CITATION:
Consulate Ventures
          Inc. v. Amico Contracting & Engineering (1992) Inc., 2011
          ONCA 418

DATE: 20110602

DOCKET: C52265

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Feldman JJ.A.

BETWEEN

Consulate Ventures Inc.

Plaintiff (Respondent)

and

Amico
          Contracting & Engineering (1992) Inc., Windsor Factory Outlet Mall Ltd.
and Dominic
          Amicone

Defendants (Appellants)

Harry Underwood, for the appellant Windsor Factory Outlet Mall
          Ltd.

Myron Shulgan, for the appellant Amico Contracting & Engineering
          (1992) Inc.

Patrick Cotter, for the respondent

Heard: April 12, 2011

On appeal from the judgment of Justice Frank Newbould of the
          Superior Court of Justice dated May 10, 2010.

Moldaver J.A.:

INTRODUCTION

[1]

From
    1997 to 1999, the respondent, Consulate Ventures Inc. (Consulate), through its
    principal Mr. John Sorokolit, worked with the appellants, Amico Contracting
    & Engineering (1992) Inc. (Amico) and Windsor Factory Outlet Mall Ltd.
    (Outlet) on a project that saw 22 acres of raw land on the outskirts of
    Windsor, Ontario developed into a thriving manufacturers outlet mall. For much
    of that two-year period, through his dealings with the appellants principal, Mr.
    Dominic Amicone, Mr. Sorokolit believed that Consulate and the appellants were
    working together as partners in a joint venture.

[2]

To
    that end, Mr. Sorokolit took an active role in the project. He was in the
    business of developing shopping malls and the appellants sought him out to help
    them develop the 22 acre parcel which they had purchased in 1995 and been
    unable to sell or lease. Mr. Sorokolit conceived of the idea of an American-style
    manufacturers outlet mall and became heavily involved in the planning, design,
    and naming of the mall. He was also active in leasing the project and played a
    large part in securing the initial key tenants who were essential to the malls
    development and its eventual success.

[3]

Unfortunately
    for Consulate, on the day before Phase I of the mall was to open, the
    appellants for the first time took the position that they did not have a
    binding joint venture agreement with Consulate.  Their position in this regard was upheld in
    the litigation that followed, both at trial and on appeal to this court: see
Consulate Ventures Inc. v. Amico Contracting
    and Engineering (1992) Inc
. (2007), 282 D.L.R. (4th) 697.  Consulates alternative claim for
    restitutionary relief based on a
quantum
    meruit
claim was also rejected at trial. However, on the original appeal,
    this court determined that Consulate was entitled to such relief  but because
    it could not quantify the damages or determine whether, in addition to Outlet, the
    defendants Amico and/or Dominic Amicone were liable for them, a new trial was
    ordered on those issues.

[4]

At
    the new trial, Newbould J. valued Consulates
quantum meruit
claim at $2.25 million. He also found Amico to be
    jointly and severally liable with Outlet. He dismissed the claim against
    Dominic Amicone.

[5]

The
    appellants appeal from that order. They raise four issues:

(1)

Did
    the trial judge impermissibly use a value added approach rather than a value
    received approach in quantifying Consulates
quantum meruit
claim;

(2)

Assuming
    the trial judge did not use the wrong approach in valuing Consulates
quantum meruit
claim, was he entitled to
    rely on the expert valuation evidence called by Consulate in fixing the amount
    of the damages;

(3)

Assuming
    the trial judge was entitled to rely on the expert valuation evidence called by
    Consulate, did he err in failing to limit the damages to reflect the actual
    work done and services provided by Consulate; and

(4)

Did
    the trial judge err in holding Amico liable on the
quantum meruit
claim.

THE
QUANTUM MERUIT
CLAIM

Backdrop

[6]

In
    his thorough and comprehensive reasons for judgment, the trial judge succinctly
    summarized the salient facts giving rise to Consulates
quantum meruit
claim. They are found at paras. 3 to 8 of his
    decision as follows:
[1]

In 1995,
    twenty-two acres of land zoned highway commercial in Windsor Ontario were
    purchased from CIBC under power of sale for $1 million (approximately $45,000
    per acre). The land was put in the name of Heritage Centre Holdings Inc.
    (Heritage), a nominee corporation of the shareholders, who intended to flip
    the property to a third party for the development of retail facilities.
    However, despite its efforts during the next two years, Heritage was unable to
    sell or lease the property. Heritage is now the defendant Windsor Factory
    Outlet Mall Ltd.

Consulate
    is an experienced shopping plaza developer, and was introduced to the property
    by a Heritage representative in the summer of 1996 who visited Consulates
    president, John Sorokolit, in Niagara Falls to try to interest him in
    developing the property.  At that time, Consulate owned forty acres of
    land in Niagara Falls, Ontario which it was proposing to develop as an outlet
    mall facility.  It was also involved in preliminary plans for a golf
    resort in Niagara Falls.  At that time Mr. Sorokolit declined to become
    involved with the Windsor site.

Manufacturers
    outlet malls were a relatively new concept in Canada in 1996. Mr. Sorokolit had
    made it his business to learn about the development of manufacturers outlet
    malls by attending many conferences and outlet mall sites in the United States,
    and he had some experience with leasing an outlet mall in Cookstown, Ontario.

Discussions
    again took place in the summer of 1997 and in September 1997, Consulate and
    Heritage signed a letter agreement containing terms of a proposed 50/50 joint
    venture of the Windsor property to develop a manufacturers outlet mall on the
    property. One month later in October 1997, after Heritage received a report
    from a third party that caused it to question the suitability of the property
    for an outlet mall, Heritage agreed to sell the property to a Consulate-related
    company for $2.5 million (approximately $110,000 per acre) under an agreement
    which gave Consulate a three month due diligence period, later extended to
    February 22, 1998, to satisfy itself that an acceptable tenancy level could be
    achieved for the proposed outlet mall.

Consulate
    did not proceed with its purchase. The evidence as to what then occurred and
    why differed between the parties. What is agreed is that a letter agreement
    dated June 16, 1998 and signed on November 14, 1998 was entered into which
    contemplated a 50/50 joint venture between Consulate and Heritage or its
    nominee Amico regarding the Windsor property and the Niagara Falls property of
    Consulate and the Niagara Falls golf club property being developed by
    Consulate.

Work on
    the outlet mall in Windsor proceeded. The extent of the efforts of Mr.
    Sorokolit on behalf of Consulate is an issue in this action, and highly
    contested. On June 23, 1999, one day before the opening of Phase 1, Heritage
    took the position that the letter agreement of June 16, 1998 was not a binding
    agreement. Litigation followed. It is this letter agreement that was held not
    to constitute a binding joint venture agreement.

[7]

As
    mentioned, in the litigation that followed, Consulate sought damages for breach
    of contract and alternatively, restitutionary relief based on
quantum meruit
. The trial judge
    dismissed Consulates claim in its entirety. She rejected Consulates claim in
    contract because she found that Consulate had not entered into a formal joint
    venture agreement with the appellants. As for Consulates
quantum meruit
claim, she concluded that it was dependent in law on
    a contractual relationship between the parties and since no such relationship
    existed, it could not succeed.

[8]

On
    appeal from that decision, this court, per Cronk J.A., rejected the proposition
    that a
quantum meruit
claim is
    dependent on the existence of a valid contract. At para. 99 of her reasons, she
    set out the proper legal test:

Thus, where the claim for restitutionary relief is
    based on
quantum meruit
, as in this case, an explicit mutual agreement
    to compensate for services rendered is not a prerequisite to recovery. It
    suffices if the services in question were furnished at the request, or with the
    encouragement or acquiescence, of the opposing party in circumstances that
    render it unjust for the opposing party to retain the benefit conferred by the
    provision of the services.
[Citations
    omitted.]

[9]

Having
    identified the correct legal test, Cronk J.A. reviewed the record and concluded
    at para. 101 that there was considerable evidence at trial that Consulates
    services concerning the Windsor outlet mall were provided either at the request
    of, or with the encouragement or acquiescence of, Heritage and Amicone, in
    anticipation or in light of the arrangements reflected in the June Letter. She
    then identified at para. 102 some of the services furnished by Consulate, that had
    advanced the development of the Windsor Property:

The services furnished by Consulate, without
    compensation, included:

(i)       the provision to Heritage,
    at Amicones request, of the business name Windsor Crossing Premium Outlets,
    which was adopted and used by Heritage;

(ii)       the supply to
    Heritage of draft signage drawings for the Windsor outlet mall;

(iii)    the provision of advice,
    photographs and other documents regarding the design of the Windsor outlet
    mall;

(iv)      advice, at Amicone's
    express request, concerning the draft site plan, blueprints and construction specifications
    for the Windsor outlet mall;

(v)       detailed information and
    advice, again at Amicones express request, on the contents and production of a
    leasing brochure;

(vi)      the provision of a leasing
    plan and precedent marketing plans;

(vii)    extensive efforts to secure
    suitable tenants for the Windsor outlet mall, including introductions to and
    discussions with Escada, Holt Renfrew, Adidas, Nike and others, ultimately
    resulting in letters of intent or completed leasing agreements with, at least,
    Escada, Adidas and Nike;

(viii)   advice, also at Amicones request, regarding
    the terms of the proposed leasing agreement with Nike; and

(ix)    to the knowledge of Amicone, the
    hiring of a leasing consultant, at Consulates sole expense, to secure tenant
    commitments.

[10]

In
    the face of that evidence and additional evidence which showed that the
    appellants had either requested the services or encouraged or acquiesced in
    them, Cronk J.A. concluded at para. 109 that a new trial is required to
    determine the nature, extent and value of the services provided by Consulate
    concerning the Windsor Property.

[11]

That
    is the backdrop giving rise to the
quantum
    meruit
claim.

THE
QUANTUM MERUIT
PROCEEDING

Overview

[12]

The
quantum meruit
proceeding consumed 13
    days of court time. Most of that time was spent on issues that form no part of
    this appeal. The issues before us are narrow in scope and by and large
    straightforward.

[13]

At
    trial, the appellants concentrated on trying to downplay Mr. Sorokolits skills
    and abilities as a shopping mall developer and on minimizing the nature and
    value of the services he provided to the Windsor project. As the trial judge
    observed at para. 8 of his reasons, set out in full above at para. 6:

The
    extent of the efforts of Mr. Sorokolit on behalf of Consulate is an issue in
    this action, and
highly contested
.
    [Emphasis added.]

[14]

The
    resolution of the extent of the efforts of Mr. Sorokolit on behalf of
    Consulate accounts for almost 30 pages of the trial judges 54-page judgment.
    By comparison, the trial judge spent fewer than 14 pages on the issue of
    valuation and 3 pages on the issue of Amicos liability on the
quantum meruit
claim.

[15]

While
    numbers can be deceiving, in this case, they tell the story of a trial that was
    fought out largely on factual issues that are no longer in dispute. Manifestly,
    the trial judge spent a considerable amount of time crafting his reasons for
    judgment. They are comprehensive and address in considerable detail the issues
    and arguments raised by the appellants at trial. As indicated, those issues and
    arguments related in the main to factual disputes concerning Mr. Sorokolits
    skills and abilities and the nature and extent of his contributions to the
    project.  The trial judge resolved those
    issues almost entirely in favour of Consulate.

[16]

As
    for the valuation of Mr. Sorokolits contributions to the project, the
    appellants paid scant attention to the qualifications of Consulates expert,
    Mr. Geoffrey Moore. A feeble attack on his lack of expertise, designed to
    prevent him from giving opinion evidence on the value of Consulates claim, proved
    unsuccessful.

[17]

Nor
    did the appellants take particular issue with the method Mr. Moore used in
    calculating the fair market value of the services provided by Mr. Sorokolit. While
    the appellants certainly disagreed with Mr. Moores approach, the focus of this
    attack was very much tied to their primary attack on his evidence which took
    direct aim at the factual assumptions he used in arriving at his calculations.
    Those assumptions related to the nature and extent of Mr. Sorokolits
    contributions to the project and his skills and abilities as a developer, which,
    as indicated, the appellants had sought to minimize.

[18]

According
    to the appellants, Mr. Sorokolits services were minor in nature, of little
    value to the project and clearly not fundamental to its development or ultimate
    success. As such, the appellants took the position that for
quantum meruit
purposes, his services
    should be valued on an item by item basis according to prevailing market rates
    and practices.  In their view, he should
    not be treated as someone with special skills and abilities whom the appellants
    had approached in the expectation that he could provide them with the advice
    and know-how needed to turn a then dormant parcel of land into a successful shopping
    mall.

The trial judges findings as to Mr. Sorokolits
    contributions

[19]

The
    trial judge made strong findings of fact regarding the nature, extent and
    significance of Mr. Sorokolits contributions to the development of the property.
    He began by noting that prior to Mr. Sorokolits involvement, the 22 acre
    parcel of land belonging to the appellants had been lying dormant for two years.
    Their plan to purchase it and flip it had not panned out and the appellants were
    unable to sell or lease the property.  Moreover,
    the appellants had no experience in outlet malls and unlike Mr. Sorokolit,
    had not made it [their] business to learn anything about them. Added to this,
    the appellants had limited commercial development experience. It was in this
    context that the trial judge explained what the appellants gained when they
    sought out Mr. Sorokolit to see if he was interested in developing an
    outlet mall:

What Mr. Sorokolit brought to the table for the
    Windsor mall is an indication of his unique experience and expertise. It was
    instrumental in my view in the development proceeding as it did. It was also
    unique in the sense that Mr. Amicone or his employees did not possess the
    expertise that Mr. Sorokolit had and they had not brought anyone else on board
    who had that expertise. That is not surprising given the lack of persons in
    Canada experienced at the time in the outlet mall business. [para. 117.]

[20]

The
    trial judge also made detailed findings about the actual services provided by
    Mr.
Sorokolit. In summary form, he found that Mr. Sorokolit:

·

provided
    the concept for the development of an outlet mall with a tenant mix of various
    manufacturers outlet stores (a very different concept from the conventional
    shopping centre mall that the appellants had been considering, for which the
    City of Windsor had no need);

·

coined
    the name Windsor Crossing Premium Outlets;

·

provided
    instructions for the site plan and prepared a sketch of it showing buildings
    around the perimeter with 90 x 30 foot bays for the stores;

·

provided
    ideas and photographs used to inspire the exterior design of the mall;

·

targeted
    tenants suitable for an outlet mall;

·

sought
    out and introduced anchor tenants for the mall and secured Adidas as an anchor
    tenant;

·

retained
    an experienced leasing agent at Consulates expense to work exclusively on
    leasing the mall space;

·

met
    on a regular basis with the exclusive leasing agent and the appellants to
    review and discuss leasing strategies and tenanting issues.

[21]

Of
    these services, the trial judge found that Mr.
Sorokolits role in
    signing up initial key tenants was very important. At para. 158 of his reasons,
    he stated:

It cannot be overlooked however that once the
    initial key tenants were signed up,
in
    which Mr. Sorokolit had a large part to play, momentum for signing other
    tenants was achieved. In the language of Mr. Amicone, it started the snowball
    rolling
. [Emphasis added.]

[22]

The trial judge also considered it significant that for
    much of the two-year period during which Mr. Sorokolit worked on the project,
    he did so under the belief that Consulate and the appellants were working
    together as partners in a joint venture. That was the context within which Mr.
    Sorokolits contributions to the project were to be measured and the trial
    judge placed considerable emphasis on this in assessing the value of
    Consulates
quantum meruit
claim. As
    the trial judge observed at para. 149 of his reasons:

I have some difficulty with the theory of the
    defence on the market value of what Mr. Sorokolit provided.  He was
    generally not requested by Mr. Amicone to do individual items of work.
    Rather ... he provided his services with the acquiescence or encouragement of
    Mr. Amicone in anticipation or in light of the joint venture arrangements
    contained in the June 16, 1998 letter.  These arrangements were discussed
    between Mr. Sorokolit and Mr. Amicone far in advance of that letter, going back
    to November 1997.

The valuation evidence

[23]

As
    indicated, Mr. Geoffrey Moore gave evidence on behalf of Consulate as to the
    fair market value of Mr. Sorokolits contributions to the project.

[24]

Over
    the objection of the appellants, Mr. Moore was permitted to give expert [evidence]
    in the development of shopping centres, including leasing and related financial
    matters, and in the quantification of the value of development services.

[25]

As
    mentioned, the appellants sought to prevent Mr. Moore from giving opinion
    evidence on the value of Mr. Sorokolits services. They alleged that he was
    unqualified to do so because he had never purchased from a third party the
    kind of development services that Mr. Sorokolit provided; nor had he done an
    investigation as to what the market value would be for these services. Hence,
    according to the appellants, he was unqualified to give the expert valuation
    evidence that Consulate sought to adduce from him.

[26]

The
    trial judge rejected that argument. He considered Mr. Moores evidence that
    since 1979, Mr. Moore had been a seller of these services to third parties in
    the marketplace and through his consulting business, he had engaged in all
    aspects of shopping centre development, whether it be leasing, management,
    redeveloping, consulting and  some specialty work in consulting assignments. According
    to the trial judge, Mr. Moores extensive experience from the sellers
    side made him no less an authority on the market value of the services in
    question than someone on the buyers side.

[27]

The
    appellants have not challenged that ruling on appeal, at least not squarely.
    Regardless, the trial judge in my view made no error in his analysis or
    conclusion.

[28]

The
    trial judge reviewed Mr. Moores evidence in considerable detail at paras. 119
    to 128 of his reasons. The essence of Mr. Moores evidence may be briefly
    stated as follows.

[29]

Mr.
    Moore was retained by Consulate to assess the fair market value of the services
    provided by Mr. Sorokolit. In doing so, he took into account the following
    factors:

·

The
    City of Windsor was well served by conventional shopping malls and a specialty
    mall such as a manufacturers outlet mall was needed to successfully develop
    the lands owned by the appellants;

·

Mr.
    Sorokolit had unique and special expertise in manufacturers outlet malls,
    which was fundamental to the development;

·

Mr.
    Sorokolits contributions provided the fundamental blueprint for the entire
    development;

·

Services
    of the kind provided by Mr. Sorokolit are typically not billed on an hourly or piecemeal
    basis. Rather, they are bundled together and a developer/consultant typically
    puts up equity and seeks and obtains equity participation in the project;

·

Consulate
    did not put up equity, nor did it take any financial risk in the project.

[30]

Mr.
    Moore testified about the importance of Mr. Sorokolits contributions to the
    project. The trial judge summarized his evidence in this regard at para. 123 of
    his reasons:

Mr. Moores view is that the most important part of
    the development was the initial period because the concept, site plan, design,
    target tenants and the initial key tenant introductions were fundamental to
    putting the plan in place, which he understood Mr. Sorokolit was responsible
    for. In his view it was these things that were the key ingredients, which he
    called the fundamental blueprint for the development that allowed it to proceed
    to its conclusion.

[31]

As
    for the valuation of Mr. Sorokolits services, when he prepared his report for
    the
quantum meruit
proceeding, Mr.
    Moore was aware that some years after the appellants had developed the project,
    they had sold the mall and made a profit of $27 million. Mr. Moore referred to
    this gain as the enhanced value of the project. He stated that had it been up
    to him, he would have fixed the fair market value of the services provided by
    Consulate at 25 percent of that value or $6.75 million. However, because he was
    asked to value the services provided by Consulate without regard to the
    enhanced value of the project, it was his view that Consulate should receive a
    fee that was commensurate with the unique expertise and experience it had
    brought to the project. With that in mind, he concluded that a fee in the range
    of $20 per sq. ft. would be appropriate. The mall consisted of 248,000 sq. ft.  However, making allowances for vacancies, he concluded
    that Consulate should be paid $20 per sq. ft. for 225,000 sq. ft. or $4.5
    million.

[32]

Mr.
    Moore did not provide any breakdown as to how he arrived at his value of $20
    per sq. ft. figure and neither Consulates counsel nor counsel for the
    defendants asked him about that figure. Accordingly, the trial judge posed several
    questions to Mr. Moore at the conclusion of his testimony. Mr. Moores
    responses are summarized at para. 125 of the trial judges reasons:

In answer to questions from me at the end of his
    evidence, Mr. Moore said that based on his experience, a market rate paid for
    pre-development work and leasing of a conventional shopping centre, in which a
    developer already had the development plans for it, would generally be $8 to $9
    per sq. ft. If only leasing work was being done, the rate would be $6 to $7 per
    sq. ft. He said that in this case, because of the uniqueness of the project in
    Canada, the fact that Windsor did not need any more conventional shopping
    centres and the fact that Consulate had provided the key to its development as
    an outlet mall, Consulate would be entitled to an additional fee which took it
    up to $20 per sq. ft.

[33]

I
    pause here to note that Outlets factum contains a submission that it was
    improper for the trial judge to elicit the breakdown evidence and in doing
    so, he impermissibly descended into the arena and created an impression of
    unfairness to the defence. In oral argument, however, Outlet did not press
    this complaint  and properly so, in my view. In posing the questions he did,
    the trial judge was merely seeking clarification of evidence that was already
    before him. He was not delving into a new area; nor was he filling in a gap for
    Consulates benefit.

[34]

After
    questioning the witness, the trial judge gave counsel an opportunity to engage
    in follow-up questions. Experienced counsel for Outlet took up the offer and
    asked a series of further questions. Neither he nor counsel for Amico took
    exception to the trial judges intervention nor to the questions he posed. That,
    to me, says much about the propriety of the trial judges conduct. In short, I
    am satisfied that the trial judges intervention and the questions posed by him
    were entirely proper.

[35]

After
    reviewing Mr. Moores evidence, the trial judge resolved an issue relating to a
    $2 million break fee clause that the parties had negotiated and reduced to
    writing in the context of their joint venture discussions.  Without going into detail, the trial judge rejected
    Mr. Amicones evidence and accepted Mr. Sorokolits evidence as to the meaning
    and intent of the clause, namely: Consulate would be paid a $2 million break
    fee for the work it had performed on the project up to December 31, 1997 should
    the appellants terminate their involvement with Consulate and then proceed to develop
    an outlet mall before December 31, 1999.

[36]

Having
    determined the factual dispute concerning the break fee clause in favour of Consulate,
    the trial judge quite properly concluded that although the clause may have shed
    some light on the position of the parties at one point in time as to the value
    of Consulates services, it was little more than a fleeting notion not long
    held by either party. Accordingly, he was not prepared to put a great deal of
    weight on it in valuing Consulates services.

[37]

Finally,
    the trial judge reviewed in some detail the evidence called by the appellants
    on the issue of valuation. For the most part, that evidence consisted of
    looking at the services provided by Mr. Sorokolit and ascribing a value to them
    on a piecemeal basis having regard to prevailing market rates and practices.

[38]

I
    do not propose to outline that evidence since the trial judge did not give
    effect to it and it only becomes relevant on appeal should the appellants
    succeed in their submission that the trial judge took the wrong approach in
    valuing Consulates
quantum meruit
claim.

The trial judges conclusion on value

[39]

In
    arriving at a conclusion as to the value of Consulates
quantum meruit
claim, the trial judge began his analysis by
    observing that he could accept or reject, in whole or in part, the valuation
    evidence presented by the various expert witnesses. In the end, after
    considering the methods they had used and the calculations they had made, he
    agreed with Greenberg J.s observation in
Re
    Domglas Inc., Domglas Inc. v. Jarislovsky et al
. (1980), 13 B.L.R. 135 (Qc.
    S.C.); affd (1982), 138 D.L.R. (3d) 521 (Qc. C.A.) that:

The
    Court, as the objective arbiter of those competing (and conflicting) opinions,
    must weigh them all and do its best to arrive at a fair and equitable value.

[40]

With
    that in mind, the trial judge made a clear finding, at para. 156 of his
    reasons, that he preferred Mr. Moores approach to valuation over that of the
    appellants experts:

I prefer the approach of Mr. Moore to the approach
    and lack of evidence of the defendants. I accept the view of Mr. Moore that the
    most important part of the development was the initial period because the
    concept, site plan, design, target tenants and the initial key tenant
    introductions
were fundamental to the
    development of the mall. His value of $20 per square foot was not a value based
    on an enhanced value of the project. It was his view of the market value of the
    services provided by Mr. Sorokolit.
[Emphasis added.]

[41]

Having
    accepted Mr. Moores approach to valuation as the preferable approach, the
    trial judge was not prepared to blindly accept the $20 per sq. ft. figure that
    Mr. Moore used in calculating the fair market value of Mr. Sorokolits services.
    In a word, the trial judge considered the $20 figure to be excessive. He
    provided four reasons for this:

(1)

The
    market rate of $8-$9 per square foot that Mr. Moore quoted were fees for a development
    that a consultant presumably was involved in through to completion.  Here, Mr. Sorokolit was not involved through
    to the completion of the mall and in the leasing efforts that continued for the
    later phases of the mall.

(2)

It
    was an overstatement to say that Mr. Sorokolits recommendations regarding the
    design of the mall formed the entire basis for [its] design. Some of the
    design work was attributable to Dominic Amicone and his brother Dan Amicone.

(3)

Mr.
    Moore wrongly assumed that Mr. Sorokolit was entirely responsible for the
    advice to develop an outlet mall on the site. The appellants had used the term
    outlet mall in the initial material they had sent to Mr. Sorokolit, albeit that
    their concept of an outlet mall differed from Mr. Sorokolits and it was
    Mr. Sorokolits concept that carried the day; and

(4)

In
    arriving at the figure of $20 per sq. ft., Mr. Moore included an amount of $11
    or so per sq. ft. for the uniqueness of the development. In Mr. Moores view,
    uniqueness was the key to the development and that is what Mr. Sorokolit
    provided. The $11 figure, however, involved a degree of speculation as to the
    amount that would be paid in the marketplace for this unique concept given
    that Canada at the time had little or no experience with manufacturers
    outlet malls. Hence, while Mr. Moores opinion was not to be completely
    disregarded, it had to be viewed in that light and assessed accordingly.

[42]

In
    the end, having regard to all of the circumstances, including his findings of
    fact, his preference for Mr. Moores approach, and the features of Mr. Moores
    calculations which he accepted, the trial judge determined the fair market value
    of Mr. Sorokolits services as follows:

Mr. Moores $8 to $9 rate was derived from $2 for
    the development work and $6 to $7 for the leasing work. I would allow $2 for
    the development work and $4 for the leasing work. I would not allow the entire
    balance of $11 for the uniqueness involved in what Mr. Sorokolit provided. I
    would allow $4 for that. The total is thus $10 per sq. ft. that I would apply
    to 225,000 sq. ft. to get $2.25 million. That is the amount that I find
    represents the market value of what one would pay for all of the services and
    materials provided by Mr. Sorokolit. I fix $2.25 million as the amount to be
    paid to Consulate for its
quantum meruit
claim.

[43]

Against
    that background, I turn to the issues raised by the appellants.

Issue One: Did the trial judge
    impermissibly use a value added approach rather than a value received
    approach in quantifying Consulates
quantum
    meruit
claim?

[44]

The
    appellants submit that in valuing Consulates
quantum meruit
claim, the trial judge impermissibly looked at the
    amount by which Mr. Sorokolits services increased the value of the project, instead
    of costing out his services on an item by item basis according to prevailing
    market rates and practices, without regard to their impact on the projects
    value.

[45]

I
    would not give effect to this ground of appeal. Mr. Moore was keenly aware of
    the different approaches to valuation. At Consulates instance, he performed a
    valuation that reflected the market value of Mr. Sorokolits contributions
    to the project, bearing in mind his unique expertise and experience. That is
    a value received approach and Mr. Moore clearly understood the
    difference between it and a value added approach.  As Mr. Moore explained in his testimony, had
    he applied the latter approach, he would have valued Mr. Sorokolits services
    at 25 percent of the total enhanced value of the project or $6.75 million.

[46]

The
    trial judge was equally familiar with the distinction between the value added
    approach and the value received approach. At para. 12-18 of his reasons, he
    set out the principles that govern a
quantum
    meruit
award for services provided. In particular, at para. 15, he quoted
    the following passage from P. D. Maddaugh and J. D. McCamus,
The Law of Restitution
, vol. 1,
    looseleaf (Aurora, Ont.: Canada Law Book, 2009) at para. 4:200.30 (recently
    referred to with approval in
Kerr v.
    Baranow
(2011), 328 D.L.R. (4th) 577 (S.C.C.) per Cromwell J. at para. 74,
    as to the various possible measures of relief available in a
quantum meruit
claim):

Although
    the measure of relief in these claims, generally speaking, is the reasonable
    value of the benefit conferred in each case, it must be noted that this measure
    may vary from one context to the next. There are a number of possible measures,
    including the cost to the claimant of providing the benefit, the
market value of the benefit bestowed
,
    or, alternatively, the value placed on the benefit by the recipient, where this
    differs from either of the other two measures. Further, where the benefit has
    been conferred under an ineffective agreement, it may be asked whether the
    quantum of relief should be limited by the value ascribed to it by the contract
    price.
As will be seen, the
    appropriateness of a particular measure will depend on the circumstances in
    which it is applied and it is, therefore, undesirable to articulate a general
    principle favouring the utilization of any one of these measures either
    presumptively or as a general rule
. [Emphasis added.]

[47]

In
    oral argument, the appellants acknowledged that the trial judge instructed
    himself properly on the law, and that he fully appreciated that Consulate was
    to be compensated in accordance with the fair market value of the services
    provided by Mr. Sorokolit, not the amount by which those services enhanced
    the value of the project.

[48]

In
    my view, the argument put forward by the appellants rests essentially on the
    notion that there is only one way to remain faithful to the value received
    approach when calculating the fair market value of services like those provided
    by Mr. Sorokolit. That approach is a mechanical one in which the services are
    costed out on a piecemeal basis having regard to prevailing market rates and
    practices. The appellants do not accept as legitimate the more nuanced
    contextual approach advocated by Mr. Moore. Under that approach, the services
    in question are considered in the context of the facts and circumstances under
    which they are provided and valued accordingly.

[49]

With
    respect, I see no reason in principle or policy why the contextual approach
    taken by Mr. Moore should be eschewed in favour of the mechanistic approach
    urged by the appellants, in all cases, under all circumstances.

[50]

Although
quantum meruit
originated as a common
    law claim, it is now firmly entrenched as an equitable form of relief. In
Kerr v. Baranow,
at para. 74, Cromwell
    J. used the word flexible to describe the measure of a
quantum meruit
award. Flexibility is vital when considering
    restitutionary relief.  As McLachlin J.
    noted in
Soulos v. Korkontzilas
,
    [1997] 2 S.C.R. 217 at para. 34:

Equitable
    remedies are flexible; their award is based on what is just in all the
    circumstances of the case.

[51]

The
    trial judge in the instant case sought to place a fair and equitable value on
    the services provided by Mr. Sorokolit. In doing so, he preferred the evidence
    of Mr. Moore over that of the appellants experts, including the approach Mr.
    Moore chose in valuing Mr. Sorokolits services. That approach recognized the
    particular circumstances under which Mr. Sorokolit provided the services, the
    unique features of those services and the special expertise that Mr. Sorokolit
    brought to the table. To be sure, this was not a case of valuing Mr.
    Sorokolits services as though he were providing standard services readily
    available in the marketplace from a host of people, and the trial judge refused
    to treat it as such.

[52]

The
    appellants approached Mr. Sorokolit initially because of his experience and
    knowledge as a developer of shopping malls. At the time, they had been sitting
    on a piece of raw land for two years.  Their plan to flip it had gone awry and they could not sell or lease
    the property. In short, they needed help. And they found it in the person of
    Mr. Sorokolit. In this regard, it is worth repeating the trial judges
    observations at para. 117 of his reasons:

What Mr. Sorokolit brought to the table for the
    Windsor mall is an indication of his unique experience and expertise. It was
    instrumental in my view in the development proceeding as it did. It was also unique
    in the sense that Mr. Amicone or his employees did not possess the expertise
    that Mr. Sorokolit had and they had not brought anyone else on board who had
    that expertise. That is not surprising given the lack of persons in Canada
    experienced at the time in the outlet mall business.

[53]

Throughout
    most of the two-year period in which Mr. Sorokolit worked on the project, he
    did so under the honest but mistaken belief that Consulate was working with the
    appellants as joint venture partners. As such, he did not view his services as
    piecemeal in nature, nor was he docketing his time or quoting prices for particular
    services rendered. Rather, he was acting as a co-venturer whose primary goal
    was to turn a dormant piece of raw land into a successful manufacturers outlet
    mall.

[54]

To
    that end, Mr. Sorokolit worked hard during the initial stages of the
    development. Mr. Moore described the initial period as the most important
    part of the development because the concept, site plan, design, target tenants
    and the initial key tenant introductions were fundamental to the development of
    the mall. The trial judge accepted Mr. Moores assessment.

[55]

In
    these circumstances, the trial judge realized, correctly in my view, that any
    attempt to value Mr. Sorokolits contributions on an item by item basis would
    be artificial and not in keeping with the fundamental role he played in developing
    the project.

[56]

In
    short, I am satisfied that the trial judge was entitled to adopt Mr. Moores
    approach to the issue of valuation.  In
    doing so, he did not engage in a value added approach but rather a value
    received approach which reflected the market value of Mr. Sorokolits contributions
    to the project and the services he provided bearing in mind his unique
    expertise and experience.

[57]

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

Issue Two: Was the trial judge
    entitled to rely on the expert evidence called by Consulate to quantify Consulates
    damages?

[58]

The
    appellants submit that the trial judge erred in giving any credence or weight
    to the $20 per sq. ft. figure that Mr. Moore used in calculating the fair
    market value of Mr. Sorokolits contributions to the project. The argument
    of the appellants, in its simplest form, is that Mr. Moore effectively pulled
    that figure and its component parts - $8-$9 per sq. ft. for pre-development and
    leasing, and $11 per sq. ft. for providing the fundamental blueprint for the
    development  out of the air. And he did so to camouflage what in reality was
    a value added approach to the calculation of Consulates damages.

[59]

Proof
    of this, the appellants maintain, is evident in Mr. Moores own evidence. He
    provided no examples or comparatives in arriving at the $20 figure and he
    conceded that he had never purchased services like those provided by Mr.
    Sorokolit.

[60]

Unfortunately
    for the appellants, the trial judge saw the matter differently. Mr. Moore
    had been involved in the development of shopping centres, including leasing
    and related financial matters, and in the quantification of the value of
    development services for over 30 years and he had extensive experience from
    the sellers side of the market.  In the
    trial judges opinion, the breadth and extent of Mr. Moores experience enabled
    him to give opinion evidence as to the fee a purchaser would pay in the open
    market to obtain the type of services Mr. Sorokolit was able to, and did
    provide to the appellants.

[61]

As
    for the $20 per sq. ft. figure, Mr. Moore stated that from his experience, a
    market rate paid for pre-development work and leasing of a conventional
    shopping centre,
in which a developer
    already had the development plans for it
, would generally be $8-$9 per sq.
    ft. (emphasis added). The appellants did not lead evidence challenging that
    figure and the trial judge was entitled to act on it.

[62]

Notably,
    as Mr. Moore explained, the $8-$9 per sq. ft. figure applied in cases where
    the developer already had the development plans. That was not this case.
    Here, the project was unique in Canada; the City of Windsor did not need any
    more conventional shopping centres and Consulate provided the key to the
    development [of the property] as an outlet mall. In Mr. Moores opinion, those
    features served to take the case out of the ordinary and entitled [Consulate]
    to an additional fee which took it up to $20 per sq. ft.

[63]

In
    my view, the trial judge was entitled to act on Mr. Moores valuation evidence.
    In so concluding, I would emphasize two points which the trial judge clearly
    took into account.

[64]

First,
    Mr. Moore cannot be faulted for failing to provide comparables from the
    Canadian marketplace. As he observed, manufacturers outlet malls were
    virtually unheard of in Canada at the time. Moreover, as he noted, in deals of
    this nature, the normal situation would be for a company like Consulate to take
    an equity position in the project and put up some financing. That did not occur
    here, although Consulate viewed the situation as though it was engaged in a
    joint venture with the appellants. The trial judge was mindful of this in
    approaching the issue of damages.  He
    recognized that in assessing damages on a
quantum
    meruit
basis, he was not bound by a single measure of relief. Rather, he
    was entitled to consider various measures of relief with a view to arriving at
    a fair and just award.

[65]

Second,
    the trial judge was keenly aware that Mr. Moores opinion as to the extra $11
    per sq. ft. for uniqueness was just that  an opinion  and that it
    necessarily involved a certain amount of speculation or intelligent guesswork
    because there were few if any precedents as to what would be paid in the [Canadian]
    marketplace for this unique concept at that time. That said, the trial judge recognized
    that Mr. Moores opinion was not just the opinion of anyone. It was the
    opinion of an experienced and knowledgeable consultant in the development
    business as to what someone would have to pay for Mr. Sorokolits services.
    Hence, it was not to be completely disregarded.

[66]

As
    indicated, I am satisfied that the trial judge was entitled to treat Mr.
    Moores evidence as credible and probative and give it the weight he felt it
    deserved. Accordingly, I would not give effect to this aspect of the appellants
    argument.

Issue Three: Did the trial
    judge err in failing to limit Consulates damages to reflect the actual
    services provided by Consulate?

[67]

The
    appellants submit that the trial judge overcompensated Consulate for the
    services Mr. Sorokolit actually provided. In this regard, they point to the
    fact that Mr. Sorokolits involvement with the project ended in June 1999
    at the end of the projects first phase. That phase consisted of only 52,900
    sq. ft. Hence, an award based on 225,000 sq. ft. (the entire rentable space in
    the mall), was unwarranted and provided Consulate with a windfall. Likewise, in
    awarding Consulate $900,000 ($4 per sq. ft. x 225,000 sq. ft.) for leasing
    compensation, the trial judge grossly over-compensated Consulate bearing in
    mind the actual work performed by Mr. Sorokolit and the success he had in
    securing tenants for the mall. The appellants point to the fact that by June 23,
    1999, when he was terminated, Mr. Sorokolit had only secured one tenant, Adidas.
    He had also introduced Nike to the project but it was the appellants who
    secured the Nike lease.  Finally, the
    appellants point to a letter, dated February 1, 1999, in which Consulate
    indicated that it would fulfill [its] obligation to the joint venture by
    taking on the leasing responsibilities
exclusively
at a rate of Three Dollars [$3.00] per sq. ft. (emphasis in original). As
    well, the leasing commission was to be paid in installments. No payment was to
    be made for simply introducing a tenant to the development.

[68]

I
    would not give effect to these arguments. In my view, they are largely a
    throwback to the appellants main contention that the trial judge should have
    used a mechanical approach as opposed to a contextual approach in assessing the
    fair market value of Mr. Sorokolits contributions and the services he provided.
    I have already explained why I reject that submission and see no need to repeat
    it. As for Consulates commitments in the February 1, 1999 letter, they were
    made in contemplation of a joint venture undertaking that did not materialize.
    Hence, in my view, they carry no more weight than the $2 million break fee which
    the parties had negotiated.

[69]

In
    short, the trial judge was entitled to use the approach advocated by Mr. Moore
    in assessing Consulates damages. Notably, however, he did not blindly accept
    Mr. Moores figures. Indeed, he cut the fee per sq. ft. suggested by Mr.
    Moore in half, from $20 to $10, in arriving at the $2.25 million award which he
    felt was fair and just. In doing so, he recognized that Mr. Sorokolit was not
    involved through to the completion of the mall and in the leasing efforts that
    continued for the later phases of the mall. He also recognized that the fee
    attributable to uniqueness was very much a matter of opinion, albeit an
    opinion of an experienced and knowledgeable consultant. As such, he was not
    prepared to completely disregard it. However, in the end, he chose discount
    it by approximately 60 percent from the $11 per sq. ft. suggested by Mr. Moore to
    $4 per sq. ft.

[70]

In
    reducing the fee per sq. ft. for leasing services and uniqueness, the trial
    judge was not merely picking numbers out of the air, as the appellants suggest.
    Rather, he was adjusting Mr. Moores numbers to arrive at an award that he believed
    was fair and just in the circumstances. In short, he was performing the role
    expected of him as a trial judge.

[71]

In
    my view, while the award of $2.25 million is perhaps generous, it is not so
    excessive as to warrant appellate intervention. I would accord it the deference
    it deserves and not interfere.

Issue Four: Is Amico liable for the damages awarded?

[72]

Amico
    was involved in the construction management of the Windsor Mall. Amico submits
    that its role was limited to construction work and that it derived no direct
    benefit from the services provided by Consulate. Hence, it should not have been
    found liable for damages based on
quantum
    meruit
.  A party sought to be held
    liable on that basis must receive a direct benefit from the services provided
    (see
Peel (Regional Municipality) v.
    Canada,
[1992] 3 S.C.R. 762 at p. 797 and
Boulanger v. Johnson & Johnson Corp
. (2003), 174 O.A.C. 44
    (C.A.) at para. 20.

[73]

I
    would not give effect to Amicos submission. The question of Amicos liability
    is largely fact driven and it is fully answered by findings of fact made by the
    trial judge that are not challenged on appeal.

[74]

The
    trial judge found that Amico was involved in the development in more ways than
    simply construction management. Amico participated to some extent in planning
    and design issues, as well as leasing issues. Amico also commissioned a
    feasibility study for the development which it lodged with the bank for financing
    purposes. Notably, Amico was a party to the June Letter which provided that Outlet
    or Amico would form a joint venture with Consulate.

[75]

The
    trial judge rejected Mr. Amicones evidence that he did not request anything
    from Mr. Sorokolit on behalf of Amico. According to the trial judge, it was
    not possible for Mr. Amicone to say with any degree of confidence that Mr.
    Sorokolit was dealing with him only in his capacity as President of [Outlet] and
    not as President of Amico. Rather, he found that Consulates services were
    provided with the knowledge and acquiescence, and in some cases at the request
    of Mr. Amicone acting on behalf of [Outlet] and Amico.

[76]

In
    the end, the trial judge was satisfied that Outlet and Amico were acting hand-in-hand
    as co-venturers in the project. On the trial judges analysis, amply supported
    by the evidence, it would be totally artificial to regard Amico and Heritage as
    entirely separate entities for purposes of the development. They were fingers
    of the same hand and both stood to gain and did gain directly from the
    successful development of the property.

[77]

Accordingly,
    I would dismiss this ground of appeal and uphold the trial judges conclusion
    as to Amicos liability.

CONCLUSION

[78]

In
    the result, I would dismiss the appeal, both as it relates to Amicos liability
    and the issue of damages. In the circumstances, with the concurrence of the
    appellants, Consulate is entitled to its costs of the appeal in the amount of
    $30,000 inclusive of disbursements and H.S.T.

Signed:           M. J. Moldaver J.A.

I agree Doherty J.A.

I agree K. Feldman
    J.A.

RELEASED:  DD June
    2, 2011

[1]
In his reasons, the trial judge refers to the
    appellant Windsor Factory Outlet Mall Ltd. As Heritage. I have referred to it
    as Outlet.


CITATION:
Dardha v. Theodore, 2011 ONCA 430

DATE: 20110603

DOCKET: C51251

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Juriansz JJ.A.

BETWEEN

Namik Dardha and Dardha Petroleum Corporation

Plaintiffs (Respondents)

and

Rob
          Theodore a.k.a. Rabindranauth Theodore, Front and

Sher Auto Repairs Ltd., Sacha Theodore and Adil
          Bharwani

Defendants (Appellants)

Michael G. Cochrane, for the appellants Rob Theodore a.k.a.
          Rabindranauth Theodore, Front and Sher Auto Repairs Ltd. and Sacha Theodore

Yan David Payne, for the respondents

Heard & released orally: June 1, 2011

On appeal from the judgment of Justice J. Greer of the
          Superior Court of Justice dated October 16, 2009.

ENDORSEMENT

[1]

The appellants position rests on the trial judges findings that he
    made a number of fraudulent misrepresentations that induced the respondent to
    enter into the contract.

[2]

The statement of claim, as we read it, does conduct amounting to plead
    fraud. However, as the appellant points out, the respondents counsel stated at
    the outset of the trial that he was not making a claim of fraud.

[3]

We agree that in these circumstances the trial judge could not grant a
    remedy based on fraud. We do not agree, however, that the trial judge was
    limited in how she could characterize the appellants conduct, as long as the
    remedy she gave rested on causes of action that were pleaded and claimed, and
    supported by her findings.

[4]

In this case the trial judge did expressly characterize the appellants
    initial misrepresentation in the form of an ad, as negligent. As we read her
    reasons, she considered the other misrepresentations to be negligent as well.
    Her findings support this characterization. Additionally, the authorities she
    cited in support of her conclusions are negligent misrepresentation cases, for
    the most part.

[5]

Appellants counsel fairly acknowledges that the remedy the trial judge
    awarded would be fully justified on findings that the misrepresentations were
    negligent.

[6]

It follows that the appeal must be dismissed.

[7]

Costs in favour of the respondent are fixed in the amount of
    $15,000.00 all i
nclusive.


CITATION:
Davis v. Crawford, 2011
          ONCA 423

DATE:
201106010

DOCKET: C50603

COURT OF APPEAL FOR ONTARIO

Goudge, Simmons, Cronk, Armstrong and Lang JJ.A.

BETWEEN

Elizabeth Mary Davis

Respondent
          (Applicant)

and

Lawrence
          William Crawford

Appellant (Respondent)

Erin L. Reid, for the appellant

William R. Clayton,
          for the respondent

Heard: February 9, 2011

Reasons released: April 14, 2011

COSTS ENDORSEMENT

[1]

Costs of the appeal are to the
    respondent, Elizabeth Mary Davis, on a partial
indemnity
basis fixed in the amount of $11,000 inclusive of disbursements and applicable
    taxes.

Signed:           S. T.
    Goudge J.A.

Janet
    Simmons J.A.

E.
    A. Cronk J.A.

Robert
    P. Armstrong J.A.

S.
    E. Lang J.A.


CITATION: Dish Network LLC v. Ramkissoon, 2011 ONCA 478

DATE: 20110624

DOCKET: C51866 and C51874

COURT OF APPEAL FOR ONTARIO

Simmons, Armstrong and Rouleau JJ.A.

BETWEEN

Dish Network LLC, Echostar Techologies LLC, and
          Nagrastar LLC

Plaintiffs (Respondent in Appeal)

and

Ravindranauth
          Ramkissoon a.k.a. Ravin Ramkissoon, Ravindranauth Ramkissoon
a.k.a.
          Digital, Ravindranauth Ramkissoon a.k.a. TheDigitalStore, Ravindranauth Ramkissoon c.o.b.
          as www.thedigitalstore.com,
          Ravindranauth Ramkissoon c.o.b. www.nfusionteam.com,
          Ravindranauth Ramkissoon c.o.b. as www.canadasat.com,
          Ravindranauth Ramkissoon c.o.b. as www.dummychat.com,
          Ravindranauth Ramkissoon c.o.b. as www.nfusioncanada.com,
          Ravindranauth Ramkissoon c.o.b. as www.nfusioncanada.ca,
          Ravindranauth Ramkissoon c.o.b. as www.nfusionline.com, Ravindranauth
          Ramkissoon c.o.b. as www.nfusionrepair.com,
          Ravindranauth Ramkissoon c.o.b. as www.nfusionwarrantycenter.com,
          Ravindranauth Ramkissoon c.o.b. as www.nfusiondepo.com,
          Ravindranauth Ramkissoon c.o.b. as www.nuvenio.ca,
          Ravindranauth Ramkissoon c.o.b. as Digital R Us,
Anandanauth Ramkissoon
a.k.a. Anthony Ramkissoon, Rosaline Ramkissoon, Digital Store Inc., E-Canada
          Solutions Inc.,
N-Fusion Canada Inc., 7016581 Canada Limited
, John
          Doe, Jane Doe and other persons unknown who have conspired with the named
          Defendants

Defendants (Appellant)

Sharanjit Padda, for the appellant

Denise L. Bambrough, for the respondents

Heard and endorsed: June 24, 2011

On appeal from the order of Justice Peter Cumming of the
          Superior Court of Justice dated February 23, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We view the actions of the appellants in
    refusing to comply with the Second
Anton Pillar
order as quite serious.
    Their conduct was both prejudicial to the respondents and an affront to the
    court. In our view, the sentences of four months imprisonment for
    Mr. Ramkissoon, two months imprisonment for Mrs. Ramkissoon and the order
    requiring that they pay the respondents' costs were fit sentences when imposed.
[2]

That said, the
    appellants have filed fresh evidence indicating they have now purged their
    contempt to the extent that they are able to do so, setting out their
    circumstances and expressing their remorse to the court.
    Importantly, the respondents do not oppose the motion to introduce fresh
  evidence or the appeal.
[3]

In the circumstances,
    the appeal is allowed and the sentence of imprisonment imposed on Mr.
    Ramkissoon is varied to time served (64 days); and the sentence of imprisonment
    imposed on Mrs. Ramkissoon is vacated. The order that the appellants pay the
    respondents costs shall remain in full force and effect.
No order as to costs of the appeal.


CITATION: Di
Tomaso
v. Crown
          Metal Packaging Canada LP, 2011 ONCA 469

DATE:
          20110622

DOCKET: C52945

COURT OF APPEAL FOR ONTARIO

Goudge
, MacPherson and Karakatsanis
          JJ.A.

BETWEEN

Antonio Di
Tomaso

Respondent/Plaintiff

and

Crown Metal Packaging Canada LP

Appellant/Defendant

M. Christine
ODonohue
, for the
          appellants

Peter
Cicak
and
Lior

Samfiru
, for the respondent

Heard: May 20, 2011

On appeal from the judgment of Justice Beth A. Allen of the
          Superior Court of Justice, dated October 19, 2010.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Crown Metal Packaging LP (Crown
    Metal), appeals from the judgment of Allen J. dated October 19, 2010, granting
    the respondent Antonio Di
Tomasos
Rule 20 motion for
    summary judgment.

B.

FACTS

[2]

Crown Metal was in the business of manufacturing metal
    packaging.  Mr. Di
Tomaso
was employed by Crown Metal for over 33 years as a two-piece mechanic and press
    maintainer, which involved setting up the line, minor repair work, and
    assisting the millwright with mechanical work on machines.  Crown Metal closed the facility where Mr. Di
Tomaso
worked on February 26, 2010.

[3]

On September 9, 2009, Crown Metal informed Mr. Di
Tomaso
that it no longer required his services.  Days before his expected termination date,
    Crown Metal informed Mr. Di
Tomaso
that his
    employment would be extended by several weeks.  Over a period of five months, Crown Metal repeatedly extended Mr. Di
Tomasos
employment just before each previously stated
    termination date. In total, Mr. Di
Tomaso
received
    five separate written notices of termination, containing a total of four
    different termination dates. Specifically, Crown Metal delivered letters to Mr.
    Di
Tomaso
dated:

1.

September
    9, 2009, with a termination date of November 6, 2009;

2.

November
    4, 2009, with a termination date of December 18, 2009;

3.

December
    15, 2009, with a termination date of February 19, 2010;

4.

February
    18, 2010, with a termination date of February 26, 2010; and

5.

February
    24, 2010, confirming the termination date of February 26, 2010.

[4]

After the September 9, 2009 notice, each subsequent
    letter reviewed the extensions in employment and characterized Mr. Di
Tomasos
employment as being extended for a temporary
    period.

[5]

When Mr. Di
Tomasos
employment was finally terminated on February 26, 2010, Crown Metal provided
    him with the statutory 26 weeks severance pay pursuant to the
Employment Standards Act, 2000
, S.O.
    2000, c. 41 (
ESA
), accrued vacation
    pay, and benefits to March 31, 2010. Mr. Di
Tomaso
was 62 years old.

(1)

The Action Below

[6]

Mr. Di
Tomaso
filed an action
    in the Superior Court of Justice alleging that Crown Metal failed to provide
    proper notice or termination pay in lieu thereof, as required by the
ESA
.  He also sought common law damages for wrongful dismissal equivalent to
    24 months pay.

[7]

Crown Metal claimed that its September 9, 2009 notice
    of termination was valid, and that Mr. Di
Tomasos
entire
    subsequent temporary employment constituted an authorized period of working
    notice.  With respect to Mr. Di
Tomasos
common law claim, Crown Metal took the position
    that he was entitled, at most, to 12 months notice because, emphasizing the
    character of his employment, he was an unskilled and low level worker.

[8]

The action proceeded by way of a Rule 20 motion for
    summary judgment before Justice Beth Allen.  On the issue of working notice, the motion judge reviewed the
ESA
regulation that authorizes an
    employer to count a period of temporary employmenti.e. work commenced after
    the termination notice but prior to the termination dateagainst the employees
    statutory notice entitlement:
Termination
    and Severance of Employment
, O. Reg. 288/01, s. 6 (the Regulation).  Specifically, the Regulation provides:

6.         (1)
    An employer who has given an employee notice of termination in accordance with
    the Act and the regulations may provide temporary work to the employee
without
    providing a further notice of termination in respect of the day on which the
    employees employment is finally terminated if that day occurs not later than
    13 weeks after the termination date specified in the original notice
.

(2) The provision of temporary work to an employee
    in the circumstances described in subsection (1) does not affect the
    termination date as specified in the notice or the employees period of
    employment. [Emphasis added.]

[9]

In Crown Metals view, each of its extensions was less
    than 13 weeks in length, so its September 9, 2009 notice remained valid thus
    providing Mr. Di
Tomaso
with working notice from that
    date to February 26, 2010.  Mr. Di
Tomaso
argued that the extensions should be viewed
    cumulatively, and that only the final letter of February 24, 2010 provided
    clear and unequivocal notice of termination.

[10]

The motion judge agreed with Mr. Di
Tomaso
at
para
. 19:

I find I am bound by the express language of
    subsection 6(1) to accept the plaintiffs position.  The legislation clearly allows for notices
    temporarily extending termination if the final date of termination in respect
    of the extension is not more than 13 weeks after the date of the initial termination
    notice.  That interpretation makes
    practical sense since there would be no certainty for an employee as to when
    his employment would finally end if the employer was not limited in the length
    of extensions of employment.

[11]

The motion judge went on to note that the
ESA
, as remedial minimum standards
    legislation, should be interpreted to the benefit of the employee where
    ambiguities arise.  Finally, at
para
. 21 she found that Mr. Di
Tomasos
position was supported by the requirement that notice of termination be clear
    and unequivocal.

[12]

The motion judge also rejected Crown Metals suggestion
    that Mr. Di
Tomasos
entitlement to notice was capped
    at 12 months because he was an unskilled worker in a non-managerial
    position.  She referred to the factors to
    consider in determining an employees appropriate notice period, as set out in
Bardal
v. Globe & Mail Ltd.
(1960), 24
    D.L.R. (2d) 140 (Ont. H.C.J.), at p. 145 (
Bardal
).  Those factors include: the character of the
    employment, the employees length of service, the employees age, and the
    availability of comparable employment in the market.

[13]

According to Crown Metal, this courts ruling in
Cronk v. Canadian General Insurance Co.
(1995),
    128 D.L.R. (4th) 147 (
Cronk
)
    established a hard limit of 12 months on the notice to which clerical and
    unskilled labourers are entitled.  In
    Crown Metals view, the

nature of Mr.
    Di
Tomasos
employment placed him in that limited
    category.  He was not a manager, nor was
    he a skilled worker.

[14]

Mr. Di
Tomaso
countered that
    a more recent decision of this court dispelled the notion that there is a cap
    on the notice period available to unskilled employees:
Minott
v.
OShanter
Development Company Ltd.
(1999), 168 D.L.R. (4th) 270 (
Minott
).  At
para
. 76 of
Minott
,
Laskin
J.A. wrote:

I do not regard this court's decision in
Cronk
as establishing an upper limit of
    12 months notice for all non-managerial or non-supervisory employees. At most
    it deals with one occupational category, clerical employees. Moreover, the
    imposition of an arbitrary 12 months ceiling for all non-managerial employees
    detracts from the flexibility of the
Bardal
test and restricts the ability of courts to take
    account of all factors relevant to each case and of changing social and
    economic conditions.

[15]

In that case, this court upheld the trial judges
    finding that a 13-month notice period was appropriate for an unskilled,
    43-year-old employee who had served for 11 years.

[16]

The motion judge held that the authorities did not
    support the proposition that the nature of Mr. Di
Tomasos
employment placed a 12-month cap on the notice to which he was entitled.

[17]

After reviewing the cases presented by both parties,
    noting that Mr. Di
Tomaso
was 62 years old on the
    termination date and had served for 33 years, and considering his efforts to
    mitigate by finding other employment in the market, the motion judge found that
    Mr. Di
Tomaso
was entitled to 22 months of notice.

C.

ISSUES

[18]

The appellant Crown Metal raises two main arguments on
    appeal, namely:

1.

the
    motion judge erred in finding that Mr. Di
Tomaso
did
    not have clear and unequivocal notice of termination until February 24, 2010;
    and

2.

Mr.
    Di
Tomaso
received reasonable working notice of
    termination in light of his employment as a non-managerial employee.

[19]

I would not give effect to either argument for the
    reasons that follow.

D.

ANALYSIS

(1)

The Termination Date

[20]

The motion judges interpretation of the Regulation is
    correct: it contemplates a single period of temporary work that is not to
    exceed 13 weeks.  If the temporary work
    exceeds that duration, fresh notice is required.  To find, as Crown Metal suggests, that the
    Regulation allows employers to give notice of termination but then extend
    employment for multiple, serialized periods of less than 13 months would be
    inconsistent with the
ESA
s status as
    remedial, benefit-conferring legislation designed to protect the interests of
    employees:
Rizzo v. Rizzo Shoes Limited
,
    [1998] 1 S.C.R. 27, at
para
. 36.

[21]

I would add only that clear and unambiguous notice of
    termination must include the final termination date.  In the present case, the September 9, 2009
    notice of termination included a termination date that came and went, as did
    several others during the five-month period that followed. As the motion judge
    found, the cumulative effect of the multiple extensions created uncertainty
    for [Mr. Di
Tomaso
] as to when he would no longer
    have his job.  It was not until the
    February 24, 2010 letter that this uncertainty was cured.  Mr. Di
Tomasos
termination date was confirmed, and Crown Metals notice to him was made good
    on that day.

(2)

The
Bardal
Analysis

[22]

Crown Metal argues that the character of employment
    factor is often given the greatest weight in the determination of [the]
    appropriate notice period, and that the motion judge erred by giving it
    insufficient weight in this case.  Crown
    Metal also renews its argument that this courts decision in
Cronk
and a range of other employment
    law cases establish 12 months as the upper limit of appropriate notice for
    clerical and unskilled employees.

[23]

On the latter point, I agree with Mr. Di
Tomaso
that this courts decision in
Minott
is a full answer.
Laskin
J.A.
    rejected the notion that 12 months is the cap for every clerical and unskilled
    employee, regardless of the other
Bardal

factors.  Crown Metal argues that
Laskin
J.A. allowed that it might be appropriate to establish upper limits for
    particular classes of cases:
Minott
at
para
. 72.  However,
    he did not do so in
Minott
and I would decline to do so here.

[24]

Moreover, the cases submitted by both parties help
    establish a range of reasonable notice periods.   The 22 months awarded by the motion judge is
    within the upper end of the range, and that is understandable given that Mr. Di
Tomaso
would have scored so highly on the other
Bardal
factors:
    he was 62 years old at the time of his dismissal, he had served the company for
    33 years, and he had made unsuccessful inquiries or applications with 22
    companies in the area.

[25]

By way of contrast, the claimant in
Minott
served in a
    non-supervisory role for 11 years, was 43 years old at the time of termination,
    and was unlikely to find similar work because of a recession.  Here, as in that case, to interfere with the
    motion judges determination of the appropriate notice period would amount to unwarranted
    tinkering:
Minott
at
para
. 77.

[26]

With regard to the appropriate weight to be given to
    the character of employment, I am also mindful of
McRuer
C.J.H.C.s statement in
Bardal

at p. 145, that [t]here can be no
    catalogue laid down as to what is reasonable notice in particular classes of
    cases.
Bastarache
J., writing for the majority of the Supreme Court in
Honda Canada Inc. v.
Keays
, [2008] 2
    S.C.R. 362, cited this statement with approval at
para
.
    31 and went on to caution that [n]o one
Bardal
factor should be given
    disproportionate weight.

[27]

Crown Metal would emphasize the importance of the
    character of the appellants employment to minimize the reasonable notice to
    which he is entitled. I do not agree with that approach. Indeed, there is
    recent jurisprudence suggesting that, if anything, it is today a factor of
    declining relative importance: see
Medis
Health and
    Pharmaceutical Services Inc. v. Bramble
(1999), 175 D.L.R. (4th) 385 (NBCA)
    (
Bramble
) and
Vibert
v.
Paulin
(2008), 291 D.L.R. (4th) 302
    (NBCA).

[28]

This is particularly so if an employer attempts to use
    character of employment to say that low level unskilled employees deserve less
    notice because they have an easier time finding alternative employment. The
    empirical validity of that proposition cannot simply be taken for granted, particularly
    in todays world. In
Bramble
,
Drapeau
J.A. put it this way, at
para
.
    64:

The proposition that junior employees have an
    easier time finding suitable alternate employment is no longer, if it ever
was,
a matter of common knowledge. Indeed, it is an
    empirically challenged proposition that cannot be confirmed by resort to
    sources of indisputable accuracy.

[29]

In my view, the motion judge conducted an appropriately
    holistic review of the case before her.  She
    did not give disproportionate weight to any of the
Bardal

factors. She dedicated nine paragraphs of her reasons to the
    character of employment factor but it was simply not as relevant in these
    circumstances as the other three factors. She did not err in doing so.

E.

DISPOSITION

[30]

I would dismiss the appeal.  The respondent is entitled to its costs of
    the appeal which I would fix at $14,000 inclusive of disbursements and HST.

RELEASED:  JUN 22 2011 (S.T.G.)
J.C. MacPherson
    J.A.

I
    agree. S.T.
Goudge
J.A.

I
    agree. Karakatsanis J.A.


RÉFÉRENCE:
Diallo
c. Toronto Community Housing
          Corporation, 2011 ONCA 424

DATE: 20110603

DOSSIER: C53023

COUR DAPPEL DE LONTARIO

Les juges Weiler,
          Rouleau et Karakatsanis

ENTRE

Abdourahmane Diallo

Demandeur
(Appelant)

et

Toronto
          Community Housing Corporation et Del Management Solutions Inc.

Intimés

Abdourahmane
          Diallo, lappelant

Mary Boushel pour lintimé Toronto
          Community Housing Corporation

Christine A. Powell pour lintimé Del Management Solutions Inc.

Audience:
le 6 mai 2011

En appel de
          la décision de la juge Andra Pollak de la Cour supérieure de justice de
          lOntario datée le 2 novembre 2010.

INSCRIPTION

[1]

Lappelant,
    M. Abdourahmane Diallo, interjette appel de la décision de la juge Pollak
    rendue le 2 novembre 2010, radiant sa déclaration au motif quelle constitue un
    emploi abusif des procédures de la cour au sens de laliéna 21.01(3
)(
d) des
Règles de
    procédure civile
, R.R.O. 1990, Règl. 194.

Les
Faits

[2]

Puisque
    le présent appel est pris dune décision de radier la déclaration avant le dépôt
    dune défense, les faits allégués dans la déclaration sont présumés dêtre
    véridiques.

[3]

Selon
    la déclaration de lappelant et la documentation quil a déposée à lappui, en
    2008, il a informé la concierge de lédifice où il vivait quil partait en voyage
    pour des raisons de santé et de famille.  Il sétait entendu avec la concierge quil déposerait dix chèques postdatés
    en paiement du loyer couvrant ainsi la période de son absence.  Lappelant a donc écrit les dix chèques mensuels
    pour le loyer et la concierge a timbré le double de ces chèques pour confirmer
    quil les avait reçus le 26 août 2008.

[4]

Suite
    à ceci, et avant son départ pour lAfrique, lappelant a reçu une lettre de
    lintimé Del Management Solutions Inc. datée du 2 octobre 2008, linformant que
    le chèque pour le mois doctobre avait été retourné par la banque parce que Del
    Management Solutions Inc. lavait déposé avant la date inscrite sur le
    chèque.  Dans la lettre, Del Management
    Solutions Inc. prie lappelant de bien vouloir remplacer le chèque et sexcuse
    du trouble que leur geste a causé.

[5]

Lappelant,
    qui sétait maintenant rendu à Montréal, a remplacé le chèque de 458,50 $ avec
    un autre pour le même montant.  Avant de
    partir pour lAfrique pour son traitement en médecine alternative, lappelant a
    envoyé le chèque par courrier recommandé à lattention de la concierge de
    lédifice, une employée de Del Management Solutions Inc.

[6]

Del
    Management Solutions Inc. na pas donné suite à lavis ou aux avis de livraison
    envoyés par Postes Canada.  Puisque la
    lettre na pas été ramassée au bureau de poste, elle a été retournée à
    lappelant qui était encore en voyage.  Le chèque na donc pas été encaissé ou déposé.

[7]

En
    raison de la confusion causée par Del Management Solutions Inc., un arriéré de
    loyer dun mois a été produit.  Les
    intimés ont déposé une requête dexpulsion devant la Commission de la location immobilière
    (CLI).  Conformément à une ordonnance de
    la CLI datée du 21 avril 2009, lappelant a été expulsé de son appartement.

[8]

Quand
    lappelant est revenu de voyage, il a constaté quil navait plus
    dappartement.  Il a donc résidé dans des
    abris à Toronto pour quelque temps et, par la suite, est retourné à
    Montréal.  Le 16 avril 2010, il a demandé
    une révision de lordonnance de la CLI.  La CLI a entendu la demande de révision puisque lappelant a démontré
    quil était à létranger pour des raisons médicales le jour de laudience
    initiale.

[9]

Dans
    une ordonnance en révision datée du 17 mai 2010, la CLI a confirmé lordonnance
    dexpulsion et a conclu :

(a)
que lordonnance ne contenait pas derreurs graves et quaucune erreur
    grave navait été commise sur le plan de la procédure;

(b)
quil ny avait pas derreurs dans le calcul du loyer;

(c)
que les intimés avaient exécuté lordonnance en toute légalité; et

(d)
quil ny avait rien dillégal dans la façon dont on avait disposé des
    biens du locataire.

[10]

Lappelant
    na pas fait appel de la décision de la CLI.  Selon les renseignements quil avait reçus, il croyait que, puisquil cherchait
    seulement à être compensé pour les biens perdus et à être indemnisé pour le
    préjudice quil a souffert, il devait porter plainte à la Cour supérieure.  Il a donc intenté une poursuite contre les
    intimés pour 32 000 $ en dommages économiques, 118 000 $ en dommages moraux et
    100 000 $ en dommages punitifs et exemplaires.  Dans sa poursuite, lappelant prétend que les intimés ont agi
    illicitement ou en mauvaise foi en lexpulsant de son logement et ont agi
    abusivement et illégalement en disposant de ses biens.  Selon lappelant, les intimés savaient que
    lappelant était à lextérieur du pays et quil avait agi de façon raisonnable
    pour assurer que le loyer serait payé pour les mois de son absence, y compris
    le mois doctobre 2008.  Somme toute, la
    négligence des intimés est la cause des dommages que lappelant a encourus.

[11]

Les
    intimés ont par la suite présenté leur motion pour radier la déclaration de
    lappelant.  La juge de motion a accordé
    la motion ayant conclu que toutes les plaintes et allégations que lappelant a
    faites dans sa déclaration avaient déjà été réglées dans la décision de la CLI.  Il serait donc un abus de procédure de
    permettre lappelant de remettre en cause les mêmes plaintes sur lesquelles la
    CLI a déjà statué.

[12]

Devant
    nous, lappelant maintient quil ne cherche pas à casser la décision de la CLI
    puisquil ne cherche pas à retourner dans son appartement.  Selon son dire, la procédure appropriée pour
    obtenir le remède quil recherche est dintenter une poursuite à la Cour supérieure.  Cest lavis quil aurait reçu dune clinique
    daide juridique.

[13]

Au
    cours de ses représentations, lappelant a fait valoir que la décision de la
    CLI est truffée derreurs de fait.  Il
    maintient que, si on corrige ces erreurs, il devient clair que la décision de
    la CLI est tout simplement intenable.

[14]

Certaines
    des erreurs importantes que lappelant a fait valoir sont que :

(a)

la CLI a conclu que lappelant avait
    envoyé aux intimés des fonds certifiés au montant de 458,50 $ « en
    remplacement dun chèque sans provision ».  Ceci est faux, car ce nétait pas un chèque retourné sans provision.  Le chèque a été retourné parce que les intimés
    ont déposé le chèque avant la date inscrite, ce qui est confirmé par la lettre
    dexcuse que Del Management Solutions Inc. a envoyée à lappelant;

(b)

la CLI a conclu que « même si
    le locateur avait reçu la lettre recommandée et si les fonds avaient été portés
    au crédit du locataire, il aurait quand même eu un petit arriéré de loyer de 50
    sous, ce qui donnait au locateur le droit de présenter sa requête ».  Lappelant a produit le chèque postdaté
    original ainsi que le chèque quil a envoyé par lettre recommandée, et il
    appert que le montant des deux chèques est précisément le même, soit de 458,50
    $.  Ainsi, contrairement à la conclusion
    de la CLI, il ny aurait pas eu darriéré si les intimés avaient récupéré la
    lettre recommandée que lappelant avait envoyée;

(c)

la CLI a conclu que, puisque
    lappelant a envoyé les fonds par courrier recommandé, « il aurait donc pu
    déterminer facilement que le locateur navait pas reçu sa lettre ».  En réponse, lappelant a produit de la
    documentation confirmant quil était à lextérieur du pays et quil aurait donc
    été difficile sinon impossible pour lappelant de savoir que la lettre
    recommandée navait pas été ramassée par les intimés.  De plus, son absence du pays était chose
    connue par les intimés.   Cétait la
    raison même pour les chèques postdatés.

Analyse

[15]

Ainsi,
    selon le dossier que lappelant nous a présenté, il semble y avoir des
    questions sérieuses quant aux conclusions de fait tirées par la CLI.  Si lappelant établit que ces erreurs, et
    possiblement dautres, ont été commises par la CLI, il se peut quun tribunal
    en vienne à la conclusion quil y a eu erreur de droit en ce que la décision du
    tribunal est tout simplement déraisonnable : voir
Blanchard v. Control Data Canada Ltd.
, [1984] 2 S.C.R. 476, aux p.
    494-95;
Shooters
Sports Bar Inc. v. Ontario (
Alcohol
and Gaming Commission)
(2008), 238 O.A.C. 9
    (Cour divisionnaire), au par. 38.  Par
    contre, cette détermination nest pas une que nous pouvons faire.  Cette question doit être tranchée par la cour
    appropriée, c'est-à-dire la Cour divisionnaire.

[16]

Nous
    reconnaissons que les circonstances sont insolites.  Selon le paragraphe 207(2) de la
Loi de 2006 sur la location à usage dhabitation
,
    L.O. 2006, c. 17, lappelant aurait pu déposer une déclaration à la Cour
    supérieure si les sommes réclamées dans la poursuite étaient au-delà du montant
    qui peut être accordé par la CLI.  Au
    terme du paragraphe 207(1), la CLI peut accorder à un locataire une somme ne
    dépassant pas 25 000 $.
[1]
Nous navons pas le dossier pour la
    comparution devant la CLI et ne savons donc pas si lappelant réclamait un
    dédommagement lors de laudience et, si oui, le montant de sa demande.  Le paragraphe 207(3) limite, dans certaines
    circonstances, le droit de lappelant de formuler une demande à la Cour
    supérieure pour des sommes au-delà du 25 000 $. Tout dépendant de si lappelant
    avait fait une demande lors de la comparution devant la CLI et du montant de
    cette demande, le paragraphe 207(3) pourrait être pertinent.

[17]

La
    difficulté, par contre, est quen avril 2010, lappelant na pas intenté une
    poursuite en Cour supérieure.  Il a
    plutôt demandé une révision de lordonnance de la CLI.  Lorsquun locataire présente une requête à la
    Commission, la Commission a, tel que prévu au paragraphe 168(2), « compétence
    exclusive pour décider des requêtes présentées en vertu de la présente loi et
    pour traiter des questions à légard desquelles celle-ci la rend compétente. »  La compétence de la Commission comprend la compétence
    pour régler toute question découlant de la disposition des biens abandonnés
    lorsquun locataire quitte ou est expulsé de son logement (article 41) ainsi
    quordonner un paiement pour dédommager le locataire (article 207).  Ainsi, la CLI pouvait, lors de laudition de
    la demande de révision, accorder à lappelant jusquà 25 000 $ en dommages-intérêts
    et cela même en labsence dune motion ou demande formelle de sa part (article
    82).

[18]

Suite
    à laudience, la CLI a rendu une décision dans laquelle elle a considéré et
    rejeté chacun des points soulevés par lappelant.  Donc, toutes les questions soulevées par
    lappelant, y inclus son droit à un dédommagement, ont été tranchées par la
    CLI.  Sans démontrer quil y a eu un vice
    quelconque dans son expulsion de son appartement ou dans la disposition de ses
    biens, lappelant ne peut pas avoir gain de cause.  Dans sa déclaration, lappelant soulève les
    mêmes questions précises décidées par la CLI et, à notre avis, la juge de
    motion était en droit de conclure que la présente déclaration constituait un
    abus de procédure.  Lappelant ne peut,
    dans une autre procédure, remettre en cause les plaintes déjà réglées par la
    CLI.

[19]

Si
    lappelant désire poursuivre sa demande pour dommages-intérêts, il devra faire
    appel de la décision de la CLI.  Pour ce
    faire, il devra obtenir de la Cour divisionnaire une extension aux délais
    prévus pour faire appel.  Nous notons
    quil a déposé sa déclaration à lintérieur du délai prévu pour faire appel.  Si lextension est accordée, larticle 210 de
    la Loi prévoit que lappelant peut faire appel sur une question de droit dune
    décision de la CLI.  Le droit dappel est
    à la Cour divisionnaire.

[20]

Pour
    établir quil y a erreur de droit, lappelant devra démontrer que la CLI na
    pas respecté un ou des principes de droit. À cet égard, il y a eu référence au cours des plaidoiries quil se
    pourrait que la CLI na pas tenu compte de la décision
Mputu v. Wright,
[2004] O.J. No. 6055 (S.C.), et lobligation du locateur
    dagir de façon raisonnable dans les circonstances à légard de la disposition
    des biens du locataire.  Aussi, tel que
    nous lavons noté, lappelant prétend que la CLI a commis des erreurs de fait
    et que ces erreurs sont telles que la décision devient déraisonnable.  Ce sera à la Cour divisionnaire de décider si
    ces points constituent une erreur de droit aux fins dun appel aux termes de la
    loi, mais seulement si lappelant choisit de poursuivre laffaire à cette cour
    et si la cour lui accorde le délai nécessaire pour faire appel de la décision
    du CLI.

Disposition

[21]

Puisque
    les intimés ne demandent pas de dépens, lappel est donc rejeté sans dépens.

« K.M. Weiler
j.c.a
. »

« Paul Rouleau
j.c.a
. »

« Karakatsanis
j.c.a
. »

[1]

La loi prévoit que la Commission a
    compétence jusquà concurrence de la plus élevée de 10 000 $ et de la
    compétence dattribution de la cour des petites créances.  La compétence dattribution de la cour des
    petites créances est présentement 25 000 $.


CITATION:
Duca
Financial Services Credit Union
          Ltd. v.
Bozzo
, 2011 ONCA 455

DATE: 20110615

DOCKET: C52323

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Armstrong JJ.A.

BETWEEN

Duca Financial Services Credit Union Ltd.

Plaintiff (Appellant)

and

Albert Bozzo and Maria Louisa Bozzo

Defendants (Respondents)

Anthony E.
Bak
(appearing for Robert
          J. van
Kessel
) and Edwin G. Upenieks, for the
          appellant

Duncan C. Boswell and Mark Crane, for the respondents

Heard and released orally: June 2, 2011

On appeal from the judgment of Justice Peter A. Cumming of the
          Superior Court of Justice dated May 27, 2010.

ENDORSEMENT

[1]

The trial judge dismissed the
    appellants action to declare a trust declaration void either as a sham or as a
    fraudulent conveyance.

[2]

Concerning the validity of the trust
    declaration, at paras. 41-2 of his reasons, the trial judge correctly set out
    the requirements for a valid trust and referred to some of the circumstances in
    which a trust may be found to be a sham and therefore void:

To
    establish a valid trust, there must be three certainties: the certainty of
    intention, the certainty of subject matter and the certainty of objects.
    [Citations omitted.]

A
    purported trust may be held to be a sham and void where a trust instrument sets
    out the persons who are to benefit but does not represent the settlers true
    intent which is simply to create the appearance of a disposition of assets
    through the purported trust. The actual intent, in such cases, is to retain
    control of the assets purportedly held in trust. In such an instance, there is
    no true intention to create a trust and one of the three certainties is
    missing; hence, the purported trust is void.

[3]

At
    paras. 45 and 46 of his reasons the trial judge explained his conclusion that,
    in making the trust declaration, the respondent, Mr.
Bozzo
,
    intended to separate himself from the beneficial interest in the shares of the
    Abbas Group:

While
    [the respondent, Mr.
Bozzo
]
maintained operational control of Abbas Group as an employee thereof,
    his intent was to separate himself from the beneficial interest of the shares
    in the Abbas Group
.

While
    there are suspicious circumstances, I find on a consideration of all the
    evidence, that there was a true intent on the part of [the respondent] to establish
    the trust in issue through the January 29, 1988 trust declaration. [Emphasis
    added.]

[4]

However,
    in our view, in reaching this conclusion the trial judge erred because he
    failed to consider the following evidence effectively volunteered by Mr.
Bozzo
:

Q.        You had voting control of Abbas as of
    January 26, 1988?

A.        Yes sir, I had voting control even after
    that. Even after the Trust Declaration.

Q.        Thats what you believe?

A.        Yes.

Q.
So,
    again, youre saying in your mind the control of the company didnt change
    either before the Trust Declaration or after the Trust Declaration
?

A.
No
    sir
. [Emphasis added.]

[5]

In
    our view, this evidence conclusively demonstrates that the respondent, Mr.
Bozzo
, considered himself to have retained control of the
    assets purportedly held in trust. In his own mind, he had not separated himself
    from the beneficial interest in the shares. Accordingly, there was no intention
    to create a valid trust as one of the three certainties was missing and the
    trust is therefore void.

[6]

In the circumstances, the appeal is
    allowed, the judgment below is set aside and judgment is granted in the form
    requested by the appellant.

[7]

The
    cross-appeal is dismissed.

[8]

Costs
    of the appeal are to the appellants fixed at $25,000 for the appeal and $5,000
    for the cross-appeal, as agreed upon by the parties, both sums inclusive of
    disbursements and applicable taxes. The issue of the costs of the proceeding
    below is remitted to the trial judge.

Signed:           Winkler
    C.J.O.

Janet Simmons J.A.

Robert P. Armstrong J.A.