COURT OF APPEAL FOR ONTARIO

CITATION: Gadbois v. Newcom Business Media Inc., 2016 ONCA
    898

DATE: 20161129

DOCKET: C62152

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Marc Gadbois

Respondent (Plaintiff)

and

Newcom Business Media Inc.

Appellant (Defendant)

John A. Howlett, for the appellant

Daniel Chodos, for the respondent

Heard: November 8, 2016

On appeal from the judgment of Justice Sidney N. Lederman of the
    Superior Court of Justice, dated April 8, 2016, with reasons reported at 2016
    ONSC 2310.

ENDORSEMENT

[1]

Mr. Gadbois was terminated without notice from his employment. He
    brought an action for damages for wrongful dismissal and the trial judge
    determined the period of reasonable notice was 16 months. That determination is
    not at issue in this appeal. The issue is the amount that the appellant is
    entitled to receive in compensation as damages for the failure to give him
    reasonable notice of termination. Gadbois compensation had three components:
    base salary, commission income and bonus, if any. The commission income and
    bonus form the subject of this appeal.

[2]

The following facts are relevant to the commission income issue.

[3]

Gadbois was primarily responsible for selling advertising space in two
    magazines owned by Business Information Group (BIG), namely,
Service
    Station Garage Management
(SSGM) and
Lautomobile
. Newcom
    acquired the assets of BIG in January 2015 and retained Gadbois. The parties
    signed a new employment contract on January 24, 2015, which essentially
    provided for the same salary, commission, bonus and benefits as Gadbois had
    been receiving from BIG.

[4]

Newcom merged its pre-existing publication
Canadian Technician
(CT) with SSGM to form a new magazine:
Canadian Auto Repair & Service
(CARS).
Upon merging, Newcoms existing CT advertising
    contracts were handed over to Gadbois so that he could arrange with the clients
    to switch their ads into CARS.
Emails from Newcoms representative Joe
    Glionna to Gadbois, dated January 31 to February 27, 2015 indicated he was to
    make efforts to convince CT advertisers to switch their advertising into CARS
    and they would talk commission later. The parties agree that a new agreement on
    commission was never reached.

[5]

Newcom submits that Gadbois did not earn commission on the CT sales
    because they were simply switched into CARS and the trial judge erred in
    awarding Gadbois commission based on the full amount of CARS advertising
    revenue.

[6]

The fact is that for the first six months of the year preceding his
    termination, Gadbois was paid commission respecting advertising for CARS,
    including the CT sales, at the rate stipulated for SSGM in the contract. It was
    open to the trial judge to hold that as Newcom had continued to pay Gadbois for
    all CARS revenue at the commission rate under the SSGM contract this should be
    continued during the notice period. The trial judge did not commit any
    overriding and palpable error in this regard.

[7]

With respect to the bonus, the
    appellant submits that the motion judge erred in awarding a bonus for 2015.
    Specifically, the appellant points to the evidence of its representative and
    submits that it did not support the motion judges conclusion that the
    appellant had promised the respondent he would receive a bonus regardless of
    the companys profits.

[8]

We agree.

[9]

There is no question that a
    judges findings of fact are entitled to deference and cannot be disturbed on
    appeal in the absence of overriding and palpable error, such as a
    misapprehension of the evidence. In our view, the motion judge erred by misapprehending
    the evidence given by the appellants representative, which was the foundation
    for his conclusion that a bonus was promised and should be paid to the
    respondent.

[10]

Mr. Glionna testified as follows:

Also, some people were compensated based on a bonus on profit,
    and obviously with bank debt and changes, theres no profit in the company for
    the next couple of years, we honoured  we told Mr. Gadbois and other sales
    reps and other publishers that we would honour those bonuses, you know, despite
    the fact that there really would be no profit in the company.

So the basic message was we would guarantee nobody goes down
    after all the changes were taking place throughout transition.

[11]

In our view, Mr. Glionnas evidence about payment of bonuses ought to
    have been read in the context of the entirety of his evidence that qualified it.
    In the portion of the transcript immediately preceding this excerpt, Mr.
    Glionna explained that the company had given all sales representatives a
    guarantee that their total compensation for 2015 would not decrease relative to
    the previous years because of the change in ownership. He then went on to
    explain, as noted above, that the company understood that some people were
    compensated based on a bonus on profit. Those bonuses would be honoured so
    that compensation for those employees would not decrease in 2015. And again, in
    the portion following the above excerpt, Mr. Glionna confirmed that we
    guaranteed Mr. Gadbois would not have a decrease in total compensation over the
    previous years is what was guaranteed.

[12]

Moreover, this evidence had to be considered in light of all of the evidence
    before the motion judge. Specifically, the evidence was that the respondents
    bonus was discretionary and that none had been paid to him in 2014. Further,
    because of the commissions he earned, his 2015 compensation, including the pay
    in lieu of reasonable notice awarded by the motion judge, greatly exceeded what
    he received in 2014. Even in the absence of any bonus, his income went from
    $88,605 in 2014 to well in excess of $130,000 in 2015.

[13]

Finally, the respondent does not
    allege, in his affidavit, that he was promised a bonus regardless of the
    companys profits. The respondent did not give any evidence that the appellant
    made a verbal commitment to pay a bonus regardless of the companys profits. Indeed,
    on his cross-examination, the respondent testified that he could not recall
    having any conversation with the appellant concerning a verbal commitment that
    his 2015 compensation would not be less than his rate of compensation in 2014.

[14]

As a result, we would therefore
    allow the appeal with respect to the bonus issue.

Disposition

[15]

Accordingly, we dismiss the appeal
    with respect to the motion judges award of commission but allow the appeal
    with respect to the payment of a bonus to the respondent during the period of
    reasonable notice. We leave it to the parties to calculate the adjustment to
    the amount of damages otherwise payable to the respondent.

[16]

The appellant argues that, in
    light of the reduction in the damages awarded to the respondent, the cost award
    in the court below should be revisited. Specifically, the costs awarded below
    were based on partial indemnity up to October 13, 2015, the date of the
    respondents offer to settle, and substantial indemnity thereafter. The
    reduction in the award has brought the award below the amount in the offer to
    settle.

[17]

For his part, the respondent
    argues that the cost award of $28,000 plus HST was a negotiated figure and
    reflects a reduction in the amount that he could have properly claimed.

[18]

In our view, a modest cost
    adjustment is appropriate in the circumstances. Significant costs will have
    been incurred after the date of the offer to settle and the inability to
    recover those costs on a substantial indemnity basis dictates a reduction in
    the amount awarded. As a result we would reduce the costs awarded on the motion
    to $22,000 plus HST.

[19]

As for the costs of the appeal,
    the respondent was largely successful and is awarded costs fixed at $7,500
    inclusive of disbursements and applicable taxes.

K.M.
    Weiler J.A.

Paul
    Rouleau J.A.

Lois Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hall v.
Jones DesLauriers Insurance
    Management Inc., 2016 ONCA 877

DATE: 20161118

DOCKET: C60206

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Stephen Hall

Plaintiff (Respondent)

and

Jones DesLauriers Insurance
    Management Inc.
,
    Jones DesLauriers Group of Companies Ltd., Shawn Desantis, Robert Jones, Lori
    McDougall, Glenn Murray, Daniel Sgro and Cory Struck

Defendants (Appellants)

Martin Sclisizzi, for the appellants

Christopher Cosgriffe and R. Watkins, for the respondent

Heard and released orally: November 14, 2016

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated March 9, 2015.

ENDORSEMENT

[1]

The motion judge granted partial summary judgment allowing the action
    for wrongful dismissal and awarding damages based on one year. The motion judge
    gave initial reasons for his decision, then allowed a re-hearing of the motion
    based on evidence that was ordered preserved at the original hearing, but only
    produced and cross-examined upon afterward. That evidence included an
    employment contract with another firm that was signed by the respondent after
    the termination, but was sent to the respondent before the termination. The
    motion judge held that the new evidence was inadmissible, but in any event
    would not have affected his decision. The motion judge also declined to order a
    stay pending trial of the counter-claim and oppression action.

[2]

In our view the order below must be set aside. The motion judge erred in
    failing to admit the new evidence. That evidence raised issues regarding the
    respondents actions and intentions around the time of his dismissal that had
    to be addressed by the motion judge before granting summary judgment for
    wrongful dismissal. His failure to do so undermines the reliability of his
    decision on the key issue. The motion judge also mistakenly believed that the
    damages based on one year had been agreed. The quantum of damages and the issue
    of mitigation were, however, live issues.

[3]

As there is to be a trial of the counter-claim and the oppression action
    where credibility findings will be made, in our view this is a proper case
    where the entire matter should be referred for trial.

[4]

The appeal is therefore allowed. The order below set aside with costs of
    the appeal in the agreed amount of $15,000, inclusive of disbursements and HST.

K.
    Feldman J.A.

P.
    Lauwers J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854

DATE: 20161114

DOCKET: C61565

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Catherine Hamblin

Appellant

and

The Standard Life Assurance Company of Canada

Respondent

Erin M. Neal, for the appellant

Gordon Jermane, for the respondent

Heard: November 8, 2016

On appeal from the judgment of Justice John R. McCarthy
    of the Superior Court of Justice, dated December 15, 2015.

ENDORSEMENT

[1]

After hearing submissions of counsel we dismissed the appeal with
    reasons to follow. These are our reasons.

[2]

The application judge held that the respondent was entitled to reduce the
    Long-Term Disability Income (LTD) payments it was making to the appellant,
    under its Group Insurance Plan as a result of the appellants first accident,
    by the amount of the Non-Earner Benefit (NEB) she was receiving from her own
    insurer under O. Reg. 34/10
Statutory Accident Benefits Schedule
    Effective September 1, 2010
(
SABS
), as a result of her second
    accident.

[3]

The appellant was not working at the time of her second accident. She
    elected to receive the NEB under s. 12(1) of the
SABS
. In order to
    qualify, she was required to establish that she suffered complete inability to
    carry on a normal life as a result of and within 104 weeks after the accident
    and that she did not qualify for an income replacement benefit.

[4]

Under s. 12(2) of the
SABS
, the appellants automobile accident
    insurer was entitled to deduct the LTD payments from the amount of the NEB
    payable but, for reasons that were not explained, it did not do so.

[5]

However, under the terms of its Group Insurance Plan, the respondent was
    entitled to reduce the monthly LTD payments by any disability or retirement
    benefit  payable  under  a provincial auto insurance law. After being
    notified by the appellant that she was receiving the NEB, the respondent began
    to deduct the amount of the NEB from its LTD payments. It takes the position
    that it is entitled to do so as long as the appellants auto insurer does not
    deduct the LTD payment from the NEB.

[6]

The application judge found that the words any disability  benefit
    were broad enough to cover the NEB, which he found was a disability benefit
    payable because of impairments which render a person completely unable to carry
    on a normal life. The deduction of the NEB was consistent with the LTD policy
    being one of indemnity.

[7]

The parties agree that the standard of review applicable to the
    insurance policy was correctness. In the absence of any evidence about the
    factual matrix of the contract, we proceed on this basis.

[8]

In our view, the application judges interpretation was correct. There
    was no dispute that the NEB was payable under provincial auto insurance law and
    it was clearly a disability  benefit.

[9]

The appellant relies on
Bannon v. McNeely
(1998), 38 O.R. (3d)
    659 (C.A.), to support her argument that the no-fault
SABS
are to be
    deducted from other payments on an apples for apples basis. She argues, based
    on
Walker v. Ritchie
(2005), 197 O.A.C. 81 (C.A.), revd on other
    grounds, 2006 SCC 45, that the NEB is not an income benefit. Based on the
    apples from apples principle, she says, the NEB should not be deducted from
    the LTD payments, which are income benefits.

[10]

We do not accept this submission.
Bannon
dealt with
    statutorily-mandated deductions from tort damage awards pursuant to s. 267 of the
Insurance Act
, R.S.O. 1990, c. I.8. By contrast, the deduction at
    issue in this appeal arises by virtue of the terms of the respondents policy
    of insurance. One must look to the language of the policy to determine the
    issue of deductibility. In our view, the policy language was clear and
    unambiguous and mandated the deduction.

[11]

Nor do we accept the submission that the result gives the respondent a
    windfall. A deduction permitted by the plain language of the policy is not a
    windfall.

[12]

For these reasons, the appeal is dismissed, with costs payable to the
    respondent fixed at $2,500.00, inclusive of disbursements and all applicable
    taxes.

G. R. Strathy C.J.O.

G. Pardu J.A.

D.M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hamilton v. Bluewater Recycling Association, 2016
    ONCA 805

DATE: 20161103

DOCKET: C60368

Hoy A.C.J.O., Benotto
    and Huscroft JJ.A.

BETWEEN

Matthew Hamilton and
    Sophie Marion

Plaintiffs (Appellants)

and

Bluewater Recycling
    Association and John Keith Bonnett

Defendants (Respondents)

John J. Adair, Joseph Sidiropoulos, and Jeffrey Hernaez
    for the appellants

Paul Tushinski, Stephen A. Mullings, and Jennifer
    Arduini for the respondents

Heard: October 6, 2016

On appeal from the judgment of
    Justice James W.  Sloan of the Superior Court, sitting with a jury, dated
    August 13, 2015.

By the Court:

[1]

At the conclusion of a 13-day trial, a jury found the
    plaintiff/appellant Matthew Hamilton 100% responsible for the injuries he
    sustained when the motorcycle he was driving collided with the respondents recycling
    truck driven by the defendant/respondent John Bonnett. The trial judge granted
    judgment in accordance with the jurys verdict. Mr. Hamilton and his spouse
    appeal that judgment.

[2]

For the reasons that follow, the appeal is dismissed.

The accident

[3]

The accident occurred early in the morning of August 11, 2010 in southwestern
    Ontario where Road 130 and Line 39 intersect. Bonnett in his recycling truck and
    Hamilton on his motorcycle were travelling eastbound on Line 39. Gary Roth, an
    independent witness
at the trial
, was
    driving a van and was stopped on Road 130, facing south. The sun was rising and
    there was fog in the area. Hamilton, Bonnett and Roth provided differing
    evidence as to the extent of the fog.

[4]

Hamilton said there was some fog
    in the fields, thats like every day in the summer there; Bonnett described
    the conditions as thick, soupy fog; Roth described patchy fog. The police
    officers who were first responders, PC Rowbotham and Sinko, reported fog in the
    area. Rowbotham described the area as foggy in patches, and reported fog at
    the location of the accident. Sinko testified that there were areas of thicker
    fog and  areas where it was foggy but yet you could see. The investigating
    officer, PC McComb, described foggy conditions as he drove to the accident
    scene.

[5]

Evidence as to visibility at the
    time of the accident also varied. At discovery Bonnett said that at the time of
    the incident he could see a little better than from telephone poll to
    telephone pole ahead, but he testified that all he saw in his mirror was fog.
    Roth testified that visibility at the intersection was good and that he could
    see 500 feet or more up Line 39.

[6]

Bonnett testified that the caution
    lights on the top of the truck were on, as were the headlights and a strobe
    light on the top left side of the truck. The truck was equipped with steering
    wheels on both the left and right hand sides, and Bonnett was driving the truck
    from the right hand side. He testified that he braked as he approached the
    intersection and was travelling at a relatively low rate of speed. His left-turn
    signal was on.

[7]

Bonnett testified, further, that
    he observed Roths van stopped on Road 130, facing southbound. As he entered
    the intersection he steered his truck to the right to some extent in order to
    go around the van, which had pulled forward slightly into the intersection in
    order to obtain a better view of oncoming traffic.

[8]

Hamilton testified that he thought
    Bonnetts truck was pulling over, although he wasnt sure if it was to stop or
    to yield the road to him. He testified that the truck did not have its
    left-turn signal on. Bonnett testified that his left-turn signal was on.
    Hamilton did not contest the matter on appeal.

[9]

Hamilton pulled out to pass Bonnetts truck. He testified that he was driving
    below the speed limit prior to attempting to pass the truck. He did not sound
    his horn before executing his passing manoeuvre.

[10]

Bonnett testified that he had
    checked his mirrors regularly and never saw Hamilton approaching from behind or
    attempting to pass. He said that all he saw behind him was fog. The truck was
    equipped with a camera showing the left side of the truck, as well as a sonar
    device that sounds an alarm when it detects something on the left side of the
    truck. Bonnett testified that the alarm did not sound prior to him making the
    left turn.

[11]

Hamilton testified that as the
    truck turned left in front of him he slammed on his brakes. He realized he
    could not stop in time and he put the motorcycle between him and the truck and
    slid into it.

[12]

Tragically, Hamilton was rendered paraplegic
    as a result of the accident. The parties agreed his damages were $8,000,000.

The jurys verdict

[13]

The jury found Hamilton 100%
    responsible for the accident and provided two reasons:

·

A reasonably prudent motorist
  would not have made the decision to overtake the recycling truck.

·

A reasonably prudent motorist
  should have had enough control to navigate an unexpected situation and come to
  a complete stop if necessary in this scenario.

Issues on appeal
[14]

The appellants argue that the
    jurys verdict was unreasonable because there was incontrovertible evidence of
    Bonnetts negligence. They say that the jury should not have found Hamilton 100%
    responsible. They contend that the evidence established that Bonnett was
    negligent in three ways:

1.

He breached s. 142(1) of the
Highway
  Traffic Act
, R.S.O. 1990, c. H.8,
by failing to see whether his left turn could be made
  safely;

2.

He breached s. 141(6) of the
Highway
  Traffic Act
by failing to initiate his turn
  from a position immediately to the right of the centre-line of the road; and

3.

He operated the truck from the right side position, in
  violation of the trucks safety manual (because he was not engaged in
  house-to-house pickups), and on the morning of the accident had driven the
  truck at a faster speed than the manual and the American National Safety
  Institute standards allowed.

Analysis
[15]

The appellants face a high threshold in attempting to overturn the
    jurys verdict on the basis that it is unreasonable. The test is not whether a
    different conclusion could reasonably have been reached on the facts of this
    case. It is whether the conclusion reached by the jury is so plainly
    unreasonable and unjust that no jury, reviewing the evidence as a whole and
    acting judicially, could have reached it:
Housen v. Nikolaisen
,
2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 30.
    Recent decisions of this court applying this standard include
Boucher v.
    Wal-Mart Canada Corp.
, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 49 and
Goodwin
    v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.
[16]

The appellants do not take issue with
    the trial judges instructions to the jury. We are satisfied that he fully and
    fairly explained the relevant requirements of the
Highway Traffic
    Act
.
He also adverted to the great deal of evidence with respect to
    right-hand vehicles as well as Bonnetts evidence that, with the aid of his
    mirrors and camera, he could see behind his truck as clearly from the
    right-hand steering wheel as he could from the left.
[17]

The trial judge instructed the
    jury that there was a heavy onus on Bonnett when making a left turn to ensure
    that his turn could be made safely, and that there was likewise a heavy onus on
    Hamilton when overtaking and passing Bonnett to ensure that he could pass in
    safety.
He instructed the jury that if
    they were satisfied that Bonnett was negligent and that his negligence was a
    proximate cause of the accident, they could find for Hamilton. On the facts of
    the case, it was open to the jury to find either that Bonnett was not negligent
    or that his negligence was not a proximate cause of the accident.
[18]

The jurys answers indicate that they considered that
Hamilton
was the author of his own misfortune
    in making the decision to pass in all of the circumstances. This finding was
    open to the jury. Hamilton attempted to pass Bonnetts truck when it was in the
    midst of making a left turn. It may be that another jury would have reached a
    different decision on the facts of this unfortunate case and might have
    attributed some liability to Bonnett. However, it cannot be said that no jury,
    reviewing the evidence as a whole and acting judicially, could have reached the
    decision that this jury did.
Other
    grounds of appeal
[19]

The appellants submit that opinion
    evidence was improperly adduced by defence counsel during cross-examination of
    the appellants two expert witnesses, Travis Fricker, an accident
    reconstruction expert, and Dr. Christina Rudin-Brown, a human factors expert.
    The appellants say that these witnesses answered questions concerning their
    opinion as to the cause of the accident that were unrelated to their expertise
    and went directly to the ultimate issue for the jury. The appellants submit
    that there is a risk that the jury was overwhelmed by inadmissible opinion
    evidence.
[20]

We disagree.
[21]

First, there is no longer a
    general prohibition on the admission of expert evidence concerning the ultimate
    issue: see
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at p. 24;
R. v. Lucas
, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal
    refused, [2014] S.C.C.A. No. 460, at para. 271;
Hoang v. Vicentini
, 2016 ONCA 723, at para. 62.
[22]

The appellants point to Frickers concessions on cross-examination that
    in an ideal world Hamilton would have waited, and that it would be more
    prudent to stop for any potential thing that could happen. But Fricker made
    clear that he was not in a position to judge what the average driver would do.
    Frickers evidence was tentative at best, and cannot be said to
have been
outside his expertise.
[23]

Dr. Rudin-Brown assessed human
    factors, including the conspicuity of the left turn signal on the recycling
    truck and motorcyclist inexperience.  She opined  based on the facts of the
    case and on her knowledge of human factors issues and road safety  that
    Hamilton reacted to the unfolding situation in a manner that was appropriate
    for the conditions that were present at the time and that his behaviour was
    entirely reasonable.
[24]

Dr. Rudin-Brown had testified that
    the other flashing lights on the recycling truck might reasonably have
    contributed to any misinterpretation by Hamilton of the left turn signal.  In
    cross-examination, defence counsel probed the assumptions underlying Dr.
    Rudin-Browns opinion that Hamilton reacted in a manner that was appropriate,
    leading to one of the answers with which the appellant takes issue:
Q. What if there was a left turn signal, because you know its
    a very significant issue in this case. If the left turn signal was activated
    and [Hamilton] made that move within a few car lengths of the intersection with
    the [Roth van] to the left, basically at the edge of the asphalt and a very
    large recycling truck with a left turn signal, you would agree that that would
    have been completely inappropriate behaviour?
A. It was appropriate.
Q: It was?
A: It was appropriate to Mr.
    Hamilton.
Q. Even with a left-turn signal?
A: If he saw the left turn signal and understood what it
    indicated, yes, that would be.
[25]

Although the answer to the last
    question is ambiguous, this line of questions follows on from Dr. Rudin-Browns
    opinion and cannot be said to be unrelated to her expertise.
[26]

The appellants also complain about
    an exchange in which Dr. Rudin-Brown appears to agree with defence counsels
    suggestion that Hamiltons actions were those of an inexperienced motorcycle
    driver. (Although Hamilton was an experienced car driver, he had only been
    riding a motorcycle for a few weeks at the time of the accident.)  Dr.
    Rudin-Brown assessed Hamiltons motorcycle experience in arriving at her
    opinion. Her answer that his actions could be interpreted that way cannot be
    said to have been outside her expertise and, in any event, was ambiguous.
[27]

Finally, the appellants challenge Dr.
    Rudin-Browns agreement with defence counsels suggestion that it would be
    prudent for a driver to keep even farther back than usual from a very large
    truck with many lights.
[28]

This appears to be a common sense
    proposition that does not necessarily require expert evidence. However, no
    objection was taken to this line of questioning at trial.
[29]

The failure to object to the
    admission of evidence at trial is not determinative on appeal. But even
    assuming that this evidence was wrongly admitted, it cannot be said
that
    its admission occasioned a substantial wrong or a miscarriage of justice:
see
Gabriella Kadar v. Deszo Kadar

(1999), 122
    O.A.C. 36, at para. 17.
[30]

Finally, the appellants say that the second answer submitted by the jury
     that [a] reasonably prudent motorist should have had enough control to
    navigate an unexpected situation and come to a complete stop if necessary in
    this scenario  demonstrates fundamental error, because Hamiltons conduct
    after he pulled out to pass was not part of the respondents case. In other
    words, the jury found an act of negligence that was not argued at trial.
[31]

This submission does not persuade us that the jurys conclusion was so
    plainly unreasonable and unjust that no jury, reviewing the evidence as a whole
    and acting judicially, could have reached it. The jurys first answer  that a
    reasonably prudent person would not have made the decision to overtake the
    recycling truck  was directly responsive to what the appellants characterize
    as the heart of the defence theory at trial. It demonstrates that the jury understood
    its task. The jurys additional answer does not undermine its conclusion that
    the respondent bore no liability for the accident.
Disposition
[32]

The appeal is dismissed.
[33]

The respondents are entitled to
    costs of $25,000, as agreed by the parties, inclusive of taxes and
    disbursements.
Released: November 3, 2016   AH
Alexandra
    Hoy A.C.J.O.
M.L.
    Benotto J.A.
Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Vicentini, 2016 ONCA 856

DATE: 20161114

DOCKET: C55389

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Christopher Hoang and Danielle Hoang, both minors
    by their Litigation Guardian, San Trieu, and San Trieu, personally

Plaintiffs (Appellants)

and

Adriano Vicentini, Ford Credit Canada Leasing
    Company and Can Hoang

Defendants (Respondents)

Geoffrey D.R. Adair and Gord McGuire, for the
    appellants

Kerri Kamra, for the respondent Can Hoang

David A. Zuber and Joshua Henderson, for the respondent
    Adriano Vicentini

S. Wayne Morris and Melissa Miles, for the respondent
    The Personal Insurance Company

Bruce R. Mitchell, for the respondent Ford Credit Canada
    Leasing Company

Heard: April 13, 2016

On appeal from the judgment of Justice Darla A. Wilson
    of the Superior Court of Justice, dated March 9, 2012.

COSTS ENDORSEMENT

[1]

The appellants concede the respondents were wholly successful on the
    appeal and are entitled to their costs.

[2]

The respondents seek the following cost awards on a partial indemnity
    basis: Adriano Vicentini - $46,148.03; Ford Credit Canada Leasing Company -
    $39,566.83; and, The Personal Insurance Company - $25,891.50. The appellant
    submits those amounts are excessive and, instead, proposes the following cost
    awards: Vicentini - $20,000; Ford Credit - $5,000; and Personal Insurance -
    $5,000.

[3]

In the circumstances of this appeal, we conclude that a fair and just
    cost award requires the appellant, San Trieu, personally and in her capacity as
    litigation guardians for the minor appellants, Christopher Hoang and Danielle
    Hoang, to pay: Vicentini - $20,000; Ford Credit - $10,000; and Personal
    Insurance - $10,000, all inclusive of disbursements and HST.

John Laskin J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hojjatian v. Intact Insurance Company, 2016 ONCA
    904

DATE: 20161129

DOCKET: C62090

Gillese, Benotto and Roberts JJ.A.

BETWEEN

Hassan Hojjatian and Mitra Kermani

Plaintiffs (Appellants)

and

Intact Insurance Company, Axa Insurance

Defendants (Respondents)

Mitra Kermani, in person

Jeffrey Goit, for the respondents

Heard: November 25, 2016

On appeal from the order of Justice S.A.Q. Akhtar of the
    Superior Court of Justice, dated April 6, 2016, with reasons reported at 2016
    ONSC 2318.

ENDORSEMENT

[1]

The
    appellants appeal the dismissal of their action for indemnity under their
    insurance contract with the respondents, in relation to water damage to their
    home.

[2]

The
    motions judge dismissed their motion for summary judgment and their action
    because he found that the water damage to the appellants home was not covered
    under their insurance contract with the respondents.

Preliminary issue

[3]

As a
    preliminary issue, Ms. Kermani submitted that Benotto J.A. should recuse
    herself from hearing this appeal because she had sat on previous appeals
    involving the appellants, their house and their mortgagee.

[4]

We
    dismissed the appellants request. We are satisfied that there is no conflict
    of interest which precludes Benotto J.A. from hearing this appeal. The
    appellants other appeals involved the striking out of the appellants claim on
    the basis that the pleadings showed no reasonable cause of action.

Appeal

[5]

Turning
    to the appeal, the appellants submit that the motions judge erred in finding
    that the water damage was excluded under their insurance contract.
    Specifically, they say that the ground and surface water exclusions in the
    contract do not apply to heavy rainwater, which they maintain contributed to
    the water damage in this case, along with the sudden escape of water from a
    leak in the plumbing and, raised for the first time on appeal, a sewer back-up.
    Further, again for the first time on appeal, they submit that they had extended
    insurance coverage for this kind of water damage under the Gold Key Plus
    Extension to their contract. Finally, they argue that the motions judge erred
    in dismissing the claim for punitive damages
.

[6]

We do
    not accept these submissions.

[7]

First,
    it was open to the motions judge to accept the expert opinion evidence, including
    the evidence of the appellants experts, that the cause of the water damage to
    the appellants property was the ongoing seepage of ground or surface waters
    into the house caused by pre-existing wear and tear and construction defects,
    and other deficiencies in the property, including damaged weeping and shower
    tiles, and inadequate exterior grading. The appellants insurance contract
    expressly excludes damage caused by this kind of water seepage.

[8]

Further,
    the appellants did not raise before the motions judge the allegations that the
    water damage was caused by a sewer back-up or that they had extended coverage
    under the Gold Key Plus Extension. Aside from the fact that the appellants
    should not be permitted to raise on appeal issues that were not raised before
    the motions judge, the appellants have provided no support for these
    allegations. First, there is no evidence that the water damage was caused by a
    sewer back-up. Moreover, the Gold Key Plus Extension documentation included in
    the appeal materials clearly does not provide any additional coverage or modify
    the existing coverage or exclusions, in relation to water damage under the
    appellants insurance contract.

[9]

Finally,
    there is no basis for disturbing the motions judges dismissal of the claim for
    punitive damages.

[10]

As a
    result, we see no reason to interfere with the motions judges decision.

Disposition

[11]

The
    appeal is dismissed.

[12]

Costs
    are awarded to the respondents in the amount of $5,000, inclusive of disbursements
    and HST.

E.E. Gillese J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jugmohan v. Royle, 2016 ONCA 827

DATE: 20161104

DOCKET: C60191

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Mahadei Jugmohan

Plaintiff (Appellant)

and

Gordon Royle, Frank Naccarato and Ivan Bascom

Defendants (Respondents)

Steven Raphael, for the appellant

Mark Elkin and Nicholas Mester, for the respondents
    Gordon Royle and Frank Naccarato

Peter Yoo and Philip Pollack, for the respondent Ivon
    Bascom

Heard and released orally: November 1, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated February 18, 2015.

ENDORSEMENT

[1]

The appellant appeals the jury award of zero damages based on her action
    for damages allegedly sustained in a car accident and the trial judges ruling
    that her claim for non-pecuniary loss is barred on the basis that her injuries
    do not fall within the exceptions to statutory immunity provided for by the
Insurance
    Act
, R.S.O. 1990, c. I. 8.

[2]

The appellant raises two main grounds of appeal.

[3]

First, the appellant says the jury verdict is perverse as the evidence
    supported a finding that she suffered compensable damages as a result of the
    accident. This ground of appeal includes the appellants argument that the
    trial judge erred by correcting his jury charge from his initial instructions,
    in which he expressed the view that an assessment of zero damages would not be
    appropriate, to an instruction that if the jury were to find that the accident
    did not cause any new injury, or exacerbation of any pre-existing injury, an
    award of zero damages would be available.

[4]

We reject this first ground of appeal.

[5]

The appellants assertion that a properly instructed jury would have
    awarded damages cannot succeed. Although after the accident, the appellant
    underwent a right knee replacement and right shoulder rotator cuff repair,
    there was evidence that prior to the accident, she experienced osteoarthritis
    and degenerative changes in her right shoulder and right knee. There was expert
    evidence that the jury was entitled to accept that the appellants post-accident
    difficulties were inevitable, given her prior conditions.

[6]

The findings of a jury are entitled to great deference, particularly in
    cases such as this that depend largely on credibility. A jury verdict will not
    be set aside unless so plainly unreasonable and unjust as to satisfy the court
    that no jury reviewing the evidence as a whole and acting judicially could have
    reached it. On the evidence, it was open to this jury to conclude that the
    injuries that formed the basis of the appellants claim were not caused by the
    accident and therefore that the appellant was not entitled to any damages.

[7]

As to the correcting jury charge, although appellants trial counsel
    initially objected to the proposed correction, he ultimately agreed to it after
    the trial judge reworded it to his satisfaction. The charge was clear. The members
    of the jury were not left with any misapprehension with respect to their duties
    or the principles to apply, in reaching their verdict.

[8]

The disappointment that the appellant undoubtedly feels at the jurys
    verdict is understandable. However, her disappointment does not establish legal
    error or a perverse conclusion.

[9]

With respect to the second ground of appeal, the appellant submits that
    the trial judge erred by disregarding relevant medical evidence that supported
    her position on the threshold motion and arrived at an unsupported conclusion.
    The appellant argues that the only expert evidence tendered in response to her
    evidence was that of Dr. Cameron, who was demonstrably partisan and who based
    his opinion on a superficial review of the medical evidence.

[10]

Again, we disagree.

[11]

We do not accept the argument that the trial judge failed to consider
    material evidence. In his reasons, the trial judge made repeated reference to
    all of the evidence he heard at trial  evidence that he had an opportunity to
    weigh and from which he was entitled to make credibility findings. There was
    ample evidence upon which the trial judge could properly rely to find that the
    threshold was not met, particularly in the light of the jury award.

[12]

Decisions of this nature are afforded the highest degree of deference
    and should not be interfered with absent palpable and overriding error. We find
    no reason to interfere.

[13]

The appeal is therefore dismissed.

[14]

The respondents, Royle and Naccarato, are entitled to their costs of the
    appeal, fixed in the amount of $10,000. Similarly, the respondent, Bascom, is
    entitled to his costs of the appeal, fixed in the amount of $10,000. Both
    amounts include disbursements and applicable taxes.

R.A. Blair J.A.

Gloria Epstein J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Koubi v. Hascalovici, 2016 ONCA 867

DATE: 20161117

DOCKET: C60785

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Rom Koubi and 1355863 Ontario Inc.

Plaintiffs (Appellants)

and

Avi Hascalovici
and Michael Averbuch

Defendants (Respondent)

Mark A. Klaiman, for the appellants

Jamie J. VanWiechen, for the respondent

Heard: November 10, 2016

On appeal from the judgment of Justice Robert Charney of
    the Superior Court of Justice, dated June 25, 2015, with reasons reported at
    2015 ONSC 4132.

ENDORSEMENT

[1]

The appellants, Rom Koubi and 1355863 Ontario
    Inc. (the Corporation), appeal the trial judges dismissal of their action as
    against the respondent, Avi Hascalovici. In their action, the appellants
    claimed the respondent was liable personally for the sum of approximately $108,000,
    which represented one-half of the indebtedness of the Corporation at the time
    it ceased business.

[2]

Koubi had set up the Corporation to manufacture
    and sell powder-compacting presses in accordance with a technology developed by
    his father. Koubi persuaded Hascalovici to join him in the business. There was
    no dispute the business was operated through the Corporation and that Koubi and
    Hascalovici were equal shareholders.

[3]

When the Corporation needed operating funds, it
    entered into a loan agreement with Finance Tax and Insurance Co-ordinators
    (FTIC), a company controlled by Koubis in-laws. The two advances made by
    FTIC under the loan agreement constituted most of the Corporations
    indebtedness at the time it ceased operations. The FTIC loan was unsecured;
    neither Koubi nor Hascalovici provided a personal guarantee of the
    Corporations obligations under the loan.

[4]

When the Corporation ceased operations, Koubi
    sued Hascalovici for half of the Corporations liabilities on the basis that
    Hascalovici had agreed with Koubi that they each would be responsible
    personally for half of the Corporations debt. The trial judge dismissed the
    claim.

[5]

The appellants recognize their appeal involves
    questions of mixed fact and law and, as a result, the standard of review is
    that of a palpable and overriding error.

[6]

The appellants advance two main grounds of
    appeal.

[7]

First, the appellants submit that if two parties
    agree they will share equally in the profits of a business, it is axiomatic
    that they should equally be responsible for the debt. They contend, in effect,
    that the trial judge failed to follow that axiom.

[8]

The trial judge dealt with that argument at
    para. 58 of his reasons, holding:

It is a basic principle of corporate law
    that shareholders, as such, have limited liability. In the absence of a
    personal guarantee given by a shareholder, a shareholder in his capacity as
    such is not liable for any act or liability of a corporation because the
    corporation is a separate legal entity.

[9]

That is a correct statement of the law: see
    Ontario
Business Corporations Act
, R.S.O.
    1990, c. B.16, s. 92(1). To find that the shareholders of a corporation have
    departed from that basic principle, a claimant would have to establish the
    shareholders had agreed to assume personal liability for corporate debt.

[10]

Which leads to the appellants second ground of
    appeal.  They submit the trial judge committed palpable and overriding errors
    of fact by failing to consider or give effect to what they contend were
    admissions by Hascalovici that he personally would be responsible for half of
    the debt of the Corporation.

[11]

The trial judge conducted a detailed review of
    the evidence regarding the dealings between Koubi and Hascalovici concerning
    their obligations as shareholders of the Corporation. During that review, he
    considered the evidence the appellants point to as admissions by Hascalovici of
    personal liability for half of the Corporations debts: see paras. 16, 17, 32,
    40, 42, 45, 46 and 67.

[12]

Placing that evidence in the context of the
    evidence as a whole, the trial judge made two key findings: (i) both Koubi and
    Hascalovici understood that by proceeding as shareholders in a corporation,
    they were limiting their personal liability (para. 61);  and (ii) the totality
    of the agreement between the shareholders was contained in the minutes of the
    February 5 and 24, 2010 meetings, which did not contain any suggestion that
    either party thought that he was departing from the standard form of limited
    corporate liability and agreeing to be personally liable for all of the
    corporations debts and liabilities: paras. 62 and 64.

[13]

Ample evidence supported those key findings of
    the trial judge. We see no palpable and overriding error.

[14]

The appeal is dismissed.

[15]

The appellants shall pay the respondent its
    costs of the appeal fixed at $11,000, inclusive of disbursements and HST.

G.R. Strathy C.J.O.

G. Pardu J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laporte v. Kirchberger, 2016 ONCA 887

DATE: 20161122

DOCKET: C60064

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Jerry Laporte, Nicola Jane
    Robinson, Nemesis Entertainment
Complex Inc.
, MSI Spergel Inc. (Trustee for Lannie Henderson)

Plaintiffs
(
Appellants
)

and

Gabriel Kirchberger, Darling Court Developments
    Inc. Kirk Pitters, Holly Pitters, Club Nemesis, New Vision Entertainment
Complex, Cathy Oden, G.K. York Management Services Inc.

Defendants (Respondents)

Deborah Corcoran, for the appellants Jerry Laporte,
    Nicola Jane Robinson, Nemesis Entertainment Complex Inc.

Ian Gerald T. Smits, for the respondents Gabriel
    Kirchberger, Darling Court Developments Inc., Cathy Oden and G.K. York
    Management Services Inc.

Kirk Pitters and Holly Pitters, acting in person

Heard: November 9, 2016

On appeal from the judgment of Justice Richard A. Lococo
    of the Superior Court of Justice, dated October 28, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellants conceded that all of their grounds of appeal are
    dependent on the trial judges finding that there was no fourth lease dated
    October 31, 2007 with Nemesis Entertainment as a tenant. The trial judges
    reasons, and in particular paragraphs 40 and 41, set out the basis for rejecting
    the existence of that lease. Those findings are well anchored in the evidence
    led at trial. On the record before us, the trial judge made no palpable and
    overriding error in this regard. Accordingly the appeal is dismissed.

[2]

Costs to the respondents Kirchberger, Darling Court Developments Inc.,
    Cathy Oden and G.K. York Management Services Inc., are fixed in the amount of
    $6,500, inclusive of disbursements and HST. Costs of the appeal to the respondents
    Holly Pitters and Kirk Pitters are fixed in the amount of $1,260.96, also
    inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: Laughlin v. Esmaeili, 2016 ONCA 826

DATE: 20161107

DOCKET: C61111

Hoy A.C.J.O., Benotto and Huscroft JJ.A.

BETWEEN

Julia Laughlin
and
    Edward Kennis

Plaintiffs

and

Manouchehr Esmaeili also known as Manouchehr
    Esmaeiliaghabagher and Soheila Babaei,
The Corporation of
    the Town of Markham
,
The Corporation of the City
    of Toronto
, John Doe and Aviva Canada Inc.

Defendants (
Respondent
/
Appellant
)

Danette C. Cashman, for the Defendant (Respondent in
    Motion/Appellant), the Corporation of the City of Toronto

David Boghosian, for the Defendant (Applicant in
    Motion/Respondent in Appeal), the Corporation of the Town of Markham

Heard:  October 3, 2016

On appeal from the judgment of Justice Mark L. Edwards of
    the Superior Court of Justice, dated September 3, 2015, with reasons reported
    at 2015 ONSC 5490, and from his costs order, dated January 29, 2016, with
    reasons reported at 2016 ONSC 750.

BY THE COURT:

[1]

The plaintiffs
    vehicle struck a concrete curbstone that had somehow made its way into the curb
    lane of Steeles Avenue East.

[2]

Under s. 44(1) of
    the
Municipal Act, 2001
, S.O. 2001, c. 25, the municipality that has
    jurisdiction over a highway is required to keep it in a state of repair that
    is reasonable in the circumstances, including the character and location of the
    highway.  Steeles Avenue is the border between the appellant, the City of
    Toronto, and the respondent, the Town of Markham, and the plaintiff sued both
    Toronto and Markham. Toronto then cross-claimed against Markham, alleging that Markham
    caused or contributed to the plaintiffs injuries.

[3]

The motion judge
    granted summary judgment in favour of Markham, dismissing both the plaintiffs
    claim and Torontos cross-claim against it. He found that the curbstone that
    the plaintiff struck emanated from a portion of the grassy boulevard beside the
    north side of Steeles Avenue over which Toronto had exclusive jurisdiction and
    that Markham therefore was not liable to the plaintiff.  He further concluded
    that Markham  which had responsibility for the nearby sidewalk and conducted
    periodic inspections of it and sometimes of the adjacent boulevard  did not
    owe a duty of care to Toronto to notify it of any and all potential problem
    areas.

[4]

The motion judge
    fixed Markhams costs of the action and the summary judgment motion in the
    amount of $51,903.97, inclusive of HST and disbursements. While the motion
    judge dismissed the plaintiffs claim against Markham and acknowledged that
    there had been no finding of liability against Toronto, he noted that it was
    beyond dispute that the plaintiff was the unfortunate victim of striking a
    concrete curbstone in the middle of a roadway. He concluded that it was just
    and fair in all of the circumstances of this case that Toronto alone be
    responsible for Markhams costs and characterized that order as a
Sanderson
order.

[5]

Toronto appeals the
    motion judges dismissal of its cross-claim against Markham. It also seeks
    leave to appeal the motion judges costs disposition.

The issues on appeal

[6]

Toronto advances
    four arguments:

1.

The motion judge should not have
    granted summary judgment because the plaintiffs claim against it is proceeding
    to trial. It says there will necessarily be a duplication of proceedings and
    there is a possibility of inconsistent findings.

2.

The motion judge made a finding of
    fact  namely, that the curbstone was a hazard that Toronto had an obligation
    to remove  that should have been left to the trial judge.

3.

The motion judge erred in
    concluding that Toronto had exclusive jurisdiction over the portion of the
    grassy boulevard from which the curbstone emanated; that Markham accordingly was
    not liable to the plaintiff; and that Markham did not owe the plaintiff or
    Toronto a duty of care or, at a minimum, he should have concluded that these
    were genuine issues requiring a trial.

4.

The motion judge erred in making a
Sanderson
order, requiring it to pay all of Markhams costs, when
    there had been no finding of liability against it.

[7]

We address these
    arguments in turn.

Analysis

Issues 1 and 2

[8]

We are not
    persuaded that there will be a duplication of proceedings or that there is a risk
    of inconsistent findings, such that it was not in the interest of justice that
    summary judgment be granted.

[9]

With the release
    of Markham from the litigation, the trial will be focussed on whether Toronto
    breached s. 44(1) of the
Municipal Act
and, if so, on the quantum of
    damages suffered by the plaintiff. The trial judge will not need to consider
    whether Markham caused or contributed to the plaintiffs injuries.

[10]

The motion judge
    was clear that no one knows how the curb stone [sic] found its way from the
    grassy boulevard to the travelled roadway on Steeles Avenue. Toronto does not
    appear to take issue with the motion judges finding that the curbstone
    emanated from the grassy boulevard beside Steeles Avenue. Torontos arguments
    that there is a risk of inconsistent findings and that the motion judge made a
    finding that he should have left to the trial judge arise out of what the
    motion judge wrote at para. 23:

The hazard in question, i.e. the curbstone, was located on
    property over which Toronto had exclusive jurisdiction and, as such, in my view
    Toronto had the obligation to remove the curbstone or at least deal with it in
    such a way that it could not become a hazard. Toronto had the obligation under
    section 44 of the
Municipal Act
to keep the roadway in a state of
    repair that was reasonable in the circumstances.

[11]

However, the
    motion judge added this, at para. 24:

Whether the City of Toronto on the facts of this case met its
    duty of care is not for this court to ultimately determine. The only issue that
    this court has to determine is whether Markham had any responsibility with
    respect to the curbstone...

[12]

There is no
    dispute that at the time of the accident the curbstone was in the curb lane of
    Steeles Avenue East and that Toronto had an obligation under s. 44 of the
Municipal
    Act
to keep the roadway in a state of repair that was reasonable in the
    circumstances. To the extent that the motion judge might be argued to have said
    more than this at para. 23, the issue is not
res judicata
. The motion
    judge was clear that he made no binding determination of whether or not Toronto
    breached its obligation under s. 44. Therefore, there is no risk of an
    inconsistent finding at trial.

Issue
    3

[13]

We are not
    persuaded that there is any basis for this court to interfere with the motion
    judges conclusion that Toronto had exclusive jurisdiction over the portion of
    the grassy boulevard beside Steeles Avenue from which he found that the curbstone
    emanated and that Markham accordingly was not liable to the plaintiff. Further,
    we agree with the motion judge that Markham did not owe Toronto a duty of care
    in relation to the boulevard arising out of its periodic inspections of the
    sidewalks and the boulevard.  And we are not persuaded that the motion judge
    erred by failing to conclude that these were genuine issues requiring a trial.

Exclusive
    jurisdiction

[14]

In its statement
    of defence and cross-claim, Toronto admitted that it has jurisdiction over the
    Steeles Avenue East roadway.

[15]

We agree with the
    motion judge that, pursuant to an agreement dated April 8, 1974 (the 1974
    agreement) Toronto assumed jurisdiction over the portion of Steeles Avenue
    where the accident occurred. We reject Torontos argument that the 1974
    agreement created
shared
jurisdiction over Steeles Avenue, and that
    Markham also has jurisdiction over Steeles Avenue.  The 1974 agreement is
    clear. Its recitals provide that the parties have agreed that Steeles Avenue
    comprising the boundary between The Municipality of Metropolitan Toronto and
    The Regional Municipality of York shall be assumed by [Toronto] as a
    metropolitan road And section 2 provides:

... [Toronto] shall have and may exercise all of the rights and
    powers and shall be subject to all of the duties and obligations with respect
    to the portions of Steeles Avenue assumed pursuant to this agreement as is the
    case under the [
Municipality of Metropolitan Toronto Act
, R.S.O. 1970,
    c. 295 (the
MMTA
)] with respect to roads forming part of the Metropolitan
    Road System and with respect to the assumption of roads.

[16]

One provision in
    the 1974 agreement pointed to by Toronto requires that Toronto give notice of
    the proposed exercise of the powers provided by ss. 90, 91 and 92 of the
MMTA
affecting lands
in York
and that Toronto not exercise these powers
    without the York Regional Councils agreement. The contractual limitations on
    Torontos exercise of those powers to regulate land in York do not negate
    Torontos exclusive jurisdiction to maintain Steeles Avenue.  Toronto also
    relies on a provision that requires Toronto to refer proposed official plans,
    zoning by-laws, and plans of subdivision and amendments thereto to York for
    study and comment. However, this provision similarly does not diminish
    Torontos assumption of jurisdiction.

[17]

The motion judge
    also noted that the plaintiffs survey and the photographic evidence
    established that the curbstone emanated from an area over which Toronto had
    assumed jurisdiction. Indeed, Toronto does not dispute that the boulevard from
    which the motion judge found the curbstone had emanated is within the road
    allowance for Steeles Avenue (and therefore part of the highway for the
    purposes of s. 44(1) of the
Municipal Act
)
.

[18]

As we have
    indicated, s. 44(1) of the
Municipal Act
provides that the
    municipality that has jurisdiction over a highway is required to keep it in a
    state of repair that is reasonable in the circumstances, including the
    character and location of the highway. Therefore, having concluded that Toronto
    had exclusive jurisdiction over the boulevard, the motion judge correctly
    dismissed the plaintiffs action against Markham.

[19]

There were no
    material facts in dispute on this narrow issue before the motion judge. The
    motion judge properly concluded that whether Toronto had exclusive jurisdiction
    over the boulevard was not a genuine issue requiring a trial.

Markham
    did not owe Toronto a duty of care

[20]

Torontos
    assertion that Markham owed it a duty of care to inspect and maintain the
    boulevard and to notify it of hazards on the boulevard that Toronto should deal
    with rested solely on the evidence of one of its Roads Operations Managers,
    Hector Moreno.

[21]

His evidence was
    that, based on information provided to him by other Toronto staff and documents
    still somewhat in draft, he understood that (1) Markham did periodic
    inspections of the sidewalks that entailed at least some rudimentary
    examination of the boulevard; and (2) Toronto relies on the inspection and
    maintenance procedures undertaken by Markham and relies on Markham to notify it
    of hazards that should be dealt with by Toronto.  Toronto was unable to find
    and produce any of the documents referred to by Mr. Moreno.

[22]

The motion judge
    concluded as follows, at para. 22:

The fact that Markham had responsibility for the sidewalk
[1]
and would conduct
    annual inspections of the sidewalk, which would include the grassy boulevard,
    does not attract legal liability to Markham establishing a duty of care to
    notify Toronto of any and all potential problem areas. In that regard,
    Markhams representative in its examination for discovery, was asked what
    Markham would do if a problem on either the sidewalk or right-of-way was
    discovered. Mr. Robert Walker stated that if there was a serious problem it
    would be repaired right away. Further in his examination for discovery, Mr.
    Walker indicated that it was not all hazards that would be reported or
    repaired, as the City of Toronto would have been doing its own patrolling and,
    therefore, there was an expectancy that the City of Toronto would also see the
    hazard.

[23]

The
    Supreme Court of Canada has articulated a two-stage test for the determination
    of a duty of care in a case that does not fit an established category. First,
    the court must determine whether the facts disclose a relationship of
    proximity in which failure to take reasonable care might foreseeably cause harm
    to the plaintiff. If yes, there is a
prima facie
duty of care:
Knight
    v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para.
    39; see also
Reference re Broome v. Prince Edward Island
, 2010 SCC 11,
    [2010] 1 S.C.R. 360, at para. 14. If the plaintiff establishes a
prima facie
duty, the court must consider whether any residual policy considerations
    relating to the effect of recognizing a duty of care on other legal
    obligations, the legal system and society more generally should negate or
    narrow the
prima facie
duty:
Cooper v. Hobart
, 2001 SCC 79,
    [2001] 3 S.C.R. 537, at para. 37.

[24]

Proximity
    is a broad concept, concerning the relations between the parties, that one
    cannot reduce to a single characteristic, but the Supreme Court has identified
    expectations, representations, reliance, and the property or other interests
    involved as factors relevant to proximity analysis:
Hobart
, at paras.
    34-35. In essence, a finding of proximity reflects a conclusion that a duty
    ought to be imposed in particular circumstances because it is fair and just to
    do so having regard to the connection between the parties. Here, Toronto had
    specifically assumed responsibility from Markham under the 1974 agreement. As a
    result, Toronto owed a statutory duty of care to the plaintiff under s. 44(2)
    of the
Municipal Act
. The motion judge considered the evidence of Mr.
    Moreno and Mr. Walker regarding Torontos and Markhams expectations after the
    1974 agreement had been concluded. In substance, he found that there was not a
    relationship of sufficient proximity between Toronto and Markham because  on
    the evidence of the interactions between them and in this context of an assumed
    statutory duty of care  Toronto did not reasonably rely on Markham to notify
    it of any and all potential problem areas.  In our view, the facts did not
    disclose a relationship of proximity in which failure to take reasonable care
    might foreseeably cause harm to the plaintiff and the motion judge correctly
    found that Markham did not owe Toronto a duty of care.

[25]

Again, there were
    no material facts in dispute on the issue of whether Markham owed Toronto a
    duty of care, as alleged by Toronto. The motion judge properly concluded that
    whether Markham owed Toronto the alleged duty of care was not a genuine issue
    requiring a trial.

Issue 4

[26]

This brings us to
    Torontos argument regarding the motion judges costs disposition. A motion
    judges costs decision is accorded deference. Unless plainly wrong, a motion
    judges costs order,
Sanderson
or otherwise, should not be set aside:
    see
Moore (Litigation Guardian of) v. Wienecke
, 2008 ONCA 162, 90 O.R.
    (3d) 463, at para. 40.

[27]

Toronto argues
    that the motion judges costs order is plainly wrong because he ordered it to
    pay all of Markhams costs of the motion absent a determination that Toronto is
    liable to the plaintiff.

[28]

We agree.

[29]

In a
    multiple-defendant case in which the plaintiff succeeds against some defendants
    but not against others, the general rule is that the plaintiff is entitled to
    costs against the unsuccessful defendant, and the successful defendant is
    entitled to costs against the plaintiff. However, the courts have recognized
    that in some circumstances this general rule can lead to an unjust result. A
Sanderson
order departs from the general rule and requires the unsuccessful defendant to
    pay the successful defendants costs.

[30]

The usual test
    for determining whether a
Sanderson
order is appropriate has two
    steps. First, the court asks whether it was reasonable to join the defendants
    together in one action. If the answer to that question is yes, then the court
    proceeds to the second step and uses its discretion to consider whether it
    would be just and fair in the circumstances to require the unsuccessful
    defendant to pay the successful defendants costs:
Moore
, at para. 41.

[31]

The motion judge
    first determined that it was entirely reasonable for the plaintiff to join
    Toronto and Markham as defendants in the action until such time as the evidence
    could establish whether one or other of them was responsible for the roadway.

[32]

Exercising his
    discretion, he then concluded that it was just and fair in all of the
    circumstances to issue a
Sanderson
order. He acknowledged that there had
    been no finding of liability as against Toronto. As we have said above, the
    motion judge noted that it was beyond dispute that the plaintiff was the
    unfortunate victim of striking a concrete curbstone in the middle of a roadway.
    Although the issue of whether the plaintiff is contributorily negligent is an
    issue for trial, the motion judge commented that it was difficult to imagine a
    situation where one could fault the plaintiff for what happened.

[33]

The fact that the
    plaintiffs vehicle struck a concrete curbstone is not a basis for a
Sanderson
order.  There was no suggestion that Torontos conduct on the summary judgment
    motion, or in the proceeding, was the basis for the motion judges order.
    Assuming no such issue arises if Toronto is successful in the action, there will
    be no basis to order it to pay the costs of the action incurred by the other
    successful defendant. The motion judge specifically acknowledged that there had
    been no finding of liability against Toronto. This is a question for trial. At
    this juncture it was premature, and therefore inappropriate, to order Toronto
    to pay Markhams costs of the action.

[34]

Markham is
    entitled to costs against Toronto on the summary judgment motion and the
    cross-claim and costs against the plaintiff of the summary judgment motion and
    the action against the plaintiff.  Each shall be liable to pay Markham
    $25,951.50, which is one half of the total of $51,903.97 fixed by the motion
    judge. If the plaintiff succeeds against Toronto at trial, it shall be open to
    the trial judge in his or her discretion to direct that Toronto reimburse the
    plaintiff for any portion of the $25,951.50 amount that the plaintiff has paid
    to Markham. Alternatively, if the plaintiff succeeds at trial, it will be open
    to the trial judge to direct Toronto to pay any costs that Toronto owes to the
    plaintiff to Markham instead, on account of the $25,951.50 in costs that the
    plaintiff has been ordered to pay to Markham.

[35]

Although the
    plaintiff did not appear at the hearing of this appeal, and did not file any
    material in relation to the costs issue, there was evidence that she was served
    with all of Torontos materials on the appeal and therefore did so with
    knowledge of the position asserted by Toronto in relation to the motion judges
    costs disposition.

Disposition

[36]

We dismiss the
    appeal of the motion judges order granting summary judgment in favour of
    Markham, grant leave to appeal the motion judges costs disposition, and allow
    the appeal of the motion judges costs disposition. Costs of the summary
    judgment motion shall be payable as indicated above.  Markham shall be entitled
    to costs of the appeal, fixed in the amount of $14,500, inclusive of HST and
    disbursements.

Released:  AH  NOV 07 2016

Alexandra Hoy
    A.C.J.O.

M.L. Benotto J.A.

Grant Huscroft J.A.

[1]

It was not in dispute that through the operation of s. 55(1)
    of the
Municipal Act
and the 1974 agreement
    that Markham was responsible for the maintenance of the sidewalk on the portion
    of the north side of Steeles Avenue East where the accident occurred.


COURT OF APPEAL FOR ONTARIO

CITATION: Manchanda v. Thethi, 2016 ONCA 909

DATE: 20161130

DOCKET: C62303

Gillese, Benotto and Roberts JJ.A.

BETWEEN

Jastinder Manchanda

Applicant

(Respondent on Appeal)

and

Sukhvir Thethi

Respondent

(Appellant)

Richard Parker, for the appellant

Evelyn Rayson and Michael Weisbrot, for the respondent

Heard: November 22, 2016

On appeal from the order of Justice F. Myers of the Superior
    Court of Justice, dated June 9, 2016.

ENDORSEMENT

[1]

The appellant appeals the order of the motion judge striking his
    pleadings for failure to comply with court orders and allowing the respondent
    to amend her application.

[2]

The parties separated in 2013 after a ten-year marriage. They have no
    children. Shortly after separating, they embarked upon high conflict
    matrimonial litigation. There have been countless court attendances resulting
    in court orders from at least ten different judges.

[3]

Three court orders specifically required the appellant to deposit rental
    income, which he collects from jointly owned property, into a specified joint
    account: the order of Jarvis J., dated December 2, 2013; the order of Frank J.,
    dated November 26, 2014; and the order of Horkins J., dated June 4, 2015.  It
    is not in dispute that the appellant breached these orders.

[4]

There were also orders for financial disclosure. In October 2013, the
    parties agreed to a consent order for disclosure. In March 2015, the respondent
    sent the appellant a request for information consisting of 374 items. In
    response, the appellant sent an affidavit with documents. He claimed that this
    provided disclosure, while the respondent said some issues had not been
    addressed. Horkins J. went through the requests and affidavit of documents and
    made detailed orders for the parties to provide various documents. The
    appellant provided an affidavit, sworn April 15, 2016, claiming that the
    attached documents constituted compliance with the order of Horkins J.

[5]

The respondent disagreed and moved to strike his pleadings under r. 1(8)
    of the
Family Law Rules
, O. Reg. 114/99. The respondent also sought
    leave to amend her application to include a claim for constructive trust on the
    matrimonial home owned by the appellant.

[6]

The motion judge struck the appellants pleadings and allowed the
    respondent to amend her application.

[7]

The appellant submits that the motion judge erred in using the
    extraordinary remedy of striking his pleadings. He submits that such draconian
    measures should only be used in limited and exceptional circumstances, and when
    no other remedy would suffice:
Chiaramonte v. Chiaramonte
, 2013 ONCA
    641, 36 R.F.L. (7th) 11;
Purcaru v. Purcaru
, 2010 ONCA 92, 75 R.F.L.
    (6th) 33. He argues that his conduct was insufficiently egregious to justify
    striking his pleadings.

[8]

We do not agree, for two reasons.

[9]

First, the circumstances were exceptional and egregious. In
Kovachis
    v. Kovachis
, 2013 ONCA 663, 36 R.F.L. (7th) 1, this court allowed an
    appeal from an order striking the pleadings of a non-compliant party because
    the motion judge had failed to: (i) consider the substantial disclosure already
    made; (ii) itemize what disclosure the party had failed to provide; (iii) make
    a finding of willful disobedience of the order; and (iv) consider
    proportionality. Here, the motion judge did just that. In detailed reasons he
    itemized the disclosure already made and what remained outstanding. He found
    that the breach was willful. He considered proportionality in the light of
    disclosure already made, saying that he was less moved by the quantity than by
    the quality of the disclosure. The appellant had not disclosed basic documents
    such as his income tax returns, financial statements, bank account statements,
    credit card statements, and investment account statements.

[10]

This was not a situation of overreaching by the respondent. The breaches
    and failure to disclose occurred in the context of extensive case management.
    Horkins J., in particular, had carefully itemized the required disclosure. The
    appellant did not comply.

[11]

Although the respondent had also made incomplete disclosure in relation
    to $377,000 removed from her bank account, the motion judge found that this was
    in the context of otherwise full disclosure.

[12]

In
Chiaramonte
, an appeal was allowed where

the motion
    judge had mischaracterized the disclosure by the party whose pleadings were
    struck. Here, however, the motion judges findings were supported on the record
    before him.  In
Purcaru
, this court upheld a trial judges ruling which
    struck out pleadings for breaches and non-disclosure.

[13]

Our second reason is this: after continual admonitions by the courts and
    the legislature that parties to a matrimonial proceeding must produce financial
    documentation, willful non-compliance must be considered egregious and
    exceptional. This court has stated that the most basic obligation in family law
    proceedings is the duty to disclose financial information. The requirement is
    immediate and ongoing:
Roberts v. Roberts
, 2015 ONCA 450, 65 R.F.L.
    (7th) 6, at para. 11.)  In 2015,
Family Law Rule
13 was amended to
    emphasize a partys financial disclosure obligations. A partys non-compliance
    must be considered in the context of this strict financial disclosure
    obligation. Rule 1(8) provides the court with the authority to strike claims. Those
    who choose not to disclose financial information or to ignore court orders will
    be at risk of losing their standing in the proceedings as their claims or
    answers to claims may be struck.

[14]

The motion judge also allowed the respondent to amend her application to
    include a claim for constructive trust in the matrimonial home registered in
    the appellants name. The respondents draft pleading set out the facts of
    contribution supporting this claim. The motion judge had no evidence of
    prejudice to the appellant. There is no basis to interfere with the motion
    judges exercise of discretion in this regard.

[15]

The appeal is dismissed with costs fixed at $13,000, inclusive of
    disbursements and HST.

E.E.
    Gillese J.A.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McLaughlin v. McLaughlin, 2016 ONCA 899

DATE: 20161128

DOCKET: C60802

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Daniel
McLaughlin, Estate Trustee of the

Estate
of Elizabeth Anne McLaughlin

Applicant

(Appellant)

and

Thomas McLaughlin and Judith Corrado

Respondents

(Respondents in
Appeal)

and

Michael J. Walsh

Intervenor

(Respondent in Appeal)

APPLICATION UNDER Rule 74.04
Rules of Civil Procedure
, RRO 1990,
Reg. 194

R. Dean Allison, for the appellant

Archie J. Rabinowitz and Douglas B. Stewart, for the
intervenor

Judith Corrado, in person

Heard and released orally: November 18, 2016

On appeal from the judgment of Justice David Price of the
Superior Court of Justice, dated June 30, 2015, with reasons reported at
2015 ONSC 4230,
10 E.T.R. (4th) 10,
and from the
costs order, dated January 20, 2016, with reasons reported at 2016 ONSC 481
.

ENDORSEMENT

[1]

The issues on appeal concern the validity of a will. The testatrix, Elizabeth
Anne McLaughlin, died on April 23, 2012. On June 16, 2010, she executed a
primary and a secondary will for which she had provided instructions to her
long-time solicitor who had prepared several previous wills for her. The
secondary will was intended to deal with her house. The primary will was
intended to deal with the balance of her estate.

[2]

Unfortunately, as the result of clerical errors, the secondary will
contained some mistakes. It included a revocation clause revoking all other
wills, which included the primary will; it repeated specific bequests contained
in the primary will; and it did not contain a disposition of the residue of the
estate such that an intestacy would be created.

[3]

On July 8, 2014, Lemon J. made an order rectifying the secondary will
nunc
pro tunc
such that the revocation clause was amended to exclude the
primary will from its operation, the duplicated specific bequests were deleted
and the intended residue clause was included:
McLauglin Estate v.
McLaughlin,
2014 ONSC 3162, 99 E.T.R. (3d) 71. Lemon J. made this order
because he was satisfied that the testatrix had not read the secondary will
when she signed it but that the rectified secondary will corresponded with her
instructions to her solicitor, which she had entrusted him to carry out. His
order was not appealed.

[4]

On a subsequent application to remove an objection to the appointment of
an estate trustee for the primary will, of his own initiative, the application
judge embarked on an examination of the validity of the secondary will.
Ultimately, he found that the secondary will was not valid based on Lemon J.s
finding that the testatrix did not read it or have knowledge of or approve of
its contents.

[5]

In our view, the judgment of the application judge cannot stand in this
case. It was implicit in Lemon J.s order for rectification of the secondary
will, which was made
nunc pro tunc,
that he had determined that the
secondary will is valid.

[6]

The application judges decision undermined that of Lemon J., ignored
his own and Lemon J.s findings of the testatrixs intentions and improperly
created an intestacy in circumstances where the evidence resulted in an
opposite conclusion.

[7]

Indeed, the application judges reasoning is circular. Lemon J.s
decision to rectify the secondary will was premised on his finding that the secondary
will had not been read. That finding cannot then be used to find the secondary
will as rectified invalid.

[8]

The appeal is allowed and the judgment of the application judge holding
the secondary will invalid is set aside. In its place, we substitute an order
holding the secondary will valid.

[9]

The application judge also ordered that there should be a mini-trial to
address proof of the primary will in solemn form. While that issue is not
squarely before us, particularly in the light of our decision, the fact that no
one challenged the capacity of the testatrix before Lemon J. and his finding of
the absence of suspicious circumstances, we question whether there is any need
for further proceedings in this matter.

[10]

Leave
to appeal the costs awarded to the respondents who appeared in person is
granted and the costs order as it relates to them is set aside: see
Fong v.
Chan
(1999)
, 46 O.R. (3d)
330 (C.A.).

[11]

We
note that the respondent, Thomas McLaughlin, was not present today and is
apparently hospitalized. However, no adjournment was sought on his behalf and
material was filed purporting to authorize his sister, Judith Corrado, to act
in their collective best interests. All parties present, including Judith
Corrado, wished to proceed today.

[12]

The
appellant claimed $30,490 on a full indemnity scale for costs of the appeal. We
consider this amount high based on the record before us. Costs of the appeal
are to the appellant on a partial indemnity scale fixed in the amount of
$10,000 inclusive of disbursements and applicable taxes payable by the
respondents. The intervenor did not seek costs and none are awarded.

Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mitchell v. Lewis, 2016 ONCA 903

DATE: 20161129

DOCKET: C60938

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Ryan Mitchell, The Mitchell Consulting Group, and
The Mitchell Consulting Group Inc.

Plaintiffs (Appellants)

and

Robert Lewis, Wendy Lewis, Global Learning Group
Inc. also known as Global Learning Giving Initiative
also known as GLGI, Global Land Consortium Inc.
Ardoch Lake Developments Inc., Colonial
Chevrolet Ltd., 2168368 Ontario Inc., Digital
Consultation Management Services, and 2168368
Ontario Inc., carrying on business as Digital
Consultation Management Services

Defendants (Respondents)

Hossein Niroomand, for the appellants

Michael Magonet, for the respondents

Heard: November 9, 2016

On appeal from the order of Justice L.A. Pattillo of the
    Superior Court of Justice, dated July 31, 2015, with reasons reported at 2015
    ONSC 4614.

L.B.
    Roberts J.A.
:

[1]

The appellants appeal the order of the motions judge striking out all
    but two of the causes of action pleaded in their statement of claim without
    leave to amend.

[2]

The appellants action arises out of a consulting agreement dated June
    23, 2009 between the appellant, The Mitchell Consulting Group, and the
    respondents, Global Learning Group Inc. (GLGI) and its affiliated group of
    companies. The appellants claimed that the respondents breached their
    obligations by failing to pay amounts owing under the agreement.

[3]

In particular, the appellants alleged that the respondents Robert Lewis
    and Wendy Lewis guaranteed GLGIs payment for services rendered under the agreement
    and that they and GLGI further agreed to hold in trust any monies owing to the
    appellants under that agreement. Further, the appellants pleaded that on or
    about November 11, 2011, Ryan Mitchell and Robert Lewis reduced to writing the
    alleged oral trust agreement for funds owed to the appellants up to that time.
    The alleged written trust agreement provided that Robert Lewis would hold three
    lots belonging to Ardoch Lake Developments Inc. in trust for the appellants as
    security for the funds they were owed by GLGI.

[4]

The appellants alleged that Robert and Wendy Lewis fraudulently
    converted monies from GLGI  monies that were owed to and held in trust for the
    appellants  to their own use. In addition to breach of contract and breach of
    trust, the appellants claimed in breach of fiduciary duty, fraud, fraudulent
    misrepresentation, conversion, conspiracy and unjust enrichment.

[5]

The motions judge struck out the appellants Fresh as Amended Statement
    of Claim in its entirety, granting leave to file a Further Fresh as Amended
    Statement of Claim that asserts only the breach of contract claim against GLGI
    and the breach of trust claim against  Robert Lewis in relation to the three
    lots held by Ardoch Lake Developments Inc.

[6]

The motions judge refused the appellants leave to amend the other
    claims. The appellants Fresh as Amended Statement of Claim was the third
    iteration of its pleading. It followed receipt of the defendants detailed factums
    and a prior attendance before the motions judge, which served to point out the
    deficiencies in the appellants pleading. Nevertheless, the appellants were not
    able to correct those deficiencies. As a result, the motions judge concluded:
    Given the history of the evolution of the Claim, I am not satisfied that
    granting the plaintiffs leave to further amend the Claim to remedy the above
    identified deficiencies will result in a proper pleading that the defendants
    can respond to.

Analysis

[7]

The appellants put forward three main arguments on appeal.

[8]

First, they submit that the motions judge erred in allowing the breach
    of trust claim to go forward only as against Robert Lewis and not also against
    Ardoch Lake Developments Inc. as the owner of the lots which are impressed with
    the alleged trust.

[9]

I agree. In paragraph 51 of the Fresh as Amended Statement of Claim, the
    appellants alleged that the respondents breached the trust agreement by
    diverting funds and failing to perform in accordance with the agreement. They
    pleaded that under this agreement, Ryan Mitchell had an interest in the Ardoch
    Lake Developments lots. These lots are owned not by Robert Lewis but by Ardoch
    Lake Developments Inc. I agree that, to properly plead the breach of trust
    claim in relation to the lots, it is necessary that the appellants be permitted
    to plead it as against the owner of those lots.

[10]

Next, while the appellants take no issue with the motions judges
    statement of the relevant legal principles to be applied, they submit that he erred
    in his application of those principles. Specifically, they submit that there
    were sufficient material facts pleaded to support the claims for unjust
    enrichment, conspiracy, conversion, fraudulent misrepresentation, and fraud
    based on the alleged breach of trust.

[11]

I do not accept this submission. The motions judge found that the
    pleading for those claims was deficient in that it contained mostly bald
    allegations and lacked sufficient particularity in relation to each of the
    defendants. Further, those claims were based on an alleged oral trust for which
    no material facts were pleaded. I agree with the motions judges
    characterization of the pleading with respect to those claims and would not
    interfere. Moreover, I see no error in the motions judges exercise of his
    discretion not to grant the appellants leave to amend their pleading in
    relation to those claims.

[12]

Finally, with respect to the claims of fraudulent diversion of funds and
    unjust enrichment as against Robert and Wendy Lewis personally, the appellants
    submit that the motions judge erred in determining that the pleading could not
    support piercing the corporate veil of the corporations over which Robert and
    Wendy Lewis had control because there was no allegation that the corporations
    were sham corporations.

[13]

As already noted, the motions judge correctly determined that the claim
    against Robert and Wendy Lewis personally, based on the alleged breach of an
    oral trust agreement, was untenable because of the appellants failure to plead
    any material facts.

[14]

However, I agree that the motions judge erred by restricting the
    circumstances in which it would be appropriate to pierce the corporate veil to
    those involving sham corporations and by failing to consider whether the
    appellants pleading of fraudulent and improper conduct against Robert and
    Wendy Lewis could be sufficient to support a finding of personal liability
    against them.

[15]

In paragraph 70 of the Fresh as Amended Statement of Claim, the
    appellants allege that the corporate veil of GLGI and other corporate
    defendants should be pierced and that Robert and Wendy Lewis are personally
    liable for the funds owed to the appellants because, among other things, they
    improperly manipulated the accounts of all of the corporate respondents for
    their own benefit and fraudulently diverted to their own personal use monies
    that were owed to the appellants.

[16]

The motions judge relied on this courts decision in
ScotiaMcLeod
    Inc. v. Peoples Jewellers Limited
(1995), 26 O.R. (3d) 481 (C.A.), at p.
    491, for the following proposition: Those cases in which the corporate veil
    has been pierced usually involve transactions where the use of the corporate
    structure was a sham from the outset or was an afterthought to a deal that had
    gone sour. The motions judge found that as the Fresh as Amended Statement of Claim
    contained no allegations that any of the corporate respondents were a sham and,
    on the contrary, alleged that GLGI was a successful business, the pleading did
    not support piercing the corporate veil.

[17]

In my view, the motions judge adopted too narrow a view of when the
    corporate veil could be pierced.

[18]

While the corporate veil has been pierced in cases involving sham
    corporations, that remedy is not limited to those cases. Most recently, this
    court in
Shoppers Drug Mart Inc. v. 6470360 Canada Inc.
, 2014 ONCA 85,
    372 D.L.R. (4th) 90, at para. 43, confirmed that the appropriate test to apply
    in determining whether the corporate veil should be pierced was stated by
    Laskin J.A. in
642947 Ontario Ltd. v. Fleischer
(2001), 56 O.R. (3d)
    417 (C.A.), at para. 68, as follows:

Typically, the corporate veil is pierced when the company is
    incorporated for an illegal, fraudulent or improper purpose.  But it can also
    be pierced if when incorporated those in control expressly direct a wrongful
    thing to be done:
Clarkson Co. v. Zhelka
at p. 578. Sharpe J. set
    out a useful statement of the guiding principle in
Transamerica Life Insurance
    Co. of Canada v. Canada Life Assurance Co.
(1996), 28 O.R. (3d) 423 at pp.
    433-34 (Ont. Ct. (Gen. Div.)), affd [1997] O.J. No. 3754 (C.A.):  the courts
    will disregard the separate legal personality of a corporate entity where it is
    completely dominated and controlled and being used as a shield for fraudulent
    or improper conduct.
[1]

[19]

In the present case, while not elegantly pleaded and deficient in
    particulars, the Fresh as Amended Statement of Claim does allege that Robert
    and Wendy Lewis, as the operating minds and will of the corporate defendants,
    directed a wrongful thing to be done, namely, to misappropriate monies owing
    to the appellants to the personal use of Robert and Wendy Lewis. If pleaded
    with sufficient particularity, this is the kind of fraudulent or improper
    conduct that has led courts in cases like
Shoppers
to disregard the
    separate legal personality of a corporate entity and to find personal liability
    against those in control.

[20]

The motions judge erred in concluding that the pleading relating to the
    alleged diversion of funds by Robert and Wendy Lewis could not, if properly
    pleaded with sufficient particulars, support a claim for piercing the corporate
    veil and for personal liability against Robert and Wendy Lewis. Reading the Fresh
    as Amended Statement of Claim generously with allowance for inadequacies due to
    drafting deficiencies, the motions judge ought to have granted the appellants
    leave to amend their claim against Robert and Wendy Lewis to plead a cause of
    action arising out of their alleged fraudulent diversion and misappropriation of
    funds.

[21]

Rule 26.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, allows a court at any stage of an action to grant leave to amend a
    pleading on such terms as are just, unless prejudice would result that could
    not be compensated for by costs or an adjournment. While the court retains the
    discretion not to allow an amendment,
the denial
    of leave to amend should only be made in the clearest of cases, when it is
    plain and obvious that no tenable cause of action is possible on the facts as
    alleged:
South Holly Holdings Ltd. v. The Toronto-Dominion Bank
, 2007 ONCA 456, at para. 6;
Conway v. Law
    Society of Upper Canada
, 2016 ONCA 72, 395
    D.L.R. (4th) 100, at para. 16
.

[22]

I recognize that the appellants have had three opportunities to produce a
    proper pleading and that at a certain point, fairness to the respondents and
    respect for the integrity of the judicial process require that the appellants
    not be granted any further indulgences if they cannot deliver a statement of
    claim free from material deficiencies. However, in the present case, the
    possibility of a tenable cause of action in relation to the alleged fraudulent
    diversion of funds by the personal respondents arises from the pleaded facts. I
    also note that the respondents do not allege that a further amendment to the
    pleadings will result in prejudice that cannot be compensated for in costs in
    the event leave to amend were granted.

[23]

Accordingly, the appellants shall be given one last opportunity to
    deliver a statement of claim free from the deficiencies already noted.

Disposition

[24]

For these reasons, I would allow the appeal in part, amending para. 2 of
    the July 31, 2015 order, to allow the appellants leave to file within twenty
    days from the release of these reasons a Further Fresh as Amended Statement of
    Claim which asserts only the breach of contract claim against Global Learning
    Group Inc., also known as Global Learning Giving Initiative, also known as
    GLGI; the breach of trust claim against Robert Lewis and Ardoch Lake
    Developments Inc., relating to the three Ardoch Lake lots; and the personal
    liability claim against Robert and Wendy Lewis for fraudulent diversion and
    misappropriation of corporate funds.

[25]

If the parties cannot agree on the disposition of costs here and below,
    they may make brief written costs submissions of no more than three pages, not
    including bills of costs, as follows:  the appellants shall deliver their submissions
    by December 6, 2016; the respondents shall deliver their submissions by
    December 13, 2016.  There shall be no reply submissions.

Released: November 29, 2016

L.B. Roberts J.A.

I agree K.M. Weiler
    J.A.

I agree Paul Rouleau
    J.A.

[1]

As noted by
    this court in
Parkland Plumbing & Heating Ltd. v. Minaki Lodge Resort
    2002 Inc.
, 2009 ONCA 256, 305 D.L.R. (4th) 577, at para. 51, i
n
Transamerica
, at pp. 432-33, Sharpe J. (as he
    then was) accepted the following formulation of the test for lifting the
    corporate veil, set out in Gower,
Modern Company Law
, 5th ed.
    (1992) at pp. 132-33:

There seem to be three
    circumstances only in which the courts can [lift the corporate veil]. These
    are:

(1) When the court is
    construing a statute, contract or other document.

(2) When the court is
    satisfied that a company is a "mere facade" concealing the true
    facts.

(3) When it can be
    established that the company is an authorized agent of its controllers or its
    members, corporate or human.


COURT OF APPEAL FOR ONTARIO

CITATION: Moore (Re), 2016 ONCA 895

DATE: 20161125

DOCKET: C62462

Sharpe, van Rensburg and Pardu JJ.A.

IN THE MATTER OF: TARA L. MOORE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meara Conway, for the appellant

Andrew Cappell and Julie Zamprogna Balles, for the
    respondent

Heard and released orally: November 23, 2016

On appeal against the disposition of the Ontario Review
    Board dated, June 24, 2016.

ENDORSEMENT

[1]

We do not agree with the appellants submission that the Boards
    determination that she represents a significant threat to the safety of the
    public was unreasonable or based upon a misapprehension of the evidence. Nor do
    we agree that the Board erred by failing to find that the risk the appellant
    posed could be managed in the community.

[2]

The record reveals a history of violence, mental illness, substance
    abuse, and noncompliance with medication and court orders.

[3]

While her condition has improved in the hospital with medication, Dr. Roopchand
    gave a clear opinion that the appellant continues to suffer from a significant
    mental illness and that as a result of that mental illness, she poses a risk to
    society. The appellant lacks the support in the community that, given her
    current mental illness, would make a conditional discharge feasible.

[4]

We note as well that the appellant was initially released in the
    community on conditions but that she was ordered back to the hospital due to
    noncompliance. This combined with the appellants lengthy history of
    noncompliance with court orders, fully supports the Boards determination that
    a detention order was required in the circumstances of this case.

[5]

Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nissan Canada Inc. v. Lorion, 2016 ONCA 811

DATE: 20161101

DOCKET: C61403

Doherty, Hourigan and Brown JJ.A.

BETWEEN

Nissan Canada Inc.

Applicant (Appellant)

and

Mary Lou Lorion
and
    F.G. Fox

Respondents (Respondent in Appeal)

Jeffrey A. Brown and Shaun A. Hashim, for the appellant

Bradley Vermeersch, for the respondent

Heard and released orally:  October 28, 2016

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated November 23, 2015.

ENDORSEMENT

[1]

The appellant brought an application for a declaration that the
    arbitrator had no authority to reopen an arbitration that the appellant alleged
    had been finally decided by the arbitrator more than 30 days before the
    respondent brought the application to reopen.

[2]

The application judge described the application as premature and
    declined to address the merits, directing that the matter should proceed before
    the arbitrator first.  The application judge said:

In my view the re-opened arbitration should proceed, whether
    rightly or wrongly, and at the end of that process the parties can then take
    whatever steps they feel are appropriate in the circumstances.  Nissan remains
    free to raise before the arbitrator whatever arguments they wish concerning the
    correctness of the re-opening and the procedure being followed.  In this way
    there will be a complete record of the proceedings before the arbitration,
    including his decision to re-open and any reasons for this along with the issue
    of the new evidence.  The parties can then take the steps they feel are
    appropriate.

[3]

We would not interfere with the application judges exercise of his
    discretion.  Whether this matter is addressed from the perspective of the
    exercise of discretion always engaged on an application for declaratory relief,
    or through the statutory lens of s. 17 of the
Arbitration Act
, the
    efficient and effective operation of the arbitral process is best served by
    having an initial determination made by the arbitrator leaving the parties to
    seek whatever remedy they deem fit in response to that determination.

[4]

The appeal is dismissed.

[5]

Costs to the respondent, fixed at $7,500, inclusive of disbursements and
    relevant taxes.

Doherty J.A.

C.W. Hourigan J.A.

D.M. Brown J.A.