COURT OF APPEAL FOR ONTARIO

CITATION: Franchetti v.
    Huggins, 2022 ONCA 111

DATE: 20220207

DOCKET: C69243

Lauwers, Huscroft and Coroza JJ.A.

BETWEEN

Charles Franchetti
    and Emily Thomas and Benjamin Franchetti pursuant to The Family Law Act, R.S.O.
    1990, c. F.3, as amended

Plaintiffs (Respondents)

and

Alan Douglas Huggins,
    Basil Mills,
1729780 Ontario Inc., c.o.b. as Jovys Bar
    & Café
,
Zelijka Stankovic-Zubic
,
    Shannon Malouin, Niagara Health System-Greater Niagara General Site, Dr. Rajeshwar
    Hanmiah, Dr. F. Gadhafi, Pamela Lockey,

Marlene Caldwell, Dr.
    Charles L. Consky, and Dr. Gerald D. Scaife

Defendants (
Appellants
)

Roman Botiuk, for the appellants

Benjamin Salsberg, for the respondents

Heard: January 24, 2022 by video conference

On appeal from the order
    of Justice David L. Edwards of the Superior Court of Justice, dated February
    25, 2021, with reasons at 2021 ONSC 1435.

REASONS FOR DECISION

[1]

This is an appeal by 1729780 Ontario Inc., carrying on business as
    Jovys Bar & Café (Jovys Bar), and its owner Zelijka Stankovic-Zubic,
    from the motion judges decision refusing to set aside their noting of default.
    For the reasons set out below, the appeal is dismissed.

The Factual Background

[2]

The respondent, Charles Franchetti, was assaulted on May 26, 2011 by
    another patron at Jovys Bar. The statement of claim was served on Jovys Bar,
    Ms. Stankovic-Zubic, and Ms. Malouin, an employee, in April 2013. In March
    2014, counsel for the respondents advised the appellants that they would be
    noted in default if they did not file a statement of defence. After getting no
    response, counsel noted the appellants in default on March 13, 2014.

[3]

Jovys Bar and Ms. Stankovic-Zubic brought a motion for an order setting
    aside their noting of default. The respondents opposed. The other defendants
    consented, apart from Ms. Malouin, who did not participate.

[4]

Ms. Stankovic-Zubic deposed that she sought legal advice from a lawyer, Zijad
    Saskin. According to Ms. Stankovic-Zubic, his advice was that she did not have
    to file a statement of defence because she had no insurance, and it was
    therefore not tactically worthwhile for the respondents to sue her. She did
    not provide the date of that visit, but counsel for the respondents, Mr.
    Toomath, deposed that Mr. Saskin called him around October 3, 2017. They
    discussed damages briefly. Mr. Saskin did not request an extension of time or a
    waiver of the requirement that a statement of defence be filed. Mr. Toomath later
    refused to consent to a request to have the noting of default set aside. The
    case has been pre-tried and a non-jury trial has been set for October 2022.

The Standard of Review

[5]

Whether to set aside a noting of default is a discretionary decision:
Intact
    Insurance Company v. Kisel
, 2015 ONCA 205, 125 O.R. (3d) 365, at para. 12.
    Lower courts discretionary decisions are entitled to appellate deference, but
    will be reversible where that court misdirected itself or came to a decision
    that is so clearly wrong that it amounts to an injustice:
Penner v.
    Niagara
, 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27. The court added: Reversing
    a lower courts discretionary decision is also appropriate where the lower
    court gives no or insufficient weight to relevant considerations.

The Governing Principles: Setting Aside a Noting of Default

[6]

The
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 are meant
    to be taken seriously by plaintiffs and defendants. Under r. 1.04(1), the rules
    are to be liberally construed to secure the just, most expeditious and least
    expensive determination of every civil proceeding on its merits. Further, with
    respect to a failure to comply with the rules, the court, under r. 2.01(1)(a)
    may grant all necessaryrelief, on such terms as are just, to secure the just
    determination of the real matters in dispute.

[7]

Rules 18.01 and 18.02 oblige a defendant to respond with a statement of
    defence within 20-30 days of the date the defendant is served with the
    statement of claim. The consequences of failing to respond can be dire. Under
    r. 19.01, the claimant may have the defendant noted in default. A defendant
    noted in default under r. 19.02(1) is deemed to admit the truth of all
    allegations of fact made under the statement of claim and may not otherwise
    participate in the action, other than by bringing a motion to set aside the
    noting of default. The next dire consequence is that after noting the defendant
    in default, in certain circumstances the plaintiff may move for default
    judgment under r. 19.04.

[8]

Under r. 19.03, a defendant noted in default may move to have the noting
    of default set aside, and this may be ordered on such terms as are just. In
    the context of an action that had been dismissed for delay, Weiler J.A.
    discussed several guiding principles that are also relevant to setting aside a
    noting of default:
H.B. Fuller

Company v. Rogers
, 2015 ONCA
    173, 386 D.L.R. (4th) 262, at paras. 25-29. These include the strong
    preference for deciding civil actions on their merits, the desire to construe
    rules and procedural orders non-technically and in a way that gets the parties
    to the real merits, and whether there is non-compensable prejudice to either
    party.

[9]

There are many cases discussing the criteria for setting aside a noting
    of default. See particularly Laskin J.A.s detailed exposition in
Kisel
,
    at para. 13. To summarize the jurisprudence, the following factors have been
    found to be relevant in considering whether a noting of default should be set
    aside:

(1)

The parties behaviour;

(2)

The length of the defendants
    delay;

(3)

The reasons for the delay;

(4)

The complexity and value of the
    claim;

(5)

Whether setting aside the noting
    of default would prejudice a party relying on it;

(6)

The balance of prejudice as
    between the parties; and

(7)

Whether the defendant has an
    arguable defence on the merits.

[10]

These
    factors are not exhaustive nor are they to be applied as rigid rules. An
    arguable defence on the merits may justify the court in exercising its
    discretion to set aside a default judgment, and for that purpose it is
    sufficient for the defence to have an air of reality:
Mountain View Farms
    Ltd. v. McQueen
, 2014 ONCA 194, 119 O.R. (3d) 561, at para. 51.
    However, perhaps because requests to set aside noting in default usually occur
    early in the litigation process, unlike this case, courts will rarely require a
    defendant who has been noted in default to show an arguable defence on the
    merits. In a case such as this one involving a significant delay, the moving
    party is required to show an arguable case on the merits.

The Motion Judges Decision

[11]

The motion judge instructed himself on the factors from
Kisel
and made the following determinations:

(1)

The behaviour of the plaintiff and defendant:
Mr.
    Franchetti behaved appropriately in pursuing his claim, while Ms. Stankovic-Zubic
    did not since she did not seek legal advice until approximately three years
    after she received the statement of claim.

(2)

The length of the defendants delay:
There are two
    periods of delay. First, there was the delay between the service of the
    statement of claim in April 2013 and Ms. Stankovic-Zubic seeking legal advice in
    October 2017 from Mr. Saskin. The second delay occurred between October 2017
    and February 2020, when Ms. Stankovic-Zubic again sought legal advice, this
    time from her present counsel, Mr. Botiuk, who took action.

(3)

The reasons for the delay
:
The
    first period of delay is unexplained. The reason offered for the second period
    of delay is that Ms. Stankovic-Zubic was following erroneous advice from
    Mr. Saskin, who has since been disbarred. There is no corroboration of this
    advice from Mr. Saskin, nor any supporting documentation.

(4)

The complexity and value of the claim:
The claim is
    complex and involves a significant sum of money. There are claims against the
    parties involved in the bar incident, as well as against doctors and a hospital
    for events that occurred during treatment.

(5)

Prejudice to a party relying upon the default:
There is significant prejudice to the parties noted in default since they will
    not be able to contest liability and damages, and may be held responsible for a
    potentially significant amount of damages. On the other hand, there is
    prejudice to Mr. Franchetti. He is in ill health, and although the incident
    occurred in 2011, the trial will likely not take place until October 2022.

[12]

With
    respect to prejudice, the motion judge noted that counsel for Ms. Stankovic-Zubic
    argued that prejudice to Mr. Franchetti could mostly be alleviated by his
    agreement to not examine the plaintiff and the other defendants. However, the
    motion judge was concerned about trial scheduling and noted that Mr. Franchetti
    might seek an earlier trial date after waiving the jury. The jury has since
    been waived without any effect on the scheduled trial date.

[13]

After considering these factors, the motion judge declined to set
    aside the noting of default.

He emphasised that
    no reason was offered for the initial period of delay. As for the second period
    of delay, he found it highly unlikely that a trained lawyer would advise a
    client to ignore a Statement of Claim and refused to accept this justification
    based solely on Ms. Stankovic-Zubics uncorroborated affidavit.

The Principles Applied

[14]

The
    appellants counsel asserted that their defence on the merits  that the attack
    at Jovys Bar was unforeseen and unforeseeable  is arguable and has an air of
    reality. We agree. But that is only part of the picture, albeit one that the
    motion judge did not consider.

[15]

With
    respect to the delay, counsel admitted that the initial decision by his clients
    not to defend was strategic or tactical, and that the appellants proceeded on
    the erroneous advice that the absence of insurance on the bar made them
    unlikely targets for legal action. Ms. Stankovic-Zubic deposed that obtaining
    insurance had been prohibitively expensive in light of the bars low-cost business
    model, although as counsel noted, licensed bars must be insured as a matter of
    law. This court is reluctant to provide relief to parties who make strategic
    decisions that turn out to be wrong.

[16]

The
    appellants counsel was candid in admitting that the explanation for the
    appellants delay in responding to the lawsuit was weak, but he asserted that
    any prejudice to the respondents could be alleviated by agreeing to strong
    terms that would ensure that the trial could proceed as scheduled, including
    setting aside the right to discovery. He added that he would not be calling
    expert evidence.

[17]

The
    motion judge was clearly disturbed by the appellants behaviour. He said: I
    agree that courts should strive to have matters determined on their merits and
    not be defeated by technical defaults, but parties are responsible for the[ir]
    actions, not only with respect to those actions upon which a cause of action
    arose, but thereafter as well. We agree.

[18]

The
    motion judges analysis was relatively brief on the issue of prejudice, but respondents
    counsel pointed out that the litigation ground would shift significantly if the
    default were set aside. In particular, the respondents would be obliged to
    prove the appellants fault over a decade after the critical event, and over eight
    years after the noting of default deemed liability to be admitted. This outcome
    is unacceptable in a situation where the trial is imminent, and the necessary
    evidence is difficult to get. Counsel for the appellants admitted that the
    server, who might well have over-served the patron who attacked Mr. Franchetti,
    cannot be located, and also that the bars records are sparse and may not exist
    at all for that time. Had these elements of prejudice been made known to the
    motion judge, they would only have shifted the balance of prejudice even more
    in favour of the respondents.

[19]

The
    appeal is dismissed with costs in favour of the respondents fixed at $10,000
    all-inclusive.

P. Lauwers J.A.

Grant Huscroft J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Maisonneuve v. Clark, 2022 ONCA 113

DATE: 20220208

DOCKET: C69277

Huscroft, Sossin and Favreau
    JJ.A.

BETWEEN

Jean Maisonneuve and 3721094
    Canada Inc.

Applicants (Respondents)

and

Christopher Clark and Lanciter
    Consulting Inc.

Respondents (Appellants)

Bryce Dillon, for the appellants

David Cutler, for the respondents

Heard: February 1, 2022 by
    videoconference

On appeal from the order of Justice Sally
    A. Gomery of the Superior Court of Justice, dated March 16, 2021, with reasons
    reported at 2021 ONSC 1960.

REASONS FOR DECISION

[1]

This appeal deals with the application of a
    limitation period to an arbitration agreement.

[2]

The personal appellant and respondent are
    cousins who were in business together as shareholders of various companies,
    including Eastern Ontario Real Estate Investors Inc. (EOREI).

[3]

Their relationship deteriorated over the years
    and, in early 2016, they referred their business disputes to arbitration. In
    September 2016, the parties reached an agreement on all issues in dispute
    except for one. As part of the agreement, the personal appellant agreed to
    transfer all his shares in EOREI to the personal respondent. However, the
    parties were not able to agree on the payment of various expenses associated
    with EOREI. The mutual release the parties signed in the context of their overall
    settlement provided that this outstanding issue was to be referred to
    arbitration. This term of the release was worded as follows:

The undersigned agree and understand that
    there is one issue that is not covered by the Mutual Release and it is as set
    out in this paragraph (the Excluded Issue). Maisonneuve takes the position
    that Clark is responsible for certain EOREI related costs and expenses incurred
    prior and subsequent to the Acceptance date. Conversely, Clark takes the position
    that he is not responsible for any EOREI related costs and expenses prior and
    subsequent to the Acceptance date and, if he is responsible for any EOREI
    related costs and expenses, then he disputes Maisonneuves accounting thereof.
If
    the parties are unable to resolve the Excluded Issue as between them, then the
    Excluded Issue shall be fully and finally referred to the Arbitrator for
    resolution.
The Arbitrators decision shall not be subject to any appeal,
    either of law, fact or mixed law and fact. [Emphasis added.]

[4]

The parties signed the release on September 26
    and 27, 2016. In 2017, the parties became involved in litigation over the
    validity of the settlement agreement as a whole. On January 31, 2018, in the
    context of settlement negotiations regarding the litigation, the appellants lawyer
    took the position that there would be no negotiations over the EOREI expenses.

[5]

In June 2019, the respondents lawyer wrote to
    the appellants lawyer seeking to initiate the arbitration over the EOREI expenses.
    The appellants refused the request to arbitrate on the basis that it was time-barred.

[6]

In September 2019, the respondents commenced an
    application to the Superior Court to appoint an arbitrator. On the application,
    the appellants took the position that the arbitration was time-barred because
    the parties had agreed that the referral for arbitration would take place
    within 90 days of the signing of the settlement agreement or, in the
    alternative, that the two-year limitation period in the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, applied and the respondents were required to
    commence the arbitration within two years of the date when the parties signed
    the settlement agreement.

[7]

The application judge held that there was no
    agreement that the parties would conduct the arbitration within 90 days of the
    agreement. She also held that the arbitration was not barred by the two-year
    limitation period in the
Limitations Act, 2002

because, based on s. 5(1)(a)(iv) of the Act, it was not evident that the arbitration
    was appropriate until it was clear that the dispute could not be resolved
    through negotiations. In reaching this conclusion, the application judge relied
    on the wording of the arbitration clause and the context of the negotiations
    leading up to the September 2016 settlement. Ultimately, she found that the
    respondents should have known by January 31, 2018 that a negotiated settlement
    of the EOREI expenses was not possible based on the communications between the
    parties counsel. On that basis, she found that the respondents commenced the
    application within the two-year limitation period.

[8]

On appeal, the appellants do not challenge the
    application judges finding that there was no agreement that the arbitration
    would take place within 90 days. However, they challenge her finding that the
    two-year limitation period started to run on January 31, 2018 rather than in
    September 2016, when the parties signed the agreement.

[9]

We do not agree that the application judge made
    any reversible errors.

[10]

The only issue on the appeal is the application
    judges interpretation of the arbitration agreement. This is not a standard
    form contract and, accordingly, the application judges decision is owed
    deference and the palpable and overriding error standard of review applies.

[11]

The appellants essentially raise four arguments
    on appeal.

[12]

First, the appellants argue that the application
    judge erred in failing to apply this courts decision in
Markel Insurance
    Company of Canada v. ING

Insurance Company of Canada
, 2012 ONCA 218,
    109 O.R. (3d) 652, to the interpretation of the arbitration clause. We reject
    this argument. In
Markel
, this court addressed the limitation period
    that applies to s. 275(4) of the
Insurance Act
, R.S.O. 1990, c. I.8, which
    provides that [i]f the insurers are unable to agree with respect to
    indemnification under this section, the dispute shall be resolved through arbitration
    under the
Arbitration Act, 1991
. In
Markel
, this court held
    that negotiation was not a precondition to arbitration and, therefore, the
    limitation period does not start to run at the conclusion of unsuccessful
    negotiations. The application judge here distinguished
Markel
on the
    basis that in that case this court was interpreting a statutory provision
    rather than a provision in an agreement. She explained that, in the context of
    an agreement, the factual matrix is also relevant to understanding the partys
    intentions. In addition, she found that the differences between the wording of s.
    275(4) of the
Insurance Act
and the arbitration clause here are
    significant. She found that the use of the word then in the arbitration
    clause adds a temporal component that makes the clause both temporal and
    conditional. An attempt at informal resolution is a prerequisite to
    arbitration. The application judge made no palpable and overriding error in
    reaching this conclusion. The distinctions she drew between
Markel
and
    the circumstances of this case were available on the law and on the record
    before her.

[13]

Second, the appellants also argue that the
    application judge made a palpable and overriding error in finding that it was
    not clear at the time the parties agreed to the arbitration clause in September
    2016 that they would not participate in any further negotiations over the EOREI
    expenses. In making this argument, the appellants ask this court to review and reweigh
    correspondence between the parties leading up to the agreement to arbitrate. It
    is evident from the decision that the application judge reviewed the correspondence
    at issue and concluded that it represented an evolution in the personal appellants
    position. While the appellant initially insisted that there would be no
    discussion of the EOREI expenses claim, the application judge found that by the
    time the agreement was concluded he had entered into Minutes that not only
    acknowledged Maisonneuves claim for the expenses but contemplated that the
    parties could resolve the issue as between them prior to resorting to
    arbitration. The application judge made this finding based on her review of
    the correspondence and the wording of the arbitration clause. Her finding is
    entitled to deference and we see no palpable and overriding error.

[14]

Third, the appellants argue that the application
    judge erred in relying on the decisions in
PQ Licensing S.A. v. LPQ Central
    Canada Inc.
, 2018 ONCA 331, and
L-3 Communication SPAR Aerospace
    Limited v. CAE Inc.
, 2010 ONSC 7133, as authority for the proposition that
    the limitation period that applies to an arbitration clause may not start to
    run until the parties have exhausted attempts at informal resolution. The
    appellants argue that the arbitration clauses in those cases were different and
    the preconditions for enforcement much clearer than in this case. While this
    may be true, it does not detract from our conclusion that the application judge
    made no palpable and overriding error in her interpretation of the arbitration
    clause as including a precondition in this case.

[15]

Finally, the appellants argue that the
    application judges decision will lead to uncertainty with respect to the
    application of limitation periods to arbitration clauses because it is
    necessarily difficult to ascertain when negotiations are at an end. We reject
    this argument. The application judges decision was based on the specific
    wording of this arbitration clause and the circumstances in which it was
    negotiated. Parties are free to agree to arbitration clauses that make no
    reference to the possibility of an informal agreement or that are more specific
    about the steps and timing leading to arbitration. In this case, as stated by
    the application judge, it was open to the appellants to let the respondents
    know at any time that no further negotiations would take place. Indeed, this is
    what occurred in January 2018, which the application judge found triggered the start
    of the limitation period.

[16]

For these reasons, we dismiss the appeal.

[17]

The respondents are entitled to costs in the
    agreed amount of $5,000.

Grant
    Huscroft J.A.

L.
    Sossin J.A.

L.
    Favreau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Fresco v. Canadian Imperial Bank of
    Commerce, 2022 ONCA 115

DATE: 20220209

DOCKET: C68590, C68649 & C68801

Lauwers, Harvison Young
    and Sossin JJ.A.

BETWEEN

Dara Fresco

Plaintiff (Respondent)

and

Canadian Imperial Bank of
    Commerce

Defendant (Appellant)

Linda Plumpton, Sarah Whitmore, Ryan
    Lax, Lara Guest, Henry Federer, John Field, Lauri Reesor and Elisha
    Jamieson-Davies, for the appellant

David F. OConnor, J. Adam Dewar, Louis
    Sokolov, Steven Barrett, Peter Engelmann, Louis Century and Jody Brown,
    for the respondent

Heard: September 28-29, 2021

On appeal from the judgments of Justice Edward
    P. Belobaba of the Superior Court of Justice, dated March 30, 2020, with
    reasons reported at 2020 ONSC 75, 63 C.C.E.L. (4th) 60, dated August 10, 2020,
    with reasons reported at 2020 ONSC 4288, 66 C.C.E.L. (4th) 244, and
    dated October 21, 2020, with reasons reported at 2020 ONSC 6098.

Lauwers and Sossin JJ.A.:

A.

OVERVIEW

[1]

In 2007, Dara Fresco started a class action
    against the Canadian Imperial Bank of Commerce on behalf of 31,000 customer
    service employees who had worked for the Bank between 1993 and 2009. She claimed
    that two of the Banks policies enabled it to permit its employees to work
    overtime hours without appropriate compensation, contrary to the
Canada Labour Code
.
[1]

[2]

Two competing narratives set the scene. The Bank
    argued that its policies aimed to stop unnecessary overtime in order to control
    costs and to prevent overwork. To the contrary, Ms. Fresco argues that these
    policies resulted in the Bank getting the economic value of overtime work
    without compensating employees as required by the Code.

[3]

The first overtime policy, which applied to
    employees in the retail branch network from February 1, 1993 to April 10, 2006,
    covered all class members (the 1993 Overtime Policy). It provided for
    additional compensation where employees worked more than 8 hours a day or 37.5
    hours a week, but required that employees get management approval before
    working overtime in order to receive payment (pre-approval). There was no
    provision for getting management approval after the overtime hours were worked
    (post-approval). The second policy, which applied to all of the Banks lines of
    business, was put in place starting on April 10, 2006 (the 2006 Overtime
    Policy). This policy maintained the pre-approval requirement, but also allowed
    for post-approval in extenuating circumstances where approval was sought as
    soon as possible after the overtime work was done.

[4]

This class action concerns the application of
    the
Canada Labour Code
to these two overtime policies. This court certified eight common
    issues in 2012.
[2]
The motion judge heard two summary judgment motions on the merits, one brought
    by each side.

[5]

The motion judge released three decisions
    leading to these appeals. On liability, he granted summary judgment to Ms. Fresco
    as the representative plaintiff.
[3]
On damages, he certified aggregate damages as a common issue, leaving the
    merits of the proposed methodology for determining the class members individual
    damages entitlements to be assessed at a later stage.
[4]
On limitations, he dismissed
    the Banks summary judgment motion for a class-wide limitations order and left the
    Banks limitation defences to be addressed at the individual hearing stage.
[5]

[6]

For the reasons that follow, we would dismiss
    the Banks appeals.

B.

THE ISSUES

[7]

Corresponding to the motion judges three
    decisions, the Bank brings three appeals. The Banks liability appeal raises two
    issues:

1.

Did the motion judge misinterpret s. 174 of the Code?

2.

In considering whether the Banks system-wide
    overtime policies and related practices contravened the requirements of the
    Code and the regulations under it, did the motion judge err in finding that the
    following were institutional impediments to the overtime claims of class
    members:

(a)

the Banks 1993 and 2006 Overtime Policies; and

(b)

the Banks record-keeping practices for tracking
    and compensating overtime hours?

[8]

The Banks damages appeal raises one issue:

3.

Did the motion judge err in certifying aggregate damages because
    this court had already determined that such damages are not available in this
    case?

[9]

The Banks limitations appeal raises two issues:

4.

Did the motion judge err by requiring the Bank to prove
    discoverability could be resolved on a class-wide basis, thereby reversing the
    onus of proof?

5.

Did the motion judge err in refusing to answer the Banks
    constitutional question regarding the extra-territorial application of s. 28 of
    the Ontario
Class Proceedings Act
?

[10]

We address each of these issues in turn.

[11]

The Bank also submits that the motion judge did
    not directly address the evidence explaining its perspective but only the
    evidence supporting Ms. Frescos perspective as set out in her written
    submissions. The Bank argues that this was an error in itself and renders the
    reasons inadequate as a matter of law. We would not give effect to this
    submission. In our view, the motion judge took a broader view of the evidence
    than the Bank submits, as we point out from time to time.

C.

Analysis

(1)

The motion judge did not misinterpret s. 174 of
    the Code

[12]

This issue relates to the first two certified
    common issues in the class action:

1. Are any parts of the Defendant's Overtime
    Policies (from February 1, 1993 to the present) unlawful, void or unenforceable
    for contravening the
Canada Labour Code
?

2. Did the Defendant have a duty (in contract
    or otherwise) to prevent Class Members from working, or a duty not to permit or
    not to encourage Class Members to work, overtime hours for which they were not
    properly compensated or for which the Defendant would not pay?

[13]

To address these common issues, the motion judge
    had to interpret and apply s. 174 of the
Canada
    Labour Code
, which provides:

Overtime pay or time off

174 (1) Subject to any regulations
    made under section 175, when an employee is required or permitted to work
    overtime, they are entitled to

(a) be paid for the overtime at a
    rate of wages not less than one and one-half times their regular rate of wages;
    or

(b) be granted not less than one
    and one-half hours of time off with pay for each hour of overtime worked,
    subject to subsections (2) to (5).

[14]

Then
Code
provisions make
    clear that the standard hours of work cannot exceed eight hours per day and
    forty hours per week. An employee who is required or permitted to work more
    than the standard hours of work must be paid time and a half. Additionally, under
    s. 24(2) of the
Canada Labour Standards
    Regulations
,
[6]
every employer is required to record the hours worked each day by every
    employee and keep this information on file for at least three years.

(a)

The motion judges interpretation

[15]

Against this legislative backdrop, what does the
    expression required or permitted in s. 174 of the Code mean? In his liability
    reasons, the motion judge focused on the interpretation of the word permitted
    and noted that [t]he policy question is whether permitted should be
    interpreted narrowly favouring the employer (and meaning impliedly required)
    or more broadly favouring the employee (and meaning allowed or not
    prevented).
[7]
He cited
Machtinger v. HOJ Industries
, in which the Supreme Court answered this interpretive
    question in favour of employees, taking into account the power dynamics in the
    modern workplace and the importance of employment standards legislation:

The harm which the Act seeks to remedy is that
    individual employees, and, in particular non-unionized employees, are often in
    an unequal bargaining position in relation to their employers. Accordingly, an
    interpretation of the Act which encourages employers to comply with the minimum
    requirements of the Act, and so extends its protections to as many employees as
    possible, is to be favoured over one that does not.
[8]

[16]

The motion judge explained that the labour arbitration
    cases interpreting s. 174 of the Code have, with only one exception,
    viewed the section as a worker protection provision in which permitted means
    allow or fail to prevent. He listed the main takeaways from the case law
    interpreting permitted in the context of overtime work as follows:

▪ The Code imposes liability for
    overtime whenever it is permitted, even if it is not required or authorized.
    The intent of the Code is to protect employees who are simply allowed to work
    overtime without pay.

▪ An employer cannot simply look the
    other way when an employee is working beyond the standard hours then claim the
    work was not required or permitted.

▪ An employer cannot avoid these
    statutory obligations by knowingly permitting employees to work overtime and
    then later taking the position the overtime was not authorized. This is in fact
    the mischief sought to be avoided by the use of the word permitted in Section
    174.

▪ In other words, an employer is liable
    for permitting overtime if it acquiesce[s] by its failure to prevent.
[9]

[17]

The motion judge accordingly restated the
    standard under s. 174 as: When an employee is required or allowed to work
or is not prevented from working
in excess of the
    standard hours of work, the employee shall be paid for the overtime at a rate
    of wages not less than one and one-half times his regular rate of wages.
[10]
We accept the motion judges
    interpretation of s. 174, which is well-supported by the case law.

(b)

The Banks overtime policies breached s. 174 of
    the Code as interpreted by the motion judge

[18]

We outline the parties arguments. The Bank makes
    two interrelated arguments about its overtime policies, one focussing on the
    purposes of its policies and the other focussing on the scope of its duties
    under the Code.

[19]

First, the Bank highlights that the Code gives
    the employer the right to determine when overtime hours will be worked. The Bank
    argues that, respectful of the Codes direction that an employer must pay
    overtime that it requires or permits, its overtime policies were developed for
    the purpose of discouraging overtime work. They were never intended to permit
    overtime work that was not compensated.

[20]

The Bank argues that in finding the policies to
    be inconsistent with the Code, the motion judge ignored evidence in the
    policies themselves, which formed part of the employment contracts, that the
    Bank intended to comply with the Code. The Bank points to the 1993 Overtime
    Policy, which expressly stated that overtime work in excess of 8 hours in a day
    or 37.5 hours over a week would be paid. It also reminded employees to obtain
    the approval of their supervisor or manager before working overtime and
    instructs: It is against the law to not pay overtime. The text of the 2006
    Overtime Policy, under the Intent heading, reads: CIBC has developed this
    Employee Overtime Policy (Canada) to help management align our resources
    appropriately and in accordance with the legal and regulatory framework
    governing overtime. The Bank argues that the clear intent of the policies was
    to comply with the Code. Accordingly, the Bank submits that the motion judge
    erred by interpreting the policies contrary to the objective intention of the
    Bank and a common sense reading of the policies text.
[11]

[21]

In response, the respondent argues that the
    motivation behind a policy is not relevant to whether it breaches the Code. Because
    the Banks policies caused uncompensated overtime on a systemic basis, the Bank
    breached s. 174 of the Code.

[22]

Second, the Bank submits that although authorization
    was a pre-condition for
working
overtime hours, it was not a pre-condition for
compensation
. The 1993 Overtime Policy
    set out that employees would be compensated for overtime that a manager pre-approved.
    The 2006 Overtime Policy provided for both pre- and post-approval, each of
    which would result in compensation. The 2006 Overtime Policy read, in part:

In order for employees to be compensated for
    overtime hours worked, the hours must be pre-approved by a manager in advance.
    Overtime, for which prior management approval was not obtained, will not be
    compensated unless there are extenuating circumstances and approval is obtained
    as soon as possible afterwards.

[23]

The Bank argues that pre-approval allowed it to
    control its employees hours of work and allocate resources in a cost-effective
    manner while compensating employees for overtime hours worked, as it was
    permitted to do, according to the authorities. The Bank relies on the principle
    that an employer must have knowledge of the overtime worked and that the
    employer must expressly or impliedly indicate that the work could be
    undertaken. In other words, [e]mployees cannot unilaterally elect to perform
    work outside of their scheduled hours of work and claim compensation for such
    work at overtime rates or even at straight time rates.
[12]

[24]

The Bank submits that the motion judges
    interpretation of the Code imposes a positive duty on an employer to prevent
    overtime hours it does not want to be worked, and requires the employer to
    prevent employees from working overtime hours that the employer is not aware
    are being worked. The Bank submits that imposing this positive duty is contrary
    to the Act and the approach taken in
Lafarge
, to the effect that overtime hours cannot be considered required
    or permitted where the employer has no knowledge of the work.

[25]

The respondent relies on a countervailing line
    of arbitral decisions, which holds that permitted does not put the onus on
    the employee to seek permission; instead overtime is required or permitted if
    an employer knows or ought to know that an employee is working overtime but
    fails to take reasonable steps to prevent the employee from working.
[13]
The respondent also argues
    that the motion judges interpretation is consistent with the remedial purpose
    of the Code and case law which requires a liberal and generous interpretation
    of the protections afforded to employees.

[26]

The motion judge held that the onus falls on the
    employer to show how the policy ensured all overtime hours were compensated.
    Relying on the
T-Line Services
line of cases, the motion judges focus was on whether the Bank
    breached its duty to the class by permitting or failing to prevent overtime
    hours, yet creating a system that all but prohibited overtime compensation. He
    concluded:

In my view, the plaintiff has established that
    both the 1993 and 2006 overtime policies contravened the requirements set out
    in
s. 174
of the
Code
. The parties filed expert reports to support their respective
    submissions. There is no need for me to rely [on] or even refer to these
    reports. I find that the defendant bank breached its statutory and contractual
    duty to the class member employees.
I can make this finding by simply contrasting the language of the
    defendants system-wide policies with
s. 174
of the
Code
.
[14]

[27]

With respect to the 1993 Overtime Policy, the motion judge found
    that the imposition of a pre-approval requirement as a precondition for
    overtime compensation was more restrictive than the required or permitted
    language in s. 174 of the Code. With respect to the 2006 Overtime Policy,
    he found that the addition of possible post-approval in extenuating
    circumstances did not cure the deficiencies because the Code required that
    overtime be paid whenever such hours were required or permitted, without
    exception.
However, the motion judge concluded that
pre-authorization or post-approval requirements did not, in and of
    themselves, violate the Code; rather, it was the effect of making one or the
    other a pre-condition for payment that constituted the violation.

[28]

As the motion judge pointed out, most arbitral
    decisions agree that s. 174 does impose a positive duty on employers to
    actively prevent employees from working overtime hours. This duty does not
    conflict with the employers right to manage its workforce. This duty does not
    subject an employer to indeterminate liability because the employer will not be
    found to have permitted overtime work unless the employer has actual or
    constructive knowledge that its employees are working beyond the hours
    permitted under the Code. The risk of silence in the face of actual or
    constructive knowledge falls on the employer. The motion judge did not impose a
    duty on employers to compensate employees for overtime hours of which it was
    not aware because an employer cannot be said to permit what it does not know.

[29]

Moreover, as we set out below, the motion judge did
    not simply rely on the wording of the policies in finding liability. He also made
    findings of fact on the evidence that support his conclusion that the effect of
    the Banks overtime policies was that it failed to prevent overtime from being
    worked without compensation.

[30]

We do not accept the Banks submission that the
    motion judge erred in his interpretation of the Code or its application to the
    Banks overtime policies. We find no legal error in the motion judges finding
    that, read as a whole, and together with the surrounding evidence of manuals,
    circulars and guidelines, the Banks overtime policies required
    pre-authorization (or post-authorization in extenuating circumstances in the case
    of the 2006 Overtime Policy). Overtime hours that were permitted but not
    authorized under the policies would not be paid, contrary to the Code.

[31]

We turn now to the second issue.

(2)

The motion judge did not err in finding that the
    Banks system-wide overtime policies and record-keeping practices breached its
    duties under the Code and its regulations

[32]

In considering whether the Banks system-wide
    overtime policies and related practices contravened the requirements of the
    Code and the regulations under it, the motion judge did not err in finding that
    (a) the Banks 1993 and 2006 Overtime Policies; and (b) the Banks
    record-keeping practices for tracking and compensating overtime hours were
    institutional impediments to the overtime claims of class members.

(a)

What is an institutional impediment?

[33]

The language of institutional impediment draws
    on the comments of Strathy J. (as he then was) in
Fulawka
    v. Bank of Nova Scotia
.
[15]
He stated: The
    understandable need for managers to control overtime costs and the pre-approval
    requirement in the policy create
institutional
    impediments
to claims for overtime pay.
[16]
The motion judge echoed this
    language in the decision below, noting with respect to this courts
    certification decision:

Chief Justice Winkler, writing for a unanimous
    Court, made clear that in order to prevail at the common issues trial, the
    plaintiff would have to prove that CIBCs system-wide overtime policy and
    related practices were institutional impediments to class member overtime
    claims that were otherwise compensable under the Code.
[17]

[34]

In the barest terms, an impediment is
    institutional and therefore systemic if it is a characteristic of the
    operation of the employment system. When considering whether an employers
    policy or practice serves as an institutional impediment, the operative
    question is
how
employees
    were harmed by it. If the policy creates a systemic hurdle to appropriate
    compensation, then it operates as an institutional impediment. This is the case
    even if there were some employees who were not, in practice, denied
    compensation as a result of the policy.

[35]

In this courts certification decision, Winkler
    C.J.O. concluded that the lower courts view of the pre-approval policies
    ignore[d] the factual assertions in the pleadings about the alleged reality of
    the workplace in CIBC retail branches.
[18]
He noted that the claim does not turn exclusively or even primarily on the per
    se legality of the [policies].
[19]
Rather, the alleged breach resulted from the interaction between the policies
    and the actual work assigned and recorded.

[36]

Ultimately, this court certified the action
    because CIBCs overtime policies governing overtime compensation and the
    accompanying standard forms that class members submit when requesting such
    compensation, apply to all class members.
[20]
The issue, according to Winkler C.J.O., was whether CIBC had a duty to
    implement an overtime system that satisfies its obligations under the
Code
, and whether its actual system met
    these obligations.
[21]

[37]

Similarly, in
Cavanaugh
    v. Grenville Christian College
, this court upheld
    a trial decision that found the defendant school to be systemically negligent
    because it caused harm through its operational characteristics.
[22]
The trial judge had rejected
    Grenvilles argument that the inflictions of harm were one-offs concerning
    individual students and that the harm was systemic because it flowed from
    Greenvilles character as an institution. In upholding the trial judges
    treatment of the systemic breach issue, van Rensburg J.A. stated: The trial
    judge recognized that systemic negligence involved an assessment of how the
    school was run  its practices and the extent to which the practices created a
    risk of harm.
[23]

(b)

The Banks overtime policies were institutional
    impediments

[38]

The motion judge summarized the basis for his
    finding of liability in the following terms: The banks unlawful overtime policies
    and hours-of-work recording practices were systemic or institutional
    impediments. That is, they were system-wide in nature and they impeded class
    member overtime claims that were otherwise compensable under the Code.
[24]

[39]

In other words, the motion judge found that the
    policies link the class members and their claims and create the class. The
    Banks breach was not systemic because it prevented
all employees
from receiving overtime
    compensation; rather, the breach was systemic because the policies acted as an
    institutional impediment for
any employee
that earned overtime compensation. The policies imposed additional
    hurdles on employees seeking overtime compensation systemically across the
    institution.

[40]

The Bank argues that the plaintiffs systemic
    claim for breach of the class members employment contracts could only succeed
    on the merits if a causal link existed between class members claims for
    uncompensated overtime and CIBCs policies and practices. The Bank points out
    that the overtime policies were applied flexibly and that pre-approval was
    granted regularly. The Bank referred to evidence of 80 internal audits
    conducted between 2002 and 2009, 77 of which found no failure to compensate for
    overtime. The three audits that did find problems led to remedial action.

[41]

The Bank asserts that the motion judge did not
    have sufficient evidence to conclude that its policies caused any employees to work
    overtime hours without compensation.

[42]

However, the Banks argument misunderstands the
    motion judges reasoning. His approach flows from the systemic nature of the breaches.
    The Banks breaches were systemic because the regular denial of overtime pay
    resulted from the interaction between the Banks overtime policies, the Code,
    and its workforce. The analysis does not boil down to an issue of numbers
    because it does not depend on the interaction between individual managers and
    employees.
[25]
The motion judge expressed the test for liability under the third certified
    common issue, as: One, has the plaintiff established that at least some of the
    class members worked uncompensated overtime? And two, has the plaintiff
    established that it is more likely than not that these hours of uncompensated
    overtime work were permitted or not prevented by the defendant bank?
[26]

[43]

We agree with the motion judges approach. The
    class cannot establish that the Bank deprived class members of overtime
    compensation without first showing that such compensation was due: What is a
    breach is failing to pay overtime that is actually owed.
[27]

[44]

To succeed on this aspect of the claim, the
    respondent did not need to show that
every
class member was owed overtime compensation, but only that
some
class members were owed
    compensation because they were not paid as a result of the operation of the
    Banks overtime policies.

[45]

It was therefore necessary for the motion judge
    to find that the policies in fact deprived some employees of overtime
    compensation. He found that some of the class members did work uncompensated
    overtime. There was ample evidence in the record to support this finding,
    including an open forum survey, a workplace effectiveness project, and theme
    reports. This evidence, produced by the Bank, included specific references to
    Bank employees working overtime hours that were not compensated. For example, the
    motion judge points to hundreds of comments relating to overtime in employee
    survey evidence produced by the Bank.
[28]

[46]

The motion judges line of analysis is
    consistent with other cases analyzing systemic breaches. For example, in
Insurance Corp. of British Columbia
,
    the arbitrator found irrelevant the employers argument that unpaid overtime
    was not a pervasive issue. The arbitrator wrote that the claim is not an
    issue of numbers.
[29]
The plaintiff in that case needed only to show that some employees worked
    beyond their regular hours because the issue was whether the employer failed
    to put mechanisms in place to prevent employees working beyond their regularly
    scheduled shifts.
[30]

[47]

As we stated above, it is more appropriate to
    ask
how
employees were
    denied overtime compensation than to ask
how many
employees were denied compensation. Here, the respondent had to
    show that employees were denied overtime compensation because of the operation
    of the policies. The motion judge found that she did so. Since the policies
    impact the class in its entirety, this finding establishes the Banks liability
    to the class as a whole.

(c)

The Banks record-keeping practices were
    institutional impediments

[48]

This issue on appeal relates to the third certified
    question in the class action:

3. Did the Defendant have a duty (in contract
    or otherwise) to accurately record and maintain a record of all hours worked by
    Class Members to ensure that Class Members were appropriately compensated for
    same?

[49]

Earlier we noted that under s. 24(2) of the
    Regulations, every employer is required to record the hours worked each day by
    every employee and keep this information on file for at least three years.

[50]

In the Banks submission, the Regulations
    require employers to keep records of the time worked and the compensation paid
    (including for overtime hours) for a period of three years. It does not specify
    the manner of such recording.

[51]

The Bank delegated the task of recording
    compensated hours to individual branch managers. After 2003, the Bank relied on
    a human resources software program, PeopleSoft, to record hours. The Banks
    evidence was that this software met the industry standard at the time.

[52]

The Banks record keeping consisted of
    timesheets. Managers were responsible for inputting overtime hours into the
    payroll system and ensuring payment, including time off in lieu of payment if
    elected by the employee. The Bank produced evidence from various affiants that
    employees completed timesheets daily or when their hours of work differed from
    their standard hours. According to the Bank, there was no direct evidence
    that only approved hours were recorded on these timesheets.

[53]

The Bank challenges the motion judges
    assessment that [i]n the vast majority of cases, the only hours recorded were
    the regular hours and the
approved
overtime hours, as opposed to all overtime hours worked. The Bank
    argues that the motion judge ignored its evidence on this point, and that there
    was no evidence in the record capable of supporting his conclusion.

[54]

The motion judge relied on the systemic nature
    of the respondents claims to explain his finding of a breach on this basis:

Despite the defendants submissions to the
    contrary, I have no difficulty finding on the evidence before me that actual
    hours of work were not recorded.
This
    was a system-wide, indeed systemic deficiency, that contravened the Code
.

The defendant bank expected and directed class
    members to write down their actual hours only on an exceptional basis when
    they sought to be paid for hours worked beyond their regularly scheduled
    hours. The timesheet that the bank says was used for seeking post-approval
    expressly repeats the pre-approval requirement. To reiterate, system-wide policies
    told class members that overtime work would not be compensated unless it was
    pre-approved (or post-approved in extenuating circumstances after 2006). Hours
    worked that were otherwise permitted (not prevented) were not recorded and not
    compensated.
[31]

[55]

Consequently, the motion judge accepted the
    respondents position that the Bank had breached its duty to the class to
    ensure that all their hours of work were recorded, and that all required or
    permitted overtime was compensated.

[56]

We reiterate that resolving the issue of
    liability in a systemic class action is not a question of numbers. It was
    unnecessary for the motion judge to quantify the number of cases where
    uncompensated overtime hours were not captured due to the Banks system of
    record-keeping. To support a finding of a breach of this common issue, the
    motion judge had to find instances in which some employees real hours of work
    were not recorded due to the record-keeping system. Having done so, it was not material
    whether this occurred in a majority of cases.

[57]

Based on his evaluation of the evidence, the
    motion judge accepted that the actual hours of work might have been recorded
    for some employees at some branches on some occasions. However, he found the Bank
    was deficient in having no system to ensure this was done consistently across
    all branches. There was sufficient evidence in the record to support such a
    conclusion.

[58]

The motion judge relied, for example, on
    admissions contained in bank documents entitled Overtime Policy Canada -
    Compliance Monitoring
[32]
and Overtime Monitoring Reports, which indicated that PeopleSoft was not used
    to track actual hours worked and that the Bank was unable to determine whether
    an employee worked overtime due to that lack of tracking.

[59]

In our view, based on the evidence before the
    motion judge, it would have been preferable if he had refrained from
    quantifying the occasions when the Banks system of record-keeping led to
    overtime hours not being recorded. That said, we see no basis for interfering
    with the motion judges finding on this aspect of the liability analysis.

(3)

The motion judge did not err in certifying the aggregate
    damages issue

[60]

A plaintiffs access to damages determined in
    the aggregate is governed by s. 24 of the
Class
    Proceedings Act
, which provides:

24 (1) The court may determine the
    aggregate or a part of a defendants liability to class members and give
    judgment accordingly where,

(a) monetary relief is claimed on
    behalf of some or all class members;

(b) no questions of fact or law
    other than those relating to the assessment of monetary relief remain to be
    determined in order to establish the amount of the defendants monetary
    liability;

(c) the aggregate or a part of
    the defendant's liability to some or all class members can reasonably be
    determined without proof by individual class members.

[61]

We address the background to this issue, the
    test for certifying an aggregate damages issue, and whether this courts
    refusal to certify an aggregate damages common issue is
res judicata
.

(a)

Background

[62]

On the appeal of the certification motion, this
    court refused to certify the proposed common issue concerning the aggregate
    assessment of damages. Winkler C.J.O. stated: For the reasons given in
Fulawka
, at paras. 110-39, the
    preconditions in s. 24(1) of the
CPA
for ordering an aggregate assessment of monetary relief cannot be
    satisfied in this case.
[33]

[63]

The particular stumbling block in
Fulawka
concerned the language of s. 24
    (1)(c), which requires that the aggregate or a part of the defendants
    liability to some or all class members can reasonably be determined without
    proof by individual class members. In
Fulawka
, this court found that because the proposed method is based on
    proof from a limited subsection of the class, it impermissibly requires proof
    from individual class members in order to arrive at an aggregate damages figure.
[34]
Winkler C.J.O. summarized: [A]n
    aggregate assessment of monetary relief may only be certified as a common issue
    where resolving the other certifiable common issues could be determinative of
    monetary liability and where the quantum of damages could reasonably be
    calculated without proof by individual class members.
[35]

[64]

Despite this courts refusal to certify the
    aggregate damages question, the plaintiff sought an order directing an
    assessment of aggregate damages (or certifying aggregate damages as a new
    common issue) and directing the Bank to produce paper and electronic records
    relevant to the aggregate assessment. The motion judge heard further argument
    and certified a ninth common issue:

9. Can the defendants monetary liability
    be determined on an aggregate basis? If so, in what amount?
[36]

The motion judge adjourned the
    balance of the damages hearing to await the plaintiff's aggregate damages
    report and the defendant banks response.
[37]

[65]

The Bank challenges the certification of the
    aggregate damages issue on two grounds: (i) the proposed methodology does not
    meet the legal test for certifying the aggregate damages issue, and (ii) this
    court finally determined that aggregate damages were not available in this case,
    so the matter is
res judicata
. We address these arguments, both of which we reject, in turn.

(b)

The test for certifying the aggregate damages
    issue is met

[66]

Apart from the requirements under s. 24(1) of
    the Act, there are also jurisprudential governing principles.

(i)

The governing principles for certifying an aggregate
    damages common issue

[67]

The test for certifying aggregate damages as a
    common question is whether there is a reasonable likelihood that the
    conditions required in s. 24 of the
Class
    Proceedings Act
for determining aggregate damages
    would be satisfied if the [plaintiff is] otherwise successful at the common
    issues trial.
[38]

[68]

The Supreme Court considered the standard for evaluating
    a plaintiffs proposed methodology in
Pro-Sys
    Consultants Ltd. v. Microsoft Corporation
.
[39]
Rothstein J. said: [T]he
    expert methodology must be sufficiently credible or plausible to establish some
    basis in fact for the commonality requirement.
[40]
As Karakatsanis J. explained
    in her partly dissenting reasons in
Atlantic
    Lottery Corp. Inc. v. Babstock
, this means that
    the methodology must offer a realistic prospect of assessing class-wide
    monetary relief in the aggregate.
[41]

[69]

Rothstein J. added in
Pro-Sys
that the methodology cannot be
    purely theoretical or hypothetical, but must be grounded in the facts and
    there must be some evidence that data is available.
[42]
He noted that resolving
    conflicts between the experts is an issue for the trial judge and not one that
    should be engaged in at certification.
[43]
Finally, Rothstein J. found that the common issues trial judge has the
    ultimate responsibility for deciding whether aggregate damages are available.
[44]

(ii)

The motion judges reasoning

[70]

The motion judge saw his responsibility as
    determining whether the methodology proposed by the plaintiffs expert offered a
    reasonable possibility of assessing damages in the aggregate without proof by
    individual class members, and that the methodology would result in a fair and
    sufficiently reliable determination of the defendants monetary liability.
[45]

[71]

The motion judge described the proposed methodology.
    It is based on a review of the defendant banks electronic records (currently
    housed in nine internal computer systems) that contain time-stamped data
    showing, among other things, the daily start and stop times of the employees
    computer.
[46]
He explained: In essence, the proposed methodology would reconstruct
    timesheets for class members not by using random sampling but by reviewing and
    using all the relevant time-stamped data that is available in the banks
    computer systems.
[47]
The motion judge was confident in the methodology because it had been used
    successfully in scores of [American] unpaid overtime cases.
[48]
He added that the respondents
    expert had reviewed the limited available data respecting five employees, which
    helped inform the formulation of his proposed methodology.
[49]

[72]

This led the motion judge to conclude that it
    is
reasonably possible
that [the experts] proposed methodology, based mainly on the defendant banks
    time-stamped computer data, can fairly determine all or part of the banks
    monetary liability without proof by individual members.
[50]
He pointed out that the
    defendant bank will have ample opportunity to challenge the reliability of the time-stamped
    data approach, and if there are evidentiary gaps, to contest the statistical
    integrity of the suggested extrapolation techniques or the legality of random
    sampling.
[51]

[73]

As we discuss in more detail below, the motion
    judge took the position that
Pro-Sys
, which was decided after this courts refusal to certify the
    aggregate damages question, allowed him to reconsider the aggregate damages
    certification issue.

(iii)

The governing principles applied

[74]

The motion judge properly expressed the standard
    for certifying aggregate damages as being whether there is a
reasonable likelihood
that the methodology suggested by
    the plaintiffs expert can determine damages in the aggregate without proof by
    individual class members.
[52]
He cited
Markson
and observed
    that the reasonable likelihood standard originated in Cullity J.s comments
    in
Vezina v. Loblaw Companies Ltd
.
[53]

[75]

The motion judge added this footnote, with which
    the Bank takes issue:

Cullity J. refers to the possibility of such
    an assessment. Also, if one Googles the meaning of reasonable likelihood one
    finds that courts and tribunals in other common law countries understand reasonable
    likelihood as meaning something more than possible but not much more  that
    is, the meaning given is not fanciful or remote and more than merely
    plausible. Whatever the nuance, reasonable likelihood is more akin to reasonable
    possibility and thus a relatively low standard.
[54]

The Bank argues that the motion judge
    erred in adopting a reasonable possibility test instead of the reasonable
    likelihood one.

[76]

We would not give effect to this argument
    because, on the facts of the case, the reasonable likelihood standard has
    been met, for all the reasons the motion judge provided about the methodology. To
    paraphrase
Pro-Sys
,
    the proposed methodology is sufficiently credible or plausible to establish
    some basis in fact for the commonality requirement, and it offers a realistic
    prospect of assessing class-wide monetary relief in the aggregate that is grounded
    in the facts and the available data. It is the task of the trial judge, not the
    certification motion judge, to resolve any conflicts between the experts.

[77]

We now turn to the Banks other assertion, which
    is that because this court had previously finally determined that aggregate
    damages were not available in this case, the matter is
res judicata
.

(c)

This courts decision refusing to certify aggregate
    damages does not render the issue
res judicata

[78]

We address the doctrine of
res judicata
in three steps: the
    governing principles; the motion judges reasoning; and the principles applied.

(i)

The governing principles for
res
    judicata

[79]

The governing principles for the issue estoppel branch
    of
res judicata
were
    prescribed by the Supreme Court in
Danyluk v.
    Ainsworth Technologies Inc
.
[55]
A party is prohibited from re-litigating an issue where (1) the same issue
has been previously decided; (2) that judicial decision was final;
    and, (3) the parties are the same. Binnie J. stated the purpose of the doctrine:

The law rightly seeks a finality to litigation. To advance that
    objective, it requires litigants to put their best foot forward to establish
    the truth of their allegations when first called upon to do so. A litigant, to
    use the vernacular, is only entitled to one bite at the cherry.
[56]

He added: The underlying purpose [of issue estoppel]
    is to balance the public interest in the finality of litigation with the public
    interest in ensuring that justice is done on the facts of a particular case.
[57]

[80]

Tulloch J.A. considered the rationale for preventing re-litigation in
    the context of the abuse of process doctrine in
The
    Catalyst Capital Group Inc. v. VimpelCom Ltd
.
[58]
He noted: The law seeks to avoid re-litigation primarily for two reasons:
    first, to prevent overlap and wasting judicial resources; and second, to avoid
    the risk of inconsistent findings.
[59]

[81]

Even
    where the three requirements for issue estoppel are met, the courts retain a
    residual discretion to refuse to apply the doctrine.
Finch J.A.
    stated in
British Columbia (Minister of Forests) v.
    Bugbusters Pest Management Inc.
:

The doctrine of issue estoppel is designed as
    an implement of justice, and a protection against injustice. It inevitably
    calls upon the exercise of a judicial discretion to achieve fairness according
    to the circumstances of each case.
[60]

Binnie J. adopted this statement in
Danyluk
.
[61]
He commented  that [t]he
    objective is to ensure that the operation of issue estoppel promotes the
    orderly administration of justice but not at the cost of real injustice in the
    particular case.
[62]

[82]

This court commented on the judicial discretion to
    refuse to apply issue estoppel in
Schweneke v.
    Ontario
.
[63]
Doherty and Feldman JJ.A. stated: In exercising the discretion the court must
    ask  is there something in the circumstances of this case such that the usual
    operation of the doctrine of issue estoppel would work an injustice?
[64]
More recently,
this
    court discussed the role of discretion in declining to apply
res judicata

and the related
    doctrine of abuse of process in
Dosen v. Meloche Monnex
    Financial Services Inc. (Security National Insurance Company)
.
[65]

[83]

Because
    declining to give effect to issue estoppel is a matter of discretion, this
    court owes deference to a motion judges decision and should only intervene if
    the motions judge misdirected himself, came to a decision that is so clearly
    wrong as to be an injustice, or gave no or insufficient weight to relevant
    considerations.
[66]

(ii)

The motion judges decision

[84]

In his damages decision, the motion judge took
    the position that he was free to add aggregate damages as a ninth common issue,
    despite this courts earlier refusal, on two bases. First, he determined that the
    doctrine of
res judicata
did not strictly apply because the proposed methodology was
    different than the initial sampling methodology this court rejected. Second, he
    noted that in
Pro-Sys
,
    which was released after this courts certification decision, the Supreme Court
    established that the trial judge has ultimate authority to add an aggregate
    damages question even where this very question was rejected at certification.
[67]

(iii)

The governing principles applied

[85]

In
Pro-Sys
, Rothstein J. held that the trial judge has ultimate responsibility
    for deciding whether aggregate damages are available:

The question of whether damages assessed in
    the aggregate are an appropriate remedy can be certified as a common issue.
    However, this common issue is only determined at the common issues trial after
    a finding of liability has been made.
The ultimate decision as to whether the aggregate damages provisions
    of the
CPA
should be available is one that should be
    left to the common issues trial judge. Further, the failure to propose or
    certify aggregate damages, or another remedy, as a common issue does not preclude
    a trial judge from invoking the provisions if considered appropriate once
    liability is found
.
[68]

[86]

We make two observations about these words in
Pro-Sys
. First, the Supreme Court does
    not discourage the identification of aggregate damages as an issue to be
    certified at the outset. This makes sense because early identification of an
    issue is always a good thing. Second, the Supreme Court leaves the final decision
    about the availability of aggregate damages to the trial judge, even where the
    issue was not previously proposed or certified. This too makes sense because the
    trial judge becomes deeply familiar with the case as it crystallizes, which makes
    the trial judge uniquely able to make the appropriate call.

[87]

Does the laws clarification or change in
Pro-Sys
displace this courts refusal
    to certify aggregate damages as a common issue? In our view, it does. This
    court made the ultimate decision that the Supreme Court later stipulated
    should be left to the common issues trial judge. In other words, neither the certification
    judges refusal nor this courts refusal on appeal to certify aggregate damages
    as a common issue should be the final disposition. We are obliged to give
    effect to
Pro-Sys
.
[69]
Accordingly, the motion judge
    was correct in concluding on the basis of
Pro-Sys
that as the common issues judge, he had the ultimate authority to certify
    the aggregate damages common issue.

[88]

However, we add that
Pro-Sys
does not displace this courts
    earlier legal ruling on sampling as a methodology for determining aggregate
    damages. The motion judge alluded quite fairly to the implication of potential
    gaps in the evidence: If the time-stamped data reveals gaps in the evidence,
    where complete data cannot be obtained, then statistical sampling or
    extrapolation (back-casting and forecasting) would be used to fill in the
    gaps.
[70]
This raises the prospect that this courts legal finding that random sampling
    of the class members is not an acceptable method for determining aggregate
    damages might need to be revisited.

[89]

The motion judge has taken the strong position
    that Winkler C.J.O.s analysis of the sampling methodology was probably wrong,
    but he explained that the question was premature in this case: We wont know
    until the plaintiffs proposed damages report is completed and submitted
    whether there are any evidentiary gaps and whether statistical sampling will
    actually be used to fill in these gaps.
[71]

[90]

Time will tell if statistical sampling will be
    needed to fill evidentiary gaps. If it is used, then the Bank could challenge
    the result based on this courts ruling on the sampling methodology. It will
    then be open to the respondent to argue, based on a full evidentiary record,
    that this courts decision was wrong and should be set aside.

(4)

In determining whether the Bank had a class-wide
    limitations defence, the motion judge did not err in requiring the Bank to
    prove discoverability could be resolved on a class-wide basis

[91]

This court did not certify the effect of
    limitation periods as a common issue. Winkler C.J.O. said: The issue of
    limitation periods is not an ingredient of the class members claims, but
    instead may be relied upon by CIBC in its defence.
[72]
He continued: The question
    of how individual issues are best resolved is a procedural matter that would
    follow after the common issues trial. Despite these words, the Bank
    cross-moved for summary judgment on the limitation issue.

[92]

An effective class-wide limitation defence would
    greatly assist the Bank, which is faced by a class period that begins on February
    1, 1993, when the 1993 Overtime Policy took effect, and ends on June 18, 2009, the
    certification date approved by this court. The class action is national in
    scope, with a 16-year class period and about 31,000 class members.

[93]

The Bank focused on two arguments. The first concerns
    the application of the discoverability test in Ontarios
Limitations Act
[73]

and its analogs in Saskatchewan and Albertas respective limitations
    statutes. The second concerns the non-application of the appropriate means
    aspect of discoverability to claimants residing in parts of Canada in which the
    relevant limitations legislation does not include a statutory discoverability
    test.

(a)

The legislated discoverability test

[94]

The Banks argument hinges on the issue of
    discoverability. Section 5 of Ontarios
Limitations
    Act
provides:

5 (1)
A
    claim is discovered on the earlier of,

(a) the day on which the person
    with the claim first knew,

(i) that
    the injury, loss or damage had occurred,

(ii) that
    the injury, loss or damage was caused by or contributed to by an act or
    omission,

(iii) that
    the act or omission was that of the person against whom the claim is made, and

(iv) that,
    having regard to the nature of the injury, loss or damage, a proceeding would
    be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have known of the matters referred to in clause (a).

(2)
A person with a claim shall
    be presumed to have known of the matters referred to in clause (1) (a) on the
    day the act or omission on which the claim is based took place, unless the
    contrary is proved.

[95]

The motion judge discussed the test set by s. 5:
    [L]imitation periods begin to run as soon as the claimant reasonably discovers
    that she has sustained a loss, that the loss was caused by the defendant
and
that taking legal action was
    appropriate.
[74]
The motion judge noted that: Every time a class member received their bi-weekly
    pay, they would have known if they had been paid for overtime, and if not, that
    this loss was caused by their defendant employer.
[75]
Accordingly, the first two
    branches of the test were met.

[96]

The discoverability issue rested, for the motion
    judge, on the third branch: whether class members knew taking legal action was
    appropriate. This turns on the interpretation of ss. 5(1)(a)(iv) and 5(1)(b).

[97]

The motion judge found that the appropriate
    means requirement applied so that the limitations period would not begin to
    run if taking legal action was not reasonably appropriate given the plaintiffs
    circumstances.
[76]
He gave two main reasons for concluding that the appropriate means test was
    not met. First, some (and perhaps many) of the class members feared reprisal
    and were afraid that they might lose their job if they sued the bank for unpaid
    overtime.
[77]
Second, some (and perhaps many) of the class members reasonably relied on the
    banks repeated misrepresentations throughout the 16-year class period that the
    banks overtime policies complied with federal labour law.
[78]

[98]

The motion judge found that these reasons
    combined to require individual assessments of when discoverability was met for
    an individual claimant, consistent with the general rule that the viability of
    a limitations defence is best determined on an individual basis with individual
    assessments  hence its usual relegation to the individual hearings phase.
[79]
The motion judge concluded:

The defendant bank has not established on the
    evidence that the limitation period that applies to
every
class members
    claim (outside the limitation periods noted in its Schedule) can be determined
    in common on a class-wide basis and that individual discoverability is not
    needed. In my view, the evidence strongly suggests that individual discovery
    will be needed in at least some cases to fairly determine whether the class
    member delayed in taking legal action because they were in reasonable fear of
    losing their job; because they reasonably relied on the banks
    misrepresentations about the legality of its overtime policy; or because they
    were otherwise impeded by the banks systemic policies and practices.
[80]

[99]

We are not persuaded that the first factor, that
    some (and perhaps many) of the class members feared reprisal and were afraid
    that they might lose their job if they sued the bank for unpaid overtime is a
    valid basis on which the limitations period can be suspended. However, there is
    merit in the second factor of reasonable reliance on misrepresentation. The
    applicable law is set out in this courts decision in
Presley v. Van Dusen
.
[81]
Sharpe J.A. discussed the
    governing principles, and then referred to one of the guiding principles
    expressed by Pardu J.A. in
Presidential MSH
    Corp. v. Marr Foster & Co. LLP
: Resort to
    legal action may be inappropriate in cases where the plaintiff is relying on
    the superior knowledge and expertise of the defendant, which often, although
    not exclusively, occurs in a professional relationship.
[82]

[100]

Sharpe J.A. added:

Moreover, reliance on superior knowledge and
    expertise sufficient to delay commencing proceedings is not restricted to
    strictly professional relationships. I acknowledge that the previous cases
    where this court has made a finding that it was reasonable for the plaintiff to
    rely on the defendants superior knowledge and expertise have concerned
    defendants belonging to traditional expert professions.... However, recent
    Superior Court decisions have applied the superior knowledge and expertise
    prong of
Presidential MSH
to persons who are members of
    non-traditional professions or who are not professionals at all.
[83]

He pointed to a case involving a
    franchisor-franchisee relationship, and another involving portfolio managers
    and investors. The categories are not closed.
[84]

[101]

On the facts of this case, it is quite plausible, as the motion
    judge found, that some class members reasonably relied on the Banks
    misrepresentations that its overtime policies complied with federal labour law.

The influence of this factor on individual class
    members is really a matter best left to individual assessment, as this court
    noted in the earlier certification decision.

(b)

Common law discoverability

[102]

The Banks second argument is that the question of whether a class
    member knew that a proceeding was an appropriate means to remedy unpaid
    overtime is only relevant to class members claims governed by statutes that
    include such discoverability language, that is, claims in Ontario, Saskatchewan,
    and Alberta. On that basis, a class-wide limitations order would be appropriate
    for all other claims. The Bank adds that this argument might also extend to
    claims in Ontario, Saskatchewan, and Alberta that predate the amendments adding
    discoverability language into the statutory text.

[103]

The Bank argues that the appropriate means criterion in s.
    5(1)(a)(iv) of the
Limitations Act
is not an element of the common law discoverability rules, relying
    on
407 ETR Concession Company Limited v. Day
and other cases.
[85]
We do not agree that common law discoverability rules could not be found to
    function in an equivalent manner. The ordinary development of the common law
    means that the categories are not closed. Whether this argument has traction is
    a matter to be decided on the individual assessments and not on a fact-free,
    class-wide basis.

(c)

Reversing the onus

[104]

The Bank also argues that the motion judge effectively reversed the
    burden of proof applicable to discoverability. Once it had proven that the
    claimants were aware of their claims, the Bank argues that the burden was on
    the plaintiff to establish that there was a basis to delay the running of the
    limitations period.

[105]

We would not give effect to this argument. Having moved for summary
    judgment, the onus was on the Bank to establish that it was so entitled. In any
    event, as we explain above, the respondent has established a sufficient basis
    to require the application of the limitations defence to be worked out on an
    individual basis.

(5)

The motion judge did not err in refusing to
    address the purported extra-provincial reach of s. 28 of the
Class Proceedings Act

[106]

This class proceeding has a national reach, with class members
    across the provinces. The Bank argues that because limitation periods affect
    the substantive rights of plaintiffs and defendants, they fall squarely within
    provincial power over property and civil rights under s. 92(13) of the
Constitution Act, 1867
. Accordingly, because
    Ontario may not legislate extra-territorially with respect to substantive
    rights, s. 28(1) of the Act  which suspends the running of limitation periods
    in favour of class members  should not serve to suspend the limitation periods
    applicable under local legislation to claims of class members who reside
    outside of Ontario.

[107]

The motion judge declined to consider this constitutional argument, on
    the basis that ruling on the extra-territorial applicability of s. 28 would be premature.
    He stated:

The defendant bank has asked that I rule on
    the s. 28(1) extra-provincial question even if I dismiss its request for a
    class-wide limitations order because this constitutional question may arise
    again at the individual hearings stage. I decline to do so. This litigation may
    never reach an individual hearings stage. The constitutional question is
    premature.
[86]

[108]

The Bank asks this court to consider this constitutional question on
    the basis that it must be resolved for all claims governed by non-Ontario law. It
    asserts that rendering a decision on a class-wide basis would preserve judicial
    economy, efficiency, and consistency in results.

[109]

We decline to decide this issue in the absence of a lower court
    decision and in the absence of a better evidentiary landscape. We agree with
    the motion judge that the issue is premature, and we therefore also decline to
    remit the matter back to him for resolution. Courts should not decide
    constitutional questions unnecessarily.
[87]

D.

Disposition

[110]

We would dismiss the appeal with costs payable to the respondent. If
    the parties are unable to agree on costs, then the respondent may file a written
    submission no more than three pages in length within ten days of the date of
    the release of these reasons; the appellant may file a written submission no
    more than three pages in length within ten days of the date the respondents
    submission is due; and the respondent may file a reply submission no more than one
    page in length within five days of the date the appellants submission is due.

Released: February 9, 2022 P.L.

P.
    Lauwers J.A.

L.
    Sossin J.A.

I
    agree. Harvison Young J.A.

[1]

Canada Labour Code
, R.S.C. 1985, c. L-2.

[2]

Fresco v. Canadian Imperial Bank of
    Commerce
,
2012 ONCA 444, 111 O.R. (3d) 501,
    leave to appeal refused, [2012] S.C.C.A. No. 379 (
Fresco
(ONCA)).

[3]

Fresco v. Canadian Imperial Bank of Commerce
, 2020 ONSC
    75, 63 C.C.E.L. (4th) 60 (
Fresco
Liability Decision).

[4]

Fresco v. Canadian Imperial Bank of Commerce
, 2020 ONSC
    4288, 66 C.C.E.L. (4th) 244 (
Fresco
Damages Decision).

[5]

Fresco v. Canadian Imperial Bank of Commerce
, 2020 ONSC
    6098 (
Fresco
Limitations Decision).

[6]

Canada Labour Standards Regulations
, C.R.C. 1978, c. 986
    (the Regulations).

[7]

Fresco
Liability Decision
, at para. 16.

[8]

Machtinger v. HOJ Industries
, [1992] 1 S.C.R. 986, at p.
    1003.

[9]

Fresco
Liability Decision
, at para. 17 (footnotes omitted).

[10]

Fresco
Liability Decision
, at para. 24 (emphasis
    added).

[11]
See
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at para. 55.

[12]

Cooper Tool Group Ltd. v. U.S.W.A., Local 6497
(1975),
    10 L.A.C. (2d) 407 (Ont. Arb. Bd.), at p. 410, cited in
Lafarge Canada Inc.
    Construction Materials v. CMSG
, [2000] C.L.A.D. No. 376 at para. 15, and
Koscis
    Transport Ltd. and Chabaylo (Re)
, [2003] C.L.A.D. No. 519, arbitral decisions
    on which the Bank also relies, among others.

[13]

Fresco v. Canadian Imperial Bank of Commerce
, 2010 ONSC
    4724, 323 D.L.R. (4th) 376 (Div. Ct.), at para. 171,
per
Sachs J.
    (dissenting), revd
Fresco
(ONCA). Sachs J. cites the cases
T-Line
    Services Ltd. v. Morin
, [1997] C.L.A.D. No. 422;
RSB Logistic Inc. v.
    Hale
, [1999] C.L.A.D. No. 548; and
Kindersley Transport Ltd. v.
    Semchyshen
, [2002] C.L.A.D. No. 4.

[14]

Fresco
Liability Decision
, at para. 39 (emphasis
    added).

[15]

Fulawka v. Bank of Nova Scotia
, 2010 ONSC 1148, 101 O.R.
    (3d) 93 (
Fulawka
(ONSC)). This decision concerned the initial motion
    underlying the parallel certification case of
Fulawka v. Bank of Nova
    Scotia
,
2012 ONCA 443, 111 O.R. (3d) 346, leave to appeal refused,
    [2012] S.C.C.A. No. 326 (
Fulawka
(ONCA)).

[16]

Fulawka
(ONSC), at para. 78 (emphasis added).

[17]

Fresco
Liability Decision
, at para. 9 (footnotes
    omitted).

[18]

Fresco
(ONCA)
, at para. 73.

[19]

Fresco
(ONCA)
, at para. 84.

[20]

Fresco
(ONCA)
, at para. 103.

[21]

Fresco
(ONCA)
, at para. 104.

[22]

Cavanaugh v. Grenville Christian College
, 2021 ONCA 755,
    72 E.T.R. (4th) 28.

[23]

Cavanaugh
, at para.
    78.

[24]

Fresco
Liability Decision
, at para. 92 (footnotes
    omitted).

[25]

Insurance Corp. of British Columbia and
    COPE Local 378 (Unpaid Overtime Claim), Re
, [2012]
    B.C.W.L.D. 7745, at para. 31.

[26]

Fresco
Liability Decision
, at para. 62.

[27]

Baroch v. Canada Cartage
, 2015 ONSC 40, 66 C.P.C. (7th) 72, at para. 37.

[28]

Fresco
Liability Decision
, at paras. 71, 84. This
    is a critical instance in which the Banks complaints about the motion judges
    treatment of the evidence simply do not bear close scrutiny.

[29]

Insurance Corp. of British Columbia
, at para. 31.

[30]

Insurance Corp. of British Columbia
, at para. 54.

[31]

Fresco
Liability Decision
, at paras. 54-55
    (emphasis added; footnote omitted).

[32]

The
    Bank takes issue with the motion judges treatment of this evidence. The Bank
    points out that at paras. 57 and 58 of the liability reasons, the motion judge
    appears to cite passages from two different compliance monitoring documents. In
    fact, both quoted passages are from the same document. The inference the Bank
    invites us to draw, based on the presentation of this evidence in the
    respondents written submissions, is that the motion judge merely relied upon the
    respondents factum instead of engaging with the record, because he referred in
    para. 58 to
a
Compliance Monitoring Report rather than
the
    Compliance Monitoring Report, to which he had referred in para. 57.

We
    decline to draw this inference. The document clearly states that time worked
    is not recorded except for the purpose of payment of overtime for salaried
    employees or other purpose. The motion judge made appropriate use of this
    evidence in concluding that actual hours worked were not being systematically
    tracked for non-salaried employees.

[33]

Fresco
(ONCA)
, at para. 109.

[34]

Fulawka
(ONCA)
, at para. 137.

[35]

Fulawka
(ONCA)
, at para. 139.

[36]

Fresco
Damages Decision, at para. 45 (emphasis in original).

[37]

Fresco
Damages Decision, at para. 52.

[38]

Shah v. LG Chem Ltd
., 2018 ONCA 819, 142 O.R. (3d) 721, at
    para. 104, leave to appeal refused, [2018] S.C.C.A. No. 520, citing
Markson
    v. MBNA Canada Bank
, 2007 ONCA 334, 85 O.R. (3d) 321, leave to appeal
    refused, [2007] S.C.C.A. No. 346.

[39]

Pro-Sys Consultants Ltd. v. Microsoft Corporation
,
2013 SCC 57, [2013] 3 S.C.R. 477.

[40]

Pro-Sys
, at para. 118.

[41]

Atlantic Lottery Corp. Inc. v. Babstock
, 2020 SCC 19, 447
    D.L.R. (4th) 543, at para. 157.

[42]

Pro-Sys
, at para. 118.

[43]

Pro-Sys
, at para. 126.

[44]

Pro-Sys
, at para. 134.

[45]

Fresco
Damages Decision, at para. 33.

[46]

Fresco
Damages Decision, at para. 35.

[47]

Fresco
Damages Decision, at para. 38.

[48]

Fresco
Damages Decision, at para. 39.

[49]

Fresco
Damages Decision, at para. 47.

[50]

Fresco
Damages Decision, at para. 39 (emphasis in
    original).

[51]

Fresco
Damages Decision, at para. 44.

[52]

Fresco
Damages Decision, at para. 27 (emphasis added).

[53]

Vezina v. Loblaw Companies Ltd
. (2005), 17 C.P.C. (6th) 307 (Ont. S.C.), at para. 25.

[54]

Fresco
Damages Decision, at footnote 26.

[55]

Danyluk v. Ainsworth Technologies Inc
.
, 2001
    SCC 44, [2001] 2 S.C.R. 460, at para. 25.

[56]

Danyluk
, at para. 18.

[57]

Danyluk
, at para. 33.

[58]

The Catalyst Capital Group Inc. v. VimpelCom Ltd
.,
2019 ONCA 354
,
145 O.R. (3d) 759
, leave to appeal
    refused, [2019] S.C.C.A. No. 284.

[59]

The Catalyst Capital Group
, at para. 63.

[60]

British Columbia (Minister of Forests) v. Bugbusters Pest
    Management Inc.
(1998), 50 B.C.L.R. (3d) 1, at para. 32.

[61]

Danyluk
, at para. 63.

[62]

Danyluk
, at para. 67.

[63]

Schweneke v. Ontario

(2000), 47 O.R. (3d) 97 (C.A.), leave to appeal refused, [2000] S.C.C.A.
    No. 168.

[64]

Schweneke
, at para. 38.

[65]

Dosen v. Meloche Monnex Financial Services Inc. (Security
    National Insurance Company)
, 2021 ONCA 141, 457 D.L.R.
    (4th) 530, at paras. 36-37.

[66]

Catalyst Capital
, at para. 24.

[67]

Fresco
Damages Decision, at para. 24, citing
Pro-Sys
,
    at para. 134.

[68]

Pro-Sys
, at para. 134 (emphasis added).

[69]
See
R. v. Henry
, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 53-57.

[70]
Fresco
Damages Decision, at para. 36.

[71]

Fresco
Damages Decision, at paras. 21, 51.

[72]

Fresco
(ONCA), at para. 108.

[73]

Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B.

[74]

Fresco
Limitations Decision, at para. 24 (emphasis in
    original).

[75]

Fresco
Limitations Decision, at para. 25.

[76]

Fresco
Limitations Decision, at para. 31.

[77]

Fresco
Limitations Decision, at para. 33.

[78]

Fresco
Limitations Decision, at para. 33.

[79]

Fresco
Limitations Decision, at para. 3.

[80]

Fresco
Limitations Decision, at para. 52 (emphasis in
    original).

[81]

Presley v. Van Dusen
, 2019 ONCA 66, 144 O.R. (3d) 305.

[82]

Presley
, at para. 18, quoting
Presidential MSH Corp. v. Marr Foster & Co. LLP
, 2017 ONCA 325, 135 O.R.(3d) 321, at para. 26.

[83]

Presley
, at para. 22
    (internal citations omitted).

[84]
This is especially true since,
as this court stated in
Nasr Hospitality Services Inc. v. Intact Insurance
, 2018
    ONCA 725, 142 O.R. (3d) 561, at para. 51,
Presidential
    MSH
does not purport to offer an exhaustive list of circumstances
    in which a proceeding might not be an appropriate means.

[85]

407 ETR Concession Company Limited v.
    Day
, 2016 ONCA 709, 133 O.R. (3d) 762, at para.
    33, leave to appeal refused, [2016] S.C.C.A. No. 509. See
Gillham v. Lake
    of Bays (Township)
, 2018 ONCA 667, 425 D.L.R. (4th) 178, at para. 35, and generally
Peixeiro v. Haberman
, [1997] 3 S.C.R. 549, at paras. 36-37 and
Pioneer
    Corp. v. Godfrey
, 2019 SCC 42, 37 D.L.R. (4th) 383, at para. 32.

[86]

Fresco
Limitations Decision, at para. 23.

[87]
See
R. v. Drury
, 2020 ONCA 502, 391 C.C.C. (3d) 18, at
    para. 84, citing
Phillips v. Nova Scotia (Commission of Inquiry into the
    Westray Mine Tragedy)
, [1995] 2 S.C.R. 97, and
Ontario Deputy Judges
    Assn. v. Ontario
(2006), 80 O.R. (3d) 481, at para. 40.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Beran, 2022 ONCA 116

DATE: 20220210

DOCKET: C69798

Miller, Trotter and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcin Beran

Appellant

Marcin Beran, acting in person

Jacob Millns, for the respondent

Heard: February 7, 2022 by
    video conference

On appeal from the sentence imposed on July
    15, 2021 by Justice Kathryn L Hawke of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant advanced two grounds of appeal of
    his sentence for firearms related offences: (1) that the sentence is overly
    harsh and oppressive, and (2) the sentencing judge did not take into account
    the onerous conditions of incarceration the appellant has experienced as a
    result of the frequent lockdowns imposed to combat the spread of Covid in
    institutional settings.

[2]

With respect to the first ground, we do not
    agree that the sentencing judge made any errors of principle or misapprehended
    any material facts. The sentence imposed was not significantly higher than that
    proposed by the defence at trial. It was well within the available range. We do
    not agree with the submission that the fact there was no evidence the gun was
    used as part of a drug dealing enterprise renders the sentence unfit.

[3]

The application of a
Duncan
credit is a
    discretionary matter, and there is no basis on which we would interfere with
    the sentencing judges exercise of discretion. She referenced all the relevant
    principles and clearly and sympathetically recounted the appellants evidence
    of the harsh conditions that he has (and has continued) to experience. The
    sentencing judge factored these harsh conditions into the sentencing process as
    a mitigating factor, as she was required to do. She was not required to do
    anything further, such as provide a mathematical calculation of a sentencing
    credit. This ground of appeal must fail as well.

DISPOSITION

[4]

Leave to appeal sentence is granted, and the
    appeal of sentence is dismissed.

B.W.
    Miller J.A.

Gary Trotter
    J.A.

B.
    Zarnett J.A.