COURT OF APPEAL FOR ONTARIO

CITATION: Dickerson v. 1610396 Ontario Inc. (Careys
    Pub & Grill),  2013 ONCA 653

DATE: 20131031

DOCKET: C56554

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Phillip Daniel Dickerson
,
    Marilyn Sussan Dickerson, Phillip Hartley Dickerson and Melissa Marilyn
    Clampitt

Plaintiffs (
A
ppellant
)

and

1610396 Ontario Inc. C.O.B. as Careys Pub &
    Grill,
David William Radcliffe
, Mike Habash,
    Dwayne Hurley and Brandon Stewart

Defendants (
R
espondent
)

Rasha M. El-Tawil and Michael A. Polvere, for the appellant

David Radcliffe, acting in person

Heard:  June 26, 2013

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated January 21, 2013, with reasons reported
    at 2013 ONSC 403.

MacFarland J.A.:

[1]

This is an appeal from the order of Morissette J. dated January 21, 2013,
    dismissing the appellants motion.

[2]

The appellant had moved for declaratory relief as follows:

i.

A Declaration that a subsection 69.39 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3, stay of proceedings does not operate
    with respect to enforcement of the judgment of Justice T.D. Little dated March
    24, 2009 in court file number 47580 against the Bankrupt;

ii.

A Declaration that the judgment of Justice T.D. Little and the damages
    awarded to Phillip Daniel Dickerson against David William Radcliffe is an
    award of damages in civil proceedings for bodily harm intentionally inflicted
    in accordance with s. 178(1)(a.1) of the
Bankruptcy and Insolvency Act
;

iii.

A Declaration, pursuant to s. 178(1)(a.1) of the
Bankruptcy and
    Insolvency Act
that the judgment dated March 24, 2009 and endorsement
    dated May 25, 2009 of Justice T.D. Little against the Bankrupt, survive the
    Bankruptcy and is not a debt released by an order of discharge; and

iv.

Costs of this motion on a substantial indemnity basis from any party
    opposing the motion.

THE FACTS

[3]

The respondent was convicted of aggravated assault against the
    appellant.  Contrary to the motion judges finding, the respondent did not plead
    guilty.

[4]

At the criminal proceedings conducted before the Getliffe J. on June 20,
    2006 at London, Ontario, the respondent conceded that the facts read in by the
    prosecutor at his trial would lead to a conviction of aggravated assault.  The
    trial judge convicted the respondent of aggravated assault on the basis of
    those facts,  of the concession of counsel, and of the evidence the judge had
    heard from the witness box.  The uncontested facts as read in by the Crown at the
    criminal trial were:

On April 19, 2005 the victim, Phillip Dan Dickerson and several
    friends had been drinking at Careys Bar on Oxford Street in London. At some
    point in the evening the group had become involved in an altercation with
    another group of males. This included David Radcliffe.  The initial disturbance
    ended when witness Trevor Stevens, who was a friend of the victim, discovered
    he had dropped his cell phone; called his cell phone number  oh sorry.  Dan
    Dickerson called the cell phone number, was told to meet them at Cheapside and
    Second Street, however, the victim and his group of friends ended up meeting
    with the accused and his group of friends on the grounds of Fanshawe College at
    1460 Oxford Street in London.  At this time, a number of people began fighting.
    The victim in the case was not involved in the fight. He had left the area,
    called the police on his cellular telephone. At this point, the accused ran up
    to the victim and punched him once in the head. This caused the victim to lose
    consciousness and fall to the ground, striking his head on the curb.  The
    victim was unconscious, unresponsive and transported to University Hospital
    where he was listed in critical condition. He suffered from bleeding to the
    brain.  The accused had run from the area and was later apprehended by police.
    In addition to the facts read in this morning, those are the allegations.

THE COURT:        All right.

[DEFENCE COUNSEL]:   We concede that those allegations would
    lead to a conviction of aggravated assault.

THE COURT:        Thank you [Defence Counsel].  Well, on the
    basis of the facts that I heard from the witness box and the facts that have
    additionally been read in by the Crown, there will be a conviction registered
    in this matter.

[5]

In addition to the criminal proceedings, a civil suit was brought by the
    appellant against the respondent.  The trial in the civil matter proceeded
    before Little J. and a jury. The evidence in the civil trial was, in essence,
    the same as the evidence that had been before the Criminal Court.

[6]

The appellant had been standing a distance away from where the fighting
    was taking place and had his back to it.  He was on his cell phone trying to
    call police when the respondent came up behind him. The respondent punched the
    appellant in the head with his closed fist with such force that the appellant
    lost consciousness and fell to the ground.

[7]

At the time of the assault, the appellant was about five feet nine
    inches tall and weighed one hundred and thirty-five pounds. The respondent was
    just shy of six feet and weighed between one hundred and eighty and two hundred
    pounds.

[8]

Three of that jurys responses to the questions posed to it are relevant
    for present purposes.  They are:

QUESTIONS FOR THE JURY

LIABILITY

1.       Were Daniel Dickersons
    injuries caused or contributed to by any deliberate or negligent or acts of
    David Radcliffe.

YES
√

2.       State fully the deliberate or
    negligent act or acts that caused or contributed to the injuries of Daniel
    Dickerson.

David Radcliffe deliberately punched Daniel Dickerson
    in the head directly causing the injury.

6.       Were Daniel Dickersons injuries caused or contributed
    to by his own negligent act or acts.

YES       NO
√

[9]

I should add that Careys Pub and Grill was also named as a defendant in
    the civil proceeding brought by the appellant but was exonerated of any
    liability by the jury. In separate proceedings, the finding of the jury (in
    relation to Careys Pub and Grill) was appealed to this court. The appeal was
    dismissed. This court noted in the opening paragraph of its reasons:

Mr. Radcliffe, unprovoked, punched Mr. Dickerson in the head
    with enough force to cause significant brain injury and permanent disability.

[10]

The
    civil jury awarded damages in the appellants favour against the respondent in
    excess of one million dollars.

[11]

As
    a result of the judgment, the respondent filed a proposal under s. 62(1) of the
Bankruptcy and Insolvency Act
(the BIA) on February 16, 2011.

THE ISSUE

[12]

The
    issue before the motion judge was whether the civil judgment obtained by the
    appellant fell within and met the requirements of s. 178(1)(a.1)(i).

[13]

The
    motion judge found that it did not and dismissed the appellants motion.

[14]

For
    the reasons that follow, I would allow the appeal.

ANALYSIS

[15]

Section
    178(1)(a.1) of the
BIA
provides:

178(1)          An order of discharge does not release the
    bankrupt from

(a.1)   any award of damages by a court in civil proceedings
    in respect of

(i)      bodily harm intentionally                               inflicted,
    or sexual assault or

(ii)      wrongful death resulting                                therefrom.

[16]

In
    paragraph 12 of her reasons, the motion judge correctly stated the issue before
    her:

In order for this section to apply, I must be satisfied that
    the award imposed by the jury is in respect to bodily harm intentionally
    inflicted.

And she concluded at paras. 34-36:

The questions and answers from the jury do not provide a
    judicial analytical framework to assess whether it was an intentional
    infliction of bodily harm.  The jury found that indeed Mr. Radcliffe
    deliberately punched the plaintiff in the head.  And as a result of that punch,
    the injuries were sustained. There is a causal link for the tort claim and
    award.

Parliament could not have intended in legislating the
    exceptions in s. 178 to include the unfortunate and tragic consequences to mean
    that Mr. Radcliffe would have this lifelong penance for what was one punch.

I cannot find on the facts of this case that Mr. Radcliffe set
    out to intentionally injure Mr. Dickerson.

[17]

In
    considering s. 178 of the
BIA
it is appropriate to begin with a
    consideration of the words of Blair J. (now J.A.) in
Simone v. Daley
(1999), 43 O.R. (3d) 511 (C.A.), at p. 522:

In
Jerrard v. Peacock
[(1985), 57 C.B.R. (N.S.) 54 (Alta.
    Q.B.)], Master Funduk  an experienced official in matters of this nature
    subjected s. 178 to the following analysis, which in my opinion is an accurate
    one.  At pp. 62-63 he said:

Considering the new start object ingrained in the Act, the
    logical interpretation of the two subsections in question is that subs. (2)
    creates the general principle (being a release of all debts) with subs. (1)
    being an exception to the general principle.  Subsection (2) [
sic
]
    establishes exceptions, not the principle, and must be viewed in that light.

It is as if the section literally reads that the order of
    discharge releases the bankrupt from all claims provable in bankruptcy except
    the following: and then lists the seven (now six) categories in subs. (1).

. . . .

All of the exceptions in the section are based on what might
    be classed as an overriding social policy. In other words, they are the kinds
    of claims which society (through legislators) considers to be of a quality
    which outweighs any possible benefit to society in the bankrupt being released
    of these obligations.

Paragraph (a) is essentially an administration of justice
    concept. The liabilities caught by it will be in relation to criminal or
    quasi-criminal matters.

Paragraphs (b) and (c), regardless of the language used, are
    nothing other than societys vested interest in ensuring that a person
    supports a dependent spouse and children. Obligations incurred for that
    cannot be shucked by the bankruptcy.

Paragraphs (d) and (e) are morality concepts which look at
    conduct. Those kinds of conduct are unacceptable to society and a bankrupt will
    not be rewarded for such conduct by a release of liability. [Footnote omitted.]

[18]

We
    are here, of course, concerned with paragraph (a.1).  It is not disputed that
    any claim falling within s. 178(1)(a.1) must arise from an act done with
    specific intent to injure (as opposed to an intentional act that incidentally
    results in injury).

[19]

In
    determining whether the respondent possessed the requisite intent when he
    punched the appellant in the head, it is of some assistance to review some
    recent cases in which specific intent to injure has been found.

[20]

In
Martin v. Martin
, 2005 NBCA 32, 9 C.B.R. (5th)

235, the
    court was concerned with the liability of joint tortfeasors.  In that case the
    victim Martin was assaulted by one Zoel Martin.  Three of Zoel Martins
    brothers were present at the time of the attack and stood by while their
    brother beat the victim, Martin.  In a civil action against all four Martin
    brothers, the victim Martin recovered damages exceeding $350,000 for injuries
    sustained as a result of the intentional tort of battery.  The three brothers
    of Zoel Martin were found liable as joint tortfeasors. Subsequent to the
    judgment they filed assignments in bankruptcy and were discharged with respect
    to their bankruptcies pursuant to s. 178(2) of the
BIA
and released of
    all debts except those matters referred to in ss. 178(1) [of the Act].

[21]

The
    victim Martin (the plaintiff in the action for damages) applied for a
    declaratory order that the three were not released from liability on the
    judgment despite the discharge in bankruptcy obtained pursuant to the Act.

[22]

The
    court quoted with approval this courts decision in
Simone v. Daley
,
supra
,
    and that  the logical interpretation of ss. 178(1) and (2) is that the latter
    creates a general principle (being a release of all debts) with subsection (1)
    being an exception to the general principle.  And then went on to say at paras.
    11-12:

But even viewed as an exception to the general principle, and
    thus as a legislative provision to be interpreted restrictively, the object and
    clear purpose of the exceptions set out in s. 178 must be respected.  The
    exceptions, as mentioned in
Simone
, are based on an overriding social
    policy that certain claims should be protected against the general discharge
    obtained by a bankrupt because of the class of claimants involved, in the
    present case, the victim of an assault causing bodily harm, and because of the
    reprehensible nature of the bankrupts conduct. As mentioned in
Simone
,
    for example, the types of debt which survive bankruptcy are debts arising out
    of fraud, dishonesty or misconduct while acting in a fiduciary capacity.
    Parliament has clearly made a policy decision that a bankrupt should not be
    allowed to raise the shield of his or her general discharge against judgment
    creditors who hold judgments grounded on such reprehensible conduct.  As the
    court in
Simone
stated, those kinds of conduct are unacceptable to
    society and a bankrupt will not be rewarded for such conduct by a release of
    liability.

In my view, the same can be said with respect to claims or
    awards of damages in respect of bodily harm intentionally inflicted, or sexual
    assault, or wrongful death resulting therefrom mentioned in s. 178 of the Act.
    What must be examined is the type of claimant involved and the conduct of the
    bankrupt which gave rise to the award of damages.

[23]

The
    court concluded that the victim Martin had been singled out for a beating and that
    each respondent was acting in furtherance of a common design.  The court
    stated, at para. 16:

Thus, the decision as to whether the respondents are entitled
    to benefit from the discharge in bankruptcy must be decided on the basis that
    each of the respondents participated in a tort in furtherance of a common
    design to subject Lucien Martin to a beating.

The intention to inflict bodily harm upon the victim
    could be imputed to all of the respondents. The bankrupts were not released
    from liability.

[24]

In
Sangha (Re)
, 2004 BCSC 799, 4 C.B.R. (5th) 275, the bankrupt
    intentionally drove his car into his daughter and her boyfriend. He pleaded
    guilty to aggravated assault.  The court noted that it was clear the bankrupts
    actions were intentional.

[25]

The
    bankrupts automobile insurer, a provincial government insurer, paid the
    daughter and her boyfriend in excess of $300,000 under the provincial statutory
    scheme. The insurer then brought action against the bankrupt to recover the
    money it had paid to the victims on the bankrupts behalf. The insurer alleged
    that the accident was the result of an intentional act of violence and that the
    bankrupt had thereby forfeited his right to indemnity. The insurer succeeded
    and was awarded judgment against the bankrupt in excess of $350,000. Shortly
    thereafter the bankrupt made his assignment in bankruptcy.  The insurer brought
    an application for a declaration pursuant to s. 178(1) that the judgment
    against the bankrupt was not released by the order of discharge. The
    application was granted.

[26]

The
    court found the bankrupts actions were intentional and that they fell within
    the parameters of s. 178(1)(a.1) of the
BIA
.  Master Groves accepted
    the insurers submission that the daughter and her boyfriends claims were
    exactly the kind of claim that Parliament had in mind when creating the
    exceptions to the discharge (at para. 18).

[27]

In
Winfield v. Lomas
, 2008 BCSC 1636, 48 C.B.R. (5th) 37, the bankrupt
    husband assaulted his wife on two occasions, he struck her with both fists,
    shaking her head and neck, pushing her, putting a pillow over her face and
    pushing down. The wife obtained a judgment for damages for assault in the sum
    of $75,000 against the husband.  Immediately thereafter the husband made an
    assignment in bankruptcy.  Dickson J. had no difficulty concluding, at para.
    14, that this intentional assault fell with the s. 178 exemption as it concerns
    an award of damages for intentionally inflicted bodily harm.

[28]

Similarly
    in
Thiessen v. Antifaev
, 2003 BCSC 197, 41 C.B.R. (4th) 266, the
    bankrupt violently assaulted the victim with his motor vehicle and plead guilty
    to assault with a weapon.  Hood J. held that such a claim would not be released
    by a discharge order by virtue of s. 178 of the
BIA
.

[29]

In
Matthew v. Tattrie
,
2009 BCSC 263, the bankrupt struck the victim in the head with a baseball bat
    at a New Years Eve party. He pleaded guilty to aggravated assault. The damages
    awarded at the subsequent civil trial were found to arise from the intentional
    infliction of bodily harm and hence within s. 178(1)(a.1) of the
BIA
.

[30]

Today
    there is only one principle or approach to statutory interpretation.  According
    to the Supreme Court of Canada in
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21:the words of an Act are to be read in their
    entire context and in their grammatical and ordinary sense harmoniously with
    the Scheme of the Act, and the intention of Parliament (citation omitted).

[31]

I
    repeat for convenience the relevant section of the
BIA
:

178(1)          An order of discharge does not release the
    bankrupt from

(a.1)   an award of damages by a court in      civil
    proceedings in respect of

(i)      bodily harm intentionally                               inflicted.

[32]

The
    intentional infliction of bodily harm falls within the requirement of the
    provision.  In my view, the requisite intention can be proved directly or it
    can be reasonably inferred from the facts.

[33]

The
    cases in which courts have concluded that s. 178(1)(a.1)(i) does not apply are
    distinguishable from the present appeal.  Those cases were characterized by the
    absence of the intent required by the provision.

[34]

For
    example, in
Floros v. Mueller
, 2003 SKQB 513, 244 Sask.R. 164, a
    judgment creditor had successfully brought a claim for malicious prosecution
    against the bankrupt. The malicious prosecution had caused the judgment
    creditor mental suffering that had manifested itself in physical symptoms.  The
    creditor brought an application for a declaration that his judgment should
    survive the bankruptcy.  Justice Kyle dismissed the application, holding, at
    para. 5, that to fall within s. 178(1)(a.1) the action giving rise to the harm
    must have had the harm itself as its goal.

[35]

Similarly
    in
Marshall (Re)
(2001), 32 C.B.R. (4th) 74 (Ont. S.C.)  the bankrupt
    was sued for defamation. The victim suffered dizziness and vertigo as a result
    of the defamation. Deputy Registrar Stevens held that the court had not found
    that the bankrupt had intentionally inflicted bodily harm on the victim.

[36]

In
    neither
Floros
nor
Marshall
were civil actions for damages
    for assault or for the direct and deliberate (intentional) infliction of bodily
    harm.

[37]

Similarly,
    where a bankrupt is sued for negligence arising out of a motor vehicle
    collision, the resulting judgment for damages in favour of the victim is not
    excluded by the provisions of s. 178(1)(a.1).  See
Bélair v. Gottschlich
,
    2008 ABQB 47, 42 C.B.R. (5th) 280.

[38]

I
    conclude from this review of reported cases that s. 178(1)(a.1)(i) will apply where
    there is direct proof of intentional infliction of harm or where such intent  can
    be reasonably inferred on the facts.

[39]

Without
    the intentional infliction of harm as the basis for the judgment the section
    does not apply, as in
Floros
.

[40]

In
    all the reported cases of assault, the section was found to apply.

[41]

As
    this court noted in
Simone
at p.
    522
:

Paragraph (a) is essentially an administration of justice
    concept. The liabilities caught by it will be in relation to criminal or
quasi
-criminal
    matter. [Emphasis added.]

[42]

The
    respondent here was convicted of aggravated assault and the civil judgment
    against him is based on that same assault.

[43]

In
    my view, it matters not whether there was one punch or ten.  The requirements
    of the statute will be satisfied if the respondent intended to inflict bodily
    harm.  Similarly, it is immaterial whether the bodily injury is inflicted with
    a fist or a weapon, provided there is direct or circumstantial evidence of an
    intention to inflict bodily harm.

[44]

The
    evidence in this case established that the appellant was not involved in the
    fight that broke out between the two groups. He had left the vicinity of the
    fight and called for police assistance on his cell phone. The respondent, who
    was physically much bigger than the appellant, ran up to him at this point, and
    punched him with a closed fist once in the head with sufficient force to cause
    the appellant to lose consciousness and fall to the ground. In my view, it does
    not matter whether the appellants permanent brain damage resulted from the
    punch or from the impact of his head against the curb when he fell unconscious
    to the ground. When one person hits another with a closed fist with sufficient
    force to cause the unsuspecting recipient of the punch to lose consciousness
    and fall to the ground, it cannot be seriously doubted that the person intended
    to inflict bodily harm.

[45]

The
    motion judge erred when she stated, at para. 33 of her endorsement:

Put another way, is there a concerted effort to inflict bodily
    harm in this case to import the abhorrent conduct that the legislation
    intended?

[46]

On
    the plain language of the statute, the appellant is only required to
    demonstrate bodily harm intentionally inflicted  nothing more.  In
    particular, he is not required to prove that the circumstances in which the
    bodily harm was intentionally inflicted were sufficiently offensive to social
    mores to justify withholding the protection of bankruptcy. The statute does not
    require the appellant to demonstrate a concerted effort, show particularly
    abhorrent conduct, or take account of sympathetic factors that might apply to
    the bankrupt.  Had that been the Legislatures intention, the language of the
    statute would have been different.

[47]

Were
    a court required to take account of such factors, the statute would have
    contained language directing such considerations.  The text could have provided,
    for example, bodily harm intentionally inflicted in egregious circumstances
    or bodily harm intentionally inflicted in circumstances that require social
    condemnation or where, in the courts discretion, an order of discharge
    should not be released.  However, there is no such language in the statute.

[48]

There
    is no doubt that the consequences of the events of April 19, 2005 are tragic.
    The respondent is left with a crushing debt, and the appellant is left with
    permanent brain damage.  Nevertheless, it is not for the court to weigh the
    relative blameworthiness of the respondents conduct in relation to the quantum
    of the debt he must bear.

[49]

The
    language of the statute is clear.  Where a civil damage award is in respect of
    bodily harm intentionally inflicted, the bankrupt is not released from such
    judgment by an order of discharge.

[50]

The
    motion judge committed a palpable and overriding error in concluding, on the
    facts of this case, that the respondent did not intentionally injure the
    appellant.

[51]

I
    would allow the appeal, set aside the motion judges order and substitute an
    order granting the appellant the relief sought in paragraphs one through three
    of the Notice of Motion.

[52]

The
    appellant is entitled to his costs in this court fixed in the sum of $7,500
    inclusive of disbursements and HST as well as his costs below.

[53]

If
    counsel are unable to agree on what those costs should be the appellant may
    proceed to have those costs assessed.

Released: October 31, 2013 JMacF.

J.
    MacFarland J.A.

I
    agree David Watt J.A.

I
    agree Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Eagle Professional Resources
    Inc. v. MacMullin, 2013 ONCA 639

DATE: 20131021

DOCKET: C57054

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Eagle Professional Resources Inc.

Appellant (Plaintiff)

and

Matt MacMullin, Shane Reiffenstein, Matthew
    Emberley and Maplesoft Group

Respondents (Defendants)

James C. Morton, for the
    appellant

George J. Karayannides and
    Laura Brazil, for the respondents

Heard and released
    orally: October 15, 2013

On appeal from the judgment of Justice Robert. F.
    Goldstein of the Superior Court of Justice, dated April 5, 2013.

ENDORSEMENT

[1]

The appellant argues that the motion judge erred in allowing the
    respondents' summary judgment motion and in dismissing the claim.

[2]

In the appellants submission, the factual issues raised require a trial
    to be resolved because there is some conflicting evidence and findings of
    credibility are needed.

[3]

We disagree. This was a straightforward case. The appellants statement
    of claim and material filed in response to the motion consisted of bald
    allegations and related a few specific incidents that raised suspicion as to
    the possibility that the respondents had acted in breach of their non-competition
    and non-solicitation obligations.

[4]

The appellants bald allegations were denied by each of the individual
    respondents. Each of the specific incidents raised by the appellant was fully
    explained by the respondents.

[5]

The appellant did not cross-examine the respondents or otherwise
    challenge the explanations they tendered. However, the failure to cross-examine
    did not mean that there were live issues for trial, despite the appellants
    suggestion to the contrary.

[6]

A party responding to a motion for summary judgment must put his best
    foot forward. In the absence of any challenge by the appellant to the
    explanations proffered by the respondents, the motion judge was able to decide
    the motion for summary judgment without having to make any findings of
    credibility.

[7]

The full appreciation test was met without the need for a trial.

[8]

For these reasons, the appeal is dismissed.

[9]

Costs of the appeal to the respondents fixed in the amount of $10,000,
    inclusive of disbursements and taxes.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

M.H. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Freedman v. Freedman, 2013 ONCA 620

DATE: 20131015

DOCKET: C56638

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Joel Freedman

Appellant

and

Gloria Freedman

Respondent

Bryan Delaney, for the appellant

Richard Bowles, for the respondent

Heard: September 13, 2013

On appeal from the judgment of Justice Robert L. Maranger
    of the Superior Court of Justice, dated January 2, 2013.

APPEAL BOOK ENDORSEMENT

The Appeal

[1]

The parties separated in 2008 after 21 years of marriage.  By consent
    order dated November 23, 2010, they resolved the financial issues arising from
    their separation.  Unfortunately, their difficulties continued primarily due to
    the appellants on-going failure to comply with his agreed-upon financial
    obligations to his wife and son. The appellants breaches have resulted in his
    being found in contempt on numerous occasions and being ordered to pay
    corresponding cost awards.

[2]

The order under appeal is the result of the appellants motion to change
    his support obligations based on allegations of material changes in
    circumstances and the respondents cross-motion for an order fixing the amount
    of child and spousal support arrears and on-going spousal support and for an
    order for security for support payments as long as the appellant is in default
    of any support order.

[3]

The motion judge dismissed the appellants motion to change and
    allowed the respondents cross-motion.
In his
    appeal, the appellant argues that in the light of his becoming sole shareholder
    of his real estate company and his sons ceasing to be a child of the marriage,
    the motion judge was required to conduct a
de novo
review of the appellants financial circumstances for
    the purpose of calculating his support obligations.  The appellant submits that
    the motion judge erred by calculating support based on the appellants income
    as determined by an accountant, Mr. Pittman, as opposed to conducting a de novo
    review of the appellants financial circumstances.

[4]

We disagree. The terms of the consent order require the parties to
    retain an accountant, initially Mr. Pittman, to calculate the appellants
    income for the purposes of determining support. We agree with the motion
    judges interpretation of the order that the parties agreed to be bound by the
    accountants calculations. This interpretation is clear from the wording of the
    order and the context in which the agreement was reached  a time when the
    parties were embroiled in litigation associated with difficulties associated
    with determining the appellants income.

[5]

The fact that the appellant is no longer required to pay child support
    does not assist his efforts to have his spousal support obligations reduced,
    given the wording in the consent order that spousal support payments to the
    respondent are less than they would have been because of the amount of child
    support being paid.

[6]

Finally, the history of the appellants relentless efforts to
    avoid his financial obligations to his family justifies the order limiting the
    way in which the appellant can obtain income, while he is default of support
    obligations.

[7]

We agree with the motion judge that the inconvenience of the
    order providing security is of the appellants own making.

[8]

The appeal is therefore dismissed.

The Cross-Appeal

[9]

The cross-appeal is dismissed.  The consent order is clear that
    any adjustment to the appellants support obligations as a result of the
    accountants final calculation of his income would be prospective only.  No
    adjustment was contemplated for 2010.

Costs

[10]

Costs are fixed at $7,750 inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: Furlan (Re), 2013 ONCA 618

DATE: 20131011

DOCKET: M42828 (C57275)

Watt J.A. (In Chambers)

IN THE MATTER OF:  DANIEL FURLAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andreea Baiasu, for the applicant

Daniel Furlan, acting in person

Joseph Di Luca, appearing as
amicus curiae

Janice E. Blackburn, for the respondent, Person in
    Charge of Centre for Addiction and Mental Health

Heard: September 13, 2013

On application for an order under s. 672.76 of the
Criminal
    Code
suspending the application of an absolute discharge and directing the
    application of a conditional discharge pending appeal.

Watt J.A.:

[1]

On the joint recommendation of the parties and the evidence received at
    the hearing, a panel of the Ontario Review Board (the Board) was satisfied that
    Daniel Furlan (the respondent) was no longer a significant threat to the safety
    of the public. The Board directed that the respondent be discharged absolutely.

[2]

A few weeks later, the respondent returned to some of his old habits.
    He took drugs, like cocaine and marijuana.  He drank alcohol.  He stopped
    taking, or took only intermittently, his prescribed medication.  He missed
    appointments at the Forensic Outpatient Service at the Centre for Addiction and
    Mental Health (CAMH) where he had been treated for his major mental disorder
    for some time. He became psychotic, hostile, verbally aggressive, and
    threatening.

[3]

The respondent returned to CAMH when mental health authorities invoked
    provincial mental health legislation to have him arrested and confined there
    involuntarily. The person in charge of CAMH served the respondent with a notice
    of appeal against the absolute discharge granted by the Board.

[4]

The Attorney General applies for an order under s. 672.76 of the
Criminal
    Code
suspending the disposition of an absolute discharge pending the
    determination of the appeal and substituting a conditional discharge without a
    s. 672.55 treatment condition.

[5]

At the conclusion of the hearing of the application, I granted the order
    sought.  These are my reasons for doing so.

THE BACKGROUND

[6]

A brief reference to some of the background events and procedural
    history is essential to an appreciation of this application and its result.

The Predicate Offences and NCRMD Finding

[7]

On July 25, 2008, the respondent launched unprovoked attacks on
    unsuspecting citizens including a 13-year-old boy whom he tried to throw in
    front of a moving vehicle. Concerned citizens intervened and called police.
    When police arrived, the respondent resisted apprehension. One of the officers
    suffered significant muscular injury in his attempts to subdue the respondent.

[8]

About a year later, on August 6, 2009, the respondent was found NCRMD on
    charges of aggravated assault, assault with intent to resist arrest, assault
    causing bodily harm, and simple assault. The respondents underlying mental
    disorder is schizophrenia, possibly personality disorder (anti-social type),
    and polysubstance dependence (crack, cocaine, heroin, cannabis and alcohol).

[9]

The trial judge did not conduct a disposition hearing, rather ordered
    the respondent detained pending a hearing before the Board.

The Conditional Discharge in 2012

[10]

At
    the annual review hearing conducted in April, 2012, the Board unanimously
    concluded that the respondent continued to represent a significant threat to
    the safety of the public. A majority of the Board decided that the least
    onerous and least restrictive disposition that was appropriate was a
    conditional discharge. A minority of the Board concluded that a detention order
    was the appropriate disposition.

[11]

The
    conditional discharge permitted the respondent to reside in the Greater Toronto
    Area and required him to: a) report to the person in charge of CAMH or his designate
    not less than every two weeks; b) abstain absolutely from the non-medical use
    of alcohol, drugs, or other intoxicants; c) on his consent, to take any
    treatment prescribed under s. 672.55(1) of the
Criminal Code
; d)
participate in the
    rehabilitation program prescribed by the person in charge of CAMH, and; e) submit
    samples of urine or breath to the hospital for analysis.

The Absolute Discharge of April, 2013

[12]

At
    the annual review hearing held in April, 2013 the Hospital Report from CAMH
    described the preceding 12 months as an exemplary year for the respondent. According
    to the Report, he displayed no symptoms of psychosis, was compliant with his
    self-administered medication, and had only negative results when his urine
    samples were analyzed for the presence of alcohol and non-prescribed drugs.
    The report of the treatment team concluded:

While we cannot rule out the presence of personality factors
    that
might
impinge on his mental state stability in the future, given
    his pro-social lifestyle and attitudes, mental state stability, adequate
    personal supports, fair insight, intact judgment, abstinence from substance
    use, and compliance with remediation recommendations, he does not in the teams
    opinion, meet the threshold of significant risk as per
Winko
.

[13]

In
    her testimony before the Board, the respondents out-patient psychiatrist
    confirmed the contents of the treatment teams report and their recommendation
    that the respondent be discharged absolutely.

[14]

At
    the hearing before the Board, counsel for CAMH, the respondent, and the Attorney
    General agreed that the evidence would not support a finding that the
    respondent continued to represent a significant risk to the safety of the
    public.  Crown counsel registered some concern, however, because of the serious
    mental illness from which the respondent suffered, as well as the nature of his
    index offences, but agreed that the significant threat threshold could not be
    met on the available evidence.

[15]

The
    Board agreed with the recommendation of all parties that the respondent no
    longer represented a significant threat to the safety of the public. On April
    23, 2013, the Board directed that the respondent be discharged absolutely.

The Subsequent Events

[16]

Within
    a month of the Boards disposition, the respondent resumed his use of cocaine
    and cannabis. He failed to attend two scheduled out-patient appointments. In
    the following month, his mother reported that the respondent was becoming
    paranoid and had drugs in his room. She wanted the hospital authorities to
    revoke the respondents absolute discharge.

[17]

The
    respondent became more psychotic, hostile, aggressive and destructive as the
    days and weeks passed.  He was taken by police, acting under provincial mental
    health legislation, to Humber River Regional Hospital where he was briefly
    confined.

[18]

In
    mid-June, the respondent went to the Forensic Out Patient Service at CAMH. He
    acknowledged that he had missed prior appointments because they were
    voluntary.  He admitted that he had used drugs and that he had been
    inconsistent in taking his prescribed medication. He appeared paranoid. A week
    later, the respondent was obviously decompensating. His mother was afraid of
    him.

The Apprehension and Hospital
    Admission

[19]

Towards
    the end of June, 2013, about two months after the absolute discharge had been
    ordered, the respondent was taken into custody by police and delivered to an
    area hospital under a Form 2 under s. 16 of the
Mental Health Act
,
    R.S.O. 1990, c. M.7.  A urine sample taken there tested positive for both THC
    and cocaine. Two days later, he was transferred to CAMH on a Form 1.

The Notice of Appeal

[20]

At
    CAMH, the respondent was served with a notice of appeal on behalf of the person
    in charge of the hospital. The relief sought was an order setting aside the
    absolute discharge and writing a conditional discharge disposition under
    s. 672.54(b) of the
Criminal Code
in the same terms and
    conditions as that in place before the hearing at which the respondent had been
    discharged absolutely.

The Current Status

[21]

Since
    his re-admission to CAMH, the respondent has been confined largely as an
    involuntary or civilly-committed patient under the
Mental Health Act
.
    He has displayed signs of mania and is incapable of making treatment decisions
    about antipsychotic and mood-stabilizing medication. He has decompensated
    significantly since his absolute discharge was ordered.

[22]

The
    respondents in-patient psychiatrist and the person in charge of CAMH are both
    of the view that the respondent currently represents a significant threat to
    the safety of the public because of his mental disorder. Both doctors are
    satisfied that without the conditions included in the prior conditional
    discharge, the respondent will continue his use of illicit substances, his
    questionable compliance with medication, and his inconsistent attendance at medical
    appointments. In the doctors view, without these conditions, the respondent
    will become increasingly paranoid and manic.

The Application

[23]

The
    Attorney General (the Crown) seeks an order under s. 672.76 of the
Criminal
    Code
suspending the application of the absolute discharge granted to the
    respondent by the Board on August 23, 2013, pending the determination of an
    appeal by the person in charge of CAMH against that order. Further, the Crown
    seeks an order that the respondent be made subject to the terms of a
    conditional discharge, identical to that in force immediately before the Board
    decision under appeal save for the deletion of a s. 672.55 treatment condition.

The Positions of the Parties

[24]

The
    argument in support of this application by the Crown was advanced by counsel
    for the person in charge of CAMH, Ms. Blackburn. She submits that to return the
    respondent to the jurisdiction of the Board under a conditional discharge, the
    applicant must demonstrate that the respondent now represents a significant
    threat to the safety of the public because of his mental disorder. This
    determination should be informed by the principles at work when a party seeks
    to suspend the application of conditional discharges and detention orders
    pending appeal. Ms. Blackburn says that the evidence adduced on the application
    satisfies the applicable standard and warrants the order sought.

[25]

As
amicus
, Mr. Di Luca agrees with the standard or test proposed by
    Ms. Blackburn. Further, Mr. Di Luca acknowledges that the evidence adduced
    on the application satisfies the significant threat threshold.  He takes no
    position on whether the orders sought should issue.

[26]

The
    respondent, Daniel Furlan, says that the orders sought are academic.  He is
    currently an involuntary patient at CAMH under provincial mental health
    legislation. Even if the basis upon which he is currently confined is not
    renewed after it expires in mid-October of this year, he intends to remain
    there voluntarily.  Thus, he submits, there is no need for the orders.

The Governing Principles

[27]

The
    authority invoked by the Crown is statutory, but informed by a handful of
    decisions by other judges of this court assigned the same task. It is helpful
    to begin with an examination of the enabling statutory authority before mining
    the available precedents for further assistance.

The Statutory
    Provisions

[28]

Section
    672.54 of the
Criminal Code
describes the dispositions that may be
    made by a court or Review Board after a disposition or review hearing has been
    held. The section lists four factors that must be considered by the court or
    Board in reaching its decision:

·

the need to protect the public from dangerous persons;

·

the mental condition of the accused;

·

the reintegration of the accused into society; and

·

the other needs of the accused.

The section directs the court or Board to make the
    listed disposition that is the least onerous and least restrictive to the
    accused.

[29]

The
    available dispositions include absolute and conditional discharges and
    detention orders. What divides absolute discharges, on the one hand, and
    conditional discharges and detention orders on the other, is whether the
    accused is a significant threat to the safety of the public. An accused who is
not
a significant threat to the safety of the public is entitled to an absolute
    discharge under s. 672.54(a).  An accused who is a significant threat to the
    safety of the public is entitled to the least onerous and least restrictive
    conditional discharge or detention order.

[30]

A
    disposition comes into force when it is made unless the court or Board orders
    otherwise and it remains in force until the Board holds a hearing to review the
    disposition and makes another disposition:
Criminal
Code
, s.
    672.63.

[31]

Any
    party may appeal against the disposition made by a court or a Review Board on
    any ground of appeal that raises a question of law or fact alone or a question
    of mixed law and fact:
Criminal
Code
, s. 672.72(1). The appeal
    is to be based on a transcript of the proceedings before the court or Board and
    any other evidence that the court of appeal finds necessary to admit in the
    interests of justice:
Code
, s. 672.73(1).  Section 672.73(2)
    incorporates by reference the provisions of ss.  683(1) and (2) concerning
    the reception of fresh or further evidence on appeal.

[32]

When
    a notice of appeal is filed against an absolute discharge, s. 672.75 suspends
    the application of the absolute discharge pending the determination of the
    appeal.  In
R. v. Kobzar
, 2012 ONCA 326, 110 O.R. (3d) 670, a majority
    of this Court concluded that the words paragraph 672.54(a) in s. 672.75
    offend ss. 7 and 9 of the
Charter
and are not saved by s. 1.  Thus those
    words, which refer to an absolute discharge, are of no force and effect. The
    declaration of invalidity has been suspended until March 31, 2014 and the Crown
    instructed to bring an application, as here, if it seeks an order suspending an
    absolute discharge and replacing it with another disposition pending the
    determination of the appeal from the absolute discharge.

[33]

Where
    an appeal is taken against the disposition, any party who gives notice to each
    of the other parties involved, may apply to a judge of the court of appeal for
    an order under s. 672.76(2) respecting a disposition that is under appeal.
    The language of the section is discretionary, permitting any of the listed
    orders to be made only if the judge is satisfied that the mental condition of
    the accused justifies it.  Among the orders that may be made under s.
    672.76(2)(c), where the application of an absolute discharge has been suspended,
    is any other disposition  that is appropriate in the circumstances other
    than an absolute discharge or treatment disposition under s. 672.58.

[34]

Where
    the application of a disposition from which an appeal has been taken is
    suspended, s. 672.77 revivifies the disposition in effect immediately before
    the disposition under appeal was made pending the determination of the appeal,
    unless another disposition is ordered under s. 672.76(2)(c).

The Authorities

[35]

From
    the few precedents that the industry of Ms. Blackburn has been able to unearth,
    several principles emerge.

[36]

First,
    the principal purpose of s. 672.76 is to suspend the application of
    dispositions as a result of changes in the circumstances which may make
    compliance with the disposition pending appeal inappropriate:
Penetanguishene
    Mental Health Centre (Administrator) v. Ontario (Attorney General)
(2001),
    154 C.C.C. (3d) 187 (Ont. C.A.  Chrs), at para. 7.

[37]

Second,
    the applicant bears the onus under s. 672.76 to demonstrate that there are
    compelling reasons to doubt the validity or soundness of the disposition made
    by the Board as it relates to the mental condition of the accused:
Conway
    v. Brockville Psychiatric Hospital
(1994), 18 O.R. (3d) 27 (Ont. C.A.
    Chrs), at p. 29;
Northeast Mental Health Centre v. Rogers
, 2007
    ONCA 561 (Chrs), at para. 9;
Penetanguishene Mental Health Centre
, at
    para. 7. The provisions of s. 672.76 should only be invoked in
    extraordinary circumstances:
Conway
, at p. 29,
Rogers
,
    at paras. 9, 16-17.

[38]

Third,
    the remedies available under s. 672.76 are not limited to cases in which a
    change in circumstances has occurred between the date on which the disposition
    under appeal was made and the time at which the application under s. 672.76 has
    been brought:
Rogers
, at para. 11.

[39]

Fourth,
    the decision on an application under s. 672.76 is influenced by contextual
    considerations including all the provisions of Part XX.1, the specific
    provisions under consideration, and the extent of the authority of the Board:
Rogers
,
    at para. 15.

The Principles Applied

[40]

The
    bipartite nature of the order the Crown seeks on this application requires
    consideration of two issues:

i.

whether the application of the absolute discharge should be suspended;
    and if so,

ii.

whether a conditional discharge should be ordered pending the
    determination of the appeal against the absolute discharge.

For all practical purposes, both issues fall to be
    decided on the application of the governing principles to the evidence of the
    respondents mental condition as disclosed by his words and conduct after the
    Board ordered his absolute discharge.

[41]

The
    analysis must begin with the presumption that the Boards order of an absolute
    discharge was correct. The Board is an expert tribunal whose business is to
    conduct disposition and review hearings of mentally disordered accused.  The
    order the Board made is an order that the
Criminal Code
requires
    absent a finding that the accused represents a significant threat to the safety
    of the public.  In accordance with the position of the parties at the hearing,
    and the evidence adduced there, the Board concluded that the respondent did not
then
represent a significant threat to the safety of the public. In
    those circumstances, the only available disposition was an absolute discharge.

[42]

The
    presumption of validity or correctness of the order under appeal is rebuttable.
    Sometimes, an applicant may be able to identify an error in the Boards
    reasons. That is not the case here. In this case, the full weight of the
    applicants burden falls to be discharged on the basis of the evidence about
    the respondents mental condition since the Board ordered his absolute
    discharge.

[43]

Deprived
    of reliance on the automatic suspension of the application of the absolute
    discharge for which s. 672.75 provides on filing the notice of appeal, the
    Crown relies on the evidence collected since the discharge was directed to
    demonstrate compelling reasons to doubt the correctness of the decision.

[44]

Where
    fresh evidence provides the wherewithal to set aside the disposition, it seems
    to me that a chambers judge should be satisfied that the evidence would qualify
    for admission on appeal under s. 672.73(1) and the incorporation by reference of
    the general principles in ss. 683(1)and (2) by s. 672.73(2).

[45]

In
    my respectful view, the material submitted in support of this application would
    qualify for admission as fresh evidence on the appeal against the absolute
    discharge.  As evidence of what has taken place after the Board directed the
    absolute discharge, this evidence could not have been obtained with the
    exercise of due diligence at the review hearing. The evidence, which includes
    admissions by the respondent and expert opinion about his mental condition and
    whether he currently represents a significant threat to the safety of the
    public is reasonably capable of belief and bears on the critical issue of
    significant threat.  Further, if the evidence were believed, and it is
    unchallenged, when taken with the balance of the evidence, it could reasonably
    affect the result at the hearing.

[46]

In
    the result, I am persuaded that the applicant has satisfied the test for an order
    suspending the application of the absolute discharge pending determination of
    the appeal.

[47]

To
    achieve its second goal, the direction of a conditional discharge pending the
    determination of the appeal, the applicant must establish that:

i.

the mental condition of the respondent justifies it; and

ii.

a conditional discharge is appropriate in the circumstances

[48]

In
    my respectful view, the clause, if satisfied that the mental condition of the
    accused justifies it, in s. 672.76(2), on its own, but more particularly in
    combination with the phrase, appropriate in the circumstances in s.
    672.76(2)(c), requires the applicant to demonstrate, in light of the factors
    described in s. 672.54 of the
Criminal Code
:

i.

that the respondent is a significant threat to the safety of the public;
    and

ii.

that a discharge subject to conditions is the least onerous and least
    restrictive disposition to the respondent.

[49]

With
    the exception of the respondent, the parties agree that the evidence adduced on
    the application and proposed for admission on appeal establishes the
    significant threat requirement.  I agree.  Indeed, the evidence permits of no
    other rational conclusion.

[50]

I
    am equally satisfied that, when consideration is given to:

i.

the need
    to protect the public from dangerous persons;

ii.

the mental
    condition of the respondent;

iii.

the reintegration of
    the respondent into society; and

iv.

the other needs of the
    respondent,

the conditional discharge proposed is the least
    onerous and least restrictive disposition to the accused in the circumstances
    of this case.

CONCLUSION

[51]

It
    is for these reasons that I concluded that the application of the absolute
    discharge directed by the Board on April 23, 2013, should be suspended and a
    conditional discharge should be directed pending the determination of the
    appeal.

Released: October 11, 2013 (D.W.)

David
    Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hussain v. Muyal, 2013 ONCA 635

DATE: 20131018

DOCKET: C56996

Weiler, Gillese and Lauwers JJ.A.

BETWEEN

Alamgir
    Hussain

Appellant

and

Moses
    Muyal, Myer Botnick and Moshe Ehrentreu

Respondent

Alamgir Hussain, in person

Aaron Postelnick, for the respondent Myer Botnick

Michael Katzman, for the respondent Moshe Ehrentreu

Chris Donovan, for Moses Muyal

Heard and released orally: October 16, 2013

On appeal from the order of Justice Sidney N. Lederman of
    the Superior Court of Justice, dated April 15, 2013.

ENDORSEMENT

[1]

The motions judge dismissed the appellants action on the basis that it
    was an abuse of process. In so doing he exercised the courts discretion to
    control its own process. Such discretionary orders are reversible where the
    court misdirected itself or came to a decision that is so clearly wrong it
    amounts to an injustice or gives no or insufficient weight to relevant
    considerations.
Penner v. Niagara (Regional Police Services Board)
,

2013 SCC 19 (CanLII) at para. 27.

[2]

The appellant submits that the motions judge erred in
    holding the appellants case was a collateral attack on prior orders pertaining
    to the mortgage action. He submits that his claim arose out of conduct that
    post-dated the filing of the original mortgage action and related to the monies
    realized on the sale of the property. The motions judge dealt with this
    complaint in his reasons. He indicated that the appellants remedy was an
    assessment under the
Mortgages Act,
a remedy the appellant had
    initiated and then adjourned
sine die.

[3]

The appellants real complaint is that the failure to credit him with a
    mortgage payment and to correct the interest calculation in a timely fashion
    prevented him from redeeming the mortgage. The appellant could have raised this
    issue at any time throughout the mortgage proceedings. He did not.

[4]

The motions judges decision is not clearly wrong. Nor, despite the submissions
    of the appellant, are we satisfied that the motions judge failed to give
    sufficient weight to any relevant consideration. The appeal is therefore
    dismissed.

[5]

Costs to the respondents inclusive of all disbursements and applicable
    taxes are as follows: Muyal $1,000; Botnich $500; and Ehrentreu $200.

K.M. Weiler J.A.

E.E. Gillese J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Investment Industry Regulatory Organization of
    Canada v. Vitug, 2013 ONCA 636

DATE: 20131018

DOCKET: C56827

Weiler, Gillese and Lauwers JJ.A.

BETWEEN

The Investment Industry Regulatory Organization
    of Canada

Plaintiff (Respondent in Appeal)

and

Julius Caesar Phillip Vitug

Defendant (Appellant)

Alistair Crowley and Kate McGrann, for the appellant Julius
    Caesar Phillip Vitug

Christopher D. Bredt and Kristen Riess, for the
    respondent The Investment Industry Regulatory Organization of Canada

Heard and released orally: October 16, 2013

On appeal from the judgment of Justice Elizabeth M.
    Stewart of the Superior Court of Justice, dated February 28, 2013.

ENDORSEMENT

By The Court:

[1]

The appellant, Vitug, is a former investment dealer who failed to pay a
    costs award made against him in disciplinary proceedings instituted by the
    respondent, Investment Industry Regulatory Organization of Canada
[1]
,
    IIROC. The narrow issue on this appeal is whether IIROC is entitled to bring an
    action for breach of contract to enforce the costs award.

[2]

In
Investment Dealers Assn. of Canada v. Taub
(2009) ONCA 628,
    at paras. 58-60, Feldman J.A. held that there was no legal impediment
    preventing the IDA
[2]
from imposing a fine on a former member who was found guilty of professional
    misconduct and enforcing payment by an action in breach of contract.

[3]

On the appeal before us, the summary motions judge held, at paras. 28-29
    of her reasons:

[28] The analysis employed by the Court of Appeal for Ontario
    in
Investment Dealers Association of Canada v. Taub,
likewise supports
    a conclusion that an IIROC costs order is enforceable as a matter of contract. In
    Taub, the Court expressed the view that an IIROC fine is enforceable against a
    [sic former] member unless it falls into the realm of the unconscionable. Even
    if an unconscionability test were required to be applied to a costs order,
    which I do not consider to be the case as the nature of a costs order is
    compensatory and punitive, I am of the view that the amount imposed by way of
    costs of this hearing and investigation is both fair and reasonable in light of
    the issues involved, their complexity and the length of the hearing.

[29] As is suggested by the decision in
Taub,
Vitugs
    agreement to the terms of his registration includes a promise to pay any lawful
    costs awards made against him in disciplinary proceedings. This term is a
    contractually binding obligation that may be sued upon in a civil action. The
    absence of specific statutory authority in that regard does not serve to alter
    that conclusion.

[4]

The appellant submits that this case is a step further than
Taub
and
    that the summary judgment judge erred in not taking into consideration s. 9 of
    the Recognition Order, which limits the purposes for which money collected as
    fines and settlements may be used. He submits that the costs award is akin to a
    fine and encompassed by s. 9.

[5]

We disagree with this submission. The plain wording of section 9 is
    limited to fines and settlements. There is nothing in s. 9 of the Recognition
    Order that speaks to costs awards.

[6]

We agree with the comments of the summary judgment judge and her
    analysis quoted above, as well as her conclusion at para. 36 of her reasons:

[36] In my opinion, it is evident that Vitug submitted to the
    rules of this regulatory scheme of which he was a member. He went through a
    fair and legitimate disciplinary proceeding and was found guilty of having
    breached IIROCs rules for its proper conduct of its members. The very
    reasonable order for costs pursuant to the IIROCs rules made by the Hearing
    Panel, which represent only a fraction of IIROCs actual costs of this
    investigation and prosecution, which I am satisfied it has incurred, must
    therefore be paid by him. The bringing of an action by IIROC to recover those
    costs, framed as an action for breach of contract, is both appropriate and
    available in view of the contractual terms which govern Vitugs membership
.

[7]

The respondent is entitled to the costs of the appeal fixed in the
    amount of $23,014.26 inclusive of disbursements and all applicable taxes.

K.M. Weiler J.A.

E.E. Gillese J.A.

P. Lauwers J.A.

[1]
Pursuant to a Recognition Order, IIROC carries out regulatory functions
    delegated to it by the Ontario Securities Commission in its capacity as a
    self-regulatory organization under the
Securities Act (Ontario),
R.S.O.
    1990, c.S.5. However, the legal relationship between IIROC and its members, of
    whom the appellant was one, has been characterized by the courts in Ontario as
    contractual.  As such, disciplinary proceedings are conducted on the basis that
    they are not governed by the
Statutory Powers Procedures Act,
R.S.O. 1990,
    c. S.22.

[2]
The IDA later combined with Market Regulation Services Inc. into IIROC, and was
    recognized as the body for complaint handling, investigations and disciplinary
    actions.


COURT OF APPEAL FOR ONTARIO

CITATION: Jaz Management Services Ltd. v. VBI Group
    Inc., 2013 ONCA 644

DATE: 20131024

DOCKET: C57197

Cronk, Blair and Strathy JJ.A.

BETWEEN

Jaz Management Services Ltd.

Applicant/Appellant

and

VBI Group Inc. and Decade Group Inc.

Respondents/Respondents

Gregory Gryguc for the appellant

Sarah Turney for the respondents

Heard: September 6, 2013

On appeal from the judgment of Justice Patrick J. Moore
    of the Superior Court of Justice, dated May 17, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the application judges conclusion that the appellants
    evidence did not establish the requisite 20 year user of the alleged easement
    over the respondents parking spaces prior to the transfer to land titles in
    2002. On its face, the affidavit filed by the appellant did not state the
    affiants personal knowledge of the use of the property prior to its
    acquisition in 1986. Contrary to the appellants submission before this court,
    the issue was highly contentious and the affiant stated no source of her
    information and no basis for her belief concerning the use to which the
    property was put before 1986. Her affidavit did not comply with rule 39.01(5)
    of the
Rules of Civil Procedure
and the application judge rightly
    rejected her evidence on this issue. The fact that she was not cross-examined
    on her affidavit did not make her evidence admissible.

[2]

This was sufficient reason to dismiss the application. We agree with the
    respondents, however, that the evidence did not establish that the respondents
    parking spaces were being used by the appellant, its tenants and visitors, As
    of right  that is, without permission: see
Kaminskas v. Storm
(2009),
    95 O.R. (3d) 387 (C.A.). At its highest, the evidence is consistent with each
    party occasionally using the other partys parking spaces, as a matter of
    convenience, and without either asserting or relinquishing any property right.
    This is not a use as of right, so as to create a prescriptive easement:
1043
    Bloor Inc. v. 171404 Ontario Inc.
, 2013 ONCA 91.

[3]

We see no error in principle in the costs award made by the application
    judge, nor was it plainly wrong and there is therefore no basis for appellant
    interference with that award.

[4]

Accordingly, the appeal is dismissed and the application for leave to
    appeal costs is denied.

[5]

Costs to the respondents fixed at $13,000.00, inclusive of disbursements
    and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:  Kingsland v. Merritt, 2013 ONCA 628

DATE: 20131017

DOCKET: C56965

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

BETWEEN

Wayne Donald Kingsland and Myrtle Louise
    Kingsland

Appellants (Plaintiffs)

and

Clarke A. Merritt

Respondent (Defendant)

Ted. R. Laan, for the appellants (plaintiffs)

Louis Sokolov, for the respondent (defendant)

Heard and released orally:  October 7, 2013

On appeal from the order of Justice Belobaba of the Superior
    Court of Justice, dated March 27, 2013.

ENDORSEMENT

[1]

The appellants appeal the order of the motion judge granting the
    respondents motion for summary judgment and dismissing the action against the
    respondent.

[2]

The appellants argue that the motion judge erred by not finding that the
    respondent lawyer knew or should have known that the appellants relied on him
    to ensure that the funds they advanced to the respondents client  by a cheque
    made payable to the respondent in trust  were disbursed in a certain manner.

[3]

The motion judge found that there was no evidence that the respondent
    knew or should have known that the appellants were relying on the respondent to
    protect their interests and, moreover, that there was no evidence that any of
    the monies were paid out for other than the purpose for which the respondent
    had been advised they were to be used.  We are not satisfied that there is any
    basis to interfere with these findings of fact by the motion judge.

[4]

Accordingly, this appeal is dismissed.

[5]

The respondent shall be entitled to costs in the amount of $4,500, all
    inclusive.

Alexandra
    Hoy A.C.J.O.

John Laskin
    J.A.

Michael Tulloch
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Knuston v. Guilbeault, 2013 ONCA 630

DATE: 20131017

DOCKET: C56929

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

BETWEEN

Martin Clifford Knuston and Dorothy Aileen
    Knuston

Plaintiffs (Respondents)

and

Marcel Guilbeault, Marc Guilbeault and Claudette
    Guilbeault

Defendants (Appellants)

Don Morris, for the defendants (appellants)

Andrew Baerg, for the plaintiffs (respondents)

Heard and released orally:  October 8, 2013

On appeal from the judgment of Justice R.P. Boissonneault
    of the Superior Court of Justice, dated January 25, 2012.

ENDORSEMENT

[1]

The appellants appeal the trial judges award of damages to the
    respondents for damage the appellants caused to the respondents property.

[2]

The parties own adjacent cottages.  The trial judge found that the
    appellants destroyed trees and foliage on the respondents property by cutting
    a road on the wooded property line between the appellants and the respondents
    properties without permission and by altering a watercourse on the appellants
    property.  The alteration of the watercourse on the appellants upstream
    property had two other consequences.  It changed the course of water on the
    respondents property and resulted in an extensive deposit of sand and silt on
    the respondents property.

[3]

The respondents ultimately did not seek the costs of removing the sand
    and silt deposited on their property.  The appellants insurer paid the
    respondents $90,000 to cover the costs of cleaning up the sand and silt and the
    respondents signed a release in favour of the insurer.

[4]

The trial judge awarded the respondents damages in the amount of
    $42,439.15 (the Tree Damages) for the destruction of trees and foliage,
    specifying that this amount was to cover cutting and removing dead tree stumps,
    applying fill and topsoil, and installing cedar hedging to replace the trees
    and foliage that had been destroyed.  The trial judge noted that installing
    cedar hedging was less costly than attempting to replace the trees that had
    been destroyed.

[5]

The trial judge awarded a further $42,369 (the Water Damages) to cover
    the costs of realigning the watercourse on the respondents property,
    constructing a berm and putting a layer of topsoil back on the foreshore and
    around the berm.

[6]

The appellants principal arguments are that: 1) the trial judges
    reasons are insufficient because they do not permit appellate review; 2) the
    trial judge erred by not concluding that the release signed by the respondents
    in favour of the insurer precluded the respondents from recovering the Water Damages;
    and 3) the trial judge erred in his calculation of the Tree Damages and the Water
    Damages.

[7]

We do not give effect to the first ground of appeal.  Read in
    conjunction with the record, the trial judges reasons are sufficient to permit
    review by this court.

[8]

Nor do we give effect to the second ground of appeal.  The release
    signed by the respondents specifically provides that,  it does not include
    damages for the destruction of trees, the reconstruction of the stream, and
    building of the berm around the streambed as alleged in [this action].  The Tree
    Damages and Water Damages were awarded in respect of this excluded damage.

[9]

We do, however, agree that the trial judge erred in his calculation of
    both the Water Damages and the Tree Damages.

[10]

In
    calculating the Water Damages at para. 250 of his reasons, he may have included
    the $9,750 net of taxes to add more topsoil and the $2,700 net of taxes to
    remove dead trees and stumps quoted by Ron Lauzon at p. 2 of his report.  Based
    on the report of Ron Lauzon, which the trial judge indicated he accepted, the Water
    Damages should be $26,455 plus applicable taxes, and not $42,369.

[11]

We
    also agree that the $29,894.15 amount referred to by the trial judge in para.
    248 of his reasons is incorrect.  It should be the $21,000 amount estimated by
    Mr. Warner, whose evidence the trial judge said he accepted.

[12]

Accordingly,
    the Tree Damages should be a total of $33,475, comprised of the $21,000 estimated
    by Mr. Warner plus the $9,775 and $2,700 at p. 2 of the Lauzon report, plus
    applicable taxes.

[13]

The
    total damages are, accordingly, $59,930 comprised of the $26,455 plus $33,475,
    plus applicable taxes.

[14]

The
    appellants are entitled to their costs of this appeal fixed at $10,000 all
    inclusive.

Alexandra
    Hoy A.C.J.O.

John Laskin
    J.A.

Michael Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kyvrikoseos (Re) , 2013 ONCA 607

DATE:20131003

DOCKET: C56708

Goudge, Cronk and Gillese JJ.A.

IN THE MATTER OF:  MANOS KYVRIKOSEOS

AN APPEAL UNDER PART XX.1 OF THE
CODE

Manos Kyvrikoseos, appellant appearing in person

Joseph Di Luca,
amicus curaie

Michael Fawcett, for the respondent

James Thomson, for the Centre for Addiction and Mental
    Health

Heard: October 2, 2013

On appeal against the disposition of the Ontario Review
    Board dated, February 14, 2013.

APPEAL BOOK ENDORSEMENT

[1]

In our view it was reasonable for the Board to accept Dr. Pearces
    opinion evidence that substance abuse would lead to deterioration of the appellants
    mental stability and a return to the conduct like the index offences.  The
    doctor has been the appellants treating physician for some time.  That
    provided the doctor with an ample basis to conclude that the former would
    likely lead to the latter.

[2]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Lackner v. Hall, 2013 ONCA 631

DATE: 20131016

DOCKET:
C55934

MacPherson, Watt and Pepall JJ.A.

BETWEEN

Gary Lackner Linda Lackner, Eric Thomson, Susan Dejardins and Patricia
    Tite

Plaintiffs (Respondents)

and

Shane
    Hall,
2219160 Ontario Limited
, Stanley Thomas
    Wallace, William

Robert
    England, Allan Keys, Catherine Keys, and Vikki Storie

Defendants (Appellant)

Phillip G. Hunt, for the appellant

John Parr Telfer and Margot Leduc Pomerleau, for the
    respondents

M. Jill Dougherty, for the respondents on cross-appeal Stanley
    Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, and Vikki
    Storie

No one appearing for the respondent on cross-appeal,
    Shane Hall

Heard: October 7, 2013

On appeal from the judgment of Justice James McNamara of
    the Superior Court of Justice, dated April 10, 2013.

By
    the Court:

[1]

The appellant 2219160 Ontario Limited appeals from the judgment of
    McNamara J. of the Superior Court of Justice dated April 10, 2013, declaring
    that the boundaries of the Ottawa area property lots owned by the respondents
    extend to the edge of the Ottawa River.

[2]

The respondents seek leave to cross-appeal from the costs endorsement of
    McNamara J. dated April 10, 2013.  They claim that the trial judge erred by
    awarding costs against only the corporate defendant, and not against the
    personal defendants.

A.

The appeal

[3]

The dispute between the parties is about the ownership of a strip of
    land between the respondents lots and the river.  The appellant contends that
    the trial judge erred in finding that this land belonged to the respondents.
    The appellants position is that the respondents properties, as shown on the
    relevant official plan (Plan 418), do not extend to the waters edge and,
    therefore, do not include the disputed lands.  The appellant advances four
    arguments in support of its position.

[4]

First, the appellant submits that the trial judge erred in concluding
    that Plan 418 contained a latent ambiguity that permitted him to rely on extrinsic
    evidence to assist him in interpreting the plan.

[5]

The leading case describing the permissible and impermissible uses of extrinsic
    evidence in interpreting a property deed is
Gibbs v. Grand Bend (Village)
    (1995)
, 26 O.R. (3d) 644 (C.A.), wherein Finlayson J.A. said, at para. 38:

A description in a deed may contain either a patent or a latent
    ambiguity.  A patent ambiguity is one that is apparent on the face of the
    deed.  A latent ambiguity is one that arises only when the deed is applied
    to the land it purports to describe.  Thus while a patent ambiguity is
    found in the deed itself, a latent ambiguity is revealed through extrinsic
    evidence.  Parol evidence is inadmissible to explain a patent
    ambiguity.  Extrinsic evidence may be introduced only in the case of a
    latent ambiguity for the purpose of ascertaining the intention of the grantor.

[6]

The trial judge considered
Gibbs
and found:

I am satisfied on the facts of this matter that there is a
    latent ambiguity.  The ambiguity arises from the need to determine whether the
    transverse line which forms the waterside boundary of the lots on Plan 418 was
    intended by the original subdividers to be the natural boundary between their
    subdivision and the bed of the river, or not.  Putting it another way, was it
    their intent to create a row of lots that extended to the Ottawa River, or was
    it their intention to create lots that fronted on a beach to which title was
    retained.

[7]

We agree with this conclusion; it fits precisely within the proper use
    of extrinsic evidence for interpreting a deed set out by this court in
Gibbs
.

[8]

Second, the appellant contends that the trial judge erred by focussing
    his analysis solely on the intent of the original subdividers, namely, the
    brothers John and Godfrey Armitage, who purchased the relevant lands in 1920
    and registered Plan 418 in 1931.

[9]

In support of this submission, the appellant relies on a single
    paragraph from a decision of this court rendered after the trial judges decision
    in this case.  In
Tiny (Township) v. Battaglia
, 2013 ONCA 274, at
    para. 71, Epstein J.A. stated:

The application judge, without any legal analysis, appears
    to have proceeded on the basis that the intention of Aldridge and Tripp is
    dispositive of the question of the location of the westerly boundary of Block
    B.  I do not wish to be taken as agreeing with this view
.
    However, even if I were to accept, for the sake of argument, that the intention
    of the original developers of the lands is relevant to the determination of the
    boundary issue, in my opinion, the application judges finding that both
    Aldridge and Tripp intended to include all that they owned within the
    boundaries of Plan 656 is based on a misapprehension of the evidence.                                                                              [Emphasis
    added.]

[10]

We
    do not take the emphasized portion of this passage as a statement that the
    intention of the subdividers is irrelevant to the interpretation of a deed.
    Such a conclusion would be inconsistent with the language of
Gibbs
,
    set out above, and, in our view, is not suggested in the quoted passage from
Battaglia
.

[11]

In
    any event, the trial judge focussed on a number of factors in reaching his
    conclusion, including the words of the deed, evidence about the likely
    intention of the Armitage brothers, evidence about how township records treated
    the property, and expert evidence.

[12]

Third,
    the appellant submits that the trial judge made a factual error by concluding
    that the waterside boundary lines of the respondents lots were an approximation
    of the high-water mark.

[13]

We
    disagree.  The trial judges review of the deed, plan, and role of John
    Armitage, who happened to sign the plan in his role as reeve of the Township of
    Torbolton, is, in our view, a supportable analysis.  In any event, it is far
    removed from being a palpable and overriding error.

[14]

Fourth,
    the appellant contends that the trial judge erred by relying and placing undue
    weight on irrelevant and immaterial evidence in determining the intent of the
    original subdividers.

[15]

We
    do not accept this submission.  The evidence of George Kennedy and Dr. Roland
    Armitage was of some probative value about the intention of the original
    subdividers and was properly used by the trial judge.

[16]

For
    these reasons, we would dismiss the appeal.

B.

The cross-appeal

[17]

The
    cross-appellants contend that the trial judge erred in awarding costs against only
    the corporate defendant and in refusing to award costs against the individual
    defendants.

[18]

In
    his brief costs endorsement, the trial judge explained this dichotomy in this
    fashion:

All of the evidence at trial was geared toward this ownership
    dispute between the Plaintiffs and the Corporate Defendant.  No evidence was
    adduced as to any of the named individual Defendants, nor were any submissions
    made.

Without the benefit of evidence or argument as to the role of
    the individual Defendants, I was left to speculate as to their role.  I assumed
    they were nominal Defendants, and it would be inappropriate in those
    circumstances to require them to pay costs.  No relief was sought from these
    individuals during the trial, they werent even mentioned in any meaningful way
    other than when the issue of costs arose.  As far as I am aware from the
    evidence tendered at trial and the argument made, this litigation was not made
    necessary by any position they took, but rather because of the position being
    advanced by the Corporate Defendant.

[19]

In
    our view, with the exception of Shane Hall, it was open to the trial judge to
    treat the respondents on the cross-appeal as nominal parties and to exercise
    his discretion and not award costs against them.

[20]

That
    said, Shane Hall was in a different position.  Contrary to the trial judges
    determination, there was both evidence at trial and submissions made that
    related to Shane Hall in both his personal and corporate capacities.  Though
    not a witness at trial, he was clearly significantly involved in the scheme
    that provoked the litigation and significantly engaged in the court
    proceedings, which included filing court documents in his personal capacity.
    Accordingly, we would allow the cross-appeal with respect to Shane Hall.

C.

Disposition

[21]

The
    appeal is dismissed.  The cross-appeal with respect to Stanley Wallace, William
    England, Allan Keys, Catherine Keys and Vikki Storie is dismissed.  The cross-appeal
    with respect to Shane Hall is allowed.  The Judgment should be amended to read:

2.       AND THIS COURT ORDERS that the defendants 2219160
    Ontario Limited and Shane Hall pay the plaintiffs their assessed costs in the
    amount of $150,619.96.

[22]

The
    respondents are entitled to their costs of the appeal fixed at $11,000
    inclusive of disbursements and HST.  The cross-appellants have achieved some
    success on the cross-appeal and are entitled to costs fixed at $3,000 inclusive
    of disbursements and HST.

Released: October 16, 2013
    (J.C.M.)

J.C.
    MacPherson J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lauzon v. AXA Insurance
    (Canada), 2013 ONCA 664

DATE: 20131031

DOCKET: C56684

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Daniel Lauzon

Plaintiff (Appellant)

and

AXA Insurance (Canada), Darlene Skinner and Ron
    Williams

Defendants (Respondents)

and

The Corporation of the City of Waterloo

Third Party

Morris Manning, Q.C., for the appellant

Peter W. Kryworuk and Tyler A. Kaczmarczyk, for the
    respondents

Heard and released orally: October 29, 2013

On appeal from the order of Justice C. Stephen Glithero
    of the Superior Court of Justice, dated February 13, 2013.

By the Court:

[1]

Mr. Lauzon is an insured homeowner whose property was damaged by a flood
    in January 2008.  He made a claim against his insurer, AXA Insurance (Canada)
    (AXA), for the flood damage.  He provided AXA with a proof of loss for
    approximately $172,000.  However, the proof of loss provided only a summary of
    the heads of loss being claimed with some estimated costs.  There was no
    documentation to support or explain the amounts claimed.

[2]

AXA initiated the appraisal process under s. 128 of the
Insurance
    Act
, R.S.O. 1990, c. I.8 (the Act). Because Mr. Lauzon refused to attend
    an examination under oath or to answer any questions relating to the quantum of
    claimed losses, AXA moved for an order compelling him to be examined on the
    scope and quantum of his damages, and to produce documentation in support of
    his claim (the Motion).  A second motion was also disposed of but that motion
    is not the subject of this appeal.

[3]

By order dated February 13, 2013 (the Order), the Motion was granted
    and Mr. Lauzon was ordered to produce documentation in support of his claim and
    to submit to an examination on the scope and quantum of his damages.

[4]

By order dated May 27, 2013 (the Costs Order), AXA was awarded costs
    of the Motion.

[5]

Mr. Lauzon appeals.  He claims that the motions judge lacked
    jurisdiction to make the Order because AXAs invocation of the appraisal
    process extinguished its right to examine him.  He also seeks to appeal the
    Costs Order.

[6]

We do not accept these submissions and would dismiss the appeal.

[7]

The motions judge gave thorough, compelling reasons for the Order.  We
    agree with those reasons, which can be summarized as follows.

[8]

The appellants proof of loss is substantially deficient and falls
    far short of that required.

[9]

Statutory Condition 6 of the AXA policy requires the insured, where the
    loss or damage is covered by the contract, to give a complete inventory of the
    destroyed and damaged property and to give the details associated with the
    amount of the loss claimed.  This was not done.

[10]

Further,
    part ix of the Additional Conditions section of the AXA policy, entitled
    Duties After Loss, requires the insured to submit to examinations under
    oath.  The fact that the insurer invoked the appraisal process in an attempt to
    resolve issues related to the loss does not oust its contractual right to
    compel the appellant to attend to be examined.

[11]

If
    the appellants position were accepted, resort to the appraisal process would
    oust the insurers contractual right to examine the insured under oath, thereby
    effectively insulating the insured from having the quantum of his or her claim
    inspected.  There is no basis on which to oust the insurers contractual right
    to examine the insured under oath on his or her claim.

[12]

Further,
    the court has the jurisdiction to require Mr. Lauzon to attend for
    examination.  Support for this can be found in
Baig v. Guarantee Co. of
    North America
(2007), 88 O.R. (3d) 161 (C.A.).

[13]

As
    well, the court has inherent jurisdiction to make such procedural orders as are
    necessary to give effect to the statutory appraisal scheme in the Act and to
    prevent an interpretation that flies in the face of the basic concepts of
    modern litigation, namely, to prevent adjudication by ambush, to promote
    efficient and meaningful discovery as a means of reaching a just result, and to
    equip both sides (as well as the umpire in the present case) with the
    information needed to present a full answer and defence.

[14]

We
    would not accede to the appellants request that we grant leave to appeal the
    Costs Order.

[15]

Leave
    to appeal a costs order will not be granted, save in obvious cases where the
    party seeking leave convinces the court that there are strong grounds upon
    which the appellate court could find that the judge erred in exercising his [or
    her] discretion:  see
Brad-Jay Investments Ltd. v. Village Developments
    Ltd.
(2006)
, 218 O.A.C.
    315 (C.A.), at para. 21.

[16]

We
    see no basis for granting leave.  The appellant has not shown any error in the
    motions judges exercise of discretion.

DISPOSITION

[17]

Accordingly,
    the appeal is dismissed with costs to the respondent fixed at $7,000, inclusive
    of disbursements and applicable taxes.

Released: October 31, 2013 (J.C.M.)

J.C. MacPherson J.A.

E.E. Gillese J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Leger v. Tittarelli, 2013 ONCA 613

DATE: 20131010

DOCKET: C56201

Gillese, Juriansz and Strathy JJ.A.

BETWEEN

Dennis Leger

Applicant (Appellant)

and

Joseph Tittarelli

Respondent (Respondent)

W. Graydon Sheppard, for the appellant

Michael Bordin, for the respondent

Heard and released orally: September 27, 2013

On appeal from the judgment of Justice David Samuel Crane
    of the Superior Court of Justice, dated September 19, 2012.

ENDORSEMENT

[1]

The appellant appeals against a judgment granted, after a trial of
    issues, determining that a real estate partnership between the parties was
    never dissolved and that the respondent was entitled to an accounting of the partnership.
    In coming to these conclusions, the trial judge held that the respondents
    right to an accounting was not time-barred.

[2]

In determining these issues, the trial judge made findings of fact on
    the basis of the conflicting affidavit and
viva voce
evidence. In
    particular, he found that the respondent held legal title to the property in
    trust for the partnership and that the appellants entitlement to a transfer was
    subject to an accounting of their contributions to the partnership. Any
    resolution of the appellants claim to a vesting order would have to await that
    accounting.

[3]

The trial judges findings on these issues are supported by the evidence
    and the appellant has identified no palpable or over-riding error that would
    warrant this courts intervention.

[4]

We would not give effect to the appellants submission that the
    respondents claim for unpaid debts was not properly before the court. The
    order directing a trial of the issues provided that the parties affidavits
    were to be treated as pleadings. The issue was squarely raised in the
    respondents affidavit sworn April 14, 2008, at paras. 14, 15, 24-27.

[5]

Nor do we agree that the trial judge erred in finding that the equitable
    doctrine of
laches
did not apply. Neither party took steps to obtain an
    accounting, but both made efforts to resolve their outstanding obligations. In
    light of the trial judges conclusion that the partnership had not been
    dissolved, and was continuing, the parties remained fiduciaries and each had an
    obligation to account. There is nothing inequitable in the circumstances in
    requiring them to do so.

[6]

I will add that we do not agree with the submission of the appellants
    counsel that the judgment for an accounting is one-sided or confined to the appellants
    obligation to account. In any case, that issue is properly a matter to be
    raised on a motion for directions under para. 4 of the judgment under appeal.

[7]

For these reasons, the appeal is dismissed, with costs fixed at $10,000
    all-inclusive.

E.E. Gillese
    J.A.

R. Juriansz J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mortazavi v. University of
    Toronto, 2013 ONCA 655

DATE: 20131029

DOCKET: C56058

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Houman Mortazavi and Mojgan Yousefi

Plaintiffs (Appellants)

and

The University of Toronto, Adonis Yatchew, Arthur
    Hosios, Martin Osborne, Jon Cohen, Brian Corman, Berry Smith, Heather Kelly,
    Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl
    Misak, Ellen Hodnett, Angela Hildyard, Hamish Stewart, Joan E. Foley and
    Isfahan Merali

Defendants (Respondents)

Houman Mortazavi, appearing in person and on behalf of
    Mojgan Yousefi

Robert A. Centa, for the respondents The University of
    Toronto, Adonis Yatchew, Arthur Hosios, Martin Osborne, Jon Cohen, Brian
    Corman, Berry Smith, Heather Kelly, Elizabeth Smyth, Jane Alderdice, Ralph
    Scane, Edith Hillan, Jill Matus, Cheryl Misak, Ellen Hodnett, Angela Hidyard,
    Joan E. Foley and Isfahan Merali

William E. Pepall, for the respondent Hamish Stewart

Heard and released orally: October 28, 2013

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated August 27, 2012.

ENDORSEMENT

[1]

The appellants Houman Mortazavi and Mojgan Yousefi, two former doctoral
    students at the respondent University of Toronto, appeal from the order of
    Belobaba J. of the Superior Court of Justice dated August 27, 2012, striking
    their 187 page Statement of Claim in its entirety without leave to amend.

[2]

The appellants concede that the motion judge did not err by striking
    their Statement of Claim under Rule 25 as an abuse of process.  However, they
    assert that he erred by not granting them leave to file an amended Statement of
    Claim, much narrower than their original Statement of Claim, in which they
    would plead the following causes of action: negligence, breach of contract,
    breach of the
Ontario Human Rights Code
, misfeasance in public office,
    and conspiracy.

[3]

The starting point is recognition that the decision whether or not to
    grant leave to amend a pleading is a discretionary one.  An appellate court
    should interfere with such a decision only if the motion judge erred in
    principle or acted unreasonably in the exercise of his discretion: see
Grigonis
    v. Toronto Boardsailing Club
, 2010 ONCA 651, at para. 5.

[4]

We see no basis for interfering with the motion judges exercise of
    discretion in this case.  The original Statement of Claim was long, convoluted,
    repetitive and confusing.  Crucially, once the 187 pages is pruned to its
    essential core  not an easy task  what is left is an attack on a series of
    academic decisions relating to admission, enrolment, leave of absence, grades,
    and appeals.  In these circumstances, the motion judge had ample justification
    to conclude, as he did, that the lawsuit for the tort or the breach of
    contract is nothing more than an indirect attempt to appeal what is an internal
    academic decision when the proper procedure is judicial review.  This
    statement applies with equal force to the other substantive claims advanced by
    the appellants.

[5]

The appellants also seek to set aside the motion judges costs awards of
    $15,000 for the respondent university and $10,000 for the respondent Professor
    Hamish Stewart.  We decline to do this.  In our view, the costs award was an
    entirely appropriate one which took explicit account of the appellants student
    status.

[6]

The appeal is dismissed.  Leave to appeal the costs award is refused.

[7]

The respondents are entitled to their costs of the appeal fixed at
    $12,500 for the university and $7,500 for Professor Stewart, inclusive of
    disbursements and HST.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

C.W.
    Hourigan J.A.