COURT OF APPEAL FOR ONTARIO

CITATION: Kaynes v. BP p.l.c., 2021 ONCA 36

DATE: 20210120

DOCKET: C67782

Feldman, van Rensburg and
    Thorburn JJ.A.

BETWEEN

Peter Kaynes

Appellant (Plaintiff)

and

BP p.l.c.

Respondent (Defendant)

Eli Karp and Hadi Davarinia, for the
    appellant

Laura K. Fric, Kevin OBrien and Karin
    Sachar, for the respondent

Heard: July 16, 2020, by video conference

On appeal from the order of Justice Paul
    M. Perell of the Superior Court of Justice, dated November 8, 2019, with
    reasons reported at 2019 ONSC 6464.

Feldman J.A.:

[1]

The appellant has been attempting to bring a
    Canadian class action against the respondent BP p.l.c. (BP) on behalf of Canadian
    shareholders, based on securities misrepresentations BP made about the safety
    of its drilling operations in the Gulf of Mexico prior to the Deepwater Horizon
    explosion in 2010. The appellant has faced numerous procedural and
    jurisdictional roadblocks. This appeal is from an order that strikes out the
    latest amendment to his statement of claim and essentially ends the litigation.

[2]

The appellants 2019 amendment, which claims
    fraudulent misrepresentation for the first time, was struck out as statute-barred
    pursuant to the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B, on
    a motion by BP under r. 21.01(1)(a) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194. As a consequence, the appellant became disqualified as a
    representative plaintiff for the class, because the claims that remained extant
    and that were allowed to proceed covered a time period that did not include his
    claim.

[3]

This appeal raises two key issues: 1) what are
    the elements of a claim for fraudulent misrepresentation, within the meaning
    of the
Limitations Act,
that must be discoverable in order to commence
    the two-year limitation period? and 2) are there circumstances where an
    amendment to a statement of claim can be dismissed as statute-barred on a
    motion brought under r. 21.01(1)(a)?

[4]

For the reasons discussed below, I agree that it
    is plain and obvious that the appellants new claim for fraudulent
    misrepresentation is statute-barred and that it was appropriate to determine that
    issue on a r. 21.01(1)(a) motion, given the particular pleadings in this case.
    Accordingly, I would dismiss the appeal.

Factual Background and Judicial History

A.

The
Parties

[5]

BP is a U.K. petroleum company whose securities trade on international
    stock exchanges.

[6]

The appellant is a resident of Ontario. On or before August 12, 2008,
    while he was a resident of Alberta, he purchased BP shares over the New York
    Stock Exchange.

B.

The Proposed Class
    Action

[7]

This action emerged from BPs Deepwater Horizon explosion on April 20,
    2010. In broad terms, the appellant alleges that in its securities filings, BP
    made 14 misrepresentations about its operational safety and ability to respond
    to an oil disaster, which had the effect of artificially inflating its share
    price. Following the Deepwater Horizon explosion on April 20, 2010, BP publicly
    corrected these misrepresentations between April 21, 2010 and May 29, 2010,
    leading to a significant drop in BPs share price. In his current statement of
    claim, the appellant seeks to certify a class action on behalf of Canadian
    residents who acquired equity securities in BP on the secondary market from
    February 22, 2008 to April 23, 2010.

[8]

The appellant has filed five different statements of claim in Canada during
    the life of this action: a 2012 Alberta Claim, a 2012 Ontario Claim, a 2013
    Ontario Claim, a 2017 Ontario Claim and, most recently, a 2019 Ontario Claim.
    The important features of each Claim are discussed below.

C.

2012 Alberta Claim

[9]

On April 20, 2012, the first iteration of this proposed class action was
    filed in Alberta. The appellant was a member of the proposed class and was
    added as a plaintiff on May 25, 2012. That claim advanced two causes of action:
    (1) statutory secondary market misrepresentation under Albertas
Securities Act
and (2) common law negligent
    misrepresentation.

[10]

The 2012 Alberta Claim never got off the ground. Under Albertas
Rules
    of Court
, leave is required to serve a defendant outside of Canada. Leave
    was denied on two separate occasions,
September 18, 2012 and November
    14, 2012,
on the basis that the plaintiffs had failed to establish
    that the claim had a real and substantial connection to Alberta.

D.

2012 Ontario Claim

[11]

The
    appellant did not appeal the November 14, 2012 Alberta court decision denying leave
    for service
ex juris
. Instead, on November 15,
    2012, he commenced a similar action in Ontario that advanced two causes of
    action: (1) the statutory cause of action for secondary market
    misrepresentation provided for in Part XXIII.1, s. 138.3 of Ontarios
Securities Act
, R.S.O. 1990, c. S.5, and other equivalent
    provincial securities legislation and (2) common law negligent
    misrepresentation.

[12]

BP
    challenged Ontarios jurisdiction over this matter.

E.

2013 Ontario Claim

[13]

On
    August 9, 2013, while BPs jurisdiction challenge was pending, the appellant
    filed a fresh as amended statement of claim that effectively withdrew the
    common law negligent misrepresentation cause of action.

[14]

On
    October 9, 2013, BPs jurisdictional challenge was initially dismissed.
    However, on appeal, on August 14, 2014, this court in
Kaynes
    v. BP, PLC,
2014 ONCA 580, 122 O.R. (3d), leave to appeal refused,
    [2014] S.C.C.A. No. 452, allowed BPs appeal on the basis of
forum non conveniens

and stayed
    the claim of Canadians who had purchased BP shares on foreign exchanges. Only a
    truncated proposed class action on behalf of shareholders who had purchased
    their shares on the Toronto Stock Exchange was allowed to proceed.

F.

Related U.S.
    Litigation

[15]

While
    the Ontario jurisdiction battle was ongoing, other litigation against BP was
    progressing in the U.S. Most significantly for the purposes of this appeal, on
    September 4, 2014, the District Court for the Eastern District of Louisiana
    held that BP had acted with conscious disregard of known risks and was
    primarily responsible for the oil spill and guilty of gross negligence and
    willful misconduct.

[16]

BP
    appealed this decision. However, on July 2, 2015, BP reached an agreement with
    the U.S. Department of Justice and five U.S. states to resolve nearly all
    claims outstanding against BP from the oil spill. Significantly, this
    settlement resulted in BP abandoning its appeal of the September 4, 2014
    Louisiana District Court decision, which had found that BP engaged in willful
    misconduct.

G.

The Appellant Unsuccessfully Pursues Claims in the U.S.

[17]

In March 2015, after the Supreme Court of Canada
    denied the appellants application for leave to appeal this courts
    jurisdiction decision, he commenced a proposed class action against BP in the
    United States District Court for the Southern District of Texas. He asserted a
    claim for pre-explosion misrepresentations based on Ontarios
Securities
    Act
.

[18]

In response, BP moved to dismiss the appellants
    U.S. action. On September 25, 2015, the Texas Court granted BPs motion and
    dismissed the appellants action, in part because the claim was time-barred by
    the three-year limitation period under Ontarios
Securities Act.

[19]

The
    appellant did not appeal that decision. Instead, on February 26, 2016, he
    brought a motion to lift the stay of his Canadian proceedings in Ontario.

H.

Ontario Stay Lifted

[20]

On
    July 29, 2016, this court in
Kaynes v. BP, P.L.C.
,
    2016 ONCA 601, 133 O.R. (3d) 29, leave to appeal to S.C.C. refused, 36127
    (January 19, 2017), granted the motion to lift the stay, expressing no view on
    the limitations issues.

I.

2017
    Ontario Claim

[21]

On
    June 7, 2017, with the stay lifted, the appellant delivered his second fresh as
    amended statement of claim. The 2017 Claim advanced statutory misrepresentation
    claims solely on the basis of Ontarios
Securities Act
.
    While it added new misrepresentation allegations not referred to in the 2012 or
    2013 Claims, it did not revive the abandoned common law negligent misrepresentation
    cause of action. It also added for the first time, allegations that BP knew that
    its misrepresentations were false when it made them. For example, the 2017
    Claim reads in part (emphasis added throughout):

On May 8, 2007, BP
    released its 2006 Sustainability Report, in which it represented that the OMS
    was a comprehensive Process Safety system that covered all aspects of its
    operations, and that it would apply to all of its operations because the OMS
    was the foundation for a safe, effective, and high-performing operation.

BP and its executive
    officers, including its then-CEO,
knew
that these representations
    (i.e., the OMS Misrepresentation)
were false when made

because BP

had no intention of applying the OMS to all of its North American
    operations, and therefore the OMS did not cover all aspects of BP's operations.
    This representation supported BP's investment quality and share price.

On February 22, 2008, BP
    released its 2007 Annual Review, which is a core document. In the 2007 Annual
    Review, BP represented that with its new CEO, it was focused on three
    priorities: safety, people, and performance. BP further represented that it
    would implement the Process Safety recommendations from the Baker Report.

This core document
    contained the OMS Misrepresentation. At the time this statement was made, BP
    and its new CEO
knew
or ought to have known that BP did not
    intend to implement all of the Baker Reports recommendations, including that
    its integrated and comprehensive process safety management system (i.e. the
    OMS) would not be implemented at all of BPs U.S. operations.

On April 16, 2009, BP
    released its 2008 Sustainability Review and represented that the OMS was
    introduced and completed in the North America Gas, Gulf of Mexico, Columbia and
    the Endicott Field in Alaska.

This core document
    contained the OMS Misrepresentation. At the time it was made, BP
knew
that the OMS would not apply to every BP project site and that BP had migrated
    only one of seven sites in the Gulf of Mexico to the OMS.

This core document also
    contained the Omission. At the time the 2008 Sustainability Review, which
    touted BP's commitment to Process Safety, was released, BP and its management
were
    well aware
that a December 2008 internal strategy document had
    specifically identified numerous Process Safety priority gaps which increased
    the potential for and severity of Process Safety related incidents, but omitted
    to disclose this material fact.

On February 26, 2010, BP released its 2009
    Annual Review, in which it represented that its OMS provided a common framework
    for all of its operations and set out formatted procedures on how to manage
    risks at each BP site.

This core document contained the OMS
    Misrepresentation. At the time this representation was made, BP
knew
that the OMS did not apply to each of BPs sites, that the OMS did not provide
    a group-wide framework to identify and manage operational risks, that the OMS
    was not yet implemented in the Gulf of Mexico

At different times during the Class Period,
    material facts about BP's Process Safety at the Deepwater Horizon and Macondo
    Well, OMS, and OSRP emerged within BP and were made known to its senior
    executives. BP, however, negligently
or intentionally
omitted
    these material facts from its disclosure documents.

[22]

In
    response, BP challenged the timeliness of the statutory misrepresentation
    claims. On September 1, 2017, Perell J. in
Kaynes v. BP, P.L.C.
,
    2017 ONSC 5172, 74 B.L.R. (5th) 49, declared most of the misrepresentation
    claims statute-barred pursuant to s. 138.14 of Ontarios
Securities
    Act
. That section creates an events-based limitation period and
    provides that no action for a misrepresentation shall be commenced later than
    three years after the date on which the misrepresentation was made.

[23]

On
    April 5, 2018, this court in
Kaynes v. BP, P.L.C.
,
    2018 ONCA 337, 81 B.L.R. (5th) 6, dismissed the appeal from Perell J.s
    decision.

[24]

These
    decisions significantly reduced the scope of the proposed class action.
    Originally, the appellant had sought to advance statutory claims based on
    misrepresentations occurring from May 9, 2007 to April 23, 2010 (1,080 days).
    As a result of the s. 138.14 limitation decisions, however, the appellants proposed
    class period was reduced to February 27, 2010 to April 23, 2010 (55 days). Since
    the appellant acquired his BP shares on or before August 12, 2008, his personal
    statutory claims were all statute-barred.

J.

2019 Ontario
    Claim

[25]

The
    appellant delivered another amended statement of claim on September 4, 2019.
    This 2019 Claim is the first Claim to expressly advance a cause of action for
    fraudulent misrepresentation. The 2019 Claim repeats the 14 alleged
    misrepresentations made by BP between May 2007 and April 2010, but further
    pleads that some of the misrepresentations were made by BP with
knowledge of the falsities contained therein or with a reckless
    disregard to learning the accuracy of the representation
. It also added
    an Appendix A with particulars of the fraudulent misrepresentation allegations.

K.

BP
    Challenges the Timeliness of the Fraudulent Misrepresentation Claim

[26]

The
    order under appeal was made on BPs motion under r. 21.01(1)(a) for an order
    declaring the fraudulent misrepresentation claims statute-barred pursuant to
    the
Limitations Act
. In the alternative, BP
    requested that the pleadings be struck as an abuse of process. BP also sought
    to dismiss the balance of the appellants action because his claims fell
    outside the class period and no suitable representative plaintiff had been proposed.

[27]

The
    appellant resisted the motion on two bases. Procedurally, he argued that a
    limitations issue cannot be determined on a r. 21.01(1)(a) motion when
    discoverability is in issue. Substantively, he submitted that it was not plain
    and obvious that his claim was statute-barred.

L.

Motion Judges
    Decision

[28]

The
    motion judge granted BPs motion and dismissed the action. He held that all
    common law misrepresentation claims, whether negligent or fraudulent, were
    discovered when BP made corrective disclosures between March and June 2010. By
    that time, the appellant had discovered that he had suffered a loss due to an
    act of misrepresentation by BP and that a proceeding was an appropriate way to
    seek a remedy. Therefore, the Ontario action that was brought in November 2012
    was commenced too late to advance those claims.

[29]

Alternatively,
    the motion judge found that the appellant would have discovered BPs fraudulent
    intent in 2010 when Canadians and Americans in the U.S. were advancing claims
    based on
scienter
 that is, that BP had fraudulently
    misrepresented its securities to secondary market purchasers.
Scienter
was a necessary component of such claims and
    had to be asserted in order to bring them.
[1]
The motion judge concluded from the existence of such actions in the U.S.
    courts that [b]y 2010,
a reasonable person with the abilities
    and in the circumstances of Mr. Kaynes would have discovered that his cause of
    action in fraudulent misrepresentation had accrued and that having regard to
    the nature of the injury, loss or damage, a proceeding would be [] appropriate.

[30]

The
    motion judge rejected the appellants position that the fraudulent
    misrepresentation claim in the 2019 amended statement of claim was an alternative
    theory of liability arising from facts he had asserted in his prior pleadings,
    including the 2017 amended statement of claim, rather than a new cause of
    action. The motion judge found that
the essential material
    facts of the fraudulent misrepresentation claim were not pleaded in the earlier
    pleadings.

[31]

Finally,
    the motion judge was satisfied that in the circumstances of this case, it was
    appropriate to determine the limitation issue on a r. 21.01(1)(a) motion. He
    agreed with the appellant that only in the rarest of cases should a court rule
    on a limitation issue before a statement of defence is filed, since it is
    possible that the plaintiff could assert additional facts in the statement of
    claim or reply that would alter the conclusion that a limitation period had
    expired. Nevertheless, he held that he could determine the limitation issue in
    this case under the exception articulated by this court in
Beardsley v. Ontario
(2001), 57 O.R. (3d) 1 (C.A.) which
    held, at para. 21, that a limitation issue can be decided under r. 21.01(1)(a)
    before a statement of defence is filed where it is plain and obvious from a
    review of a statement of claim that no additional facts could be asserted that
    would alter the conclusion that a limitation period had expired.

Issues

[32]

This
    appeal raises four issues:

1.

Did the motion judge err by finding that the common law claims for
    negligent and fraudulent misrepresentation were discoverable by June 2010, once
    BP effectively acknowledged through its corrective disclosure that its statements
    contained misrepresentations? Or, is one of the factual elements of a claim for
    fraudulent misrepresentation that a plaintiff must have discovered under s.
    5(1)(a) of the
Limitations Act
, the fact that
    the defendant knew that the misrepresentation was false?

2.

Did the motion judge err by finding that because of allegations of
scienter

in the U.S.
    actions, it was plain and obvious that the appellant knew or ought reasonably
    to have known that he had a claim in fraudulent misrepresentation more than two
    years before the 2019 amendment?

3.

Did the motion judge err by failing to find that the effect of pleading
    in 2017 that BP knew its representations were false when it made them, was to make
    the appellants pleading of fraudulent misrepresentation in the 2019 amendment
    merely a request for a new remedy but not a new claim that was statute-barred?

4.

Did the motion judge err by proceeding on a motion under r. 21.01(1)(a)
    to decide a limitation issue?

[33]

As
    I will expand on below, I would answer these questions as follows:

1.

The motion
judge erred in his discovery analysis. A claim for fraudulent
    misrepresentation is only discovered under s. 5 of the
Limitations Act
if the plaintiff knows, or ought to have known, that the defendant knew that
    the misrepresentation was false.

2.

In the context of this motion, the motion judge improperly relied on
    U.S.
scienter

pleadings
    to make a factual finding about discoverability.

3.

The fraudulent misrepresentation claim in the 2019 amended statement of
    claim is a new, statute-barred claim.

4.

The motion judge did not err in deciding the limitations issue in this
    case under a r. 21.01(1)(a) motion because, due to the particular pleadings of
    this case, there were no disputed material facts at issue.

Analysis

A.

Standard of Review

[34]

As
    this is an appeal from an order on a r. 21.01(1)(a) motion, I agree with both
    parties positions that the standard of review requires this court to determine
    whether the motion judge was correct to find that the appellants claim for
    fraudulent misrepresentation in its 2019 amended statement of claim is statute-barred.

Issue 1:
    Is one of the elements of a claim for fraudulent misrepresentation that a
    plaintiff must have discovered under s. 5(1)(a) of the
Limitations
    Act
, the fact that the defendant knew that the misrepresentation
    was false?

I.

The Limitation Period Runs From the Date a Claim is Discovered

[35]

Under s. 4 of the
Limitations Act
, a
    proceeding may not be commenced more than two years after the claim is
    discovered. A claim is defined in s. 1 as:

a claim to remedy an injury, loss or damage
    that occurred as a result of an act or omission.

[36]

Under s. 5(1)(a) of the
Limitations Act,
a claim is discovered when the person first knew (or reasonably ought to have
    known) the following four elements: (i) the occurrence of the injury, loss or
    damage, (ii) that it was caused by or contributed to by an act or omission,
    (iii) that the act or omission was by the defendant, and (iv) based on the
    nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek a remedy. Under s. 2(1), the
Limitations Act
applies to
    claims pursued in court proceedings.

[37]

As a number of commentators and judges have
    discussed, unlike the former
Limitations Act
, R.S.O. 1990, c. L.15, the
    current
Limitations Act
does not refer to a cause of action as the
    starting point for the commencement of the limitation period. Rather, the commencement
    of the limitation period is based on the discoverability of a claim, and a
    claim is discovered when the plaintiff discovers the generic elements of a
    claim that are set out in s. 5(1)(a), or reasonably ought to have discovered
    them (s. 5(1)(b)): see, for example:
Hare v. Hare
(2006)
,
83
    O.R. (3d) 766 (C.A.), at para. 29,
per
Gillese J.A., and paras. 61,
    75,
per
Juriansz J.A., dissenting;
Placzek v. Green,
2009
    ONCA 83, 307 D.L.R. (4th) 441, at para. 25;
Apotex Inc. v. Nordion
    (Canada) Inc.
, 2019 ONCA 23, 431 D.L.R. (4th) 262, at paras. 84-86;

Daniel
    Zacks, Claims, Not Causes of Action: The Misapprehension of Limitations
    Principles (2018) 48 Adv. Q. 168; Stephen Cavanagh, Appropriate means in s.
    5(1)(a)(iv) of the
Limitations Act, 2002
 (2019) 39th Annual Civil
    Litigation Conference.

[38]

Nevertheless, numerous Ontario judgments that have
    considered when a claim is discovered under the
Limitations Act
have done
    so with reference to when the cause of action arose. See, for example:
Hamilton
    (City) v. Metcalfe & Mansfield Capital Corp.
, 2012 ONCA 156, 290
    O.A.C. 42, at paras. 14, 35;
Liu v. Wong
, 2016 ONCA 366, at paras. 7-8,
    leave to appeal refused, [2016] S.C.C.A. No. 264;
Colin v. Tan
, 2016
    ONSC 1187, 81 C.P.C. (7th) 130, at para. 63;
Unicorr Limited v. Minuk
    Construction & Engineering Limited
, 2016 ONSC 7350, 82 R.P.R. (5th)
    47, at para. 69, affd 2017 ONCA 757;
T.W. Marsh Well Drilling &
    Service Inc. v. Ashburn
, 2017 ONSC 2531 (Div. Ct.), at para. 14. Academic
    treatises have done the same. For example, in the authoritative text,
The
    Law of Limitations
, the authors treat claim as encompassing a cause of
    action: Justice Graeme Mew, Debra Rolph & Daniel Zacks,
The Law of
    Limitations
, 3rd ed. (Toronto: LexisNexis, 2016). At
§
3.2-3.3 they state:

Traditionally, a cause of action accrued and
    hence, a limitation period started to run, when all of the elements of a wrong
    existed, such that an action could be brought.

The commencement was expressed in terms of the
    accrual of the cause of action, but has recently been modified in many cases to
    instead reflect the time when a claim was first discovered by the person with
    the claim,
i.e.
, when a plaintiff became aware of the cause of action
and
remedy available.

[39]

Additionally, in the discussion of
    discoverability principles under s. 5 of the
Limitations Act
, at
§
3.107, the authors state: Another
    issue that arises is whether section 5 applies to all causes of action, or just
    to those governed by the basic limitation period.

[40]

I agree that the
Limitation Act
s
    introduction of discovery of a claim as the triggering mechanism for the
    commencement of the limitation period has not done away with any role for causes
    of action. As I will explain, under s. 5(1)(a)(ii) of the
Limitations Act
,
    one of the matters that is required for the discovery of a claim is: that
    the injury, loss or damage was caused by or contributed to by
an act or
    omission
 (emphasis added). Because a claim necessarily involves seeking a
    legal remedy in a court proceeding, the act or omission that must be discovered
    is one that will give rise to a legal remedy,
i.e.
, a cause of action.
    In the case of a fraudulent misrepresentation, the act or omission is a knowing
    misrepresentation.

II.

The Significance of the Removal of Cause of Action

[41]

The Supreme Court of Canada introduced the general
    applicability of discoverability for limitation purposes into the
    interpretation and application of limitation statutes in its decisions in
Kamloops
    (City) v. Nielsen,
[1984] 2 S.C.R. 2 and
Central & Eastern Trust
    Co. v. Rafuse
, [1986] 2 S.C.R. 147. The common law discoverability rule
    provided that a plaintiffs
cause of
    action would be discovered for the purposes of a limitation period when
the material facts on which it is based
    have been discovered or ought to have been discovered by the plaintiff by the
    exercise of reasonable diligence:
Rafuse
, at p. 224.
The
    rule was developed to avoid the injustice of precluding an action before a
    person is able to raise it:
Peixeiro v. Haberman
, [1997] 3 S.C.R. 549,
    at para. 36.
[2]

[42]

Ontarios new
Limitations Act
makes discoverability
    a statutory requirement. It incorporates discoverability into the date for
    commencement of the limitation period, but refers to the discoverability of a
    claim rather than a cause of action, based on the recommendation of the
    Limitations Act Consultation Group to the Attorney General contained in
Recommendations
    for a New Limitations Act
(Toronto: Ministry of the Attorney General of
    Ontario, 1991). The report explains the proposed change as follows, at p. 17:

The term claim is used throughout the
    recommendations in place of cause of action primarily to mark the departure
    from a limitations system where different causes of action are subject to
    different starting points and periods of different duration. Otherwise, claim
    is not substantially different from cause of action.

[43]

Accordingly, there is nothing in the
    Consultation Groups report that demands treating claim for limitations
    purposes as unconnected to a plaintiffs particular cause of action. Indeed, attempting
    to do so would fit uncomfortably with basic civil procedure, as causes of
    action have not become extinct for pleading purposes. A pleading may be struck
    out if it discloses no reasonable cause of action: r. 21.01(1)(b).

[44]

It seems to me therefore, that the first issue
    is what is the relationship between discovering a claim for the purposes of the
Limitations Act
, and having the factual information necessary to
    assert a cause of action in an originating pleading? Does a person who seeks to
    commence a timely proceeding for a claim to obtain a remedy based on a legal
    right to seek that remedy,
i.e.
a cause of action, need to have
    discovered facts to substantiate each element of the particular cause of action
    in order to have discovered their claim to a remedy, within the meaning of the
Limitations
    Act
? In my view, the answer is yes.

[45]

An examination of the language used in r. 25.06,
    the rule that governs the contents of a pleading, is instructive. Instead of
    using cause of action as in r. 21.01(1)(b), r. 25.06 uses claim, a term
    not defined in the
Rules of Civil Procedure
, and defence. Rule
    25.06(1) requires a pleading to contain the material facts on which the party
    relies for the claim or defence. And, where conditions of mind such as fraud
    and misrepresentation are alleged, r. 25.06(8) requires that full particulars
    must be pleaded except that knowledge may be alleged as a fact.

[46]

Therefore, while the rule uses the term claim,
    the contents of a proper initiating pleading asserting a claim for a remedy contemplated
    by the rule will include the legal elements to support a claim,
i.e.
,
    a cause of action.

[47]

Similarly, while the
Limitations Act
no
    longer uses the term cause of action, for the reason explained by the Attorney
    Generals Consultation Group, both the definition of claim and the components listed
    in s. 5(1)(a) that have to be discovered before the limitation period commences
    to run in respect of a claim, still require the discovery of the elements of a
    cause of action that will give rise to a legal remedy.

[48]

I refer, in particular, to the definition of
    claim, which is defined to mean a claim to remedy an injury, loss or damage resulting
    from
an act or omission
, and the requirement in s. 5(1)(a)(ii) to
    discover
the act or omission
as one of the discoverability elements. Because
    only a wrongful act or omission gives the affected person the right to a remedy
    in a court proceeding, discovery of the act or omission must include discovery
    of the wrongful aspect of it that gives rise to the legal right to the particular
    remedy being claimed. And under s. 5(1)(a)(iv), for the limitation period to
    commence, a proceeding must be an appropriate means to seek a remedy. That will
    only be the case when the claimant is able to plead a cause of action that
    gives rise to a remedy.

[49]

The fact that the act or omission must be
    wrongful is confirmed by the language of s. 18(1) that deals with contribution
    and indemnity, where the defendant of a claim is referred to as an alleged
    wrongdoer. That section provides:

For the purposes of subsection 5 (2) and
    section 15, in the case of a claim by one alleged wrongdoer against another for
    contribution and indemnity, the day on which the first alleged wrongdoer was
    served with the claim in respect of which contribution and indemnity is sought
    shall be deemed to be the day the act or omission on which that alleged
    wrongdoers claim is based took place.

[50]

All of the above indicates that, although the
Limitations
    Act
no longer uses the term cause of action, the purpose of removing
    that language was to signal a departure from establishing different limitation
    periods for different causes of action, but not to undermine the basic
    structure of the civil procedure process, where a proceeding to obtain a remedy
    at law must include all of the components of the cause of action that would
    entitle the claimant to that remedy. The
Limitations Act
and the
Rules
    of Civil Procedure
must work harmoniously together. It would have taken
    clear and explicit language to indicate that the Legislature intended otherwise.
    There is no such language in the
Limitations Act
, nor would there be
    any purpose in doing so.

[51]

In my view, the focus of the analysis should not
    be on the removal of the specific reference to a cause of action, but instead,
    on the purpose of introducing the claim concept. That concept includes the
    definition of claim as well as the four discoverability components. The
    Legislature introduced the concept of a claim in the
Limitations Act
to
    provide a universal framework for discoverability that transcends the
    requirements for particular causes of action. The introduction of this concept,
    however, did not make the particular causes of action pursued in a legal
    proceeding irrelevant for the s. 5 discovery analysis.

[52]

To that end, in addition to an act or omission
    that will give rise to a remedy, for limitations purposes, the
Limitations
    Act
also requires that certain common factors must be discovered before
    the limitation period will begin to run, even though all of those factors may
    not be required to establish any particular cause of action and the right to a
    remedy for that cause of action.

[53]

For example, the most significant common factor for
    a claim is loss or damage. Consequently, for causes of action such as breach of
    contract where loss or damage is not required, no claim arises for limitation purposes
    and the limitation period does not commence until loss or damage is suffered
    and the person discovers that they suffered loss or damage: see, for example,
Apotex
    Inc.
, at paras. 84-86. That does not mean, however, that a plaintiff is
    precluded from issuing a statement of claim for breach of contract before
    suffering damage, because for pleading purposes, the cause of action does not
    require damage.

[54]

The other new significant common factor for
    discovery of a claim is in s. 5(1)(a)(iv), which states:

that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it.

[55]

This is another extra component for the
    discovery of a claim that is not part of any cause of action.

[56]

Of course, it is always a question of fact at
    what point a claimant had or ought to have had sufficient knowledge of each of
    the factors to trigger the commencement of the limitation period. The claimant
    need not know to a certainty that the defendant will be found liable  that is
    the issue to be determined by the trier of fact. As this court stated in
Lawless
    v. Anderson,
2011 ONCA 102, 276 O.A.C. 75, at para. 23:

Determining whether a person
    has discovered a claim is a fact-based analysis. The question to be posed is
    whether the prospective plaintiff knows enough facts on which to base an
    allegation of negligence against the defendant. If the plaintiff does, then the
    claim has been discovered, and the limitation begins to run
: see
Soper v. Southcott
(1998), 39 O.R. (3d) 737 (C.A.)
    and
McSween v. Louis
(2000), 132 O.A.C. 304 (C.A.).
[3]

[57]

In summary, the
Limitations

Act
uses the discovery of a claim as the triggering mechanism for the commencement
    of the limitation period. Discovery of a claim includes components that may not
    be requirements of any particular cause of action, such as injury, loss or
    damage (s. 5(1)(a)(i)), and that having regard to the nature of the injury loss
    or damage, a proceeding would be an appropriate means to remedy it (s.
    5(1)(a)(iv)).

[58]

However, the second component, that the injury
    loss or damage was caused by an act or omission (s. 5(1)(a)(ii)), read together
    with the definition of claim, which is a claim to remedy the injury, loss or
    damage that occurred as a result of the act or omission (s. 1), and with the
    requirement that the claim must be pursued in a court proceeding (s. 2(1)),
    incorporates the requirement for a legally recognized basis to make the claim,
    known as a cause of action.

III.

Application of Principles

[59]

For fraudulent misrepresentation, the act or
    omission that the claimant must discover is that the misstatement that caused
    the damage was made with knowledge that the representation was false, an
    absence of belief in its truth or recklessness as to its truth:
Midland
    Resources Holding Limited

v. Shtaif,
2017 ONCA 320, 135 O.R. (3d)
    481, at para. 162, leave to appeal refused, [2017] S.C.C.A. No. 246.
[4]

[60]

In this case, the amended pleading in 2019 added
    a claim for fraudulent misrepresentation. Relying on the same 14 misstatements by
    BP that formed the basis of the original negligent misrepresentation claim and
    the statutory misrepresentation claim, the 2019 amendment claimed that documents
    were released by BP with knowledge of the falsities contained therein or with
    a reckless disregard to learning the accuracy of the representation. For the
    first time the appellant claimed damages based on fraud.

[61]

The motion judge found that the claim for
    fraudulent misrepresentation was statute-barred. He based his conclusion on the
    following analysis:

[A]round June 1, 2010, presumptively and also
    subjectively and objectively factually, Mr. Kaynes discovered he had a claim
    against BP. He subjectively knew that [BPs] misconduct had caused him harm and
    he knew that court proceedings would be appropriate. For the purpose of the
    commencement of limitation periods, it was not necessary for Mr. Kaynes to put
    a cause of action name to his claim. Whatever way the statement of claim was
    later framed to name a cause of action, the claim to which the cause of action
    was connected had been discovered in 2010 and the limitation period clock was
    running.

In other words, having discovered a claim in
    2010, Mr. Kaynes had two years to plead the misconduct connected to the claim
    by pleading the material facts of negligence, negligent misrepresentation,
    fraudulent, misrepresentation, an oppression remedy, nuisance, or whatever. For
    the purpose of commencing a proceeding, however he might label his claim as a
    cause of action in a statement of claim, the limitation period for the claim
    was running by June 1, 2010. As it happened, albeit late, in November 2012, Mr.
    Kaynes pleaded a cause of action for negligent misrepresentation in Ontario,
    and he gave his claim a cause of action name, but regardless of its name in
    accordance with the principles of the
Limitations Act, 2002
, the
    negligent misrepresentation claim was already statute barred. A fraudulent
    misrepresentation claim had it been pleaded in November 2012 in Ontario would
    also have been statute barred.

[62]

From this passage, it appears that the motion
    judges analysis is that by 2010 the appellant had discovered all of his
    misrepresentation claims for the purposes of the
Limitations Act
, because
    he knew then that BP had made false statements. He characterized fraudulent and
    negligent misrepresentation claims as merely different labels that would apply
    to the appellants claim based on the same material facts.

[63]

I would reject this analysis of the operation of
    the
Limitations Act
in respect of a claim for fraudulent
    misrepresentation as an error of law. In my view, the defendants knowledge
    that the misrepresentation was false, or at a minimum, its recklessness as to
    whether the misrepresentation was false, is a relevant material fact underlying
    any claim for fraudulent misrepresentation. If the motion judges approach were
    correct, it would mean in the case of a misrepresentation, that the claimant
    would be required to commence an action alleging fraud within two years of the
    misrepresentation, whether or not he knew or ought reasonably to have known of
    the defendants fraudulent intent, in order to preserve the limitation period
    for fraudulent misrepresentation. Of course, as well as being non-compliant
    with the pleadings rule, such a requirement would fly in the face of the well-established
    common law principle that a party must only plead fraud when they can
    substantiate the claim, or risk an award of substantial indemnity costs:
Unisys
    Canada Inc.

v. York Three Associates Inc.
(2001), 150 O.A.C. 49
    (C.A.), at para. 15;
Catford v. Catford
, 2013 ONCA 58, at para. 4.

IV.

Conclusion: Issue 1

[64]

In summary, under s. 5(1)(a)(ii) of the
Limitations
    Act
, one of the matters that is required for the discovery of a claim
    is: that the injury, loss or damage was caused by or contributed to by
an
    act or omission
 (emphasis added). Because a claim necessarily involves a
    legal remedy, the act or omission that must be discovered is one that will give
    rise to a legal remedy,
i.e.
, a cause of action.

[65]

Therefore, in the case of a fraudulent
    misrepresentation, the act or omission is a knowing misrepresentation. It would
    make no sense to require a person to commence an action for fraudulent
    misrepresentation without the legal basis for doing so, in order to preserve
    the limitation period. That is neither the intent nor the effect of the
Limitations
    Act
. The motion judge erred by concluding otherwise.

Issue 2: Did the motion judge err by finding that because of
    allegations of
scienter
in the U.S. actions it was plain and obvious that the appellant
    knew or ought reasonably to have known that he had a claim in fraudulent
    misrepresentation more than two years before the 2019 amendment?

[66]

The motion judge found, effectively in the
    alternative, that in any event, the appellant had discovered that BP knew its misstatements
    were false by 2010. The motion judge reasoned that because of related
    litigation in the U.S., where an action for misstatements in the securities
    disclosure context requires a pleading of
scienter
,
i.e.,
knowing falsehood, that based on the pleading of
scienter
, the
    appellant ought to have known that BP knew its misrepresentations were false.

[67]

I agree with the appellant that this factual finding
    was not available to the motion judge on this r. 21.01(1)(a) motion. In the
    face of the
scienter
 pleading, which was a requirement of the action
    in the U.S. actions, BP continued to deny knowledge until July 2015. The
scienter
pleading on its face was not determinative of the knowledge issue. A
    factual inquiry was required. It was not open to the motion judge to make that
    factual finding in the context of this motion, because there would be an issue whether
    a reasonable person in the appellants position ought to have known about BPs
    fraud more than two years before he pleaded fraud, based on the U.S. pleading
    or other available information that the US plaintiffs may have had when they
    pleaded
scienter
.

Issue 3: Was the fraudulent misrepresentation claim in the 2019
    amended statement of claim merely a claim for a new remedy based on facts already
    pleaded in the 2017 amended statement of claim and therefore not out of time?

[68]

The appellant only expressly sought a remedy for
    fraudulent misrepresentation in his 2019 amended statement of claim.
    Nevertheless, he submits that the fraud claim is timely because his 2019
    pleading of fraud is not a new claim but an alternative theory of liability
    based on facts pleaded in prior statements of claim, particularly in the 2017
    amendment, filed June 7, 2017.

[69]

In the 2017 amendment (which asserted only a
    claim for statutory misrepresentation), the appellant added some factual
    allegations, including that BP made the misrepresentations knowing they were
    false. He says that these additional allegations were timely in 2017 because they
    were pleaded within two years of his discovery of BPs fraud on July 2, 2015,
    the date BP settled a number of actions in the U.S. and abandoned an appeal
    from a decision which found that BP had acted with conscious disregard of
    known risks and was guilty of gross negligence and willful misconduct.

[70]

Even though the appellant did not add a claim of
    fraud or seek a remedy for fraudulent misrepresentation in the 2017 amended
    pleading, he submits that because he had already pleaded the element of
    knowledge of the fraud in the 2017 amendment in a timely fashion, the claim
    based on fraud in the 2019 amendment is not a new claim within the meaning of
    the
Limitations Act
, and it is not out of time.

[71]

I would not give effect to this argument. The
    2017 amended pleading states at para. 3 that the action seeks damages pursuant
    to ss. 138.3(1)(a) and 138.3(2)(a) of Ontarios
Securities Act.
While
    the 2017 amended statement of claim pleaded in various paragraphs that BP
    knew or was aware of certain facts, the pleading of knowledge was entirely
    in the context of the statutory claims that were asserted in that pleading. Moreover,
    the 2017 amended claim does not plead all of the necessary material facts for a
    common law fraudulent misrepresentation claim, including reliance.

[72]

The 2019 pleading claiming fraudulent
    misrepresentation is not simply an alternative theory of liability based on the
    same facts, or a claim for different relief based on the same factual matrix as
    what is pleaded in the 2017 amended claim. It is not a different or new legal
    characterization of the same wrong as the claim for statutory
    misrepresentation. This is underscored by his amendment to para. 3 which, after
    referring to the statutory claims asserted in the action states that the appellant
    also advances a claim for common law fraud. Rather, it asserts a fundamentally
    different claim: see
1100997 Ontario Ltd. v. North Elgin Centre Inc.
,
    2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 20-21, 36.

[73]

I would therefore reject this ground of appeal.

Issue 4: Did the motion judge err by proceeding on a motion under r.
    21.01(1)(a) of the
Rules of Civil Procedure

to determine whether a claim was statute-barred?

[74]

There are a number of decisions of this court, decided
    since the enactment of the
Limitations Act
, that suggest that discoverability
    issues should rarely, if ever, be decided on a motion under r. 21.01(1)(a)
    unless pleadings are closed and the facts are undisputed: see:
Beardsley
,
    at para. 21;
Tran v. University of Western Ontario,
2016 ONCA 978, 410
    D.L.R. (4th) 527, at paras. 18-21;
Salewski v. Lalonde
, 2017 ONCA 515,
    137 O.R. (3d) 762, at paras. 42-45;
Clark v. Ontario (Attorney General)
,
    2019 ONCA 311, 56 C.C.L.T. (4th) 1, at paras. 42, 46-48, leave to appeal to
    S.C.C. granted and appeal heard (on other issues) and reserved October 15, 2020,
    38687.

[75]

In this proposed class action proceeding, BP has
    not yet delivered a statement of defence because it is not required to do so
    until the appellant has obtained leave to assert his statutory claim under Part
    XXIII.1 of Ontarios
Securities Act
: see:
Vaeth v. North American
    Palladium Ltd.
, 2016 ONSC 5015, at paras. 13-15. Therefore, pleadings are
    not closed.

[76]

While r. 21.01(1)(a) refers to the determination
    of a question of law, where the facts regarding discovery of the claim are
    undisputed so that the determination of the issue is plain and obvious, then whether
    the action is statute-barred is considered a question of law that can be
    determined on a r. 21.01(1)(a) motion.

[77]

A recent example of this is an earlier appeal decision
    in this action,
Kaynes v. BP,

P.L.C.,
2018 ONCA 337, 81
    B.L.R. (5th) 6, where the court found that it was plain and obvious that some
    of the statutory claims, where the limitation period runs from the date the misrepresentation
    was made, were

statute-barred. One
    of the arguments on that appeal was the same one made here, that the issue
    should not be decided on a r. 21 motion before a defence is filed and the facts
    are ascertained. In rejecting that submission, the court stated at para. 13:

The appellant submits that
    this case was not appropriate for determination as a Rule 21 motion. We
    disagree. In a case such as this where the parties agree that there are no
    material facts in dispute, it is an efficient use of court resources to
    determine limitations defences on a Rule 21 motion.

[78]

Two other recent cases have discussed and
    applied the no facts in issue exception to the rule.
In
Davidoff v. Sobeys Ontario
,

2019 ONCA 684,
    leave to appeal to S.C.C. refused, 38953 (April 9, 2020), the plaintiff issued
    a statement of claim on November 1, 2017, seeking to sue Sobeys Ontario for
    wrongful dismissal. Both parties agreed that the claim was discoverable by the
    date of the plaintiffs termination of employment  October 6, 2015  which
    made the claim presumptively statute-barred. The plaintiff argued, however,
    that a letter he had mailed to Sobeys and its legal counsel on September 29,
    2017 was a notice of action, and therefore the action was timely.

[79]

After concluding that the letter did not constitute a notice of action,
    the court found that the limitation issue could be determined under r. 21.01(1)(a),
    since both parties agreed on the date that the claim became discoverable. Because
    the date of discovery was not in issue, the court applied the above-quoted
    reasoning from
Kaynes v. BP, P.L.C.
(2018).

[80]

The other recent decision is
Brozmanova v.
    Tarshis
, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, where the plaintiffs
    claim pleaded the date when she learned about the fraudulent conduct of the
    defendant that was the subject of the claim. In that case, a statement of
    defence had been filed that challenged factual assertions in the statement of
    claim. The court suggested that a motion for summary judgment under r. 20 might
    have been the preferable procedure to use because the parties had joined issue
    on disputed facts. However, because the date of discovery of the claim was not one
    of the disputed facts, it was not improper for the defendant to have moved
    under r. 21.01(1)(a) to strike the claim as statute-barred.

[81]

In establishing the main rule that a claim should not normally be
    struck out as statute-barred using r. 21.01(1)(a), the courts have noted that
    discoverability issues are factual and that the rule is intended for legal
    issues only where the facts are undisputed. It would therefore be unfair to a
    plaintiff where the facts are not admitted, to use this rule, which does not
    allow evidence to be filed except with leave or on consent. But where a
    plaintiffs pleadings establish when the plaintiff discovered the claim, so
    that that issue is undisputed, then the courts have allowed r. 21.01(1)(a) to
    be used as an efficient method of striking out claims that have no chance of
    success, in accordance with the principle approved in
Knight
    v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45,
    at para. 19.

[82]

Applying these principles to this case, the appellant pleaded in
    the 2019 draft reply document that it filed on the motion, a number of
    alternative dates which it says revealed that BPs misconduct was fraudulent.
    The latest event date that the draft reply identifies is July 2, 2015, when BP
    settled a number of actions in the U.S. and abandoned an appeal of a decision that
    found that it had acted with conscious disregard of known risks. The
    appellant pleaded that up until that date, BP had fraudulently concealed that
    its misstatements were made knowingly between 2008 and 2010. By pleading this
    fact, the appellant has conceded the latest date when it discovered or
    reasonably could have discovered BPs fraudulent conduct was July 2, 2015, more
    than two years before the 2019 amended statement of claim.

[83]

Finally, the appellants alternative pleading in
    his 2019 draft reply, that BP fraudulently concealed the fraudulent nature of
    the misrepresentation alleged until less than two years prior to the new
    amendments in September of 2019 does not alter this result. Nothing further is
    pleaded to support this conclusory statement. In
Das v. George Weston
    Limited
, 2018 ONCA 1053, 43 E.T.R. (4th), leave to appeal refused, [2019]
    S.C.C.A. No. 69, this court explained, at para. 74, that
while the material facts that are pleaded
    in the statement of claim are assumed to be true for purposes of a motion to
    strike, bald conclusory statements of fact and allegations of legal conclusions
    unsupported by material facts are not. The motion judge was not bound to
    accept the appellants position that this fraud claim was only discovered in
    the preceding two years, since that position was pleaded without the support of
    any material facts.

[84]

Accordingly, as the July 2015 date is not in dispute, it is plain
    and obvious that the appellants claim for fraudulent misrepresentation in the 2019
    amended statement of claim is out of time and statute-barred. On that basis, I
    agree with the conclusion of the motion judge that the issue can be determined
    on a r. 21.01(1)(a) motion, and that the 2019 amended claim must be struck on
    that basis.

Result

[85]

For these reasons, I would dismiss the appeal
    with costs to BP fixed at $20,000, as agreed to by the parties.

Released: January 20, 2021 (K.F.)

K.
    Feldman J.A.

I
    agree. K. van Rensburg J.A.

I agree. Thorburn J.A.

[1]
In the
    U.S., investors rely on SEC Rule 10b-5, 17 C.F.R. s.240.10b-5, under s.10(b) of
    the
Securities Exchange Act of 1934
,
    to bring actions for misrepresentation in continuous disclosure. A plaintiff in
    a U.S. court must plead and prove
scienter
,
    namely an intent to deceive, manipulate or defraud:
Ernst & Ernst v. Hochfelder
, 425 U.S.
    185 (U.S. Sup. Ct. 1976). See:
Yip v. HSBC
    Holdings plc
, 2017 ONSC 5332, at para. 69.

[2]
Most
    recently, the Supreme Court of Canada discussed how the discoverability rule
    applies to extend the limitation period for causes of action granted by s.
    36(1)(a) of the
Competition Act
, R.S.C., 1985, c. C-34, in
Pioneer
    Corp. v. Godfrey
, 2019 SCC 42, 437 D.L.R. (4th) 383.

[3]

The
    Supreme Court of Canada has granted leave to appeal from the decision of the
    Court of Appeal of New Brunswick in
Province of New Brunswick v. Grant Thornton
,
2020
    NBCA 18, 54 C.P.C. (8th) 271, leave to appeal granted, 39182 (August 13, 2020)
    on the issue of the extent of a plaintiffs knowledge or discovery of the facts
    of negligent misstatement that will be sufficient to trigger the commencement
    of the limitation period.

[4]
Section 5(2) incorporates a presumption that the claimant knew all the
    discoverability components of a claim in s. 5(1)(a) on the day the act or
    omission took place, unless the contrary is proved, while s. 5(1)(b)
    incorporates into the discoverability analysis, when a reasonable person with
    the abilities and in the circumstances of the claimant ought to have known all
    of the s. 5(1)(a) discoverability components of a claim. For fraudulent
    misrepresentation, that would include the knowledge of falsity component.


COURT OF APPEAL FOR ONTARIO

CITATION: Kenaidan Contracting Ltd. v.
    Lancaster Group Inc., 2021 ONCA 125

DATE:  20210224

DOCKET: C67371

MacPherson, Gillese and
    Nordheimer JJ.A.

BETWEEN

Kenaidan Contracting Ltd.

Plaintiff (Appellant)

and

Lancaster Group Inc., Greg
    Crawford, and Blair Hubber

Defendants (Respondents)

Robert B. Cohen, for the appellant

No one appearing for the respondents

Heard: February 24, 2021 by video conference

On appeal from the order of Justice Leiper
    of the Superior Court of Justice, dated July 25, 2019.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed without
    costs.


WARNING

This is a case under the
Child, Youth and
    Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the consequences of failure to comply,
    read as follows:

87
(8)
Prohibition re identifying child

 No person shall publish or make public information that has the
    effect of identifying a child who is a witness at or a participant in a hearing
    or the subject of a proceeding, or the childs parent or foster parent or a
    member of the childs family.

(9)
Prohibition
    re identifying person charged
 The court may make an order prohibiting the publication of
    information that has the effect of identifying a person charged with an offence
    under this Part.

142
(3)
Offences re publication
 A person who contravenes subsection 87(8) or
    134(11) (publication of identifying information) or an order prohibiting
    publication made under clause 87(7)(c) or subsection 87(9), and a director,
    officer or employee of a corporation who authorizes, permits or concurs in such
    a contravention by the corporation, is guilty of an offence and on conviction
    is liable to a fine of not more than $10,000 or to imprisonment for a term of
    not more than three years, or to both
.

COURT OF APPEAL FOR ONTARIO

CITATION: Kenora-Rainy River Districts Child
    and Family Services v. K.R., 2021 ONCA 123

DATE:  20210224

DOCKET: C68485

Fairburn A.C.J.O., MacPherson
    and Gillese JJ.A.

BETWEEN

Kenora-Rainy
    River Districts Child and Family Services

Applicant (Respondent)

and

K.R. and P.N.R.

Respondents (Appellants)

K.R., acting in person

P.N.R., acting in person

David J. Elliott, for the respondent

Heard and released orally: February 23, 2021 by
    video conference

On
    appeal from the order of Justice John S. Fregeau of the Superior Court of
    Justice, dated June 15, 2020.

REASONS FOR DECISION

[1]

The appellants are the parents of two children.
    In 2018, a justice of the Ontario Court of Justice (Family Court) found that
    the children were in need of protection pursuant to the
Child and Family
    Services Act
, R.S.O. 1990, c. C.11.

[2]

The appellants appealed from this decision to
    the Superior Court of Justice. During the course of the appeal process, the
    appellants brought several motions, one of which was a motion for further
    disclosure. In a decision dated 15 June 2020, Fregeau J. granted the relief
    sought in part and denied other disclosure requests as being irrelevant.

[3]

As a preliminary issue, the respondent contends
    that the appellants have brought their appeal in the wrong court; they should
    be in the Divisional Court.

[4]

Section 6(1)(b) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, requires that a final order of a judge of the Superior
    Court of Justice be appealed to the Court of Appeal. Section 19(1)(b) requires
    that an interlocutory order of a judge of the Superior Court of Justice be
    appealed to the Divisional Court with leave. If the order is interlocutory, s.
    38(3) of the
Family Law Rules
, O. Reg. 114/99, requires the appeal and
    the leave motion to be heard at the same time.

[5]

We agree with the respondent. Justice Fregeaus
    decision relating to disclosure is interlocutory: see
Higgins v. Higgins
,
    2007 ONCA 663, at para. 19.

[6]

The appeal is quashed for lack of jurisdiction.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Khader c. Mamache, 2021 ONCA 51

DATE : 20210125

DOSSIER : M52105 (C68765)

La juge Roberts (la juge saisie
    de la motion)

ENTRE

Mohamed Khader

Requérant

(Appelant/Auteur de la motion)

et

Hassna Mamache

Intimée

(Intimée/Partie intimée)

Mohamed Khader, en personne

Kibondo M. Kilongozi, pour lintimée

Date de laudience : le 22 janvier 2021 par visioconférence

INSCRIPTION

[1]

Lappelant cherche à proroger le délai pour mettre
    son appel en état. Lappelant interjette appel de lordonnance du juge Shelston
    du 29 septembre 2020, rejetant sa motion de varier lordonnance finale du 23 octobre
    2017, et de lordonnance du juge Shelston du 3 novembre 2020 concernant les
    dépens de la motion rejetée.

[2]

Les parties ont consenti à lordonnance finale
    du 23 octobre 2017 qui prévoit la garde partagée de leurs jeunes enfants. Lappelant
    a introduit une motion devant le juge Shelston pour varier cette ordonnance
    afin quil soit accordé provisoirement la garde exclusive de leurs enfants. En outre,
    les parties ont demandé au juge de déterminer si leurs enfants devraient assister
    virtuellement ou physiquement à lécole pendant la pandémie de la COVID-19. Sans
    un procès, le juge Shelston na pas pu déterminer les questions de crédibilité
    soulevées par les parties. Il a conclu quun procès était nécessaire pour les
    résoudre. Toutefois, il a décidé que les enfants peuvent assister physiquement
    à lécole. En tout, il a rejeté la motion de lappelant avec des dépens de 7,000
    $ accordés à lintimée.

[3]

Dans une motion pour proroger le délai, les critères
    à examiner sont bien établis, à savoir : lintention de lappelant de poursuivre
    lappel ; la durée du délai et lexplication pour ce délai ; le préjudice causé
    par le délai, y compris le préjudice aux enfants ; et le fondement de lappel. Bien
    quil soit nécessaire détudier tous ces critères, limpossibilité que lappelant
    ait gain de cause peut être déterminative. La question prédominante est de
    considérer sil est juste que le délai soit prorogé. Voir notamment
Codina v. Canadian Broadcasting Corporation
, 2020 ONCA 116, aux paras. 2, 7 ;
Issasi
    v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, au
    para. 4 ;
Enbridge Gas Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3e) 636, aux paras. 15-16.

[4]

Jaccepte que lappelant veuille poursuivre son
    appel et quil prenne quelques efforts pour le faire. Néanmoins, je ne suis pas
    persuadée quil est juste que le délai soit prorogé parce que le délai cause préjudice
    aux enfants et lappel est sans fondement.

[5]

Bien que le délai en question ne soit pas démesuré,
    tout délai a un impact sur lintérêt des jeunes enfants des parties puisque ces
    enfants ont besoin dune vie stable en matière de garde et daccès, ce qui leur
    permet de fonder une bonne relation avec les deux parents : voir
D.G. v.
    A.F.
, 2014 ONCA 436, aux paras. 33-34. Le processus prévu par le juge Shelston
    pour régler ou déterminer par un procès la question de la garde présentée par lappelant
    est retardé. La résolution définitive des litiges est extrêmement importante en
    matière de garde des enfants et renforce lobligation de retenue envers la décision
    intrinsèquement discrétionnaire de première instance :
Van de Perre c. Edwards
, 2001 CSC 60,
[2001] 2 R.C.S. 1014,
au para. 13.

[6]

Deuxièmement, les ordonnances du juge Shelston sont
    interlocutoires et, par conséquent, sont du ressort de la Cour divisionnaire
    avec lautorisation prévue dans les règles de pratique : voir lart.
    19(1)(b) de la
Loi sur les tribunaux judiciaires
,
L.R.O. 1990, c. C.43. Par conséquent, lappelant ne peut pas avoir gain de
    cause parce que la Cour dappel ne peut pas entendre son appel. La règle
    applicable pour lautorisation dinterjeter appel devant la Cour divisionnaire dune
    ordonnance interlocutoire en vertu dune motion est la r. 62.02 des
Règles de procédure civile
, R.R.O.
    1990, Règl. 194. Cette motion est entendue sur pièces et lautorisation est obtenue
    auprès dune formation de juges de la Cour divisionnaire. Selon la r. 62.02(3)
    des
Règles de procédure civile
, lavis de motion en autorisation doit être signifié dans les 15
    jours qui suivent la date à laquelle a été rendue lordonnance. Toutefois, la
    r. 3.02 des
Règles de procédure civile
prévoit quun juge du tribunal dappel

peut proroger ce délai en vertu dune motion.

[7]

Lintimée ne consent pas au transfert de lappel
    et objecte que lappelant sera autorisé à poursuivre son appel devant la Cour
    divisionnaire. Puisque lappel exige lautorisation de la Cour divisionnaire, je
    ne suis pas en mesure de transférer ou autoriser lappel, selon lart. 110 de
Loi sur les tribunaux judiciaires
. De
    plus, puisque seule la Cour divisionnaire a compétence dentendre lappel avec
    lautorisation prévue par les règles de pratique, je ne suis pas en mesure de proroger
    le délai pour signifier lavis de motion en autorisation. Ces questions sont à déterminer
    par la Cour divisionnaire, si lappelant décide de poursuivre un appel en entreprenant
    les étapes nécessaires selon les règles de pratique.

[8]

Pour ces motifs, la motion est rejetée.

[9]

Il ny aura pas dordonnance concernant les dépens
    de cette motion.

L.B.
    Roberts j.a.


COURT OF APPEAL FOR ONTARIO

CITATION: Knapp v. Knapp, 2021 ONCA 305

DATE: 20210510

DOCKET: C67153

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

David Jonathan Knapp

Applicant (Respondent)

and

Keturah Lael Knapp

Respondent (Appellant)

Michael Stangarone, for the appellant

Todd Hein and John C. Noonan, for the
    respondent

Heard: April 19, 2021 by video conference

On appeal from the order of Justice Erika
    Chozik of the Superior Court of Justice, dated June 18, 2019, with reasons at
    2019 ONSC 7353, and from the costs order dated February 19, 2020, with reasons at
    2020 ONSC 1094.

Benotto J.A.:

[1]

The parties are former spouses. They were
    involved in a high-conflict parenting dispute. After two years and multiple
    court attendances, the matter culminated in an 18-day trial. The trial judge
    concluded that joint custody was in the best interests of the children and
    apportioned the decision-making authority in an attempt to avoid ongoing
    conflict between the parents.

[2]

The mother appeals alleging errors by the trial
    judge.

[3]

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

FACTS

[4]

The appellant Keturah Knapp and the respondent
    David Knapp were married for over 13 years before separating in 2017. They have
    two children, now aged 11 and 8. While living together, they had roughly equal
    parenting time with the children.

[5]

The parties are deeply religious. In 2016, the
    appellants sister was going through a divorce and the respondent sent her a
    letter saying he believed she would suffer grave consequences from Jesus if she
    moved forward with her divorce. It was around this time that the appellant and
    respondents own marital problems escalated.

[6]

In early 2017, the parties decided to discuss
    their marital issues before two witnesses from their church. They had two
    meetings. The appellant asked the respondent to email her the biblical passages
    he was reading so she could better understand his position. After the meetings,
    he sent her the passages in an email with the subject line Warning keturah.
    The email included bible passages and comments suggesting wives should always
    submit to their husbands and that it was a sin for a wife to refuse to have
    intercourse with her husband.

[7]

Around two weeks later, without warning, the
    appellant took the children to a womens shelter. She refused to allow the
    respondent to see the children unsupervised. The appellant testified that she
    was afraid the respondent would hurt her or her children to do Gods bidding.

[8]

The Office of the Childrens Lawyer (OCL), Childrens
    Aid Society (CAS), and the Crisis, Outreach and Support Team (COAST) were
    called in. They all investigated the respondent.

[9]

CAS and COAST found the respondent was no risk
    to himself or his children. The OCL recommended the respondent undergo a
    psychological evaluation. He complied and the evaluation found no indications
    of abuse and supported a finding that the respondent was a well-functioning,
    adaptive individual with no major personality disturbances. Nevertheless, the
    OCL recommended the appellant have sole custody of the children.

DECISION BELOW

[10]

The main issue at trial was the parenting plan
    for the children. The trial judge was required to determine where the children
    would live, how much time they would spend with each parent and who would have
    decision-making authority. The trial judge concluded that the best interests of
    the children required a joint custody arrangement with parallel decision-making
    authority, and equal parenting time.

[11]

The trial judge rejected most of the appellants
    evidence, particularly her evidence respecting the allegations against the
    respondent. She found no evidence the respondent was, or was at risk of
    becoming, neglectful or abusive. His letter to the appellants sister and his
    email titled Warning keturah, when read in context, were not meant to be
    threatening.

[12]

The trial judge also rejected the bulk of the
    assumptions and conclusions underpinning the OCLs report. The OCL investigator
    himself had observed no issues with the respondents parenting and failed to
    consider the best interests of the children in making his recommendation.

[13]

The trial judge noted that neither the CAS nor
    COAST had any concerns with the respondents parenting abilities.

[14]

At the conclusion of trial, the trial judge
    allocated decision-making between the parents: the appellant would have
    authority over education decisions and the respondent would have authority over
    medical decisions. This was in part because the appellant is fearful of traditional
    medicine and had a history of misrepresenting medical recommendations to the
    respondent.

[15]

Finally, the trial judge ordered the appellant
    to pay the respondent $250,000 in costs.

ISSUES

[16]

The appellant alleges that the trial judge
    erred: (i) by relying on hearsay when she analyzed the OCL recommendations;
    (ii) by failing to consider the childrens wishes; (iii) by presuming that the
    maximum contact principle amounted to equal parenting time; (iv) by making an
    order that conflicts with final orders that were previously made on consent;
    and (v) by awarding costs to the respondent.

ANALYSIS

[17]

It is always preferable  and in the best
    interests of the children  that the parenting plans be developed by the
    parents. That is why there is an emphasis on resolution in family law
    legislation and practice. When the parents cannot agree, the court must
    formulate a plan for them. This frequently results in at least one parent being
    dissatisfied. So too here.

[18]

I begin with two themes that permeate the
    appellants submissions and then turn to the specific allegations set out
    above.

[19]

The two themes are that the trial judge rejected
    the recommendation in the OCL report and also changed the status quo.

[20]

A trial judge is not required to accept the OCL
    recommendations. They are just that: recommendations. Here, the trial judge
    made extensive factual findings rejecting the foundation of the OCL recommendations.
    She then proceeded to make her own assessment as to the best interests of the
    children.

[21]

A trial judge is not bound by the perceived
    status quo. Here, the trial judge rejected the appellants evidence that she
    was the primary caregiver. Instead, she found that prior to the separation the
    parents shared parenting equally. The only change to the status quo occurred
    when the appellant unilaterally  and wrongly  removed the children from their
    home and kept them in a womens shelter, denying the respondent parenting time.

[22]

Against this background, I turn to the specific
    errors of law alleged.

(1)

Hearsay

[23]

The appellant submits that the multiple reports
    including from COAST and the medical records filed were presumptively
    inadmissible hearsay and the trial judge erred in relying upon then absent
    authentication.

[24]

The trial judge did not err by referring to
    them.

[25]

Many of the medical reports were filed into
    evidence by the appellant. The COAST report was discussed in the OCL report.
    Many were put to both parties in cross-examination. Neither party denied the
    accuracy nor sought to call the declarants as witnesses. The appellant cannot
    now allege that the trial judge erred by relying on documents she submitted.

(2)

Views of the children

[26]

There is no question that the views and
    preferences of children must be considered in all matters affecting them.
    However, they must be viewed in context.

[27]

The children had been taken from their home,
    kept away from their father while their mother professed fear of their father.
    He was then only able to see them in a supervised setting with gradual
    increases. It would be naïve to think that these circumstances would not
    negatively influence the childrens views.

[28]

The trial judge rejected the appellants
    testimony that she feared for her safety or the safety of her children and
    found that her flight to the shelter and subsequent conduct was aimed at
    gaining a tactical advantage in this litigation. In doing so she correctly
    gave the childrens preferences little weight.

[29]

In any event the parties had agreed that the
    views of the children would be put in evidence through the OCL. The then 9-year
    old was somewhat ambivalent about where to live. The then 6-year old wanted
    more time with the appellant. The OCL report was not based on the wishes of the
    children, but on the clinicians own views. The trial judge rejected the
    foundation of the clinicians views and made her own determination as to best
    interest.

(3)

Maximum contact

[30]

The appellant submits that the trial judge erred
    by placing an onus on her to establish that equal parenting was not in the
    childrens best interests. She relies on the trial judges reference to
Folahan
v.
Folahan
,
2013 ONSC
    2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a
    parent to rebut the presumption of equal time. As this court said in
Rigillo
v.
Rigillo
, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para.
    13, the maximum contact principle does not necessarily require equal parenting
    time.

[31]

The
Divorce Act,
R.S.C. 1985, c. 3 (2nd
    Supp.) in force at the time of the trial addressed the maximum
contact principle:

16(10)
In making an order under this section, the court shall give effect
    to the principle that a child of the marriage should have as much contact with
    each spouse as is consistent with the best interests of the child and, for that
    purpose, shall take into consideration the willingness of the person for whom
    custody is sought to facilitate such contact.

[32]

The current provision of
Divorce Act
, is
    more direct:

16(6)
In allocating parenting time, the court shall give effect to the
    principle that a child should have as much time with each spouse as is consistent
    with the best interests of the child.

[33]

The
Childrens Law Reform Act
, R.S.O. 1990, c. C.12,
provided:

20 (1
) Except as otherwise provided in this Part, a childs parents are
    equally entitled to custody of the child.

[34]

The trial judge applied these principles and did
    not mistake maximum parenting time with equal time. Nor did she place an onus
    on the appellant to rebut equal parenting time. Her reasons, read as a whole,
    demonstrate that she was alive to the principle that a child-focused approach
    to achieving as much parenting time as possible with each parent is the
    objective of the maximum contact principle. It may end up being equal time. It
    may not. Each family is different, and the principle is a guide set out to
    benefit children.

(4)

Jurisdiction challenge

[35]

The appellant argues that the trial judge lacked
    jurisdiction to make her order because it amounted to a change of the order of
    Coats J. made on March 20, 2019 which provided that: (i) the appellant is to
    take the children to counselling to assist them in processing and coping with
    their feelings relating to the difficult transitions; and (ii) neither parent
    would have care of the children for three weekends in a row.

[36]

The appellant says that  in light of this order
     the trial judge did not have jurisdiction to order that the respondent make
    all major decisions with respect to all medical, dental, optometrist and
    vaccination issues. Nor, she says did the trial judge have the jurisdiction to
    order a summer schedule of three weeks uninterrupted for each parent. She
    submits that the order is marked final and could only be changed pursuant to
    a motion to change under r. 15 of the
Family Law Rules
, O. Reg. 114/99.

[37]

With respect, this submission borders on the
    frivolous.

[38]

Rule 15 of the
Family Law Rules
does
    not confer jurisdiction. It provides a process by which a party who wishes to
    change a final order can make that request to the court. It is simply wrong to
    suggest that it in any way limits a trial judge in the exercise of her
    discretion.

[39]

The trial judge had jurisdiction to determine
    the best interests of the children in all parenting matters. After an 18-day
    trial dealing almost exclusively with parenting, the trial judge made findings
    of fact and determined the best interests of the children would be served by a
    joint custody arrangement with specified decision-making authority and
    specified time-sharing. She was in no way bound by an earlier order and a
    motion to change was not necessary.

[40]

In any event, the order of Coats J. is no longer
    relevant. The counselling it referred to was in connection with the transition
    and conflict that the children had experienced. The children are no longer in
    transition. They have been in the regime set out by the trial judge for two
    years.

[41]

I am also not convinced that the order is final.
    Despite the word final on the order, all matters of parenting remained
    outstanding and subject to trial  this is the hallmark of an interlocutory
    order.

(5)

Costs

[42]

Costs were awarded to the respondent by the
    trial judge. She found that there were many examples of the appellant acting
    unreasonably and with excessive caution, both before and during the trial. The
    respondent also made two offers to receive somewhat less than 50/50 access,
    both of which the appellant refused. Considering the appellants conduct and
    that the respondent was more successful at trial than in either of his offers
    to settle, the respondent was entitled to substantial indemnity costs.

[43]

The appellant seeks leave to appeal the trial
    judges costs order. She submits that it is inappropriate to order costs in
    parenting cases when the parties have acted in good faith.

[44]

While the trial judge did not find bad faith,
    she did articulate multiple examples of the appellants unreasonable conduct
    which unnecessarily drew out and complicated the proceedings and increased the
    litigious nature of the proceedings. In arriving at her conclusion, she applied
    the guidance of r. 24.

[45]

Except to comment that the words substantial
    indemnity and full indemnity do not apply to r. 24, I see no basis to
    interfere with her discretion in awarding costs to the respondent or with
    respect to her overall assessment of the quantum.

(6)

Fresh Evidence

[46]

The mother appealed the trial decision which was
    dated June 19, 2019. After multiple delays, she perfected the appeal which was
    heard nearly two years later on April 19, 2021.

[47]

One week before the appeal was heard, the
    appellant filed a motion to submit fresh evidence on the appeal.

[48]

Where children are involved, there is generally
    more flexibility with respect to the admission of fresh evidence. However, the
    evidence submitted here does not assist a determination of the issues. It is in
    the form of an affidavit sworn by the appellant which argues why the trial
    judgment is wrong. In effect, it reflects a continuation of the conduct that
    led the trial judge to make a finding of unreasonableness.

[49]

I would not admit the fresh evidence.

CONCLUSION

[50]

I would dismiss the appeal with costs to the
    respondent in the agreed upon amount of $18,000, all inclusive.

Released: May 10, 2021 M.L.B.

M.L. Benotto J.A.

I agree B.W. Miller J.A.

I agree Gary Trotter J.A.


WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition
    re identifying child
 No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

(9)
Prohibition re identifying person charged
 The court may make an order prohibiting the publication of information
    that has the effect of identifying a person charged with an offence under this
    Part.

142
(3)
Offences
    re publication
 A person who contravenes subsection 87(8) or 134(11)
    (publication of identifying information) or an order prohibiting publication
    made under clause 87(7)(
c
) or subsection 87(9), and a director, officer
    or employee of a corporation who authorizes, permits or concurs in such a
    contravention by the corporation, is guilty of an offence and on conviction is
    liable to a fine of not more than $10,000 or to imprisonment for a term of not
    more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: L.R. v. Childrens Aid Society of
    Toronto, 2021 ONCA 84

DATE: 20210208

DOCKET:
M52038

(C68584)

Rouleau,
    Benotto and Thorburn JJ.A.

BETWEEN

L.R.

Respondent Mother
(Appellant/Responding Party)

and

Childrens
    Aid Society of Toronto

Applicant
(Respondent /Moving Party)

and

T.H.

Respondent Father
(Respondent/Responding Party)

and

Office of The Childrens Lawyer

Respondent
(Respondent/Responding party)

Chithika Withanage and Marcia Duncan,
    for the moving party the Childrens Aid Society of Toronto

Jane Long and Gary Gottlieb, for the
    responding party the Office of the Childrens lawyer

L.R., acting in person

T.H., acting in person

Heard and released
    orally: February 4, 2021 by video conference

REASONS
    FOR DECISION

[1]

The Childrens Aid Society (the Society) brings
    this motion to quash the second appeal in a child protection matter. The child
    is 12 years old and has been the subject of the proceedings for several years.
    The Office of the Childrens Lawyer represents the child and supports the
    motion.

[2]

In 2019 the child was found in need of
    protection. There was no appeal from the protection order. The following year,
    the parties participated in an 11-day trial before Zisman J. The evidence was
    extensive. In a detailed 47-page decision, the trial judge assessed the
    evidence and made clear findings of fact. She concluded that the child should be
    placed in the temporary care of the Society for four months and then placed in
    the care of the father for six months under supervision. She also ordered that
    the mother not audio or video record the child, the father, any Society worker
    or third-party professional working with the family without prior consent.

[3]

The mother appealed the order of Zisman J. to
    the Superior Court. For extensive and detailed reasons, Horkins J. dismissed
    the appeal. The mother now appeals the dismissal of the appeal to this court.
    The father takes no position on this appeal or on the motion to quash the
    appeal.

[4]

The mothers appeal is from the temporary order.
    Two events have taken place since the dismissal of the appeal: the temporary
    supervision order has expired; and a status review application was commenced on
    October 15, 2020 before the Ontario Court of Justice. The first appearance took
    place on November 12, 2020. In the result, the order of Zisman J. is now a
    nullity. The appeal is therefore moot.

[5]

We see no reason to exercise our discretion to
    hear the appeal. An appeal will not advance the interests of the child and the
    ongoing factual issues belong in the Ontario Court of Justice. The childs
    future must be determined without delay and the status review should proceed
    expeditiously.

[6]

The appeal is therefore quashed.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Lad v. Marcos, 2021 ONCA 183

DATE: 20210325

DOCKET:
    M52058 (C68821)

Lauwers,
    Trotter and Zarnett JJ.A.

BETWEEN

Ishver
    Lad and Sumitra Lad

Plaintiffs

(Respondents/Moving
    Parties)

and

Manny
    Marcos, also known as Manuel Marcos also known as

Manuel
    Martins Marcos also known as Manny Martins Marcos

also
    known as Manuel M. Marcos, Joe Marcos, also known as Joe Luis

Marcos
    also known as Jose Luis Marcos also known as Jose Marcos,

Arlete
    Susana Marcos, Catarina Arruda Marcos and

Marcos
    Limited Building Design Consultants

Defendants

(Appellants/Responding
    Parties)

Dora Konomi and Timothy M. Morgan, for the
    moving parties

Ted Evangelidis, for the responding
    parties Joe Marcos, Arlete Susana Marcos, and Catarina Arruda Marcos

Gregory Hemsworth, for the responding
    parties Manny Marcos and Marcos Limited Building Design Consultants

Heard: March 18, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is yet another motion to quash an appeal on
    the basis that the order under appeal is interlocutory, not final, and not
    properly before this court. The principles governing this issue were recently
    laid out in
Paulpillai Estate v. Yusuf
, 2020 ONCA 655, at
    para. 16.

[2]

The motion judge described the motion before him
    in these terms:

Joe Marcos, Arlete Marcos and Catarina Marcos,
    and separately, Manny Marcos, seek an order striking out the Plaintiffs' claims
    for declaratory relief set out in paragraphs 1(a) and (b) of the Fresh as
    Amended Statement of Claim issued June 10, 2019, together with the
    consequential and ancillary relief set out in paragraphs 1(c) - (f), without
    leave to amend. The effect of this relief, if granted, would end the
    Plaintiffs claim.

In the alternative, the defendants seek a
    determination under r. 21.01(1)(a) that the plaintiffs cannot seek and are not
    entitled to the declaratory relief sought in paragraphs 1(a) and (b) of the
    Fresh as Amended Statement of Claim, and therefore are not entitled to the
    ancillary and consequential relief arising therefrom sought in paragraphs 1 (c)
    - (f).

[3]

The nub of the motion judges decision is this:

For the reasons that follow, the motion is
    dismissed. In reaching this result, I make no comment of the viability of the
    causes of action either as pleaded, or as determined on a full record, or with
    respect to the eloquence with which they are pleaded. I merely hold a) that it
    is not plain and obvious that the causes of action have no merit, and b) they are
    properly pleaded.

[4]

The responding parties argue that because the
    motion was brought under r. 21.01(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, the motion judges decision perforce was
    a final determination of a legal question. They cite
Atlas Holdings v.
    Vratsidas
, 2012 ONSC 1375, at para. 12. But that case turned on a
    determination that finally disposed of a question of law, being whether the
    limitations defence was available to the defendants. The Superior Court had found
    that it was not available, and this court had agreed. Brown J., as he then was,
    then said, at para. 18, having lost on the question of law as to whether
    the plaintiffs' claims were statute-barred, the defendants cannot now rely on a
    limitation period defence.

[5]

The law is clear that not every unsuccessful
    motion under r. 21.01(1)(a) automatically gives rise to a right of appeal, only
    those that finally dispose of the issue raised by that defence, and thereby [deprive]
    the defendant of a substantive right which could be determinative of the entire
    action":
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[6]

The order the moving parties seek to appeal did
    not finally determine any issues between the parties; the issues were all left
    to the trial judge. It is quintessentially an interlocutory order over which
    only the Divisional Court has jurisdiction under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[7]

This conclusion is so obvious that this attempted
    appeal can be described as no more than an effort to buy time, part of what the
    motion judge, in his costs endorsement, termed the defendants Carthaginian
    litigation strategy. We agree with the moving parties that they are entitled
    to substantial indemnity costs and fix them in the amount of $10,000 inclusive
    of disbursements and taxes, payable by the responding parties forthwith.

P.
    Lauwers J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Landrus (Re), 2021 ONCA 292

DATE: 20210504

DOCKET: C68823

van Rensburg, Huscroft and Thorburn JJ.A.

IN THE MATTER OF: Benjamin Landrus

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Karen Papadopoulos, for the respondent, Attorney General
    of Ontario

Jessica Szabo, for the respondent, the Person in Charge
    of Ontario Shores Centre for Mental Health Sciences

Heard: April 30, 2021 by videoconference

On appeal from the disposition of the Ontario Review
    Board, dated October 13, 2020, with reasons dated November 3, 2020.

REASONS FOR DECISION

[1]

This is an appeal from a disposition of the
    Ontario Review Board (the Board) on a restriction of liberty hearing. The
    appellant, who has schizophrenia, was found not criminally responsible on
    account of mental disorder (NCR) on a charge of aggravated assault in June
    2013. Pursuant to the disposition of May 6, 2020 he has been detained at the
    Ontario Shores Centre for Mental Health Sciences (the Hospital) with privileges
    up to and including the ability to live in the community in accommodations
    approved by the person in charge.

[2]

On August 28, 2020, the Board was informed,
    pursuant to s. 672.56(2)(b) of the
Criminal Code
, that the appellants liberty had been restricted. On August 17th,
    the appellant had been transferred from a general forensic unit at the Hospital
    to a more restrictive secure forensic unit. The appellant, who was deemed
    incapable of consenting to treatment, but was appealing that finding, had
    stopped taking his anti-psychotic medication. In the months leading up to the
    restriction of liberty, the appellants mental health had deteriorated and
    there were instances of verbal aggression and hostility to co-patients and
    staff.

[3]

Following a restriction of liberty hearing, the
    Board found that the restriction of the appellants liberty was and remained
    necessary and appropriate and constituted the least onerous and restrictive
    measure. The Board accepted that the appellants mental health had
    deteriorated, and that he showed increased irritability and hypersensitivity to
    sound. His behaviour had deteriorated to the point where it was obvious that he
    required the higher level of structure, support and observation he could only
    receive on a secure forensic unit.

[4]

The appellant asserts that the Board failed to
    take into consideration his liberty interests and other needs, as mandated by
    s. 672.54 of the
Code
. In particular, the
    Board did not properly assess his request for a lateral transfer to another
    unit. He asserts that the Boards findings  that his mental status had
    deteriorated as a result of not taking his medication, and that the transfer to
    a more secure forensic unit was necessary  were not supported by evidence and
    were unreasonable. The appellant submits that it was unreasonable for the Board
    to find that the Hospital was justified in not transferring him to another
    minimum security unit to alleviate his sensitivity to noise and other
    environmental stressors, that were the cause of his conflict with other
    co-patients and staff. He contends that the Hospital transferred him to a more
    secure unit simply to teach him a lesson and to punish him for not taking his
    medication.

[5]

We disagree.

[6]

The Board considered all of the required
    factors, including the appellants request for an accommodation in his living
    conditions. There was evidence to support the need to transfer the appellant to
    a more secure unit. This included the testimony of his treating psychiatrist,
    Dr. Pytyck, that, among other things, the appellant was not manageable in the
    lower security unit; that his acting out posed a risk of harm to co-patients
    and staff; that the months leading up to the restriction of liberty were marked
    with increasingly rapid decompensation; that the appellant directly threatened
    three patients; and that he had little to no insight into his need for
    treatment.

[7]

Contrary to the appellants submissions, there
    is no evidence that the Hospital was simply trying to teach the appellant a
    lesson about taking his medication, by refusing his request for a transfer to a
    different unit with less noise and environmental stimuli.

[8]

The evidence that was accepted by the Board was
    that, in the months before the transfer to a more secure unit, the Hospital on
    several occasions had offered and the appellant had refused, a room change on
    the same unit in an attempt to accommodate his request for a quieter and darker
    environment. The Board reasonably accepted Dr. Pytycks evidence, supported by
    the Hospitals report, that the appellants behaviour had deteriorated to the
    point where it was obvious that he required the higher level of structure,
    support and observation that he could only receive on a secure forensic unit
    and that the appellants behaviour resulted from the deterioration of his
    mental status after he had discontinued his medication. Since his transfer to a
    secure forensic unit, his presentation had remained much the same, with a
    further incident of threatening behaviour to a co‑patient. There is
    nothing to support the appellants contention that a lateral move to different
    minimum-security unit would have improved his mental state or behaviour.

[9]

The Boards conclusion that the restriction of
    liberty was and remained necessary is reasonable. For these reasons the appeal
    is dismissed.

K. van Rensburg J.A.

Grant
    Huscroft J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Latner v. Ontario Securities
    Commission, 2021 ONCA 316

DATE: 20210511

DOCKET: C67944

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Gabriel Latner

Applicant (Appellant)

and

Ontario Securities Commission

Respondent (Respondent)

Gabriel Latner, acting in person

Andrew Lokan and Elizabeth Rathbone,
    for the respondent

Heard: May 5, 2021, by video conference

On appeal from the order of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated November 28, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from an order striking out
    his application challenging a regulation adopted and enforced by the Ontario
    Securities Commission that allows individuals to purchase stocks in the exempt
    market if they meet minimum income and net worth thresholds. His application
    rested on the premise that economic class should be recognized as an
    analogous ground under s. 15 (1) of the
Canadian Charter of Rights and
    Freedoms
. The motion judge struck the application without leave to amend
    under r. 21.01(1)(b) because she reasoned that his position that economic
    class should be recognized as an analogous ground under s. 15 was doomed to
    fail.

[2]

We agree with the cogent reasons of the motion
    judge. We do not accept the appellants argument that the motion judge erred by
    making a finding of fact by holding economic class is not an immutable
    personal characteristic. She used that phrase, not in making a finding of
    fact, but in quoting from para. 13 of the Supreme Courts judgment in
Corbiere
    v. Canada (Minister of Indian and Northern Affairs)
, [1999] 2 S.C.R. 203.
    She went on to observe that the Supreme Court added that an analogous ground
    flows from the central concept of immutable or constructively immutable
    personal characteristics and impacts on a discrete and insular minority, or a
    group that has been historically discriminated against:
Corbiere
, at
    para. 13. It is clear in the context of the decision as a whole that the
    appellants application did not disclose sufficient facts to meet the
    requirements to establish an analogous ground, as set out in
Corbiere
.

[3]

Nor do we accept the appellants argument that
    the motion judge improperly reversed the onus on the respondents motion to
    strike.
The motion judge correctly identified that
[t]he
    facts pleaded are the firm basis upon which the possibility of success of the
    claim must be evaluated:
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC
    42, [2011] 3 S.C.R. 45, at para. 22. She then identified the legal test that
    the facts pleaded had to satisfy in order for the application to not be struck.
    The motion judge held that the applicant ha[d] not pleaded any material facts
    to show that all Canadians who cannot meet the impugned thresholdshared any
    personal characteristic beyond an inability to meet the threshold. The motion
    judge also noted that the appellant failed to plead that this grouphas
    suffered historic disadvantage or is at risk of having such disadvantages
    perpetuated by stereotyping or prejudice. When her reasons are read as a
    whole, it is clear the motion judge struck the application because she was
    satisfied there was no reasonable prospect it would succeed because the law was
    sufficiently settled as applicable to the facts as pled by the appellant.

[4]

We agree that there was no chance that the
    economic class of the vast majority of Canadians who would be precluded from
    investing in the capital markets for their inability to meet the impugned
    threshold, could acquire the status of a protected group under s. 15 of the
Charter
.
    The application cannot be amended to avoid that result. The motion judge did
    not err in principle or act unreasonably in refusing the appellant leave to
    amend his application.

[5]

The appeal is dismissed. Costs are fixed in the
    amount of $10,000 all-inclusive.

R.G. Juriansz J.A.

K. van Rensburg J.A.

Sossin J.A.