COURT OF APPEAL FOR ONTARIO

CITATION: Kelava v. Spadacini, 2021 ONCA 428

DATE: 20210617

DOCKET: C68394

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

David Kelava and The United
    Brotherhood of Retail, Food,
Industrial and Service Trades International Union

Defendants/Applicants
(Appellants)

and

Dante Spadacini

Plaintiff/Respondent
(Respondent)

Melvyn L. Solmon and Laney J. Paddock,
    for the appellants

Dante Spadacini, acting in person

Heard: April 21, 2021 by video conference

On appeal from the judgment of the
    Divisional Court (Justices Lynne Leitch, Harriet E. Sachs and David L. Corbett),
    dated October 30, 2019, with reasons reported at 2019 ONSC 6314, affirming the order
    of Deputy Judge Thomas H. Clemenhagen, dated June 21, 2018.

Benotto J.A
.:

[1]

This appeal involves the jurisdiction of the
    Small Claims Court to appoint a representative defendant for an unincorporated association.

A.

FACTS

[2]

The respondent, Dante Spadacini, brought a
    wrongful termination claim in Small Claims Court against the appellants David
    Kelava and The United Brotherhood of Retail, Food, Industrial and Service
    Trades International Union (the Union). The monetary amount of the claim is
    within the jurisdiction of the Small Claims Court.

[3]

The Deputy Judge made an order amending the style
    of the action to change the wording of the defendants name slightly by
    adding the named defendant David Kelava as a representative of the Union.
    Although the
Rules of the

Small
    Claims Court
, O. Reg. 258/98 do not explicitly
    deal with representation orders, the Deputy Judge applied r. 1.03(2) which gives
    the court discretion to refer to the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, if a matter is not
    adequately covered by the
Small Claims Court Rules
. The
    deputy judge then referred to r. 12.07 of the
Rules of Civil Procedure
. This rule (typically used when a union is sued) provides
    that one or more persons may be authorized by the court to defend an action
    when numerous persons have the same interest.

[4]

The Union applied for judicial review to the
    Divisional Court on the basis that the deputy judge lacked jurisdiction to make
    the order because there is a clear omission in the
Small Claim Court Rules
preventing reference to the
Rules of Civil Procedure
.

[5]

The Divisional Court upheld the deputy judges
    order, unanimously ruling that he did not err.

[6]

The Union now appeals to this court.
[1]

B.

POSITIONS OF THE PARTIES

(1)

Appellants

[7]

The appellants submit that
the Divisional Court erroneously expanded the jurisdiction of the
    Small Claims Court. They say that there is a precondition to the application of
    r. 1.03(2) and it was not met here. They submit that r. 1.03(2) can only be
    applied in order to refer to the Rules of Civil Procedure if there is a gap as
    opposed to an omission in the
Small Claims Court Rules
.

[8]

The appellants argue that there is an omission,
    not a gap, in the
Small Claims Court Rules
and rely on
this courts decisions in
Van
    de Vrande v. Butkowski
, 2010 ONCA 230, 99 O.R. (3d) 648, and
Riddel v.
    Apple Canada Inc.
, 2017 ONCA 590, 139 O.R. 595. They argue that a gap is
    something that is covered inadequately by the
Rules
, whereas an
    omission is not addressed in the
Rules
at all and consequently, there
    is no ability for the Small Claims Court to make reference to r. 1.03(2)
    or to the
Rules of Civil Procedure
.

[9]

The appellants further argue that the Small
    Claims Court does not have the jurisdiction to hear actions by or against
    unincorporated associations. They rely on the absence of reference to
    unincorporated associations in the
Small Claims Court Rules.

(2)

Respondent

[10]

The respondent submits that the
Small Claims
    Court Rules
are clear and unambiguous in that the court may give
    directions and make orders when the rules do not cover a matter adequately.
    This is exactly what the deputy judge did. He identified an area where the
    rules did not adequately cover a matter  the ability to make representation
    orders  and made reference to the
Rules of Civil Procedure
. There are
    also Ontario regulations premised on unincorporated associations falling under
    the jurisdiction of Small Claims Court. Specifically,
Ontario Regulation
    332/16 Small Claims Court  Fees and Allowance
includes unincorporated
    organizations in the definition of claimant.

[11]

The respondent points to several Small Claims
    Court actions commenced by and against unincorporated associations, including
    unions: see
Ryan v. PACI Band Parents Association
,

[2003]
    O.J. No. 3732 (Sup. Ct. (Sm. Cl. Div.))
;
De Yound v. Van Bart
,

[2006]
    O.J. No. 4491 (Sup. Ct. (Sm. Cl. Div.));
Communications, Energy and
    Paperworks Union of Canada, Local 593 v. Matthews
, [2006] O.J. No. 872 (Sup.
    Ct. (Sm. Cl. Div.));
Communications, Energy and Paperworks Union of Canada,
    Local 593 v. Dennis Garrat
t (unreported); and
Arnett v. Rail Canada
    Traffic Controllers
,
[1991] O.J. No. 2656 (Prov. Ct. Civ. Div. Sm. Cl. Ct.)).

C.

ANALYSIS

[12]

Is the Small Claims Court prevented from naming
    a representative defendant in an action against an unincorporated association?

[13]

I conclude that the answer is no.

[14]

I say this for these reasons: (i) the deputy judge
    had the authority under the
Small Claims Court Rules
to make the order
    without reference to the
Rules of Civil Procedure
; (ii) the deputy
    judge did not err by referring to the
Rules of Civil Procedure
; and (iii)
    the legislature did not deliberately omit unincorporated associations from the
    jurisdiction of the Small Claims Court.

The authority to make the order is in the Small
    Claims Court Rules

[15]

The Small Claims Court is a branch of the
    Superior Court of Justice. It handles nearly half of the civil disputes in the
    province. The court is meant to provide an efficient, cost-effective forum for
    the resolution of civil disputes involving less than $35,000. It hears cases in
    a summary way
and may make such order as is considered
    just and agreeable to good conscience:
The Courts
    of Justice Act,

R.S.O. 1990,
    c. C.43, s. 25.

[16]

In short, the court embodies the foundations of
    access to justice: informality, affordability, timely resolution, accessibility
    for self-represented people and active judicial engagement. By providing access
    to justice, the court has an important role in the administration of justice
    for the province.

[17]

The authority to make a representation order is
    found in the
Small Claims

Court Rules
.

[18]

The rules are to be read in their entire context
    having regard to their nature, purpose, scheme, and object.  The
Small
    Claims Court Rules
, read in their entirety, emphasize facilitating access
    to justice. They begin with guidance as to their interpretation. Rule 1.03(1)
    provides:

These rules
    shall be
liberally construed
to secure the
just, most expeditious and
    least expensive
determination of every proceeding on its merits in
    accordance with section 25 of the
Courts of Justice Act.
O. Reg.
    258/98, r. 1.03 (1). [Emphasis added.]

[19]

To further provide for the achievement of their objectives, the rules
    give broad discretion to the court. If the rules do not directly address a
    matter, the court may give directions and make any order that is just. In
    order to implement the order, the practice is to be decided by
analogy to the

Small Claims Court Rules
. Then, if the
    court considers it appropriate the court
may

refer to the
Rules of Civil Procedure
.

Rule 1.03(2) provides:

If these
    rules do not cover a matter adequately, the court
may
give directions
    and make any order that is just, and the practice shall be decided
by
    analogy to these rules
, by reference to the
Courts of Justice Act
and the Act governing the action and
,
if the court
    considers it appropriate
, by reference to the Rules of Civil Procedure.
O. Reg.
    78/06, s. 3. [Emphasis added.]

[20]

The
Small Claims Court Rules
provided the authority to make the order even
without reference
to the

Rules
    of Civil Procedure.
I say this for several reasons.

[21]

First, pursuant to a plain reading of r. 1.03(2) the court may give
    directions and make any order that is just. This provides the court with
    authority to manage its own process.

[22]

Second, with respect to the pleadings, it has long been the case that a
    liberal, non-technical approach should be taken to the pleadings in Small
    Claims Court (
Brighton Heating & Air
    Conditioning
v.
Savoia
(2006), 79 O.R. (3d) 386 (Div. Ct.), at para. 40). The court has the
    power to grant necessary amendments to secure the just determination of the
    real matters in dispute. Rule 2 provides:

2.01
A
    failure to comply with these rules is an irregularity and does not render a
    proceeding or a step, document or order in a proceeding a nullity, and the
    court may grant all necessary amendments or other relief, on such terms as are
    just, to secure the just determination of the real matters in dispute.

2.02
If necessary in the interest of justice, the court may dispense with compliance
    with any rule at any time.

[23]

Third, if a matter is not adequately covered, the court is to decide
    the matter by analogy to other Small Claims Court rules  the very rules that
    emphasize the just, most expeditious and least expensive process. It is
    inconsistent with this objective to require a litigant to endure the time,
    expense and delay of an application to the Superior Court only to obtain a
    representation order when the matter is within the monetary jurisdiction of the
    Small Claims Court.

Reference to the Rules of Civil Procedure was
    not an error

[24]

The appellants submit that the Deputy Judge had no authority to apply
    r. 1.03(2) in order to refer to the
Rules of Civil
    Procedure
.

[25]

I disagree.

[26]

The Deputy Judge was not required to have reference to the procedure in
    r. 12 of the
Rules of Civil Procedure
at all. Reference to the
Rules of Civil
    Procedure
is discretionary and was not necessary in
    this case.

[27]

Recall the wording of s. 1.03(2). If the matter is not adequately
    covered, the court may give directions and,
if the court considers it appropriate,
 do
    so with reference to the
Rules of Civil Procedure
.

[28]

For these reasons, I conclude that the
Small
    Claims Court Rules
provide the authority to make the
    order appealed from. That said, I turn to the appellants submissions with
    respect to the courts jurisdiction.

Jurisdiction regarding unincorporated
    associations

[29]

The appellants say that nonetheless, the deputy judge could not make
    the order at all, because the Small Claims Court has no jurisdiction with
    respect to unincorporated associations. They submit that the legislative intent
    is evident from the fact that the rules do not refer to unincorporated
    associations. This prevents reference to the
Rules
    of Civil Procedure
which can only be used where there
    is a gap as opposed to an omission in the
Small
    Claims Court Rules
.

[30]

The appellants rely on this courts decisions in
Van de Vrande
and
Riddel
which, they submit, have
developed the test to apply when the Small Claims Court decides a
    practice following the
Rules of Civil Procedure
. That test is to determine whether there is a gap or an omission
    in the
Small Claims Court Rules
. If the former, the court can have reference to the
Rules of Civil Procedure
. If the latter,
    then the legislature must have intended there to be no jurisdiction.

[31]

The appellants misconstrue both
Van de
    Vrande
and
Riddel.

[32]

In
Van de Vrande
,
    this court held that motions for summary judgment based on principles emanating
    from r. 20 of the
Rules of Civil Procedure
are not available under the
Small Claims Court
    Rules
, in part because the
Small Claims Court Rules
allow a process
    whereby a claim could be struck. Consequently, the omission of the summary
    judgment rule was an omission not a gap. Importantly, this court read the
Small Claims Court Rules
liberally and
    upheld the deputy judges order dismissing the claim.
Van de Vrande
actually confirms my view
    that it was not necessary to invoke the
Rules of
    Civil Procedure
at all because the court had the
    authority to give directions.

[33]

Nor does
Riddell
assist
    the appellants.

[34]

Riddel
, at
    para. 7,

clarifies that when there is a marker in the Rules of a
    deliberate legislative decision to omit a procedure, then the
Small Claims
    Court Rules
should not be supplemented.
Riddel
found no such
    marker when the court ordered an inspection of property. Rather the court
    concluded that the
Small Claims Court Rules
authorized the impugned
    order without reference to the
Rules of Civil Procedure
.

[35]

An example of a marker limiting jurisdiction is shown
    in
Bruyea
v.
Canada
    (Veteran Affairs)
,

2019
    ONCA 599, 147 O.R. (3d) 84. There, the issue was whether the Small Claims Court
    had the authority to dismiss an action under s. 137.1 of the
Courts of
    Justice Act
. This is the so-called anti-SLAPP
[2]
law. It is meant to address
    concerns arising from the use of litigation to interfere with freedom of
    expression and quickly dismiss unmeritorious claims that unduly encroach on an
    individuals right to freedom of expression on matters of public interest:
Bruyea
,
    at para. 11. The process permits the summary dismissal of an action. In
Bruyea
,
    this court determined that, by drafting the
Act
to refer exclusively
    to judge, not deputy judge or court, the legislature put down a marker
    of an intent to omit the jurisdiction from the Small Claims Court. Interestingly,
    the court commented on access to justice, at para. 27, by noting that:

ironically, s. 137.1
    is not a provision providing access. To the contrary, at least viewed from the
    perspective of the plaintiff, it is the very opposite. It is a provision that
    is intended, in proper circumstances, to prohibit access to the courts.

[36]

Here, there is no such marker. There is no language
    in a statute that marks a clear intent to exclude representative defendants
    from the courts jurisdiction.
On the contrary, there
    is extensive language regarding the ability of the court to manage its process in
    a cost-effective way
.

[37]

Finally, I note the appellant appears to have
    conflated the right to sue with the representation order. The appellant submits
    that unincorporated associations do not have legal personality. This is
    incorrect for trade unions. A trade union is a legal entity with legal
    personality: see
Berry v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R. 493, at para. 39.  However, because of
    the statutory requirements in the
Rights of Labour
    Act
, R.S.O. 1990, c. R.33, the only way to sue a
    union in Ontario is to obtain a representation order:
Lawrence v. IBEW, Local 773
, 2017 ONCA
    321, 138 O.R. (3d) 129, at para. 16.

D.

CONCLUSION

[38]

I would dismiss the appeal with costs payable to
    the respondent fixed in the amount of $5,000 for the appeal, plus $2,000 for
    the motion for leave to appeal for a total of $7,000 inclusive of tax and
    disbursements.

Released: June 17, 2021 M.L.B.

M.L.
    Benotto J.A.

I
    agree B.W. Miller J.A.

I
    agree Gary Trotter J.A.

[1]

No submissions were made as to the standard of review. In
    any event, as I explain, the decision under review is correct.

[2]

Strategic Lawsuits Against Public Participation


COURT OF APPEAL FOR ONTARIO

CITATION: Parliament v. Conley, 2021 ONCA 437

DATE: 20210616

DOCKET: C67348

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Cole Parliament, an incapable by his Litigation Guardian,

Kimberley York, John Parliament, and the said

Kimberley York
    personally

Plaintiffs (Appellants)

and

D.W. Conley and V. Park

Defendants (Respondents)

Gavin
    MacKenzie, Brooke MacKenzie, Hilik Y. Elmaleh and Michael A. Hershkop, for the
    appellants

Darryl
    Cruz, Dorothy Charach and Joseph Ur, for the respondents

Heard: October 20,
    2020 by video conference

On appeal
    from the order of Justice Susan Woodley of the Superior Court of Justice, dated
    August 30, 2019.

ADDENDUM

[1]

Given the lack of agreement between the parties
    on the subject of the costs below, the issue is reserved to the trial judge
    hearing the second trial.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

6.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

8.

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2021 ONCA 435

DATE: 20210617

DOCKET: C68257

Feldman, Miller and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Gary Anderson

Appellant

Joshua Clarke, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: June 15, 2021 by
    videoconference

On appeal from the conviction entered on
    October 1, 2019 by Justice Kenneth E. Pedlar of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

Robert Gary Anderson appeals his conviction
    after a trial by judge and jury of criminal harassment, and he seeks leave to
    appeal his sentence. We are not persuaded that the trial judge erred, either in
    convicting or sentencing Mr. Anderson.

[2]

Mr. Anderson contends that it was unfair for the
    trial judge to describe an inconsistency in the complainants evidence only
    when summarizing the defence position and not in his final summary of the
    evidence. Specifically, at one point, when asked if she was afraid of the
    appellant the complainant replied, Yeah, I am, but Im not because it was
    Gary. Mr. Anderson points out that, in contrast, when summarizing the
    evidence, the trial judge offered an innocent explanation for an apparent
    conflict in the Crowns testimony relating to the size of a dog. We see no
    unfairness or imbalance in the charge. The trial judge alerted the jury to the
    complainants testimony that she was scared but she was not because it was Gary
    and reminded the jury of defence counsels submission that this comment was an inconsistency
    in her evidence. The trial judge was entitled to comment on the apparent
    inconsistency about the size of the dog. We are not satisfied that the charge
    was unbalanced.

[3]

In his charge, the trial judge did misstate the
    date the complainant blocked the appellants number but this error was not prejudicial,
    given that the trial judge twice alerted the jury to the correct date and
    reminded the jury to rely on their own recollection of the evidence. Moreover,
    we are not persuaded that the pinpoint date for blocking the number has the
    importance that defence counsel suggests.

[4]

With respect to the juror that Mr. Anderson and
    the trial judge believed fell asleep during the trial, we are not persuaded
    that there was a real danger of prejudice. Mr. Andersons counsel raised no
    objection while this was allegedly occurring, giving it only passing reference
    after it happened. The failure of Mr. Andersons counsel to object suggests
    that the incident was not a significant one. Nor do the trial judges comments
    suggest that this incident was a matter of concern. Moreover, since Mr.
    Andersons counsel did not raise this promptly, or request an inquiry, Mr
    Anderson is not now in a position to demonstrate that the juror in fact fell
    asleep, for how long, or that this compromised the ability of the juror to
    adjudicate fairly. We can find no miscarriage of justice.

[5]

With respect to Mr. Andersons sentence appeal,
    the two-year suspended sentence the trial judge imposed was entirely fit. The
    contact was unrelenting, even after many demands that it must cease. Even
    though the trial judge expressed the view that this case could have been dealt
    with by a peace bond in provincial court, in imposing the suspended sentence the
    trial judge took all of the circumstances into account and decided, as he was
    entitled to, that a fit sentence required Mr. Anderson to be convicted and not
    discharged.

[6]

The conviction appeal is dismissed. We grant Mr.
    Anderson leave to appeal his sentence but the sentence appeal is also
    dismissed.

K.
    Feldman J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wightman (Re), 2021 ONCA 429

DATE: 20210617

DOCKET: C68894

Rouleau, Hoy and van Rensburg
    JJ.A.

IN THE MATTER OF: Alexander Wightman

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Natalya Odorico, for the respondent,
    Attorney General of Ontario

Julie A.
    Zamprogna Ballès, for the respondent, Person in Charge of Southwest Centre for
    Forensic Mental Health Care, St. Josephs Health Care London

Heard: June 3, 2021 by video
    conference

On appeal from the disposition of the
    Ontario Review Board, dated November 10, 2020, with reasons dated December 3,
    2020.

van Rensburg J.A.:

A.

Overview

[1]

The appellant appeals the most recent disposition of the Ontario Review
    Board (the Board) dated November 10, 2020, continuing his conditional
    discharge. He contends that the Boards conclusion that he continued to
    represent a significant threat to the safety of the public, was unreasonable.
    The appellant also relies on fresh evidence  a letter providing certain
    information about his current status, and confirming that an early hearing has
    been scheduled at the request of St. Josephs Health Care, London (the
    Hospital), at which the Hospital intends to recommend an absolute discharge.
    The appellant asks this court to order an absolute discharge.

[2]

For the reasons that follow I would dismiss the appeal.

[3]

First, I am not persuaded that the November 2020 Board disposition was
    unreasonable at the time it was made. The conclusion that the appellant
    continued to pose a significant threat is well-supported by the evidence before
    the Board, and the Board applied the correct test.

[4]

Second, although this court can grant an absolute discharge based on
    fresh evidence, I would decline to do so in this case. An early review of the
    November 2020 disposition is scheduled for July 12, 2021. It is preferable that
    the Board make the determination of whether, in light of this evidence and the
    record before it, the appellant no longer poses a significant threat such that
    an absolute discharge is warranted.

B.

BACKGROUND Facts

[5]

The appellant was found not criminally responsible on account of mental
    disorder (NCRMD) on a charge of attempted murder in November 2009. The index
    offence occurred in April 2009, when the appellant, without warning, repeatedly
    stabbed a neighbour with a six-inch knife. At the time of the offence, he was
    experiencing paranoid persecutory delusions, he was non‑compliant with
    prescribed antipsychotic medication and he was not under psychiatric care.

[6]

The appellants diagnoses then, and now, are schizophrenia, substance
    use disorder and antisocial personality disorder traits. For his first five
    years under the Boards jurisdiction the appellant was detained in the maximum
    secure facility at Oak Ridge (now Waypoint). After showing slight progress,
    at his 2014 annual hearing the Board ordered the appellants transfer to St.
    Josephs Health Care, Hamilton, where he began to make real progress. Following
    an early review in November 2015 the appellant was moved to a general forensic
    unit and, following his 2016 annual review, he was transferred to the
    rehab-readiness unit at the Southwest Centre of the Hospital. The appellant
    remained under a detention order, but began his transition to community living
    in November 2017.

[7]

In February 2019 the appellant was referred to the Chatham-Kent Health
    Alliance for a community psychiatrist, and to the local Canadian Mental Health
    Association (CMHA) Long-Acting Injection clinic for bi-weekly injections, a
    service that commenced in April 2019. Since April 2019 the appellant has been
    living in his own one-bedroom apartment in Chatham.

[8]

On November 25, 2019, the appellant was ordered conditionally
    discharged. The disposition required the appellant to reside at his current
    address, to take psychiatric treatment (on his consent), and to report to the
    Hospital four times per month.

[9]

At the 2020 review hearing in November 2020 the appellant sought an
    absolute discharge, which was opposed by the Hospital and the Crown.

C.

The Boards Reasons

[10]

A
    majority of the Board concluded that the threshold test for significant threat
    continued to be met. The risk flowed mainly from the appellants major mental
    illness (schizophrenia), as well as his diagnosis of antisocial personality
    traits, and his low threshold for stress, as well as his historical use of
    alcohol and illicit drugs. The Board noted that the index offence, which was
    extremely serious, and could have been lethal, occurred when the appellant was
    experiencing symptoms of his major mental illness, likely exacerbated by the
    use of alcohol. The Board accepted that the appellant had made good progress
    over the past number of years: he had willingly engaged with forensic staff,
    complied with medication, and had shown increased insight into his mental
    illness and receptiveness to suggestions on coping and alleviating stress. The
    Board concluded:

However, given Mr. Wightmans history of significant violence
    when he is less well, the challenge is to ensure that Mr. Wightman remains
    engaged with professional supports and treatment compliant when he is no longer
    subject to a Review Board disposition. Put simply, despite the progress that he
    has made, ongoing therapeutic oversight and support of Mr. Wightman is
    necessary to minimize his risk going forward.

[11]

The
    Board noted that the appellants relationship with Dr. Rafiq, the community
    psychiatrist who had been overseeing his care for the past seven months, had
    just begun to develop and that the ability to establish a strong therapeutic
    alliance had been impacted by restrictions imposed due to the pandemic,
    including the lack of in-person meetings. The Board agreed with the appellants
    forensic psychiatrist, Dr. Ugwunze (who testified at the hearing) and Dr. Rafiq
    (whose views were communicated by Dr. Ugwunze), that a longer period of
    transition of care was required. The Board concluded that a period of
    overlapping care was necessary to ensure a successful transition and no
    increase in the risk to public safety, and that until the successful transition
    was achieved, the test for significant threat continued to be met.

[12]

One
    Board member would have granted the appellant an absolute discharge. She noted
    that there had been several meetings between the appellant and Dr. Rafiq. Given
    the appellants excellent progress, his current stability and connection to at
    least some CMHA services, she could not say that the appellant posed a
    significant risk to the safety of the public.

[13]

The
    Board continued the conditional discharge disposition. It reduced the
    appellants reporting frequency from four to two times per month, and, in order
    to test the appellants commitment to long-term compliance with medication, the
    Board removed the consent to treatment conditions from the disposition.

Issue One: Was the Disposition Reasonable at the Time It Was
    Made?

[14]

A
    Boards determination on significant risk will only be disturbed on appeal if
    the decision is unreasonable or cannot be supported by the evidence, the
    decision is based on a wrong decision on a question of law, or there has been a
    miscarriage of justice:
Criminal Code
, s.
    672.78. The Board is provided with expert membership and broad inquisitorial
    powers. The assessment of whether an accuseds mental condition renders him a
    significant threat calls for significant expertise:
R. v.
    Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30. The
    reasonableness of a Board disposition is assessed by reference to the Boards
    reasoning process and the outcome and whether the decision properly reflects
    an internally coherent and rational chain of analysis that is justified in
    relation to the facts and law:
Re Fotiou
,
    2020 ONCA 153, at para. 7, citing
Canada (Ministry of Citizenship
    and Immigration) v. Vavilov
, 2019 SCC 15, 441 D.L.R. (4th) 1, at
    paras. 83, 85.

[15]

The
    appellant asserts that the Boards conclusion that he continued to pose a
    significant threat to the safety of the public was unreasonable.
[1]

[16]

He
    submits that the Board concluded there was a significant threat after applying
    an incorrect test. A significant threat requires a risk of serious physical or
    psychological harm to members of the publicresulting from conduct that is
    criminal in nature but not necessarily violent:
Criminal Code
,
    s. 672.5401. Instead, the Board considered whether an ideal non-forensic clinical
    care scenario had been achieved.

[17]

The
    appellant argues that there was an absence of positive evidence of a
    substantial risk; rather the evidence showed that there was a low risk of
    reoffence if the appellant remained treatment compliant. The necessary
    threshold was not met because the Board did not conclude that there was a high
    risk that he would become non-compliant with his medication. In oral
    submissions, the appellant, relying on
Re Negash
,
    2021 ONCA 280, says that as in that case, the conclusion that there was a
    significant risk to public safety because of the
possibility
rather than
    the
probability
of harm, descended into the realm of speculation.

[18]

I would not give effect to this argument. In
Negash
this court observed that a significant risk of
    harm to public safety requires
a real, foreseeable risk that
    is more than speculative and that the consequent physical or psychological harm
    must be serious and criminal in nature:
at para. 10
(relying on
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at
    para. 8). In that case, the Board proceeded on the basis that the possibility
    of a change in the accuseds medications
could
cause instability, and
    there was an elevated risk associated with the accuseds transition to a
    non-forensic team. Moreover, the Board did not weigh the seriousness of the
    potential harm against the likelihood that it would materialize.

[19]

In the present case, by contrast, the evidence
    demonstrated that the risk that the appellant would stop taking his medication
    if the necessary psychiatric supports were not provided was more than
    speculative, and that serious harm would likely result.
Dr. Ugwunze
    testified that if the appellant were absolutely discharged without psychiatric
    support there was a real risk he would stop taking his medication, which would
    most likely lead to decompensation of his mental state including florid
    psychotic symptoms, notably delusional beliefs of a paranoid persecutive
    nature, as well as auditory hallucinations. The doctor expressed the opinion
    that, it was likely that, in this decompensated mental state, the appellant
    would act on his delusional beliefs, leading to behaviour similar to what
    occurred in the index offence. Dr. Ugwunze said this scenario was very likely
    if the appellant did not take his medication. The
appellants
    compliance with medication was fairly recent (since 2017), and he had a long
    history of refusing or stopping medication both before and after Board
    supervision.

[20]

While the appellant is correct that there was
    general agreement that he is at low risk to reoffend if he remains treatment
    compliant, as the Board noted, the challenge
is to ensure that [he]
    remains engaged with professional supports and treatment compliant when he is
    no longer subject to a Review Board disposition.
The
    appellants relationship with his community psychiatrist, Dr. Rafiq, which was
    in its infancy at the time of the November 2020 Board hearing, was described
    by Dr. Ugwunze as the bedrock for managing the appellants risk. Both the
    need for a strong therapeutic relationship with Dr. Rafiq and the fact that the
    relationship had not yet developed, in part because of the lack of opportunity
    to conduct in‑person assessments, were amply supported by the evidence.

[21]

In
    my view, the Boards disposition was reasonable, based on the evidence at the
    hearing. The Boards conclusion that the appellant met the significant threat
    test is fully supported by the record. The threat was more than speculative in
    nature. It was sig
nificant, both in the sense that there
    was a real risk of physical or psychological harm occurring to individuals in
    the community and in the sense that [the] potential harm [was] serious. And
    the risk was the commission of a serious criminal offence:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 57.

Issue Two: Does
    the Fresh Evidence Warrant an Order for Absolute Discharge from This Court?

[22]

Section
    672.73 of the
Criminal Code
provides that an
    appeal against a disposition order shall be based on a transcript of the
    proceedings and any other evidence that the court of appeal finds necessary to
    admit in the interests of justice. Fresh evidence concerning events that
    postdate the disposition order may be admitted where the evidence is
    trustworthy and touches on the issue of risk to public safety:
Owen
, at paras. 48-61, 71.

[23]

All
    parties agree that this court should consider as fresh evidence, a letter dated
    May 14, 2021 from counsel for the Hospital. They agree that the information
    contained in the letter is trustworthy and relevant to the issue of risk to
    public safety. They disagree, however, about the effect the fresh evidence
    should have on the disposition of the appeal.

[24]

The
    May 14, 2021 letter confirms that, since the November 2020 disposition, the
    appellant has continued to live independently in the community and has
    demonstrated ongoing stability, and that the relationship between the appellant
    and Dr. Rafiq has progressed. Although the appellant has declined to consent to
    a community treatment order, he has been compliant with his treatment, that is
    now prescribed and overseen by Dr. Rafiq. He is supported by the CMHA for intra‑muscular
    medication and follow-up. He was declined for formal case‑management
    services by the CMHA because of the existing support provided by Dr. Rafiq and
    the CMHA injection team. Although the letter does not indicate whether
    in-person meetings have taken place, the treatment team at the Hospital
    considers that a strong therapeutic relationship has developed between the
    appellant and Dr. Rafiq, and that the appellant is adequately supported in the
    community. No concerns have been conveyed to the Hospital by Dr. Rafiq
    concerning the appellants engagement or mental wellness.

[25]

The
    letter advises that an early Board hearing was requested by the Hospital and
    has been scheduled for July 12, 2021, and that the Hospital confirms that it
    intends to recommend an absolute discharge for the appellant at that hearing.

[26]

The
    appellant asks that this court grant an absolute discharge based on the fresh
    evidence. First, he contends that the fresh evidence bolsters his argument that
    the disposition of the Board in November 2020 was unreasonable. The information
    contained in the letter shows that the situation has progressed and undermines
    the Boards determination that the appellant  as of November 2020  presented
    a significant threat. I disagree. Nothing in the fresh evidence, which speaks
    to what has occurred since the November 2020 disposition, detracts from the
    conclusion that the disposition was reasonable and fully supported by the
    record at the time it was made.

[27]

The
    appellant asserts, in the alternative, that, based on the fresh evidence, he no
    longer continues to present a significant threat. The only concern of the Board
    in November 2020  that there had been an insufficient therapeutic relationship
    between the appellant and Dr. Rafiq  has been resolved. The appellant asserts
    that, as in
R. v. Stanley
, 2010 ONCA 324, 100
    O.R. (3d) 81, the only reasonable outcome of this appeal, once the fresh
    evidence is considered, is an absolute discharge. The Hospital supports the
    request.

[28]

The
    Crown submits that the determination of the effect of the fresh evidence on the
    November 2020 disposition is best left to the Board. This court does not have
    the full evidentiary picture and it is appropriate for a hearing pursuant to
    the procedure prescribed by s. 672.5 of the
Criminal Code
to take place, including the right of the victim to have notice of the hearing
    and to attend.

[29]

I
    agree with the Crowns position. While I accept that this court has the ability
    in an appropriate case, to allow an appeal and to grant an absolute discharge
    based on fresh evidence respecting the appellants progress since the date of
    the disposition under appeal, there are reasons why the approach in
Stanley
should not be followed in this case.

[30]

In
Stanley
,

the appellants treating
    physician had testified before the Board that, if a CTO were available, it
    would be difficult to maintain that the appellant continued to pose a
    significant risk. The fresh evidence was an affidavit from the same physician
    confirming his opinion that a CTO was appropriate and had been issued, and that
    he was satisfied that the appellant would adhere to the terms of the CTO. No
    early hearing had been requested.

[31]

In
    this case, by contrast, the fresh evidence consists of a letter, not an
    affidavit or report, and without the opinion of the appellants forensic or
    community psychiatrist addressing the central question of significant threat.
    Moreover, the Hospital initiated the early review process with the Board, and
    the hearing will occur in short course.

[32]

Although
    the circumstances are not identical, I would follow the approach of the
    majority of this court in
Re Krivicic
, 2017
    ONCA 379. In that case, the fresh evidence consisted of the report of the
    appellants treating psychiatrist that expressed the opinion that he did not
    meet the significant threat threshold and was entitled to an absolute
    discharge. The evidence called into question the Boards determination of
    significant threat, which was based on the record from an earlier hearing, and
    did not include an updated psychiatric opinion. This court concluded that the
    fresh evidence rendered the Boards determination of significant threat at first
    instance unreasonable, and allowed the appeal. Although the appellant and the
    Hospital invited this court to substitute an absolute discharge based on the fresh
    evidence, the matter was remitted to the Board for a fresh determination in
    light of that evidence and any other evidence it considered relevant: at paras.
    18-19. The court recognized that it was the responsibility of the Board, as an
    expert body, to evaluate the medical evidence and that it must be permitted to
    do its job: at para. 15.

[33]

The
    appellate courts vigilance in protecting the liberty of an NCRMD accused must
    be tempered with recognition of the inherent difficulty of the subject matter
    and the expertise of the medical reviewers:
Owen
,
    at para. 40. In the circumstances of this case, it is appropriate for the
    Board, following its proper procedures, to consider all of the evidence placed
    before it, including the fresh evidence, to determine whether the appellant no
    longer meets the threshold of significant threat, and whether he is entitled
    to an absolute discharge.

[34]

For
    these reasons I would dismiss the appeal.

K.
    van Rensburg J.A.

I
    agree. Paul Rouleau J.A.

Hoy J.A. (dissenting):

[35]

Like my colleague, I would admit the fresh
    evidence. The fresh evidence meets the test in
R. v. Palmer
, [1980] 1
    S.C.R. 759.

[36]

In my view, having admitted the fresh evidence,
    the correct approach is to consider the reasonableness of the Boards decision
    in light of the fresh evidence, as the court did in
Re Krivicic
, 2017
    ONCA 379. And as the court did in
Krivicic
, I conclude that the
    Boards disposition is unreasonable in light of the fresh evidence.
    Accordingly, I would allow the appeal.

[37]

Moreover, I would not remit the matter to the
    Board for a fresh determination.

[38]

In
Krivicic
, having concluded that the
    Boards decision was unreasonable in light of the fresh evidence, a majority of
    the court nonetheless concluded that it should return the matter to the Board.
    (Feldman J.A. would have ordered an absolute discharge.) However, the
    circumstances in
Krivicic
were different from this case. In
Krivicic
,
    Huscroft J.A., for the majority, wrote that the opinion of the new psychiatrist
    that the appellant did not meet the significant threat threshold was clearly
    at odds with the psychiatric evidence that the Board had relied on in its
    disposition: at para. 15. He concluded that it was not for the court to
    reconcile the competing psychiatric evidence in this case: at para. 18.

[39]

In this case, the court is not faced with
    competing psychiatric evidence from different psychiatrists. The Boards
    disposition was a close call. Its disposition rested on the concern of the
    appellants treatment team that the appellant had not yet developed a strong
    therapeutic relationship with his community psychiatrist, Dr. Rafiq. The fresh
    evidence is that the
same
treatment team is now satisfied that a strong
    therapeutic relationship has developed between the appellant and Dr. Rafiq
    and that at the early hearing before the Board requested by the Hospital, the
    Hospital intends to recommend an absolute discharge. The Hospital urges the
    court to grant an absolute discharge. There is no competing psychiatric
    evidence in this case. All parties agree that the fresh evidence is
    trustworthy; in these circumstances, the fact that the fresh evidence is in the
    form of a letter, and not an affidavit or a formal report or opinion, is not a
    reason to deny the appellant an absolute discharge.

[40]

Like the court in
R. v. Stanley
, 2010
    ONCA 324, 100 O.R. (3d) 81, I conclude that the only reasonable outcome in
    light of the fresh evidence is to grant the appellant an absolute discharge.
    The fact that, in this case, the Hospital requested an early hearing with a
    view to securing the absolute discharge of the appellant is not a reason to
    distinguish this case from
Stanley
. If anything, it adds weight to the
    fresh evidence.

[41]

I am mindful that the early hearing requested by
    the Hospital is only a month away. However, the delay affects the appellants
    liberty interest.

[42]

I would admit the fresh evidence, allow the
    appeal, and pursuant to s. 672.78(3) of the
Criminal Code
, grant
    the appellant an absolute discharge.

Released: June 17, 2021 P.R.

Alexandra
    Hoy J.A.

[1]

In
    her factum the appellants counsel also submitted that the Board failed to
    consider whether a community treatment order (CTO), combined with CMHA case
    management, would provide a suitable civil alternative to continued Board
    oversight. This argument was not pursued in the oral hearing. The fresh
    evidence indicates that the appellant has declined to consent to a CTO.


COURT OF APPEAL FOR ONTARIO

CITATION: Gorman v. Sadja, 2021 ONCA 430

DATE: 20210616

DOCKET: C68808

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Debbie
    Gorman

Applicant
(Respondent)

and

David Sadja

Respondent
(Appellant)

Geoff R. Hall and Brittany Cerqua, for
    the appellant

Dani Frodis and Kori Levitt, for the
    respondent

Heard and released orally: June 7, 2021 by
    video conference

On appeal from the order of Justice Mario
    D. Faieta of the Superior Court of Justice, dated January 29, 2020.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge erred
    in failing to incorporate a rectification analysis in his reasons. This was
    exacerbated by his error in finding that the appellant did not misunderstand
    the content of the marriage contract.

[2]

We disagree. First, the appellant agrees that if the
    trial judges finding that the appellant failed to meet his onus of showing
    that he had misunderstood the contract is upheld, the appeal must fail. He
    argues however that the trial judge erred by finding that there was
no
    evidence of a prior oral contract that was contrary to clause 3.3(c) that was
    ultimately included in the contract. The appellant further argues that this
    amounted to an error in principle. We do not accept this submission. Read in
    context, the trial judge was clearly alive to all the evidence and was stating
    that he did not accept the appellants evidence on the issue. This finding was
    open to him on all the evidence before him. In light of this, no remedy in
    rectification could be available.

[3]

The appeal is therefore dismissed on an agreed amount of $25,000 plus
    HST.

Fairburn A.C.J.O.

A. Harvison Young
    J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Harvey Kalles Realty Inc. v. BSAR
    (Eglinton) LP, 2021 ONCA 426

DATE: 20210616

DOCKET: C67776

Rouleau, Hoy and van Rensburg
    JJ.A.

BETWEEN

Harvey
    Kalles Realty Inc.

Plaintiff (Respondent)

and

BSAR (Eglinton) LP

Defendant (Appellant)

James M. Wortzman and Spencer
    Malthouse, for the appellant

Ian Cantor, for the respondent

Heard: June 2, 2021 by video conference

On
    appeal from the judgment of Justice Mary Anne Sanderson of the Superior Court
    of Justice, dated November 8, 2019, with reasons reported at 2019 ONSC 4434.

REASONS FOR DECISION

[1]

The appellant appeals from the trial judges
    decision awarding the respondent real estate brokerage the sum of $245,878.96
    together with interest and costs pursuant to its claim as assignee of the
    commission payable under an October 7, 2012 Commission Agreement. The appellant
    submits that no commission is owing because one of the two conditions set out
    in the Commission Agreement was not met.

[2]

The parties generally agree on the two
    conditions contained in the Commission Agreement. The first condition required
    that an offer to lease be  entered into between the appellant and a Tenant,
    defined as  Loblaw Companies Limited or any associated, affiliated, related
    company or individual, nominees or any principals, partnerships, joint
    ventures, corporations, affiliates or associates for whom it is a nominee or to
    whom it is directly or indirectly related within 24 months of the Commission
    Agreement. The second condition required that the Tenant subsequently enter
    into a final form of lease with all conditions of the offer met or waived.

[3]

The appellant concedes, as it did at trial, that
    the first condition was met when the appellant and Loblaw Properties Limited
    signed a formal offer to lease on July 10, 2013. However, the appellant argues
    that the trial judge erred in finding that the second condition was met. According
    to the appellant, the second condition in the Commission Agreement required
    that
t
he appellant sign a lease with Loblaws Companies
    Limited or a company that was associated, affiliated or related to it as of the
    date of the Commission Agreement. The eventual tenant, Shoppers Drug Mart, only
    became a Loblaws entity after the offer to lease was signed.

[4]

In the appellants submission, the trial judge
    made a series of palpable and overriding errors in reaching her decision. In
    addition, the appellant maintains that the trial judge also erred in law in at
    least two respects. First, she erred in failing to find that the offer to lease
    had been automatically terminated. Second, she erred in law when she found that
    Shoppers met the definition of Tenant in the offer to lease and in the
    Commission Agreement.

[5]

There is no dispute as to the relevant
    principles. As explained in
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633
, the
    primary goal of contractual interpretation is to give effect to the objective
    intention of the parties at the time of contract formation. Courts must
    determine the intent of the parties and the scope of their understanding by
    reading the contract as a whole, giving the words used their ordinary and
    grammatical meaning, consistent with the surrounding circumstances known to the
    parties at the time of formation of the contract. The meaning of words is
    determined by contextual factors, including the purpose of the agreement and
    the nature of the relationship created by the agreement:
Sattva
,
at paras. 47-48.

[6]

It is also well settled that courts should avoid
    commercially absurd interpretations of contracts. Commercial reasonableness
    must be interpreted from the perspective of both contracting parties:
Resolute
    FP Canada Inc. v. Ontario (Attorney General)
, 2019 SCC 60, at para. 148.

[7]

We see no error in the trial judges findings or
    conclusions. This was a straightforward case involving the interpretation of
    two agreements. The trial judge did not, as the appellant suggests, confuse the
    objective intent of the parties to the Commission Agreement with the objective
    intent of the parties to the offer to lease. In her reasons setting out how she
    made her findings and reached her decision, the trial judge carefully and
    correctly applied the approach for interpreting commercial contracts set out in
    the leading case of
Sattva
. She considered the genesis and factual
    matrix of the Commission Agreement and determined that it was clearly the
    objective intention of the parties that the leasing commission would be paid if
    the appellant concluded a lease for the commercial component of the subject
    property with any Loblaws entity.

[8]

The trial judge rejected the appellants
    submission that a provision of the Commission Agreement limited its application
    to leases signed with Loblaws entities in existence at the time the Commission Agreement
    was signed. In our view she did not err in so concluding. We disagree with the
    appellants submission that, because the definition of Tenant in the Commission
    Agreement includes  an entity to whom Loblaws is directly or indirectly
    related, the Commission Agreement contemplated only entities in existence at
    the time it was signed and that the trial judges conclusion to the contrary
    constitutes palpable and overriding error or a failure to give effect to the
    words of the agreement. The trial judges findings constitute, in our view, a
    commercially reasonable interpretation of that provision in the context of the
    entire agreement and the factual matrix and should be accorded due deference in
    this court. The appellant has not demonstrated any palpable or overriding
    errors in any of the trial judges findings.

[9]

We also reject the submission that the trial
    judge erred in law in reaching her conclusion that the offer to lease had not
    been terminated and that Shoppers met the definition of Tenant in the
    relevant agreements. These conclusions flowed from the trial judges considered
    interpretation of the terms of the agreements and her findings of fact.

[10]

The appellant submits that the trial judge failed
    to adequately deal with the submission that the offer to lease terminated
    automatically because certain conditions in the offer to lease were neither
    satisfied nor waived by Loblaws. That submission, however, was not the focus of
    the appellants argument at trial and the trial judge cannot be faulted for her
    failure to deal extensively with it in her reasons. The trial judge explained
    that the parties conducted themselves on the basis that the offer to lease had
    not been terminated and that a final form of lease would be signed. It was only
    in the alternative that she turned to the issue of whether the automatic
    termination provision may have been triggered. The trial judge explained that,
    had it been necessary, she would have found that by continuing to negotiate
    with the respondent, Loblaws, by its conduct, waived the need for compliance
    with these conditions. Significantly, at trial, the appellant produced no
    documents and led no evidence setting out, in any substantive way, the timing,
    terms and conditions under which the transaction continued after the point at
    which the appellant argues the offer to lease automatically terminated. There
    would therefore have been no reasonable basis for the trial judge to have found
    that, notwithstanding the lengthy passage of time, the numerous steps taken in
    furtherance of the transaction and the appellant's own firm assertions
    otherwise, the offer to lease had been automatically terminated.

[11]

The trial judges finding that, in effect, the
    lease was simply a finalization or fulfillment of a single lease transaction
    contemplated in the offer to lease was fully supported by the evidence and her
    interpretation of the agreements. The findings of the trial judge in support of
    this conclusion include:

a.

throughout the period from the offer to lease to
    the signing of the lease both Loblaws and the appellant dealt with each other
    as if they were continuing an existing transaction;

b.

Loblaws reassured the appellant that it intended
    to keep the appellant whole under their initial agreement;

c.

Loblaws brought Shoppers into the transaction
    with instructions that the lease with Shoppers must be on identical financial
    terms as the offer to lease;

d.

the lease did in fact have substantive and
    financial terms identical to the offer to lease;

e.

the appellant never re-listed the property for
    lease;

f.

there was no offer to lease with Shoppers and
    the parties proceeded with the Loblaws standard lease form;

g.

Shoppers regarded the lease as a continuation of
    the Loblaws deal; and

h.

while the lease changed the primary use of the
    space from grocery to pharmacy, it expressly permitted the space to be used as
    a grocery, provided it first opened for a single day as a pharmacy.

[12]

We see no basis to interfere with the trial
    judges finding that the offer to lease had not been terminated and that
    Shoppers met the definition of Tenant in the Commission Agreement.

[13]

Finally, in its factum, the appellant submits that the trial judge approached
    this case by first deciding what she considered to be the equitable result and
    then proceeding to find the facts that justified this conclusion. We reject
    this submission. The trial judge heard the evidence and made the factual
    findings that naturally flowed from the record before her. Nothing suggests
    that she somehow sought to tailor those findings to achieve a predetermined
    result.

[14]

The appellant has not identified any error of
    law or error of fact, let alone a palpable and overriding error.

[15]

The appeal is dismissed. Costs to the respondent
    fixed in the amount of $40,000 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Murray v. Pier 21 Asset Management
    Inc., 2021 ONCA 424

DATE: 20210616

DOCKET: C66936 & C67356

Pepall, Roberts and Thorburn
    JJ.A.

BETWEEN

Emily Murray and 2327342 Ontario
    Inc.

Plaintiffs (Respondents/Appellants)

and

Pier 21 Asset Management Inc.,

David
    Star and 8165246 Canada Inc.

Defendants (Appellants/Respondents)

Igor Ellyn and Kathryn J. Manning, for
    the appellants (C66936)/respondents (C67356)

Edward J. Babin, Cynthia L. Spry and Michael
    Bookman, for the respondents (C66936)/appellants (C67356)

Heard: May 26, 2021 by video
    conference

On appeal from the judgment of Justice Michael
    A. Penny of the Superior Court of Justice, dated April 12, 2019 and September
    25, 2020, with reasons reported at 2019 ONSC 316, 2019 ONSC 4501, 2019 ONSC
    7230, 2020 ONSC 2153, 150 O.R. (3d) 419, and 2020 ONSC 5606.

REASONS FOR DECISION

A.

Background Facts

[1]

The appellants, David Star, Pier 21 Asset
    Management Inc., and 8165246 Canada Inc., (hereinafter referred to as the
    Defendants) appeal from the judgment and orders of Penny J. dated April 12,
    2019, July 29, 2019, July 10, 2020, and July 27, 2020, and seek leave to appeal
    his costs award of September 25, 2020.
[1]

[2]

The respondents, Emily Murray and 2327342
    Ontario Inc., (hereinafter referred to as the Plaintiffs), cross-appeal from
    the same judgment and the orders dated April 12, 2019, July 29, 2019 and April
    8, 2020, and seek leave to appeal the costs award of September 25, 2020.

[3]

Mr. Star launched Pier 21 Asset Management
    (Pier 21), a wealth management business, in 2005. That same year, he and Ms.
    Murray began an affair.

[4]

Ms. Murray agreed to join Mr. Star in launching
    Pier 21. She joined him in June 2006, initially as a consultant and then as a
    Senior VP. It was agreed that she would not be paid any salary for the first
    two years. In lieu of salary, she received 200,000 Class A shares of Pier 21.
    In addition, in exchange for her decision to leave her secure job to help found
    the company, she received an additional 100,000 Class A shares. Her 300,000
    shares represented 16% of the companys Class A shares.

[5]

Another investor, Frank Santangeli, invested
    $150,000 in Pier 21 and received 150,000 Class B non-voting shares.

[6]

In June 2006, Ms. Murray entered into an
    employment agreement. It provided that cash bonuses or dividend distributions
    could be issued in addition to her annual salary based on earnings and
    profitability as well as her contributions with the final amount being at the
    discretion of Mr. Star in his capacity as President and CEO. Ms. Murray entered
    a second employment agreement consistent with that of other senior employees in
    November 2013.

[7]

The individual parties affair ended in 2009.

[8]

In 2011, the company and Mr. Star bought out Mr.
    Santangelis Class B shares. In addition, in the spring of 2012, Ms. Murray
    entered into an agreement (the Share Purchase Agreement) whereby Pier 21
    redeemed 142,250 Class A shares owned by Ms. Murray at $3.42 per share for a
    total of $486,495. As a result, Mr. Star owned 90.9% of the Class A shares and
    Ms. Murray 9.1%.

[9]

Meanwhile, the companys assets under management
    grew from zero when Ms. Murray joined to $3.2 billion when she left at the end
    of 2014 and increased to $3.65 billion by February 27, 2015, the valuation
    date. Revenues amounted to almost $15 million at the end of 2014.

[10]

In 2014, Ms. Murray and Mr. Star began
    discussing her exit from the company. When Ms. Murray left in December 2014,
    Mr. Star refused to buy out her interest in the company. Ms. Murray commenced
    oppression proceedings seeking, among other things, the reversal of the 2012
    Share Purchase Agreement which had reduced her interest from 16% to 9.1%, an
    order requiring Mr. Star to purchase her remaining interest, and equitable damages.

B.

Trial Judges Reasons

[11]

The trial judge declined to set aside the 2012
    Share Purchase Agreement. He was unable to conclude on a balance of
    probabilities that the Share Purchase Agreement defeated Ms. Murrays
    reasonable expectations and that the Agreement was the product of conduct that
    was oppressive, unfairly prejudicial or unfairly disregarded her interests. He
    also concluded that the two-year limitation period expired well before February
    2015 when she commenced her action. He found that the issue of the Agreement
    did not arise out of acts of ongoing oppression but was a discrete one-time
    event.

[12]

He held that Ms. Murray was entitled to the
    return of her capital in Pier 21. He noted that Mr. Star at the opening of
    trial had made a with prejudice offer to purchase her shares based on a $20.8
    million valuation of the company which the trial judge treated as an admission
    that she was entitled to the return of her capital at fair value. Even if not,
    Mr. Stars refusal to repurchase her shares upon her termination was
    oppressive.

[13]

In valuing the company, he considered the
    opinions of the experts, Susan Glass, the expert called by the Defendants,
    valuing the company at $20.8 million and John Temple, the expert called by the Plaintiffs,
    proposing a value of $52.8 million. The trial judge held that both experts were
    qualified to give opinion evidence on the fair value of Pier 21 on the
    valuation date. The Defendants did not object to Mr. Temple being so qualified
    but attacked his qualifications, attitudes and conclusions as going to weight.

[14]

The trial judge found that both experts had
    excellent though different qualifications and he was not prepared to say that
    the opinions of one were overall to be preferred over the other. He therefore
    addressed their opinions on an issue by issue basis. He concluded that the
    company should be valued at $39.1 million, a figure which was later amended to
    $39.3 million due to a calculation error. The share purchase price for Ms.
    Murrays shares would accordingly be $3,576,300, rather than the $1.8 million
    as proposed by the Defendants based on the valuation by Ms. Glass.

[15]

He also awarded Ms. Murray equitable damages in
    the amount of $605,579 (equal to two years salary and dividends for that
    period) and, in an addendum dated April 8, 2020, he determined that the
    transaction giving effect to the judgment should be structured as a repurchase by
    Pier 21.

C.

Discussion

(1)

Fresh Evidence

[16]

The Defendants seek leave to admit fresh
    evidence.

[17]

The fresh evidence consists primarily of time dockets
    of the Plaintiffs expert, John Temple. At trial, Mr. Temple testified that he
    spoke with Peter Tolnai, Ms. Murrays husband. He testified that Mr.
    Tolnai was present in meetings with Ms. Murray. Ms. Murray also testified that
    Mr. Tolnai was involved in the discussions and that it was he who had sourced
    Mr. Temple.

[18]

Mr. Temple testified that Mr. Tolnai did not
    provide any input to my evaluation and that he was not used as a source of
    information for my valuation because I didnt consider him to be knowledgeable
    with this industry.

[19]

Mr. Temples report, served by the Plaintiffs,
    was dated June 2017. The Defendants served Ms. Glass report, dated September
    2017, in reply, and the Plaintiffs delivered a rebuttal report dated December
    2017.

[20]

The dockets of Mr. Temple that are in issue were
    produced by the Plaintiffs in support of their request for costs. This panel
    determined that any privilege attaching to the dockets had been waived.

[21]

The dockets speak of [f]irst review of Peters
    draft on October 31, 2017 and [m]arkup of Peters draft of Rebuttal Letter
    on November 1-3 which the Defendants infer relates to the Plaintiffs reply to
    their experts report.

[22]

The Defendants urge us to conclude that this
    evidence passes the test for admission of fresh evidence because it was
    unavailable until after trial and was key in that it undermined the
    independence and credibility of Mr. Temple. In essence, they say he was an
    advocate for the Plaintiffs, and that his valuation opinion should be
    disregarded and replaced with that of Ms. Glass.

[23]

The Plaintiffs respond, among other things, that
    Mr. Temple was thoroughly cross-examined at trial and no request was made for
    his file. In any event, they say the test for admission has not been met. They
    also seek leave to admit fresh evidence in response to the Defendants fresh
    evidence.

[24]

The test for admission of fresh evidence as
    described in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at para. 775 and
Sengmueller v. Sengmueller
(1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at
    p. 23, has not been met by the Defendants. Most notably, this fresh evidence
    would not likely be conclusive of any issue on appeal. We fail to see how the
    dockets are at odds with the evidence given by Mr. Temple at trial or that
    his certification to provide impartial advice to the court was materially
    compromised. His valuation of the company was produced in June 2017 and predated
    that of Ms. Glass and the impugned dockets. The mere fact that Mr. Tolnai may
    have provided some comments to the expert following receipt of Ms. Glass
    report does not mean that the expert became an advocate or lacked independence.
    We do not accept that he did as alleged by the Defendants. As Cromwell J.
    stated in
White Burgess Langille Inman v. Abbott and Haliburton Co
., 2015
    SCC 23, [2015] 2 S.C.R. 182, at para. 32, one should apply the jurisprudential
    concepts to the realities of adversary litigation.

[25]

We dismiss the request to admit the fresh
    evidence. It follows that the Plaintiffs motion for leave to admit fresh
    evidence in response is also dismissed.

(2)

Rule 59 and Reconsideration Motions

[26]

The Defendants also appeal from the order of
    Penny J., with reasons dated July 10, 2020, in which he refused to entertain
    the Defendants r. 59.06(2)(a) motion
to re-open the trial on the ground that
    facts arose after his order was made that, if known at the time, would
    potentially have changed the result at trial.

The Defendants also appeal from the order of Penny J., with reasons
    dated July 27, 2020, refusing to reconsider his July 10, 2020 decision. On
    these motions, t
he Defendants

relied
    on the same evidence that is the subject matter of their fresh evidence motion.
    Before this court, they argue that the judgment had not been signed and
    entered, the trial judge was not functus and he ought not to have simply
    referred the matter to this court to be addressed as a fresh evidence
    application.

[27]

This was a contentious and acrimonious
    proceeding. The trial judge gave his reasons for decision on April 12, 2019. As
    he could not find any reference in the oral submissions or a written response from
    the Defendants to the Plaintiffs request for elevated interest reflecting the
    time value of payment for her shares, he deferred a finding on that issue. Both
    parties then brought motions to amend under r. 59.06. On July 29, 2019, among
    other things, the trial judge increased Ms. Murrays equitable damages from
    $278,706 to $605,579 based on a calculation error and dismissed her request for
    elevated interest.

[28]

There also arose an issue as to how the share
    purchase transaction was to be structured. The trial judge determined that he
    had jurisdiction to decide that issue on December 13, 2019, and he set out a
    process for the filing of additional evidence, the conduct of
    cross-examinations and the filing of written submissions, all of which was
    completed on April 1, 2020. He released his reasons on the transaction
    structure on April 8, 2020. In June 2020, following a review of background
    material in support of the costs request of the Plaintiffs, the Defendants
    prepared another r. 59.06 motion. On July 10, 2020, the trial judge issued an
    endorsement declining to hear the motion. In doing so, although not attributing
    the delay to either of the parties, he observed that the trial had already
    dragged on for far too long. The Defendants then brought another motion asking
    him to reconsider his endorsement which he also declined to entertain on July
    27, 2020. On September 25, 2020, he released his reasons for costs.

[29]

Placed in context, it was understandable that
    the trial judge was reluctant to embark on a further proceeding between the
    parties.

[30]

The Defendants concede that the trial judge had
    the power to control the process of the case. Litigation cannot be never
    ending. In this case, the trial judge could have proceeded with the r. 59.06
    motion, thereby continuing these already protracted proceedings, declined to
    hear the motion or dismissed it. He clearly was concerned about the passage of
    time, reasons for judgment having been released more than one year earlier. It
    was facially evident from a review of the fresh evidence that it would not meet
    the threshold for admission.

[31]

The r. 59.06 motion was properly returnable
    before the Superior Court of Justice. Although it would have been preferable
    for the trial judge to have given reasons and dismissed the motion, in the end
    result, it is of no moment. It follows that the appeal relating to the trial
    judges refusal to reconsider that decision must also fail.

[32]

For these reasons, we dismiss the Defendants
    grounds of appeal based on the trial judges failure to consider the r. 59.06
    motion and to reconsider it.

(3)

Equitable Damages

[33]

On the issue of equitable damages, the
    Defendants submit that the award gave Ms. Murray an unwarranted windfall.
They argue that once the trial judge
    directed
the Defendants to repurchase her shares at
    fair value, the oppression was remedied. They state that in her negotiations
    with Mr. Star in September 2014 and in her trial testimony, she stated she
    would resign if she received a fair price for her shares and she did not expect
    anything more. The damages awarded were for wrongful dismissal but were
    improperly disguised as equitable damages.

[34]

As stated by the Supreme Court in
Wilson v.
    Alharayeri
, 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 59, the
Canada
    Business Corporations Act
, R.S.C. 1985, c. C-44 vests the trial judge with
    broad discretion when dealing with the oppression remedy and an appellate court
    should adopt a deferential stance in the absence of reviewable error or a
    manifestly unjust result. Under the oppression provisions, the court may make
    any order it thinks fit. The appellate courts power of review is limited:
Naneff
    v. Con-Crete Holdings Ltd
. (1995), 23 O.R. (3d) 481 (C.A.), at pp. 486-87.
    The remedy is to rectify oppression or certain unfair conduct. As mentioned in
    that decision, the oppression remedy operates as corrective justice.

[35]

Here the trial judge found that the refusal to
    redeem Ms. Murrays shares on termination was oppressive and her termination
    was closely connected to her status as shareholder. They were inextricably
    intertwined and her reasonable expectations were thwarted. She had a
    reasonable expectation that she would not be terminated in the manner she was.
    Based on the record before him, it was open to the trial judge to make that
    determination. We see no reason to interfere.

[36]

We also reject the Defendants alternative
    submissions that Ms. Murrays equitable damages should be reduced by 25% to reflect
    the remuneration she received from June 2014 when she first broached the
    question of her departure from Pier 21, or by the amount of the discretionary
    dividend that may not have been awarded. We see no error in the trial judges
    assessment of the equitable damages that he found were caused by the
    Defendants oppressive behaviour in forcing Ms. Murrays departure from Pier 21
    contrary to her reasonable expectations.

(4)

Expert Valuation Evidence

[37]

As for the Defendants submissions relating to
    the experts evidence, in essence, the Defendants seek to reargue the trial
    judges factual findings. They say he erred in equating the experience of Ms.
    Glass with Mr. Temple. The Defendants did not object to Mr. Temple being
    qualified as an expert and the trial judge properly received and considered his
    evidence. He carefully reviewed their respective positions on each issue and
    reached a reasonable conclusion on the valuation of Pier 21. We see no palpable
    and overriding error in his treatment of the valuation of the company. Nor are
    we persuaded that the decision is manifestly unjust or clearly wrong.

[38]

We will address the issue of costs raised by the
    Defendants at the same time as we address the Plaintiffs request for leave to
    appeal costs.

(5)

Plaintiffs Grounds of Appeal

[39]

Turning to the grounds of appeal advanced by the
    Plaintiffs, they raise six issues.

[40]

First, the Plaintiffs submit that the trial
    judge erred in refusing to find a fiduciary relationship between Mr. Star and
    Ms. Murray. We disagree. The parties were not in a partnership or trust
    relationship but were shareholders of the same corporation who did not owe each
    other fiduciary duties. Mr. Star did not undertake to act in Ms. Murrays best
    interests nor did Ms. Murray repose any trust in him. Here Mr. Star owed
    fiduciary duties to the corporation, not to Ms. Murray: see
BCE Inc. v.
    1976 Debentureholders
, 2008 SCC 69, [2008] 3 S.C.R. 560, at paras. 37, 66.
    In any event, even if the trial judge had found a fiduciary relationship and a
    breach of a fiduciary duty, we fail to see that additional compensation beyond
    what the trial judge already had ordered would be merited.

[41]

Second, Ms. Murray submits that the trial judge
    erred in holding that there was insufficient evidence of her opposition to the
    2012 Share Purchase Agreement because there was no contemporaneous documentary
    evidence.

[42]

We reject this argument. First, that is not what
    the judge said. He said at para. 28, that he found it difficult to believe
    that, if she felt as strongly then about the Share Purchase Agreement as she
    maintains now, there was no email, note or minute of any kind recording her
    concerns to Mr. Star and no attempt to seek legal advice. He recognized at
    para. 22 that she had a lawyer helping her negotiate the draft shareholders
    agreement the previous year, but she made no effort to seek legal advice about
    the repurchase of her shares until much later. He also referenced the evidence
    that she raised concerns with two friends at the time about the buyout of her
    shares. The trial judge was not imposing a requirement for contemporaneous
    documentary evidence. It was open to the trial judge to weigh the conflicting
    evidence from the parties and conclude that the Plaintiffs had not met the
    burden of proof.

[43]

We also agree with the trial judges analysis of
    the limitation issue. We would accordingly dismiss this second ground of
    appeal.

[44]

Third, the Plaintiffs submit that the trial
    judge erred in the quantum of equitable damages because they failed to
    recognize that the Defendants have had the use of Ms. Murrays capital since
    2015. They submit that these additional damages could take the form of an
    increased interest rate or an increased award.

[45]

The trial judge considered the Plaintiffs
    request in the context of the Defendants request for a credit for the amount Ms.
    Murray earned on the investment of the proceeds of the sale of the 6.9% of Class
    A shares. The Plaintiffs claimed their loss should be calculated on the same
    basis. They claimed the compound return Ms. Murray actually earned on the
    capital arising from the 2012 repurchase of shares, which was 10.38%. They sought
    this return on a compounded basis on all amounts awarded from February 27,
    2015.

[46]

The trial judge rejected the Plaintiffs
    arguments. He concluded that the pleadings did not support the request. The Plaintiffs
    had pleaded ss. 128 and 129 and not s. 130 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 and they did not seek to amend or provide an explanation
    for their failure to do so: at paras. 33-35. Moreover, he reasoned that these
    issues were raised after the conclusion of the evidence at trial and to permit
    the claims at this stage would be seriously prejudicial to the Defendants.

[47]

The reasons given by the trial judge support his
    rejection of the Plaintiffs claim for a compounded interest rate of 10.38%
    since 2015. While the trial judge could have exercised his discretion to award
    compound interest as part of the oppression remedy he otherwise granted, he was
    not obligated to do so: see
Ford Motor Co. of Canada, Ltd. v. Ontario
    Municipal Employees Retirement Board
(2006), 263 D.L.R. (4th) 450 (Ont.
    C.A.), at para. 181, leave to appeal refused, [2006] S.C.C.A. No. 77. There was
    no palpable and overriding or legal error in his reasoning. We dismiss this ground
    of appeal.

[48]

Fourth, the Plaintiffs ask this court to
    interfere with the trial judges dismissal of Ms. Murrays claim for punitive
    damages. We see no error that allows for appellate intervention. It is not for
    this court to substitute its discretion for that of the trial judge.

[49]

Fifth, the Plaintiffs submit that the trial
    judge erred in the selection of the transaction structure when he required Pier
    21 to repurchase Ms. Murrays shares for cancellation rather than requiring the
    Defendants to purchase the shares of Ms. Murrays holding company, 2327342
    Ontario Inc., which would be more tax efficient for her.

[50]

Again, the trial judges reasons for decision on
    the transaction structure are detailed and sound. There was no evidence to
    support a reasonable expectation that she would be entitled to a structure that
    would minimize her tax liability to the exclusion of other considerations, one
    of which is that the Defendants would inherit potential unknown liabilities in
    2327342 Ontario Inc.

(6)

Costs Awards

[51]

Lastly, both parties also take issue with the
    trial judges costs award.

[52]

The Defendants state that the trial judge made
    errors in his costs decision because he required them to pay one third of the
    disbursements paid to Mr. Wintrip who delivered no report and did not testify;
    he rejected most of Mr. Temples opinions but still required the Defendants to
    pay his fees; and the Defendants had to defend against valuation claims that
    the court rejected.

[53]

The Plaintiffs state that he erred in holding
    that oppressive conduct does not necessarily entail elevated costs awards and
    by granting a distributive costs award contrary to
Oakville Storage &
    Forwarders Ltd. v. C.N.R. Co
. (1991), 84 D.L.R. (4th) 326 (Ont. C.A.).

[54]

Absent an error in principle or an award that is
    plainly wrong, a trial judges exercise of discretion in the award of costs is
    entitled to deference:
Hamilton v. Open Window Bakery Ltd
., 2004 SCC 9,
    [2004] 1 S.C.R. 303, at para. 27. The trial judge found that by any measure,
    Ms. Murray was the effective winner in the litigation and was
prima facie
entitled to her partial indemnity costs.

[55]

The trial judge instructed himself not to make a
    distributive costs award but followed this courts guidance in
Eastern
    Power Limited v. Ontario Electricity Financial Corporation
, 2012 ONCA 366,
    and considered that some analysis of relative success may be appropriate in
    determining quantum of entitlement. He found that the post-trial motion on the transaction
    structure was free-standing and that the costs incurred were substantively and
    temporally distinct from all the other costs of the trial. He accordingly awarded
    costs to the Defendants who were successful on this motion. This was not an
    error in principle nor plainly wrong. The same is true with the trial judges
    treatment of the claim for elevated costs, the Defendants arguments about the
    Wintrip invoice, which was discussed in detail at paras. 63-66 of the trial
    judges decision, and his treatment of the costs as they relate to the
    valuation claims. We see no reason to interfere.

D.

Disposition

[56]

For all of these reasons, we dismiss the appeal,
    dismiss the cross-appeal, and refuse both parties leave to appeal costs. In
    addition, we dismiss the motion and cross-motion for admission of fresh
    evidence.

[57]

The parties are to make brief (not to exceed
    five pages in length) submissions on costs of the appeal, the Plaintiffs to
    file theirs by June 18, 2021, and the Defendants by June 25, 2021.

S.E. Pepall
    J.A.

L.B. Roberts
    J.A.

J.A. Thorburn
    J.A.

[1]

Reasons
    were released on April 12, July 29, and December 13, 2019, April 8, July 10,
    July 27, and September 25, 2020 but were reflected in one judgment bearing two dates:
    April 12, 2019 and September 25, 2020.


COURT OF APPEAL FOR ONTARIO

CITATION: Sub-Prime Mortgage Corporation v.
    Kaweesa, 2021 ONCA 431

DATE: 20210616

DOCKET: M52435 (C69127)

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Sub-Prime Mortgage Corporation
    and Elle Mortgage Corporation

Plaintiffs (Respondents/Responding Parties)

and

David Kaweesa
,
Jacqueline Kaweesa
and Jeremy Kaweesa

Defendants (
Appellants/Moving Parties
)

AND BETWEEN

David Kaweesa and Jacqueline
    Kaweesa

Plaintiffs by Counterclaim
(Appellants/Moving Parties)

and

Sub-Prime
    Mortgage Corporation, Elle Mortgage
Corporation and Terry Walman

Defendants by Counterclaim
(Respondents/Responding Parties)

Matthew Tubie, for the moving parties

Ranjan Das, for the responding party Terry
    Walman

Glenn Cohen, for the responding parties
    Sub-Prime Mortgage Corporation and Elle Mortgage Corporation

Heard and released orally: June 8, 2021 by
    video conference

REASONS FOR DECISION

[1]

The background to this motion is a mortgage enforcement
    action brought by a number of mortgagees who moved before Paciocco J.A. for an
    order for security for the costs of the appeal, among other things. The asset
    in issue is the heavily encumbered house owned by the moving parties. Paciocco
    J.A. granted the motion for security for costs. He also lifted the temporary
    stay on the enforcement of the writ of possession which the motion judge,
    Stinson J., had granted for 90 days, expiring May 11, 2021. The moving parties seek
    to set aside both orders and ask this court to grant an order staying Stinson
    J.s order in its entirety.

[2]

We begin with the security for costs motion. We see
    no basis for setting aside Paciocco J.A.s order in full or in part. There is
    no dispute that the correct test is as set out in r. 61.06(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 and applied in
Heidari
v.

Naghshbandi,
2020 ONCA 757, 153
    O.R. (3d) 756
. The moving parties argue that Paciocco J.A. erred in
    finding that there was good reason to believe that the appeal is frivolous
    and vexatious, and that the moving parties have insufficient assets in Ontario
    to pay the costs of the appeal.

[3]

We do not agree with the moving parties that Paciocco
    J.A. erred in finding that there is good reason to believe that the grounds of
    appeal are frivolous in that they are devoid of merit, with little prospect of
    success: see
Heidari
, at

para. 10. Paciocco J.A. considered each ground of appeal advanced.

[4]

First, we see no error of law or fact in
    relation to the finding made by both Stinson J. and Paciocco J.A. that the
    pandemic did not frustrate the minutes of settlement. The pandemic was well
    underway when the minutes were executed in November 2020.

[5]

Second, we see no error on the part of Paciocco
    J.A. with respect to his treatment of the ground of appeal that the responding
    parties had failed to comply with the terms of the minutes requiring counsel to
    cooperate with the moving parties refinancing attempts. As Paciocco J.A.
    concluded, there is no evidentiary basis for that argument.

[6]

Stinson J., who presided over the underlying motion
    giving rise to this review, had extensive involvement with this matter and had
    conducted the settlement conference. One of the grounds of appeal is that Stinson
    J. erred in doing so. We do not agree with the moving parties claim that
    Paciocco J.A. erred in finding that there were grounds to believe that this
    ground was devoid of merit. In doing so, Paciocco J.A. specifically noted that r.
    50.10(1) permits pre-trial conference judges to preside at the trial of an
    action with the written consent of the parties, which was expressly provided
    for in the minutes of settlement. The minutes of settlement provided, at para.
    19, that Stinson J. would remain seized of this action  for any purpose in connection
    with implementing these Minutes of Settlement. Moreover, Stinson J.
    specifically raised the issue with counsel, who referred him to para. 19 in
    agreeing that he hear the contested motion.

[7]

In addition, we see no basis for interfering
    with Paciocco J.A.s finding that the appeal is vexatious as it has been taken
    to annoy or embarrass the responding parties or conducted in a vexatious manner:
    see
Heidari
, at para. 10. Paciocco J.A.s reasons for this finding are
    well grounded in the record and are owed deference by this court in the absence
    of palpable and overriding error or error in principle, which the moving parties
    have not shown.

[8]

With respect to the adequacy of the moving
    parties assets, the moving parties also claim that Paciocco J.A. erred in his
    application of r. 61.06(1)(a), which requires a finding that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal. We see no error.
    The moving parties have not been making payments on the encumbrances on the
    house for a significant period of time and, in some cases, years. The quantum
    of accumulated interest, as Paciocco J.A. noted, which only continues to mount,
    is staggering.

[9]

With respect to the claim that Paciocco J.A.
    erred in refusing to continue the stay, it has already expired and is therefore
    moot. We see no basis for reinstating it now.

[10]

The motion to set aside the order of Paciocco
    J.A. is therefore dismissed.

[11]

Costs in the agreed amounts of $2,500 inclusive
    of disbursements and HST to Mr. Cohens clients, Sub-Prime Mortgage Corporation
    and Elle Mortgage Corporation, and $750 inclusive of disbursements and HST to
    Mr. Das client, Mr. Walman.

Fairburn A.C.J.O.

A. Harvison Young
    J.A.

M. Jamal J.A.