COURT OF APPEAL FOR ONTARIO

CITATION: St. Amand v. Tisi, 2018 ONCA 106

DATE: 20180206

DOCKET: C63870 and C63871

Laskin, Miller and Paciocco JJ.A.

BETWEEN

Claude St. Amand

Applicant (Respondent)

and

Lynn Tisi

Respondent (Appellant)

Derek A. Schmuck, for the appellant

Duncan M. MacFarlane, for the respondent

Heard: December 21, 2017

On appeal from the judgment of Justice Theresa Maddalena
    of the Superior Court of Justice, dated May 19, 2017, with reasons reported at
    2017 ONSC 3125, 78 R.P.R. (5th) 124.

REASONS FOR DECISION

A.

Overview

[1]

The appellant, Lynn Tisi, appeals the decision of the application judge
    declaring that there was no valid Agreement of Purchase and Sale between the
    parties.

[2]

The respondent, Claude St. Amand, a builder, agreed to build a home in
    Welland for Tisi. Their mutual real estate agent, Alain Raby, prepared an Agreement
    of Purchase and Sale. St. Amand signed the Agreement electronically on November
    2, 2016; Tisi signed it on November 4, 2016.

[3]

In addition to signing the Agreement, Tisi made changes to Schedule D to
    the Agreement. Schedule D sets out the standard specifications for the home. In
    six places, Tisi struck out the phrase builders samples, and initialled the
    changes. These changes were not initialled by St. Amand, and the application
    judge found that St. Amand was unaware of them at the time.

[4]

St. Amand began to build the home. But in mid-January 2017, the parties
    reached an impasse over the choice of supplier for the kitchen cabinets. Tisi
    was unhappy with St. Amands choice of supplier. She wanted to use her own
    supplier, a company called Mission Cabinetry, and she insisted that St. Amand
    pay Mission Cabinetry a $20,000 deposit. St. Amand refused to use Mission
    Cabinetry because he did not know the company and could not warrant its work
    for the Tarion Home Warranty Program.

[5]

With the impasse unresolved, each party then brought an application to
    court. St. Amand sought a declaration that the Agreement of Purchase and Sale
    was void. Tisi sought specific performance and tied up the property by putting
    a certificate of pending litigation against it. The application judge found in
    favour of St. Amand. At para. 37, she concluded that there was no valid Agreement,
    because [t]hese parties were not on the same page and [t]here was never a
    true meeting of the minds.

[6]

On her appeal, Tisi submits that the application judge made numerous
    errors of law in concluding that there was no valid Agreement of Purchase and Sale
    between the parties. She also seeks leave to introduce fresh evidence to show
    that St. Amand was aware of the changes to Schedule D before he began to build
    the home. In response, St. Amand also seeks leave to introduce fresh evidence.
    For the brief reasons that follow, we decline to admit the fresh evidence and
    we dismiss Tisis appeal.

B.

Discussion

(1)

The fresh evidence motions

[7]

The application judge found that St. Amand first learned of Tisis
    changes to Schedule D in January 2017, some two and half months after he signed
    the Agreement of Purchase and Sale. At para. 53 of her reasons she said: [P]rior
    to this time, the amendments and interlineations were neither disclosed to him
    nor agreed to by him. Tisi seeks to undermine the application judges finding
    by filing the affidavit of the parties mutual real estate agent, Raby, whom Tisi
    has sued separately. If necessary, St. Amand seeks leave to file his affidavit
    to respond to Rabys affidavit.

[8]

Paragraph 134(4)(b) of
the

Courts of Justice Act
, R.S.O. 1990, c. C.43, permits this court to
    receive fresh evidence in a civil appeal. The test for admitting fresh evidence
    is well established. The party seeking to introduce the fresh evidence must
    show that the proposed evidence:

·

Is credible;

·

Could not have been obtained by reasonable diligence before trial
    or application; and

·

If admitted, would likely be conclusive of an issue in the
    appeal.

The overriding criterion is that fresh evidence will
    be admitted only where it is in the interests of justice to do so. See:
Center
    City Auto Sales Inc. v. Kalsatos
, 2013 ONCA 373, at paras. 3-4; and
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at para. 9.

[9]

Even if the evidence proffered by Tisi is credible and might be relevant
    to an issue on the appeal, it does not meet the due diligence requirement,
    and the interests of justice do not warrant its admission.

[10]

A
    failure to meet the due diligence requirement is not always a bar to admitting
    fresh evidence. There are, however, cases where a failure to exercise due
    diligence renders the admission of the fresh evidence not in the interests of
    justice: see
e.g. Stekar v. Wilcox
, 2017 ONCA 1010, at para. 27; and
Mason
    v. Mason
, 2016 ONCA 725, 403 D.L.R. (4th) 64, at para 197. The due
    diligence requirement plays a particularly important role in civil proceedings,
    where the need for finality is a principal consideration:

Most often, evidence offered on appeal seeks to place different
    facts before the appeal court than were considered by the court of first instance.
    In the typical case, the appellant asks the appeal court to consider the new
    evidence in combination with the evidence adduced in the lower court, and to
    arrive at different factual findings based on the enhanced evidentiary record.
    In essence, the appellant asks for a reconsideration of the facts based on
    evidence not adduced in the court below.
Finality concerns, especially
    important in civil proceedings, demand a restrictive approach to the
    admissibility of evidence on appeal. The due diligence inquiry, an important
    consideration in determining whether to admit fresh evidence on appeal,
    reflects the restrictive approach taken to the admission of fresh evidence on
    appeal
. [Emphasis added.]

See:
Iroquois Falls Power Corp. v. Ontario
    Electricity Financial Corp.
, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para.
    49, leave to appeal refused, [2016] S.C.C.A. No. 279.

[11]

Stekar
is a recent example of a case where an appellants failure to meet the due
    diligence requirement alone was sufficient to bar admission of the evidence. In
    dismissing the motion for fresh evidence, the court observed at paras. 30-31
    that:

With reasonable due diligence, [the individual whose evidence
    the appellant sought to proffer] could have been contacted before or during the
    trial  or even shortly after its conclusion, rather than many months after the
    release of the trial judgment.

Nothing in the appellant's materials on his fresh evidence
    motion suggests that the information  could not have been obtained prior to or
    during the trial. To the contrary, the motion materials confirm that it was
    only after the release of the trial judgment that the appellant renewed his
    efforts to contact [the individual].
It is not open to the appellant, at
    this late date, to attempt to shore up the case he led at trial by now
    introducing evidence that readily could have been obtained at a much earlier
    date upon the exercise of reasonable diligence
. [Emphasis added.]

[12]

The
    courts comments in
Stekar

are applicable to the present case.
    Rabys evidence could have been obtained before the applications were heard,
    instead of many months after the release of the application judges judgment.
    The question when St. Amand became aware of the changes to Schedule D was a
    live issue before the application judge. Knowing that it was a live issue, and
    knowing that Raby  who prepared the Agreement of Purchase and Sale  might be
    able to offer evidence on this issue, Tisi seemingly chose not to contact Raby
    or lead his evidence.

[13]

It
    is not in the interests of justice to admit the fresh evidence, both because of
    finality concerns, and because Tisi should not be permitted to try to shore up
    or recharacterize her case at this late stage with evidence she could have
    obtained much earlier. We therefore dismiss both motions.

(2)

Did the application judge err in declaring that there was no valid
    Agreement of Purchase and Sale between the parties?

[14]

In
    her factum, Tisi has set out a long list of alleged errors of law made by the
    application judge. None of these alleged errors bear on the essence of the
    application judges reasons or what caused the parties initial arrangement to
    fall apart.

[15]

The
    application judge made two key findings of fact that are fatal to Tisis
    position on appeal.

[16]

The
    first finding relates to the interpretation of Schedule D to the Agreement of
    Purchase and Sale. Schedule D, under the heading Cabinetry Package,
    stipulated: Suppliers can vary based on purchasers preference. Could be a
    Lowes Cabinet or from Upper Kitchen Cabinets Supplies. Tisi took the position
    that this clause entitled her to pick her own supplier for the kitchen
    cabinets.

[17]

The
    application judge found otherwise. At para. 33, she found that the agreement
    does not state Tisi could attend to a cabinetmaker of her sole choice.

[18]

The
    second finding relates to the impact of Tisis amendments to Schedule D on the
    validity of the Agreement. At paras. 34-37, the application judge observed that
    Tisis amendments revealed the parties inability to agree on material terms.
    On one hand, Tisi had made not  insignificant amendments, which Tisi
    believed permitted her to use whatever supplier she wished and compel St.
    Amand to pay. On the other hand, St. Amand had expected that what would be
    used would be his builders samples in accordance with his suppliers.

[19]

And
    thus, the application judge found that, by Tisis amendments to Schedule D and
    Tisis understanding of the impact of these amendments, Tisi made a
    fundamental change to the Agreement of Purchase and Sale. On this basis, the
    application judge concluded that the parties had different perspectives of
    what is in this contract  [and] what it is intended to say, which
    demonstrated there had been no meeting of the minds.

[20]

Both
    of the application judges findings are entitled to deference from this court
    and we decline to interfere with them. These findings are sufficient to decide
    this appeal.

[21]

Even
    apart from these findings, and setting aside the legal niceties of the case,
    St. Amand acted reasonably throughout and Tisi did not.

[22]

St.
    Amand was reasonably justified in refusing to use a kitchen supplier he had
    never dealt with and in refusing to pay this supplier a $20,000 deposit from
    his own money. Even so, St. Amand proposed to Tisi that she contract directly
    with Mission Cabinetry and pay for its work, and that he would then give her a
    credit against the purchase price for the home. Tisi refused. She continued to
    insist St. Amand had to agree to pay for her choice of supplier. Her position
    was unreasonable and it was at odds with application judges finding.

[23]

Then
    Tisi asked St. Amand to put together a proposal for her to buy the home on an
    as is basis. St. Amand did so. Tisi never replied to the proposal. Instead,
    she registered a certificate of pending litigation against the property.

[24]

The
    application judge might have looked at this dispute differently. But her
    decision is consistent with the equities of the case, which overwhelmingly
    favoured St. Amand.

C.

Disposition

[25]

The
    appeal is dismissed with costs, including the costs of the fresh evidence
    motions, in the amount proposed by St. Amand, $9,000, inclusive of
    disbursements and HST.

John
    Laskin J.A.

B.W.
    Miller J.A.

David M.
    Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sickinger v. Sickinger, 2018 ONCA 111

DATE: 20180205

DOCKET: M48394 (C63525)

LaForme, Rouleau and van Rensburg JJ.A.

BETWEEN

Penelope Kay Sickinger

Applicant
(Respondent in Appeal)

and

Ralph Thomas James Sickinger

Respondent (Appellant)

Gary S. Joseph, for the appellant

Katherine Costin, for the respondent

Heard and released orally: February 1, 2018

REASONS FOR DECISION

[1]

The appellant brings forward evidence that was
    not before the motion judge. He asserts that when this fresh evidence is
    considered, the court will be satisfied that a reasonable explanation for his
    delay in perfecting the appeal exists and that the appeal is not entirely
    without merit.

[2]

The reason to support the admission of such
    evidence is that counsel who was assisting the appellant failed to put before
    the motion judge important evidence that was relevant to the test for extending
    time to perfect his appeal. As this court noted in
Marché DAlimentation
    Denis Th
é
riault Lt
é
e v. Giant Tiger Stores
    Ltd.

(2007), 87 O.R. (3d) 660 (C.A.), counsels
    inadvertence should not prejudice a clients cause. The interests of justice
    require the admission of this evidence.

[3]

The evidence now before the court calls into
    serious question the motion judges conclusions on the merits of the motion to
    extend time, and in particular, with respect to whether there was a reasonable
    explanation for the appellants delay. When that factor is taken into
    consideration together with all the other fresh evidence, we are satisfied that
    the justice of the case requires that the order of the motion judge and the dismissal
    for delay be set aside, and that time to perfect the appeal be extended to
    February 16, 2018.

[4]

The appellant has undertaken not to move for a
    stay of the judgment pending appeal.

[5]

There will be no costs of this motion.

H.S.
    LaForme J.A.

Paul Rouleau J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sokal (Re), 2018 ONCA 113

DATE: 20180207

DOCKET: C63652

Rouleau, Watt and Brown JJ.A.

IN THE MATTER OF:  Roman Sokal

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the Appellant, Roman Sokal

Rebecca De Filippis, for the Respondent, Her Majesty the
    Queen

Heard: January 11, 2018

On appeal against the disposition of the Ontario Review
    Board dated, April 18, 2017.

REASONS FOR DECISION

I.

overview

[1]

The appellant, Roman Sokal, appeals from the April 18, 2017 disposition
    of the Ontario Review Board (the Board) ordering his discharge on conditions.
    Mr. Sokal lives independently in the community. The conditions include
    requirements that he report to St. Josephs Health Care Hamilton (the
    Hospital) every two months, abstain absolutely from the non-medical use of
    alcohol or drugs, and submit urine samples as requested to test for alcohol or
    drugs.

[2]

Mr. Sokal submits the Board erred in failing to grant him an absolute
    discharge. The Crown opposes, arguing the Board did not err in concluding Mr.
    Sokal poses a significant risk to the safety of the public. The Hospital did
    not participate in the appeal.

II.

BACKGROUND

[3]

Mr. Sokals current diagnosis is schizoaffective disorder and
    polysubstance use disorder (in remission).

[4]

Prior to his commission of the index offences in late 2012 and early
    2013, Mr. Sokal had a history of substance abuse, involving a variety of drugs.
    Between 2008 and 2012 Mr. Sokal was hospitalized 23 times for mental health
    issues. Most of those admissions took place in 2011 and 2012, with many
    resulting from Mr. Sokals attendance at a hospitals emergency room asking for
    treatment or a place to stay.

[5]

During the period from 2008 until 2012, Mr. Sokal frequently was
    homeless, confused, and delusional. His parents tried to support him in many
    ways, but their efforts proved ineffective due to Mr. Sokals lack of
    responsiveness.

[6]

On one occasion in late 2009, prior to the NCR verdict, Mr. Sokal bit a
    security guard upon his attendance at a hospital emergency room; he was
    convicted of mischief and assault.

[7]

Mr. Sokal was admitted to the Hospital in March 2013. In April of that
    year, he was found not criminally responsible on account of mental disorder on
    two charges of criminal harassment. Mr. Sokal had become delusional about two
    of his former community college professors during a period of time when he was
    not taking his medications and was abusing substances. The harassing conduct
    included making abusive, and occasionally threatening, phone calls to the
    professors and, on one occasion, shouting vulgarities at one professor when he
    encountered him in a hospital lobby.

[8]

The Boards initial June 2013 disposition ordered Mr. Sokal to be
    detained at a minimum secure forensic unit at the Hospital. However, the
    initial disposition also contained a condition permitting community living,
    which was implemented in March 2014. In early 2015, the Board ordered Mr. Sokal
    discharged, subject to conditions. Since March 2014, Mr. Sokal has lived in the
    community  for the most part living independently in an apartment  with the
    exception of a one-month re-admission in June 2016 when he tested positive for
    crystal methamphetamine. Although Mr. Sokal has only worked occasionally since
    2013, at the time of the Board hearing he was employed on a part-time basis
    with a photography business.

[9]

The evidence reveals that since the NCR verdict, Mr. Sokal has made
    significant progress, has been compliant with his medications, displays none of
    the symptoms that led to the index offences, and has not been physically
    violent.

III.

THE BOARDS DISPOSITION

[10]

In
    declining to grant an absolute discharge and, instead, continuing the
    conditional discharge, the Board wrote that substance abuse remains the
    critical factor in assessing Mr. Sokals risk. In late November 2015, Mr.
    Sokal tested positive for cocaine. Then, in June 2016, prior to being tested,
    he self-reported using crystal methamphetamine to his treatment team. He then
    agreed to his re-admission into the Hospital for about one month. In light of
    those events, the Board accepted the evidence of the treating psychiatrist, Dr.
    Kolawole, that Mr. Sokal needs to demonstrate an ability to remain drug free
    for a 12-month period. The Board unanimously concluded that given Mr. Sokals
    pre-NCR offence psychiatric history and long and significant history of
    substance abuse, the test of significant threat to the safety of the public
    had been met.

IV.

THE GOVERNING PRINCIPLES

The standard of review

[11]

The
    reasonableness standard of review applies to an appeal from a disposition of
    the Board:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 37;
Criminal
    Code
, s. 672.78(1)(a).

[12]

An
    appellate court must always recall the difficulty of assessing whether a given
    individual poses a significant threat to public safety:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    61. The appeal court does not make its own judgment on the question of significant
    threat and use that judgment as the benchmark for assessing the reasonableness
    of the Boards decision. Nor does the court re-weigh the considerations that
    were before the Board:
Wall (Re)
, 2017 ONCA 713, at para. 21.

[13]

The
    reasonableness of the Boards decision must be evaluated by considering the
    reasons it proffers in the context in which the decision is made. At issue is
    whether the Board reached an acceptable and defensible outcome, keeping in mind
    the need to protect the liberty of the NCR accused as much as possible, while
    also protecting society:
Wall
, at para. 22.

The significant risk requirement in s. 672.54

[14]

Part
    XX.1 of the
Criminal Code
can only maintain its authority over an NCR
    accused where the court or Review Board concludes that the individual is a
    significant threat to the safety of the public. A significant threat to the
    safety of the public means a risk of serious physical or psychological harm to
    members of the public resulting from conduct that is criminal in nature but not
    necessarily violent:
Criminal Code
, s. 672.5401. Or, as put in
Winko
,
    at para. 57, the court or Review Board must conclude the individual poses a
    significant risk of committing a serious criminal offence.

[15]

The
    threat posed must be more than speculative in nature; it must be supported by
    evidence.   The threat must also be significant, both in the sense
    that there must be a real, foreseeable risk of physical or psychological harm occurring
    to individuals in the community and in the sense that this potential harm must itself
    be serious:
R. v. Ferguson
, 2010 ONCA 810, at para. 8. The likelihood
    of a risk materializing and the seriousness of the harm that might occur must
    be considered together:
Re Carrick
, 2015 ONCA 866, at para. 16.

V.

ANALYSIS

[16]

The
    April 2017 clinical risk assessment in the Hospital Record prepared by Dr.
    Kolawole recognized that Mr. Sokal continued to make progress with his
    rehabilitation and recovery in the community. Indeed, at the Board hearing Dr.
    Kolawole testified that he thought an absolute discharge was achievable for Mr.
    Sokal in the next year, given the progress that [he] has made so far over the
    past four years and [a]lso given the fact that hes now engaged with the
    Hamilton Program for Schizophrenia. However, in his clinical risk assessment
    Dr. Kolawole stated:

It is quite likely that absent the supervision, monitoring and
    prohibitions under his current disposition, Mr. Sokal would revert to using the
    variety of substances that he has used before. In the event that he resorts to
    using illicit substances and becomes non-adherent with his medication, he would
    likely suffer a decompensation of his mental health with an increased risk of
    future offending.

[17]

Dr.
    Kolawole had included similar statements in his clinical risk assessments
    dating back to April 2014.

[18]

The
    Board relied heavily on that evidence from Dr. Kolawole to conclude Mr. Sokal
    posed a significant threat to the safety of the public. The Board stated the
    appellants substance abuse remained the critical factor in assessing his risk.
    Certainly, there was evidence before the Board that the appellant had taken
    drugs twice in the previous two years: cocaine in November 2015, and
    methamphetamine in June 2016. (The Hospital Report also noted four presumptive
    positive test results for methamphetamines, although the appellant explained
    them as resulting from taking over-the-counter medications for sinus
    infections.) However, the Board then used the evidence of the drug incidents to
    find that the appellant needed to demonstrate an ability to remain drug free
    for a 12-month period. It went on to conclude that given the appellants
    pre-NCR offence psychiatric history and long and significant history of
    substance abuse, the statutory test had been met.

[19]

With
    respect, by imposing on the appellant the need to demonstrate a specified drug-free
    period the Board miscast the nature of the inquiry required by s. 672.54 of the
Criminal Code
 that is, did the evidence demonstrate the NCR accused
    posed a significant threat to public safety? If it did not, the statute
    required granting an absolute discharge. The legal and evidentiary burden of
    establishing a significant threat to public safety remained with the Board; it
    did not shift to the NCR accused:
Winko
, at para. 54.

[20]

The
    Boards misdirection led it to put to one side evidence relevant to the issue
    of whether the appellant posed a significant risk of committing a serious
    criminal offence. Recall that for a threat to be significant, there must be a
    real, foreseeable risk of physical or psychological harm occurring to
    individuals in the community and this potential harm must itself be serious. A
    minuscule risk of a grave harm will not suffice.  Similarly, a high risk
    of trivial harm will not meet the threshold.  The conduct or activity
    creating the harm must be criminal in nature:
Winko
, at para. 57.

[21]

The
    evidence before the Board was that there were no concerns about violence or
    aggression. Although the appellant had an extensive history of major mental
    illness and substance abuse prior to the index offences, there was evidence of
    only one instance of physical violence  when the appellant bit a hospital
    security guard in 2009. Since his initial disposition, the appellant had spent
    most of his time living independently in the community without incident. As the
    Board noted, [t]here have been no incidents of violence or aggression.

[22]

Although
    in the past there were issues concerning the appellants compliance with taking
    his anti-psychotic medication, Dr. Kolawole acknowledged the appellant had done
    very well since 2013 and was receiving the correct dosage by way of depot
    injection. While the appellant had expressed a desire to reduce the dosage,
    there was no evidence he wanted to discontinue the medication.

[23]

As
    well, the appellant had just been accepted by a specialized community group
    that deals with persons suffering from schizophrenia, the Hamilton Program for
    Schizophrenia. According to the Hospital Record, referral to that program is
    designed to transition Mr. Sokal to a non-forensic service so that he would be
    well supported when he received an absolute discharge.

[24]

Notwithstanding
    this evidence, the Board focused its risk analysis on the issue of the
    appellants substance abuse. As mentioned, there were two incidents of substance
    abuse in the 18 months prior to the disposition. However, as the Board noted,
    the appellant had not displayed any psychotic symptoms since 2013, even upon
    his re-admission in June 2016 following his consumption of methamphetamine.

[25]

With
    respect, the Board used Dr. Kolawoles desire to see a 12-month drug-free
    period and his chain of reasoning to extrapolate from evidence of the
    appellants pre-NCR verdict substance abuse to conclude the significant threat
    standard had been met. Given the entirety of the evidence before it concerning
    Mr. Sokals status at the time of the hearing - his medication compliance, lack
    of violence and aggression, a 10-month drug-free period, his admission to the
    Hamilton Program for Schizophrenia, and lack of psychotic symptoms associated
    with recent drug use - the Boards conclusion that the appellant posed a
    significant threat to public safety was speculative.  It was not reasonable for
    the Board to deny the appellant an absolute discharge in light of the evidence
    before it.

VI.

DISPOSITION

[26]

The
    appellant is entitled to be discharged unless he constitutes a significant
    threat to the safety of the public. The evidence failed to meet the onerous
    standard under s. 672.54:
Carrick
, at para. 17. The appeal is allowed.
    The decision of the Board is set aside. Pursuant to s. 672.78(3)(a), in its
    place we order an absolute discharge.

Paul
    Rouleau J.A.
David Watt J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toronto East General Hospital v. Ontario Nurses'
    Association, 2018 ONCA 175

DATE: 20180223

DOCKET: C63850

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

Toronto East General Hospital

Applicant (Respondent)

and

Ontario Nurses Association
and Felicity
    Briggs, Arbitrator

Respondents (
Appellant
)

Kate A. Hughes, Danielle Bisnar and Simran Prihar, for
    the appellant

David A. Stamp and Allan Wells, for the respondent

Heard: November 21, 2017

On appeal from the judgment of the Divisional Court
    (Justices Michael R. Dambrot, I.V.B. Nordheimer and George W. King), dated
    November 24, 2016, with reasons reported at 2016 ONSC 7331, granting judicial
    review of a decision of Arbitrator Felicity Briggs, dated September 16, 2014.

By the Court:

OVERVIEW

[1]

This appeal concerns a labour arbitrators interpretation of a
    collective agreement to which the appellant, the Ontario Nurses Association
    (the ONA), and the respondent, the Toronto East General Hospital (the Hospital),
    are parties. The underlying dispute arose out of the Hospitals decision to
    close a number of beds in one of its units. The closure reduced the number of
    hours of work available for the Hospitals regular part-time nurses (RPT nurses). The
    Hospital spread the reduction in hours across the schedules of all RPT nurses
    on the unit, regardless of their seniority. The ONA filed a grievance alleging,
    among other things, that the Hospital had breached the collective agreements lay-off
    provisions, which defined a lay-off as a reduction in a nurses hours of
    work.

[2]

A labour arbitrator agreed with the ONAs position and allowed the
    grievance. The Divisional Court set aside the arbitrators award on judicial
    review, reasoning that since the Hospital had no obligation to provide work to
    RPT nurses, a reduction in their working hours could not amount to a lay-off.

[3]

On appeal, the ONA submits the Divisional Court erred in overturning the
    arbitrators decision. We agree and would allow the appeal, for the reasons
    that follow.

FACTS

The Collective Agreement

[4]

The collective agreement in question consists of two parts: centrally
    negotiated provisions (the Central Agreement) and locally negotiated
    provisions (the Local Agreement). The Central Agreement is negotiated between
    the ONA and the Ontario Hospital Association (OHA) on behalf of 133
    participating hospitals, including the Hospital. The Local Agreement is
    negotiated directly between the Hospital and the ONA.

[5]

Two aspects of the collective agreement are central to this appeal  its
    classification of nurses, and its lay-off provisions.

Classification of Nurses

[6]

The collective agreement distinguishes between full-time, regular
    part-time and casual nurses. Article 2.04 of the Central Agreement defines a
    full-time nurse as a nurse who is regularly scheduled to work the normal
    full-time hours referred to in Article 13. Article 13, in turn, provides
    that:

The following

provision

designating

regular

hours

on

a

daily

tour

and

regular

daily tours

over

the

nursing

schedule

determined

by

the

Hospital

shall

not be construed

to

be

a

guarantee

of

the

hours

of

work

to

be

performed

on

each

tour

or
    during

each

tour

schedule.

(a) The normal daily tour shall be seven and one-half (7
    1/2) consecutive hours in any twenty-four (24) hour period exclusive of an
    unpaid one-half (1/2) hour meal period

(c) The regular daily tours of duty of a full-time nurse
    shall average five (5) days per week over the nursing schedule determined by
    the Hospital. Full-time schedules shall be determined by local negotiation
    [Emphasis Added].

[7]

A RPT nurse, as defined in Article 2.05, regularly works less than the
    normal full-time hours referred to in Article 13 and ... offers to make a
    commitment to be available for work on a regular predetermined basis  [which]
    shall be determined in local negotiations. That regular predetermined basis
    is outlined in Article D.4 of the Local Agreement, which stipulates, among
    other things, that a RPT nurse must be available to work the number of shifts
    and hours as stated in the posting notice advertising the nurses position issued
    by the Hospital. Article D.4(7) states that RPT nurses may be scheduled up to
    their commitment, and may be offered additional shifts up to full-time hours
    [w]hen all part-time nurses have been scheduled to their commitment.

[8]

Casual nurses are defined in the collective agreement as part-time
    nurses that do not meet the criteria for regular-part time status. The Hospital
    is prohibited under Article D.7(1) of the Local Agreement from utilizing any casual
    nurses until all RPT nurses have been scheduled up to their commitments.

Lay-Off Provisions

[9]

Article 10.08(a) of the Central Agreement defines a layoff as including
    a reduction in a nurses hours of work and cancellation of all or part of a
    nurses scheduled shift. The collective agreement places several procedural
    obligations on the Hospital with respect to lay-offs. Among other requirements,
    Article 10.09(a) provides that nurses shall be laid off in the reverse order
    of seniority provided that the nurses who are entitled to remain on the basis
    of seniority are qualified to perform the available work. Article
    10.09(b)(iii)(C) bars the Hospital from reducing a nurses hours of work to
    prevent or reduce the impact of a layoff, unless it has the ONAs consent.

Events Giving Rise to the Grievance

[10]

As
    noted above, the ONAs grievance stemmed from the closure of eleven beds in a
    unit at the Hospital, which reduced the hours of work available for RPT nurses.
    Following the closure, the Hospital scheduled its RPT nurses below their work
    commitments, without regard for seniority and without complying with the
    collective agreements lay-off provisions. The ONA argued that the Hospitals
    scheduling decisions breached the collective agreement. The matter proceeded to
    arbitration.

PREVIOUS DECISIONS

The Arbitrators Decision

[11]

The

parties agreed to bifurcate the
    arbitration hearing and elected not to call evidence. At the first stage of the
    hearing, the parties posed

two

questions to the arbitrator concerning

the

proper

interpretation of

the

collective agreement:

(a) Does the collective agreement require the Hospital to
    schedule a [RPT nurse] up to his/her commitment to be available, regardless of
    whether the hours of work are available? [the First Question"]

(b) Where a [RPT nurse] is scheduled less than his or her
    commitment to be available and has been scheduled up to his or her commitment
    on a previously posted schedule, does the scheduling of a [RPT nurse] on a
    subsequently posted schedule below his or her commitment to be available
    constitute a layoff? [the Second Question"]

[12]

With

respect

to

the

First

Question,

the

arbitrator

held

that

the

Hospital

had

no

obligation

to provide RPT nurses with work that was not available, but
    noted at para. 38 that where the Hospital fails to schedule a [RPT nurse] up
    to her commitment, there may be [c]ollective [a]greement provisions that are
    triggered. The arbitrator also observed that "the situation in this case ...
    is not one where there are no available hours of work. There is still work to be
    done by [RPT nurses]. There is less work because of the bed closures, but there
    is still available work.

[13]

Turning

to

the

Second

Question
,
the arbitrator concluded that the
    Hospital had triggered the collective agreements lay-off provisions by
    reducing the working hours of its RPT nurses without regard for seniority. In
    reaching this conclusion, the arbitrator rejected the Hospital's

submission

that

the collective agreement

provides no

"benchmark to measure a reduction in working hours for

RPT nurses
,
for two reasons.

[14]

First,
    the arbitrator was not convinced that

a
contractual

benchmark

was

necessary  presumably, because the
    Second Question referred only to nurses who had previously been scheduled up to
    their commitments.

[15]

Second,

the arbitrator found that in any event,
    the
collective
agreement

sets out

an appropriate

benchmark for
    measuring a reduction in a RPT nurses working hours: the hours for which each
    RPT [nurse] has committed to work as reflected in the job postings for regular
    part-time positions issued by the Hospital. In support of this conclusion, the
    arbitrator noted that Article D.7 of the Local Agreement obliges the Hospital
    to schedule RPT nurses to their commitments before using casual nurses. The
    arbitrator also observed that RPT nurses can be considered for additional
    tours after being scheduled to commitment, suggesting that the commitment
    constitutes a baseline measure of regular working hours.

[16]

The
    arbitrator found further support for her conclusion in arbitral jurisprudence
    emphasizing that this particular collective agreement cannot be interpreted so
    as to remove any meaningful distinction between RPT nurses and casual nurses.
    Recognizing an unrestricted right for the Hospital to reduce the working hours
    of RPT nurses would have precisely that effect, in the arbitrators view. The
    arbitrator also held that by reducing RPT nurses working hours to avoid laying
    off junior nurses, the Hospital had infringed Article 10.09(b)(iii)(C) of the
    collective agreement, which prohibited any "reduction in the hours of work
     to prevent or reduce the impact of a layoff''. In her opinion, the
    Hospitals desire for more flexibility  [did] not override the seniority
    rights or nurses as set out in the [c]ollective [a]greement.

[17]

For
    these reasons, the arbitrator answered the Second Question in the affirmative
    and allowed the grievance. She agreed to remain seized to reconvene, if necessary,
    to determine an appropriate remedy.

The Divisional Courts Decision

[18]

The
    Divisional Court acknowledged that the applicable standard of review was
    reasonableness. The Court found the arbitrators decision to be unreasonable,
    for two reasons.

[19]

First,
    the Divisional Court held that the arbitrator's answers to the First and Second
    Questions were "internally inconsistent". In the Courts view, the
    arbitrators answer to the First Question correctly established that RPT nurses
    were not guaranteed work under the collective agreement. Given that conclusion,
    the Court reasoned that an employee cannot be fairly characterized as being
    laid off, when the employer does not provide work." The arbitrator took a
    different view in her answer to the Second Question and, in the Courts view,
    thereby created an absurdity where the Hospital would be saddled with the
    layoff obligations and costs, prescribed in the collective agreement, for
    failing to provide the very work that it is not contractually required to
    provide.

[20]

Second,
    the Divisional Court determined that the arbitrators answer to the Second
    Question was at odds with the deal that the parties made in their collective
    agreement. The Court reasoned that the arbitrators ruling nullified the clear
    intent of Article 2.05 by "elevat[ing] what was clearly intended to be a
    flexible system, by which the [Hospital] would assign work to part-time nurses,
    to an absolute entitlement to work. The Divisional Court dismissed, as
    irrelevant, the fact that RPT nurses had previously been regularly scheduled up
    to the level of their commitment. In the Courts opinion, "[t]he fact that
    work has been provided in the past does not alter the clear wording of Article 2.05,
    or the fundamental nature of the work arrangement .... [t]he fact remains that
    when it comes to part-time nurses, the [Hospital] is entitled to provide work
    to them, or not, as the [Hospital] chooses."

[21]

The
    Court therefore set aside the arbitration award, "insofar as it held that the
    lay-off provisions of the collective agreement were triggered by the actions of
    the [Hospital]", and remitted the matter to the arbitrator.

ISSUES

[22]

The
    ONA raises one issue on appeal: whether the Divisional Court erred by finding
    that the arbitrators award was unreasonable.

ANALYSIS

Standard of Review

[23]

When
    sitting on an appeal from a judicial review, this court must determine whether
    the reviewing court properly identified and applied the appropriate standard of
    review:
Agraira v. Canada (Public Safety and Emergency Preparedness)
,
2013 SCC 36,

[2013] 2 S.C.R. 559, at paras. 45-47.

[24]

The
    parties submit that the arbitrators decision warranted review on a standard of
    reasonableness. We agree. The arbitrator's interpretation of the collective
    agreement falls squarely within her area of expertise and is owed deference:
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 68;
Wilson
    v. Atomic Energy of Canada Ltd
.
, 2016 SCC 29, [2016] 1 S.C.R. 770,
    at para. 15;
Association of Justice Counsel v. Canada
, 2017 SCC 55,
    415 D.L.R. (4th) 191, at para. 47. The Divisional Court had to determine
    whether the arbitrators decision falls within a range of possible, acceptable
    outcomes which are defensible in respect of the facts and law:
Dunsmuir
,
at paras. 47;
Stewart v. Elk Valley Coal Corp
.
, 2017 SCC
    30, [2017] 1 S.C.R. 591, at para. 27.

In conducting this inquiry, the
    Divisional Court had to pay respectful attention to the [arbitrators]
    reasoning process, and consider whether there are any lines of analysis in her
    reasons that could have reasonably led to her conclusion:
Law Society of
    New Brunswick v. Ryan
, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55;
Elk
    Valley Coal Corp
.
, at para. 27.

[25]

As
    the Divisional Court correctly identified the applicable standard of review as
    reasonableness, this appeal turns on whether the Court properly applied that standard.

The Parties Submissions

[26]

The
    ONA submits that the Divisional Court erred in finding the arbitrators answer
    to the Second Question to be unreasonable. The arbitrators answers to the
    First and Second Questions are consistent, as the two questions address
    different scenarios  one, where no work is available, and the other, where
    there is less work to be done. The ONA further contends that the arbitrators
    answer to the Second Question is consistent with the terms of the parties
    collective agreement. The arbitrator, the ONA argues, reasonably concluded that
    the Hospitals refusal to schedule RPT nurses up to their commitments
    constituted a reduction of  hours of work that triggered the agreements
    lay-off provisions. By substituting its own interpretation for that of the
    arbitrator, the Divisional Court, in the ONAs view, ignored three lines of
    analysis reasonably capable of supporting her conclusion:

(a) No
    contractual benchmark was necessary to apply the lay-off provisions, as the
    Second Question referred only to RPT nurses who had been scheduled up to their commitment
    on a previously posted schedule.

(b) A RPT
    nurses commitment, as reflected in the job posting advertising his or her
    position, constitutes an acceptable contractual benchmark. While a RPT nurses
    commitment does not amount to a guarantee of work,
no

nurses
    full or part-time  are guaranteed work under the collective agreement.
    Accordingly, a guarantee of work cannot be a pre-requisite for applying the
    lay-off provisions.

(c) The
    Hospital breached Article 10.09(b)(iii)(C) by reducing the working hours of all
    RPT nurses without regard to seniority, to avoid laying off the most junior RPT
    nurses.

[27]

In
    response, the Hospital submits that the Divisional Court correctly concluded
    that the arbitrators answers to the First and Second Questions cannot be reconciled.
    Nor, argues the Hospital, can her answer to the Second Question be squared with
    Article D.4(7) of the Local Agreement, which provides that a RPT nurse
may
be scheduled up to their commitment. The permissive language employed in this
    clause is particularly probative given the mandatory language used in other
    provisions of the collective agreement, where the parties clearly intended to
    remove the Hospitals flexibility with respect to scheduling RPT nurses. These
    considerations, in the Hospitals view, render the arbitrators decision
    unreasonable.

Was the Arbitrators Decision Reasonable?

[28]

In
    our respectful view, neither of the Divisional Courts justifications for
    overturning the arbitrators decision can withstand scrutiny.

1.  The Arbitrators Answers are Internally Consistent

[29]

The
    arbitrator answered the First Question in two parts. She found that the
    Hospital is not obliged to schedule a [RPT] nurse to the level of her
    commitment if the hours of work are not available. She then qualified her finding,
    noting that where the Hospital fails to schedule a [RPT] nurse up to her
    commitment, there may be Collective Agreement provisions that are triggered.
This
    is addressed more fully by the second question
 (emphasis added).

[30]

We
    see no inconsistency between this answer and the arbitrators answer to the
    Second Question. Neither answer imposes on the Hospital an obligation to
    schedule RPT nurses up to their commitments when there is no work available. We
    respectfully disagree with the Divisional Court that the arbitrators refusal
    to recognize such an obligation in her answer to the First Question precluded
    her answer to the Second Question. As the arbitrator noted at para. 39, the
    Second Question addressed a different scenario than the First  one where less
    work was available for RPT nurses, as opposed to no work.

[31]

In
    any event, we do not read the arbitrators answer to the Second Question as
    imposing an obligation on the Hospital to schedule RPT nurses to commitment.
    As we explain below, her answer merely recognizes that if the Hospital
    exercises its discretion to schedule RPT nurses below their commitment, it must
    comply with the collective agreements lay-off provisions  a logical extension
    of the arbitrators answer to the First Question, which recognized that where
    the Hospital fails to schedule a [RPT] nurse up to her commitment, there may
    be [c]ollective [a]greement provisions that are triggered. These answers are
    entirely consistent and do not create the absurdity described by the Divisional
    Court.

2. The Arbitrators Answer to the Second Question is Consistent with the
    Collective Agreement

[32]

In
    our respectful view, the Divisional Court placed undue focus on whether the
    collective agreement guarantees work to RPT nurses. Instead, the Court should
    have considered whether the collective agreement provides a benchmark to
    measure a reduction in a [RPT] nurses hours of work, thereby permitting
    resort to the lay-off provisions.

[33]

The
    Divisional Courts focus on a guarantee of work was misplaced because, as the
    arbitrator recognized, the lay-off provisions can apply to nurses who are not
    guaranteed work under the collective agreement. Both parties agree that no
    nurses  full or part-time  are guaranteed work under the agreement. Article
    13.01, which governs the working hours of full-time nurses, explicitly states
    that their normal full-time hours shall not be construed to be a guarantee
    of  hours of work. And yet, there is no dispute that the lay-off provisions
    will be triggered if a full-time nurse is scheduled below normal full-time
    hours. Evidently, while the agreement does not provide full-time nurses with a
    guarantee of work, neither does it grant the Hospital unfettered discretion to
    schedule those nurses below their normal full-time hours. The Divisional
    Court, with respect, erred by failing to consider whether that logic could
    reasonably be extended to RPT nurses.

[34]

The
    Hospitals submissions on appeal also place undue emphasis on the absence of a
    guarantee of work for RPT nurses. This is most evident in the Hospitals
    primary submission on appeal  that the arbitrator failed to give effect to
    clear, permissive language within the collective agreement indicating that RPT
    nurses may be scheduled up to their commitment. As explained above, however,
    the provisions of the agreement relevant to scheduling full-time nurses are
    also permissive, but nonetheless constrained by the agreements lay-off
    provisions. The relevant question, therefore, is whether the lay-off provisions
    similarly constrain the Hospitals discretion to schedule RPT nurses below
    commitment. For the lay-off provisions to have such an effect, there must be
    some benchmark  within the agreement or otherwise  against which to measure a
    reduction in a [RPT] nurses hours of work. In our view, the arbitrator
    reasonably found that the collective agreement provided such a benchmark. Given
    this conclusion, we need not consider whether a non-contractual benchmark would
    also have been suitable in these circumstances.

3. An Appropriate Benchmark

[35]

The
    arbitrator determined that the hours for which each RPT [nurse] has committed
    to work provides a suitable contractual benchmark for applying the lay-off
    provisions. In our view, this was a reasonable finding.

[36]

First,
    that a RPT nurses commitment is not a guarantee of work does not preclude its
    use as a benchmark for applying the lay-off provisions. As explained above, a
    full-time nurses normal full-time hours provide an appropriate benchmark,
    even though they are not to be construed as a guarantee of work. As the
    Hospital concedes at para. 80 of its factum on appeal, [a] guarantee of work
    is not the issue.

[37]

Second,
    the arbitrators conclusion finds reasonable support in the wording of the
    collective agreement. To justify her answer to the Second Question, the
    arbitrator drew upon Article D.7(2) of Local Agreement as well as the posting
    notices issued by the Hospital, referenced in Article D.4. While these
    provisions do not guarantee work to RPT nurses, they nonetheless support the
    conclusion that a RPT nurses commitment is a meaningful benchmark for the
    purposes of this agreement, appropriate for use in applying the lay-off
    provisions. Article 2.05 of the Central Agreement further bolsters the
    arbitrators reasoning, as it refers to a RPT nurses commitment as the
    regular pre-determined basis on which he or she is assigned work. Equating a
    regular pre-determined basis of work with a benchmark does not, in our
    view, give rise to an unreasonable result.

[38]

Third,
    the arbitrator reasonably determined that under the Hospitals proposed
    interpretation of the agreement, RPT nurses would see their work status
    effectively chang[ed]  to casual. The Hospital objects to this finding,
    noting that RPT nurses, unlike casual nurses, benefit from knowing their work
    schedules in advance. The fact remains, however, that the Hospitals favoured
    interpretation of the lay-off provisions significantly erodes the distinction
    between the two types of nurses, even if it does not eliminate the distinction
    entirely. As the arbitrator noted, if the Hospital can  without restriction
    reduce or fluctuate the hours of RPT [nurses] there would be nothing
    prohibiting a reduction of scheduled hours to none. This finding and the
    inferences the arbitrator drew from it were reasonable and they provide further
    support for the arbitrators answer to the Second Question.

[39]

Fourth,
    while not determinative, we note that the arbitrators approach finds support
    in other arbitral decisions interpreting analogous lay-off provisions. For
    example, in
St. Vincent de Paul Hospital, Brockville v. C.U.P.E., Local
    2491
, [2006] O.L.A.A. No. 615, a management rights clause granted the
    employer hospital the exclusive right to determine the assignment of working
    hours for its employees. Article 14 of the parties collective agreement
    stated that full and part-time employees were not guaranteed minimum hours of
    work. The hospital reduced the hours of work available for three part-time
    switchboard operators, and spread the reduction in hours among the operators
    without regard for seniority. The union filed a grievance. The arbitration
    board found a lay-off had occurred, reasoning at para. 22, that the absence of
    a guarantee of work was not determinative of whether the Hospital was required
    to follow the layoff procedures set out in the collective agreement. The
    arbitration boards reasoning was subsequently adopted in
C.U.P.E., Local 4000
    v. Ottawa Hospital
(2012), 109 C.L.A.S. 243, at paras. 53-56. These prior
    decisions shape the contours of what qualifies as a reasonable decision in
    this case:
Communications, Energy and Paperworkers Union of Canada, Local
    30 v. Irving Pulp & Paper, Ltd
.,
2013 SCC 34, [2013] 2 S.C.R.
    458, at para. 76.

[40]

Fifth,
    we agree with the appellant that the arbitrators decision reflects appropriate
    concern for the seniority rights of RPT nurses. Various provisions in the
    collective agreement underscore the importance of RPT nurses seniority rights,
    including clauses addressing negotiations, committee membership, professional
    development, probation and termination. Under the Hospitals proposed
    interpretation of the agreement, however, RPT nurses would see the value of
    their seniority significantly diminished. The arbitrator, in our view,
    reasonably chose to avoid this outcome in interpreting the agreements lay-off
    provisions. As noted in the oft-cited decision
U.E., Local 512 v. Tung-Sol
    of Canada Ltd.
, [1964] O.L.A.A. No. 9, at para. 4:

Seniority is one of the most important and far-reaching
    benefits which the trade union movement has been able to secure for its members
    by virtue of the collective bargaining process  It follows, therefore, that
an
    employee's seniority should only be affected by very clear language in the
    collective agreement concerned and that arbitrators should construe the
    collective agreement with the utmost strictness wherever it is contended that
    an employee's seniority has been forfeited, truncated or abridged under the
    relevant sections of the collective agreement
[Emphasis Added].
[1]

[41]

Those
    observations are apposite here. Given the clear importance of RPT nurses
    seniority rights to the collective agreement as a whole, it was eminently
    reasonable for the arbitrator to conclude that those rights are not truncated
    or abridged under the agreements lay-off provisions.

[42]

The
    Hospital takes issue with this reasoning, arguing that its position does not
    erode seniority rights because the Collective Agreement does not require the scheduling
    of [RPT] nurses up to their commitment on the basis of seniority. With
    respect, this submission begs the question. What the collective agreement
    requires in terms of scheduling RPTs up to their commitment was the very
    question the arbitrator had to decide. Presented with multiple possible
    answers, she reasonably chose the one that better reflected the high value the
    collective agreement places on RPT nurses seniority rights. We see no basis to
    interfere with that choice.

[43]

We
    add one point on the issue of seniority, relevant to the parties submissions
    on Article 10.09(b)(iii)(C) of the collective agreement. We agree with the
    Hospital that, by itself, this provision does not establish whether RPT nurses
    were laid off when scheduled below their commitment. However, as we are
    satisfied that the arbitrators answer to the Second Question was reasonably
    based on the wording and purpose of the collective agreement viewed as a whole,
    we see no reason to disturb her finding that the Hospitals actions contravened
    s. 10.09(b)(iii)(C).

[44]

We
    conclude by addressing two further objections by the Hospital to the
    arbitrators reasoning. Neither, in our view, justifies overturning her
    decision.

[45]

First,
    the Hospital submits the job posting notices the arbitrator relied on to find a
    contractual benchmark are ancillary to the collective agreement. We disagree.
    The posting notices are clearly incorporated into the collective agreement by
    Article D-4 of the Local Agreement, which, as explained above, states that
    "the predetermined basis upon which a regular part-time employee's
    commitment to be available shall be made as follows  (1) [a]vailable to work
    the number of shifts and hours (day/night/evening)
as stated in the posting
    notice
" (emphasis added).

[46]

Second,
    the Hospital argues that the arbitrators interpretation fails to give effect
    to Article D.7(1) of the Local Agreement, which specifies that the Hospital
    must schedule RPT nurses up to commitment before utilizing casual nurses. If
    RPT nurses must
always
be scheduled to commitment, the Hospital
    argues, Article D.7(1) need not have been included in the agreement.

[47]

We
    do not agree with this submission. The arbitrators answer to the Second
    Question does not render Article D.7(1) redundant. As explained above, the
    arbitrators answer recognizes that the Hospital retains discretion to schedule
    a RPT nurse below commitment, provided it complies with the lay-off provisions
    in the collective agreement. However, should the Hospital schedule a RPT nurse
    below commitment for the purpose of giving shifts to casual nurses, it will
    presumably be in breach of Article D.7(1) of the collective agreement even if
    it complies with the lay-off provisions.

[48]

Accordingly,
    we do not agree that the arbitrators interpretation fails to give effect to
    Article D.7(1), or any other provision of the collective agreement. Her answer
    to the Second Question falls well within the range of outcomes defensible in
    respect of the facts and the law.

DISPOSITION

[49]

The
    appeal is allowed, the decision of the Divisional Court is set aside and the
    arbitrators decision is restored. The ONA is entitled to its costs of this
    appeal fixed in the amount of $9,000. The ONA is also entitled to $5,000 for
    the costs of the application before the Divisional Court. Both amounts are
    inclusive of disbursements and applicable taxes.

Released: RJS FEB 23
    2018

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.

[1]

See also:
Teamsters
,
Local 938 v. Lakeport
    Beverages
(2005), 77 O.R. (3d) 543 (C.A.), at para. 56.


COURT OF APPEAL FOR ONTARIO

CITATION: Trez Capital Limited Partnership v. Bernstein, 2018
    ONCA 107

DATE: 20180206

DOCKET: C63940

Strathy C.J.O., Hourigan and Miller JJ.A.

BETWEEN

Trez Capital Limited Partnership, Trez Capital
    (2011) Corporation and Computershare Trust Company of Canada

Plaintiffs (Respondents)

and

Dr. Stanley Bernstein
, Norma Walton, Ronauld
    Walton,
DBDC West Mall Holdings Inc.
,
2272551 Ontario Limited
,
DBDC
    Global Mills Ltd.
, West Mall Holdings Ltd., Wynford Professional Centre
    Ltd., Global Mills Inc., Devry Smith Frank LLP and John Todd Homes

Defendants (
Appellants
)

Peter H. Griffin and Christopher Yung, for the
    appellants, Dr. Stanley Bernstein, DBDC West Mall Holdings Inc., 2272551
    Ontario Limited, and DBDC Global Mills Ltd.

Sabrina Waraich, for the appellants, Norma Walton,
    Ronauld Walton, West Mall Holdings Ltd. and Global Mills Inc.

Irving Marks  and Dominique Michaud, for  the
    respondents, Trez Capital Limited Partnership, Trez Capital (2011) Corporation
    and Computershare Trust Company of Canada

Heard: January 19, 2018

On appeal from the order of Justice F. Newbould of the
    Superior Court of Justice, dated May 24, 2017 with reasons reported at 2017
    ONSC 3111 and 2017 ONSC 4120.

Hourigan J.A.:

[1]

The appellants, Stanley Bernstein and his companies, appeal from the
    order of the motion judge dismissing their motion for summary judgment. They
    had moved to dismiss the action commenced by the respondents on the basis that
    it is statue barred by operation of the
Limitations Act
, 2002, S.O.
    2002, c. 24, Sch. B.

[2]

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

Background Facts

[3]

Dr. Bernstein was involved in a business relationship with Norma and
    Ronauld Walton, who operated The Rose & Thistle Group Ltd. (Rose &
    Thistle). Dr. Bernstein and the Waltons agreed to invest jointly in various
    commercial real estate projects. Ultimately, Dr. Bernstein invested
    approximately $110 million in 31 such projects. Each project was held in a
    separate corporation in which Dr. Bernstein was a 50% shareholder and the
    Waltons were 50% shareholders (the project corporations). The Waltons were
    responsible for managing and supervising the projects and arranging financing.

[4]

The respondent,
Trez
Capital
    Limited Partnership (Trez), is a commercial lender. It financed four of the
    projects jointly owned by Dr. Bernstein and the Waltons. For each loan, the
    Waltons falsely represented to
Trez
that they were the beneficial owners of 100% of the shares of the
    relevant project corporation.

[5]

With respect to the disclosure of Dr. Bernsteins involvement in the
    projects, an email dated February 25, 2013 from Ms. Walton to Dr. Bernstein
    (the Resignation Email) is significant. It provides, in part, as follows:

Ron and I are working on eliminating the need for personal
    guarantees of any kind on our mortgages for our properties. In the meantime,
    though, each institutional lender wants us and all directors and shareholders
    to personally guarantee the mortgages. That has become a problem with our
    jointly owned portfolio. Hence, if we advise that you are a joint owner and
    director, they want your personal guarantee or your company's personal
    guarantee. Obviously we have refused to either disclose or provide that.

To remove any focus on your personal or business covenant, I
    have asked Tom to prepare your resignation as a director for Wynford, Spadina
    and Eglinton. Obviously our partnership agreement will remain in place but you
    will not show as a director of the company for public consumption purposes and
    thus the lenders will not ask for your guarantee on the mortgages. I hope that
    is okay. It seems to me the simplest method of removing you from the lender's
    radar while preserving your 50% ownership.

[6]

In response to the Resignation Email, Dr. Bernstein temporarily resigned
    as a director from Wynford Professional Centre Ltd. (Wynford), one of the project
    corporations that were borrowing from Trez at the time. After loan funds were
    advanced to Wynford, Dr. Bernstein was immediately reinstated as a director of
    the corporation.

[7]

The business relationship between the Waltons and Dr. Bernstein became strained
    beginning in June 2013. James Reitan, the then Director of Accounting and
    Finance at Dr. Bernstein Diet & Health Clinics, had concerns with respect
    to the Waltons management of the projects. On June 7, 2013 he emailed Ms.
    Walton to raise certain issues. Mr. Reitan was not satisfied with the response
    to his email. On August 14, 2013 he caused title searches to be done on the 31
    properties and learned that on two properties, 1450 and 1500 Don Mills Road, North
    York, new mortgages of $3 million had been placed on each, without Dr.
    Bernsteins knowledge.  Global Mills Inc. (Global Mills), one of the project
    corporations, owns 1450 Don Mills Road.

[8]

Over the course of the next several weeks, Mr. Reitan made repeated
    requests of staff at Rose & Thistle regarding mortgage payments for Global
    Mills property and requested to be advised if the mortgage on the property
    increased. He did not receive information to his satisfaction, so he sent an
    email to Ms. Walton and one of her staff on September 13, 2013 complaining that
    he had not received complete information and about the fact that payments were
    being made under the mortgage by Rose & Thistle to
Trez
instead of by Global Mills to
Trez
.

[9]

Ms. Walton then emailed
Gaetano Coscia of
Trez

and asked for a return email confirming that
    the Global Mills mortgage was in good standing. She told Mr. Coscia the
    confirmation was being requested by her accountant.  Mr. Coscia emailed Ms.
    Walton and confirmed that the Global Mills mortgage was in good standing. That email
    was forwarded to Mr. Reitan and Dr. Bernstein.

[10]

According
    to Mr. Reitans affidavit filed on the summary judgment motion, he then called
    Mr. Coscia to follow up on the status of the mortgage. The call was made on the
    morning of September 13, 2013 (the September 13 Call).

[11]

The
    parties to the September 13 Call gave very different evidence about what took
    place on the call. This divergence of evidence was the critical issue for
    determination on the motion below. Mr. Reitan testified that during the September
    13 Call he revealed Dr. Bernsteins 50% interest in Global Mills. The position
    taken by the appellants is that the September 13 Call provided Trez with sufficient
    notice that it had a potential claim against Dr. Bernstein for failing to
    reveal his ownership interest in the investments funded by Trez. According to
    the appellants, because Trez did not assert that claim within two years of the September
    13 Call it is statute barred.

[12]

The
    evidence of Mr. Coscia regarding the September 13 Call is markedly different.
    In his affidavit filed on the summary judgment motion, he stated that at no
    time during September 13 Call did Mr. Reitan reveal Dr. Bernsteins ownership
    interest. He said that the first he became aware of it was when he received a
    call from an employee of Rose & Thistle on November 7, 2013. During that
    call he was advised that a receiver had been appointed to manage and operate
    the 31 properties as a consequence of a dispute between Ms. Walton and Dr.
    Bernstein, an equity partner.

[13]

D
r. Bernstein filed an affidavit in which he swore that
    he told Mr. Reitan to contact Mr. Coscia and that he did not instruct Mr.
    Reitan to withhold information about his ownership interest in Global Mills. At
    trial, Dr. Bernstein testified that he told Mr. Reitan to advise Trez who they
    were and he said that they discussed telling Trez that he was a 50% shareholder

[14]

Given
    the conflicting evidence about the September 13 Call, the motion judge ordered
    a mini-trial on the issue. Dr. Bernstein, Mr. Reitan and Mr. Coscia all gave
viva
    voce
evidence. The motion judge preferred the evidence of Mr. Coscia to
    that of Dr. Bernstein and Mr. Reitan. He dismissed the motion for summary judgment
    and made a finding that the limitation period had not expired prior to the
    issuance of the respondents statement of claim.

Issues

[15]

The
    appellants do not submit that this court should make a finding that the
    respondents claim is statute barred. Rather, they argue the order of the
    motion judge should be set aside because he made findings that went beyond what
    was required to determine the motion and these findings will have an adverse
    impact on them at trial. Further, they submit that the motion judge made
    palpable and overriding errors of fact in his analysis of whether Dr.
    Bernsteins ownership interest was revealed during the September 13 Call.
    Finally, they argue the motion judge erred in law in two respects. First, when
    he found that the claim was not discoverable even if the ownership interest was
    revealed during the September 13 Call. Second in finding it was not appropriate
    for Trez to commence an action until it was known whether its security would be
    sufficient to pay the mortgage loans.

[16]

I
    would not give effect to any of these submissions, which are considered in turn
    below. In summary, I do not accept that the motion judge made findings beyond
    what was necessary to resolve the critical issue of credibility that was required
    to determine the summary judgment motion.  While there were inconsequential
    errors in the motion judges credibility analysis, I do not find that he made
    any palpable and overriding errors.  In his reasons, he cited a strong body of
    evidence in support of his conclusion and drew appropriate inferences from that
    evidence.  Given these conclusions, it is unnecessary for us to consider the
    appellants submissions regarding the alleged legal errors, as they are
    predicated on a finding that Dr. Bernsteins ownership interest was revealed
    during the September 13 Call.

Analysis

(i)

Scope of the Order

[17]

The appellants submit that the motion judge made findings of fact
    that went beyond what was required to determine the motion and that may
    significantly affect the trial of the action. They base this submission on a
    statement the motion judge made at the outset of the hearing of the motion
that
he was, not going to make findings of fact as to
    anything that is substantive in this case whatsoever.

[18]

The appellants argue that contrary to that
    statement, the motion judge made findings that go to the heart of the dispute
    between the parties to be resolved at trial. They submit that the motion judge should
    have confined his findings to only what was necessary to dispose of the summary
    judgment motion. In particular, they complain about paragraph 28 of his
    reasons, where he found:

Dr. Bernstein gave evidence that
    prior to Mr. Reitan's call to Mr. Coscia he had no reason to know whether Trez knew
    about him or not, i.e. whether he was a shareholder of Global Mills. He also
    testified that he did not give any thought to it because it was not his
    responsibility to organize financing and that he did not know how Trez looked
    for guarantors. I do not accept his evidence as it is quite clear that he knew
    that Ms. Walton was misrepresenting to lenders, including Trez, that she and
    her husband were the only shareholders of the borrowing companies and that she
    was doing this so that they would not ask for Dr. Bernstein's guarantee. He
    knew that lenders such as Trez would ask for his guarantee if they knew he was
    a shareholder or director of the borrowing company.

[19]

The
    appellants submit that this was a substantive finding regarding Dr. Bernsteins
    participation in the misrepresentation to Trez and was inconsistent with the motion
    judges statement that he would not make any substantive findings of fact.
    Consequently, they argue that their position at trial has been prejudiced.  I
    would not give effect to this ground of appeal for the following reasons.

[20]

First, I note that the motion judges statement was made in the
    context of a discussion about findings impacting defendants who were not
    participating in the motion for summary judgment. The statement has to be read
    in that context.

[21]

Second, the credibility of the parties regarding the
September
    13 Call
was the critical issue for determination on the motion
    for summary judgment. The motion judge conducted a mini-trial in which the
    parties led evidence and made submissions. There was no suggestion that if the
    appellants failed on their motion that they would have the ability to
    re-litigate the issue at trial. As the motion judge noted,
The
parties agree
    that this procedure is sufficient and capable and that there is a sufficient
    record for a binding finding of fact to be made as to what took place during
    the telephone call and for a finding of whether the action is statute-barred.

[22]

Third,
    the appellants made a tactical decision to bring a motion for summary judgment
    on a basis that would inevitably require the court to make a credibility
    assessment of both Dr. Bernstein and Mr. Reitan. They cannot assert that they
    were taken by surprise that the motion judge made detailed factual findings in doing
    so. Indeed, in their reply factum filed on the summary judgment motion they
    stated:

Trez Capital states that Dr. Bernstein participated in a scheme
    to conceal his involvement in the Project Companies. That issue is not relevant
    to this summary judgment motion, except as it impacts upon Mr. Reitans
    credibility with respect to what he said on the September 13 Call (and Dr.
    Bernsteins credibility about what Mr. Reitan communicated to him.)

[23]

The
    finding complained of in paragraph 28 of the motion judges reasons, that Dr.
    Bernstein knew that Ms. Walton was misrepresenting the ownership of the project
    corporations, was a relevant consideration in the motion judges credibility analysis
    regarding the September 13 Call.  The motion judge was tasked with determining
    what took place on a call, which occurred over three and a half years earlier,
    for which there were no contemporaneous notes or subsequent written
    confirmation. In determining what was said on that call, he was obliged to
    consider all of the surrounding evidence and draw appropriate inferences. That
    is precisely what he did, including with regard to Dr. Bernsteins knowledge of
    Ms. Waltons misrepresentation. That was a critical finding in considering
    whether Mr. Reitan would be willing to reveal Dr. Bernsteins ownership in Global
    Mills during the September 13 Call.

[24]

Trial
    judges are sometimes taken to task by appellate courts for not thoroughly
    scrutinizing the evidence and detailing the factual findings that underlie
    their credibility findings. Surely, it cannot be the function of this court to
    criticize a judge for providing too detailed an analysis in support of his
    credibility finding.

[25]

Having made the findings he did, the motion judge did not err in finally
    determining the limitation period issue. The appellants limitation defence
    centered on the disclosure they say was made by Mr. Reitan on the
September
    13 Call
. That evidence was not accepted.  It would be contrary
    to the purpose of the summary judgment rule to afford the appellants another
    opportunity at trial to persuade the trial judge that their evidence should be accepted.

[26]

With respect to the appellants trial prejudice submission, I note
    that the motion judges order only dismisses the motion for summary judgment
    and declares that the respondents claim is not barred by operation of the
Limitations
    Act
.  It is well settled law that it is impermissible to
    appeal the reasons that underlie an order or judgment:

Drywall
    Acoustic Lathing and Insulation
,
Local 675
    Pension Fund (Trustees of) v. SNC-Lavalin Group Inc.
,
    2015 ONCA 718, 340 O.A.C. 271, at para. 13;
MacKinnon v. Ontario
    (Municipal Employees Retirement Board)
, 2007
ONCA 874, 88 O.R. (3d) 269, at para. 44.

(ii)

Palpable and Overriding Errors

[27]

The
    appellants advance a number of arguments in support of their submission that
    the motion judge made palpable and overriding errors of fact in considering the
    evidence on the mini-trial.  They argue that given these errors the motion
    judges dismissal of the limitation defence is unsafe and the issue should
    proceed to trial. I am not satisfied that the motion judge made any palpable
    and overriding errors and would therefore dismiss this ground of appeal.

[28]

In
    my view, the motion judge made two minor factual errors in his credibility analysis.
    First, he erred when referring to the consideration of the Resignation Email in
    an earlier decision in litigation among Dr. Bernstein, the Waltons and various other
    parties. The motion judge mistakenly stated that he authored the earlier
    decision when, in fact, it was a decision of D.M. Brown J. However, that error
    is of no moment, as the reference to the earlier decision was clearly obiter
    and was made to explain why the motion judge was reaching a different
    conclusion on the significance of the Resignation Email than the one made previously.

[29]

The
    motion judge also made a minor factual error when he stated that
Mr. Reitan did not give evidence regarding a
    conversation with Dr. Bernstein before the September 13 Call until Dr.
    Bernstein mentioned the conversation in his affidavit.  In fact, while Mr.
    Reitan made no reference to the conversation in his affidavit, he did testify
    regarding the conversation during the cross-examination on his affidavit, which
    preceded the filing of Dr. Bernsteins affidavit. Despite the submissions of
    the appellants to the contrary, I am not persuaded that this was an overriding
    error.

[30]

This conclusion is buttressed by strong evidence supporting
    the motion judges finding that Mr. Reitan did not disclose Dr. Bernsteins
    ownership interest during the September 13 Call. This evidence includes the
    following:

(i)

The Resignation Email, which was
    compelling evidence that Dr. Bernsteins resignation as a director from Wynford
    was motivated by a desire to conceal his involvement in the corporation in
    order to avoid the obligation of providing personal guarantees on the
    mortgages.

(ii)

Dr. Bernsteins
admission in cross-examination
that the purpose
    of his temporary resignation as a director of Wynford was to avoid having to
    provide a personal guarantee.

(iii)

Dr. Bernsteins
    receipt of the Trez loan commitments, which disclosed that the Waltons were the
    sole guarantors and shareholders of the relevant project corporations.

(iv)

Dr. Bernsteins
admission in cross-examination
that he knew
    that Ms.  Walton was not disclosing to lenders that he was a director or
    shareholder and that the purpose of the non-disclosure was so that Dr.
    Bernstein would not have to provide a personal guarantee.

(v)

An examination of Mr.
    Coscias conduct. After the September 13 Call he made no note of the call,
    which is consistent with him not being told anything of significance. This
    contrasts with his actions after the November 7, 2013 call advising him of the
    receivership and Dr. Bernsteins ownership interest. After that call he
    immediately w
rote an email to the partners of
Trez
advising of what he had learned. He also spoke with
    Trezs outside counsel and told them of Dr. Bernsteins involvement.

[31]

The
    motion judge made no palpable and overriding errors in his credibility
    analysis. He thoroughly considered the evidence and drew appropriate
    inferences. There is no basis for appellate interference with his findings.

(iii)

Limitations Period Analysis

[32]

Given my conclusion that the motion judge did not err in finding
    that Dr. Bernsteins ownership interest was not revealed on the September 13 Call,
    it is unnecessary to consider this ground of appeal.

Disposition

[33]

I would dismiss the appeal and order that the appellants pay the
    respondents their costs of the appeal in the agreed upon, all-inclusive sum of
    $30,000.

Released: G.R.S. February 6, 2018

C.W.
    Hourigan J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: White Snow and Sunshine Holdings Inc. v.
    Metropolitan Toronto Condominium Corporation No. 561, 2018 ONCA 196

DATE: 20180227

DOCKET: C64155

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

White Snow and Sunshine Holdings Inc.

Applicant (Appellant)

and

Metropolitan Toronto Condominium Corporation No.
    561

Respondent (Respondent)

Morris Cooper, for the appellant

Joshua Milgrom and Joseph Salmon, for the  respondent

Heard and released orally: February 23, 2018

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated July 28, 2017.

REASONS FOR DECISION

[1]

The appellant corporation, White Snow and Sunshine Holdings Inc. (White
    Snow) owns the only two commercial units in a residential condominium
    building. The condominium corporation is the respondent, Metropolitan Toronto
    Condominium Corporation No. 561.

[2]

White Snow is aggrieved that only owners of condominium dwelling units
    and their guests can use the buildings recreational common elements, including
    a swimming pool, a gymnasium, a library, and a squash court. White Snow wants
    its employees to be able to enjoy those facilities, which its commercial
    condominium fees help to pay for.

[3]

After failed efforts to persuade the condominium board to change the
    rules to allow its employees access to the recreational common elements, White
    Snow brought an application under s. 109(3) of the
Condominium Act
,
    S.O. 1998, c. 19, asking the Superior Court to amend the MTCCs Declaration. White
    Snow argues that the access restriction contained in Article I(7) should be
    removed because O. Reg. 48/1 requires all exclusive-use areas within the
    condominium to be contained in Schedule F to the Declaration, and Schedule F of
    the respondents Declaration does not specify that the recreational common elements
    are for the exclusive use of dwelling unit holders. White Snow argues that,
    because this restriction is not specified in Schedule F, it is inconsistent
    with the
Condominium Act
.

[4]

The application judge dismissed White Snows application. He held that
    the restriction of recreational common elements to dwelling unit holders does
    not have to be listed in Schedule F. Only common elements that are to be used
    by the owners of one or more designated units but not by all owners, as
    provided for in
Condominium Act
, s. 7(2)(f), needs to be listed in
    Schedule F. This would include things such as terraces that are set aside for
    the exclusive use of particular units. In contrast, things such as the
    exclusive use by dwelling unit holders of recreational facilities are provided
    for in s. 7(4)(b), as restrictions with respect to  the use of  common
    elements, and s. 7(4)(b) restrictions do not have to be specified in Schedule
    F. As a result, the Declaration is not inconsistent with the
Condominium
    Act
and does not require amendment.

[5]

White Snow argues in this appeal that the application judge erred in law
    in giving this interpretation to the statutory provisions. It also argues that
    the application judge misdirected himself by using a zoning by-law to interpret
    the statute. The City of Toronto site-specific zoning by-law at issue requires
    recreational space to be provided for residents of the building.

[6]

We would dismiss the appeal relating to the correct interpretation of
    the relevant provisions of the
Condominium Act
, for the reasons of the
    application judge, with which we agree.

[7]

We would also dismiss the appeal relating to the application judges use
    of the zoning by-law. In our view, the application judge did not use that
    zoning by-law to interpret the
Condominium Act
. He used it explain the
    proper interpretation of the impugned Declaration. He committed no error in
    doing so.

[8]

The appeal is dismissed. Costs in the amount of $10,000 inclusive of
    disbursements and applicable taxes are awarded to the respondent.

Doherty J.A.

J. MacFarland J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Zigomanis v. 2156775 Ontario
    Inc. (D'Angelo Brands), 2018 ONCA 116

DATE: 20180206

DOCKET: C63053

LaForme, Rouleau and Paciocco JJ.A.

BETWEEN

Michael Zigomanis

Plaintiff (Respondent)

and

2156775 Ontario Inc. o/a DAngelo Brands

Defendant (Appellant)

Gregory N. Hemsworth, for the appellant

David A. Whitten and Simone Ostrowski, for the
    respondent

Heard: February 2, 2018

On appeal from the judgment of Justice David G. Stinson
    of the Superior Court of Justice, dated November 14, 2016.

REASONS FOR DECISION

[1]

In May 2011, 2156775 Ontario Inc., carrying on business as DAngelo
    Brands (DAngelo), entered into a promotional contract with professional
    hockey player Michael Zigomanis. Mr. Zigomanis was on a two-way contract with
    the Toronto Maple Leafs at the time. The promotional contract provided that Mr.
    Zigomanis would receive periodic payments in the minimum amount of $200,000
    over four years, provided he exercised unilateral extension options available
    to him.

[2]

The contract contained a morals clause. The morals clause, clause
    10(b)(iii), read in material part that DAngelo could terminate the contract if
    the athlete commits any act which shocks, insults, or offends the community,
    or which has the effect of ridiculing public morals and decency.

[3]

In February 2012, DAngelo purported to terminate the contract. The
    basis for termination that is material to this appeal was the internet
    publication by persons unknown of nude photographs of Mr. Zigomanis that Mr.
    Zigomanis had sent his then girlfriend, prior to signing the contract. DAngelo
    claimed that this event violated the morals clause and undermined Mr. Zigomaniss
    positive image as a brand ambassador, depriving DAngelo of what it had
    bargained for.

[4]

Mr. Zigomanis sued successfully for wrongful termination of the
    contract. The trial judge held that according to the terms of the contract, Mr.
    Zigomanis agreed to promote DAngelos product, not serve as a brand
    ambassador. The trial judge also held that the morals clause was not offended
    by the private transmission of nude photographs within a relationship, and
    that, in any event, this act occurred before the contract was entered into and
    the morals clause is not retrospective.

[5]

The trial judge also accepted Mr. Zigomaniss testimony that Mr.
    Zigomanis intended to exercise his option to continue with the contract for
    four years. The trial judge therefore awarded damages in the amount of $162,500,
    representing the outstanding periodic payments provided for over the four years
    of the contract.

[6]

DAngelo now appeals that decision. At the end of the oral hearing, the
    appeal was dismissed with reasons to follow. These are the reasons.

[7]

Although DAngelo raised several grounds of appeal, its counsel agreed
    during the oral hearing that, given the overlap between issues, the appeal
    could not succeed unless the trial judge made a palpable and overriding error
    in failing to find that sharing nude photographs within an intimate
    relationship would shock the conscience of the community. We find no such
    error.

[8]

We do not accept that the evidence identified by DAngelo impelled the
    trial judge to accept that the community was shocked by Mr. Zigomaniss
    conduct. Mr. Zigomaniss understandable, subjective desire to suppress
    publication of the photographs and to distance himself from them is evidence
    only of his desire for privacy, not of the communitys reaction. Meanwhile the
    widespread public interest that was generated when it became known that the
    photographs were online says nothing about the community reaction to Mr.
    Zigomaniss act in sharing those photos only with an intimate party.

[9]

The trial judges conclusion that the community conscience would not be
    shocked was his to make. It was rooted, appropriately, in the timeless human
    practice of sharing intimate information within relationships, the inherent
    expectation of privacy when doing so, and the public policy reflected in recent
    legislation protecting the privacy of such communications in the internet age.
    We would not interfere with that finding.

[10]

The
    appeal is therefore dismissed. As agreed between the parties, DAngelo is
    ordered to pay costs on this appeal in the amount of $12,500 plus H.S.T.

H.S. LaForme J.A.

Paul Rouleau J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286

DATE: 20180321

DOCKET: M48928 (C63990)

Brown J.A. (Motion Judge)

BETWEEN

2363523 Ontario Inc.

Plaintiff (Respondent/Responding Party)

and

Steven Nowack
, Melissa Frishling, John Doe
    1 to 10, Jane Doe 1 to 10 and Doe Corporations 1 to 10

Defendants (
Appellant
/
Moving Party
)

Paul Slansky, for the moving party

Norman Groot, for the responding party

Heard: March 20, 2018

ENDORSEMENT

[1]

The appellant, Steven Nowack, is appealing the
    order of Dunphy J. dated June 30, 2017, which imposed a further term of
    imprisonment of 21 days for what the parties call Contempt No. 2. In that
    appeal, Hoy A.C.J.O. made an order dated December 6, 2017 requiring the
    appellant to post security for costs of $10,000 within 30 days (the Order).

[2]

The appellant seeks an extension of time to file
    a notice of motion for a panel review of the Order pursuant to s. 7(5) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (the
CJA
) and Rule 61.16(6) of the
Rules of Civil Procedure
. The respondent vigorously opposes the motion.

[3]

The appellant served respondents counsel with a
    notice of motion on January 10, 2018. However, Rule 61.16(6) required the
    service and filing of the notice of motion within four days after the Order was
    made, that is by December 10, 2017.

[4]

Motions for the extension of time to file a
    court document require looking at several factors. Most importantly, they
    require looking at the justice of the case in all the circumstances:
Paulsson
    v. University of Illinois
, 2010 ONCA 21 (In Chambers), at para. 2.

[5]

In the present case, a combination of factors
    leads me to grant the appellant an extension of time:

(i)

I accept that the appellant formed an intention to seek a review of
    the security for costs Order shortly after it was made. The appellant has
    sought to review most orders made in this lengthy proceeding, so I have no
    doubt he quickly formed an intention to review the Order. That would be
    consistent with his usual habit;

(ii)

The appellant moved with some dispatch to serve and file a notice of
    motion to review, albeit outside the very short four-day service window in the
Rules
;

(iii)

The underlying appeal engages the liberty of the subject;

(iv)

Two judges of this court have described the merits of the appeal
    from the order of Dunphy J. as not frivolous and having merit: Decision of
    Hoy A.C.J.O., at paras. 18 and 19; and

(v)

Although orders for security for costs are discretionary in nature
    and usually entitled to deference, a panel of this court recently reversed an
    order for security for costs because the chambers judge had erred in principle
    in determining the justness of the order sought:
Yaiguaje v. Chevron
    Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. It therefore is
    difficult to predict the degree of deference that a panel will afford to any
    particular order for security for costs made by a single judge. As a result, I
    cannot assess the merits of the appellants desired panel review of the Order
    with any degree of precision.

[6]

However, Rule 3.02(1) states that the court may
    extend any prescribed time on such terms as are just. As a general practice,
    motions to a panel to review an order of a single judge of this court are heard
    orally. Given the history of this proceeding, I am concerned that following the
    general practice of an oral hearing would result in undue delay in scheduling
    and then hearing the motion. Consequently, I direct that the appellants review
    motion be heard by a panel of this court in writing.

[7]

In fashioning this remedy, I am influenced by
    the most unfortunate, but increasing, practice of parties seeking panel reviews
    of single judge decisions pursuant to s. 7(5) of the
CJA
. That provision, quite unintentionally, is now fuelling the
    emergence of a motions culture in this court. Decisions of single judges on the
    simplest of procedural matters, such as the extension of time, now prompt a
    further motion demanding an internal appeal of the decision to a panel.
    Motion time is heaped upon motion time, which delays hearing an appeal on its
    merits.

[8]

As a result, the terms that I am imposing in
    granting the appellant the indulgence of an extension of time are designed to
    bring the issue of the finality of the Order to a conclusion by the end of next
    month. Directing a motion in writing will ensure that result; leaving it to the
    parties to schedule an oral hearing only invites further delay.

[9]

The appellant has had ample time to prepare his
    materials for a
CJA
s. 7(5) review of the
    Order. Accordingly, the schedule for filing materials  with sufficient copies
    for the panel in accordance with the
Rules
 is as follows:

(i)

The appellant shall serve and file all materials for his
CJA
s. 7(5) review of the Order no later than Thursday, March 29, 2018;

(ii)

The appellant may not file any further materials after March 29,
    2018;

(iii)

If the appellant fails to file his materials by 4:30 p.m. on
    Thursday, March 29, 2018, I direct the Registrar to dismiss his motion for a
    panel review as abandoned;

(iv)

The respondent shall serve and file all responding materials no
    later than April 11, 2018; and

(v)

The motion materials shall be placed before a civil panel for its consideration
    during the week of April 23, 2018.

[10]

The costs of this motion are reserved to the panel hearing the
    motion to review the Order.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: A.C. Concrete Forming Ltd. v. JAC Concrete
    Structures and Drain Inc., 2018 ONCA 272

DATE: 20180319

DOCKET: C64509

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

A.C. Concrete Forming Ltd.

Plaintiff (Respondent)

and

JAC
    Concrete Structures and Drain Inc., Joseph Tavares and

The
    Estate of Joseph Tavares, deceased, by its Litigation Administrator,

and Executor Grace Tavares

Defendants (Appellants)

Dennis Touesnard, for the appellants

Amanda Pilieci, for the respondent

Heard and released orally: March 12, 2018

On appeal from the judgment of Justice V. Chiappetta of
    the Superior Court of Justice, dated October 3, 2017.

REASONS FOR DECISION

[1]

On a motion to enforce a settlement, the motion judge found that
    following a meeting on February 3, 2016, the respondent, by its counsel, and
    Ms. Tavares, litigation administrator and executor of the then deceased personal
    defendant, entered into a verbal settlement agreement on February 9, 2016.  The
    motion judge concluded that rule 49 had no application in the circumstances.
    Rather, she determined that the motion before her was akin to a summary
    judgment motion. Counsel for the appellants did not object to her proceeding on
    that basis.

[2]

Although there was conflicting evidence on the motion concerning whether
    a settlement agreement had been reached, the motion judge concluded it was
    appropriate to proceed in the interests of efficiency and access to justice and
    that oral evidence was unnecessary to assess credibility of the conflicting
    witness statements.

[3]

Ultimately, the motion judge accepted the respondents evidence that a
    settlement had been reached and rejected the appellants evidence that it had
    not based on the following factors:

(1)

on March
    7, 2016, respondents counsel sent Ms. Tavares a draft order and consent
    reflecting the terms of the alleged settlement and asked that she execute the
    consent;

(2)

Ms.
    Tavares acknowledged receipt of same by voice mail left on March 15, 2016;

(3)

respondents
    counsel sent follow-up communications requesting the return of the executed
    documents on March 22, 2016 and April 20, 2016 referencing the fact of a
    settlement and Ms. Tavares did not respond.  While Ms. Tavares explanation
    that her husband had a stroke in June 2016, explained her failure to respond in
    the months immediately following that event, it did not explain her failure to
    object to the documentation and the assertion of a settlement in the several
    months prior to that event or after October 2016 when she returned to work;

(4)

Ms.
    Tavares claims that she felt pressured and scared at the February meetings
    were not credible in light of her experience in the legal field and the
    presence of her brothers two adult children with her at both meetings; and

(5)

the estate
    made no attempt to continue with the litigation after the February 9, 2016
    meeting.

[4]

The appellants raise three main issues on appeal.  First, they argue
    that the motion judge erred in failing to apply the two-part test under rule
    49.09 in determining whether the settlement should be enforced.

[5]

We do not accept this submission.  No rule 49 offers were served.  Accordingly,
    on a proper reading of rule 49, it does not apply to this case.  The motion
    judge was correct in making this determination.

[6]

Second, the appellants argue that the motion judge erred in finding
    there was no genuine issue regarding whether the parties intended to create a
    legally binding agreement.

[7]

We reject this argument.  As set out above, the motion judge carefully
    considered and gave detailed reasons for finding that there was a legally
    binding agreement.  The appellants have demonstrated no palpable and overriding
    error in this finding.

[8]

Third, the appellants argue that the motion judge erred in failing to
    consider,   by analogy to the rule 49 test, whether any settlement agreement
    that may have been reached should be enforced.

[9]

We reject this submission.  It was not made in the court below.  In any
    event, even assuming a two-part test is applicable, on our reading of her
    reasons, the motion judge fully considered all relevant factors impacting
    whether the settlement should be enforced.

[10]

The
    appeal is therefore dismissed.  We would clarify, however, and it is conceded
    on appeal, that the judgment does not apply to the corporate defendant.

[11]

Costs
    of the appeals are to the respondent on a partial indemnity scale fixed in the
    amount of $7,500 inclusive of disbursements and all applicable taxes.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)