.

(7)

Termination of the Scarborough Agreement of Purchase and Sale and Subsequent
    Events

[41]

The closing date of the Scarborough agreement of purchase and sale was
    ultimately extended to November 17, 2015.
[3]
On November 16, 2015 Champion cancelled the Scarborough agreement of purchase
    and sale and demanded the return of its deposit as the required roof repairs had
    not been completed.

[42]

In the meantime, on November 9, 2015, Champion had entered into an
    agreement to purchase a Pickering property through a related company, Dynamic
    Holdings, for $7,400,000. The closing date was March 31, 2016.

[43]

Intact learned of these developments on November 27, 2015 at an
    examination for discovery concerning Champions business interruption loss
    claim
. By letter dated December 4, 2015 Champions counsel requested that
    the Pickering property be treated as a replacement property. Following further
    correspondence from Champions counsel, on January 5, 2016 Intacts counsel
    responded:

I do not currently have instructions. In fact my instructions
    are to request return of the money. I am seeking clarification and hope to have
    a further response before your deadline. In the meantime what is the closing
    date and is the deal likely to close on that date, assuming financing.

[44]

On January 13, 2016 Intacts counsel wrote again to Champions counsel.
    In his letter, counsel confirmed that he did not have instructions to consent
    to the substitution of the Pickering property for the Scarborough property and
    allow the $3,000,000 settlement funds to be retained and used for that purpose.
    However, he confirmed Intact was looking further at the issue.

[45]

In his January 13, 2016 letter, Intacts counsel also asserted that
    Champions failure to replace the building within the 24-month timeline
    stipulated in the May 6, 2013 settlement agreement resulted in Champion having
    forfeited the right to recoverable depreciation. He acknowledged, at least
    implicitly, that Intact would have permitted the completion of the Scarborough
    purchase. However, as that transaction was not completed technically Champion
    was required to return the $3,000,000 cheque. Nonetheless, as the matter
    remained under review, Champions counsel could retain the $3,000,000 cheque in
    trust pending further direction from Intacts counsel.

[46]

Following the January 13, 2016 letter, Intacts counsel sought further
    information concerning the demise of the Scarborough transaction and the
    Pickering purchase. Intact also obtained an appraisal of the Pickering property
    together with confirmation from the appraiser that it would meet the like kind
    and quality requirement. Although Intact learned in late January 2016 that the
    latter requirement was satisfied, its appraiser valued the land at
    significantly less than the Champion appraisal. Intacts appraisal resulted in
    a recoverable depreciation amount of $2,600,000; whereas Champions resulted in
    $3,225,000.

[47]

While Intacts decision regarding the Pickering property remained under
    consideration, Champion obtained extensions to the financing condition to keep
    the purchase agreement alive. To obtain an extension to February 15, 2016,
    Champion paid the vendor a $20,000 non-refundable additional deposit.

[48]

As I have said, on February 16, 2016 Intact notified Champion through
    counsel that as a result of Champion not closing the purchase of the
    Scarborough property Champion had forfeited its entitlement to recoverable
    depreciation under the policies and the May 6, 2013 settlement agreement as
    quantified in the May 1, 2015 agreement. Further, Intact rejected Champions
    request to treat the Pickering property as a replacement, pointing primarily to
    the fact that it was being asked to pay $400,000 more than it would have had to
    pay had Champion proceeded in accordance with the parties agreements.

[49]

Intact therefore demanded the return of its $3,000,000 cheque.

III.

the motion judges reasons

[50]

The motion judge made several key findings that led to his conclusion
    that Intact was required to pay Champion $3,000,000 as recoverable depreciation
    for the destroyed building.

[51]

First, he concluded that the May 6, 2013 settlement agreement resolved
    the outstanding replacement property issues between the parties. Under the
    policy, replacement could occur in various ways. The motion judge found that
    the 24-month deadline specified in the May 6, 2013 settlement agreement applied
    to all forms of replacement. If Champion failed to replace as permitted within
    that timeframe, it would be deemed to have forever waived and forfeited any
    claim for recoverable depreciation under the policies or the settlement. These
    findings are not challenged on appeal.

[52]

Second, the motion judge concluded that, in the May 1, 2015 agreement,
    the parties effectively amended the May 6, 2013 settlement agreement. They did
    so through a qualified waiver of the 24-month deadline such that Champion would
    still be entitled to the $3,000,000 recoverable depreciation payment if it
    effected replacement after that date, provided it completed the February 17,
    2015 agreement to purchase the Scarborough property.

[53]

Third, the motion judge found that Intact was in a position as of November
    27, 2015 (the date Intact learned that Champion had terminated the Scarborough
    purchase agreement), or within a reasonable time thereafter, to notify Champion
    that by aborting the Scarborough purchase it had forever waived and forfeited any
    claim on the policies or under the settlement for recoverable depreciation.

[54]

Fourth, the motion judge found that by its conduct after November 27,
    2015, Intact demonstrated a clear and unequivocal intention to calculate the
    recoverable depreciation owing pursuant to the policy utilizing the Pickering
    property in substitution for the Scarborough property. Intact had therefore
    waived Champions failure to close the Scarborough transaction and its right to
    deem that Champion had waived and forfeited any claim for recoverable
    depreciation.

[55]

Finally, the motion judge concluded that Intacts waiver was of limited
    scope and effect. All Intact had waived was the condition that, to receive the
    agreed upon $3,000,000, Champion had to close the Scarborough purchase  the
    waiver did not extinguish the policy or subsequent agreements under which the
    replacement property issue was settled.

[56]

The motion judge therefore granted partial summary judgment to Champion
    and ordered Intact to pay Champion the $3,000,000 agreed upon as recoverable
    depreciation.

IV.

analysis

[57]

The main issue on appeal and the first issue raised by Champion on its cross-appeal
    are interrelated. I will therefore consider them together.

(a)

Did the motion judge err in finding Intact waived Champions failure to
    complete the purchase of the Scarborough property by which Champion itself
    forever forfeited any claim to recoverable depreciation?

[58]

Intact argues that the motion judge erred in finding it waived
    Champions failure to complete the purchase of the Scarborough property because
    he concluded, erroneously, that Intact had to give Champion notice of
    forfeiture for forfeiture to occur. This error, says Intact, tainted the motion
    judges reasoning concerning whether Intact waived the forfeiture that occurred
    because of Champions failure to close.

[59]

Champion responds with two arguments. First, it says the motion judge
    erred in failing to find that, by its conduct in May and June 2015, Intact
    waived the 24-month deadline in the May 6, 2013 settlement agreement. The
    failure to close the Scarborough purchase is therefore irrelevant because by
    that time, there was no longer a 24-month deadline for completing the purchase
    of a replacement building. This is also Champions first request by way of
    cross-appeal. Second, and in any event, Intacts failure to give notice of
    forfeiture was but one factor the motion judge considered in concluding Intact
    waived Champions failure to close the Scarborough purchase. His finding in
    that regard is entitled to deference.

[60]

As it is first chronologically, I will begin with Champions first
    argument.

(i)

Did the motion judge err in failing to find that, by its conduct in May
    and June 2015, Intact waived the 24-month deadline in the May 6, 2013
    settlement agreement?

[61]

The motion judge referred to the May 1, 2015 agreement and the parties
    conduct as both amending the May 6, 2013 settlement agreement (by extending the
    24-month replacement deadline) and as constituting a qualified waiver of that
    deadline.

[62]

Champion argues that the May 1, 2015 agreement and the parties conduct
    did neither. Rather, Intacts conduct in May and June 2015 amounted to a
    complete waiver of the 24-month replacement deadline.

[63]

Champion points out that the May 1, 2015 agreement does not refer to the
    May 6, 2013 settlement agreement at all  let alone express any intention to
    amend it. Importantly, it does not identify any date to which the 24-month replacement
    deadline could be extended. Contrary to the motion judges conclusions, on its
    face, the sole effect of the May 1, 2015 agreement was to resolve the amount of
    the recoverable depreciation payable by Intact.

[64]

Significantly, says Champion, on May 12, 2015  six days after the
    expiration of the 24-month replacement deadline  it entered into a new
    agreement to purchase the Scarborough property that included different terms
    than those contained in the original February 17, 2015 agreement of purchase
    and sale. Nonetheless, on June 29, 2015 Intact advanced $3,000,000 to
    Champions counsel to complete the purchase of the Scarborough property. Intact
    advanced these funds at a time when it knew:

·

the 24-month replacement deadline in the May 6, 2013 settlement
    agreement had expired;

·

replacement had not been effected within the 24-month replacement
    deadline;

·

no agreement had been made specifying a new replacement deadline;
    and

·

the pending purchase of the Scarborough property was to be completed
    under an agreement of purchase and sale made after the 24-month replacement
    deadline specified in the May 6, 2013 settlement agreement.

[65]

Given these circumstances, Champion submits that Intacts conduct in May
    and June 2015 can only properly be interpreted as a complete waiver of the
    24-month replacement deadline specified in the May 6, 2013 settlement
    agreement. Intacts agreement to indemnify Champion based on an agreement of
    purchase and sale made after the expiry of the 24-month replacement deadline
    specified in the May 6, 2013 settlement agreement can reflect no other
    intention.

[66]

I would not accept these submissions.

[67]

Although Champion is correct that the May 1, 2015 agreement does not
    refer specifically to the May 6, 2013 settlement agreement or identify a
    specific date to which the 24-month replacement deadline was extended, I see no
    error in the motion judges conclusion that the May 1, 2015 agreement effected
    what I would refer to as a conditional waiver of that deadline.

[68]

The motion judge observed that the May 1, 2015 agreement was made just
    days before the expiration of the deadline specified in the May 6, 2013
    settlement agreement. Further, he found there was clear recognition that the
    then current agreement of purchase and sale of the Scarborough property  was
    not going to close by May 6, 2015.

[69]

Under the May 1, 2015 agreement, the $3,000,000 settlement on account of
    recoverable depreciation was subject to closing the purchase of the Scarborough
    property in accordance with the February 17, 2015 agreement of purchase and
    sale. Although the correspondence did not explicitly refer to the May 6, 2013
    settlement agreement, the only sensible interpretation of the term that the
    settlement was subject to closing the Scarborough transaction was that the 24-month
    replacement deadline was waived
conditional
on the February 17, 2015
    agreement being completed.

[70]

The motion judge made no explicit finding concerning the impact of the May
    12, 2015 Scarborough agreement of purchase and sale. In my view, Intacts
    counsels June 25, 2015 letter made it clear that Intact accepted the May 12,
    2015 agreement of purchase and sale as a substitute for the February 17, 2015
    agreement and, to the extent Intact was thereby waiving the 24-month
    replacement deadline in the May 6, 2013 settlement agreement, it was again doing
    so only
conditionally
 but now conditional on completion of the May 12,
    2015 agreement.

[71]

In his June 25, 2015 letter, Intacts counsel acknowledged reviewing the
    May 12, 2015 agreement. Examination of the February 17, 2015 agreement of
    purchase and sale and the May 12, 2015 agreement reveals that the terms related
    to the recoverable depreciation issue had not changed. Both the property and
    the purchase price remained the same. The June 25, 2015 letter specified that
    Intact was proceeding on the assumption the transaction would close; enclosed a
    cheque for $3,000,000, the amount agreed upon in the May 1, 2015 agreement; and
    included the following requirements:

·

if the $7,450,000 purchase price, which was the premise of the
    May 1, 2015 agreement, was adjusted below that figure, Champion was to repay
    the difference to Intact; and

·

if the transaction did not close on June 29, 2015 for reasons
    other than a straightforward extension of the closing date, the $3,000,000
    cheque was to be returned to Intact.

[72]

Particularly in light of the latter requirement, I would reject the
    argument that Intact waived absolutely the 24-month replacement deadline by
    accepting this substitution. For these reasons, I would also reject the first
    ground of Champions cross-appeal.

(ii)

Did the motion judge err in holding that Intact had to give notice to
    Champion that Champion had forfeited its entitlement to recoverable
    depreciation and in finding that Intact waived Champions failure to close the
    Scarborough transaction?

[73]

I turn now to Intacts argument that the motion judge erred in holding
    that Intact had to give notice to Champion that it had forfeited its
    entitlement to recoverable depreciation by failing to close the Scarborough
    transaction and further erred in finding Intact waived the obligation to close
    that transaction.

[74]

Champion responds that the motion judges decision was not premised on a
    finding that Intact was required to provide Champion with notice of forfeiture.
    Instead, Intacts failure to provide notice was simply one of many factors the
    motion judge properly considered in concluding that Intact had waived Champions
    obligation to complete the Scarborough purchase. The motion judges reasons and
    his finding of waiver are entitled to deference.

[75]

I would accept Intacts argument. I would set aside the motion judges
    finding that Intact waived Champions failure to close the Scarborough purchase
    and substitute a finding that Intact did not waive that obligation.

[76]

The trial judge addressed three main issues before concluding that
    Intact waived Champions failure to complete the Scarborough purchase:

i)

Did the parties negotiate an agreement that required Champion to replace
    the destroyed building on specific terms and conditions or else permanently
    forfeit its right to claim indemnity for a replacement property pursuant to the
    insurance policy?

ii)

Did Champion fail to effect replacement in accordance with the insurance
    policy and subsequent agreements of the parties?

iii)

If Champion did not replace the [destroyed building] pursuant to the
    specific terms and conditions of the insurance policy as amended by the
    agreements, did Intact waive Champions obligation in that respect?

[77]

The motion judge answered the first question in the affirmative. Regarding
    the second question he concluded that by terminating the Scarborough
    transaction, Champion clearly failed to replace the destroyed building in
    accordance with the policy and the agreements of the parties. However, at para.
    124 of his reasons, the motion judge stated: Accordingly, I find that as of
    November 27, 2015 (or within a reasonable time thereafter)
Intact was in a
    legal position
to notify
Champion that by aborting the Scarborough
    purchase Champion had forever waived and forfeited any claim
on the
    policies or under the settlement
for recoverable depreciation
 (emphasis
    added).

[78]

Subsequently, in addressing the issue of waiver of the failure to close
    the Scarborough transaction, the motion judge noted at para. 201 that upon
    learning of Champions actions Intact
had the ability to deem Champion to
    have forever waived and forfeited any claim for recoverable depreciation

    (emphasis added).

[79]

Further, at para. 202, the motion judge observed that Intact
failed
    to give clear and unambiguous notice to Champion
that it had forfeited
    entitlement to recoverable depreciation  on November 27, 2015, or within a
    reasonable time thereafter (emphasis added).

[80]

In addition, at paras. 205 and 206, the motion judge stated:

In fact, other than
occasionally appearing to be obtusely
    preserving its right to treat Champion as having forfeited entitlement to
    recoverable depreciation at an unspecified later date
, the actions of
    Intact actually demonstrate an intention on its part to demonstrate whether the
    Pickering property qualified as a proper substitution of the Scarborough
    property. I conclude that the following actions taken by Intact had no
    relevance to the forfeiture issue, but were such that a reasonable person would
    conclude that Intact intended to assess the Pickering property and intended to
    waive the forfeiture of Champion  .

In these circumstances, Intact simply declaring that a
    decision was pending could not and
did not have the legal effect of
    unilaterally giving Intact the right to take almost three months to make a
    decision as to whether to deem Champion to have forfeited recovery
.
    [Emphasis added.]

[81]

Finally, at paras. 207 to 209, the motion judge stated:

There is
no evidence
before the court that
Intact
    reasonably needed any additional information in order to claim forfeiture
and that such essential information was not otherwise available until February
    2016.

In and of itself, that delay justifies a finding that Intact
    waived the right to act upon the breach committed by Champion in November 2017.

That conclusion is  buttressed by the extensive evidence  of
    the numerous and significant steps taken by Intact that cannot reasonably be
    interpreted  as required to determine whether to assert forfeiture.

[82]

Reading the motion judges reasons as a whole, I can only conclude that
    he proceeded on the basis that Intact was required to give notice of forfeiture
    for forfeiture to occur and that further, Intact had to give such notice within
    some reasonable length of time after Champion defaulted.

[83]

In doing so, the motion judge erred. None of the agreements or
    correspondence  the insurance policy, the May 6, 2013 settlement agreement,
    the May 1, 2015 agreement or counsels June 25, 2015 letter  require notice of
    forfeiture. On the contrary, under the May 6, 2013 settlement agreement
    forfeiture was automatic in the event of default.

[84]

The Megaproperty Rider required simply that replacement be effected with
    due diligence and dispatch.

[85]

The May 6, 2013 settlement agreement imposed the 24-month replacement
    deadline and stipulated that absent compliance [Champion] will be deemed to
    have forever waived and forfeited any claim on the policies or under this
    settlement for recoverable depreciation. Neither the May 1, 2015 agreement nor
    counsels June 25, 2015 letter amended the forfeiture provision in the May 6,
    2013 settlement agreement. On its face, that provision created an automatic
    forfeiture.

[86]

As I read the motion judges reasons, his conclusion that Intact waived
    Champions failure to complete the Scarborough transaction was tainted by his
    erroneous view that Intact was required to give notice of forfeiture. The
    motion judge therefore analyzed Intacts actions on the assumption that Intact
    had to decide whether to forfeit Champions entitlement to recoverable
    depreciation. In doing so, he failed to recognize that, under the May 6, 2013
    settlement agreement, Champion had forfeited its right to recoverable
    depreciation by its default.

[87]

These errors led the motion judge to misinterpret the effect of Intacts
    statements about the status of its obligations, the effect of its investigations
    of the Pickering property and the effect of the time it took to complete those
    investigations. The motion judges statements set out at paras. 79 and 80 above
    illustrate these points.

[88]

As I read the motion judges reasons, he analyzed Intacts actions
    through the lens of whether they related to either a decision to forfeit
    Champions entitlement to recoverable depreciation under the policy and
    agreements or a decision to waive Champions failure to close the Scarborough
    transaction.

[89]

However, this reasoning ignores the reality that forfeiture was
    automatic and had already occurred. Therefore, the issue for Intact was not
    deciding whether to forfeit Champions right or whether to waive Champions
    breach, but solely whether to choose to accept the Pickering property as a
    replacement for the Scarborough despite the fact that forfeiture had already occurred.
    Put another way, Intact was effectively considering whether it should grant
    relief from forfeiture. In this latter context, Intacts actions were
    necessarily directed solely at that question  and the fact that it was
    considering whether to accept the Pickering property did not evidence an
    intention to do so.

[90]

On my review of the record, Intacts post-November 27, 2015 conduct
    indicated  at most  a willingness to
consider
accepting the Pickering
    property as a substitute for the Scarborough property. Intact never indicated,
    either expressly or by its conduct, that it would do so. In particular, on
    January 5, 2016 Intacts counsel informed Champion that he had instructions
    to request return of the money. In another letter sent the following week,
    Intacts counsel confirmed that Champion had forfeited its right to recoverable
    depreciation.

[91]

At no point did Intact express or otherwise communicate an unequivocal
    and conscious intention to unconditionally waive Champions default and
    resulting forfeiture of its right to receive recoverable depreciation:
Saskatchewan
    River Bungalows Ltd. v. Maritime Life Assurance Co
., [1942] 2 S.C.R. 490,
    at p. 500.

[92]

In the result, I would accept Intacts argument that the motion judge
    erred in finding that Intact waived Champions failure to close the Scarborough
    transaction. Further, in the absence of evidence that Intact intended to or
    communicated an intention to waive Champions failure to comply with the
    24-month deadline in the May 6, 2013 settlement agreement, I conclude there was
    no waiver. I therefore conclude Champion forfeited its right to recoverable
    depreciation when it failed to close the Scarborough transaction and that Intact
    never waived the forfeiture.

(b)

Is Champion entitled to relief from forfeiture?
[4]

[93]

Although the motion judge did not address relief from forfeiture, both
    parties requested that we address the issue on appeal. Champion claims the
    equitable remedy of relief from forfeiture under both s. 129 of the
Insurance
    Act
and s. 98 of the
Courts of Justice
Act
,

R.S.O. 1990, c. C.43
. It
argues that it had a justifiable reason not to close the
    Scarborough transaction and was unable to close the Pickering transaction
    because Intact refused to fund it. Moreover, Intact has already allocated funds
    for the recoverable depreciation and would therefore suffer no prejudice if
    relief from forfeiture was granted.

[94]

I would not grant Champions request. It seeks indemnity for recoverable
    depreciation in relation to the destroyed building. However, it asserts that
    requiring it to proceed with replacement now would be unjust, advances no plan
    for permitting it to do so and purports to claim damages for Intacts failure
    to fund the Pickering transaction.

[95]

Champions argument ignores the reality that Intact has
    indemnified Champion for the actual cash value of the destroyed building and
    that under the terms of the policies, absent replacement, Champion is not
    entitled to recoverable depreciation. I see no basis on which to grant relief
    from forfeiture when Champion has neither replaced its destroyed building nor proposed
    terms on which it should be
permitted to do so
    now.

[96]

As for a remedy in damages, Intact
    did not waive Champions forfeiture of its right under the policies and
    agreements to recoverable depreciation. Intact was not contractually obliged to
    fund the Pickering transaction. I therefore see no basis on which to award
    damages.

V.

Disposition

[97]

Based on the foregoing reasons, I
    would allow the appeal, set aside the summary judgment, substitute a
    declaration that Intact did not waive Champions failure to replace its
    destroyed building as required under the policies and agreements of the parties
    and dismiss the cross-appeal.

[98]

Costs of the appeal are to Intact,
    on a partial indemnity scale fixed in the amount of $50,000, inclusive of
    disbursements and HST.
If desired, the
    parties may file brief submissions not to exceed five pages concerning costs of
    the proceeding below. Intact should file any such submissions within 7 days of
    the release of these reasons, Champion may respond within 7 days thereafter. In
    the absence of submissions, the fees and HST awarded below shall be reversed,
    the parties may agree on disbursements and the order that Intact pay Champion
    $20,000 on account of the non-refundable deposit shall be set aside.

Released:
G.P. February 12, 2020

Janet Simmons J.A.

I agree. G. Pardu
    J.A.

I agree. I.V.B.
    Nordheimer J.A.

Appendix A

May 6, 2013 Settlement Agreement

WHEREAS
    Champion Products Corp., Walkerville Commercial Centre Inc., formerly 1206738
    Ontario Limited and 1298446 Ontario Inc. cob The Party Warehouse" (hereinafter
    the insured/plaintiff) experienced losses following a fire on February 15,
    2011; and

WHEREAS
    Intact Insurance Company, formerly AXA Insurance (Canada) and AXA Insurance
    (Canada) (hereinafter the insurer/defendant) Insured the Insured/plaintiff
    pursuant to various policies (hereinafter the policy) of

Insurance at
    the time of the fire; and

WHEREAS the
    insured/plaintiff has made claims from the insurer/defendant on the policy; and

WHEREAS the
    insured/plaintiff has commenced legal action against the insurer/defendant in
    the Ontario Superior Court of Justice Identified by court file no. CV-13·18990
    issued at Windsor, Ontario; and

WHEREAS the
    insured/plaintiff and insurer/defendant have reached partial settlement of
    claims on the policies and forming the subject of the legal action as
    hereinafter set out.

TERMS
    OF SETTLEMENT

1.

IN CONSIDERATION of the insurer/defendant making further payments in the
    amount or ONE MILLION, TWO HUNDRED AND NINETY THOUSAND DOLLARS AND ZERO CENTS
    ($1,290,000.00) to the Insured/plaintiff over and above monies already advanced
    by the insurer/defendant to the lnsured/plaintiff, the sufficiency of which is hereby
    acknowledged, the Insured/plaintiff agrees as follows:

(a)

The Insured/plaintiff agrees to settle all claims on the policy and
    forming the subject of the legal action, Including any claims past, present and
    future for bad faith, punitive, aggravated damages, damages for mental distress
    or any other extra contractual damages. This settlement does not include the claims
    for business interruption loss and the following mega property extensions of
    the policy (hereinafter the miscellaneous claim) nor to interest and costs:

Accounts receivable;

Extra expense;

Professional fees;

Proof of Loss preparation costs;

Valuable papers and business records; and

Catchall coverage, as stated in the policy, as it relates to any

of
    the categories of unsettled claims.

The business
    interruption and miscellaneous claim specifically remain

unsettled and
    pan of the ongoing litigation claim, including interest and

costs;

(b)

The insured/plaintiff agrees to abandon and not hereafter pursue any
    claims for bad faith, punitive, aggravated, mental distress damages or any other
    extra contractual claims;

(c)

The insured/plaintiff agrees to execute a Proof of Loss reflecting the payments
    hereinafter of $1,290,000.00;

FURTHER PARTICULARS OF THE
    SETTLEMENT

2.

As part of the consideration for the payment of $1,290,000.00 the
    Insured/plaintiff agrees as follows:

a.

Of the $1,290,000.00 referred to in paragraph 1 herein, $300,000.00
    represents a final payment against the claim of contents, including actual cash
    value and all replacement cost entitlements,

b.

Actual cash value of the building claim is agreed to at $2,850,000.00.
    Advance payments have already been made against this claim in the amount of $1,860,000.00.
    Payment in the amount of $990,000.00 of the $1,290,000.00 referred to in
    paragraph 1 herein represents a top up payment to fully fund the actual cash
    value settlement of the buildings;

c.

Replacement cost of the building is agreed to as follows:

i.

$6,900,000.00 for the replacement cost of the destroyed north portion of
    the building and;

ii.

$700,000.00 for the replacement cost of the repairs to the damaged south
    portion of the building;

d.

The insured/plaintiff shall only be entitled to recover the difference
    between the actual cash value payments made and the total replacement cost
    agreement by complying with the policy provisions dealing with replacement. The
    recoverable depreciation entitlement will be the lesser of the amount actually
    incurred for replacement and the agreed upon settlement of replacement cost
    value with credit being given for the actual cash value payments made;

e.

The actual cash value (ACV) amount of $2,850,000.00 referred to in
    paragraph 2(b) and the amounts of recoverable depreciation entitlement
    ($4,750,000.00) are further broken down as follows:

i.

Partial loss (south) section of the building $282,894.74 represents the
    ACV amount with recoverable depreciation entitlement being $417,105.26
    ($700,000.00  $282,894.74).

ii.

The total loss (north) section of the building $2,567,105.02 represents
    the ACV of the loss with recoverable depreciation entitlement being $4,332,894.80
    ($6,900,000.00  $2,567,105.20).

f.

Should the insured/plaintiff proceed to replace the building at a
    different site, the insured/plaintiff shall account to the insurer/defendant
    for the land acquisition costs of the replaced building. For greater clarity
    and by way of example, if the Insured/plaintiff purchased an existing building
    for $10,000,000.00 and the value of the land was $4,000,000.00 the replacement
    cost expended for the purpose of claiming replacement cost benefits pursuant to
    this settlement would be $6,000,000.00. Also by way of example, If the
    insured/plaintiff bought vacant un-serviced land for $1,000,000.00 and then
    expended $2,000,000.00 servicing the land and $7,000,000.00 constructing the
    building, the replacement cost expenditure would be $9,000,000.00. These
    examples are not intended to be exhaustive, but only illustrative of the spirit
    and intent of the settlement;

g.

In the event that there is no agreement with respect to the land value,
    such value shall be determined through the appraisal process as provided for in
    the policy and
Insurance Act
;

h.

In order for the insured/Plaintiff to be entitled to recoverable
    depreciation under this settlement such replacement must be completed with like
    kind and quality and for similar occupancy as the insured buildings. The
    insured/Plaintiff agrees to submit their proposal for replacement to the
    Insurer/Defendant for agreement as to whether the proposed replacement falls
    within the requirements of the policy;

i.

In repairing or replacing the building the recoverable depreciation
    entitlement will not be based on a line by line comparison between the repair
    estimates used in calculating the replacement cost amounts set out in paragraph
    2(c) and the replaced/repaired building, but shall be based upon how much the
    insured/Plaintiff is spending on a global basis to repair/replace the
    building(s) (subject to the replacement cost provision outlined in this
    agreement) and whether the proposed repair/replacement is of like kind and
    quality and for similar occupancy as the insured buildings; and

j.

The insured/Plaintiff will have 24 months from the date of settlement to
    proceed with replacement in accordance with the policy and claim and the
    recoverable depreciation entitlements under this settlement failing which the
    insured/plaintiff will be deemed to have forever waived and forfeited any claim
    on the policies or under this settlement for recoverable depreciation.
    Proceeding with replacement shall be deemed to have occurred when the Insured/Plaintiff
    has entered into a legally binding construction contract for a building
    qualifying as replacement and has commenced construction;

k.

In the event the Insured/Plaintiff elects to replace, the
    insurer/defendant shall reasonably cooperate with the retained general
    contractor for reasonable construction draws in order to facilitate the
    financing of the replacement;

l.

Should the Insured/Plaintiff elect to replace by purchasing another
    building qualifying as replacement under the policy, the recoverable
    depreciation entitlement shall be released to the Plaintiffs solicitors upon
    the insurer/Defendant being served with the executed purchase agreement. Such
    funds will be held by the insureds/Plaintiffs solicitor pending closing of
    the real estate purchase. Should the real estate purchase not close the
    recoverable depreciation advanced shall be returned to the Insurer/Defendant;

Appendix
    B

May 1, 2015 Letter from
    Intacts Counsel to Champions Counsel

I write to confirm that we have
    reached settlement of the outstanding issues regarding the building loss claim
    on the basis of a further payment of $3 million. The settlement is subject to:

1.

The
    closing of the purchase of the properties at 88 - 90 Dynamic Drive in
    accordance with the Agreement of Purchase and Sale dated February 17, 2015
    reflecting a purchase price of $7,450,000.00, subject to the usual adjustments
    on closing.

2.

The
    Plaintiff/Insured will be expected to sign a Full and Final Release in usual
    form releasing the Defendant/Insurer from all building loss claims. (This
    settlement does not impact the outstanding business interruption claim as per
    the Settlement Agreement.)

3.

The
    Plaintiff/Insured together with yourself will be required to execute a sworn
    Declaration confirming that the purchase price represents the amount paid to
    complete the purchase and there are no side deals, oral or written, trusts or
    any other type of agreement which could in any way constitute a reversion or
    reduction of the amount represented by you and the Plaintiff/Insured as the
    purchase price.

4.

The
    Plaintiff/Insured will be obligated to provide to the Defendant/Insurer a copy
    of the closing documentation confirming closing of the transaction and
    indicating the exact amount paid for the purchase. Should the purchase price
    turn out to be less than represented then the amount payable by the
    Defendant/Insurer will be reduced by the amount to which the purchase price is
    less than $7,450,000.00.

Can you please advise who the
    settlement draft should be payable to. As you are aware, the Public Adjuster is
    asserting a claim on this money and has notified us accordingly. If the Public
    Adjuster is not going to be named on the settlement draft I will need either a
    Release from them or their signature on a payment Direction. I know you are
    aware of this issue and have been dealing with it.

I will forward to you early next
    week a draft Release.

[1]

The May 6, 2013 settlement is reproduced in full in Appendix
    A.

[2]

The body of this May 1, 2015 letter is reproduced in Appendix
    B.

[3]
The appeal record reveals that Champion and the vendor entered into a third
    agreement for the purchase of the Scarborough property dated June 26, 2015.
    Neither the parties nor the motion judge have treated that agreement as
    significant.

[4]

This is the second issue raised in Champions cross-appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Dupuis v. Waterloo (City), 2020 ONCA 96

DATE: 20200206

DOCKET: M51237 (C66082)

Paciocco J.A. (Motions Judge)

BETWEEN

Jody Elena Dupuis and Stephen Jones

Plaintiffs

(Respondents/
    Responding parties)

and

The Corporation of the City of Waterloo
, Kelly Beth

Schleuter
    and Jacob Harold Thomas

Defendants

(
Appellant/ Moving party
)

Filipe A. Mendes, for the moving party

Matthew Reid, for the responding parties

Heard and released orally: February 4, 2020

REASONS FOR DECISION

[1]

The appellant, The Corporation of the City of Waterloo [Waterloo],
    seeks an extension of time to perfect an appeal that should have been perfected
    on May 14, 2019, some seven and a half months ago. The appellant did not take
    steps to perfect the appeal until after counsel for the respondents took the
    initiative of inquiring whether the appeal would be proceeding, and after the
    registrar served notice of intention to dismiss the appeal. Waterloo finally
    attempted to perfect the appeal on the designated dismissal date, December 17,
    2019, but did not do so successfully because of multiple technical deficiencies
    with its materials. On December 20, 2019, the respondents agreed to extend the
    deadline to January 10, 2020.

[2]

On January 8, 2020, the appellant again attempted to perfect the appeal
    but again, there were multiple errors in the materials and so the required
    documents were not accepted by the registrar. Waterloo now seeks a further
    extension to perfect to February 21, 2020.

[3]

I must decide this motion based on the justice of the case, in all the
    circumstances. The respondents take no issue with the intention of the
    appellant to appeal, and do not rely on the merits of the case in opposing this
    motion. They contend that they have been prejudiced by the seven and a half
    months of accumulated delay and point out that the respondents have been
    waiting since October 12, 2018, to receive payment of the damages and costs
    award that was received. No explanation was offered by the appellant for the
    delays, other than that their efforts were deficient. No explanation was
    offered for why no steps were taken after the transcripts were ready, or why
    efforts to file were inadequate.

[4]

In response, the appellant argues that the material delay that is now
    being addressed is only a few more weeks, and that the case should be decided
    on its merits, not based on technicalities.

[5]

I accept that, ideally, cases should be disposed of on their merits.
    However, the appellant is an experienced litigant, fully represented in this
    action. Despite this, to the prejudice of the respondents, inadequate efforts
    were made to ensure that this appeal was prosecuted with diligence and
    reasonable attention to the timelines and filing requirements imposed by this
    court. Those timelines and rules of the court exist to facilitate the orderly
    and proper disposition of appeals without unreasonable delay. In all the
    circumstances of this case, notwithstanding the preference for dealing with
    appeals on their merits, the justice of this case would not be served if I
    disregard the repeated failure by the appellant to comply with those rules and
    procedures. The motion is therefore dismissed.

[6]

Costs of $5,000 inclusive of applicable taxes and disbursements are
    awarded to the respondents.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: The Energy Credit Union Limited v.
    Radwan, 2020 ONCA 136

DATE: 20200219

DOCKET: C67291

Doherty, Brown and Thorburn JJ.A.

BETWEEN

The
    Energy Credit Union Limited

Plaintiff (Respondent)

and

Pamella Radwan and Gregory
    Radwan

Defendants (Appellants)

David Conn, for the appellants

Oren Chaimovitch, for the respondent

Heard and released orally: February 13, 2020

On
    appeal from the judgment of Justice Michael Gibson of the Superior Court of
    Justice, dated July 15, 2019.

REASONS FOR DECISION

[1]

The appellant, Gregory Radwan, is the former CEO
    of a credit union. He and his wife, the appellant Pamella Radwan, own a home in
    Oakville (the Property).

[2]

In December 2015, the
    Radwans granted the respondent, The Energy Credit Union Limited (Energy
    Credit), a mortgage on their Property in the amount of $664,000. The mortgage
    stipulated that it was ON DEMAND and [s]ubject to MeritLine Home Equity
    LOC. The evidence before the motion judge was that MeritLine is a
    trademarked equity line of credit product offered by the Canadian Credit Union
    Association.

[3]

The Radwans refinanced
    their mortgage with Energy Credit in January 2017. They increased the amount of
    their equity line of credit to $736,000. The Meritline  Home Equity Line of
    Credit Agreement they signed states that all advances under the MeritLine are
    repayable upon demand. The new mortgage on the Property stipulates that it is
    On Demand. An Acknowledgement and Direction signed by the Radwans also states
    that the loan facility is ON DEMAND.

[4]

The Radwans failed to
    meet their payment obligations under the equity line of credit, resulting in
    Energy Credit making demand for payment in full. The Radwans did not pay the
    balance due or refinance the mortgage. Energy Credit commenced this action for
    judgment on the amount due under the mortgage and possession of the Property.
    The motion judge granted Energy Credit summary judgment.

[5]

On appeal, the Radwans
    advance three main arguments. First, they submit the motion judges reasons
    failed to address (i) the appellants evidence that they did not sign a set of
    standard charge terms and (ii) Pamella Radwans level of sophistication as a
    borrower. Second, the Radwans argue that the motion judges reasons were
    inadequate and did not provide insight into how the legal conclusion was
    reached. Third, they contend that the motion judge failed to consider important
    issues of credibility.

[6]

We are not persuaded by
    any of these submissions.

[7]

The reasons of the
    motion judge clearly disclose the basis for his decision.  He wrote:

The Defendants signed a valid agreement. They
    benefited from the advance of funds under the mortgage. They have defaulted on
    their payment obligations. It was not incumbent upon the lender in these
    circumstances to insist that the borrowers obtain legal advice. It is not
    credible that these borrowers did not understand what on demand meant.

[8]

We see no palpable and
    overriding error in those findings. They are amply supported by the evidentiary
    record before the motion judge, specifically:

·

The terms of the 2017 credit facility and
    mortgage were not novel ones for either Gregory or Pamela Radwan. Both had
    previous experience with an on demand mortgage. They had entered into an on
    demand credit facility, secured by a $664,000 on demand mortgage, with Energy
    Credit in 2015;

·

Mr. Radwan acknowledged that at the time they
    entered into the 2017 credit facility, he was a senior executive at another
    credit union;

·

There was no suggestion of undue influence or
    fraud that could impose upon the credit union an obligation to ensure a
    borrower received independent legal advice:
Bank of Montreal v.
    Featherstone
(1989), 68 O.R. (2d) 541 (C.A.);

·

None of the documents signed by the Radwans support
    their assertion that they thought they were entering into a one-year,
    interest-only mortgage;

·

There was no dispute that the Radwans signed
    documents in which they agreed to an on demand credit facility: specifically,
    the Meritline  Home Equity Line of Credit Agreement and the Acknowledgement
    and Direction, which included their acknowledgement of the receipt of the
    standard charge terms;

·

The Radwans do not dispute the amount of debt
    they owe Energy Credit;

·

The Radwans admit that the mortgage fell into
    arrears in late 2018; and

·

In any event, on the Radwans contention that
    the credit facility was secured by a mortgage with a 12-month term, they were
    in default of the mortgage at the time Energy Credit demanded payment in full.

[9]

The adequacy of the
    reasons is measured in the context of the evidence adduced. Reading the motion
    judges reasons in the context of the evidence, they adequately explain the
    basis for his decision.

[10]

For these reasons, the
    appeal is dismissed.

[11]

The appellants shall
    pay Energy Credit its costs of the appeal fixed in the amount of $6,500,
    inclusive of disbursements and applicable taxes.

Doherty
    J.A.

David
    Brown J.A.

Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fotiou (Re), 2020 ONCA 153

DATE: 20200226

DOCKET: C67102

Benotto,
    Huscroft and Jamal JJ.A.

IN THE MATTER OF: Theophilos Fotiou

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Megan Petrie, for the respondent,
    Attorney General of Ontario

Janice E. Blackburn, for the
    respondent, Person in Charge of St. Josephs Healthcare Hamilton

Heard: February 21, 2020

On appeal against the disposition of the
    Ontario Review Board dated May 23, 2019, with reasons dated June 10,
    2019.

REASONS FOR DECISION

Introduction

[1]

On March 6, 2019, the appellant was found not
    criminally responsible on account of mental disorder (NCR) on charges of
    assault causing bodily harm and assaulting a peace officer. The appellant had attacked
police officers who responded to a 911 call when the appellant
    threatened to kill one of his housemates. The police had attended at the same
    house a few nights earlier when the appellant had allegedly thrown a kitchen
    knife at another housemate. While being arrested the appellant punched two
    officers in the face, breaking one officers nose. He then made more death
    threats while receiving medical attention at the St. Josephs Healthcare
    Hamilton (St. Josephs). His bail pending trial was revoked for threatening another
    police officer. His threatening and aggressive behavior continued while he was in
    hospital.

[2]

The appellants
current diagnoses are schizoaffective disorder and substance abuse
    disorder. He has a long history of mental illness and hospitalizations, often
    on an involuntary basis, related to being undermedicated and engaging in
    bizarre and aggressive behaviour.

[3]

The appellant now appeals his initial
    disposition by the Ontario Review Board (the Board) dated May 23, 2019. The
    Board concluded that
the appellant posed
    a significant threat to the safety of the public and ordered him detained at
    St. Josephs, with privileges up to and including living in the community in
    approved accommodation.

Issues

[4]

The appellant raises two issues. First, he asserts that the Boards
    finding that he posed a significant threat to the safety of the public under
    s. 672.54(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46, is unreasonable under s. 672.78(1)(a) of the
Criminal Code.
Second, in the alternative, he asserts
    that the Board should have granted him a conditional discharge.

Discussion

(i)

Did the Board err in concluding that the appellant posed a significant
    threat to the safety of the public?

[5]

The appellant asserts that he lived in the community without incident
    for more than three years while on bail between the index offence and the NCR
    verdict and that it was purely speculative for the Board to conclude that he
    posed a greater risk at the time of the disposition than he did when he lived
    in the community. He also claims that the Board relied on circular logic in finding
    that the fact that he lived in the community without incident while on bail
    speaks to his level of wellness at the time, when the Board had no
    information about his mental condition at that time. Finally, he asserts that
    his risk has been escalating progressively while he has been in hospital and
    that the Board should have found that his enforced detention is worsening his
    mental state.

[6]

We reject this submission.

[7]

Absent a wrong decision on a question of law or a miscarriage of
    justice, this court may allow an appeal against a disposition of the Board only
    where it is of the opinion that the Boards disposition is unreasonable or
    cannot be supported by the evidence:
Criminal Code
,
    s. 672.78(1);
R. v. Owen
, 2003 SCC 33, [2003]
    1 S.C.R. 779, at paras. 31-32;
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at para. 34.
    In our view, the Boards decision was entirely reasonable having regard to its
    reasoning process and the outcome and properly reflected an internally
    coherent and rational chain of analysis that was justified in relation to the
    facts and law:
Vavilov
, at paras. 83, 85.

[8]

The Boards finding that the appellant posed a significant threat to
    the safety of the public was amply supported by the evidence cited at paras.
    50-51 of the Boards decision, including the expert evidence that the appellant
would now be deemed a high risk for repeated
    violent behaviour, his history of violent criminal conduct and record of
    police involvement associated with the numerous lapses in his mental disorder,
    his lack of insight into his mental condition, his refusal to consent to a
    medication increase recommended by his treatment team, and his history of
    falling away from treatment leading to assaultive behaviour.

[9]

The Board was also aware that the appellant had lived in the community
    while on bail and was entitled to find on the evidence that his condition had
    worsened to the point that he posed a significant threat. As the Board found:
    The assessment of risk is a dynamic process and, at the present time, the
    expert evidence before this Board assessed [the appellants] risk as falling
    within the
high
 range (emphasis in
    original). Further, contrary to the appellants allegation, the Board did have
    information about his mental condition while he was on bail, which showed that
    he was taking a higher dose of his antipsychotic medication at that time and
    that there was a likelihood he would deteriorate further and become aggressive
    again if he were to stop taking his medication. Both doctors who testified at
    the hearing also expressly rejected the suggestion that the appellants risk
    level and aggression were caused by being hospitalized, and instead concluded
    that they stemmed from his acute psychosis.

[10]

In
    sum, there was nothing unreasonable about the Boards reasoning process or its conclusion
    in finding that the appellant posed a significant threat to the safety of the
    public.

(ii)

Did the Board err in imposing a detention order rather than granting a
    conditional discharge?

[11]

The
    appellants second ground of appeal asserts that the Board should have granted
    him a conditional discharge. He claims that the reasons given by the Board for
    a detention order were pro forma and unconnected to his unique situation,
    including that he had been living in the community on bail without incident for
    more than three years.

[12]

We
    also reject this submission. The Board explained its rationale for imposing a
    detention order with community living privileges as being necessary to
    safeguard public protection for the following reasons, at para. 56:

In our opinion, the evidence presented indicates that the
    hospital requires the authority of a Detention Order for two critical risk
    management purposes. The first is to provide the hospital with the authority to
    approve Mr. Fotious community residence should he become a candidate for
    discharge to ensure that he is provided with the requisite level of support,
    monitoring and supervision. The second is to ensure that the hospital has the
    authority to promptly readmit Mr. Fotiou in the event that he relapses to
    substance use or otherwise suffers a significant deterioration in his mental
    status. A Conditional Discharge Disposition (even one containing a treatment
    condition) would not offer adequate safeguards for public protection.

[13]

It
    is well established that the Boards need to supervise housing justifies a
    detention order rather than a discharge: see
Munezero (Re)
,
    2017 ONCA 585, at para. 9;
R. v. Simpson
, 2010
    ONCA 302, at para. 4; and
Brockville Psychiatric Hospital
    v. McGillis
(1996), 93 O.A.C. 226 (C.A.), at para. 4. In our view, given
    that the appellant had threatened his housemates at the time of the index
    offence, the Board reasonably found its need to supervise his housing to be a
    critical risk management purpose that warranted a detention order.

[14]

We therefore see no basis to impugn the Boards reasoning process or its
    conclusion. The crafting of the specific terms of a disposition is properly
    left to the Boards specialized knowledge and expertise in assessing the NCR
    accuseds level of risk and how best to manage that risk:
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2
    S.C.R. 625, at paras. 59-61;
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; see also
Vavilov
, at para. 93. In the circumstances, the Boards
    decision to impose a detention order with community living privileges is
    entitled to deference.

Disposition

[15]

The
    appeal is dismissed.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gagnon (Re), 2020 ONCA 126

DATE: 20200214

DOCKET: C67155

Doherty, Brown and Thorburn
    JJ.A.

In the Matter of the Bankruptcy of Pierre
    Gagnon a.k.a. Pierre Gaston Gagnon of the Town of Oakville, in the Province of
    Ontario

Colby Linthwaite, for the appellant,
    Pierre Gagnon

Miranda Spence, for the respondent,
    Royal Bank of Canada

Heard: February 12, 2020

On appeal from the order of Justice Penny
    of the Superior Court of Justice, dated May 28, 2019.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the respondent has confirmed that
    there will be no attempt to cross-examine Mr. Gagnon on his affidavit before
    the disposition of the bankruptcy trial. The appeal is moot.

[2]

Although this court can exercise its discretion
    in favour of hearing a moot appeal having regard to the circumstances,
    including the well reasoned analysis of the issue provided by Penny J, we see
    no reason to exercise our discretion in favour of hearing the appeal.

[3]

The appeal is dismissed. Costs to the respondent
    in the amount of $2,500.


COURT OF APPEAL FOR ONTARIO

CITATION: Hannora (Re), 2020 ONCA 161

DATE: 20200228

DOCKET: C67176

Watt, Pardu and Roberts JJ.A.

IN THE MATTER OF:  Mwafak Hannora

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andrew Menchynski, for the appellant

Gavin MacDonald, for the respondent,
    Attorney General of Ontario

No one appearing for the respondent,
    the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard and released orally:
    February 25, 2020

On appeal against the disposition of the
    Ontario Review Board, dated April 17, 2019.

REASONS FOR DECISION

[1]

In our view, the reasons of the Board are
    manifestly insufficient to permit meaningful appellate review.

[2]

The reasons do not reveal that the Board engaged
    in any meaningful way with the issues of conditional discharge or expansion of
    the community passes to up to 72 hours.

[3]

In the result, we remit the matter to the Board,
    differently constituted, to conduct a new hearing to consider, among other
    issues, whether a conditional discharge or expanded community privileges should
    be imposed or included in the disposition. This new hearing should be held as
    expeditiously as possible, preferably in advance of the next scheduled annual
    review. The current disposition shall remain in effect until that time.

David Watt J.A.

G. Pardu J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ingarra v. 301099 Ontario Limited
    (Previn Court Homes), 2020 ONCA 103

DATE: 20200211

DOCKET: C67092

Simmons, Lauwers and Nordheimer
    JJ.A.

BETWEEN

Anthony John Ingarra

Applicant (Respondent)

and

301099 Ontario Limited o/a
    Previn Court Homes

Respondent (Appellant)

Ian P. Katchin, for the appellant

Nicholas J. Cartel and Glenn Brandys,
    for the respondent

Heard: January 24, 2020

On appeal from the judgment of Justice Jessica
    Kimmel of the Superior Court of Justice, dated May 30, 2019, with reasons
    reported at 2019 ONSC 3347.

Lauwers
    J.A.:

[1]

Anthony John Ingarra bought a home from Previn
    Homes in a new residential subdivision. The transaction did not close. On March
    20, 2018 Mr. Ingarra brought an application seeking the interpretation of
    the agreement of purchase and sale between the parties and an order for
    specific performance. The house was later sold by Previn Homes to another buyer.

[2]

The application judge dealt with the
    interpretation issue but not the remedy. She found that Previn Homes breached
    the agreement, not Mr. Ingarra and granted declarations to that effect. She
    also found that Mr. Ingarra was entitled to a remedy to be determined in later proceedings.

[3]

For the reasons set out below, I would allow the
    appeal and dismiss Mr. Ingarras application.

Factual Context

[4]

The agreement of purchase and sale was
    dated March 26, 2016. Because it was for a new home, it included a Tarion
    Addendum, which governs the relations between the parties, in part. The Tarion
    Addendum derives from the
Ontario New Home Warranties Plan Act
, R.S.O. 1990, c. O.31, as amended.

[5]

Under the
    terms of the agreement and the Tarion Addendum, the parties fixed what the
Tarion Addendum
called a Firm Closing
    Date for January 11, 2017.

[6]

Previn Homes
    was required to provide an occupancy permit to Mr. Ingarra on or before the
    closing. The occupancy permit was not provided until January 12, 2018. Previn
    Homes was therefore not in a position to close on the Firm Closing Date.

[7]

For his part, Mr.
    Ingarra was also not in a position to close on the Firm Closing Date because he
    was not yet in funds. His lender needed five days from its appraisal to
    complete the process and approve the loan. However, when the appraiser attended
    on January 8, 2018, the home  was not complete because the exterior bricks and
    soffits/fascia had not been installed. Mr. Ingarras counsel sent a letter to
Previn Homes counsel, dated January 11, 2018. It stated:

Our clients lender B2B Bank completed their
    appraisal of the subject property and advised that the exterior of the property
    is not complete as required by them in order to advance. Accordingly an
    extension is required until their advance criteria can be met.

[8]

Although the Tarion Addendum prescribes a
    framework for changing dates the parties did not follow that framework. Instead
    by agreement between the lawyers, the closing date was extended to January 15,
    2018. By letter dated January 15, 2018, Mr. Ingarras counsel wrote to counsel
    for Previn Homes requesting an additional extension:

Our client requires an extension to tomorrow
    (January 16, 2018) as his lender has not completed the Appraisal. Kindly
    contact your client and advise.

[9]

Counsel for Previn Homes agreed in
    correspondence on January 15, 2018:

Further to your request, my client agrees to
    extend the closing of the above-noted transaction to no later than Wednesday
    January 17, 2018 with adjustments remaining as at January 11, 2017 [sic]. All
    other terms of the Agreement of Purchase and Sale are to remain the same and time
    is to remain of the essence.

[10]

Mr. Ingarra was not in funds on January 17, 2018
    and was unable to close. By letter that day, his counsel requested an additional
    extension to January 18, 2018, but counsel for Previn Homes refused, stating in
    his responding letter:

Unfortunately, my client which has been more
    than reasonable in granting extensions without requiring the payment of an
    extension fee, has lost its confidence in your clients ability to close this
    transaction, and is simply not prepared to grant any further extensions.

Under the circumstances, my client hereby
    declares your client in breach of the Agreement of Purchase and Sale, considers
    the Agreement of Purchase and Sale to be at an end and deems the deposit paid
    as forfeited. It is the intention of my client to now relist the property for
    sale.

The Issue

[11]

The application judge correctly identified the
    issue at para. 46 of her reasons:

The decision in this case comes down to
    whether the agreement between the lawyers (made orally and through the exchange
    of faxes and emails) to extend the agreed upon Firm Closing Date to the Interim
    Closing Dates (with adjustments remaining as at January 11, 2018) superseded
    the operation and effect of the provisions of the Tarion Addendum.

The Decision Under Appeal

[12]

The application judge found that the parties did
    not have the contractual freedom to set a closing date outside of the confines
    of the Tarion Addendum. She stated, at para. 46:

Their agreement did not comply with the
    requirements prescribed by section 4 of the Tarion Addendum, which the parties
    were clearly familiar with having adhered to them when the Amending Agreement
    was entered into on August 3, 2017. Their failed efforts to retroactively
    preserve the January 11, 2018 Firm Closing Date through the agreement to
    Interim Closing Dates have no legal effect.

[13]

Previn Homes
    had options regarding the setting of a new closing date under the Tarion
    Addendum. However, it took no steps on January 11, 2018 to set a new closing
    date under the Tarion Addendum framework. As a result, the application judge
    found that, s. 3(c) of the Tarion Addendum operated to set a new Delayed
    Closing Date 90 days after the Firm Closing Date, on April 11, 2018: at para.
    56. The provision states:

If notice of a new Delayed Closing Date is not
    given by the Vendor before the Firm Closing Date, the new Delayed Closing Date
    shall be deemed to be the date which is 90 days after the Firm Closing Date.

[14]

The application judge held that s. 4 of the
    Tarion Addendum limited the contractual freedom of the parties to set a new
    closing date and that s. 13 gave the Addendum precedence: at paras. 47-48.
    The application judge, at para. 41, rooted this effect in the consumer
    protection objectives of the legislation, citing the trial decision in
Sirisena v. Oakdale Village Homes Inc.
,
2010 ONSC 2996
,
100
    R.P.R. (4th) 94
, at paras. 11 and 45-53, affd
2013 ONSC 1051
,
30 R.P.R. (5th) 31
(Div. Ct.).

[15]

The application judge considered the
    requirements prescribed by s. 4 and concluded, at para. 51:

The purported amendments to the Firm Closing
    Date that were reflected in the agreement between the lawyers were voidable by
    the Purchaser by virtue of section 4(a) of the Tarion Addendum and were voided
    by the Purchaser's continued efforts to complete the APS notwithstanding the
    Vendor's purported (and invalid) termination of it on January 17, 2018.

[16]

In consequence, the application judge found, at
    para. 54:
The Vendor's purported termination of the
    APS on January 17, 2018 was invalid. She did this on the basis that: None of
    the permitted grounds for termination under section 10 of the Tarion Addendum
    were available to the Vendor.

Analysis

[17]

I agree with
    the application judge that s. 3(c) of the Tarion Addendum operated to set a new
    Delayed Closing Date 90 days after the Firm Closing Date, on April 11, 2018:
    at para. 56. However, she erred in finding that the parties were not free to
    set a new advanced closing date before the Delayed Closing Date, outside of the
    confines of the Tarion Addendum.

[18]

It is not surprising that the lawyers did not
    use the cumbersome, paper-intensive and therefore expensive process set out in
    s. 4 of the Tarion Addendum, part of which is reproduced in the appendix to
    these reasons, to set new closing dates. Were they free to set new closing
    dates in the manner they did? In my view they were, for two reasons.

[19]

First, s. 4 of the Tarion Addendum does not
    render unenforceable non-compliant amendments. Despite stating that the Addendum
    sets out a framework for altering the Critical dates which cannot be altered
    contractually except as set out in this section 4, the last sentence in s.
    4(a) provides: Any amendment not in accordance with this section is
voidable
at the option of the Purchaser (emphasis added). A non-compliant amendment altering
    the closing date is not invalid as the application judge found. It is only
    voidable.

[20]

The failure to close on the Firm Closing Date of
    January 11, 2018 had the effect of leaving either party free to specify a new
    closing date on reasonable notice and restore the force of the time of the
    essence provision: see
Domicile Developments Inc. v. MacTavish
(1999),
    45 O.R. (3d) 302 (C.A.) and
King v. Urban & Country Transport Ltd.
(1973), 1 O.R. (2d) 449 (C.A.). This was the effect of the letter from counsel
    for Previn Homes, who gave an extension one day longer than Mr. Ingarras
    counsel requested. It was not argued before the application judge nor before this
    court that notice of the new closing date was unreasonable, nor was it
    unreasonable under the circumstances.

[21]

Second, s. 10 of the Tarion Addendum addresses
    Termination of the Purchase Agreement. Section 10(e) provides: Nothing in
    this Addendum derogates from any right of termination that either the Purchaser
    or the Vendor may have at law or in equity on the basis of, for example,
    frustration of contract or fundamental breach of contract.
Since Mr. Ingarra was not in funds to close on the new agreed closing
    date, it was open to Previn Homes to terminate the agreement of purchase and
    sale. Doing so was not prohibited by the Tarion Addendum.

[22]

In my view the application judge was correct in
    her conclusion, at para. 51, that:
The purported
    amendments to the Firm Closing Date that were reflected in the agreement
    between the lawyers were voidable by the Purchaser by virtue of section 4(a) of
    the Tarion Addendum. But she erred in finding that the amended closing date
    was voided by the Purchaser's continued efforts to complete the APS
    notwithstanding the Vendor's purported (and invalid) termination of it on
    January 17, 2018. To the contrary, as the Purchaser had not by then exercised
    his right to void the lawyers agreement, Previn Homes termination was valid
    under s. 10(e) of the Tarion Addendum.

[23]

I reach this conclusion without satisfaction. The
    Tarion Addendum is not consumer protective by any stretch of the imagination.
    The current document is only marginally better drafted than its predecessor,
    which I described in the trial decision in
Sirasena,
at para. 11, as containing
    consumer-unfriendly language. It is consistent with Lord Devlins sardonic
    remark:
This sort of document is
    not meant to be read, still less to be understood:
McCutcheon v. David
    MacBrayne Ltd.
, [1964] 1 W.L.R.
    125
(U.K. H.L.).

[24]

The Tarion Addendum

is a small-font, single spaced, convoluted and confusingly long and
    obscure document, as s. 4 in the appendix to these reasons amply shows. It is a
    trap for the unwary, particularly the unwary lay person. Before Previn Homes terminated
    the agreement of purchase and sale on January 17, 2018, Mr. Ingarra had the option
    to void the newly set closing date, because the alteration was not compliant
    with s. 4 of the Addendum. The deemed Delayed Closing Date on April 11, 2018
    would then have been effective. However, he did not expressly do so. The
    Addendum is the territory of real estate lawyers, and any lawyer practising
    residential real estate involving new homes must be familiar with its terms, as
    we assume the lawyers were in this case.

Disposition

[25]

I would allow the appeal with costs to the
    appellant in the amount of $15,000 all-inclusive and reverse the costs payable
    in the court below.

Released: P.L. February 11, 2020

P.
    Lauwers J.A.

I
    agree. Janet Simmons J.A.

I
    agree.
I.V.B. Nordheimer J.A.

Appendix

Section 4 provides, in part:

4. Changing Critical Dates  By
    Mutual Agreement

(a) This Addendum sets out a
    framework for setting, extending and/or accelerating Critical dates, which
    cannot be altered contractually except as set out in this section 4. Any
    amendment not in accordance with this section is voidable at the option of the
    Purchaser.

(b) The Vendor and Purchaser may at
    any time, after signing the Purchase Agreement, mutually agree in writing to
    accelerate or extend any of the Critical Dates. Any amendment which accelerates
    or extends any of the Critical Dates must include the following provisions:

(i) the
    Purchaser and Vendor agree that the amendment is entirely voluntary  the
    Purchaser has no obligation to sign the amendment and each understands that
    this purchase transaction will still be valid if the Purchaser does not sign
    this amendment;

(ii) the
    amendment includes a revised Statement of Critical Dates which replaces the
    previous Statement of Critical Dates;

(iii) the
    Purchaser acknowledges that the amendment may affect delayed closing
    compensation payable; and

(iv) if
    the change involves extending either the Firm Closing Date or the Delayed
    Closing Date, then the amending agreement shall:

i. disclose
    to the Purchaser that the signing of the amendment may result in the loss of
    delaying closing compensation as described in section 7;

ii. unless
    there is an express waiver of compensation, describe in reasonable detail the
    cash amount, goods, services, or other consideration which the Purchaser
    accepts as compensation; and

iii. contain
    a statement by the Purchaser that the Purchaser waives compensation or accepts
    the compensation referred to in clause ii above, in either case, in full
    satisfaction of any delayed closing compensation payable by the Vendor for the
    period up to the new Firm Closing Date or Delayed Closing Date.

If the Purchaser for his or her own
    purposes requests a change of the Firm Closing Date or the Delayed Closing
    Date, then subparagraphs (b)(i), (iii) and (iv) above shall not apply.


COURT OF APPEAL FOR ONTARIO

CITATION: Jaffrey (Re), 2020 ONCA 113

DATE: 20200211

DOCKET: C67112

Rouleau, Benotto and Harvison
    Young JJ.A.

IN THE MATTER OF:  Syed Jaffrey

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Andrew Cappell, for the Crown

Michele Warner, for the Centre for
    Addiction and Mental Health

Heard: February 7, 2020

On appeal against the disposition of the
    Ontario Review Board dated, April 11, 2019.

APPEAL BOOK ENDORSEMENT

[1]

The parties agree that, in light of the later
    board disposition, this appeal is moot.

[2]

As a result, it is dismissed as being moot.


COURT OF APPEAL FOR ONTARIO

CITATION: Kraemer v. Kraemer, 2020 ONCA 91

DATE: 20200205

DOCKET: C67284

MacPherson, Sharpe and Jamal JJ.A.

BETWEEN

Stacey
    Kraemer

Applicant (Respondent)

and

Lawrence Kraemer

Respondent (Appellant)

and

Gus Stahlmann

Respondent (Respondent)

Patrick J. Kraemer, for the appellant

Terrah Smith, for the respondent Gus
    Stahlmann

Stacey Kraemer, acting in person

Heard: February 4, 2020

On
    appeal from the judgment of Justice Nancy M. Mossip of the Superior Court of
    Justice, dated July 8, 2019.

REASONS FOR DECISION

[1]

Larry and Stacey Kraemer were married in 2001.
    They separated in 2015 and are involved in matrimonial proceedings.

[2]

Larry and Stacey jointly own a home in Elora. In
    2007, Staceys parents, Gus and Jan Stahlmann, paid just over $216,000 for
    improvements to the property, including the construction of a granny suite
    where they came to live. Jan died in 2013 and Gus continued to live in the
    granny suite.

[3]

After Gus and Jan moved into the home, the parties
    entered into a Licence Agreement with the assistance of legal counsel (the
    Agreement). The Agreement provides:

WHEREAS:

1.
Lawrence and Stacey (hereinafter
    collectively referred to as the Licensors) are the registered owners of the
    premises municipally known as 7577 Sixth Line, RR #2, Elora  and are spouses
    of one another;

2.
Gus and Janice (hereinafter collectively
    referred to as the Licensees) are the biological parents of Stacey and are
    spouses of one another;

3.
In consideration of the sum of ONE
    HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($165,000.00), which sum is secured by a
    demand mortgage agreement attached hereto as Schedule B  the Licensors wish
    to grant to the Licensees a licence to occupy a portion of the Primary
    Residence  together with two (2) outdoor parking spaces.

.

9.
Licensee Covenants

The Licensees covenant

(e) not to register the Mortgage Agreement on title to the Primary
    Residence unless the Licensee has provided 14 business days notice of demand
    for payment thereunder and the Licensor has failed to pay the amount so
    demanded on or before the expiration of such 14 business days.

[4]

After Larrys and Staceys marriage collapsed,
    Gus sought, unsuccessfully, to register the mortgage. Both Gus and Stacey
    commenced legal proceedings. Gus withdrew his and joined Staceys proceedings. The
    matter came before Mossip J., with all three parties agreeing that a summary
    judgment motion was the appropriate route for resolution. The effect of the
    potential resolution was, as explained by the motion judge:

If Gus is entitled to the mortgage, or other
    relief which recognizes that the parties owe Gus the amount set out in the
    Agreement and the mortgage, that amount will be included in the Net Family
    Property calculation of the parties as a debt owed equally by them to Gus.

[5]

At the motion hearing, the core of Larrys
    submission was that the $165,000 secured by the Agreement was a gift. The
    motion judge rejected this submission:

I am satisfied based on the jurisprudence
    applied to the evidence in this case, that there was a clear demonstration that
    the money advanced to complete the granny flat, secured by a demand mortgage,
    was a loan and not a gift. There was no evidence that the money advanced was a
    gift, except Larrys personal belief that it was.

[6]

The motion judge concluded that there is a
    valid and enforceable Agreement and demand mortgage and Gus is legally
    entitled to register the demand mortgage for $165,000. He can make demand on
    this mortgage for the principal amount owing, pursuant to the Agreement.

[7]

Larry raises three issues on this appeal.

[8]

First, Larry submits that the motion judge erred
    in determining that the Agreement is a valid licence. According to Larry, the
    Agreement is a lease of property, not a licence.

[9]

We do not accept this submission. The parties
    were represented by lawyers as they worked together to draw up the Agreement.
    The entire Agreement, starting with the title and continuing through its
    provisions, is a licence, not a lease. Accordingly, it is not surprising that
    the motion judges conclusion on this issue, with which we agree, was expressed
    in relatively blunt language:

The submission that the Agreement is really a
    lease, is simply put forward as a proposition by Larry without any legal basis
    to do so.

Accordingly, I am satisfied that the Agreement
    was in fact exactly what it said it was, and what the parties intended it to
    be. It was an agreement for Larry and Stacey to license a certain part of their
    home to Gus, in consideration of the sum of $165,000, which was secured by a
    demand mortgage agreement.

[10]

In light of this conclusion, it is not necessary
    to consider the second component of Larrys argument on this issue, namely,
    that if the Agreement is a lease, it is invalid because it does not contain
    some of the key features of a lease (e.g. a rent provision).

[11]

Second, Larry contends that the motion judge
    erred by determining that the money paid for the construction of the granny
    suite was not a gift.

[12]

We disagree. We start with an obvious point. If
    Gus and Jan, Staceys parents, intended to give $165,000 to Stacey and Larry,
    they hardly needed to engage separate lawyers to negotiate and ultimately
    finalize a 12-page, 12 section formal document with the title Licence
    Agreement and a Schedule titled Mortgage Agreement. There is nothing in
    these documents to even remotely suggest that Gus and Jan were making a
    $165,000 gift to Stacey and Larry. We agree with the motion judge: If the
    advance was a gift, the drafting and execution of the Agreement makes no
    sense.

[13]

Third, and in the alternative, if the Agreement
    is a licence/demand mortgage, Larry asserts that the face value of the
    mortgage, $165,000, should be discounted by the portion of time that Gus has
    lived in the granny suite. The discount Larry proposes is that portion of the 21-year
    duration of the licence in which Gus has lived there (i.e., $165,000
    ($165,000 x 12 ½/21 years) = $66,785.70).

[14]

We are not persuaded by this submission. It
    ignores s. 4 of the Agreement whereby Gus waives any interest on the $165,000
    while he lives in the granny suite. We agree with the motion judge:

Given  the clear language in the Agreement,
    there is no legal basis to make this submission. There is no basis to discount
    the principal amount secured by the mortgage.

Such an assertion creates a term in the
    Agreement that is simply not there. There is no evidence that the parties
    intended such a discount to be applied.

[15]

The appeal is dismissed. Gus and Stacey are entitled
    to their costs of the appeal fixed at $15,000 and $6,000 respectively,
    inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

Robert
    J. Sharpe J.A.

M.
    Jamal J.A.