COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Bank of Canada v. Astoria
    Organic Matters Ltd., 2019 ONCA 269

DATE: 20190408

DOCKET: M50086 (C65512)

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Business Development Bank of Canada

Applicant

and

Astoria Organic Matters Ltd. and Astoria Organic
    Matters Canada LP

Respondents

Melvyn L. Solmon, Frank Bennett and Rajiv Joshi, for the
    moving party SusGlobal Energy Belleville Ltd.

Steven Graff and Miranda Spence, for the responding
    party BDO Canada Ltd.

Heard: February 15, 2019

On motion to set aside the orders of Justice David Watt
    of the Court of Appeal for Ontario, dated December 10, 2018.

Zarnett J.A.:

Introduction

[1]

A receiver is appointed under both Canadas
Bankruptcy
    and Insolvency Act
, R.S.C. 1985, c. B-3 (
BIA
), and Ontarios
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
). The receivership
    order contains a leave to sue provision under which the receiver cannot be
    sued without consent or leave of the court. What appeal route is available to a
    party who has been denied permission to sue? Is the appeal governed by the
BIA
,
    which provides for appeals as of right only in some cases, requires leave to
    appeal in other cases, and sets a short time limit for an appeal or a request
    for leave to appeal? Or is the appeal governed by the
CJA
, under which
    final orders may be appealed as of right to this court within a longer time
    limit than that in the
BIA
?

[2]

The moving party SusGlobal Energy Belleville
    Ltd. (SusGlobal) wishes to appeal orders of the Superior Court that:

a)

denied SusGlobal leave to sue the responding party BDO Canada Ltd. (BDO)
    in its capacity as court-appointed receiver of Astoria
Organic Matters
    Ltd. and Astoria Organic Matters Canada LP
; and,

b)

denied SusGlobals request to re-open its original application for leave
    so that it could file fresh evidence.

[3]

On a motion before a single judge of this court
    (the chambers judge), SusGlobals attempt to appeal was effectively
    terminated. The basis of the chambers judges decision was that the
BIA
,
    not the
CJA
, governed SusGlobals appeal; the provisions of the
BIA
providing for appeals as of right were not applicable to the appeal; and no grounds
    for granting leave to appeal existed.

[4]

On this motion, SusGlobal challenges the
    decision of the chambers judge, raising only the issue of the correctness of
    the conclusion that the applicable appeal route is under the
BIA
, not
    the
CJA
. It argues that solely the
CJA
is applicable to its
    appeal.

[5]

I would dismiss SusGlobals motion. The proper appeal route is
    the
BIA
when the order sought to be appealed was made in reliance on
    jurisdiction under the
BIA
. That is the case here. The Superior Court
    dismissed SusGlobals request to sue the receiverthe dismissal SusGlobal
    wishes to appealin reliance on the leave to sue provision in the receivership
    order. The courts authority to include that provision in the receivership
    order flowed by necessary implication from the statutory power to appoint a
    receiver under s. 243(1) of the
BIA
. I recognize that the
CJA
also provided such authority as part of the statutory power in s. 101 to
    appoint a receiver. But since authority for the leave to sue provision is found
    both in the
BIA
and the
CJA
, and since the receiver was appointed
    under both statutes, the appeal is governed by the
BIA
as a matter of
    paramountcy.

Background

[6]

Business Development Bank of Canada was a
    secured creditor of Astoria Organic Matters Ltd. and Astoria Organic Matters
    Canada LP (Astoria). Upon Astorias insolvency, the Bank applied for an order
    under s. 243(1) of the
BIA
and s. 101 of the
CJA
appointing BDO
    as receiver of Astoria. On April 13, 2017, Hainey J. granted that request.
    The order appointing BDO as receiver (the receivership order) provided in
    relevant part as follows:

2. THIS COURT ORDERS that pursuant to section
    243(1) of the
BIA
and section 101 of the
CJA
, BDO Canada Limited is hereby appointed Receiver, without security,
    of all of the assets, undertakings and properties of the Debtors acquired for,
    or used in relation to a business carried on by the Debtors, including all
    proceeds thereof (the Property)

3. THIS COURT ORDERS that the Receiver is
    hereby empowered

(l) to sell, convey,
    transfer, lease or assign the Property or any part or parts thereof out of the
    ordinary course of business

8. THIS COURT ORDERS that no proceeding or enforcement process
    in any court or tribunal (each, a Proceeding), shall be commenced or
    continued against the Receiver except with the written consent of the Receiver
    or with leave of this Court.

[7]

Paragraph 8, which is at the heart of this
    appeal, is identical to the paragraph of the same number included in the
    Commercial List of the Superior Court of Justices Model Receivership Order.

[8]

BDO, as court-appointed receiver, sold assets to
    SusGlobal under an Asset Purchase Agreement dated July 27, 2017. Shortly after
    closing SusGlobal complained about the amount of raw organic waste accumulated inside
    one of the facilities it had purchased, and the expenses of about $750,000 it
    had to incur as a consequence. SusGlobal claimed BDO had breached obligations owed
    to it and was responsible to compensate SusGlobal for its expenses. BDO denied
    responsibility on multiple bases, including the As is Where is clause in the
    Asset Purchase Agreement.

[9]

SusGlobal brought an application for permission
    to sue BDO under the leave to sue provision in para. 8 of the receivership
    order. On May 17, 2018, McEwen J. dismissed the application, finding that SusGlobals
    allegations were not supported by evidence disclosing a
prima facie
case. On November 8, 2018, McEwen J. refused SusGlobals request to reopen the application
    to allow SusGlobal to file fresh evidence.

[10]

SusGlobal filed appeals from both decisions. Its
    notices of appeal were timely if the
CJA
, under which there is a 30-day
    time limit for commencing an appeal, governed the appeal route. They were late
    if the
BIA
, which imposes a 10-day time limit, governed. The notices of
    appeal alleged various errors in McEwen J.s decisions. They also asserted that
    SusGlobal could appeal the decisions as of right to this court under s. 6(1)(b)
    of the
CJA
, because they were final orders of a judge of the Superior
    Court. In the alternative, if the
BIA
governed the appeal route, SusGlobal
    asked for an extension of time to comply with the time limits in the
BIA
and to appeal, or be granted leave to appeal, under it.

[11]

The narrow issue before us does not require a
    review of whether the grounds of appeal SusGlobal wants to raise have merit.
    All that is in issue on this review motion is the proper appeal route.

The Decisions of the Chambers Judge

[12]

SusGlobal moved before the chambers judge for
    orders:

a)

that its notice of appeal had been properly served and filed under
    s. 6 of the
CJA
; or,

b)

in the alternative, granting it an extension of time of 19 days in
    order to serve an appeal under s. 193(c) of the
BIA
; or,

c)

in the further alternative, granting it an extension of time of 19
    days to seek leave to appeal and granting leave to appeal pursuant to s. 193(e)
    of the
BIA
.
[1]

[13]

In a separate motion, SusGlobal moved before the
    chambers judge for orders:

a)

declaring that the appeal from the application judges decision
    denying SusGlobal leave to introduce fresh evidence is governed by s. 193(c) of
    the
BIA
, or in the alternative s. 6 of the
CJA
, such that
    leave to appeal is not required; or

b)

in the alternative, granting leave to appeal pursuant to s. 193(e)
    of the
BIA
.

[14]

The chambers judge dismissed the motions. He
    held that the
BIA
was the governing authority for the appeal, not the
CJA
;
    the root authority under which BDO was appointed was s. 243(1) of the
BIA
;
    appeals from decisions or orders made in proceedings instituted under the
BIA
are governed by the
BIA
, not the
CJA
; and the reference in the
    receivership order to the
CJA
did not have the effect of ousting the
BIA
as the source of appellate authority, nor could it as a matter of federal
    paramountcy.

[15]

The chambers judge went on to hold that SusGlobals
    appeals did not fit within any of the grounds in the
BIA
that permit
    appeals to this court as of right, including s. 193(c) of the
BIA
, cited
    by SusGlobal. Nor was the chambers judge prepared to exercise his discretion to
    grant leave to appeal under s. 193(e) of the
BIA
. Accordingly, he held
    that in a case where there was no right to appeal under the
BIA
and
    where granting leave to appeal under the
BIA
was not warranted, no
    extension of time to appeal or seek leave was warranted. He also held that
    there was no reviewable error in the application judges discretionary decision
    not to admit SusGlobals proposed fresh evidence.

[16]

SusGlobal does not challenge the conclusions of
    the chambers judge referred to in para. 15 above. Instead, it argues that those
    conclusions are derivative of his conclusion about which statute governs the
    appeal route. SusGlobal argues that the
CJA
governs the appeal route.
    It follows, according to SusGlobal, that it did not require leave to appeal or
    an extension of time, because its appeal was as of right under the
CJA
and
    was filed in time
.

The Positions of the Parties

[17]

SusGlobal does not contest that the receivership
    order was properly made and the receiver properly appointed, including under
    the
BIA
. It argues that power exists under both the
BIA
and the
CJA
to appoint a receiver, and both were explicitly referred to in,
    and formed the basis for, the receivership order. What is in issue, it argues,
    is the source of the authority for the leave to sue provision in the
    receivership order. SusGlobal argues that, since the Supreme Court of Canada
    held in
Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd.
,
    2015 SCC 53, [2015] 3 S.C.R. 419, at paras. 68 and 73, that provincial laws
    governing receivers were not rendered inoperative by s. 243 of the
BIA
,
    a receivership order may properly contain provisions authorized only by provincial
    law, in addition to provisions authorized by the
BIA
. As long as there
    is no operational conflict between the provincial and federal law and the
    provincial law does not frustrate the federal laws purpose, the provincial law
    will continue to apply alongside the federal law (here, s. 243):
Lemare
    Lake
, at paras. 15-17. The source of authority for a provision in the receivership
    order determines the proper appeal route from a disposition made under that
    provision.

[18]

SusGlobal argues that the source of the courts power
    to include the leave to sue provision in the receivership order is not found in
    the
BIA
. The
BIA
extends that kind of protection in s. 215,
    but the scope of the protection does not include the type of receiver appointed
    here. Rather it refers to, among other persons, interim receivers who may be
    appointed under other provisions of the
BIA
, such as ss. 46(1) and
    (2). The
BIA
extends other protections to receivers in s. 251, which
    are not applicable here. SusGlobals position is that the sole source of the
    authority for including the leave provision in the receivership order must
    therefore be provincial law flowing from s. 101 of the
CJA
and the related inherent jurisdiction of the court
.

[19]

It follows, SusGlobal argues, that it is appealing
    a decision in which the motion judge gave effect to a
provision
of the receivership order that was made under the
CJA
,
    even if other aspects of the receivership order were authorized by the
BIA
.
    The appeal from such a decision should be governed by the
CJA
, and
    should lie as of right to this court.

[20]

BDO argues that the proceedings giving rise to
    and arising out of the receivership order are
BIA
proceedings; the
    reference in the receivership order to the

CJA
was unnecessary.
    The
BIA
and not the
CJA
appeal provisions should apply to any
    appeal in such proceedings:
Canada (Superintendent of Bankruptcy) v. 407
    ETR Concession Company Limited
, 2012 ONCA 569,
295 O.A.C. 373,
at paras. 19-20. Parliament has constitutional authority over the
    procedure in all matters relating to bankruptcy:
Re Solloway Mills &
    Co. Ltd., In Liquidation, Ex Parte I.W.C. Solloway
(1934)
, [1935] O.R. 37 (C.A.), at
    pp. 43, 47
. It should not be necessary to parse each provision
    of the order to determine its source. The appeal provisions of the
BIA
and
CJA
are in operational conflict and therefore the
BIA
provisions prevail under the doctrine of paramountcy. If the appeal provisions
    do not conflict, it is because it is possible to comply with both schemes. The
    only way to comply with both schemes is to follow the more restrictive
    provisions in the
BIA
appeal route.

[21]

BDO further argues that if it is necessary to
    determine the source of the power to include the leave to sue provision in the
    receivership order, it is found in the
BIA
s. 243(1)(c) power to appoint
    a receiver to take any other action that the court considers advisable. Alternatively,
    it is found in s. 215, which includes receivers within the category of
    trustees, since s. 243(4) dictates that the only persons who can be appointed
    as receivers are trustees.

Relevant Statutory Provisions

BIA Provisions

[22]

The
BIA
provides fo
r the appointment of a receiver as a court officer:

243 (1)
Subject to subsection (1.1), on
    application by a secured creditor, a court may appoint a receiver to do any or
    all of the following if it considers it to be just or convenient to do so:

(a)
take possession of all or substantially
    all of the inventory, accounts receivable or other property of an insolvent
    person or bankrupt that was acquired for or used in relation to a business
    carried on by the insolvent person or bankrupt;

(b)
exercise any control that the court
    considers advisable over that property and over the insolvent person's or
    bankrupt's business; or

(c)
take any other action that the court
    considers advisable.

[23]

The
BIA
provides in s. 215
    that leave of the court is required for actions against certain persons:

215
Except by leave of the court, no
    action lies against the Superintendent, an official receiver, an interim
    receiver or a trustee with respect to any report made under, or any action
    taken pursuant to, this Act.

[24]

The
BIA
has a specific provision
    proscribing actions against a receiver in certain circumstances. Section 251
    provides:

251
No action lies against a
    receiver for loss or damage arising from the sending or providing by the
    receiver of a notice pursuant to section 245 or a statement or report pursuant
    to section 246, if done in good faith in compliance or intended compliance with
    those sections.

[25]

The
BIA
provides, as to
    appeals, as follows:

193
Unless otherwise expressly
    provided, an appeal lies to the Court of Appeal from any order or decision of a
    judge of the court in the following cases:

(c) if the property involved in the appeal exceeds in
    value ten thousand dollars;

(e) in any other case by leave of a judge of the
    Court of Appeal.

[26]

An appeal or motion for leave to appeal must be commenced within 10
    days of the making of the order or decision sought to be appealed: see rr.
    31(1), (2),

Bankruptcy and Insolvency General Rules
,
    C.R.C., c. 368
.

CJA Provisions

[27]

The
CJA
also provides for the appointment
    of a receiver. Section 101(1) provides that a judge of the Superior Court may,
    where it appears just or convenient to do so, appoint one by interlocutory
    order; s. 101(2) permits the court to include terms in such an order that are
    considered just:

101
(1)
In
the Superior Court of Justice, an
    interlocutory injunction or mandatory order may be granted or a receiver or
    receiver and manager may be appointed by an interlocutory order, where it
    appears to a judge of the court to be just or convenient to do so.

(2) An order
    under subsection (1) may include such terms as are considered just.

[28]

Section 6(1)(b) of the
CJA
provides for an appeal to this
    court from certain final orders of the Superior Court. Such an appeal must be
    commenced within 30 days of the making of the order appealed from: see r.
    61.04(1),
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194
.

Analysis

(1)

Determining the appeal route requires determining the basis for the
    leave to sue provision in the receivership order

[29]

The question of how one determines the applicable
    appeal route when a receiver has been appointed under s. 243(1) of the
BIA
and under provincial law was addressed in
Industrial Alliance Insurance and
    Financial Services Inc. v. Wedgemount Power Limited Partnership
, 2018 BCCA
    283, 61 C.B.R. (6th)

196. There, a receiver was appointed under both
    the
BIA
and British Columbias
Law and Equity Act
, R.S.B.C.
    1996, c. 253. The receiver applied for a declaration that a third party (BC
    Hydro) did not have a unilateral right to terminate an agreement with the
    debtor. The British Columbia Supreme Court refused to stay the receivers
    application in favour of arbitration, and ruled that the agreement could not be
    terminated. BC Hydro sought to appeal. In holding that the
BIA
appeal
    route governed, Groberman J.A. stated, at para. 21:

I acknowledge that, in a case such as the present one, where
    relief is sought under both common law equitable principles and the
Law and
    Equity Act
as well as under the
Bankruptcy and Insolvency Act
,
    there can be some question as to whether the appeal provisions of the
Bankruptcy
    and Insolvency Act
are engaged. In my view, the answer depends on
whether
    the order under appeal is one granted in reliance on jurisdiction under the
Bankruptcy
    and Insolvency Act
. Where it is, the appeal provisions of that statute
    are applicable. [Emphasis added.]

[30]

After finding that the orders sought to be
    appealed were made by a judge purporting to act pursuant to powers conferred
    by the
BIA
, Groberman J.A. held that the appeal provisions of the
BIA
applied: at para. 24.

[31]

I agree with that approach. Applying it here,
    the question is whether the leave to sue provision, under which McEwen J.
    exercised authority to dismiss SusGlobals application for leave to sue the
    receiver, was included in the receivership order pursuant to jurisdiction
    flowing from the
BIA
.

[32]

That question is one of statutory
    interpretation, informed by the historical understanding of the relationship between
    a leave to sue provision and a receivership, and by how the authority to
    include such provisions was understood before s. 243(1) was enacted, when
    appointments were made solely under provincial law. Before turning to the
    language of the
BIA
and the applicable interpretive principles, I
    discuss those background points.

(2)

The relationship between a leave to sue provision and a court-ordered receivership

[33]

Provisions of receivership orders that require consent
    or court permission for a court-appointed receiver to be sued have a long pedigree.
    Case law dating back almost a century considered it settled law that a
    receiver appointed by the Court cannot be sued without leave:
Trusts &
    Guarantee Co. v. Oakwood Clubs
(1931), 40 O.W.N. 581 (H.C.J.). Text
    writers consider the inclusion of such provisions to be common practice and
    customary, whether the receiver is appointed under the
BIA
or some
    other authority:

Bennett on Receiverships
, 3d ed. (Toronto:
    Thomson Reuters, 2011) at p. 283; L.W. Houlden, Geoffrey B. Morawetz &
    Janis P. Sarra,
Bankruptcy and Insolvency Analysis
, 4th ed.
(Toronto: Thomson Reuters,
    2009), The Bankruptcy and Insolvency Act at
L§26;
Halsburys
    Laws of Canada,
Receivers and Other Court Officers (2017 Reissue)
, at HRC-91,
    92. The inclusion of a leave to sue provision in Ontarios Model Receivership
    Order, British Columbias Model Receivership Order, the Alberta Template
    Receivership Order, and Nova Scotias Receivership Order, among others, illustrates
    their widespread, practically uniform use.

[34]

In
Ontario (Ontario Securities Commission)
    v. Gaudet
(1988), 65 O.R. (2d) 424 (H.C.J.), at p. 426, Reid J. described
    why a leave to sue provision is ubiquitous. It is essential to a
    court-appointed receivership:

A receiver is an officer of the court. The
    leave requirement is usual in an order appointing a receiver. For the proper
    and orderly conduct of a receivership it has traditionally been regarded as
    essential that the receiver be party to all proceedings against the assets
    under its care, and that the estate be protected against groundless or
    unjustified proceedings.
For these and other reasons the condition that
    leave be obtained is commonly included; indeed, I am not aware of any
    receivership order lacking one. In my view, it is essential.

[Emphasis
    added.]

[35]

In
Hamilton Wentworth Credit Union Ltd. v.
    Courtcliffe Parks Ltd.
(1995), 23 O.R. (3d) 781 (Gen. Div.), R.A. Blair J.
    (as he then was) provided further explanation about the essential relationship
    between leave to sue provisions and receiverships. He stated that a leave to
    sue provision is required to preserve the integrity of the courts role as
    supervisor over the preservation and realization of the assets within its
    administration. The court has an obligation, in ensuring the properly and
    orderly conduct of the receivership, to protect the estate from groundless or
    unjustified proceedings: at pp. 787-88. See also
Manitoba Securities
    Commission v. Crocus Investment Fund
, 2006 MBQB 192, at para. 14.

[36]

The essential and customary nature of a leave to
    sue provision in court-ordered receiverships informs the analysis of the source
    of the courts authority to include it.

(3)

The authority for leave to sue provisions
    under provincial law

[37]

Before Parliament amended the
BIA
in 2009
    to include s. 243(1), appointments of receivers under provincial legislation included
    leave to sue provisions. What was the source of the authority for those
    provisions?

[38]

In
Hamilton Wentworth
, which involved a
    receivership order made under the
CJA
, R.A. Blair J. situated the
    authority to include a leave to sue provision both in the courts inherent
    jurisdiction and in the statutory authority in the
CJA
to appoint the
    receiver. He stated, at p. 787:

An order requiring that leave be obtained before steps are
    taken that will affect the assets under that administration is therefore, in my
    view, within the jurisdiction of the court, by virtue of its inherent
    jurisdiction
and by virtue of its statutory jurisdiction respecting the
    appointment of receivers
where it appears to a judge of the court to be
    just [or] convenient to do so: the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, as amended. [Emphasis added.]

[39]

McCawley J. expressed a similar view in relation to the Manitoba
    equivalent of s. 101 of the
CJA
in
Crocus Investment
, at para. 14
:

In Canada, it is
    common practice in situations where the court has appointed a Receiver to
    prohibit legal proceedings against the debtor and the Receiver unless leave of
    the court is first obtained. In addition to the inherent jurisdiction of
    the court to control its process,
the authority to
    do so in this jurisdiction is found in s. 55 of
The Court
    of Queens Bench Act
, C.C.S.M. c. C280
. [Emphasis added.]

[40]

I take two main points from these authorities,
    given that s. 243(1) of the
BIA
was enacted against the backdrop of
    already existing provincial legislation authorizing the appointment of
    receivers.

[41]

First, there are similarities among the language
    of the
CJA
relied on in
Hamilton Wentworth
, the language of
The
    Court of Queens Bench Act
discussed in
Crocus Investment
, and
    the language of the
BIA
. They all speak of the court appointing a
    receiver when it considers it to be just or convenient to do so.

[42]

Second, although
Hamilton Wentworth Credit
    Union
and
Crocus Investment
relied on statutory authority
and
inherent
    jurisdiction, the Supreme Court of Canada has since clarified that, in the
    insolvency context, statutory authority is to be considered before inherent
    jurisdiction (see the discussion below at paras. 62-63). A finding of statutory
    authority makes any reference to inherent jurisdiction unnecessary.

(4)

In light of the principles of interpretation, s. 243(1) includes the
    authority for a leave to sue provision

[43]

Against that backdrop, I turn to s. 243(1) of
    the
BIA
. It provides that a court may appoint a receiverif it considers
    it to be just or convenient to do so. The receiver may be appointed to take
    any action the court considers advisable, including to take possession of property
    of the insolvent person, exercise control over that property and the insolvent
    persons business, etc.

[44]

The modern approach to statutory interpretation instructs a court to
    consider the words of a statute
in their entire
    context and in their grammatical and ordinary sense harmoniously with the
    scheme of the Act, the object of the Act, and the intention of Parliament:
Belwood
    Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change)
,
    2019 ONCA 70, at para. 39, citing
Montréal (City) v. 2952-1366
    Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141, at
    paras. 9-12, and
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R.
    27, at p. 41. While there is a presumption that the plain meaning of a
    statutes words reflect Parliaments intention, that plain meaning is only one
    aspect of the modern approach:
Belwood Lake
, at para. 42. The court
    must read statutory provisions in their entire context. This involves
    considering the history of the provision at issue, its place in the overall
    scheme of the Act, the object of the Act itself, and Parliament's intent both
    in enacting the Act as a whole, and in enacting the particular provision at
    issue:
Chieu v. Canada (Minister of Citizenship and Immigration)
,
    2002 SCC 3, [2002] 1 S.C.R. 84, at para. 34.

[45]

Since the modern approach to statutory interpretation is contextual,
    the fact that s. 243(1) of the
BIA
lacks express words to the effect that
    a court may include a leave to sue provision when appointing a receiver is the
    beginning, not the end of the analysis. A proper understanding of the sections
    words in their context and in light of the purpose of the legislation leads to
    the conclusion that Parliament must be taken, by necessary implication, to have
    clothed the court with the power to require leave to sue a receiver appointed
    under s. 243(1).

[46]

Parliament enacted s. 243(1) in the context of the legal landscape
    set out above. It is unlikely that Parliament would have authorized the court
    to appoint a receiver and at the same time excluded the power to do so with
    provisions considered to be essential to the courts role in a receivership. Further,
    Parliament legislated that a receiver should be appointed when just or convenient,
    using language also found, for example, in the
CJA
. The terms essential
    to a receivers appointment and to the courts role in a receivership inevitably
    inform a courts assessment of whether it may be just or convenient to appoint a
    receiver. It is therefore also unlikely that Parliament intended the court to
    appoint a receiver when just or convenient while depriving the court of the
    power to include an essential term in the appointment. A leave to sue provision
    is essential to a receivership; it is required to preserve the integrity of the
    courts role as supervisor of the receivership.

[47]

Reading s. 243(1) as providing the power to include
    a leave to sue provision accords with Parliaments purpose in enacting s.
    243(1), as set out by the Supreme Court in the course of its paramountcy
    analysis in
Lemare Lake Logging
.
Abella and
    Gascon JJ., writing for the majority, described the purpose of s. 243 as the
    establishment of
a regime allowing for the appointment
    of a national receiver, thereby eliminating the need to apply for the
    appointment of a receiver in multiple jurisdictions and increasing efficiency:
Lemare Lake
,
at paras. 45, 67
.

[48]

Since Parliaments purpose in enacting the
    provision was to eliminate the need for a patchwork of receivers appointed
    under provincial legislation, it follows that the courts power to appoint a
    national receiver under s. 243(1) of the
BIA
comprehends the power to
    include essential receivership terms. At the time that the two bills
    establishing and amending s. 243 received royal assent (Bill C-55 in 2005 and
    Bill C-12 in 2007), the courts power to include a leave to sue provision in a
    receivership order was firmly entrenched  leave to sue provisions were
    ubiquitous and were considered essential.
[2]
Parliament is presumed to have known the facts relevant to the conception and
    operation of its legislation: Ruth Sullivan,
Sullivan on the Construction
    of Statutes
, 6th ed. (Toronto: LexisNexis, 2014) at p. 205.

[49]

Further, accepting SusGlobals position would
    run counter to the purpose of s. 243(1). On SusGlobals argument, since a leave
    to sue provision can only be grounded in provincial authority, and since each
    provinces authority does not normally extend beyond that province, a national
    receiver appointed under the
BIA
would have to seek a leave to sue
    provision from a court in each province. This is exactly the patchwork scenario
    that s. 243(1) was enacted to avoid.

[50]

In my view, the power to include a leave to sue provision in a
    receivership order is thus necessarily implied by the statutory power to
    appoint a receiver in s. 243(1). In
ATCO Gas & Pipelines Ltd. v.
    Alberta (Energy & Utilities Board)
, 2006 SCC 4, [2006] 1 S.C.R. 140, at
    para. 51, Bastarache J. set out the rationale for the doctrine of jurisdiction
    by necessary implication:

The mandate of this Court is to determine and apply the intention
    of the legislature without crossing the line between judicial interpretation
    and legislative drafting. That being said, this rule allows for the
    application of the doctrine of jurisdiction by necessary implication;
the powers conferred by an enabling statute are construed to
    include not only those expressly granted but also, by implication, all powers
    which are practically necessary for the accomplishment of the object intended
    to be secured by the statutory regime created by the legislature
.
    [Emphasis added; citations omitted.]

See also
R. v. Cunningham
,
    2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 19-20.

[51]

Though
ATCO Gas
dealt with the enabling
    statute of an administrative tribunal and
Cunningham
dealt with a court
    established by statute, the same reasons for applying the doctrine of necessary
    implication in those contexts exist here. By expressly empowering a court, in
    the
BIA
,
to appoint a receiver as a court officer authorized to
    take a broad range of actions when just or convenient to do so, Parliament must
    be taken to have clothed the court with the power to make orders that are essential
    to the functioning of its officer, the court-appointed national receiver, and to
    the courts role in supervising it.

[52]

This view is fortified when one looks at the
    scope of what a receiver appointed under s. 243(1) of the
BIA
may be
    empowered to do. The breadth of that is informed, in part, by what courts
    considered an interim receiver could be empowered to do under the former s.
    47(2) of the
BIA
. As Moir J. noted in
Railside Developments Ltd. (Re)
,
    2010 NSSC 13, 62 C.B.R. (5th) 193, at para. 66, Parliament used, in s. 243(1),
    the general words of the former s. 47(2) that had applied to interim receivers.
    Prior to its amendment, s. 47(2) read as follows:

(2) The court may direct an interim receiver
    appointed under subsection (1) to do any or all of the following:

(a) take possession of all or part of the
    debtor's property mentioned in the appointment;

(b) exercise such control over that
    property, and over the debtor's business, as the court considers advisable; and

(c) take such other action as the court
    considers advisable.

[53]

In
GMAC Commercial Credit Corporation - Canada
    v. T.C.T. Logistics Inc.
, 2006 SCC 35, [2006] 2 S.C.R. 123, the Supreme
    Court commented on the breadth of the former s. 47(2), while also cautioning
    that the section was not open-ended, at para. 45:

These statutory parameters, though sufficiently
    flexible to authorize a wide range of conduct dealing with the taking,
    management, and eventual disposition of the debtor's property, are not
    open-ended. The powers given to the bankruptcy court under s. 47(2) are powers
    to direct the interim receivers conduct. That section does not, explicitly or
    implicitly, confer authority on the bankruptcy court to make unilateral
    declarations about the rights of third parties affected by other statutory
    schemes.

[54]

Reading s. 243(1) and the courts powers thereunder
    as sufficiently flexible to authorize a wide range of conduct dealing with the
    taking, management, and eventual disposition of the debtors property is
    consistent with the court having the power to include a leave to sue provision in
    a receivership order. A receiver directed by the court to take possession and
    control of property and to sell it, for example, may be subject to claims by
    those with whom the court has directed or authorized the receiver to deal. This
    is a central reason for the leave to sue provisions necessity.

[55]

Finding that s. 243(1) includes the power to authorize
    a leave to sue provision by necessary implication does not confer an open-ended
    power on the court. Though a leave to sue provision affects when third parties
    may sue the receiver, it does not eliminate the right to sue or involve making
    unilateral declarations about the rights of third parties affected by other
    statutory schemes. This is especially so given the low threshold for obtaining
    permission to sue: see
Holmes v. Schonfeld Inc.
, 2016 ONCA 148,
    at para. 29, citing
GMAC
, at para. 59
.

(5)

Sections 215 and 251 of the
BIA
do not alter the conclusion
    that the
BIA
provides the authority to include a leave provision in a
    receivership order

[56]

SusGlobal argues that Parliament specified, in
    s. 251, when a receiver is to be protected from suit, and that that contradicts
    the notion that the
BIA
authorizes a leave to sue provision. I
    disagree. Section 251 deals with circumstances under which a receiver cannot be
    sued at all. It does not displace the right of the court to include an essential
    term in a receivership order requiring court permission to launch claims for
    matters falling outside of s. 251.

[57]

SusGlobal also relies on the failure to
    specifically include a receiver in s. 215 to argue that s. 243(1) of the
BIA
does not authorize a leave to sue provision. In my view, even accepting that s.
    215 of the
BIA
does not specifically include receivers would not
    change the conclusion that s. 243(1) does authorize such provisions.

[58]

Section 215 provides that certain officials
    cannot be sued without court permission. Some of the enumerated officials, such
    as the Superintendent or an official receiver, are not appointed by court order
    (although some, such as official receivers, are deemed to be officers of the
    court): see ss. 5(1), 12(2). Trustees in bankruptcy can be empowered without a
    court order: see s.14. Even interim receivers, who are court-appointed, fill a
    role that is a creature of the
BIA
,
with specific statutory limits on their activities and powers: see for example
    s. 47.

[59]

Section 243(1) receivers, on the other hand, are
    court-appointed and take their powers from the court appointment order. And it
    is those types of receivers who, when appointed under other statutes, were
    historically clothed with customary and common terms essential to their
    appointment, such as that found in the receivership orders leave to sue
    provision. The
BIA
power of appointment carries with it the power to
    impose that type of term. It would be anomalous to read s. 215 as providing for
    the protection of the officials specified in it, while also
prohibiting
the court from including, in a s. 243(1)
BIA
appointment, a term
    essential to the very receivership s. 243(1) contemplates.

[60]

I also note, contrary to SusGlobals argument,
    that some cases have treated s. 215 as though it applied to receivers appointed
    under s. 243(1) of the
BIA:
see
Crate Marine Sales Ltd. (Re)
,
    2017 ONSC 178, 45 C.B.R. (6th) 267, at paras. 22, 59, and
Romspen
    Investment Corporation v. Courtice Auto Wreckers
, 2016 ONSC 1808, 36
    C.B.R. (6th) 141, at paras. 4, 55-57, revd but not on this point 2017 ONCA
    301,
138 O.R. (3d) 373,
leave to appeal refd [2017]
    S.C.C.A. No. 238. In
Romspen
, this court treated an appeal from a
    refusal to grant permission to sue as governed by the
BIA
appeal routes.
    Both
Crate Marine
and
Romspen
, however, did not deal with any
    argument that s. 215, due to its wording, should be taken not to apply to
    receivers appointed under s. 243(1). They did not address the arguments
    SusGlobal or BDO make here about that wording and therefore did not decide the
    issue. Given my conclusion that s. 243(1) authorizes the inclusion of leave to
    sue provisions in receivership orders, it is unnecessary to further deal with the
    s. 215 point here. The leave to sue provision can stand as authorized by the
BIA
without resort to s. 215. It is certainly not prohibited by s. 215.

(6)

Resorting to inherent jurisdiction is unnecessary

[61]

As noted above, SusGlobals argument is, in
    part, that inherent jurisdiction related to the
CJA
is a source of power
    for the leave to sue provision, and that this also takes the appeal route
    outside of the
BIA
. I do not agree that resort to inherent jurisdiction
    is necessary or that it would take the appeal route where SusGlobal wants it to
    go.

[62]

In
Century Services Inc. v. Canada (Attorney
    General)
, 2010 SCC 60, [2010] 3 S.C.R.
    60, at paras. 64-65,
the Supreme Court endorsed the hierarchical approach
    to interpreting insolvency legislation suggested by
Justice
    Georgina R. Jackson and Dr. Janis Sarra
 namely, that courts should
    first look to statutory authority, exhausting their statutory interpretive
    function before resorting to inherent jurisdiction:
Georgina
    R. Jackson & J. Sarra, Selecting the Judicial Tool to get the Job Done: An
    Examination of Statutory Interpretation, Discretionary Power and Inherent
    Jurisdiction in Insolvency Matters, in Janis P. Sarra, ed.,
Annual
    Review of Insolvency Law

2007
(Toronto: Thomson Reuters, 2008)
    at p. 42
. Although
Century

Services
involved an
    interpretive issue respecting the
Companies Creditors Arrangement Act
,

R
.S.C., 1985 c. C-36, Jackson
    and Sarras approach encompasses insolvency legislation more generally.

[63]

The Supreme Court endorsed Jackson and Sarras
    approach outside of the insolvency context in
Endean v. British Columbia
,
    2016 SCC 42, [2016] 2 S.C.R. 162. They cautioned that inherent jurisdiction
    should be relied upon sparingly, at para. 24:

The courts have recognized that, given the broad and loosely
    defined nature of these powers, they should be exercised sparingly and with
    caution:
Caron
, at para. 30. It follows that courts should first
    determine the scope of express grants of statutory powers before dipping into
    this important but murky pool of residual authority that forms their inherent
    jurisdiction. As The Honourable Georgina Jackson and Janis Sarra write, [i]t
    is only where broad statutory authority is unavailable that inherent
    jurisdiction needs to be considered as a possible judicial tool to utilize in
    the circumstances. [Citations omitted.]

[64]

Because of my conclusion that s. 243(1) confers
    power to include a leave to sue provision, considering inherent jurisdiction is
    unnecessary.

I note, however,
    that s. 183(1) preserves the inherent jurisdiction of the Superior Court
    sitting in
BIA
matters:
Kingsway General Insurance Company v. Residential
    Warranty Co. of Canada Inc. (Trustee of)
, 2006 ABCA 293, 25 C.B.R. (5th)
    38, at para. 19. Section 183(1) reads:

183 (1)
The following courts are invested with such
    jurisdiction at law and in equity as will enable them to exercise original,
    auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings
    authorized by this Act during their respective terms, as they are now, or may
    be hereafter, held, and in vacation and in chambers:

(a) in the Province of Ontario, the Superior Court of Justice.

[65]

Accordingly, referring to a power as flowing
    from inherent jurisdiction does not necessarily take an appeal out of the
BIA
stream. Because the power in question here is statutory, it is unnecessary to
    consider that issue further.

(7)

The
BIA
appeal route governs

[66]

Since para. 8 of the receivership order, the leave to sue provision,
    is authorized by the statutory authority to appoint a receiver in s. 243(1) of
    the
BIA
,
SusGlobals
    complaint loses its force. It does not matter that such a provision is or could
    also be grounded in the
CJA
power to appoint a receiver. As long as
    the
BIA
is one of the sources that authorizes the leave to sue provision,
    an appeal from an order made under it necessarily implicates a provision
    sourced in the
BIA
.

[67]

In cases like this, where the courts power may be grounded in the
BIA
or the
CJA
, the doctrine of paramountcy would prevent an appellant
    from resorting to the
CJA
appeal provisions as they are in operational
    conflict with those of the
BIA
in respect of timing and leave
    requirements. To the question May one appeal without leave and do so after 10
    days have expired? one enactment says yes and the other says no, meeting
    the test for operational conflict
:
see

Alberta
    (Attorney General) v. Moloney
,
2015 SCC 51, [2015] 3 S.C.R. 327
, at para. 19, citing
Multiple Access Ltd. v.
    McCutcheon
, [1982] 2 S.C.R. 161, at p. 191; see also
Lemare Lake
,
at paras. 18-19
.
The only
    manner in which the appeal provisions could be found not to conflict is if it were
    possible to comply with both schemes. Because the
BIA
provisions are
    more restrictive than the
CJA
provisions, complying with both schemes entails
    complying with the
BIA
provisions. Either way, SusGlobal was required
    to follow the
BIA
appeal route.

Conclusion

[68]

SusGlobal has failed to show an error in the
    underlying premise of the chambers judges decisions, namely that the
BIA
governed SusGlobals proposed appeals. That premise was correct. The authority
    that grounded the application judges refusal to grant SusGlobal leave to sue
    the receiver is found in both the
BIA
and
CJA
. Federal
    paramountcy dictates that the
BIA
appeal provisions govern. SusGlobals
    motion must therefore be dismissed.

[69]

BDO is entitled to its costs of the motion,
    fixed at $15,000 inclusive of disbursements and HST.

Released: April 8, 2019 (K.F.)

B. Zarnett J.A.

I agree. K. Feldman J.A.

I agree. David M. Paciocco
    J.A.

[1]

The requests for an extension of time under the
BIA
and for leave to
    appeal under the
BIA
were brought, respectively, under r. 31(1) of the
Bankruptcy and Insolvency General Rules
, C.R.C., c. 368, and s. 193(e) of the
BIA
, which specify that
    a single judge may grant the requested relief. The parties proceeded on the
    basis that the availability of that relief was wrapped up with the question of
    which route governed the appeal; hence the question of whether the appeal was
    properly under the
CJA
. BDO did not move to quash the appeal, which is relief only a panel
    of this court can grant.

[2]
Leave to sue provisions were contained in both Ontario and British Columbias
    2004 Model Receivership Order, for instance.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Civil Liberties Association v. Canada
(Attorney General), 2019 ONCA 342

DATE: 20190426

DOCKET: M50316 (C64841)

Strathy C.J.O., Benotto and Roberts JJ.A.

BETWEEN

Corporation of the Canadian Civil Liberties
    Association

Applicant (Appellant/Responding Party)

and

Her Majesty the Queen as represented by
the Attorney General of Canada

Respondent (Respondent/Moving
    Party)

Jonathan Lisus, H. Michael
    Rosenberg, Larissa Moscu and Charlotte-Anne Malischewski, for the responding
    party

Kathryn Hucal, John Provart
    and Bradley Bechard, for the moving party

Heard in writing: April 23, 2019

REASONS FOR DECISION

[1]

Following a constitutional challenge initiated
    by the Canadian Civil Liberties Association (CCLA), Marrocco A.C.J.S.C. (the
    application judge) found that ss. 31-37 of the
Corrections and Conditional
    Release Act
, S.C. 1992, c.

20
(
CCRA
) infringe
s. 7

of the
Canadian Charter of Rights and
    Freedoms
. The application judge declared the provisions invalid
    but suspended his declaration of invalidity until December 18, 2018. The
    Attorney General of Canada (AGC) moved before this court to extend the period
    of suspension. We granted an extension to April 30, 2019. The AGC now brings
    this motion for another extension of the suspension of invalidity, this time to
    November 30, 2019.

[2]

For these reasons, we grant a further extension,
    but only to June 17, 2019 on the condition that the independent fifth day
    review be implemented as explained below.

BACKGROUND

[3]

In 2015, the CCLA applied to the Superior Court
    of Justice alleging that ss. 31-37 of the
CCRA,
which authorize
    administrative segregation in penitentiaries across Canada,

infringed ss.
    12, 11(h) and 7 of the
Charter
. The CCLA was partially successful. On
    December 18, 2017, the application judge declared that
ss. 31
-
37

of the

CCRA
contravene
s. 7

of the
Charter

and are
    of no force and effect.
[1]
He found the provisions to be inconsistent with the principles of fundamental
    justice because
they

did not provide for meaningful
    independent review within five working days of the decision to place an inmate
    in administrative segregation.

[4]

The application judge suspended the declaration
    of invalidity for 12 months from December 18, 2017 to enable Parliament to
    enact an appropriate legislative response: see
Corporation of the Canadian
    Civil Liberties Association v. Her Majesty the Queen
, 2017 ONSC 7491, 140
    O.R. (3d) 342, at para. 277.

[5]

The AGC did not appeal the application judges decision.
[2]
Nor did the government
    implement a remedy specific to the
Charter
violations found by the
    application judge. Instead, ten months later, in October 2018, the government
    introduced Bill C-83,
An Act to amend the Corrections and Conditional
    Release Act and another Act
.

[6]

According to the AGC, Bill C-83 would eliminate
    administrative segregation and replace it with structured intervention units,
    which it says would emphasize opportunities for meaningful human contact,
    participation in programs and access to services . The AGC suggested that the
    characteristics of a fair and independent review of placement decisions under
    Bill C-83 may be different from those under the current legislation. In short,
    Bill C-83 was proposed to overhaul the administrative segregation regime set
    out in the
CCRA
.

[7]

Ontario is not the only jurisdiction to have considered
    a challenge to the
CCRA
. On January 17, 2018, the Supreme Court of
    British Columbia granted a declaration that
ss. 31

and
33
-
37
of the
CCRA

infringed
ss. 7

and
15

of the
Charter
:
see
British Columbia Civil Liberties
    Association v. Canada (Attorney General)
,

2018 BCSC 62
, 402 C.R.R. (2d) 53. It ordered that the declaration of invalidity
    be suspended for a period of 12 months, to January 17, 2019. The AGC appealed the
    BCSCs decision to the Court of Appeal for British Columbia and, in the
    interim, applied for an extension of the period of suspension to July 31, 2019.
    The BCCA granted an extension to June 17, 2019, subject to conditions that the AGC
    comply with specific orders issued by the BCCA to address constitutional
    concerns: see
British Columbia Civil Liberties Association v. Canada
    (Attorney General)
, 2019 BCCA 5, at paras. 34-38.

First request for extension: November 2018

[8]

The presentation of Bill C-83 was the basis for the
    AGCs request to this court to extend the suspension of the application judges
    declaration of constitutional invalidity until July 31, 2019. The AGC made this
    request on November 21, 2018, following the hearing of the CCLAs appeal of the
    application judges decision.

[9]

At that time, we advised counsel that we were
    concerned by the absence of any explanation for Canadas delay in addressing
    the constitutional infirmity identified in the application judges decision;
    the absence of information concerning any interim measures that have been or
    might be taken to address or mitigate the breach of
Charter

rights
    pending the implementation of new legislation; and the absence of any
    explanation of how the proposed legislation would address the constitutional
    infirmity identified by the application judge. We requested additional written
    submissions from both parties.

[10]

The submissions by the AGC did not address our
    concerns. The delay was not explained, interim measures to remedy the constitutional
    breach identified were not proposed, and it was not clear how Bill C-83 would
    address the problem. Instead, the AGC asserted that the precise nature of the
    review process in Bill C-83 was a work in progress and the regulatory scheme had
    yet to be established.

[11]

With reluctance, we granted the extension but
    only to April 30, 2019: see
Canadian Civil Liberties Association v. Canada
    (Attorney General)
, 2018 ONCA 1038.

Second request for extension: April 2019

[12]

Still relying on Bill C-83, the AGC now asks
    this court to further extend the suspension of the application judges declaration
    of constitutional invalidity, this time until November 30, 2019.
[3]
The AGC explains the basis for its request at para. 39 of its
    factum:

Bill C-83 is complex legislation
    proposing to bring about important changes to Canada's federal correctional
    regime. The significant legal, policy, operational, infrastructure and resource
    considerations involved in the development and implementation of the Bill, as
    well as the time Parliament has used to fully debate and consider submissions
    on it, including from interested stakeholders, are due their proper deference.
    The length of the extension of the suspension is not undue in these exceptional
    circumstances and would not compromise public confidence in the administration
    of justice. To the contrary, it would respect the constitutional conversation
    that is underway with the legislative response the government has engaged in
    with Bill C-83.

[13]

CCLA
    opposes the extension and asks that the motion be dismissed.  In the
    alternative it requests that no stay be extended past June 28, 2019 and that,
    in the interim, Canada be required to implement a practice of an independent
    fifth day review.

DECISION

[14]

The validity or effectiveness of Bill C-83 is
    not before us. The complexity outlined above is relied on by the AGC as
    justification for the further extension. Extensive evidence is put forward
    outlining the legislative process, the steps necessary to implement the Bill
    including cost, staff training, infrastructure, public consultations and so on.
    But this court remains where we were when the first extension was argued: we
    have virtually nothing to indicate that the constitutional breach identified by
    the application judge is being or will be addressed in the future.

[15]

The evidence discloses that in January 2019,
    more than one year after the application judge released his decision, there
    were discussions about how the fifth-day review could be operationalized.
    Nothing more has been done to remedy the breach in the interim, and it remains
    unclear how Bill C-83 will remedy it if enacted.

[16]

The AGCs motion would, if granted, extend the
    suspension of the application judges declaration of invalidity to nearly two
    years from the date the breach was found. This is unacceptable. In all the
    circumstances outlined above, a remedy to the lack of an independent fifth day
    review of segregation placement decisions does not require the lengthy
    extension the AGC is seeking.

[17]

Nor do the factors articulated in
Canada
    (AG) v. Descheneaux,
2017 QCCA 1238, [2017]
    4 C.N.L.R. 1 weigh in favour of granting an unconditional extension
:
there is no change in circumstances to justify the extension; there is no
    potential threat to the rule of law or the public by depriving Canada of the
    ability to order administrative segregation without independent review; it is
    unclear if the proposed legislation will remedy this breach; and a further lengthy
    and unconditional extension would compromise public confidence in the administration
    of justice and the courts ability to act as guardian of the Constitution.

[18]

This leaves open the possibility of a short extension
    with conditions imposed by the court. The AGC does not oppose a conditional extension
    similar to that issued by the BCCA when it extended the BCSCs suspended
    declaration of invalidity to June 17, 2019. The BCCA imposed numerous terms on
    its extension, including a fifteenth day review of segregation placement
    decisions by a person outside the sphere of influence of a prisons institutional
    head.

[19]

The AGC indicates that Canada is currently in
    compliance with the BCCAs order. The AGC also states that Canada would comply
    with an Order to conduct an internally independent fifth-working day review of
    administrative segregation pending implementation of Bill C-83.

[20]

Unlike
    its first request for an unconditional extension of the suspension, the AGC now
    invites the court to impose a condition on the extension. Clearly, Canada now
    accepts that an independent fifth day review can be implemented pending passage
    of Bill C- 83. Regrettably this was not the case on its first request for
    an extension in November 2018 and so the breach has been unnecessarily
    prolonged.

[21]

That
    said, we are persuaded that a brief conditional extension of the suspension is
    appropriate in the circumstances of this case so that the fifth working day
    review can quickly begin.

[22]

Consequently, it is ordered  again with great
    reluctance  that one final extension be granted to June 17, 2019 on the
    condition that Canada implement an independent fifth day review of
    administrative segregation before that date.
The Correctional Service of
    Canada must establish a system of review whereby no inmate will be kept in
    administrative segregation for more than five working days without the
    placement decision being reviewed and upheld by a senior official who is
    neither the institutional head of the institution where the inmate is
    incarcerated nor a person who is subordinate to that institutional head.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

L.B. Roberts J.A.

[1]
The corresponding Order was issued and entered on February 6, 2018.

[2]
T
he CCLA, however, did appeal the decision to this court on
    the basis that the application judge erred in dismissing the s. 12 and s. 11(h)
Charter
claims. On March 28, 2019, this court allowed the appeal in
    part:
Canadian Civil Liberties Association v. Canada (Attorney General)
,
    2019 ONCA 243.

[3]
The request was actually to November 31, a date that does not exist.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian National Railway Company v. Crosslink
    Bridge Corp., 2019 ONCA 349

DATE: 20190430

DOCKET: C66047

Doherty, Paciocco and Zarnett JJ.A.

BETWEEN

Canadian National
    Railway Company

Plaintiff

and

Crosslink Bridge Corp.,
    Andrew Penuvchev
, Zoran Cocovski, also known as Zoran Cocov and the law
    firm of Thompson Dymond

Defendants (
Appellants
)

Geoff R. Hall and Adam Goldenberg, for the appellants

Michael R. Kestenberg and David S. Lipkus, for the third
    party respondent Philip Thompson

Peter J. Osborne and Jessica Starck, for the third party
    respondent McMillan LLP

Heard: April 17, 2019

On appeal from the order of Justice Dietrich of the
    Superior Court of Justice, dated November 21, 2018, reported at 2018 ONSC 5475.

REASONS FOR DECISION

[1]

In October 2008, the appellant, Crosslink Bridge Corp. (Crosslink),
    purchased a tract of railway land in Niagara Falls from CDN Railway Co. (CN).
    CN took a mortgage back as part of the purchase price. The appellant, Dr.
    Andrew Penuvchev, one of the owners of Crosslink, provided a personal guarantee
    on the mortgage. In November 2012, Crosslink defaulted on the mortgage and CN sued
    on the mortgage and on the guarantees.

[2]

The appellants responded to CNs lawsuit by bringing an
    application for an order under s. 197 of the
Environmental Protection Act
, R.S.O. 1990, c. E-19 (EPA) for an order voiding
    the sale of the railway lands. The appellants claimed that CN had failed, as
    required by s. 197(1) of the
EPA
to provide the appellants, prior to the sale, with a
    copy of the Directors order, issued under s. 18 of the EPA that had been
    registered on title prior to the sale. The application judge found that Crosslink,
    or its solicitors, had received a copy of the Directors order and dismissed
    the application. This court affirmed that decision:
Crosslink
    Bridge Corp. v. Canada National Railway
,
    2013 ONSC 6540, affd 2014 ONCA 247.

[3]

The appellants also
    defended CNs claim and commenced a third party action. In the third party
    claim, the appellants sued McMillan LLP, Philip Thompson and Marssa Giahi (the
    respondents) for solicitors negligence in respect of Crosslinks purchase of
    the railway lands from CN. The respondents successfully moved for summary
    judgment, dismissing the third party claim.

[4]

This is an appeal from
    the dismissal of that claim as against all of the respondents.

[5]

Crosslink retained
    McMillan to provide advice in respect of a draft agreement for the purchase of
    the property prepared by CN in January 2007. Crosslink retained Mr. Thompson
    and Ms. Giahi about 18 months later to close a transaction involving the
    purchase of the same land. The negligence claims against all three respondents relate
    essentially to their failure to properly advise the appellants of the Directors
    order that was registered on title on the land as of December 21, 2006, and the
    failure to advise Crosslink of the ramifications of that order. The analysis of
    the claims, however, requires a separate consideration of the claim against
    McMillan LLP on the one hand, and the claims against Mr. Thompson and Ms. Giahi
    on the other.

[6]

The grounds of appeal
    fall into two categories. First, the appellants submit that the motion judge
    erred in her application of the principles governing rule 20 and in her
    understanding of the fact-finding powers available under that provision.
    Second, the appellant submits that even if the motion judge properly understood
    and applied the rule 20 principles, she erred in finding that there was no
    genuine issue for trial. Counsel contends that the nature and scope of the duty
    owed by the respondents to the appellants in the particular circumstances could
    only be determined at a trial. Counsel further submits that crucial questions
    of fact, such as whether the appellants were made aware of the Directors
    order, required a trial. Finally, counsel contends that various factual issues relating
    to causation also required a trial.

The Applicable Rule 20
    Principles

[7]

The motion judge expressly identified the operative principles (paras.
    45-51). She then engaged in the rule 20 analysis by addressing those principles
    in the context of the case. In doing so, she identified the essential elements
    of the claim (para. 55), the position of the appellants in respect of the claim
    (para. 53), and the appellants ultimate legal burden in respect of the issues
    (para. 57). All of those considerations properly inform a determination of
    whether, as the motion judge said at para. 50:

The third parties [respondents] have met their burden to prove
    there is no genuine issue to be tried on liability.

[8]

We do not accept the appellants argument that the motion judge
    misplaced the burden of proof on a summary judgment motion, when in para. 57
    she referred to the appellants as having not met their burden. That reference
    must be read along with the analysis in the previous seven or eight paragraphs.
    The motion judge was satisfied that the respondents had demonstrated that this
    was an appropriate case to use the fact-finding powers under rule 20.04(2.1)
    and that the evidence demonstrated no genuine issue for trial. The reference in
    para. 57 comes after an overview of the appellants case and is, in our view, a
    finding that the appellants had not rebutted the case for summary judgment put
    forward by the respondents.

[9]

There is no error
in the
    motion judges exercise of her fact-finding powers under rule 20.04(2.1). She
    drew inferences that were crucial to her determination of the motion (see
    paras. 60, 85). She identified the primary facts from which she drew those
    inferences. The inferences were within the range of reasonable inferences
    available. For example, her finding that Mr. Weber, a lawyer at McMillan,
    discussed environmental due diligence concerns with the appellants and was told
    not to do any due diligence himself, is a reasonable inference from the
    documentation presented on the motion and from the evidence of Mr. Cocov, the
    person who was effectively driving the transaction on behalf of Crosslink at
    the time.

[10]

Some motion judges may
    not have drawn the inferences that this motion judge chose to draw. However,
    the fact-finding power in rule 20.04(2.1) describes a range of acceptable fact-finding.
    It is not surprising, nor is it error, that different motion judges may engage in
    that fact-finding power somewhat more or less aggressively in any given
    situation. The question for the appeal court is whether a particular motion
    judge stayed within the range provided by the rule in making his or her factual
    findings. The findings of fact made by this motion judge were well within the
    range contemplated by rule 20.04(2.1).

[11]

The appellants further
    submit that the motion judge went beyond the limits of her fact-finding
    capability when she rejected outright the uncontradicted evidence of the
    appellants expert. That expert had opined that all of the respondents failed
    to meet the standard of care expected of a reasonable solicitor in their
    dealings with the appellants as they related to the CN railway lands.

[12]

The motion judge
    considered the experts evidence (paras. 91-94). She did not, as counsel for
    the appellants argued, declare the evidence inadmissible. Rather, she decided
    that the evidence was not helpful for several reasons. In particular, the
    motion judge observed that the expert had not seen many of the relevant
    documents before advancing his opinion, and was unaware of various factors that
    the motion judge considered to be central to a proper determination of the
    nature of the duty of care owed by the respondents in the circumstances of the
    case. All of the factors identified by the motion judge are properly taken into
    account in assessing the probative value of an experts opinion. Nothing in the
    language of rule 20 prevents resort to those factors on a summary judgment
    motion as long as doing so is consistent with a fair and just determination on
    the merits.

The Case Against McMillan

[13]

The
    appellants were aware that the land was contaminated from the outset of the
    negotiations. Mr. Cocov, who with Mr. Penuvchev controlled Crosslink, was an experienced
    real estate developer. He had prior experience with contaminated railway lands
    and was the driving force behind this negotiation. Mr. Penuvchev, who was a
    dentist, relied on Mr. Cocov throughout the negotiations.

[14]

The appellants complaint is not that McMillan did not
    inform them of possible contamination problems, but that McMillan did not
    inform them that there was a Directors order on title as of December 21, 2006.
The appellants claim that the respondents
    had a duty to bring this fact to the appellants attention and explain its
    potential impact on the proposed purchase of the land.

[15]

Crosslink retained
    McMillan in January 2007 in respect of their first attempt to purchase the
    railway lands. In January and February, Mr. Weber commented on an initial draft
    of a purchase agreement that had been prepared by CN. Mr. Weber proposed
    various changes to the draft. These changes included one which would give
    Crosslink a period of environmental due diligence before the deal closed, and
    another which would not have required Crosslink to take title, subject to a Directors
    order, as that order would not fall within Mr. Webers proposed definition of
    permitted encumbrance.

[16]

Mr. Weber specifically
    cautioned the appellants in a note on the amended draft that matters of
    environmental due diligence required further discussion. Mr. Weber also
    confirmed that he had not conducted any due diligence in connection with the
    property. The motion judge found that:

Mr. Weber discussed
    environmental due diligence, including the related encumbrance on title, with
    the client and that he was instructed to proceed to amend the CN template
    agreement provided to him without conducting any due diligence himself.

[17]

After
    receiving Mr. Webers input in February 2007, Crosslink, and in particular Mr.
    Cocov, continued negotiations with CN. McMillan had no involvement in any of
    these negotiations and no knowledge of the materials being exchanged by
    Crosslink and CN. An agreement between Crosslink and CN finalized in July 2007
    without any input from McMillan.

[18]

The
    documents provided to Crosslink by CN in March 2007 included documents that
    contained or referred to the Directors order. After receiving this material,
    and without any contact with McMillan, Crosslink advised CN in April 2007 that
    it had approved the environmental reports provided by CN. Crosslink received
    similar environmental disclosure in August 2007. Once again, it did not advise
    or consult McMillan about anything arising from this material.

[19]

In
    March 2008, after extensions, the July 2007 agreement between Crosslink and CN
    expired. It never closed. McMillans only involvement in the agreement arose
    out of the comments Mr. Weber had made on a draft agreement about a year
    earlier.

[20]

Crosslink,
    without any input from McMillan, continued to pursue the purchase of the land.
    After receiving advice from a planning consultant retained by Crosslink that
    the environmental status of the land would not foreclose its use for commercial
    purposes, Crosslinks intended purpose, Crosslink once again negotiated with CN
    for the purchase of the land.

[21]

Crosslink,
    without McMillans involvement, pursued a new and different agreement with CN. In
    May 2008, without any involvement by McMillan, Crosslink entered into an
    unconditional agreement to purchase the land. Crosslink had chosen to pursue a
    new and radically different agreement. That agreement did ultimately close.
    That agreement contained the vendor take-back mortgage and the personal
    guarantees, which ultimately provided the basis for CNs lawsuit against the appellants.

[22]

Having
    regard to the motion judges factual findings, she was justified in finding there
    was no issue for trial in respect of the claim against McMillan. Her finding
    that McMillans role in relation to the first agreement did not extend to the
    investigation of any risks flowing from the Directors order effectively
    brought an end to any negligence claim in relation to McMillans involvement. Further,
    the finding that McMillan had absolutely no involvement in the negotiation or
    closing of the very different agreement that actually led to the purchase of
    the property at a point in time well after the appellants had received CNs
    environmental disclosure, compelled the conclusion that there was no causal
    link between anything McMillan did and the closing of the transaction or any
    loss that flowed from it.

The Claim Against Mr. Thompson and Ms. Giahi

[23]

Crosslink
    entered into an unconditional agreement to purchase the property in May 2008. Mr.
    Thompson and Ms. Giahi were not retained until October 2008. They were retained
    to do the work involved in closing the transaction that the parties had agreed
    upon months earlier. Pursuant to that agreement, Crosslink was taking the
    property on a as is basis.

[24]

The
    motion judge found that Ms. Giahi, despite the very limited nature of the
    retainer, performed a more comprehensive title search. That search revealed the
    Directors order on title. The motion judge found that Ms. Giahi raised this
    issue with Crosslink and Crosslink expressly told her not to obtain a copy of
    the order, and to close the transaction. This finding by the motion judge is
    consistent with the evidence that Crosslink had knowledge of the Directors
    order no later than March 2007, had knowledge of the potential contamination
    problems in respect of the property, and had an opinion from their own expert
    that those problems would not interfere with the commercial development of the
    property.

[25]

The
    motion judge was entitled to find that Mr. Thompson and Ms. Giahi were under no
    further duty to warn about the potential effects of the Directors order. Crosslink
    had entered into an agreement to take the property as is several months
    earlier. Ms. Giahi was told not to investigate potential environmental
    concerns, even after she raised the issue of the Directors order. In light of
    the limited nature of the retainer, and the specific instructions given with
    respect to the Directors order, there was no case to be made against Mr.
    Thompson and Ms. Giahi. The motion judge did not err in granting summary
    judgment as regards to Mr. Thompson and Ms. Giahi.

[26]

There
    were other issues raised on the motion, including whether the claims were
    barred by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, and
    whether any of the respondents acted for anyone other than Crosslink. We need
    not address those issues as we are satisfied that the claims against the
    respondents were properly dismissed for the reasons set out above.

Conclusion

[27]

The
    appeal is dismissed. Counsel have agreed that the successful party should have
    their costs on the appeal. McMillan is entitled to costs in the amount of
    $30,000 all in. Mr. Thompson and Ms. Giahi are entitled to costs of $30,000
    all in.

Doherty J.A.

D.M. Paciocco J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Choquette v. Choquette, 2019 ONCA 306

DATE: 20190417

DOCKET: C65197

Watt, Miller and Nordheimer JJ.A.

BETWEEN

Kevin Ronald Choquette

Applicant (Respondent)

and

Yvonne Elizabeth Choquette

Respondent (Appellant)

Gary Joseph and Meghann Melito, for the appellant

Harold Niman and Meysa Maleki, for the respondent

Heard: November 15, 2018

On appeal from the order of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated March 1, 2018, with reasons reported at
    2018 ONSC 1435.

B.W. Miller J.A.:

[1]

In 1994, the parties separated after a marriage of 15 years, divorcing two
    years later. After a trial in 1996, the respondent, Mr. Choquette, was ordered
    to pay spousal support in the amount of $4,750 per month on an indefinite
    basis. The award was premised on the appellant, Ms. Choquette, quickly
    returning to the workforce. The appellant did not do so, and the respondent
    continued to pay spousal support for 22 years. In 2016, in anticipation of his
    retirement, the respondent brought a motion to change the spousal support
    order, asking that spousal support be terminated. The appellant brought a
    cross-motion to increase support to $15,000 per month.

[2]

The motion judge allowed the respondents motion and ordered spousal
    support terminated effective October 5, 2016. Costs were awarded against the
    appellant in the amount of $50,000. The appellant appeals.

[3]

For the reasons given below, the appeal is dismissed.

Background

[4]

When the parties married, they each had degrees in commerce and were employed
    commensurate with their education. The appellant left work when their first
    child was born. She returned to work briefly after their first child turned
    four, and ultimately stopped working outside the home. By then, the respondent
    was working in the securities business and earning a very good income for the
    family.

[5]

At the date of trial in 1996, there were two children of the marriage,
    aged 13 and 6. The appellants care of the children, particularly the eldest,
    was a significant issue at trial. The respondent was awarded custody of both
    children and thereafter the appellant had effectively no involvement with the
    older child, and limited access to the younger. In 2000, that limited access
    was further reduced to two hours per week every second week, on a supervised basis
    only. From that point, the appellants involvement in the childrens lives more
    or less ceased.

[6]

By the time of the 1996 trial, the respondent had become a bank analyst
    with a brokerage firm and had earned approximately $390,000 the previous year. Later
    in his career he would earn well in excess of $1 million per year. The
    appellant was not employed at the time of trial, but had obtained a CMA accounting
    designation after separation as well as a real estate agents licence. She
    testified that she planned to become self-sufficient.

[7]

The respondent had initially appealed the support order to this court, raising
    a concern that it did not satisfy the objective of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.) in encouraging the appellant to become
    self-sufficient. However, this court was satisfied with the trial judges
    finding on the evidence that the appellant would return to the workplace and
    move relatively quickly towards self-sufficiency. Although the appellant had
    been out of the professional workforce for 10 years during the marriage, she
    had business experience, had since obtained further professional qualifications
    and did not have child care responsibilities. This court further stated:

[T]he husbands concerns that the wife may not become self-sufficient
    as quickly as anticipated by the trial judge are better dealt with on a
    variation application brought in that eventuality. The non-happening of an
    anticipated event can constitute a material change in circumstances within the
    meaning of the
Divorce Act
. [Citations omitted.]

[8]

The appellant never re-entered the workforce. Her income has been almost
    exclusively from spousal support. She has purchased rental properties, some of
    which operate at a loss, and also has an organic farming business that also
    operates at a loss. She now has a net worth of $781,112, after leaving the
    marriage with a net worth of approximately $200,000.

[9]

The respondent brought the current motion seeking to terminate support.

[10]

Before
    the motion judge, the appellant argued that she was frustrated in her attempts
    to find work because of the residual impact of having been out of the workforce
    and at home with the children for ten years during the marriage. Additionally,
    she suffered further disadvantage from having relocated to Toronto, where she
    had no business contacts, which she did for the benefit of the respondents
    career and to the detriment of her own. She also sought to introduce evidence
    that she suffered from depression, which prevented her not only from obtaining
    meaningful work, but also from even looking for work.

[11]

The
    motion judge, however, found
that the appellant never obtained
    employment, despite having marketable skills, because she never made any serious
    attempt to do so.
Although she argued before the motion judge that she
    had been incapable of working or obtaining employment because of depression and
    disability, and obtained an adjournment of the motion in order to provide
    evidence to that effect, she ultimately provided no evidence. The motion judge
    found her not to be credible.

[12]

The
    motion judge concluded [t]he only order that can be made to promote her
    self-sufficiency would be a termination of support. He further stated:

I am mindful that this order may create economic hardship for
    Mrs. Choquette, because she does not appear to be self-sufficient at present.
    However, the question I must address in this case is whether she remains
    entitled to spousal support from her former spouse. In my view, having regard
    to the provisions of the
Divorce Act
, it is clear she is not.

[13]

The
    appellant appeals both the decision and the award of costs against her in the
    amount of $50,000.

Issues

[14]

The
    appellant advances several grounds of appeal that can be organized as follows.
    She argues that the motion judge erred:

(1)

by giving
    the objective of self-sufficiency pre-eminence over other objectives of spousal
    support in the
Divorce Act
;

(2)

in finding
    that the appellant is not entitled to support on a compensatory basis;

(3)

in finding
    that the appellant was not entitled to share in the post-separation increase in
    income; and

(4)

by terminating
    support rather than reducing it or imputing income.

Analysis

[15]

In
Johanson v. Hinde
, 2016 ONCA 430, at para. 1, this court recently
    emphasized the deferential standard of review owed to factual findings of trial
    judges in family litigation:

The deferential standard of review of decisions of trial judges
    on questions of fact, and questions of mixed fact and law, is designed to
    promote finality and to recognize the importance of trial judges appreciation
    of the facts. If anything, this is more accentuated in family litigation.

Deference was also emphasized in
Hersey v. Hersey
,
    2016 ONCA 494, at para. 12:

Absent an error in principle, a material misapprehension of
    evidence or an award that is clearly wrong, this court must not overturn a
    support order because it might have reached a different result or balanced
    factors differently.

Issue 1: Giving pre-eminence to
    the objective of self-sufficiency

[16]

The
    trial judge had determined that the appellant was capable of becoming
    self-supporting relatively quickly. That finding was relied on by this court in
    dismissing the respondents appeal of the support order. This court anticipated
    that the appellants failure to return to the paid workforce would constitute a
    material change in circumstances, which the motion judge found to be the case. Given
    the motion judges finding that there had been a material change in
    circumstances, the remaining question was whether there should be a variation
    in support, or whether support should be terminated.

[17]

The
    appellant argued that, at this stage of the analysis, the motion judge erred in
    placing too much weight on the objective of self-sufficiency as applied to her
    circumstances. Section 17(7) of the
Divorce Act
does not create a
    requirement that a former spouse become self-sufficient. It merely directs that
    a support order should, among other objectives,
encourage
a former
    spouse to become self-sufficient, and only in so far as practicable.

[18]

The
    appellant is not self-sufficient and argues that to the extent that it ever was
    practicable that she become self-sufficient, it is not now, 22 years later. She
    is 62 years of age, her professional qualifications are stale and her former
    professional experience is irrelevant. Termination of support, she argues,
    cannot encourage her to become self-sufficient, because that objective cannot
    be realized.

[19]

It
    does not follow, from that submission, that an unreasonable emphasis was placed
    on the objective of self-sufficiency. In determining whether support ought to
    be terminated, while self-sufficiency was a factor of particular importance,
    the motion judge specifically assessed each of the objectives under s. 17(7) of
    the
Act
. None of the objectives spoke in favour of continued support.
    With respect to the recognition of economic advantage or disadvantage arising
    out of the marriage, the motion judge found that any disadvantage to the
    appellant had been compensated for by the length of the support. With respect
    to apportioning financial consequences for child care, the motion judge noted
    that all responsibility for child care, post-trial, was borne by the
    respondent. With respect to economic hardship faced by the appellant, the
    motion judge determined that any economic hardship arising from the breakdown
    of the marriage had long been addressed through the provision of support, and any
    current economic hardship was not a result of the marriage or its breakdown,
    but her own choices.  As this court noted in
Walsh v. Walsh
, 2007 ONCA
    218, 36 R.F.L. (6th) 262, at para. 13, [u]nless, it can be said that the judge
    gave unreasonable emphasis to the self-sufficiency factor, this court has no
    basis for interfering.

Issue 2: Compensatory nature of
    support

[20]

The
    appellant argues that the motion judge committed a palpable and overriding
    error in finding that the trial judge did not award spousal support on a
    compensatory basis - to compensate for her lost economic opportunities caused
    by the marriage - and in finding that she was in any event fully compensated by
    the support order.

[21]

The
    appellant was home with the children for 10 years and not in the workforce. The
    respondent argues that the appellants parenting of the children was not merely
    ineffectual, but a source of significant and long-lasting harm to both
    children, particularly the eldest. But whatever her deficiencies as a parent, the
    fact remains that the appellant did remove herself from the workforce for 10
    years to care for the children. The appellant argues that the support order
    made by the trial judge was intended in part to compensate the appellant for
    foregone economic opportunities, and in part to address her needs.

[22]

The
    principles of compensation are addressed under s. 15(7)(a-c) and s. 17(7)(a-c)
    of the
Divorce Act
:
Moge v. Moge
, [1992] 3 S.C.R. 813, at p.
    860. The motion judge and the trial judge each considered these factors in detail.
    The motion judge was alive to the fact that the appellant withdrew from paid
    work outside the home, that the appellant had significant child care
    responsibilities, and that the appellants child care obligations were sharply
    reduced at the time of separation and eliminated entirely by 2000, when all of
    the burdens of parenting were on the respondent.

[23]

Even
    assuming, without deciding, that the motion judges characterization of the
    basis for spousal support ordered by the trial judge was an error, it would
    have been neither palpable nor overriding. The trial judge did not expressly
    state the basis of the support order, but he did anticipate that it would be
    varied relatively quickly as the appellant moved to self-sufficiency.
    Furthermore, even assuming the order was made in part on a compensatory basis,
    as the respondent argues, that would not entitle the appellant to support in
    perpetuity. Although the Spousal Support Advisory Guidelines had not been enacted
    at the time of separation, they do provide a measure of what is a reasonable quantum
    and duration of support:
Gray v. Gray
, 2014 ONCA 659, 122 O.R. (3d)
    377, at para. 42. In these circumstances, the high end for length of support would
    be 15 years. The respondent paid support for 22 years. Even if the appellant is
    correct and the motion judge ought to have characterized the basis of the
    spousal support ordered by the trial judge as entirely compensatory in nature,
    this would not affect the result.

Issue 3: Entitlement to share
    in the post-separation increase in the respondents income

[24]

The
    appellant argues the motion judge erred in not finding that the appellant was
    entitled to share in the respondents substantial post-separation increase in
    income. She argues that she indirectly contributed to his ability to earn high
    income, because her sacrifices during the marriage enabled it.

[25]

I
    would not accede to this ground of appeal. The support order made no provision
    for support to be indexed to any increases in income. This makes sense as the
    trial judge anticipated that the support order would soon be varied to account
    for the appellants return to the workforce. Furthermore, given the motion
    judges finding that the appellant made no attempt to become self-sufficient, it
    is entirely appropriate that she not be entitled to participate in his increase
    in income:
Walsh v. Walsh
(2006), 29 R.F.L. (6th) 164,  at para. 42,
    revd in part, on other grounds, 2007 ONCA 218.

Issue 4: Was variation
    preferable to termination?

[26]

The
    appellant argues that the remedy ordered  termination of support  is
    unnecessarily harsh. There were other, more appropriate, alternatives open to
    the motion judge, such as imputing to the appellant the income that she ought
    to have earned had she returned to the workforce, and reducing ongoing support
    accordingly. It would have been more appropriate, she argues, to impute income
    because there is no evidence that she could have become self-sufficient (in the
    sense that she could have achieved the standard of living enjoyed by the
    parties at the date of separation) even if she had made reasonable efforts to
    do so.

[27]

The
    appellant concedes that where there is a lack of effort to achieve
    self-sufficiency, it can be appropriate to reduce support to incentivize a
    recipient to make appropriate efforts towards self-sufficiency:
Juvatopolos
    v. Juvatopolos
(2004), 9 R.F.L. (6th) 147 (Ont. S.C.), at para. 27, affd
    (2005), 19 R.F.L. (6th) 76 (Ont. C.A.). But she argues that it is too late in
    the day for her. She is not now capable of supporting herself at the standard
    of living the family enjoyed during the marriage, no matter what the incentive.

[28]

The
    respondent argues that the motion judge found that to the extent the appellant
    may suffer financial hardship as a result of termination of support, this is
    not the result of the marriage or its breakdown, but of her own improvident
    choices.

[29]

The
    motion judge considered that the appellant is not without significant
    resources, notwithstanding that the respondent has amassed considerably more.
    But the motion judge found that the mere fact that there is a disparity between
    the resources of the appellant and the resources of the respondent does not, in
    the circumstances of these parties, supply a juristic reason to continue
    support. I agree that the result appears harsh, given the resources available
    to the respondent. But the motion judge was entitled to make the order that he
    did, and there is no basis on which we should interfere with it.

DISPOSITION

[30]

I
    would dismiss the appeal and deny leave to appeal the costs order. I would
    award the respondent costs of the appeal in the agreed amount of $15,000
    inclusive of disbursements and HST.

Released: DW APR 17 2019

B.W. Miller J.A.

I agree. David Watt
    J.A.

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