COURT OF APPEAL FOR ONTARIO

CITATION: Ram v. Talon International Inc., 2016 ONCA 807

DATE: 20161031

DOCKET: C61158

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Dr. Ganesh Ram and GFunk Inc.

Plaintiffs (Respondents)

and

Talon International Inc.

Defendant (Appellant)

Symon Zucker and Nancy Tourgis, for the appellant

Mavis J. Butkus, for the respondents

Heard and released orally: October 27, 2016

On appeal from the judgment of Justice Heeney of the Superior
    Court of Justice, dated September 18, 2015.

ENDORSEMENT

[1]

The trial judge found that the Agreement of Purchase and Sale terminated
    on its own terms and thus the respondent purchasers were entitled to a return
    of their deposit.

[2]

On appeal the vendor submits that the trial judge made one factual error
    and two errors of law. The factual error the vendor alleges is that by virtue
    of the amending agreements time became of the essence. The two legal errors the
    vendor alleges are first, the purchasers could not terminate the agreement
    without setting a new closing date; and second, the trial judge erred by
    putting the onus for setting a new closing date on the vendor. In making these submissions
    the vendor relies on the decision of this court in
Domicile Developments
    Inc. v. MacTavish
, 45 O.R. (3d) 302 (C.A.).

[3]

We do not accept the vendors submissions. As Ms. Tourgis fairly
    acknowledged,
Domicile
and any implications it may have had for this
    case were not argued before Justice Heeney. Moreover, this case turned not on
    the ability of the parties to close, which was the case in
Domicile
,
    but on the terms on which they were to close.

[4]

We now turn to the errors the vendor alleges. First, the trial judge
    found correctly that the Agreement of Purchase and Sale did not contain a time
    of the essence clause. Also the Agreed Statement of Facts did not provide that
    the parties agreed time was of the essence.

[5]

The amending agreements do contain a provision that time shall continue
    to be of the essence, but these provisions contradict the original agreement
    of purchase and sale. In view of the absence of a time of the essence provision
    in the original agreement, or any reference to such a clause in the agreed
    statement of facts, we decline to give effect to this term in the amending
    agreements. We add that the alleged factual error the vendor now relies on was
    not argued before the trial judge.

[6]

Second, we agree with the trial judge that the Agreement ended in
    accordance with para. 19 of the Agreement of Purchase and Sale because despite
    the vendors assurances it never provided the purchasers with a revised occupancy
    statement. The purchasers could hardly be obliged to set a new closing date
    without this revised statement.

[7]

Third, the trial judge was correct to lay the blame for the failure to
    close on the vendor. The vendor through its lawyer (not counsel on this appeal)
    represented to the purchasers he would sort out their concerns. But then he
    failed to do so. The trial judges finding at para. 31 of his reasons is fatal
    to the vendors appeal. At para. 31 the trial judge found:

Mr. Silvers message indicated that the closing of the
    transaction would go over for a few days until the plaintiffs concerns were
    sorted out, he failed thereafter to either address the plaintiffs concerns or
    establish a new closing date. Two emails from Mr. Lake were sent and were not
    responded to.

[8]

In substance, the trial judge found that having assured the purchasers
    he would address their concerns and having not done so, the vendor is now
    estopped from claiming the agreement was not at an end and that the purchasers
    were not entitled to return of their deposit.

[9]

The appeal is therefore dismissed. The respondents are entitled to their
    costs of the appeal in the agreed amount of $9400 inclusive of disbursements
    and applicable taxes.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reid v. College of Chiropractors of Ontario, 2016
    ONCA 779

DATE: 20161024

DOCKET: M46840

Epstein J.A. (in chambers)

BETWEEN

Dr. Michael Reid

Appellant (Moving Party)

and

College of Chiropractors of Ontario

Respondent (Responding Party)

Zameer N. Hakamali, for the moving party

Chris Paliare and Karen Jones, for the responding party

Heard: August 25, 2016

On motion for an extension of time to file a notice of motion
    for leave to appeal the judgment of the Divisional Court (A.C.J.S.C. Marrocco,
    J. Wilson, Pattillo JJ.), dated June 13, 2016.

Epstein J.A. (in chambers):

[1]

The moving party, Dr. Michael Reid, wants to appeal the decision of the
    Divisional Court released on June 13, 2016, in which it dismissed three appeals
    Dr. Reid brought from decisions of a panel of the Discipline Committee of the
    responding party, the College of Chiropractors of Ontario. Such an appeal is not
    as of right. Dr. Reid must obtain an order from this court granting leave to
    appeal. However, Dr. Reid missed the deadline for filing his notice of motion
    seeking leave to appeal.  He therefore brings this motion for an extension of time.

[2]

The College opposes the motion on the basis that an extension would not be
    in the interests of justice. For the reasons that follow, I agree.

THE BACKGROUND

[3]

Dr. Reid, a chiropractor, has been the subject of disciplinary proceedings
    that arose out of a series of complaints made to the College by a fellow
    chiropractor, Dr. Chris Paynter, and his wife, involving Dr. Reids advertising
    practices.

[4]

In 2006, 2008 and 2009, Dr. Paynter and his wife complained to the
    College that Dr. Reid was engaging in impermissible advertising practices. The
    College reprimanded Dr. Reid and issued two cautions against him.

[5]

In 2010, Dr. Paynter and his wife made a further complaint to the
    College about Dr. Reids advertising practices. That complaint resulted in a
    Discipline Committee hearing (the 2012 Hearing) that proceeded by an agreed
    statement of facts.  Dr. Reid was found guilty of professional misconduct and
    was ordered to enter into an undertaking to abide by the Colleges policies.

[6]

Between the time Dr. Paynter complained to the College in 2010 and the
    2012 Hearing, Dr. Reid made three telephone calls to Dr. Paynter and visited
    his clinic twice. After the 2012 Hearing, Dr. Reid sent two emails to Dr.
    Paynter.  Dr. Paynter complained to the College about these contacts and
    communications.

[7]

On three occasions, the College provided Dr. Paynters complaint and
    another complaint made by an insurance company to Dr. Reid, asking for his
    response. After five months had elapsed without receiving a response from Dr.
    Reid, the College appointed an investigator. The investigator experienced
    difficulty dealing with Dr. Reid.

[8]

Five allegations of professional misconduct arising out of Dr. Reids
    conduct toward Dr. Paynter, his failure to reply to the Colleges requests for
    a response to complaints made against him and his treatment of the investigator
    became the subject of a Discipline Committee hearing that took place in 2014
    and 2015 (the 2014-5 Hearing).

[9]

At the commencement of the 2014-5 Hearing, Dr. Reid unsuccessfully moved
    to have the chairperson of the Panel disqualified on the basis that he had been
    the chairperson of the 2012 Hearing.

[10]

After hearing all the evidence, the Panel concluded that Dr. Reids
    communications with Dr. Paynter were threatening and amounted to harassment,
    and that Dr. Reids failure to respond to the Colleges requests and failure to
    cooperate with the College investigator amounted to professional misconduct.
    The Panel imposed a penalty of a twelve month suspension of Dr. Reids license,
    remedial measures and a fine of $10,000.  The Panel ordered Dr. Reid to pay the
    Colleges costs in the amount of $166,194.50.

[11]

Dr. Reid appealed the Panels decision as to costs (the Costs
    Decision), as to liability, including the issue of bias (the Liability Decision),
    and as to penalty (the Penalty Decision) separately to the Divisional Court. The
    three appeals were heard on February 11, 2016. In one combined decision, with
    one minor exception, the Divisional Court dismissed the three appeals.

[12]

The evidence on this motion was provided by Mr. Douglas P. OToole,
    co-counsel to Dr. Reid with Mr. Hakamali in the 2014-5 Hearing and the
    Divisional Court appeals. In his affidavit, Mr. OToole says that he and Mr.
    Hakamali received the Divisional Court Decision on June 13, 2016. He and Mr.
    Hakamali discussed an appeal of the decision.  Both lawyers were of the view
    that the appeal was to this court, within 30 days of the decision. They therefore
    advised Dr. Reid that the deadline to appeal was July 13, 2016. In an email
    dated July 13, 2016, Mr. Hakamali indicated to counsel for the College that it
    had come to his attention that to appeal to this court, Dr. Reid had to seek
    leave to appeal within 15 days of the Divisional Court Decision.

THE ISSUE

[13]

The single issue is whether an extension of time to file the notice of motion
    for leave to appeal should be granted.

ANALYSIS

The Test for Extending Time

[14]

The test on a motion to extend time is well-settled. The governing principle
    is whether the justice of the case requires that an extension be given:
Rizzi
    v. Mavros
, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas
    Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.
    Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether the
    moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the length of,
    and explanation for, the delay in filing;

c)

any prejudice to
    the responding party, caused, perpetuated or exacerbated by the delay; and

d)

the merits of
    the proposed appeal.

See
Rizzi
,

at
    para. 16;
Froese
, at para. 15.

[15]

This court has held that lack of merit alone can be a sufficient basis
    on which to deny an extension of time, particularly in cases such as this where
    the moving party seeks an extension of time to file a notice of leave to
    appeal, rather than an extension of time to file a notice of appeal:
Miller
    Manufacturing and Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.),
    at para. 6;
Froese
, at para. 16.

The Principles Applied

[16]

The record does not support a finding that Dr. Reid formed the intention
    to appeal the Divisional Court Decision within the requisite 15 days.  That
    said, it is clear that Dr. Reid had the requisite intention to have the Divisional
    Court Decision reviewed within a few days of the expiry of the 15 day period.  Dr.
    Reid should have filed the notice of motion for leave to appeal on June 27,
    2016 and his counsel advised the College of Dr. Reids intention to seek leave
    to appeal on July 13, 2016.

[17]

In terms of prejudice, I see nothing in the record, apart from the cost
    associated with permitting the litigation to continue, to suggest that the
    College will suffer prejudice if an extension is granted.

[18]

I turn, therefore, to a consideration of the merits of the proposed
    appeal.

[19]

It must be borne in mind that the decision Dr. Reid seeks to appeal was
    rendered by the Divisional Court exercising its appellate jurisdiction.
    In
Sault Dock Co. Ltd. v. City of Sault Ste. Marie
, [1973] 2 O.R. 479
    (C.A.), at para. 6, this court explained that, as a general rule, decisions made
    by the Divisional Court in its appellate capacity are intended to be final. A
    review of such a decision by this court is an exception to the general rule.

[20]

Before granting leave, this court must be satisfied that the proposed
    appeal presents an arguable question of law, or mixed law and fact, requiring
    consideration of matters such as the interpretation of legislation; the
    interpretation, clarification or propounding of a general rule or principle of
    law; or the interpretation of an agreement or by-law where the point in issue
    involves a question of public importance:
Sault Dock Co.
at para. 8.

[21]

At para. 9 of
Sault Dock Co.,
the court added that it will also
    consider cases where special circumstances make the matter sought to be brought
    before it one of public importance or where it appears that the interests of
    justice require that leave should be granted. Finally, at para. 10, this
    court observed that there may be cases in which there is clearly an error in
    the judgment or order of the Divisional Court such that the Court of Appeal
    might grant leave to correct the error.

The Proposed Appeal of the
    Costs Decision

[22]

Dr. Reid submits that the appeal of the Costs Decision will affect
    future approaches to the reasonableness of cost awards under s. 53.1 of the Health
    Professions Procedural Code, Schedule 2 of the
Regulated Health Professions
    Act, 1991
,

S.O. 1991, c. 18 (the Code). He further argues that,
    given the dissent, the cost decision has merit.

[23]

I disagree.

[24]

Section 53.1 of the Code gives the College jurisdiction to order costs.
    The courts have recognized this jurisdiction and have described it as being
    broad and discretionary:
Freedman v. Royal College of Dental Surgeons
,
    [2001] O.J. No. 1726 (Div. Ct.), at paras. 3, 6;
Aronov v. Royal College of
    Dental Surgeons
, [2002] O.J. No. 5973 (Div. Ct.), at para. 54.  The courts
    have also identified the Colleges right and responsibility to protect its
    members from the weight of the expense of protracted disciplinary hearings:
Aronov
,
    at para. 53.

[25]

The standard of review of reasonableness applies to the Costs Decision
    as the College was interpreting its own statute and was exercising discretion
    in making the award:
Venneri v. College of Chiropractors of Ontario
,
    2010 ONSC 473, [2010] O.J. No. 334, at para. 6.  A decision is only unreasonable
    if there is no line of analysis in the reasons that could reasonably lead the administrative
    tribunal from the evidence to the conclusion reached:
Law Society of New
    Brunswick v. Ryan
, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[26]

The majority conducted a reasonableness review when assessing the Costs
    Decision. On the basis of this review, the majority concluded that the Panel had
    considered relevant factors, including the parameters of s. 53.1 of the Code,
    the Colleges costs, the findings of liability and the Colleges relative
    success.

[27]

In the light of the discretionary nature of the Costs Decision, the
    standard of review and the Divisional Courts thorough and unimpeachable
    approach to the issue, I conclude that the application for leave to appeal the
    Costs Decision is without merit.

[28]

My conclusion is not impacted by the dissent, as I am of the view that
    Wilson J.s analysis is, with respect, incorrect.  As is apparent from the
    above analysis, her view that no decisions have considered the issue of
    reasonable costs under s. 53.1 of the Code is clearly in error.  Moreover, she
    conducted her own independent cost analysis rather than conducting a
    reasonableness review, which was her mandate.

[29]

I therefore find there to be no merit in the leave application as it
    applies to the Costs Decision.

The Proposed Appeal of the
    Liability Decision

[30]

Dr. Reid submits that he was found guilty of professional misconduct because
    he breached standard practice when he failed to provide responses to complaints,
    as requested by the Inquiries, Complaints and Reports Committee (ICRC).  He
    argues that the College did not have the authority to create the Standard of
    Practice and that the proposed appeal will have far reaching implications for
    the conduct of investigations by Colleges.

[31]

I reject this argument.  First, the expert evidence called on behalf of both
    parties was that Dr. Reid was, in fact, obligated to respond to complaints and
    provide the requested response to the College. Second, Dr. Reid himself
    admitted that he had a professional obligation to respond to the ICRCs
    requests.

[32]

The conclusions of the Panel and the Divisional Court that Dr. Reid had
    an obligation to cooperate with the College and that he breached it by failing
    to provide submissions to complaints, are unassailable.

[33]

Dr. Reid further argues that there was no evidence to support findings
    of professional misconduct in relation to his conduct towards Dr. Paynter.
    This part of the proposed appeal is entirely fact based.  It does not raise
    an arguable question of law, and certainly not one of the sort contemplated by
    para. 8 of
Sault Dock Co.
Moreover, the purported appeal does
    not involve a special circumstance or a matter of public importance.

[34]

Finally, Dr. Reid argued before the Panel and the Divisional Court that
    the Panels chairperson should have been recused on the basis that he had been
    the chairperson of his 2010 Hearing.  He raises this issue as a further reason
    why his leave application has merit.

[35]

Again, I disagree. Dr. Reids argument that the Divisional Court erred
    in finding there was no valid issue of bias completely lacks merit.  It is a
    bald assertion.  As previously noted the 2010 Hearing proceeded on an Agreed
    Statement of Facts. No evidence was called.  Dr. Reids credibility was not in
    issue.

The Proposed Appeal of the
    Penalty Decision

[36]

Dr. Reid has made it clear that his application to seek leave to appeal the
    Penalty Decision is dependent on his appeal of the Liability Decision.  Given
    my conclusion that the appeal concerning the Liability Decision is without
    merit, it follows that his appeal concerning the Penalty Decision is also
    without merit.

CONCLUSION

[37]

The College has not been prejudiced by the delay, nor fairly, does it
    claim to be.  The fact that there is no evidence that Dr. Reid formed an
    intention to appeal the Divisional Court Decision within the relevant time
    frame alone may constitute a sufficient basis upon which to dismiss Dr. Reids
    motion.  However, my decision to dismiss the motion rests on the basis that,
    given the lack of merit of the proposed appeal, justice requires that Dr.
    Reids motion for extension of time to file his motion for leave to appeal, be
    dismissed.

DISPOSITION

[38]

The motion is therefore dismissed.  Further to the parties consent,
    the College is entitled to its costs, including the costs of the
    cross-examination of Mr. OToole, in the amount of $5,000, all in.

Released: October 24, 2016                                             Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Reilly v. Johnson and Junger Law Firm, 2016 ONCA
    768

DATE: 20161019

DOCKET: C61893

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

Paul Duncan Reilly

Applicant (Appellant)

and

Johnson and Junger Law Firm

Respondent

Paul Duncan Reilly, acting in person

Charles Sinclair, for the respondent

Heard: October 13, 2016

On appeal from the order of Justice Catrina D. Braid of
    the Superior Court of Justice, dated February 23, 2016.

ENDORSEMENT

[1]

The appellant appeals the order of Braid J.
    dated February 23, 2016, striking his claim in its entirety against a lawyer
    who represented the appellants former spouse in family law proceedings, George
    Johnson, and her current lawyer, Kathryn Junger.
[1]

[2]

The statement of claim alleges that Johnsons
    conduct caused the appellant delays, distress and hardship in the course of his
    family law proceedings. Specifically, the appellant pleads (1) that Johnson
    made a threatening telephone call telling him that he would make him pay if
    he refused to consent to an adjournment; and (2) that during a motion to set
    aside a Registrars dismissal order, Johnson misled the court about whether the
    appellant was present on a previous court date (which resulted in the order of
    Steinberg J. dated August 3, 2012 refusing to set aside the dismissal).

[3]

The appellant appealed the Steinberg J. order to
    this court. His appeal was dismissed on June 5, 2013. His motion for leave to
    appeal that order to the Supreme Court of Canada was denied.

[4]

The appellant also filed a complaint about these
    incidents with the Law Society of Upper Canada (LSUC) in June 2013. LSUC investigated
    and closed its file.

[5]

The respondent moved under rule 21 to strike the
    claims asserted in the statement of claim. The motion judge struck the claim in
    its entirety, without leave to amend. As for the claims related to Johnson, she
    found that there was no duty owed by the defendant solicitors to the appellant
    as an opposing client. She also concluded that the action was an abuse of
    process, as a collateral attack on the family court and LSUC decisions. She found
    that the claims against Junger alleging that, as the current lawyer for the
    appellants former spouse, she was causing delay in the family law proceedings,
    were frivolous and an abuse of process.

[6]

The appellant raises four arguments on appeal.
    We do not give effect to any of them.

[7]

First, the appellant contends that the motion
    judge, in striking his claims, erred in failing to consider the complete case
    history, which he says demonstrated fraud on the part of opposing counsel.

[8]

The complete case history asserted by the
    appellant - consisting of the various communications about his grievances
    against his former spouses lawyers in the family law proceedings and to LSUC -
    was irrelevant and immaterial with respect to whether the claim disclosed a
    cause of action. Only the facts pleaded in the statement of claim (and presumed
    to be true) were relevant, and could be considered by the motion judge.

[9]

As for whether the claims were an abuse of
    process, the appellants other proceedings were relevant, and confirmed that
    the appellant was seeking to relitigate matters already determined against him
    in the family law proceedings and the disposition of his LSUC complaint.

[10]

Second, the appellant contends that the motion
    judge erred in concluding that there was no reasonable cause of action. Before
    the motion judge, and again in this court, the appellant framed his claim
    against the lawyers as a breach of their duty to the court, or a breach of the
Rules of Professional Conduct
. The
    motion judge was correct in concluding that such allegations would not support
    a cause of action in favour of the appellant against the lawyers.

[11]

Third, the appellant asserts that the motion
    judge was biased, relying on part of a statement where she said, in her
    reasons: It would be outrageous in my view for a lawyer to be sued. What the
    motion judge said was the following: It would be outrageous in my view for a
    lawyer to be sued because of perceived delays or delay tactics that she takes
    on behalf of a client in a family law proceeding. There is no actual or
    apprehended bias here. A review of the entire transcript reveals that the
    motion judge dealt fairly with the appellant and the motion in all respects.

[12]

Finally, the appellant argues that the motion
    judge erred in finding that his action was an abuse of process. Again, we see
    no error in the motion judges conclusions, first that the action against the
    lawyer Junger, based solely on allegations of delay in the family law
    proceedings, was frivolous and an abuse of process, and that the claims against
    Johnson were an abuse of process as a collateral attack on decisions made in other
    proceedings.

[13]

For these reasons, the appeal is dismissed.
    Costs to the respondent in the sum of $6,000, inclusive of disbursements and
    applicable taxes.

G.R.
    Strathy C.J.O.

H.S.
    LaForme J.A.

K. van Rensburg J.A.

[1]
The appellant named as defendant to the action Johnson and Junger Law Firm.
    As the respondent pointed out, Johnson, who is deceased, was not a member of a
    firm with Junger. Junger took over the representation of the appellants former
    spouse in the matrimonial proceedings after Johnsons death.