COURT OF APPEAL FOR ONTARIO

CITATION: Trudel (Re), 2019 ONCA 759

DATE: 20190930

DOCKET: C66735

Juriansz, Pepall and Roberts JJ.A.

IN THE MATTER OF:  Chantal
    Trudel

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Meaghan McMahon, for the appellant

Clive Ewan, for the respondent, Attorney General of
    Ontario

Marie-Pierre T. Pilon, for the respondent, Royal Ottawa
    Health Care Group

Heard:  September 20, 2019

On appeal from the November 14, 2018 disposition of the
    Ontario Review Board, with Reasons for Disposition dated December 19, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from the Ontario Review Boards November 14, 2018
    disposition that she be detained in the secured forensic unit of the Brockville
    Mental Health Centre of the Royal Ottawa Health Care Group.

[2]

The appellant has been under the supervision of the Board and subject to
    a series of detention orders since December 10, 2008, when she was found not
    criminally responsible (NCR) for the offence of aggravated assault. The index
    offence consisted of the appellant stabbing another person in a paranoid and
    psychotic state after having consumed crack cocaine and while non-compliant
    with her medications. The appellant has struggled with addiction to crack
    cocaine and mental illness since she was a teenager.

[3]

The appellants current diagnoses are schizoaffective disorder  bipolar
    type, manic with residual psychosis; stimulant (cocaine, amphetamines) and
    alcohol use disorders  in remission in a controlled environment; adult ADHD
    in partial remission; nicotine dependence; and antisocial personality disorder.

[4]

The appellant submits that the Board erred in failing to grant her an
    absolute discharge because there was no evidence that she poses any significant
    risk of physical or psychological harm to the public. In particular, the appellant
    relies on the absence of any criminal or violent behaviour since 2015 and her abstention
    from substance abuse since 2016. She argues further that the Board erred in
    erroneously considering whether a detention order was in her best interests.

[5]

We do not accept these submissions.

[6]

We start with the well-established principle that there is no
    presumption that  NCR accused pose a significant threat to the safety of the
    public and that restrictions on their liberty can only be justified if, at the
    time of the hearing, the evidence before the Board shows that they actually
    constitute such a threat:
Winko v. British Columbia (Forensic Psychiatric
    Institute),
[1999] 2 S.C.R. 625, at para. 62. In our view, there was evidence
    to support the Boards finding that the appellant poses a significant threat to
    the safety of the public.

[7]

The Board summarized its conclusion at p. 9 of its reasons:

Although [the appellant] has not been violent for some time,
    this is in the context of living in a structured and well supervised
    environment. Left to her own she would very likely use substances and become
    non-compliant with her medication. This would lead to an exacerbation of her
    already serious chronic illness that will feature severe psychotic symptoms. Such
    an exacerbation of symptoms will, in all likelihood, pose a high risk of
    violent acts, including behaviour comparable to what occurred in the index
    offence.

[8]

In determining that the appellant poses a significant threat to the
    safety of the public, the Board conducted the broad inquiry required under s.
    672.54 of the
Criminal

Code
, R.S.C. 1985, c. C-46.
    This included the myriad factors suggested by the Supreme Court in
Winko
,
    at para. 61:

the circumstances of the original offence, the past and
    expected course of the NCR accuseds treatment if any, the present state of the
    NCR accuseds medical condition, the NCR accuseds own plans for the future,
    the support services existing for the NCR accused in the community and, perhaps
    most importantly, the recommendations provided by experts who have examined the
    NCR accused.

[9]

The Board did not focus on one single factor. Its examination included
    the appellants serious and long history of mental health and substance abuse issues,
    her previous constant elopements from the hospital and concomitant relapses into
    drug abuse, the index offence, as well as the other recorded serious assaults
    and violent behaviour in the secured forensic unit involving co-patients and
    staff, her cognitive impairments, her poor insight into the index offence, her present
    condition and her need for treatment, and her inability to self-medicate. It weighed
    these considerations with the appellants positive interactions and progress,
    including the absence of any violent or aggressive acts on her part and her
    abstention from illicit drugs.

[10]

The
    Board accepted the unequivocal opinion of the appellants treating psychiatrist,
    Dr. Sanjiv Gulati, that the appellant poses a significant threat to public
    safety based on these factors. As Dr. Gulati explained, while the appellant has
    shown progress, there is still relative instability in her mental health, even
    when on medication:

[The appellant] does continue to exhibit signs
    and symptoms of the illness and remains a risk of relapse.  In the absence of a
    structured, safe, secure environment and adequate follow-up, shes likely to
    relapse, become non-compliant with medication and pose a risk to herself as
    well as others.

[11]

We
    do not accept the appellants submission that the absence of violent behaviour
    on her part since 2015, while laudable, by itself eliminates the risk of
    significant harm to the public.

[12]

First,
    s. 672.5401 of the
Criminal

Code
provides that a
    significant threat to the safety of the public means a risk of serious physical
    or psychological harm to members of the public  resulting from conduct that is
    criminal in nature but not necessarily violent.

[13]

Further,
    as Dr. Gulati testified, the appellants psychotic and paranoid symptoms that
    appear, even with medication, are appreciably mitigated in the secure, controlled
    setting of the hospital where the appellant receives considerable support. As
    he opined, without such structure and supervision, if the appellant were out in
    the community and indulged in substance misuse, became non-compliant with medication,
    with a return of her psychotic symptoms, as was the case for the index offence
    and the instances of violent behaviour in the unit, then there would be a
    significant risk to public safety.

[14]

In
    support of her second submission that the Board erred in considering her best
    interests, the appellant relies on an isolated sentence towards the end of the
    Boards reasons that [t]he Board would be very concerned that discharging Ms.
    Trudel at this time would jeopardize the progress she has been able to make
    since her transfer to Brockville.  As the appellant correctly points out, whether
    an absolute discharge is in the appellants best interests, is not relevant to
    the determination under s. 672.54 of the
Criminal

Code
:
Pellett

(Re)
, 2017 ONCA 753, 139 O.R. (3d) 651, at para.
    32;
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 45;
    and
Wall (Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 30. However,
    when the impugned sentence in the Boards reasons is read in the context of the
    reasons in their entirety, we do not agree that it represents a reason for the
    Boards detention order. Rather, it relates to the benefits of the hospitals
    treatment plan for the appellant earlier described in the reasons.

[15]

It
    is clear that the hospital has taken serious steps to prepare the appellant to
    make such a transition and that the appellant is responding well to these
    efforts and progressing towards that goal. In particular, the plan is to move
    the appellant into the FITT house on the grounds of the Brockville Mental
    Health Centre and, if she were successful in that accommodation and her mental
    state stabilizes, consider alternative accommodation for her in the community. To
    that end, the hospital requested and was granted a condition allowing it to
    approve 24-hour per day supervised accommodation within a 250km radius of the
    hospital.

[16]

In
    conclusion, we find no error in the Boards finding that the appellant poses a
    significant risk to public safety. The Boards disposition to maintain a
    detention order was necessary and appropriate and the least onerous and least
    restrictive to the appellant in the circumstances of this case. We see no basis
    to interfere with this disposition.

[17]

Accordingly,
    we dismiss the appeal.

R.G.
    JurianszJ.A.
S.E. Pepall J.A.
L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Watto v. Immigration Consultants of Canada
    Regulatory Council, 2019 ONCA 683

DATE: 20190903

DOCKET: M50560 (C66645)

Lauwers, van Rensburg and Roberts JJ.A.

BETWEEN

Muhammad Watto,
    Professional Development and Legal Education Society and Legal and Professional
    Education College Ltd.

Applicants (Appellants)

and

Immigration Consultants of Canada Regulatory
    Council

Respondent

AND BETWEEN

Muhammad Watto

Applicant (Appellant)

and

Immigration Consultants
    of Canada Regulatory Council

Respondent

Muhammad Watto, in person

Glynnis Hawe, for the respondent

Heard and delivered orally: August 29, 2019

On motion for review
    of the chambers order of a single judge of this court, dated June 18, 2019.

ORAL ENDORSEMENT

[1]

The motion judge did not err in dismissing the appellants request to
    file a 60-page factum. The
Rules of Civil Procedure
require parties
    factums to be concise statements of fact, law and argument. The maximum length
    is 30 pages. It is only in exceptional circumstances, that are not present
    here, that this court will permit a longer factum to be filed.

[2]

In our view, the appellants should be able to deal with the relevant
    issues on this appeal in a 30-page factum. In particular, the appellants
    statement of the facts is not concise and could be considerably shortened.

[3]

Accordingly, we dismiss the appellants motion to review the motion
    judges order.

[4]

As the respondent did not claim its costs of this motion, we order that
    there be no costs of this motion.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Williams Distinctive Gems Inc. v. Advantex Dining
    Corporation, 2019 ONCA 702

DATE: 20190910

DOCKET: C66089

Lauwers, van Rensburg and Roberts JJ.A.

BETWEEN

Williams Distinctive Gems Inc.

Appellant (Plaintiff)

and

Advantex Dining Corporation,
Advantex Marketing International Inc.
and
Canadian Imperial Bank of Commerce

Respondent
(Defendants)

Alec McLennan, for the appellant

William A. Chalmers, for the respondent

Heard: August 26, 2019

On appeal from the order of Justice Michael R. Gibson of
    the Superior Court of Justice, dated September 28, 2018, and his costs order, dated
    January 4, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of its
    action against the respondent, Canadian Imperial Bank of Commerce (CIBC),
    following CIBCs motion for summary judgment.  The motion judge found that the
    appellants claim against CIBC, its former bank, was discoverable no later than
    December 2012 and since these proceedings were commenced in July 2017, more
    than two years later, it was statute-barred.

[2]

The appellant also seeks leave to appeal the
    costs order of $50,000 that the motion judge granted in favour of CIBC.

[3]

For the reasons that follow, we dismiss the
    appeal from the dismissal of the appellants claim against the respondent but
    allow the appeal from the costs order.

[4]

The appellant is a small company that carries on
    a jewelry business. In June 2012, it entered into a marketing agreement with
    Advantex.  At that time, the appellant executed a marketing plan and a
    pre-authorized payment authorization by which the appellant agreed to pay as a
    fee to Advantex 14% of its future sales made through customers use of CIBC
    credit cards.

[5]

The appellant submits that it did not read any
    of the marketing plan documents when its representative signed them because of the
    alleged misrepresentations of Aaron Bougenim, a representative of Advantex, concerning
    the nature of the marketing plan and the fees to be paid to Advantex.
    Specifically, the appellant says that Mr. Bougenim misrepresented that fees
    would only be payable on
new
customer
    purchases and not
all
purchases using CIBC credit cards.  The appellant claims
    it discovered the misrepresentations (which it says are binding on CIBC) when
    it noticed payment irregularities on its statement in December 2015.

[6]

The appellant further submits that it only
    discovered a claim for breach of fiduciary duty against CIBC in May 2018 when
    it cross-examined CIBCs representative in relation to CIBCs motion and
    learned that CIBC had a pre-existing and overarching agreement with Advantex
    that it failed to disclose to the appellant.  According to the appellant, the
    motion judge erred in dismissing the action without dealing with this claim.

[7]

The appellant argues that the motion judge
    therefore erred in finding its action was statute-barred against CIBC and that
    the action should go on to trial.

[8]

We do not accept these submissions.

[9]

While there is no challenge to the appellants
    position that it did not actually and earlier discover its claims against CIBC,
    the determinative question is when, pursuant to s. 5(1)(b) of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B., the appellant
    ought to have discovered its claims.

[10]

As ss. 4 and 5 of the
Limitations
    Act, 2002
provide, the basic two-year limitation period
    begins to run on the day the claim was discovered.  The date of discovery is
    the earlier of the two dates under s. 5(1) of the Act: when (a) the person with
    the claim first had knowledge of, or (b) a reasonable person with the abilities
    and in the circumstances of the person with the claim first ought to have had
    knowledge of, the matters referred to in ss. 5(1)(a)(i) to (iv).  If either of
    these dates is more than two years before the claim was issued, the claim is
    statute-barred.  See:
Fennell v. Deol
, 2016
    ONCA 249,
97 M.V.R. (6th) 1,
at
    para. 20.

[11]

In the present case, the appellant made several
    admissions through its principal, Keith Williams, on his cross-examination in
    this application that undermined its position on discoverability.  In
    particular, Mr. Williams admitted that:  he knew the fees to Advantex were
    fixed at 14%; he regularly reviewed the appellants sales and knew within three
    months of signing on to the marketing program that there were no new customers;
    and, had he read the marketing documents when he signed them, he would have
    known, as he later did when he actually did read them, that the marketing
    program did not reflect the discussions that he had had with Advantexs
    representative. In our view, the appellants admissions amply supported the
    motion judges conclusion that had the appellant acted reasonably, it would
    have discovered its claim against the CIBC by December 2012.

[12]

At the hearing of the appeal, the appellant
    argued that each sale to a customer represented a separate claim and restarted
    the limitation period.  We do not accept this submission.  As pleaded, the
    appellants claim is based on the allegation that Advantex and CIBC
    misrepresented the marketing program at the time the appellant entered into it
    in June 2012.  As a result, it is the date on which the appellant actually or
    ought to have discovered the misrepresentation that is relevant.

[13]

With respect to the appellants allegation of
    breach of fiduciary duty, we see no error in the motion judges dismissal of
    the claim against CIBC as pleaded.  The appellants notice of application and
    statement of claim do not contain such a claim.  The appellant did not seek to
    amend its claim either before or at CIBCs motion for summary judgment or ask
    to adjourn the motion in order to enable it to do so.  As a result, the motion
    judge was entitled to dispose of the motion for summary judgment on the basis
    of the pleadings and materials before him, not on suppositions about what might
    be pleaded or proved in the future:
Canada (Attorney General) v.
    Lameman
, 2008 SCC

14,
[2008] 1 S.C.R. 372
,
at para. 19.

[14]

Turning finally to the costs awarded by the
    motion judge, we agree that he erred in awarding $50,000 in partial indemnity
    costs to CIBC.  In our view, he failed to apply the principle of
    proportionality.

[15]

This was an action under the simplified procedure.
    It is well established that the limited monetary ceiling for actions under the
    simplified rules translates into reduced costs orders:
Trafalgar
    Industries of Canada Ltd. v. Pharmax Ltd.

(2003),
    64 O.R. (3d) 288 (S.C.), at paras. 5-7.  The appellant claimed damages of
    $63,071.17. CIBC chose to bring a summary judgment motion and conduct a lengthy
    cross-examination of the appellants principal. It should have been within CIBCs
    contemplation that its costs, if successful, would be limited and that it was
    required to exercise constraint in its expenditure of costs or risk not being
    compensated. The motion judge failed to advert to these factors in keeping with
    the principle of proportionality and awarded costs that were excessive and
    unreasonable.

[16]

As a result, the amount of costs that would be
    fair, reasonable and proportionate in the circumstances of this simplified procedure
    case is $25,000, inclusive of disbursements and applicable taxes.

Disposition

[17]

For these reasons, the appeal from the
    dismissal of the appellants claim against CIBC is dismissed but its appeal
    from the costs order is allowed.  We substitute $25,000 to be paid by the
    appellant to CIBC for its partial indemnity costs on the motion for summary
    judgment.

[18]

As success is divided on this appeal, we
    order no costs.

P. Lauwers J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Adler v. Thomson, Rogers, 2019
    ONCA 810

DATE: 20191009

DOCKET: C66677

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Kerry Adler

Applicant

(Appellant)

and

Thomson, Rogers

Respondent

(Respondent)

Karen Zvylony, for the appellant

Robert Schipper, for the respondent

Heard: October 4, 2019

On
    appeal from the judgment of Justice Peter Bawden of the Superior Court of
    Justice, dated February 6, 2019.

REASONS FOR DECISION

[1]

Mr. Adler brought an application for an
    assessment of 30 accounts he received from his counsel, Thomson, Rogers, over
    the course of their representation of him in a family law proceeding. The total
    amount billed was in excess of $600,000 during a period of approximately two
    and a half years.

[2]

Of these accounts, 26 were paid in full by Mr.
    Adler. Pursuant to s.11 of the
Solicitors Act
, R.S.O. 1990, c.S.15,
    where accounts are paid an assessment may only be ordered if the client
    establishes the existence of special circumstances. The four latest accounts
    were unpaid and were found by the application judge to have been challenged
    within 12 months. An order for the assessment of these accounts falls under the
    courts inherent jurisdiction and does not require the establishment of special
    circumstances.

[3]

The application judge held that Mr. Alder failed
    to establish that special circumstances existed warranting the assessment of
    the paid accounts. The application judge also declined to exercise his inherent
    jurisdiction to order an assessment of the unpaid accounts.

[4]

On appeal, Mr. Adler submits that the
    application judge erred in his approach because he looked at the issue of
    special circumstances solely from the firms perspective and found that the
    overriding factor was how Mr. Adler conducted himself during the litigation. In
    addition, he argues that the application judge ignored evidence that he had not
    accepted the bills as reasonable and submits that the application judge erred
    in finding that he deliberately orchestrated the breakdown of the
    solicitor-client relationship.

[5]

We do not give effect to these submissions.

[6]

We start by noting that a high degree of
    deference is owed to a judges factual findings and exercise of discretion in
    determining whether an assessment should be ordered under s. 11:
Echo
    Energy Canada Inc. v. Lenczner Slaght
, 2010 ONCA 709, 104 O.R. (3d) 93, at
    para. 29, leave to appeal refused, [2010] S.C.C.A. No. 484.

[7]

There is nothing in the application judges
    reasons to suggest that his analysis was undertaken only from the firms
    perspective. To the contrary, he conducted an exhaustive review of the record
    as it related to the parties conduct in the family law proceedings and their
    private relationship. His factual findings were well rooted in the evidence,
    including his finding that Mr. Adler sabotaged his relationship with the firm
    in order to orchestrate an adjournment of the trial. Contrary to Mr. Adlers
    argument, the analysis of the breakdown in the solicitor-client relationship
    was essential because it informed whether the breakdown was motivated by
    genuine concern about the firms service or Mr. Adlers desire to adjourn the
    trial.

[8]

The application judge also properly articulated
    and applied the test for special circumstances. In particular, he considered
    Mr. Adlers sophistication as a litigant who had already assessed the account
    of an earlier solicitor and his willingness to pay the fees provided for in the
    written retainer agreement. In addition, he considered the fact that there was
    no evidence that Mr. Adler was dissatisfied with the accounts until near the
    end of the retainer, when Mr. Adler began to act uncooperatively. The
    application judge concluded that the only factor favouring an assessment was
    the fact that the payments were involuntary. We see no basis for appellate
    interference with the application judges analysis or his conclusion.

[9]

As for the four unpaid accounts falling under
    the courts inherent jurisdiction, the application judge noted that there were
    no circumstances, special or otherwise, warranting an assessment. Again, with
    respect to these accounts, we are not satisfied that the application judge made
    any factual or legal error, or that he improperly exercised his inherent
    discretion.

[10]

The appeal is dismissed. Mr. Adler shall pay the
    costs of the appeal to Thomson, Rogers in the agreed upon, all-inclusive amount
    of $15,000.

Robert J. Sharpe J.A.

C. W. Hourigan J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Aljawhiri v. Pharmacy Examining
    Board of Canada, 2019 ONCA 798

DATE: 20191003

DOCKET: M50814

Nordheimer J.A. (Motion Judge)

BETWEEN

Steve Aljawhiri

Moving Party

and

Pharmacy Examining Board of
    Canada

Responding Party

David Matas, for the moving party (by
    teleconference)

Kate Byers, for the responding party

Heard: October 3, 2019

REASONS FOR DECISION

[1]

Mr. Aljawhiri brings this motion to extend the
    time to appeal the order of Myers J., dated August 23, 2018, sitting as a
    single judge of the Divisional Court, dismissing his application for judicial
    review on the grounds that it was frivolous and vexatious. As a preliminary
    matter, I must consider whether this court has jurisdiction to entertain Mr.
    Aljawhiris proposed appeal. I conclude that it does not. As a result, I see no
    purpose in extending the time to file the proposed appeal and would dismiss the
    motion.

[2]

Mr. Aljawhiri brought an application for
    judicial review through which he sought an order in the nature of
mandamus
requiring the Pharmacy Examining Board of Canada to produce its decision which
    limits the number of qualifying exams each candidate is allowed.

[3]

The Pharmacy Examining Board of Canada brought a
    motion to dismiss the application for judicial review on the basis that it was
    an abuse of process or, alternatively, on the basis of delay. The motion judge
    dismissed the application for judicial review on the basis that it was
    frivolous and vexatious. There is authority for the proposition that a single
    judge of the Divisional Court may quash an application for judicial review:
Keewatin
    v. Ontario (Ministry of Natural Resources)
(2003), 66 O.R. (3d) 370 (Div.
    Ct.).

[4]

The fact that the motion below was decided by a
    single judge of the Divisional Court directly affects the proper route of
    appeal. The
Courts of Justice Act
, R.S.O. 1990, c. C.43, expressly
    provides, at s. 21(5), that a panel of the Divisional Court may set aside or
    vary the decision of a judge who hears and determines a motion.

[5]

Section 6(1)(a) of the
Courts of Justice Act
provides that an appeal lies to this court, with leave, from an order of the
    Divisional Court. I am not satisfied that an order of a single judge of the Divisional
    Court, on an interlocutory motion, constitutes such an order. I note that this
    court expressed the same concern in
Overseas Missionary Fellowship v.
    578369 Ontario Ltd.
(1990), 73 O.R. (2d) 73 (C.A.). The result would be
    different if the single judge had been acting in place of the panel, under s.
    21(2), but that is not the situation here.

[6]

Even if I am incorrect in that conclusion, the
    result is the same. As determined in
Overseas
, the specific review provided
    by s. 21(5) of decisions of single judges of the Divisional Court on motion would
    take precedence over and exclude the general appeal route provided by s.
    6(1)(a). Consequently, any appeal from the order of the motion judge here must
    be taken to a panel of the Divisional Court and not to this court. This
    conclusion is consistent with other decisions of this court including
Alliance
    to Protect Prince Edward County v. Ontario (Environment and Climate Change),
2018 ONCA 576, 17 C.E.L.R. (4th) 167, and
Predie v. Ontario (Ministry of
    the Environment)
, 2006 CanLII 6450 (Ont. C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 127.

[7]

Given that I am satisfied that this court lacks
    jurisdiction to entertain the proposed appeal, I am equally satisfied that the
    justice of the case does not require an extension of time for bringing that
    appeal. This court can extend time on such terms as are just:
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, r. 3.02(1). The overarching
    principle in exercising this discretion is whether the justice of the case
    requires an extension:
Sennek v. Carleton Condominium Corporation No. 116
,
    2017 ONCA 154, at para. 17. Given that this court lacks jurisdiction, I see no purpose
    in providing more time to file an appeal which is not properly before this
    court. I note that this court has come to similar conclusions where an
    extension of time is sought on an appeal that this court lacks jurisdiction to
    hear: see
Henderson v. Henderson
, 2014 ONCA 571, 324 O.A.C. 138, at
    para. 8;
Sennek
, at para. 18.

[8]

The motion is dismissed. The Pharmacy Examining
    Board of Canada is entitled to its costs fixed in the agreed amount of $3,500
    inclusive of disbursements and HST.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Arrocha v. Harrison, 2019 ONCA 838

DATE: 20191022

DOCKET: C66894

MacPherson, Pepall and Lauwers
    JJ.A.

BETWEEN

Liz Michelle Arrocha

Applicant (Respondent)

and

Paul Harrison

Respondent (Appellant)

Paul Harrison, appearing in person

Irving I. Frisch, for the respondent,
    Liz Michelle Arrocha

Carol J. Smith, for the respondent,
    City of Toronto

Heard: October 21, 2019

On appeal from the order of Justice Victor
    Paisley of the Superior Court of Justice, dated April 9, 2019.

APPEAL BOOK ENDORSEMENT

[1]

The appellant Paul Harrison appeals from the
    decision of Paisley J. of the Superior Court of Justice dismissing the
    appellants second motion to change an order relating to support and arrears.

[2]

In an appeal dealing with the appellants first
    motion to change, this court said:

It is undisputed that the appellant has made
    no support payments. In addition, he has not paid any costs orders made at
    trial or on appeal.

The motion judge found not only that the
    appellant has failed to pay any support and several outstanding costs orders,
    but also that he made no good faith attempt to do so. After noting the
    seriousness of the appellants unyielding failure to comply with these
    outstanding orders, the motion judge invoked Rule 18 (b) of the
Family Law
    Rules
to dismiss the motion to change.

[3]

Nothing has changed since this decision. As
    Paisley J. correctly noted, it applies equally to the appellants second change
    motion.

[4]

In addition, we see no merit in the appellants
    submission that the City of Toronto has no party status in this matter. That
    matter was also addressed by this court in the previous appeal:

[I]n the absence of any support payments, the
    assignee of those payments  the City of Toronto  maintains its party status
    to the extent of its financial interests.

[5]

The appeal is dismissed. The respondents are
    entitled to their costs of the appeal fixed at $3,500 (the City) and $2,000
    (Ms. Arrocha), enforceable through the Family Responsibility Office.


COURT OF APPEAL FOR ONTARIO

CITATION: Azzarello v. Shawqi, 2019 ONCA 820

DATE: 20191015

DOCKET: C65977

Feldman, Paciocco and Fairburn
    JJ.A.

BETWEEN

Mark Azzarello, Eliza Azzarello

Plaintiffs (Respondents)

and

Ahmed Sabri Shawqi

Defendant (Appellant)

Shahzad Siddiqui, for the appellant

Peter D. Woloshyn, for the respondents

Heard: May 14, 2019

On appeal from the order of Justice Sandra
    Nishikawa of the Superior Court of Justice, dated September 14, 2018, with
    reasons reported at 2018 ONSC 5414.

Feldman J.A.:

[1]

The appellant was the purchaser under an agreement
    of purchase and sale of a residence in Mississauga. He failed to close on the
    date set for closing, received a number of extensions, but failed to close on
    any of the extended dates. The respondent vendors relisted the property and
    ultimately sold it for less than the price that the appellant had agreed to
    pay. In the action by the respondents for damages for breach of the agreement,
    the summary judgment motion judge awarded the difference in price to the
    respondent vendors, together with a number of consequential loss items. She
    also ordered that the deposit of $75,000 paid by the appellant purchaser be
    forfeited and not credited toward the damage award.

[2]

On this appeal, the appellants position is that
    the motion judge erred by failing to find that the respondents are not entitled
    to any damages because they failed to tender properly and were not ready,
    willing and able to close, and by finding that the respondents reasonably
    mitigated their damages. He also says that the motion judge erred by failing to
    credit the forfeited deposit toward the damages.

[3]

For the reasons that follow, I would allow the
    appeal on the deposit issue only. The amount of the forfeited deposit must be
    credited toward the damage award.

Facts

[4]

The respondents listed their home for sale on March
    19, 2017 during a very hot real estate market in the Greater Toronto Area.
    They listed the property at $1,398,000, received multiple offers, and accepted
    the appellants offer of $1,555,000 on March 27, 2017 to close on June 28,
    2017. The appellant paid a deposit of $75,000.

[5]

The respondents had agreed on March 8, 2017 to buy
    a new home near Hamilton, Ontario for $1,375,000 to close on June 1, 2017. They
    took out a bridge loan to complete that purchase and conduct some renovations
    on the new home.

[6]

On May 30, 2017, the respondents real estate
    lawyer, Mr. John Peter Ferreira, received a requisition letter and other
    documents from Mr. Joshua David, as the appellants real estate lawyer, which
    he answered the following day.

[7]

On June 19, 2017, Mr. Ferreira sent Mr. David a
    closing package by courier. However, on June 26, 2017, two days before the date
    set for closing, Mr. Ferreira received a call from Ms. Sarah Razzouk, who
    advised that she was taking over from Mr. David and would be representing the
    appellant on the purchase. On the same day, Ms. Razzouk wrote to Mr. Ferreira
    requesting an extension of the closing until July 7, 2017 and advising that she
    would pick up the closing package from Mr. Davids office.

[8]

On June 28, 2017, Ms. Razzouk sent another letter
    requesting a further extension to July 10, 2017. On June 29, 2017, Ms. Razzouk
    sent a requisition letter to Mr. Ferreira together with some vendor documents.

[9]

On July 1, 2017, the respondents agreed to extend
    the closing to July 10, 2017, on the condition that the appellant pay the
    interest on their mortgage, line of credit and bridge loan. These terms were
    accepted in a letter from Ms. Razzouk.

[10]

On July 7, 2017, Mr. Ferreira faxed to Ms. Razzouk a revised statement
    of adjustments, a direction and a request for an update on the status of the
    closing. On July 10, 2017, Ms. Razzouk faxed a message that stated: please be
    advised that I do not have mortgage instructions as of yet. As such we will require
    an extension until July 13, 2017. She sent a follow-up fax later in the day
    indicating that she did not have instructions and: [a]s of yet I do not know
    when. Client is not communicating with us anymore.

[11]

Mr. Ferreira made an offer on behalf of the respondents to extend the
    closing date to July 13, 2017, on terms that included payment of the
    respondents costs and a further $75,000 deposit to be received by 4:00 pm on
    July 11, 2017, failing which the appellant would be deemed to be in breach of
    the agreement. No response was received to this offer.

[12]

On the appellants side, he applied for a mortgage at both TD Bank and
    Scotiabank but was declined. He then advised his real estate agent that he
    would not be able to purchase the property. The motion judge noted that the
    appellant claimed that he was contacted by ICICI Bank to advise that they were
    investigating a mortgage fraud. He alleges that the mortgage agent working with
    his real estate agent had submitted fraudulent documents to apply for a mortgage
    in his name, and that ICICI Bank had advised him that he would be participating
    in the fraud if he obtained a mortgage from any institution where fraudulent
    documents had been submitted.

[13]

After the purchase did not close on July 10, the respondents re-listed
    the property for sale at the original list price of $1,398.000. As the
    respondents had moved to their new home, their old home was empty and had to be
    staged for showing purposes.

[14]

On July 27, 2017, Mr. Ferreira received a letter dated July 24, 2017
    from a lawyer, Mr. Constantine, that stated he was acting for the appellant and
    that the appellant had received a mortgage approval from the CIBC. However, he
    wanted a 10% reduction in the purchase price based on an appraisal of the
    property.

[15]

Mr. Ferreira responded on August 11, 2017, requesting the appellants
    position on a potential resolution of the matter. No response was received.

[16]

On September 5, 2017, the respondents lowered the list price to
    $1,349,000, and on September 6, 2017, they entered into a conditional agreement
    of purchase and sale with a new purchaser, which was confirmed on September 15,
    2017, for the price of $1,280,000 to close on November 15, 2017.

The decision of the motion judge

[17]

The motion judge identified the following four issues: did the
    appellant breach the agreement? If so, what damages are the respondents
    entitled to? Is the deposit forfeited to the respondents? Is the appellant
    entitled to relief from forfeiture?

[18]

The appellants position was that he was unable to close because of fraudulent
    activity perpetrated in his name by the mortgage broker who worked with his real
    estate agent. The appellant also denied that he retained either Mr. David or
    Ms. Razzouk or that he applied for a mortgage to CIBC. He claimed that he
    wanted to purchase the property for cash but at a lower price. He argued that
    the alleged fraud constituted a genuine issue for trial. He also argued that
    the respondents were not ready, willing and able to close because they failed
    to tender valid, signed documents, and that they failed to mitigate their
    damages by selling the property to him at a reduced price.

[19]

The motion judge rejected the appellants position and found that the
    appellant breached the agreement of purchase and sale by failing to close on
    July 10, 2017, and the allegations of fraud against the mortgage broker and
    real estate agent did not excuse that failure. The motion judge also found no
    evidence that a cash offer was ever communicated to the respondents.

[20]

The motion judge rejected the tender argument on a number of grounds.
    Although the tender package contained a Direction re Funds that was signed by
    Mr. Ferreira rather than by the respondents, that document could have been
    replaced with one signed by the respondents, had the appellant asked before
    closing. The appellant cannot rely on any such alleged defence when he was not
    able to close and when he was taking the position that there was no one upon
    whom to tender because the two lawyers who were communicating with Mr. Ferreira
    were not actually his lawyers. The motion judge found that the transaction did
    not close not because of any problem with the tender but because the appellant
    did not have the funds to complete the transaction.

[21]

On the issue of the quantum of damages, the motion judge stated the
    rule from
Goldstein v. Goldar
, 2018 ONSC 608, at para. 25, as follows:

The damages amount will be the difference
    between the price under the Agreement and the price of the new sale of the
    property once it closes, plus any additional carrying costs incurred by the
    Vendor in mitigating her loss and dealing with the Purchasers breach
.

[22]

The difference between the agreed price and the ultimate sale price was
    $275,000. The motion judge also awarded damages for the cost of the staging,
    legal fees, carrying costs of the property and interest on the line of credit,
    for a total of $308,688.31.

[23]

On the issue of mitigation, the motion judge found that the respondents
    took reasonable steps to mitigate. After they re-listed the property, they did
    not accept the first offer but held out for a higher price and were able to
    obtain one.

[24]

The final issue was the disposition of the deposit. The agreement of
    purchase and sale included the standard preprinted form language providing that
    the deposit was to be held in trust pending completion or other termination of
    this Agreement and to be credited towards the Purchase Price on completion.

[25]

Because the agreement was not completed, the questions were whether the
    deposit was to be forfeited to the respondents in addition to the damages, and
    was the appellant entitled to relief from forfeiture. The motion judge found
    that the deposit was forfeited but not to be credited against the damages owed.
    She then considered whether the appellant was entitled to relief from
    forfeiture and concluded that he was not. She therefore ordered the appellant
    to pay the damages plus forfeit the deposit.

Issues

[26]

The appellant raises the following three issues:

1.

Did the motion judge err in the application of the law of tender?

2.

Did the motion judge err in the application of the duty to mitigate?

3.

Did the motion judge err by failing to credit the deposit toward the
    damages?

Analysis

(1)

Did the motion judge err in the application of
    the law of tender?

[27]

The appellant submits that the respondents did not prove that they were
    ready, willing and able to close because they did not prove that all the signed
    documents and the keys were available, nor had they formally tendered the documents
    and keys.

[28]

The motion judge appeared to accept that there may have been technical
    flaws in the completeness of the respondents documents, but this was of no
    moment in the face of the appellants breach of the agreement. Whether there
    was any such flaw is not clear from the record, as Mr. Ferreiras letter to Mr.
    David dated June 28, 2017, though sent on June 19, 2017, indicates that
    enclosed were: the keys, Direction re Funds, Undertaking, UFFI/Warranties/Bill
    of Sale, Statutory Declaration, Statement of Adjustments, Solicitors
    Undertaking, Mortgage Payout Statement and document Registration Agreement.

[29]

In any event, the motion judge made no error in finding that the reason
    the transaction did not close was not from any inadequate documents from the
    seller, but because the appellant did not have the funds to complete the
    purchase.

[30]

This court has recently explained the law that applies in these
    circumstances in
Di Millo v. 2099232 Ontario Inc.
, 2018 ONCA 1051, 430
    D.L.R. (4th) 296, at paras. 45-49, leave to appeal refused, [2019] S.C.C.A. No.
    50:

For a party to be entitled to specific
    performance, the party must show he or she is ready, willing and able to close:
Time Development Group Inc. (In trust) v. Bitton
,
2018 ONSC 4384 (CanLII)
, at
    para.
53
;
    see also
Norfolk v. Aikens

(1989),
1989
    CanLII 245 (BC CA)
,
41 B.C.L.R. (2d) 145 (C.A.)
. While tender is the best
    evidence that a party is ready, willing and able to close, tender is not
    required from an innocent party enforcing his or her contractual rights when
    the other party has clearly repudiated the agreement or has made it clear that
    they have no intention of closing the deal:
McCallum v. Zivojinovic

(1977), 1977 CanLII 1151 (ON CA),
16 O.R. (2d) 721
at p. 723
    (C.A.)
; see also
Dacon Const.
Ltd.
    v. Karkoulis
,
1964
    CanLII 252 (ON SC),
[1964] 2 O.R. 139 (Ont. H.C.)
.

In
McCallum
, at p. 723,
    this court explained that the renunciation of a contract may be express or
    implied:

The renunciation of a
    contract may be express or implied. A party to a contract may state before the
    time for performance that he will not, or cannot, perform his obligations. This
    is tantamount to an express renunciation. On the other hand a renunciation will
    be implied if the conduct of a party is such as to lead a reasonable person to
    the conclusion that he will not perform, or will not be able to perform, when
    the time for performance arises.

The purchaser in
McCallum
made it clear
    that he did not intend to complete the transaction on the closing date and this
    renunciation relieved the vendors from the obligation to tender.

The principles around the
    requirement to tender are summarized succinctly by Perell J. in
Time Development Group
[2018 ONSC 4384]
, at paras. 56-57:

Tender  is not a
    prerequisite to the innocent party enforcing his or her contractual rights.
    Tender is not required from an innocent party when the other party has clearly
    repudiated the agreement. Numerous cases have held that the law does not
    require what would be a meaningless or futile gesture. Moreover, when there is
    an anticipatory breach, the innocent party need not wait to the date for
    performance before commencing proceedings for damages or in the alternative for
    specific performance of the agreement. [Citations omitted.]

Thus, when a party by words
    or conduct communicates a decision not to proceed to closing, the other party
    is released from any obligation to tender in order to prove he was ready,
    willing and able to close: see
Kirby v. Cameron
,
1961 CanLII 203 (ON
    CA),
[1961] O.R. 757 (C.A.)
;
Kloepfer Wholesale Hardware v. Roy
,
1952
    CanLII 8 (SCC)
,
[1952] 2 S.C.R. 465
.

[31]

Because the appellant made it clear on the date of closing that he did
    not have the funds to close and took no steps to close, the respondents were
    relieved of their obligation to tender. I would not give effect to this ground
    of appeal.

[32]

In oral submissions, the appellant argued in the alternative that even
    if the appellant did repudiate the agreement, the respondents cannot recover
    damages because they never elected to either accept the repudiation or to
    insist on performance. The appellant cited
1179 Hunt Club Inc. v. Ottawa
    Medical Square Inc.
,

2018 ONSC 6200, in support of the proposition
    that the innocent party must elect. As that case was under appeal at the time,
    counsel suggested that the court consider the result of the appeal in that
    case.

[33]

Since this appeal was argued,
Hunt Club

has been affirmed
    by this court: 2019 ONCA 700. However,
Hunt Club
does not assist the
    appellant. In
Hunt Club
, the vendor insisted on a certain closing
    date, and then neither party was able to close on that date. As a result, the
    agreement was at an end and the purchaser was entitled to the return of the
    deposit. In this case, the vendor was ready, willing and able to close. It was
    the purchasers lawyer who advised that the purchaser did not have the funds to
    close.

(2)

Did the motion judge err in the application of
    the duty to mitigate?

[34]

The appellant complains that the respondents did not entertain the
    offer he made after he failed to close in accordance with the agreement, to purchase
    the property for a 10% reduction in the purchase price; instead they resold the
    property for $1.28 million when they could have resold to him for just under
    $1.4 million.

[35]

I observe first that this does not appear to be the argument on
    mitigation presented at the summary judgment motion. The motion judge analyzed
    the steps taken by the respondents to resell the property and found them to be
    reasonable.

[36]

Second, it is unclear how this argument assists the appellant. His
    position in Mr. Constantines letter and in this action, was that he was
    seeking a 10% price reduction based on an appraisal of the property  not that
    he would pay the reduced price and also continue to be obligated under the
    original agreement for the difference. Unless the respondents agreed to sell to
    the appellant for a 10% reduction, and at the same time released him from his
    obligation to pay the original price, the respondents could still sue the
    appellant for the difference.

[37]

However, even if the appellant had made an offer to pay 10% less for
    the property and not be released from his obligation under the agreement of
    purchase and sale, I would reject the suggestion that the duty to mitigate
    obliges a vendor to accept an offer from the defaulting purchaser for less than
    the agreed price and then to have to sue the purchaser for the difference from
    the original agreed price.

[38]

While a vendor may choose to accept such an offer, for example in a
    declining market, the vendor cannot be obliged to do so.

[39]

The duty to mitigate is derived from the proposition that the wronged
    party cannot recover from the defaulting party for losses that could reasonably
    have been avoided: S.M. Waddams,
The Law of Contracts
,
7th ed.
    (Toronto: Thomson Reuters, 2017), at p. 529. It cannot be reasonable for a
    vendor to be obliged to reduce the loss it claims from the defaulting party by
    reselling the property to that party, then suing him or her for the difference.
    This would offer no financial advantage to the defaulting party as that party would
    be obliged to pay the same amount, either way. Yet the defaulting party would secure
    a significant tactical and procedural advantage over the innocent vendor.

[40]

The effect of endorsing the proposition advanced by the appellant would
    be to undermine the sanctity of the bargain by encouraging purchasers to
    default, particularly in a falling market, and to offer a lower price for the
    same property, leaving vendors with the risk and expense of recovering the
    balance of the original contract price in an action. The duty to mitigate does
    not go that far.

[41]

I would not give effect to this ground of appeal.

(3)

Did the motion judge err by failing to credit the
    deposit toward the damages?

[42]

There are four possible outcomes of the agreement where the disposition
    of the deposit must be determined: 1) the agreement is completed according to
    its terms; 2) the vendor breaches the agreement; 3) the purchaser breaches the
    agreement but the vendor suffers no loss; 4) the purchaser breaches the
    agreement and the vendor suffers a loss and is entitled to damages.

[43]

The agreement of purchase and sale specifically provides for the
    disposition of the deposit upon completion of the agreement: if the agreement
    is completed, the amount of the deposit is to be credited toward the purchase
    price. The agreement does not, however, specifically state what happens to the
    deposit when there is an other termination of the agreement.

[44]

Where the vendor breaches the agreement, the deposit is returned to the
    purchaser. If the purchaser has suffered damages as a result of the vendors
    default, the purchaser may also sue to recover those damages or in an
    appropriate case, may sue for specific performance of the agreement.

[45]

It is well-established by case law that when a purchaser repudiates the
    agreement and fails to close the transaction, the deposit is forfeited, without
    proof of any damage suffered by the vendor: see
Tang v. Zhang
,
2013 BCCA 52, 359 D.L.R. (4th) 104, at para. 30, approved by this court in
Redstone
    Enterprises Ltd., v. Simple Technology Inc.
,
2017 ONCA 282, 137
    O.R. (3d) 374. Where the vendor suffers no loss, the vendor may nevertheless
    retain the deposit, subject to relief from forfeiture.

[46]

This court recently restated the law regarding why a deposit is
    forfeited in
Benedetto v. 2453912 Ontario Inc.
, 2019 ONCA 149, 86
    B.L.R. (5th) 1, at paras. 5-7:

Where a payer (usually the purchaser) gives a
    vendor a deposit to secure the performance of a contract for purchase and sale
    of real estate, the deposit is forfeit if the purchaser refuses to close the
    transaction, unless the parties bargained to the contrary: see
Howe v. Smith
(1884), 27 Ch. D. 89
    (C.A.);
March Bothers & Wells v. Banton
(1911), 1911 CanLII 74 (SCC), 45 S.C.R. 338. In
Howe v. Smith
, Fry L.J. stated at p.
    101:

Money paid as a deposit must, I conceive,
    be paid on some terms implied or expressed. In this case no terms are expressed
    and we must therefore inquire what terms are to be implied. The terms most
    naturally to be implied appear to me in the case of money paid on the signing
    of a contract to be that in the event of the contract being performed it shall
    be brought into account, but if the contract is not performed by the payer it
    shall remain the property of the payee. It is not merely a part payment, but is
    then also an earnest to bind the bargain so entered into, and creates by the
    fear of its forfeiture a motive in the payer to perform the rest of the
    contract.

The deposit stands as security for the
    purchasers performance of the contract. The prospect of its forfeiture
    provides an incentive for the purchaser to complete the purchase. Should the
    purchaser not complete, the forfeiture of the deposit compensates the vendor
    for lost opportunity in having taken the property off the market in the
    interim, as well as the loss in bargaining power resulting from the vendor
    having revealed to the market the price at which the vendor had been willing to
    sell:
H.W. Liebig Co. v. Leading Investments Ltd.
, 1986 CanLII 45 (SCC), [1986] 1 S.C.R. 70, at pp. 86-87.

The motion judge provided a helpful summary of
    the law: a deposit is not part of the contract of purchase and sale, but
    stands on its own as an ancient invention of the law designed to motivate
    contracting parties to carry through with their bargains, something which
    binds the contract and guarantees its performance, and is an earnest to bind
    the bargain so entered into, and creates by the fear of its forfeiture a motive
    in the payer to perform the rest of the contract: see
Tang v. Zhang
, 2013 BCCA 52 (CanLII), 41
    B.C.L.R. (5th) 69;
Comonsents Inc. v. Hetherington
    Welch Design Ltd.
, 2006 CanLII 33779 (Ont. S.C.);
Howe v. Smith
.

[47]

However, forfeiture is always subject to the equitable remedy of relief
    from forfeiture. Section 98 of the
Courts of Justice Act
,
R.S.O.
    1990, c. C.43, provides that: [a] court may grant relief against penalties and
    forfeitures, on such terms as to compensation or otherwise as are considered
    just. In
Stockloser v. Johnson
, [1954] 1 Q.B. 476 (C.A.), the English
    Court of Appeal set out the two pronged test that has been followed in Ontario
    for applying the relief from forfeiture provision: 1) whether the forfeited
    deposit was out of all proportion to the damages suffered; and 2) whether it
    would be unconscionable for the seller to retain the deposit:
Redstone

at para. 15
.

[48]

Up to this point, I have discussed what happens to the deposit when the
    agreement is completed, when the vendor defaults and when the purchaser
    defaults but the vendor suffers no damage. The issue in this case arose when
    the vendor did suffer a loss because of the purchasers breach; in that case,
    is the deposit treated as part payment and credited toward the damages, or is
    it retained in addition to the damages, subject to relief from forfeiture?

[49]

In
Dobson v. Winton & Robbins Ltd.
,
[1959] S.C.R.
    775, where the purchaser defaulted and the vendor eventually resold the land
    for $5000 less than the agreed price, the Supreme Court stated at para. 14,
    without discussion:

[t]he measure of damages in this case is the
    difference between the price provided for in the first contract, $75,000, and
    the price provided for in the second contract, $70,000. Counsel for the
    appellant admits that against the difference of $5,000 must be credited the
    deposit of $4,000; (Mayne on Damages, 11th ed., p. 234; 29 Hals., 2nd ed., p.
    378).

The same proposition is stated in Victor
    Di Castri,
The Law of Vendor and Purchaser
, 3
rd
ed.
    (Toronto: Thomson Reuters, 2016), vol. 2 at p. 17-25, in discussing when a
    deposit is recoverable by a defaulting purchaser: [w]here the land is sold at
    a loss, [the vendor] is entitled to recover that loss, less the amount of the
    deposit.

[50]

The issue of the treatment of the deposit where the vendor suffers a
    loss arose squarely in the recent summary judgment decision,
Bang v.
    Sebastian
, 2018 ONSC 6226, affd 2019 ONCA 501.
[1]
There, two deposits were paid
    totaling $35,000, on substantially identical language as in the agreement of
    purchase and sale in this case. Counsel for the vendor submitted that the
    deposit should be forfeited without crediting it to the damages for the loss,
    on the basis of the case law referred to above that says that the deposit is
    not just part payment but is held as security and is forfeited on breach of the
    agreement.

[51]

The judge in that case rejected the vendors argument. He pointed out
    that the vendor could point to no case where the deposit was forfeited without
    crediting it toward the damages, although there were a number of cases where
    the opposite had occurred:
Goldstein; Blonski v. Jarmakowicz and Kowalski
,
    9 D.L.R. (2d) 66 (Ont. Supreme Court, High Court of Justice); and
Dobson
.

[52]

He found that the result was dictated by the wording of the agreement
    of purchase and sale, at paras. 69 and 71:

Real estate transactions routinely involve the
    payment of deposits. The proper application of the deposit in circumstances
    where the purchaser fails to complete the transaction is governed by the
    parties agreement. Here, the wording of the Agreement of Purchase and Sale
    states expressly that the deposit is to be credited towards the purchase
    price on completion of the transaction.

[]

I find that the wording of the deposit term in
    the Agreement of Purchase and Sale clearly and unambiguously reflects the
    parties intention that the deposit would be applied as a credit to the payment
    obligation owed by the purchaser defendant to the vendor plaintiffs on
    completion of the transaction. There is no difference to the use of the deposit
    in the event of termination of the agreement as opposed to its successful
    completion. Rather, it was intended to be applied as a credit to the obligation
    owed by the purchaser to the vendors: whatever form that obligation might take.
    I conclude that the $35,000 paid by the purchaser defendant is to be paid to
    the vendor plaintiffs and credited against the damages that they have proven

[53]

I agree with this analysis. While the agreement only specifically calls
    for the deposit to be credited to the purchase price on completion of the
    agreement, the measure of damages is based on the difference between the
    purchase price and the lesser amount that the property sold for after the
    purchasers default. In other words, it is based on the vendor receiving the
    purchase price that was bargained for. One can infer that the intent of the
    parties was that the deposit be applied to the purchase price whether received
    on completion or as damages.

[54]

I also agree that the cases discussed above, including
Benedetto
,
    where the deposit is forfeited because it is not just part payment but also a
    security mechanism to incentivize the purchaser to complete the transaction,
    explain why the deposit is forfeited when the vendor suffers no loss. The
    respondents point to one sentence in the
Benedetto
decision where the
    court states that a forfeited deposit does not constitute damages for breach
    of contract but stands as security for the performance of the contract: at
    para. 14. That statement is part of the explanation for the forfeiture of the
    deposit where there is no loss. However, where there is a loss, the deposit is
    treated as part payment for the damages suffered as a result of the loss.

[55]

The motion judge in the instant appeal erred in law by holding that the
    deposit be forfeited and not credited to the vendors damages.

Conclusion

[56]

I would dismiss the appeal on the issues respecting the appellants
    breach of the agreement of purchase and sale, and the issue of mitigation, but
    allow the appeal on the quantum of damages by deducting the amount of the
    deposit, $75,000, from the damages award.

[57]

As success was divided, I would order no costs of the appeal.

Released: KF OCT 15, 2019

K.
    Feldman J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. Fairburn J.A.

[1]
This case was affirmed on appeal but on other grounds;
no
    challenge to the treatment of the deposit was raised.


COURT OF APPEAL FOR ONTARIO

CITATION: Bancroft-Snell v. Visa Canada
    Corporation, 2019 ONCA 822

DATE: 20191017

DOCKET: M49808, M50041 & M50130 (C66008)

Strathy C.J.O., MacPherson,
    Sharpe, Tulloch and Benotto JJ.A.

DOCKET: M50130

BETWEEN

Jonathon Bancroft-Snell
, and
1739793 Ontario Inc.

Plaintiffs
(Moving Parties)

Visa
    Canada Corporation
,
Mastercard
    International Incorporated
, Bank of America Corporation,
Bank of Montreal
,
Bank of Nova
    Scotia
,
Canadian Imperial Bank of Commerce
,
    Capital One Financial Corporation, Citigroup Inc., Federation des caisses
    Desjardins du Quebec,
National Bank of Canada Inc.
,
Royal Bank of Canada
, and
Toronto-Dominion
    Bank.

Defendants
(Moving Parties)

AND BETWEEN

DOCKET: M49808

Jonathon Bancroft-Snell
, and
1739793 Ontario Inc.

Plaintiffs
(Responding Parties)

Visa
    Canada Corporation
,
Mastercard
    International Incorporated
, Bank of America Corporation,
Bank of Montreal
,
Bank of Nova
    Scotia
,
Canadian Imperial Bank of Commerce
,
    Capital One Financial Corporation, Citigroup Inc., Federation des caisses
    Desjardins du Quebec,
National Bank of Canada Inc.
,
Royal Bank of Canada
, and
Toronto-Dominion
    Bank.

Defendants
(Responding Parties)

AND BETWEEN

DOCKET: M50041

Jonathon Bancroft-Snell
, and
1739793 Ontario Inc.

Plaintiffs
(Responding Parties)

Visa
    Canada Corporation
,
Mastercard
    International Incorporated
, Bank of America Corporation,
Bank of Montreal
,
Bank of Nova
    Scotia
,
Canadian Imperial Bank of Commerce
,
    Capital One Financial Corporation, Citigroup Inc., Federation des caisses
    Desjardins du Quebec,
National Bank of Canada Inc.
,
Royal Bank of Canada
, and
Toronto-Dominion
    Bank.

Defendants
(Responding Parties)

Reidar Mogerman and Katie Duke, for
    Jonathan Bancroft-Snell and 1739793 Ontario Inc., moving parties (M50130),
    responding parties (M49808 & M50041)

Robert E. Kwinter, for Visa Canada
    Corporation, moving party (M50130), responding party (M49808 & M50041)

Jeffrey B. Simpson and James B.
    Musgrove, for Mastercard International Incorporated, moving party (M50130),
    responding party (M49808 & M50041)

Katherine L. Kay, for Bank of Montreal,
    Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada
    and Toronto-Dominion Bank, moving parties (M50130), responding parties (M49808
    & M50041) (no submissions made)

Sean Griffin and Antoine Brylowski, for
    National Bank of Canada Inc., moving party (M50130), responding party (M49808
    & M50041)

James C. Orr and Kyle R. Taylor, for
    Home Depot of Canada Inc., moving party (M49808), responding party (M50130)

Edward J. Babin, Cynthia L. Spry, and
    Michael Bookman, for Wal-Mart Canada Corp., moving party (M50041), responding
    party (M50130)

Heard: September 4, 2019

Strathy C.J.O.:

[1]

This appeal focuses on the procedural rights of
    class members in certified class proceedings, specifically the right to
    challenge settlement approval orders by way of appeal under the
Class
    Proceedings Act,
1992, S.O. 1992, c. 6

(
CPA
).

[2]

The nature of a class proceeding and the goals
    of the
CPA
impact the procedural rights afforded to class members.
    Class actions permit the efficient resolution of disputes in a manner that is
    fair to all parties and promote access to justice, judicial economy and
    behaviour modification. In part, efficiency is achieved through the appointment
    of one or more class members as representative plaintiffs, to conduct the
    litigation in the best interests of all class members.

[3]

While class members have a
sui generis
status,
    they do not possess the same degree of autonomy as parties to the litigation
    and do not enjoy the rights or bear the responsibilities of parties. Class
    members have a right to notice of a certified class proceeding, the right to
    opt out of the class, and the right to object to settlement agreements.
    However, class members who do not choose to opt out of the class proceeding,
    are bound by the outcome. A settlement of a class proceeding that is approved
    by the court binds all class members.

[4]

In contrast to class members who do not play an
    active role, the representative plaintiff has carriage of the litigation on
    behalf of the class and, with the advice of class counsel, makes all litigation
    decisions on behalf of the class, including the decision to accept or reject a
    defendants settlement offer. Significantly, it is the representative plaintiff
    who bears the litigation risk, including the risk of an adverse costs award.

[5]

In the present appeal, two class members,
    Wal-Mart and Home Depot (the responding parties to Motion M50130, responding
    parties), neither of which is a representative plaintiff, have appealed an
    order of Perell J. of the Superior Court of Justice approving a partial
    settlement of this certified class action. They did not avail themselves of an
    opportunity to opt out of the class action at the time of an earlier
    settlement. Accordingly, subject to their right to object at the settlement
    approval hearing, they were bound by any judgment or settlement in the class
    action. They took advantage of the opportunity to object before the settlement
    approval judge, who did not give effect to their objections.

[6]

The moving parties moved to quash the appeal on
    the ground that the responding parties have no standing to appeal. This motion
    is supported by the representative plaintiff and by three defendants, Visa,
    Mastercard, and National Bank. There are related motions before us: one by
    Wal-Mart, pursuant to s. 30(5) of the
CPA
, seeking leave to act as the
    representative plaintiff for the purpose of the appeal; and one by Home Depot,
    for an order granting leave to act as the representative plaintiff in the event
    that the moving parties motion is granted.

[7]

A five-judge panel was convened, at the request
    of the responding parties, to enable them to advance the submission that the
    decision of this court in
Dabbs v. Sun Life Assurance Company of Canada
(1998), 41 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No.
    372 (
Dabbs
), should be overruled. That decision held that a class
    member has no right to appeal a settlement approval order.

[8]

I would dismiss the responding parties motions,
    grant the moving parties motion, and quash the appeal. My reasons are set out
    below.

I.

Dabbs
remains
    good law and has not been overtaken by other decisions

[9]

Dabbs
held that
    class members rights of appeal in class proceedings are found in the
CPA
and are not supplemented by the general appeal rights in s. 6(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990 c. C.43 (the
CJA
).

[10]

The responding parties contend that subsequent
    decisions have established that s. 6(1)(b) of the
CJA
can provide an
    appeal route where the matter is not specifically addressed in the
CPA
.

[11]

I do not accept this submission.
Dabbs
remains good law. It has stood for more than 20 years and has been consistently
    applied in Ontario: see e.g.
Cavanaugh v. Grenville Christian College
,
    2013 ONCA 139, 360 D.L.R. (4th) 670;
Locking v. Armtec Infrastructure Inc.
,
    2012 ONCA 774, 299 O.A.C. 20;
Davies v. Clarington (Municipality)
,
    2010 ONSC 418. Its logic and authority have never been questioned. It was
    expressly applied in the decision of this court in
Directright Cartage Ltd.
    v. London Life Insurance Co.
, 2002 O.J. No. 512 (C.A.). See also
Labourers
    Pension Fund of Central and Eastern Canada
, 2013 ONCA 500, 12 C.B.R. (6th)
    124, leave to appeal refused, [2013] S.C.C.A. No. 395.

[12]

The responding parties have not demonstrated
    that the
ratio
of
Dabbs
is flawed in any way. Appeal rights
    are statutory.
Dabbs
was decided on the basis of statutory interpretation.
    The responding parties have not advanced any other persuasive interpretation of
    the
CPA
.

[13]

The responding parties submission that
Dabbs
has been superseded by subsequent decisions is not borne out by an analysis
    of those decisions, none of which involved an appeal by a class member who was
    not a representative party. All of those decisions are readily distinguished on
    that basis:
Welsh v. Ontario
, 2019 ONCA 41, 432 D.L.R. (4th) 117 (the
    appellant was the representative plaintiff);
Airia Brands Inc. v. Air
    Canada
, 2017 ONCA 792, leave to appeal refused, [2017] S.C.C.A. N. 476
    (the appellants were the representative plaintiffs);
Waldman v. Thomson
    Reuters Canada Limited
, 2015 ONCA 53 (the appellant was a party to the
    action);
Sutts, Strosberg LLP v. Atlas Cold Storage Holdings Inc.
,
    2009 ONCA 690, 311 D.L.R. (4th) 323 (the appellants were class counsel);
Main
    v. The Hershey Company
, 2011 BCCA 21, 20 B.C.L.R. (5th) 11, leave to appeal
    refused, [2011] S.C.C.A. No. 105 (the appellants were non-settling defendants).

[14]

Dabbs
was cited
    with approval by the Court of Appeal for British Columbia in
Coburn and
    Watsons Metropolitan Home v. Home Depot of Canada Inc.
, 2019 BCCA 308 (
Coburn
),
    released August 30, 2019. That case, a class proceeding related to this, raised
    precisely the same issue as these motions. The court found the reasoning in
Dabbs
compelling: at para. 32. It rejected the responding parties submission that
    the authority of
Dabbs
had been undermined by more recent case law.
    The court observed, at para. 34:

None of the cases directly questioned the
    authority of
Dabbs
and some do not refer to it. Rather, the cases deal
    with different issues and rest on the principle that if the availability of
    appeal rights are not effectively addressed by the
CPA
, then the
    general jurisdiction to entertain appeals governs.

[15]

I agree with this observation.

[16]

In summary, appeal rights in class proceedings
    can be described as follows:

·

The effect of s. 30 of the
CPA
is that
    the Divisional Court and the Court of Appeal have divided appellate
    jurisdiction with respect to appeals of various types of orders and judgments
    in class proceedings.
Parties
have those appeal
    rights that are expressly designated by s. 30. Appeals, both as of right and
    with leave, must be taken to the court stipulated in s. 30.

·

Where s. 30 does not specifically address the
    appeal route for a particular type of order or judgment, s. 6(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 will govern whether an appeal lies to
    this court or to Divisional Court. Accordingly,
parties
may appeal final orders of those matters not specifically mentioned in s. 30 of
    the
CPA
to the Court of Appeal.

·

Class members
who are not representative parties have no direct right of appeal
    pursuant to s. 30 of the
CPA
. If a representative plaintiff does not
    appeal pursuant to s. 30(3) or abandons an appeal pursuant to s. 30(3), class
    members have a right to seek leave to appeal pursuant to s. 30(5). That right
    exists only in respect of those matters specified in s. 30(3), those being
    judgments on common issues or determinations of aggregate damages.

[17]

As the responding parties have no direct right
    of appeal, I turn to the issue of whether they may seek leave to appeal
    pursuant to s. 30(5).

II.

Settlement approval is neither a judgment on
    common issues nor a determination of aggregate damages

[18]

The responding parties second argument is that
    a settlement approval order should be understood as a judgment on common
    issues or a determination of aggregate damages, with the result that a class
    member may appeal the disposition with leave if the representative plaintiff
    fails to pursue an appeal, pursuant to ss. 30(3) and 30(5) of the
CPA
.
    The responding parties rely on
Dabbs
at paras. 18 to 21, in which
    OConnor J.A. considered, and dismissed, a motion by class members for leave
    pursuant to s. 30(5) of the
CPA
.

[19]

I would reject this submission. There is nothing
    in the settlement agreement, the order approving the agreement, or the reasons
    of the class proceedings judge to indicate that the court was pronouncing
    judgment on a common issue or making an aggregate assessment of damages. It was
    simply a determination that the settlement was fair and reasonable and in the
    best interests of the class. I respectfully agree with the observation of
    Harris J.A. in
Coburn
, who rejected a similar submission, observing at
    para. 21:

In my opinion, a judgment on a common issue
    involves an adjudication by a court of contested issues. It does not capture an
    order approving a settlement in which, typically, liability is disavowed as a
    condition of the settlement.

[20]

To avoid any future uncertainty on the point, I reject
    the responding parties suggestion that the final four paragraphs of
Dabbs
confirm that a class member may appeal the approval of a settlement, with
    leave, under s. 30(5) of the
CPA
. The court in
Dabbs
indicated
    that it would have denied leave in any event and did not address the
    substantive basis of this argument. In my view, for the reasons I have given, a
    settlement approval is not a judgment on the common issues and s. 30(5) is
    inapplicable.

III.

Giving individual class members the right to
    appeal the settlement of class action would lead to uncertainty and
    inefficiency

[21]

Third, and finally, the responding parties argue
    that because the vast majority of class proceedings are resolved through settlement,
    it would be unreasonable to accept that the legislature intended that there be
    no avenue of appellate review of settlement approvals. Because access to
    justice and the protection of class members is a primary purpose of the
CPA
,
    it would be unreasonable, they say, to deny class members an opportunity to
    appeal.

[22]

I respectfully disagree. There are sound policy
    reasons why class members should not be entitled to appeal a settlement order
    where the representative plaintiff declines to do so. The Court of Appeal for
    British Columbia identified some of these reasons in
Coburn
, at paras.
    14 and 15. To permit a class member to appeal a settlement proposed by the
    representative plaintiff, recommended by class counsel, and approved by the
    class proceedings judge, would be problematic in several ways. It would introduce
    uncertainty into the negotiation and approval of class action settlements,
    undermine the authority of the representative plaintiff and class counsel, and impede
    settlement. As the moving parties note, abuses have been experienced in the
    United States where appeals by objecting class members have been permitted.
    See:
Abihsira v. Johnston
, 2019 QCCA 657, [2019] J.Q. No. 2785, at
    para. 85; B. D. Greenberg, Keeping the Flies Out of the Ointment: Restricting
    Objectors to Class Action Settlements (2010) 84 St. Johns L. Rev. 949 at 951.

[23]

Notably, the Ontario Law Commission, in its recent
    report, Class Actions: Objectives, Experiences and Reforms, made no
    recommendation to this effect, although it did make recommendations concerning
    appeal routes for parties.

IV.

Disposition

[24]

For these reasons, I would dismiss the responding
    parties motions, grant the moving parties motion and quash the appeal.

[25]

In the event the parties are unable to agree on
    costs, they may make written submissions.

Released: G.S.   OCT 17 2019

G.R. Strathy C.J.O.

I agree. J.C. MacPherson J.A.

I agree. Robert J. Sharpe J.A.

I agree. M. Tulloch J.A.

I agree. M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaucage v. Storr, 2019 ONCA 818

DATE: 20191015

DOCKET:
C66334

Lauwers, Fairburn and Zarnett
    JJ.A.

BETWEEN

Nathan
Beaucage

Applicant

(Respondent
    on Appeal)

and

Tracey
Storr
aka Tracey Lstorr,

Arthur Painter aka Thomas
    Arthur Storr

Respondents

(Appellants
    on Appeal)

Edward Rae, for the appellants

Jason Herbert, for the respondent

Heard: September 23, 2019

On
    appeal from the judgment of Justice Thomas M. Wood of the Superior Court of Justice,
    dated December 20, 2018, with reasons reported at 2018 ONSC 7611.

REASONS FOR DECISION

[1]

The appellants appeal the order of the
    application judge which dealt with the title to property at 90 Cotton Grass
    Street, Kitchener, Ontario (the property).
[1]

[2]

Prior to December 16, 2015, the property was
    owned by the appellant, Arthur Painter, also known as Thomas Arthur Storr
    (Arthur).

[3]

The respondent, Nathan Beaucage (Nathan), born
    September 21, 1985, is the son-in-law of Arthur, married to but now separated
    from Arthurs son, Jeffrey Storr (Jeffrey). The appellant, Tracey Storr
    (Tracey), born October 23, 1973, is Arthurs daughter. Her middle initial is
    L.

[4]

On December 16, 2015, a transfer of the property
    was registered. The transferor named was Arthur Thomas Painter. The
    transferees named were Nathan Beaucage, with a date of birth of September 1,
    1984, and Tracey Lstorr, with a date of birth of October 23, 1973, as joint
    tenants.

[5]

The parties disagree about the validity and
    effect of the 2015 transfer. The appellants position is that Arthur intended
    to transfer the property to his son and daughter, not to his son-in-law. The
    appellants rely, among other things, on the birthdate for Nathan Beaucage on
    the transfer, which is not Nathans actual date of birth, as well as the
    spelling of Traceys name on the transfer, as part of the constellation of
    facts they say cast doubt on the validity of the transfer.

[6]

The parties agreed before us that the validity
    and effect of the 2015 transfer remains to be determined in litigation among
    them, and was not intended to be determined by the order the application judge
    was asked to make. Including the application in which the order below was made,
    there are three separate applications pending among the parties. The parties
    also agreed before us that the continuing applications should be consolidated
    and resolved by a trial.

[7]

What was intended to be dealt with by the order
    of the application judge was the effect of a purported transfer of the property
    registered on November 28, 2017. In that document the transferors named were
    Nathan Beaucage and Tracey Lstorr, and the transferees named were Tracey
    Lstorr and Arthur Painter, as joint tenants.

[8]

All parties agree that the 2017 transfer was
    fraudulent. As the application judge noted in para. 7 of his reasons: It is
    admitted by the respondents [Arthur and Tracey] that  Jeffrey fraudulently
    posed as Nathan and executed the necessary documents in the lawyers office in
    that capacity. Nathan had no knowledge of the transfer and never consented to
    it.

[9]

The issues between the parties on this appeal
    are narrow, and turn on whether the application judges order went beyond the
    determinations properly flowing from the admitted invalidity of the 2017
    transfer in light of the fact that the validity and effect of the 2015 transfer
    are still to be determined.

[10]

The application judges order provides that
    title to the property is vested in Nathan and Tracey, as joint tenants, and is
    to reflect the correct spelling and birthdates of both (para. 1). He ordered
    that any right title or interest in the property held by Arthur is extinguished
    (para. 2). He ordered the Land Registrar at Kitchener to amend the register to
    show title in accordance with his order (para. 3). And he directed that a
    certificate of pending litigation issue for registration against the property
    (para. 4).

[11]

The appellants complain that paragraphs 1 and 2
    of the order not only set aside the effect of the 2017 transfer, but trench
    upon what is still to be determined about the validity and effect of the 2015
    transfer. Extinguishing Arthurs interest in the property may foreclose an
    argument that the 2015 transfer was ineffective, affecting Arthurs right to
    the property in that eventuality. Recording Nathans actual date of birth on
    title and the correct spelling of Traceys name goes further than removing the
    effect of the 2017 transfer and may foreclose arguments arising from the
    description of the transferees as they appeared in the 2015 transfer. The
    appellants also maintain that certain findings of fact that the application
    judge made were not necessary to deal with the fraudulent 2017 transfer and
    overlap with what must be decided about the circumstances leading up to and
    involving the 2015 transfer.

[12]

The respondent argues that the impugned
    provisions of the application judges order, properly read in context, do not
    go farther than to delete the effect of the 2017 transfer. He says for example
    that para. 2 of the order is only intended to extinguish Arthurs interest to
    the extent that it arose from the 2017 transfer. He says it was right to
    correct his date of birth on title from the way it was shown on the 2015
    transfer. And he says that the application judge recognized that he was not
    finally determining all issues in his reasons by his references to this being
    the opening salvo in what will no doubt be a protracted [legal] battle, and
    by his granting of a certificate of pending litigation (which assumes further
    litigation).

[13]

In our view, portions of the order below go
    beyond what was required to deal with the effect of the 2017 transfer and
    restore title to its state prior to that transfer. Given the parties acknowledgement
    before us that the issues of the validity and effect of the 2015 transfer are
    to be determined in the pending applications and require a trial, the order
    should be varied to avoid any uncertainty as to its effect.

[14]

We therefore allow the appeal in part and vary
    the application judges order by replacing paragraphs 1, 2 and 3 with an order
    declaring the 2017 transfer to be void and directing the Land Registrar at
    Kitchener to delete the 2017 transfer (Registration Number WR1082048) from the
    parcel register for the property.
[2]
The order for a certificate of pending litigation should remain in place. The
    parties should attend before the Superior Court to implement their mutual
    intention that the balance of application CV 18-110 be consolidated with the
    other two pending applications (CV 18-178 and CV 17-172) and tried, and to
    obtain the appropriate procedural directions in order to obtain an expeditious
    determination of those matters.

[15]

The application judges findings of fact, to the
    extent they bear on issues relating to the validity and effect of the 2015
    transfer, should not be treated as binding in the continuing proceeding.

[16]

We would not interfere with the order for costs
    below. The parties should bear their own costs of this appeal.

P. Lauwers J.A.

Fairburn J.A.

B. Zarnett
    J.A.

[1]
The legal description of the property is: PART BLOCK 2, PLAN
    58M-133, DESIGNATED AS PART 81 ON PLAN 58R-12162. CITY OF KITCHENER. The
    property identification number (PIN) is 22727-0853.

[2]

Referred to in footnote 1 of these reasons.