COURT OF APPEAL FOR ONTARIO

CITATION: Hodgson v. Cheng, 2020 ONCA 689

DATE: 20201029

DOCKET: M51829 (C68483)

Roberts, Trotter and Thorburn
    JJ.A.

BETWEEN

Lee Christian Hodgson

Appellant (Responding Party)

and

Jaeden Cheng

Respondent (Moving
    Party)

Aaron Franks and Hilary Ingle, for the moving
    party

Meghann Melito, for the responding party

Heard: October 26, 2020 by video
    conference

On a motion
    to quash the appeal from the order of Justice E. Llana Nakonechny of the
    Superior Court of Justice dated March 13, 2020.

REASONS
    FOR
DECISION

[1]

The moving party, Jaeden Cheng, seeks to quash
    the appeal brought by the responding party, Lee Christian Hodgson, from the
    dismissal of his motion in which he requested that the motion judge entertain
    further submissions and reconsider or set aside her costs order dated September
    20, 2019. Alternatively, she seeks security for costs.

[2]

At the conclusion of the motion, we advised the
    parties that the appeal was quashed with reasons to follow. These are those
    reasons.

Brief factual and procedural background

[3]

Some brief context is necessary to understand the
    nature of the order under appeal and the parties submissions. These
    proceedings arise out of the parties acrimonious custody dispute concerning
    their young daughter. Ms. Cheng moved with their daughter to Ontario from Hong
    Kong where the parties had been residing. Mr. Hodgson commenced proceedings in
    Hong Kong and in Ontario to seek their daughters return to Hong Kong. In the Hong
    Kong proceedings, an order was granted on August 1, 2019 requiring the daughters
    return.

[4]

Prior to the release of the August 1, 2019 Hong
    Kong order, Mr. Hodgson adjourned his motion for the same relief in Ontario. The
    parties made oral and written submissions concerning the disposition of costs. Ms.
    Cheng requested her costs of the adjourned motion and the application. Mr.
    Hodgson submitted that the costs should be reserved. The motion judge granted Ms.
    Cheng her costs in relation to the adjourned motion and the application commenced
    by Mr. Hodgson in the amount of $37,245. Mr. Hodgson launched an appeal from
    this costs order to the Divisional Court which, on January 6, 2020, was
    dismissed as abandoned with costs to Ms. Cheng in the amount of $750.

[5]

Mr. Hodgson then brought a 14B motion before the
    motion judge to request that she reconsider or set aside her September 20, 2019
    costs order and that she entertain further costs submissions. The main thrust
    of his motion was that since the parties were able to use the materials from
    the Ontario proceedings in the Hong Kong proceedings, Ms. Chengs costs had not
    been thrown away, and that his success in obtaining an order requiring the return
    of his daughter to Hong Kong entitled him to costs of the application in Ontario.
    Other than agreeing that the adjourned motion should be vacated, Ms. Cheng
    opposed this motion. On March 13, 2020, the motion judge dismissed Mr. Hodgsons
    motion. This is the order under appeal.

[6]

On October 5, 2020, Mr. Hodgson paid the Divisional
    Court costs order with interest. On the same day, he paid into his Hong Kong solicitors
    trust account the amount of the September 20, 2019 costs order, with interest, to
    be paid to Ms. Cheng if his appeal is quashed.

Parties positions

[7]

Ms. Chengs main submission on her motion to
    quash is that the order appealed from was interlocutory and that the correct
    appeal route was to the Divisional Court with leave.

[8]

Mr. Hodgson argues that the motion judges March
    13, 2020 order was final and that his appeal is properly before this court because
    the order foreclosed his right to seek costs of his Ontario application.

Analysis

[9]

We agree that Mr. Hodgsons appeal should be
    quashed on the basis that it is interlocutory in nature. It is therefore
    unnecessary to consider Ms. Chengs alternative submissions or motion for security
    for costs.

[10]

The motion judges order refusing Mr. Hodgsons
    request that she reconsider her costs order and entertain further submissions was
    clearly interlocutory. By the time she dealt with the issue of costs in her
    September 20, 2019 order, the Hong Kong court had ordered that the parties
    daughter be returned to Hong Kong. It was common ground that Mr. Hodgsons Ontario
    application would not likely proceed. In consequence, as the motion judge indicated
    in para. 27 of her September 20, 2019 reasons and explained further in her March
    13, 2020 endorsement, she disposed of Ms. Chengs costs related not only to the
    abandoned motion but also to the entire application.

[11]

In our view, the motion judges March 13, 2020
    order was nothing more than a procedural order made to manage the proceedings before
    her and dispose of Mr. Hodgsons request to re-open the costs disposition and make
    further costs submissions. It did not finally dispose of any substantive right
    of the parties or issue in the application but related to the motion judges previous
    final costs order, the appeal of which Mr. Hodgson had abandoned. S
ee:
Wachsberg
    v. Wachsberg
, 2018 ONCA 508, at paras. 6-7;
Deltro Group Ltd. v. Potentia Renewables Inc.
, 2017 ONCA 784, at para. 3
.
A
s such, an appeal does not lie to this court and this court does
    not have jurisdiction to entertain it.

[12]

There can be no question that the motion judges
    September 20, 2019 order is immediately payable to Ms. Cheng with interest at
    the rate provided for in the order from the date of the order. Indeed, the
    order became payable in accordance with its terms following Mr. Hodgsons abandonment
    of his appeal from the September 20, 2019 order and the automatic stay was consequently
    lifted. At that point, the September 20, 2019 order was no longer under appeal
    and therefore not automatically stayed. Mr. Hodgson has not obtained a stay of
    this order. His appeal from the motion judges March 13, 2020 order did not stay
    her September 20, 2019 order. It is beyond well-established that parties must
    obey court orders unless they are stayed or until they are set aside or varied.

Disposition

[13]

The appeal is therefore quashed.

[14]

Ms. Cheng is entitled to her partial indemnity costs
    in the amount of $3,500, inclusive of disbursements and applicable taxes.

[15]

Mr. Hodgson shall pay these costs prior to November
    4, 2020.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Honey Bee (Hong Kong) Limited v.
    VitaSound Audio Inc., 2020 ONCA 629

DATE: 20201006

DOCKET: C66125

Rouleau, Miller and Zarnett
    JJ.A.

BETWEEN

Honey Bee (Hong Kong) Limited

Plaintiff/Defendant
    by Counterclaim

(Respondent)

and

VitaSound Audio Inc., and Mark
    Chamberlain and Gora Ganguli

Defendants/Plaintiffs
    by Counterclaim

(Appellants)

Mark Chamberlain, acting in person and
    for VitaSound Audio Inc.

Gora Ganguli, acting in person and for
    VitaSound Audio Inc.

Walter Kravchuk, for the respondent

Heard: September 23, 2020 by video conference

On appeal from the judgment of Justice Richard
    A. Lococo of the Superior Court of Justice, dated October 9, 2018.

REASONS FOR DECISION

[1]

The corporate appellant, VitaSound Audio Inc.,
    is a technology company in the business of developing personal audio devices.
    The respondent, Honey Bee (Hong Kong) Limited, is in the business of
    manufacturing electronic devices. They entered into three agreements related to
    the manufacture and sale of audio devices that Honey Bee manufactured using
    technology developed by VitaSound: a Loan Agreement, by which Honey Bee loaned
    $500,000 to VitaSound and for which the individual appellants executed personal
    guarantees; an Investment Agreement, by which Honey Bee would invest $2 million
    in VitaSound, partially by way of delivery of 10,000 units of a PAE-300 audio
    device; and a Commercial Agreement, governing Honey Bees sale of the audio
    devices it manufactured and payments to VitaSound for those sales.

[2]

Honey Bee sued both VitaSound for non-payment of
    the loan and the individual appellants pursuant to their personal guarantee. The
    appellants did not contest liability. They counterclaimed, however, on the
    basis Honey Bee breached the Investment Agreement after the parties orally
    amended it. The appellants sought a set-off of Honey Bees liability against
    their liability under the Loan Agreement and personal guarantees. The trial
    judge rejected VitaSounds claims that the parties had amended the Investment
    Agreement orally, and that Honey Bee was in breach of it. Accordingly, he rejected
    VitaSounds argument that it was entitled to a set-off from Honey Bees
    supposed breach. The trial judge found that the Commercial Agreement had no
    bearing on the matters in issue under the Loan Agreement or Investment
    Agreement.

The fresh
    evidence

[3]

In support of the appeal, the appellants sought
    to introduce fresh evidence that they argue demonstrates that Honey Bee,
    contrary to its evidence at trial, sold units of an audio device in the Asian
    market. This was significant, the appellants argue, not only because it
    demonstrates that Honey Bee misled the court, but because it also established
    that Honey Bee triggered an obligation in the Commercial Agreement to make a payment
    to VitaSound of $500,000. Honey Bee therefore breached the Commercial
    Agreement, and the appellants argue that any damages for that breach should be
    set-off against their liability under the Loan Agreement.

[4]

Applying the
Palmer
test, we are unable
    to accept the fresh evidence. The first branch of the
Palmer
test
    requires that the evidence not have been discoverable at trial through the use
    of due diligence. We do not find the appellants have satisfied this branch of
    the test. The emails that the appellants argue document the sale of the audio
    device by Honey Bee were found by the appellants accidentally when reviewing the
    contents of the spam folder of a departed employees email. The emails were at
    all times under the control of VitaSound and discoverable. The fact that they
    only discovered them accidentally after the trial does not mean that they were
    not discoverable through the use of due diligence beforehand.

[5]

Neither do we find that the appellants satisfied
    the second branch of the
Palmer
test, which requires that the evidence
    be relevant, in the sense of bearing upon a decisive or potentially decisive
    issue. The evidence is tendered to establish a breach of the Commercial
    Agreement and support a claim for set-off. However, a breach of the Commercial
    Agreement was not pleaded by the appellants and accordingly was not addressed
    by the trial judge. The trial judge did find, however, that the Commercial
    Agreement was not relevant to the question of liability under the Loan
    Agreement.

[6]

In any event, there is a real question of
    whether the breach alleged would have any impact on the result. Even if there
    had been a sale as alleged, Honey Bees obligation to advance $500,000 to
    VitaSound was to be credited against royalties from future sales, at $1 per
    unit. There is no basis in the evidence (including the fresh evidence) to
    support the conclusion that there were more than a handful of sales, and that
    VitaSound would have been entitled to keep the entirety of the advance payment.

[7]

Finally, there are issues as to the reliability
    of the evidence. The fresh evidence consists of emails from a third party to
    persons at VitaSound, from whom no direct evidence has been elicited. The
    contents of the emails are hearsay. Accordingly, the fresh evidence motion is
    dismissed.

The appeal

[8]

The appellants essentially rest their appeal on
    two bases. First, they argue that the trial judge erred in not finding that Honey
    Bee breached the Commercial Agreement. As already indicated, performance of the
    Commercial Agreement was not a live issue at trial, and the trial judge made no
    error in that regard.

[9]

Second, the appellants argue that the trial
    judge erred in finding that Honey Bee did not breach the Investment Agreement.
    Essentially, the appellants argue that the trial judge ought to have accepted
    the appellants evidence that the Investment Agreement had been orally amended,
    such that VitaSound could choose to have Honey Bees investment obligations
    pursuant to the Investment Agreement be satisfied through the supply of audio
    units other than the PAE-300. The appellants argue that by failing to abide by
    the alleged amended terms, Honey Bee breached its obligations under the
    Investment Agreement. We do not agree. The trial judge gave cogent reasons explaining
    why he concluded that the Investment Agreement had not been amended, including
    why he preferred the evidence of Honey Bee. There is no basis on which we could
    interfere with his assessment of the evidence and conclusion.

Disposition

[10]

The motion to introduce fresh evidence and the
    appeal are both dismissed. The respondent is entitled to costs in the amount of
    $23,000 inclusive of disbursements and HST.

Paul
    Rouleau J.A.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Braga, 2020 ONCA 645

DATE: 20201027

DOCKET: M51687 (M49778)

Pepall J.A. (Motion Judge)

BETWEEN

Shu He Huang,
by her Litigation Guardian, the Public Guardian and Trustee and Jie
    Wei Pan

Plaintiff (Appellant)

Moving Party

and

Ancieto M. Braga

Defendant (Respondent)

Responding Party

Shu He Huang, acting in person

Olivia Holzapfel, for the responding
    party, the Public Guardian and Trustee

Alan L. Rachlin, for the responding
    party, Ancieto M. Braga

Robert H. Rogers, for the responding
    party, Aviva Insurance Company of Canada

Tony Antoniou, for the responding party,
    Lawrence Fine and Jewell Law

Heard: August 21, 2020 by video conference

REASONS FOR DECISION

Introduction

[1]

On April 2, 2019, Rouleau J.A. made an order pursuant to r.37.16 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 prohibiting
    the moving party, Shu He Huang, from bringing any further motions or appeals in
    this court in actions 02-CV-223298CM3, 06-CV-316408PD1, and CV-13-483972 without
    leave of a judge of this court, save for any review of his order. The moving
    party is a party under disability.

[2]

Before me, the moving party seeks leave to appeal orders made by
    Chalmers J. under r. 7.08 of the
Rules of Civil Procedure
.
    Justice Chalmers approved the settlement of these three actions for $1 million to
    be paid by the respondents in the moving partys favour and granted judgment in
    accordance with Minutes of Settlement.

[3]

The moving partys litigation guardian, the Public Guardian and Trustee
    (PGT), who was appointed on October 11, 2016, does not support her requested
    relief.

Background Facts

[4]

The moving party was in a motor vehicle accident that occurred on
    January 24, 2000, and as a result, she commenced three actions in 2002, 2006,
    and 2013 respectively.
[1]
The conduct of the litigation spanned many years, and the moving party was
    represented by at least five different lawyers. The three actions were ordered
    to be tried together. Numerous proceedings, pre-trial conferences, and trial
    management conferences took place. A trial date of October 3, 2016 was set peremptory
    to the moving party. The trial was to proceed before a judge and a jury and was
    scheduled to take four weeks.

[5]

On September 23, 2016, a Certified Capacity Assessor concluded that the
    moving party lacked capacity to act for herself in the litigation. On October
    11, 2016, Archibald J. appointed the PGT as her litigation guardian pursuant to
    r. 7.04(1)(b) of the
Rules of Civil Procedure
.

[6]

The moving party brought six proceedings aimed at overturning the
    appointment of the PGT, including three in this court, but was consistently
    unsuccessful. The respondent, Ancieto M. Braga, eventually brought a motion
    under r. 37.16 seeking an order that the moving party be prohibited from
    bringing further motions or appeals without leave of this court. On April 2,
    2019, Rouleau J.A. ordered that the moving party be prohibited from bringing
    further motions or appeals in this court, absent leave. He observed that courts
    have stated that the moving partys multiple motions and appeals were
    frivolous, yet she continued to bring motions and appeals that could not
    possibly succeed. In addition, there were numerous unpaid cost awards. He
    concluded that the requirements of r. 37.16 had been met. Her numerous motions
    and appeals were abusive of the court's process and were unnecessarily adding
    to the costs of the proceedings.

Approval of the
    Settlement

[7]

Once appointed as the moving partys litigation guardian in the three
    actions, the PGT proceeded to retain outside counsel, Jasmine Daya, to act on
    its behalf as litigation guardian.

[8]

Based on Ms. Dayas advice, the PGT settled the three actions for $1
    million, subject to court approval. It was the PGTs view that the settlement
    was in the best interests of the moving party, a view supported by the presiding
    judge at the pre-trial and case conferences attended by the parties. The responding
    parties and the moving party, represented by the PGT, entered into Minutes of
    Settlement in June and July of 2019.

[9]

On February 11, 2020, Chalmers J. approved the proposed settlement
    pursuant to r. 7.08 of the
Rules of Civil Procedure
. In his endorsement,
    he noted that in the course of two days of case management, the defendants to
    the actions, with the assistance of Archibald J., put together a joint
    settlement offer that exceeded all previous offers to settle. He referred to
    Ms. Dayas sworn affidavit recommending the settlement and that of the PGT,
    both of which explained the basis for the settlement. He stated that the
    settlement reached was fair and reasonable, and given the various issues in the
    case, the recovery at trial would likely fall short of the proposed settlement.
    The settlement was approved, and judgments in accordance with the Minutes of
    Settlement granted on February 11, March 27, and May 28, 2020.

Moving Partys Leave Request

[10]

The
    moving party now seeks leave of this court so that she may seek to appeal the judgments
    of Chalmers J. that approved the settlement. The PGT objects as do the other
    respondents.

Analysis

[11]

There
    is no established test to be applied to motions for leave when the party
    seeking leave is subject to an order under r. 37.16. Rule 37.16 provides:

37.16
On motion by any party, a judge or
    master may by order prohibit another party from making further motions in the
    proceeding without leave, where the judge or master on the hearing of the
    motion is satisfied that the other party is attempting to delay or add to the
    costs of the proceeding or otherwise abuse the process of the court by a
    multiplicity of frivolous or vexatious motions.

[12]

Accordingly,
    r. 37.16 enables a judge to order that for the purposes of a particular
    proceeding, a party may only make further motions with leave.

[13]

Guidance
    on an appropriate test may be sought from analogous, though not identical, provisions,
    such as r. 2.1.02(1) and, s. 140 of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43.  Rule 2.1.02(1) permits a court, on its
    own initiative, to stay or dismiss a proceeding if it appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court. Rule 2.03
    permits a court to dispense with compliance with a rule in the interest of
    justice. However, no leave requirement is incorporated into the Rule and as
    such, no assistance may be found in its language.

[14]

Section 140(1) of the

Courts of
    Justice Act
provides that where a judge of the Superior Court of
    Justice is satisfied, on application, that a person has persistently and
    without reasonable grounds,

(a)  instituted
    vexatious proceedings in any court; or

(b)  conducted
    a proceeding in any court in a vexatious manner, the judge may order that,

(c)  no
    further proceeding be instituted by the person in any court; or

(d)  a
    proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the
    Superior Court of Justice.

[15]

Section
    140(3) states that leave may be provided to a vexatious litigant so declared if
    the court is satisfied that the proceeding sought to be instituted or continued
    is not an abuse of process and there are reasonable grounds for the proceeding.

[16]

This
    provision helps inform an appropriate test for leave required under an order
    granted under r. 37.16. Consideration should first be given to the strength of
    the grounds advanced by the moving party. Put differently, are there reasonable
    grounds of appeal that merit granting the leave requested?  Second, the context
    of the r. 37.16 order itself should be considered.  Is the substance of the
    leave request a continuation of the frivolous and vexatious or abusive process
    that had generated the r. 37.16 order in the first place? The r. 37.16 order is
    of course not a bar, but as stated in
Evans v. Snieg
,
    2019 ONSC 7270, at para. 30, such an order should not be lightly disregarded
    or blithely treated.  Lastly, the overriding consideration is whether the granting
    or refusal of leave is in the interests of justice.

[17]

It
    may be that sometimes these three prongs overlap. Indeed, the motion before me
    is such a case. For the following reasons, I conclude that leave should not be
    granted in this case.

[18]

Under
    r. 7.01(1), unless the court orders or a statute provides otherwise, a
    proceeding shall be commenced, continued, or defended on behalf of a party
    under disability by a litigation guardian.

[19]

In
Ki Ho Kim v. 260 Wellesley Residences Inc.
, 2017 ONSC
    2985, Firestone J. (as he then was) held, at para. 16, that the party who was under
    disability in that case had no standing independent of his litigation guardian,
    the PGT, to continue the proceeding in issue. This included the bringing of any
    motions independent of the litigation guardian. This decision was upheld on
    appeal to the Divisional Court:
Kim v. Esplanade 75 Inc.
,
    2017 ONSC 4759 (Div. Ct.).

[20]

The litigation guardian is the decision-maker for the party under
    disability for the purposes of the litigation:
Kavuru
    (Litigation Guardian of) v. Heselden
, 2014 ONSC 6718, 328 O.A.C.
    399 (Div. Ct.), at para. 11. In
Kavuru
, Nordheimer
    J. (as he then was) wrote that while it was within the discretion of the motion
    judge hearing the settlement approval motion to consider the position of the
    party under disability, such party no longer had the right, that he would otherwise
    have had, to dictate the course of the litigation: at para. 15. This is
    consistent with the position adopted by the PGT before me.

[21]

Applying
    these principles to this case, the PGT continues to be the litigation guardian
    of the moving party for the purposes of the three actions. As such, the moving
    party is unable to manage the actions and their settlement. That is the
    responsibility of the PGT in its capacity as the litigation guardian of a party
    under disability. As mentioned, the PGT does not wish to appeal or challenge
    the approval judgments. Authority to settle the actions lay with the PGT, not
    the moving party. The same is true with respect to the moving partys wish to
    appeal the judgments approving the settlement.

[22]

Quite
    apart from that reality, the grounds advanced by the moving party in support of
    her motion lack substance. The moving party complains that Ms. Daya made
    factual errors that were accepted by Chalmers J.
Evidence of
    any alleged errors is lacking in the materials filed by the moving party.

[23]

The moving party also asserts that Ms. Daya does not belong to
    the PGT Counsel list [and] she was not the plaintiff counsel either. However, Ms.
    Daya did not have to be on any PGT counsel list; it was open to the PGT to
    retain Ms. Daya to act as counsel for the PGT in its capacity as litigation
    guardian of the moving party.
Sections 2(4), 3, and 10.1(3) of
    the
Public Guardian and Trustee Act
, R.S.O. 1990, c. P.51 relied upon
    by the moving party are inapplicable.

[24]

The
    settlement was the product of the recommendation of counsel hired by the PGT,
    reflected a resolution that was facilitated by Archibald J., and was considered
    and approved by Chalmers J. as required by the provisions of r. 7 of the
Rules of Civil Procedure
. The moving party does not have
    reasonable grounds that merit granting leave and any continuation of these
    proceedings would be abusive in nature.  Rouleau J.A. considered that in the
    past, the moving partys motions and appeals were abusive and frivolous. The
    actions arose from an accident that occurred more than 20 years ago, the
    settlement was finalized by the PGT on the moving partys behalf, and the
    parties are entitled to finality.

[25]

The absence of reasonable grounds, the context, and the interests
    of justice all dictate that these proceedings must draw to a close. For these
    reasons, the motion is dismissed. I decline to make any order as to costs.

S.E. Pepall
    J.A.

[1]

The other plaintiff is the moving partys mother, who died
    in 2011.


COURT OF APPEAL FOR ONTARIO

CITATION: Huma v. Mississauga Hospital, 2020
    ONCA 644

DATE: 20201016

DOCKET: C67510

Rouleau, Miller and Zarnett
    JJ.A.

BETWEEN

Ioan Huma,
    Elena Huma and Cristine Huma

Plaintiffs
(Appellants)

and

Mississauga Hospital and
    Queensway Health Centre (Trillium Health Partners), Etobicoke General Hospital
    (William Osler Health System), Dr. Gregory Sue-A-Quan, Dr. Alan L. Shievitz,
    Dr. Derek Pereira, Dr. Dana Wilson, Dr. Robert J. McBroom, Dr. Mahin Baqi, Dr. Krystyna
    Ostrowska, Dr. Sumontra Chakrabarti, Dr. Ilse Lange-Mechelen, Dr.
    Chikkahanumaiah Devaraj, Dr. Melanie Spring, Dr. Bhavpreet Dham, Dr. Eduard
    Bercovici, Dr. Eric George Duncan, and John and Jane Doe (representing a number
    of physicians, health care professionals and/or hospital employees involved in
    the care and treatment of Ioan Huma at Queensway Health Centre (Trillium Health
    Partners), Mississauga Hospital and Etobicoke General Hospital (William Osler
    Health System) from June 14, 2014 to September 30, 2014

Defendants
(Respondents)

Ronald P. Bohm and David Scott Lee, for
    the appellants

Chris Kinnear Hunter, for the
    respondent physicians

Henry Ngan and Ben Shakinovsky, for the
    respondent hospitals

Heard: in writing

On
    appeal from the order of Justice Lorne Sossin of the Superior Court of Justice,
    dated September 3, 2019, with reasons reported at 2019 ONSC 5115.

REASONS FOR DECISION

INTRODUCTION

[1]

The appellants appeal an order granting the respondents
    motion to enforce a settlement under r. 49.09 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. For the reasons that follow, we dismiss
    the appeal. The motion judge did not err in finding a legally binding
    settlement agreement, or in refusing to exercise his discretion against its
    enforcement.

BACKGROUND

[2]

In June 2016, the appellants, Ioan Huma, Elena
    Huma, and Cristine Huma, commenced a medical malpractice action against
    fourteen physicians and two hospitals. The appellants alleged that as a result
    of professional wrongdoing by the respondents, including misdiagnosis and lack
    of timely and proper treatment, Ioan Huma suffered significant injuries
    including the loss of lower limb function and other impairments. Substantial damages
    were claimed on behalf of Ioan Huma. Elena Huma (Ioan Humas spouse) and
    Cristine Huma (his daughter) advanced claims under the
Family Law Act
,
    R.S.O. 1990, c. F.3.

[3]

Although the appellants had legal assistance in
    preparing their statement of claim, the lawyer who provided that assistance
    would not go on the record. The statement of claim indicated that the
    appellants were self-represented.

[4]

In April 2017, the respondent hospitals
    delivered a statement of defence and crossclaim. In March 2018, the respondent
    physicians delivered a statement of defence and crossclaim.

[5]

By the spring of 2018, the lawyer who had been
    assisting the appellants ceased to do so. By that time, counsel for the
    respondents had made several inquiries of the appellants as to their intentions
    to pursue the matter which had gone unanswered.

[6]

On May 6, 2018, Elena Huma contacted counsel for
    the respondent physicians and asked for time for the appellants to consider
    their options. The next day, counsel for the respondent physicians advised Ms.
    Huma that, among other things, he would be moving to obtain a court ordered
    timetable to govern the action. He also asked if the appellants were prepared
    to dismiss the action on a without costs basis and stated that his clients
    would likely agree to a without costs dismissal in exchange for a release.

[7]

On May 18, 2018, Elena Huma composed and sent an
    email to counsel for the physicians and counsel for the hospitals (the May 18
    Email). It read as follows:

Dear Mr. MacLeod and Mr. Morris,

We are sending this email to you to inform you
    that we decided to dismiss this action (court file CV-16-554699), against all
    defendant doctors and hospitals, on a without costs basis.

We are sending a letter to both your offices
    with our signatures to state the above.

Please send us confirmation that this case
    will be dismissed without any cost to us, and send us the court form. If we
    need to make any further steps to complete this matter, please let us know.

Sincerely,

Ioan Huma

Elena Huma

Cristine Huma

[8]

Counsel for the respondent physicians replied by
    email the same day confirming that his clients agreed to the dismissal without
    costs in exchange for releases from you. The email indicated that the
    documentation for signature would be forwarded. On May 22, 2018, counsel for
    the hospitals sent an email to the appellants, also confirming agreement to the
    dismissal without costs in exchange for a release, and providing a proposed
    form of release in favour of the hospitals. On May 24, 2018, counsel for the physicians
    sent the appellants a form of release in favour of the physicians, and a
    consent and draft order to dismiss the action without costs, with a request
    that they be signed and returned.

[9]

Ultimately, the appellants refused to proceed
    with the settlement. They consulted with and retained counsel and indicated
    that they wished to proceed with the action. The respondents then moved, under
    r. 49.09 of the
Rules of Civil Procedure
, to enforce the settlement.

THE MOTION JUDGES DECISION

[10]

The parties do not quarrel with the motion judges
    overall approach to the r. 49.09 motion, which was to consider two questions: (i)
    whether a binding agreement to settle was reached, and (ii) whether he should
    nonetheless refuse to enforce the settlement.

[11]

On the first question, the motion judge found
    that, by the May 18 Email and the surrounding correspondence, the parties had
    reached a binding agreement on the essential terms of a settlement, namely,
    that the action would be dismissed and that there would be no costs. To the
    extent that the releases proffered by the respondents introduced additional
    terms, such as confidentiality and an acknowledgment or waiver of independent
    legal advice, these were not essential terms; they were simply matters of
    implementation that did not form part of the settlement.

[12]

On the second question, the motion judge recognized
    that he had a discretion to refuse to enforce the settlement, but applying the
    test in
Milios v. Zagas
(1998), 38 O.R. (3d) 218 (C.A.), he declined
    to do so. He found that the settlement was not unconscionable.

THE GROUNDS OF APPEAL

[13]

On appeal, the appellants advance two basic
    arguments.

[14]

First, they argue that the motion judge erred in
    finding an enforceable agreement to settle, in light of the evidence of Elena
    Huma that she sent the May 18 Email without authority from the other
    appellants. They argue that the motion judge should have accepted that Elena
    Huma believed she was only taking an exploratory step toward settlement subject
    to the other appellants approval, which was not given. Accordingly, they say
    that the requisite intention to create a legally binding contract was absent.
    The appellants also refer to the inclusion, in the releases, of terms that had
    not been discussed as a further indication that no binding agreement had been
    reached.

[15]

Second, the appellants argue that the motion
    judge erred by not exercising his discretion, in the interests of justice, to decline
    to enforce the settlement. They maintain that he failed to consider important
    factors in his unconscionability analysis, such as the relative prejudice to
    the parties; that the appellants were self-represented at the relevant time; that
    Ioan Huma did not authorize the settlement; and that the action was not shown
    to be without merit. It would be grossly unfair, and thus unconscionable, to
    hold them to the terms of the settlement.

ANALYSIS

[16]

We do not accept the appellants arguments.

[17]

On the question of whether a binding settlement agreement
    was reached, the unexpressed views of Elena Humathat she thought she was
    taking an exploratory stepare properly ignored. The conduct of the parties,
    including the language they used, is viewed objectively in order to determine
    whether a contract has been made
:
Olivieri v. Sherman
, 2007
    ONCA 491, 86 O.R. (3d) 778, at para. 44.

[18]

The motion judge considered whether the words
    used in the emails, viewed objectively, manifested agreement on the essential
    terms of a settlement, as opposed to a situation where the parties were engaged
    in continuing negotiation. The May 18 Email proposed two essential but
    straightforward terms of settlementthe action was to be dismissed, and no
    costs were to be sought. The respondents accepted those terms.

[19]

Although the respondents, in accepting, each introduced
    a request for a release, that was not, in and of itself, the introduction of a new
    term inconsistent with the existence of a settlement agreement. Settlement
    implies a promise to furnish a release unless there is a contractual agreement
    to the contrary
: Hodaie v. RBC Dominion Securities
,

2011 ONSC
    6881, at para. 18, affd 2012 ONCA 796; see also

Kuo v. Kuo
,
    2017 BCCA 245, at para. 38.

[20]

Where a settlement has been agreed to, the
    implied obligation to furnish a release is to provide one that does not go
    beyond the terms to which the parties have agreed:
Hodaie
, at para.
    19. The releases proffered by the respondents each introduced terms beyond what
    would be strictly necessary to end the claims in the action on a without costs
    basis, which was the essence of the settlement. The hospitals proposed release
    included an acknowledgment or waiver of independent legal advice and an
    undertaking to keep the terms of the settlement confidential. The physicians proposed
    release also included a term of confidentiality and extended not only to the
    claims in the action, but to all claims up to the time of the release.

[21]

Nevertheless, the proffering of overly broad
    releases does not negate the existence of a settlement, where there is no
    evidence that the settlement agreement was conditional on the respondents
    obtaining a release with those and only those proposed provisions:
Hodaie
,
    at para. 18. Nor does a party proffering an overly broad release repudiate an
    existing settlement unless, after discussion, the party  refuses to proceed
    without it being signed:
Kuo
, at para. 41.

[22]

In this case, the motion judge concluded that the
    overly broad releases were not part of the parties settlement. The agreement
    on the essential termsdismissal of the action without costsremained binding.

[23]

As for the appellants argument that no
    contract was made because Elena Huma lacked authority from the other
    appellants, we interpret the motion judges reasons to mean that he rejected
    the evidence of Ms. Huma that she sent the May 18 Email without such authority.
    He stated:

Finally, the plaintiffs argued that it would
    be contrary to the interests of justice to enforce the settlement agreement.
    loan Huma is the injured party, having lost most of the functioning in his
    legs, and based on Elena Huma's evidence, never agreed to the settlement, nor
    was consulted. This claim conflicts with the email of May 18, 2018, which is
    signed by all three plaintiffs, stating
We
are sending this email to
    you to inform you that
we
decided to dismiss this action. (Emphasis
    added.)

Without evidence from loan Huma himself, and
    without other evidence in the record corroborating that Elena Huma had no
    authority to speak for the other plaintiffs, I am not prepared to find that the
    settlement should not be enforced as unjust.

[24]

Although located in the portion of his reasons
    dealing with whether he would exercise his discretion  not to enforce the
    settlement, the motion judges rejection of the evidence that Elena Huma sent
    the May 18 Email without authority is nonetheless dispositive on the issue of
    whether the settlement was made without authority. In light of the form of the
    May 18 Emailostensibly sent on behalf of all the appellantsand the absence of
    any evidence from the other appellants that they had not authorized that email,
    there was a basis in the evidence for the motion judges finding, and it is
    entitled to deference on appeal.

[25]

The court has an undoubted discretion to refuse
    to enforce a settlement that is unconscionable. Here the motion judge
    recognized the discretion, cited the correct test, concluded on the evidence that
    the settlement was not unconscionable and refused to exercise the discretion. He
    found that the settlement could not be said to be grossly unfair or improvident,
    given the absence of evidence of the likelihood that the appellants action
    might succeed. Although the appellants were self-represented, he found that Elena
    Huma was sophisticated and there was no evidence the appellants had been
    pressured into agreeing to settle. He rejected the evidence that the settlement
    had been agreed to without the authority of all the appellants.

[26]

The motion judges exercise of discretion and
    the fact-finding that underlay it are entitled to deference on appeal. We see
    no error in the motion judges approach to this issue that would justify
    appellate intervention.

CONCLUSION

[27]

The appeal is dismissed.

[28]

If the respondents seek costs of the appeal,
    they may file written submissions, not exceeding two pages each, within ten
    days of the release of these reasons. The appellants may respond, by written
    submissions not exceeding four pages, within ten days of receipt of the
    respondents submissions. There shall be no reply submissions.

Paul
    Rouleau J.A.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2020 ONCA 670

DATE: 20201023

DOCKET: C68002

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF:  Cindy Kelly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Hatim Kheir, for the respondent,
    Attorney General of Ontario

Julie A. Zamprogna Ballès, for the
    respondent, Southwest Centre for Forensic Mental Health Care.

Heard: October 5, 2020.

REASONS FOR DECISION

[1]

On November 14, 2019, the appellant was found
    not criminally responsible (NCR) on multiple charges: two counts of uttering
    a threat to burn, destroy, or damage property, two counts of failure to comply
    with probation order, and three counts of failure to comply with recognizance.
    She was remanded to the Ontario Review Board (ORB) for disposition. The
    hearing took place on December 12, 2019, following which a detention order was
    made for reasons delivered on January 21, 2020.

[2]

The charges arose as a result of two original
    incidents in June 2018, when the appellant attended her former family home on
    Olive Avenue that she had sold. She threatened the owner that she would burn
    down the property. Later in June she returned and again threatened to burn down
    the property. She was arrested for failing to comply with recognizances,
    failing to comply with probation, and uttering threats to damage property. She
    attended the Olive Avenue property again on September 25, 2019, where she was
    found camped out on the yard. She was arrested for breach of recognizance. She
    was found NCR in respect of all of these charges.

[3]

The hospital report provided details of the
    appellants personal history. At the time of the ORB hearing, she was 48 years
    old, married for 30 years but now separated from her husband who is homeless.
    She had two sons, but one died of a drug overdose in April 2019. She has a
    lengthy criminal record running from 1992 to 2005, and from 2017 to 2019. The
    convictions were for impaired driving, narcotics, arson and breaches of court
    orders. She has had a number of hospital admissions to mental health facilities
    where she evidenced delusions and substance abuse.

[4]

Dr. Prakash, the appellants attending
    psychiatrist, testified at the hearing. He noted that since she had only been
    in the hospital for less than one month, he was just becoming familiar with
    her. With that caveat, he testified that she showed symptoms of Schizoaffective
    Disorder in her guardedness and suspicion as well as mood lability. Her history
    included significant delusional beliefs requiring hospital admissions. She was
    admitted to Bluewater Heath in Sarnia under Mental Health Act, R.S.O. 1990, c.
    M.7 forms, but left against medical advice with no follow-up treatment. Since
    being in Southwest Centre for Forensic Mental Health Care, a very structured
    unit, she had had no behavioural issues, no seclusion and no violent behaviour.
    He stated that her risk was not based on antisocial traits, as she had a
    pro-social history of running a landscape company while married with children.

[5]

While polite, the appellant was not co-operative
    with her assessment. When probed, her symptoms of paranoia, guardedness, mood
    lability, agitation and anger came to the fore. She refused to give consent to
    the treatment team to contact her family for information. Dr. Prakash
    identified her lack of co-operation as a risk factor. He also identified her
    criminal behavioural history as a risk factor, with offences including assault,
    uttering threats, and failure to comply with court orders. He also connected her
    criminal behaviour to her substance abuse. She had a history of positive urine
    screens for crystal meth upon admission to hospital. He concluded that she
    remained vulnerable to substance abuse without supervision. She had also had
    multiple hospital admissions due to decompensation in her mental health due to
    crystal meth use. She lacked insight into her crystal meth use as well as poor
    insight into her need for ongoing psychiatric treatment. She also appeared to
    have limited insight into the index offences, denying they occurred or refusing
    to comment.

[6]

Dr. Prakash gave the opinion that the appellant
    remains a significant threat to the public based on: symptoms of psychotic
    based disorder, guardedness and suspiciousness towards others, some delusional
    thoughts regarding her former house with the likelihood that without
    supervision or monitoring she would return there; paranoid delusions and active
    psychotic symptoms from crystal meth; lack of insight regarding the offences,
    her illness, and need for treatment.

[7]

She has limited supports in the community, and
    even those could not be confirmed due to her lack of disclosure or consent to
    contact family. This contributes to the risk as she has nowhere to live, no
    supports or doctor. She also has polysubstance use history.

[8]

Dr. Prakash also explained why the appellant
    required a detention order. She has the potential to do well if she co-operates
    with the treatment team. However, without a detention order, she would likely
    not take medication, would relapse to substance abuse, her delusions would
    return and she would require hospitalization. His view was that a detention
    order was necessary and that a conditional discharge would not be sufficient to
    manage her risk in the community.

[9]

He referred to her recent history, the active
    risk factors, and his opinion that, if she decompensated, the Mental Health Act
    would not suffice to get her readmitted and treated, and she would not do so
    voluntarily. In his view, a conditional discharge would put her into the
    community with no follow up treatment. However, going forward, the plan would
    be to allow her privileges and liberties to see how she would tolerate them, to
    assess her for treatment, provide addiction treatment and to build trust with
    the team.

[10]

Dr. Prakash addressed the appellants desire to
    spend Christmas with her son in Sarnia. He recognized that this was important
    for her, but it would not be possible because of the difficulty in having staff
    transport her. However, her son could visit her and perhaps become an approved
    person. He also noted that if she reached the maximum liberties under the
    disposition order, an early Board would be called.

[11]

The Board also heard from the appellant. She
    said that if released, she would apply for housing through the Good Shephard in
    Lambton County. She talked about her car accident in 2016 when she fell asleep
    at the wheel after taking her older son to a treatment facility. She also told
    the Board that she had attended programming in 2019 on healthy relationships
    and substance abuse. She also advised that she had been hallucinating while in
    the Sarnia jail. She wanted to return to Sarnia to deal with ongoing issues in
    the community. She acknowledged her drug addiction and could not say if she
    would use illicit drugs if she were released.

[12]

The Board first found that the appellant was a
    significant threat to the safety of the public. That conclusion was based on
    the evidence of the appellants ongoing symptoms of her psychotic disorder,
    exacerbated by her drug addiction, together with her lack of insight and her
    limited personal supports. The Board also relied on the opinion expressed by
    Dr. Prakash that without a detention order in place, she would likely return to
    the use of substances that would exacerbate her mental illness and likely result
    in decompensation and behaviour similar to the index offences.

[13]

The Board agreed that the necessary and
    appropriate disposition was a detention order with the terms suggested by the
    hospital. The Board found that a conditional discharge had no air of reality at
    the time, because the appellant had no residence or community supports, she had
    a significant history of non-compliance, and she had shown by going AWOL that
    the Mental Health Act provisions were insufficient to manage her risk in the
    community.

[14]

In reaching its disposition, the Board referred
    to the safety of the public as the paramount consideration, the mental
    condition of the appellant, her reintegration into society and her other needs.

Issues

[15]

The appellant raises two bases on which she says
    the Boards decision was unreasonable and not supported by the evidence: 1) its
    finding that she poses a significant threat to the public; and 2) its failure
    to meaningfully consider a conditional discharge.

Analysis

Issue 1:
The finding that the appellant continues to pose a
    significant threat to the public.

[16]

The appellant says that she does not meet the
    test for a significant threat, which requires a significant risk of significant
    harm, and that [t]aken at its highest the evidence may support a low threat of
    physical harm and/or a high threat of low psychological harm. She submits that
    the Board fell into error by focussing on the concern that the appellant would
    use substances if discharged, and the hope that she would engage in treatment
    in the hospital and have a better life.

[17]

We do not agree.

[18]

The appellants major index offence of
    threatening to burn down her former and currently occupied home, if carried
    out, would cause very significant harm. The fact that the appellant has an
    arson conviction adds weight to the threats significance. The Board accepted
    the evidence of the treating psychiatrist that left on her own, the appellant
    would very likely revert to substance abuse, leading to mental decompensation
    and the risk of the same conduct as the index offences.

[19]

The appellant went to the house three times
    between June 2018 and September 2019 and threatened the owner.  She was found
    NCR in November 2019, and the hearing was held in December 2019 at a time when
    she had not yet received any treatment because of her lack of co-operation to
    receive treatment. These circumstances provided no basis to infer that the
    appellant no longer posed a significant threat to the safety of the public. The
    Boards decision, supported by the opinion of the treating psychiatrist and all
    the evidence, was reasonable.

[20]

We note that in its factum, the hospital
    submitted that counsel for the appellant at the hearing (not counsel on the
    appeal), while initially opposing a finding of significant threat, conceded the
    issue at the conclusion of the hearing and requested a conditional discharge.
    This was disputed by the appellant on appeal. As the reasons of the Board do
    not refer to such a concession, we decline to address the issue in these
    reasons.

Issue
    2:
Did the Board give
    meaningful consideration to ordering a conditional discharge as the least
    onerous disposition consistent with public safety?

[21]

The appellants position is that the Board erred
    by not giving effect to her evidence that she was prepared to engage in
    substance abuse programming and by failing to ask her to consent to such a term
    under s. 672.55. Her position is that she does not have a major mental disorder
    but only a substance abuse problem. She submits that in her evidence she
    explained the reason she did not want to talk about her recent traumas, and
    that explanation accounted for her guardedness and lability as symptoms of her
    alleged mental illness, leaving only her substance abuse as a risk factor. It
    follows that her substance abuse was manageable with therapy, counselling and
    treatment programs as an outpatient, coupled with a prohibition on substance
    use and random drug screening. She says the Board should have considered this
    option and crafted conditions for a conditional release that would safeguard
    the public.

[22]

We do not accept this submission.

[23]

It is contrary to the evidence of the treating
    psychiatrist whose evidence the Board was entitled to accept. While he was
    still coming to know the appellant after only a short time, he concluded that
    she evidenced symptoms of Schizoaffective Disorder and suffered from delusions.
    Because she showed these symptoms, he considered her failure to co-operate with
    the treatment team to be a risk factor. He testified that a conditional
    discharge had no air of reality in the appellants circumstances at the time.
    There were a number of reasons for this that the Board clearly articulated: the
    appellant had no place to reside and no community support to assist her or to
    get her help if needed, including for the effects of substance abuse; she has a
    history of non-compliance with court orders as well as leaving hospital when
    taken there under a form issued under the Mental Health Act. As a result, there
    was no basis for any confidence that the appellant could be managed in the
    community and that the safety of the public would be protected.

[24]

The Board accepted the conditions proposed by
    the hospital which included the possibility of taking the appellant to Lambton
    County to see her son, based on compassionate grounds, as well as a ladder of
    liberty privileges including entering Elgin County indirectly supervised.

Result

[25]

The Board made no error in the conclusions it
    reached and in the order it made, based on the four statutory criteria: safety
    of the public as the paramount consideration; the mental condition of the
    appellant; her re-integration into society and her other needs.

[26]

The appeal is dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Krukowski v. Aviva Insurance Company of Canada,
    2020 ONCA 631

DATE: 20201007

DOCKET: C67490

Juriansz, Hourigan and Thorburn JJ.A.

BETWEEN

Adam Krukowski, a party under disability
    by his

Litigation Guardian, Ewa Krukowski

Applicant (Respondent)

and

Aviva Insurance Company of Canada

Respondent

Nick de Koning, for the
    appellant, Deutschmann Law Professional Corporation

No one appearing for the respondent, Adam Krukowski

Heard: October 1, 2020 in writing

On appeal from the judgment of Justice C. Stephen
    Glithero of the Superior Court of Justice, dated June 10, 2019, with reasons
    reported at 2019 ONSC 3557.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant, Deutschmann Law Professional Corporation (Deutschmann) appeals
    the quantum of costs ordered in a settlement
of an action
brought on
    behalf of a person under disability pursuant to Rule 7.08 of the
Rules of
    Civil Procedure
, RRO 1990, Reg. 194.

[2]

The application judge approved the settlement but reduced the award for
    legal fees.

[3]

Deutschmann claims the application judge cited the correct legal test
    for consideration of legal fees in respect of a settlement on behalf of a
    person under disability, but failed to consider those factors and apply them to
    the facts at hand. Deutschmann submits the failure to consider all of the
    factors constitutes an error of law, to which the correctness standard applies.

II.

THE ISSUE

[4]

The only issue on this appeal is whether the application judge erred in
    law by failing to apply the correct legal test to the determination of whether
    legal costs of the accident benefits claim are reasonable.

III.

ANALYSIS AND CONCLUSION

Evidence Regarding the Plaintiffs Condition

[5]

On January 2014, Adam Krukowski, the plaintiff, had a serious snowmobile
    accident. He ran into a ditch, hit a culvert and was thrown from the
    snowmobile. He suffered a brain injury, right femur fracture and a fractured
    sternum.

[6]

The snowmobile was insured only for use on Mr. Krukowskis familys
    rural property and he was therefore operating a vehicle that was not insured. As
    such, he was not eligible for income replacement benefits or housekeeping and
    home maintenance benefits.

[7]

His accident benefits were limited to medical or rehabilitation and attendant
    care benefits.

[8]

On May 6, 2014, a health practitioner certified that Mr. Krukowskis
    physical and cognitive deficits would prevent him from returning to work.

[9]

On June 3, 2014, Mr. Krukowski was diagnosed by a neuropsychologist as
    having rather severe neurocognitive impairments relative to his severe
    traumatic brain injury. The neuropsychologist determined that Mr. Krukowski
    was unable to return to work and would require supervision once he returned
    home.

[10]

On
    November 17, 2014, one month after Mr. Deutschmann, the principal of
    Deutschmann, was retained, Mr. Krukowski was found to have suffered a
    catastrophic impairment. Mr. Krukowskis severe brain injury and related
    cognitive symptoms were found to require ongoing attendant care. Mr. Krukowski was
    also found to have serious difficulties with speech and language, ongoing
    cognitive and behavioural difficulties, and unable to manage his own financial
    affairs.

The Retainer Agreements

[11]

On October 10, 2014, Mr. Krukowskis sister, on his behalf,
    entered into a contingency fee retainer agreement (the first retainer
    agreement). It provided that counsel would receive 15% of any full or partial
    settlement reached with the accident benefits insurer, including costs and
    interest, disbursements and H.S.T. If no settlement was reached, no fees would
    be charged. Upon termination of the retainer, the fee would be $350 per hour
    for a partner, $200 per hour for an associate, and $100 per hour for a law
    clerk.

[12]

On December 11, 2017, the office of the Public Guardian and
    Trustee (PGT) advised that it was now the statutory guardian of Mr.
    Krukowskis property, pursuant to the
Substitute Decisions Act
, 1992,
    S.O. 1992, c. 30.

[13]

On
    March 15, 2018, a second contingent fee agreement was signed between
    Deutschmann and PGT acting as litigation guardian (the second retainer
    agreement). The second retainer agreement provided for a contingent fee of 15%
    on the amount recovered, exclusive of costs taxes and disbursements and H.S.T.
    It provided that Mr. Krukowski was entitled to any costs. It provided that if
    the retainer was terminated, fees would be calculated on the basis of $192 per
    hour for Mr. Deutschmann and $60 per hour for clerks.

[14]

On
    August 2, 2018, Mr. Krukowskis sister was appointed guardian of his property
    from that point on, and a third contingent fee agreement was signed in October
    2014 (the third retainer agreement). The terms of the third retainer
    agreement were identical to those in the first retainer agreement.

The Terms of Settlement

[15]

The
    proposed settlement before the application judge provides for a settlement
    figure of $1,200,000 by the insurer. Counsel was to receive a total of
    $205,691.91. The remaining $994,308.09 would be used to purchase a structure to
    provide for a non-indexed monthly income of $3,085.53 for life, with a
    guarantee to a secondary payee or beneficiary for 35 years. In addition, Mr.
    Krukowski would continue to receive ODSP in the amount of $1,151 for a combined
    monthly income of $4,236.53.

[16]

The
    sum payable for legal fees was calculated on the basis of the 15% contingent
    fee (being $180,000 and H.S.T. in the amount of $23,400), plus disbursements.

[17]

The
    application judge sought the opinion of the PGT in respect of the settlement and
    legal fees. PGT advised that in its opinion, the settlement was a favourable
    one for Mr. Krukowski as it generated an income which is expected to exceed his
    monthly expenses. PGT recommended that 10% of the settlement amount plus tax
    was appropriate for costs. This would amount to $135,600.

[18]

PGT
    advised that 15% of the remainder of the settlement be allocated for legal fees
    which would result in fees to counsel in the amount of $180,415.80 ($159,660
    plus H.S.T.). PGT took the position that this sum was reasonable in view of the
    work completed and results achieved.

[19]

Mr.
    Krukowskis sister agreed with the view expressed by PGT.

[20]

Mr.
    Deutschmann accepted the PGT response and agreed to reduce his fee to
    $180,415.80 with the amount created by the reduction in fees to be placed into
    the proposed structure.

Time Actually Spent by Legal Counsel

[21]

The
    value of the time spent by everyone at Deutschmann who worked on this file
    amounted to $18,743.99 and $2,291.91 was spent on disbursements. Time spent
    working on this file by everyone in the office was 115.6 hours of which 24.7
    hours were spent by Mr. Deutschmann, himself.

[22]

Mr.
    Deutschmanns legal fees were calculated on the basis of $350 per hour while
    working under the first and third retainer agreements, and $192 per hour while
    working under the second retainer agreement. Clerks time was docketed at $100
    per hour under the first and third retainer agreements and $60 per hour under
    the second retainer agreement.

Considerations to
    be Taken into Account in Arriving at Fair and

Reasonable
    Legal Costs

[23]

The
    fixing of costs is a discretionary exercise by the court. A fee agreement is
    not binding on a party under disability until it is approved by the court:
Henricks-Hunter
    v. 814888 Ontario Inc.
, 2012 ONCA 496, 294 OAC 333.

[24]

Court
    approval of settlements for persons under disability is founded on the need to
    protect those who cannot care for themselves. The court therefore has a
    responsibility to carefully consider the relevant materials, and to assess the
    fairness and reasonableness of the proposed fees to ensure that the settlement,
    including provision for legal costs, is in the best interests of the protected
    person for his or her benefit:
Wu (Estate) v. Zürich Insurance Company
(2006), 268 D.L.R. (4th) 670 (C.A.), leave to appeal refused, [2006] S.C.C.A.
    No. 289.

[25]

As
    noted by the application judge at para. 49 of his reasons, the factors to be
    considered when fixing costs to be paid to counsel for a party under a
    disability include:

(i)      the time expended by the solicitor;

(ii)      the legal complexity of the matters dealt with;

(iii)     the degree of responsibility assumed by the
    solicitor;

(iv)     the monetary value of the matters in issue;

(v)     the importance of the matters to the client;

(vi)     the degree of skill and competence demonstrated by the
    solicitor;

(vii)    the results achieved;

(viii)   the ability of the client to pay;

(ix)     the client's expectation of the amount of the fee;

(x)     the financial risk assumed by the solicitor of pursuing
    the action, including the risk of non-payment, the likelihood of success and
    the amount of the expected recovery; and

(xi)     the social objective of providing access to justice
    for injured parties.

Aywas v. Kirwan
, 2010 ONSC 2278, at para. 18,
    per Hackland J. and
Re Solicitor
, [1973] 1 O.R. 652 (C.A.).

[26]

The
    solicitor has the onus to satisfy the court that the contingent fee agreement
    is fair:
Raphael v. Lamb
(2002), 61 O.R. (3d) 417 (C.A.), at para 37.

Application of the Relevant Factors in this Case

[27]

The
    application judge agreed that the terms of settlement were fair and that were
    it not for the structured settlement proposed, medical/rehabilitation benefits
    would be exhausted well before the period of life expectancy, as with attendant
    care benefits, under the proposed settlement. He concluded that the
    settlement was adequate to meet Adams foreseeable needs.

[28]

The
    application judge also addressed the monetary value of the matter in issue and
    the importance of the settlement to Mr. Krukowski and his family. The
    application judge noted that the settlement would provide for Mr. Krukowskis
    present and future care costs:

Without a settlement, there is
    no guarantee that Aviva would continue to fund the various benefits or at the
    level now being paid.  The proposed settlement provides finality and security
    to Adam and his family caregivers as opposed to a future or greater
    uncertainty.

[29]

The
    application judge also found that the retainer agreement was obtained in a fair
    manner, it was in writing, it was clear, the terms were discussed with the
    litigation guardian, and they were freely understood.

[30]

He
    noted that there was no objection to the fees sought and carefully laid out the
    terms of the settlement such that the ability to pay was included.

[31]

The
    application judge referred to the degree of experience and expertise of the law
    firm. He noted that the are very experienced in this field and that 75% of
    their work involves motor vehicles and accident benefits. He added that he
    accepts Mr. Deutschmanns assertions that he has considerable experience in
    this field as do his clerks.

[32]

He
    also noted the time actually spent on the file including the time spent by Mr.
    Deutschmann.

[33]

The
    application judge noted however that:

(i)

Mr. Deutschmann conceded the legal issues were not complex;

(ii)

Accident benefits were already being paid by Aviva before Mr.
    Deutschmann was retained;

(iii)

The
    determination that Mr. Krukowski was catastrophically injured and thus entitled
    to a substantial settlement was received shortly after Mr. Deutschmann was
    retained;

(iv)

There
    was therefore was essentially no risk assumed by the law firm;

(v)

While the settlement was approved, it was simply acceptable; and

(vi)

The
    fees claimed were many multiples of the docketed time valued at counsels
    chosen rates.

[34]

Notwithstanding
    his assessment of all of the factors including the fact that there was little
    or no risk and the fees were many multiples of the fees docketed, he took into
    account the fact that the quality of time spent is not always measured by the
    time expended.

[35]

He
    therefore fixed fees to counsel in the amount of $60,000 plus disbursements and
    H.S.T. This represents 5% of the settlement amount and more than three times
    the docketed time invested in the file.

[36]

It
    is clear from the above that the application judge addressed and weighed all of
    the appropriate factors to be considered in deciding whether it would be fair
    and reasonable to approve the legal fees sought.

[37]

As
    such, we disagree with Mr. Deutschmanns assertion that the application judge
    did not address the factors to be taken into account in deciding whether legal
    fees are reasonable.

[38]

We
    see no error in the application judges articulation of the law or his
    application of the law to the facts in this case.

[39]

For
    these reasons, the appeal is dismissed.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.


COURT OF
    APPEAL FOR ONTARIO

CITATION:
Levin v. Levin, 2020 ONCA 675

DATE: 20201022

DOCKET: C66262

Watt, Trotter and Zarnett JJ.A.

BETWEEN

Alla Levin

Applicant (Respondent)

and

Nikolay
    Levin

Respondent (Appellant)

Peter I. Waldmann,
    for the appellant

Ryan M. Kniznik,
    for the respondent

Heard: in writing

On appeal from the order entered on November 14, 2018 by
    Justice Mary E. Vallee of the Superior Court of Justice, with reasons reported
    at 2018 ONSC 6805, and from the costs order entered on February 08, 2019, with
    reasons reported at 2019 ONSC 932.

COSTS
    ENDORSEMENT

[1]

This court heard Mr. Levins
    appeal from the trial judges order with respect to spousal support, child
    support, net family property, and costs. Subject to rectifying some minor
    errors conceded by Ms. Levin, the appeal was dismissed:
Levin v. Levin
,
    2020 ONCA 604.

[2]

In written submissions, Ms.
    Levin requests costs on a partial indemnity basis in the amount of $13,585.00,
    inclusive of disbursements and taxes. She submits that Mr. Levins minimal
    success on appeal could have been achieved by returning to the trial judge to
    resolve mathematical errors, just as the trial judge had invited the parties to
    do:
Levin v. Levin
, 2018 ONSC 6805, at para. 257. On all contested issues, which
    were largely factual in nature, Mr. Levin was unsuccessful.
Nonetheless, Ms. Levin was put to considerable expense in
    responding to all the grounds of appeal.

[3]

Mr. Levin submits that a
    proportionate award of costs would be $10,000.00, inclusive of disbursements
    and taxes. In support of his submission, he relies on his modest success on
    appeal, as well as the negative impact of the COVID-19 pandemic on his income
    as a self-employed industrial electrician. However, Mr. Levin submitted no
    proof of any economic repercussions due to the pandemic.

[4]

Nonetheless, we are of the
    view that the amount of $12,000.00, inclusive of disbursements and taxes, is
    proportionate, especially in view of the fact that the appeal was heard in
    writing, requiring no attendance in court by the parties.

[5]

Accordingly, Mr. Levin shall
    pay costs to Ms. Levin in the amount of $12,000.00, inclusive, within 30 days
    of the release of this Costs Endorsement, with post-judgment interest:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 129.
Moreover, the costs of the appeal
    constitute a support order within the meaning of s. 1(1) of the
Family Responsibility and Support Arrears
    Enforcement Act
, 1996
, S.O. 1996, c. 31. Therefore, the costs
    are fully enforceable by the Family Responsibility Office.

David Watt J.A.

G.T. Trotter J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McAnuff (Re), 2020 ONCA 676

DATE: 20201027

DOCKET: C67309

Watt, Tulloch and Roberts JJ.A.

IN THE MATTER OF: Novar W. McAnuff

AN APPEAL UNDER PART XX.1 OF THE
CODE

Novar W. McAnuff, acting in person

Paul Calarco,
amicus curiae

Dena Bonnet, for the Attorney General of Ontario

Leisha Senko, for the Person in Charge of The
    Centre for Addiction and Mental Health

Heard: September 18, 2020 by videoconference

On appeal against the disposition of the Ontario Review
    Board, dated July 4, 2019, with reasons dated July 25, 2019 reported at [2019]
    O.R.B.D. No. 1798.

REASONS FOR DECISION

[1]

On January 17, 2011, as a result of a finding of not criminally
    responsible on three counts of assault, the appellant came under the
    jurisdiction of the Ontario Review Board. Since that time, apart from a brief
    period of community residency in 2013, he has been detained on various units at
    The Centre for Addiction and Mental Health (CAMH).

[2]

The appellant is currently subject to a disposition of the Board
    which detains him on the General Forensic Unit of CAMH subject to certain
    conditions, including residence in 24-hour supervised accommodation in the
    community, if approved by the person in charge at CAMH.

[3]

With the assistance of
amicus
, the appellant asked us to set aside the
    detention order to which he is now subject and order that he be discharged
    absolutely, or alternatively, conditionally. At the commencement of oral
    argument,
amicus

indicated that the appellant would not be pursuing submissions on a conditional
    discharge.

[4]

For the reasons that follow, the appeal is dismissed.

The Background Facts

[5]

The index offence took place one evening in early September 2010,
    in a neighbourhood where the appellant was known as a person who displayed apparent
    signs of mental illness.

[6]

The appellant approached two women on the street as they walked
    their dog. He lunged at the dog. One of the women swung her keys at the
    appellant. He grabbed her in response. As he was pushed away, the appellant
    began grabbing at the other woman's shirt. Both women fled.

[7]

About five minutes later, the appellant abruptly changed his
    direction of travel and approached another woman who was walking with her
    daughter. He grabbed the daughter around her waist. The mother dropped her
    belongings and started to hit the appellant with her umbrella. The appellant
    let go of the daughter. He then grabbed what the mother had dropped on the
    street and fled. Shortly thereafter, he was arrested by police.

The Mental Disorders

[8]

The appellant has been diagnosed as suffering from schizophrenia,
    substance disorders involving marijuana and crack cocaine, and a personality
    disorder with antisocial traits. He was first diagnosed with schizophrenia at
    age 17. He is now 47. His clinical risk factors include residual symptoms of
    schizophrenia involving religious, somatic, and grandiose delusions, as well as
    hallucinations. These symptoms are significantly exacerbated when he consumes
    marijuana and becomes irritable and aggressive.

[9]

Prior to the index offence, the appellant had a significant
    history of psychiatric care and hospitalization, as well as aggressive conduct
    towards and in the presence of others. He has a lengthy history of cannabis use
    and used cocaine for a few years in his 30s.

[10]

Throughout lengthy periods of supervision by the Review Board,
    the appellant has been a frequent and extensive user of marijuana. A constant
    feature of this use is post-use decompensation. In July 2018, he used a new
    designer drug known on the streets as spice. It is a highly toxic synthetic
    cannabinoid with a potency 85 times that of THC. The drug has been linked to
    multiple hospitalizations and deaths in New York and New Zealand. The appellants
    use was the first documented incident of spice" intoxication in Ontario.

[11]

About 10 days later, the appellant was involved in a further
    incident with spice. His condition required emergency medical assistance.
    Hospital staff were subjected to serious medical risks associated with
    secondhand exposure to the drug. After attending to the incident, several staff
    members felt unwell and one nurse required transfer to the Emergency
    Department. Decontamination of the affected area was also required.

The Decision of the Board

[12]

At the conclusion of the hearing under review, the Board was
    satisfied that the appellant continued to represent a significant threat to the
    safety of the public. The essence of the Boards reasoning is contained in
    three paragraphs of its decision:

29. The initial question for the board is whether Mr. McAnuff
    continues to represent a significant risk to the community. Counsel for the
    hospital and the Attorney General point to his record of physical and
    psychological violence prior to entering the forensic hospital system. They
    also contend that Mr. McAnuffs ongoing insistence that he has a right to
    consume cannabis renders him a significant threat to public safety. Consuming
    cannabis consistently causes him to become agitated, impatient and angry. They
    maintain that this mental state is a precursor to probable threats and/or acts
    of physical violence to members of the public.

30. The Board readily agrees that based on these grounds, Mr. McAnuff
    poses a significant risk to public safety. His criminal record and the index
    offence, while they lie almost a decade behind him, were substantial. The
    negative combination of his illness, his personality traits and the effect of
    cannabis on his conduct are undeniable. The likelihood of psychological
    violence to members of the public is particularly strong in light of past
    experience and the observable agitation that Mr. McAnuff continues to
    demonstrate when he is intoxicated. Mr. McAnuff also has virtually no supports
    in the community.

31. At the same time, it must be conceded that Mr. McAnuff has
    gone a long period without having committed any acts of violence. It is known
    for certain that he consumed cannabis only twice last year, yet neither
    incident was accompanied by violence. The hospital contends that this is largely
    due to the fact that he has been closely monitored and contained by his
    structured existence. This argument makes a good deal of sense. Without the
    hospital and ORB structures that [govern] him, the evidence supports a clear
    inference that Mr. McAnuff would revert to cannabis and cocaine use, cease
    using medication and decompensate. In these circumstances he would likely
    become as dangerous to public safety as he was at the time of the index offence.

The Arguments on Appeal

[13]

In this court, Mr. Calarco accepts that the significant threat
    threshold is met when the evidence demonstrates a risk of serious physical or
    psychological harm to members of the public resulting from conduct that is
    criminal in nature, but not necessarily violent. There must be not only a
    likelihood of the risk materializing, but also a likelihood of serious harm
    occurring.

[14]

Mr. Calarco says that the evidence adduced at the hearing does
    not support a finding that the appellant is a significant threat as that
    standard is defined in s. 672.5401 of the
Criminal Code
and by the governing authorities.
    Taken at its highest, he submits, the evidence shows a higher level of risk for
    some unknown form of aggressive behaviour at some future, unspecified time. But
    that falls short of what is required.

Discussion

[15]

In our view, the Boards conclusion on the issue of significant
    threat is neither unreasonable nor flawed by legal error.

[16]

A significant threat to the safety of the public is defined in
    s. 672.5401 as a risk of serious physical or psychological harm to members of
    the public  including any victim of or witness to the offence, or any person
    under the age of 18 years  resulting from conduct that is criminal in nature
    but not necessarily violent.. The threat must be significant both in the sense
    that there must be a real risk of physical or psychological harm, and in the
    sense that the harm must be serious:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 624, at para. 57.

[17]

Whether someone meets this threshold requires consideration of a
    constellation of factors, no one of which is dispositive: The presence or
    absence of a significant or recent history of violence; the likelihood of
    physical or psychological violence; lack of insight into the index offence and mental
    illness; the likelihood of discontinuing essential medication; and substance
    abuse and its sequelae of decompensation, psychosis, and unlawful conduct:
Mott (Re)
,
2019
    ONCA 560, 156 W.C.B. (2d) 44, at para. 10.

[18]

In this case, the experts describe the appellant as suffering
    from several disorders: Schizophrenia, Cannabis Use Disorder, Cocaine Use
    Disorder in remission, and Personality Disorder (unspecified) with antisocial
    traits. He lacks insight into his mental illnesses, which are longstanding and
    treatment resistant.

[19]

The appellant does not accept that he has ever been violent. He
    denies the index offence and previous threats to kill his mother in the face of
    irrefutable evidence to the contrary.

[20]

Risk assessments of the appellant reveal that he is nearly twice
    as likely to violently reoffend than the average offender with similar scores.
    In times of drug use, the risk of aggressive or violent behaviour is even more
    likely.

[21]

The appellants substance abuse is an integral part of his
    delusional beliefs. His treating psychiatrist testified that in absence of
    Board supervision, it is entirely predictable that the appellant would resume
    regular use of marijuana and possibly crack cocaine. Thereafter, in all
    likelihood, the appellant would discontinue treatment with antipsychotic
    medication. The appellant does not believe either that he needs his medication,
    or that anything negative would follow should he discontinue it. Decompensation
    into much more active symptoms of psychosis and a markedly increased risk of
    aggressive behaviour would follow.

[22]

From time to time, the appellant also uses spice, which poses
    serious medical risks not only to himself but to others, such as medical personnel,
    through secondhand exposure.

[23]

Unlike the appellant in
Wall (Re),
2017 ONCA 713, 417
    D.L.R. (4th) 124, the appellant lacks insight into his illnesses and has
    difficulty monitoring and recognizing his symptoms. There is clear evidence of
    continual substance abuse that leads inevitably to problematic conduct and
    instances of physical harm to others:
Abdikarim
(Re)
, 2017 ONCA 793, 142 W.C.B. (2d) 248, at para. 16.
Recently,
    this harm has been to medical personnel.

[24]

In our view, the cumulative force of the evidence adduced at the
    hearing satisfied the onerous standard of significant threat in s. 672.5401 of
    the
Criminal Code
.
    We are not persuaded either that the evidence falls short of what is required,
    or that the reasons of the Board betray any misunderstanding of the statutory
    test. The Boards disposition was the least onerous in the circumstances of
    this case.

disposition

[25]

For these reasons, the appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paleshi Motors Limited v. Woolwich
    (Township), 2020 ONCA 625

DATE: 20201005

DOCKET: C67333

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Paleshi Motors Limited

Appellant

and

The Corporation of the Township
    of Woolwich

Respondent

Shane Rayman, Conner Harris and Sarah
    Spitz, for the appellant

Peter A. Hertz, for the respondents

Heard: In writing

On appeal from the judgments of Justice G.E.
    Taylor of the Superior Court of Justice, dated July 22, 2019, with reasons
    reported at 2019 ONSC 4388.

REASONS FOR DECISION

I

[1]

In late 1979, or early 1980, the respondent, the
    Corporation of the Township of Woolwich (Woolwich), installed a watermain on
    property subsequently acquired by the appellant, Paleshi Motors Limited (the Paleshi
    property). The watermain has remained in place and in use since then.

[2]

In 2019, the present owners of Paleshi Motors
    brought an application seeking a declaration the watermain was illegally on
    their property and an order directing the removal of the watermain. At the same
    time, Woolwich brought an application seeking a declaration it had a
    prescriptive easement over the Paleshi property for the purposes of operating,
    maintaining, repairing and replacing the watermain.

[3]

The application judge dismissed Paleshi Motors
    application, and granted the prescriptive easement sought by Woolwich. Paleshi
    Motors appeals. The appeal proceeded in writing on consent. We dismiss the
    appeal and affirm the judgment below.

II

[4]

The Paleshi property consists of two adjacent lots
    known collectively as 39 Arthur Street North, Elmira. The lots are designated
    as Lots 20 and 21 on Plan 1301.

[5]

Lot 20 is accessed from Arthur Street North.
    Paleshi Motors acquired Lot 20 in July 1975 and operates an auto salvage yard
    on that property. Lot 21 lies immediately to the east of Lot 20. It is
    undeveloped and zoned open space. Paleshi Motors acquired Lot 21 in July 1981.

[6]

In late 1979 or early 1980, Woolwich installed a
    watermain just inside the eastern boundary of Lot 21. That watermain ran for
    some 200 feet along Lot 21. It was put in place to loop that part of Woolwichs
    water services. Looping improves the water quality for nearby residents using
    the water services, and provides a stronger and more reliable water flow to the
    fire department in the event of a fire in that area.

[7]

It is common ground the watermain was installed by
    Woolwich on property it did not own. Woolwich did not seek or obtain the
    permission of the owner of Lot 21, and did not attempt to enter into any
    easement agreement with the owner. The application judge found Woolwich was
    aware part of the watermain was being built on property not owned by Woolwich (para.
    26).

[8]

Paleshi Motors was acquired by new owners in
    2015. None of the owners of the Paleshi property objected to either the
    installation or maintenance of the watermain until Paleshi Motors, under its
    new owners, objected in 2017.

[9]

The Paleshi property was converted to the Land
    Titles Registry system on September 16, 2002. To establish a prescriptive
    easement, Woolwich had to show it met the required criteria for the 20 years
    between September 16, 1982 and September 16, 2002. There was no evidence from
    anyone who owned the Paleshi property during the 20-year period, or from anyone
    associated with any owner, as to the owners knowledge of the existence of the
    watermain, or any arrangement that existed between the owners and Woolwich with
    respect to the watermain. The application judge was left to draw inferences
    from the circumstantial evidence and the documents filed on title to Lot 21 and
    documents referred to in those documents.

III

[10]

The application judge correctly identified the
    prerequisites to the existence of a prescriptive easement (see paras. 19, 20).
    He also correctly self-instructed as to the policy considerations at play when
    considering prescriptive easement claims (para. 24).

[11]

There was no doubt Woolwichs use and enjoyment
    of the Paleshi property for the purposes of the watermain was continuous,
    uninterrupted and peaceful during the relevant 20-year period. Paleshi Motors
    claimed, however, Woolwich did not establish its use was open, in the sense
    that the owners of the Paleshi property knew, or could reasonably be expected
    to have known, of the existence of the watermain on their property during the
    20-year period. Not surprisingly, the application judge focused on this issue
    in his reasons.

[12]

The application judge ultimately concluded the owners
    of the Paleshi property during the relevant 20 years had acquiesced in the use
    of their property for the watermain (para. 33). In reaching that conclusion,
    the application judge drew inferences based on the public nature of the construction
    in 1970-80, the regular maintenance of the watermain after it was installed, and
    Paleshi Motors ownership of the immediately adjacent lot (Lot 20) when
    construction occurred and maintenance was carried out.

[13]

The application judge also referred to Paleshi
    Motors purchase of Lot 21 in 1981, a little more than a year after the installation
    of the watermain. In considering whether the owners of Paleshi Motors were
    aware of the watermain on their property when they purchased Lot 21, the application
    judge was entitled to conclude the owners exercised reasonable diligence as
    purchasers when buying Lot 21.

[14]

The application judge also pointed to a document
    prepared at Paleshi Motors request in respect of its proposed development of
    Lot 21 in 1986. That document contained a sketch showing the watermain running
    along the Paleshi property on Lot 21. We take this to be a finding Paleshi
    Motors had actual knowledge of the existence of the watermain on their property
    no later than 1986. There was no evidence the owners of Paleshi Motors took any
    action in 1986, leading to the reasonable inference the sketch showing the
    watermain on Lot 21 simply confirmed what the owners of Paleshi Motors already knew
     the watermain was located on Lot 21.

[15]

In concluding the owners of the Paleshi property
    acquiesced in the use of their property for the watermain, the application
    judge was not required to find the owners had actual knowledge of the existence
    of the watermain on their property throughout the relevant period. Actual
    knowledge, which the application judge found existed after 1986, or imputed
    knowledge will suffice. Knowledge of the existence of the watermain could be
    imputed to the owners of the Paleshi property if an ordinary landowner,
    diligent in the protection of her interests, would have had a reasonable
    opportunity of becoming aware of the watermain:
Garfinkel v. Kleinberg and
    Kleinberg
, [1955] O.R. 388 (C.A.).

[16]

In our view, there is nothing unreasonable,
    either in the inferences drawn by the application judge, or in his ultimate
    conclusion that the owners of the Paleshi property had knowledge, actual or
    imputed, of the existence of the watermain by 1982 and acquiesced in Woolwichs
    use of their property for that purpose over the next 20 years.

[17]

A finding that the owners acquiesced in the use
    of the property by Woolwich goes to the openness of that use. It does not
    necessarily determine whether the use was as of right, in the sense the
    owners had not permitted the use. The application judge found Paleshi Motors
    had failed to prove it had permitted Woolwich to use the property for the
    purposes of the watermain (para. 33). Paleshi Motors argues the application
    judge wrongly reversed the burden of proof. It submits Woolwich had to prove
    the absence of any permission by the owners of the Paleshi property. Woolwich
    counters with the submission the application judge did not reverse the burden
    of proof but, having found acquiescence by the Paleshi property owners, looked
    to the owners to point to evidence indicating that acquiescence was explained
    by permission having been given for the use of the property by Woolwich.

[18]

The application judges language tracks closely
    the language of this court in
Condos Castles Realty Inc. v. Janeve Corp.
,
2015 ONCA 466, at paras. 19-20, although
    the application judges reference to Paleshi Motors being required to prove
    the use was by way of permission could be read as going beyond the evidentiary
    burden referred to in
Condos Castles Realty Inc.
Paleshi Motors also submits
Condos
    Castles Realty Inc.
is distinguishable
    on its facts.

[19]

It is unnecessary to parse the language of the
    application judge and decide whether he was speaking of a persuasive or
    evidentiary burden in the impugned passage. Unlike many prescriptive easement
    cases, this case did not turn on the distinction between acquiescence and
    permission. There was no evidence from either Paleshi Motors or Woolwich that
    the owners of the Paleshi property had ever given Woolwich permission to
    install or maintain the watermain. The application judge found Woolwich acted
    unilaterally when it installed the watermain. On the application, Paleshi
    Motors adamantly denied any permission had ever been given. On the evidence
    adduced, it would have been speculation to conclude any owner of the Paleshi
    property may have permitted Woolwich to use the property for the purposes of
    the watermain. Even if the application judge misplaced the ultimate burden of
    proof, it had no possible effect on his finding Woolwich did not have
    permission to use the property.

[20]

Paleshi Motors also raises a novel legal
    argument. It submits the requirement the easement accommodate the dominant
    tenement must be given a special meaning when the dominant tenement is a public
    authority. Paleshi Motors argues that if a public authority, like Woolwich, is
    claiming the easement, Woolwich must demonstrate that the easement is
    necessary, in the sense there is no other way to acquire the interest in the
    land other than by way of an prescriptive easement. Given the land acquisition
    powers of most public authorities, this submission would bring an end to
    prescriptive easements in favour of entities like Woolwich. Paleshi Motors
    acknowledges as much in its supplementary factum, at para. 21:

Such an easement should never be necessary in
    the case of a public body with the power to compulsorily acquire the necessary
    easement while protecting private property rights.

[21]

Setting aside for the moment the argument based on Woolwichs
    status as a public body, Woolwich established the requirement that the easement
    accommodate the dominant tenement. The installation of the loop in the
    watermain improved water services for affected properties along the adjoining
    street. In doing so, it enhanced the enjoyment of that property by the owners
    and Woolwich:
Mihaylov v. 1165996 Ontario Inc.
, 2017 ONCA 116, at para. 81.
There is an obvious and direct
    connection between the improved water services and the enhanced enjoyment of
    the properties benefitting from those improvements.

[22]

We must also reject the submission that,
    because Woolwich is a public authority and could have expropriated the
    property, it should not be able, as a matter of law, to claim a prescriptive
    easement. Nothing in the case law offers any support for this proposition. The
    lay of the statutory land is also against Paleshi Motors. As counsel for Woolwich
    observed, to the extent the
Municipal Act
speaks to the issue, it
    offers support for the power of a municipality to acquire prescriptive easements
    in the same way as other legal entities: see
Municipal Act
, 2001 S.O.
    2001, ss. 6, 8, 9. Furthermore, the legislature can, and has, when it deems it
    appropriate, expressly foreclosed or limited the acquisition of property rights
    by prescription: see
Land Titles Act
, R.S.O. 1990, c. L.5, s. 51(2).
    The legislature has not acted to prevent entities like Woolwich from acquiring
    property rights by way of prescriptive easements.

[23]

Lastly, we do not accept Paleshi Motors
    argument that policy considerations all favour denying public bodies like
    Woolwich the ability to acquire prescriptive easements. There are policy reasons
    for distinguishing between public authorities and private landowners insofar as
    the acquisition of easements by prescription is concerned. However, the
    fundamental policy underlying the common laws recognition of prescriptive easements
    applies to all property owners. Prescriptive easements rest on a policy which
    holds, after the passage of a significant period of time, during which one
    owner has acquiesced in the use of its property by another owner, that other owner
    becomes entitled to rely on that acquiescence and conduct itself accordingly. Whether
    that policy should apply to all, some, or no public authorities, is a question for
    the legislature.

[24]

The appeal is dismissed.

[25]

Woolwich, as the successful party, will
    provide costs submissions in writing within 14 days. Those submissions should
    not exceed five pages. Paleshi Motors will provide its submissions in response
    within 14 days of receiving the respondents costs submissions. Those
    submissions shall not exceed five pages.

Doherty J.A.

Alexandra Hoy J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paleshi Motors Limited v. Woolwich
    (Township), 2020 ONCA 666

DATE: 20201020

DOCKET: C67333

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Paleshi Motors Limited

Appellant

and

The Corporation of the Township
    of Woolwich

Respondent

Shane Rayman, Conner Harris and Sarah
    Spitz, for the appellant

Peter A. Hertz, for the respondents

Heard: In writing

On appeal from the judgments of Justice G.E.
    Taylor of the Superior Court of Justice, dated July 22, 2019, with reasons
    reported at 2019 ONSC 4388.

COSTS ENDORSEMENT

[1]

Pursuant to the agreement reached by counsel, costs are awarded to
    the respondent in the amount of $20,000, inclusive of HST and disbursements.

Doherty
    J.A.

Alexandra
    Hoy J.A.

M. Jamal
    J.A.