COURT OF APPEAL FOR ONTARIO

CITATION:

Toronto Standard Condominium
    Corporation No. 1633 v.
Baghai Development Limited, 2012 ONCA 417

DATE: 20120619

DOCKET: C52283

Rosenberg, Simmons and Armstrong JJ.A.

BETWEEN

Toronto Standard Condominium Corporation No. 1633

Applicant (Respondent/Appellant
    by way of cross-appeal)

and

Baghai Development Limited and Rabba Fine Foods
    Inc.

Respondents (Appellants/Respondents
    by way of cross-appeal)

Kevin D. Sherkin, for the appellant/respondent by way of
    cross-appeal Baghai Development Limited

Wolfgang Kaufmann, for the appellant/respondent by way
    of cross-appeal Rabba Fine Foods

Jonathan H. Fine and Bradley Chaplick, for the
    respondent/appellant by way of cross-appeal Toronto Standard Condominium
    Corporation No. 1633

Heard: January 3, 2012

On appeal from the orders of Justice Lois B. Roberts of
    the Superior Court of Justice, dated June 11, 2010 and May 13, 2011, with
    reasons reported at 2011 ONSC 2307, and from the costs endorsements dated June
    14, 2011, with reasons reported at 2011 ONSC 2560, and June 22, 2011, with
    reasons reported at 2011 ONSC 3909.

Armstrong
    J.A.:

[1]

This appeal arises from a relatively simple, fact-specific dispute:  can
    a grocery store in a commercial condominium unit display its merchandise on the
    adjacent sidewalk?  The rules of the condominium corporation say no.  The terms
    of grocery stores lease say yes.  The parties disagree over which document
    governs, and brought competing applications in the Superior Court to resolve
    the issue.

[2]

Following a protracted legal battle, the application judge held in the
    condominium corporations favour.  She proceeded to award the condominium
    corporation roughly half of what it sought in costs.  The grocery store and its
    landlord appeal on the merits.  The condominium corporation seeks leave to
    appeal the costs award.

[3]

As I will explain, I agree with the application judge that the
    condominium corporations rules take precedence over the grocery stores
    lease.  I would therefore dismiss the main appeal.  On the cross-appeal, it
    appears that the application judge discounted counsels hourly rates
    significantly because she thought the amounts claimed were excessive.  But she
    did not clearly explain how she arrived at the costs award, which makes it
    impossible for this court to assess its reasonableness.  I conclude,
    reluctantly given the already lengthy history of these proceedings, that leave
    to appeal costs should be granted and the matter should be remitted to the
    application judge for a reconsideration if the parties cannot resolve it
    themselves.

BACKGROUND

The parties

[4]

Baghai Development Limited ("Baghai") owns a number of
    commercial units in a mixed-use condominium project in the Yonge-Sheppard area
    of Toronto.  Baghai leases five ground-floor units to Rabba Fine Foods Inc.
    ("Rabba"), a grocery store.    Toronto Standard Condominium
    Corporation No. 1633 (TSCC) operates the condominium complex.

The dispute

[5]

From the time the condominium complex opened in 2005, Rabba displayed
    fruits and vegetables on two carts on the sidewalk in front of its store.
    Rabba also occasionally displayed merchandise, including flowers and seasonal
    items such as pumpkins and firewood, directly on the sidewalk next to the
    produce carts.

[6]

TSCC objected to this practice at the outset.  It argued that Rabbas
    outdoor displays violated the condominium corporations declaration and rules
    prohibiting the use of common elements, including sidewalks, for anything other
    than ingress and egress. Baghai and Rabba maintained that their lease agreement
    expressly allowed Rabba to display its wares on the sidewalk.  The relevant
    portions on these documents are set out in an appendix at the end of these
    reasons.

[7]

In 2005, and again in 2007, the parties agreed that Rabba could continue
    to use the sidewalk to display merchandise, provided certain conditions were
    met.  But there were still complaints, and in 2009, TSCC brought an application
    against Baghai and Rabba for compliance with the declaration and rules of the
    condominium corporation pursuant to s. 134 of the
Condominium Act, 1998
,
    S.O. 1998 c. 19 (the "Act").

[8]

Baghai and Rabba opposed the application on three bases.  First, they
    argued that the application was barred by the two-year limitation period in the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.  Second, they
    argued that the registration of Rabbas lease bound TSCC and all unit holders
    in the condominium.  Third, they argued that a trial was required to determine
    whether TSCC was bound by the terms of the 2005 and 2007 agreements to allow
    Rabba to continue using the sidewalk for display.

PROCEEDINGS BEFORE THE APPLICATION
    JUDGE

[9]

The hearing before the application judge proceeded in three stages.

(1)

The first stage:
    spring 2010

[10]

TSCCs
    application was heard on May 26 and 27, 2010.  In an endorsement dated June 10,
    2010, the application judge found that Rabbas use of the sidewalk was
    expressly prohibited by TSCCs declaration and rules.

[11]

On
    the limitations issue, the application judge acknowledged that TSCC had
    complained to both Rabba and Baghai about the outdoor displays as early as
    2005.  However, she concluded that TSCCs application was not time-barred.  She
    explained, at para. 5:

The undisputed evidence establishes very clearly that the
    manner in which Rabba has been using the common elements for display purposes
    is not uniform or constant, and has fluctuated since Rabbas use first came to
    the applicants attention and became the subject of the applicants complaints
    to Baghai from 2005 to the present time.
As such, Rabbas impugned use of
    the common elements is not an isolated act but a series of different and
    separate uses of the sidewalk for the purposes of displaying its merchandise in
    various ways, each of which constitutes fresh breaches of the rules, thus
    giving rise to separate causes of action by the condominium corporation.
[Emphasis added.]

[12]

The
    application judge also rejected the related argument that TSCC had waived its
    right to demand compliance with its declaration, rules and by-laws.  In so
    holding, she relied on s. 33 of the TSCCs declaration, which states:

The failure to take action to enforce any provision contained
    in the Act, the Declaration, the by-laws or the Rules of the Corporation,
    irrespective of the number of violations or breaches which may occur, shall not
    constitute a waiver of the right to do so thereafter, nor shall same be deemed
    to abrogate or waive any such provision.

[13]

The
    application judge then considered, and rejected, the argument that the
    registration of the notice to lease was binding on TSCC and all unit-owners in
    the condominium.  She explained, at para. 13:

The notice to lease expressly provides that Rabbas right to
    occupy and use the common element sidewalk for the purpose of displaying its
    merchandise is subject to compliance with all applicable laws, including  the
    condominium corporations declaration, by-laws and rules.

[14]

She
    concluded, at para. 17: Having failed to register and disclose Rabbas alleged
    right under the lease, Baghai cannot impose its private agreement with Rabba on
    the condominium corporation and its unit-owners.

[15]

Despite
    this, the application judge was nonetheless persuaded that oral evidence was
    required to determine what impact, if any, the 2005 and 2007 agreements had on
    Rabbas right to continue displaying its merchandise on the sidewalk.  She
    directed a trial on two issues:

(i)

Whether TSCC entered into binding
    agreements with Baghai and/or Rabba to allow Rabba the use of the sidewalk to
    display its goods, or if TSCC should be estopped by its acts or omissions from
    prohibiting Rabba the use of the sidewalk; and

(ii)

If there was a binding agreement,
    whether Baghai and/or Rabba breached that agreement by the manner in which
    Rabba displayed its goods.

(2)

The second stage:
    fall 2010

[16]

The
    trial of the issues was scheduled for November 15 and 16, 2010.  Five days
    before the trial was to start, Baghai filed an application for relief from
    oppression under s. 135 of the Act.  In the application, Baghai claimed that
    TSCC acted oppressively by failing to honour the agreements with Baghai and
    Rabba to permit the sidewalk displays.

[17]

The
    trial of the issues proceeded as scheduled on November 15 and 16 2010.  One
    additional hearing day was required, on December 8, 2010.

[18]

The
    application judge delivered her endorsement in respect of the second stage on
    May 13, 2011.  She concluded that neither the 2005 nor the 2007 agreements
    bound TSCC to permit Rabba to display its merchandise on the sidewalk.  She
    also held that Rabba had breached its obligation not to display merchandise on
    the sidewalk.  Finally, she refused Baghais request to reconsider the
    limitations issue, and confirmed her earlier decision that the limitation
    period had not expired.

The effect of the 2005 and 2007 agreements

(a)    The 2005 Agreement

[19]

The
    2005 agreement was described by one of TSCCs witnesses as a gentlemans
    agreement and an informal, good faith gesture meant to ensure a positive
    working relationship between the condominium board and Rabba.  The application
    judge accepted this evidence.  She found, at para. 40, that the 2005 agreement
    was a working arrangement to allow Rabba to put display stands in front of its
    store in exchange for Rabba giving up its advertising rights on its windows.
    She characterized the 2005 agreement, at para. 42:

I agree with [TSCCs] characterization that the agreement
    represented a compromise to accommodate a valued tenant but that it was clearly
    an arrangement that was subject to termination if Rabba did not maintain its
    stands in a neat condition or if Rabba placed anything on the common element
    sidewalk.

[20]

The
    application judge then turned her mind to whether there had been any breaches
    of the 2005 agreement.  She found that over the course of the next two years,
    there were a number of complaints that Rabba was not holding up its end of the
    bargain.  The complaints were not necessarily related to the stands, but rather
    with Rabba placing boxes of pumpkins, apples, bread bins, milk cans, charcoal,
    barbeque starters, fireplace logs and flowers on the sidewalk.  TSCC expressed
    concerns both about the safety of these items blocking the sidewalk, and about
    their unsightly appearance.

[21]

TSCC
    raised these issues with Baghai and Rabba and demanded that all displays be
    removed.  In a memorandum dated May 10, 2007, Shane Baghai, the principal of
    Baghai Development Limited, conceded that Rabba had failed to comply with the
    2005 agreement:

I visited Rabbas store today and I have to agree that the
    displays are excessive, poorly displayed, and with inappropriate items such as
    barbeque starters (hazardous accelerants, charcoal, etc.).  Furthermore, the
    displays had occupied more than 50% of the sidewalk and pedestrian row.

I spoke to Jack Rabba last week, who sounded extremely
    understanding, who promised to talk to Sam, the store manager.  Apparently, Sam
    has not taken heed.

[22]

The
    application judge concluded, at para. 61, that the 2005 agreement was breached
    by Rabbas excessive and inappropriate displays.

(b)     The 2007 Agreement

[23]

In
    the spring of 2007, the parties tried again to resolve the dispute.  As a
    result of a meeting on May 30, 2007, the parties reached an agreement which
    provided, in part:

·

Rabba agreed to specific limits on the location, height, and
    contents of its sidewalk display stands;

·

Rabba agreed not to store any racks, pallets, boxed or
    shipping-related items on the sidewalk, other than for a two-hour unloading
    period;

·

There would be a 60-day trial period to allow the parties to gauge
    the level of cooperation and goodwill;

·

The condominium Board had to approve the terms of the agreement,
    and any resulting permanent agreement was to be approved by the Board, in
    writing, and signed by all of the parties; and

·

In the event that the agreement was flagrantly violated, TSCC
    could require the immediate removal of all items outside Rabbas store.

[24]

Rabba
    apparently complied with this arrangement during the trial period.  However, by
    the fall of 2008, the evidence suggests that Rabba was in breach of its 2007 agreement
    for the same kinds of violations as before.  The application judge held, at
    para. 99:

The evidence establishes that, while not as flagrant as
    before, after May 30, 2007, Rabbas displays continued to be messy and Rabba
    continued to place and leave items on the common element sidewalk and not on
    the display stands (other than temporarily for the purpose of receiving
    deliveries) in breach of its agreement with the applicant and Baghai.

(c)     Were the agreements enforceable against TSCC?

[25]

The
    application judge concluded that Rabba had breached the 2005 agreement.  That
    agreement was subsequently replaced by the 2007 agreement, which Rabba also
    breached.  The application judge further concluded that, regardless of the
    latter breach, the 2007 agreement was expressly subject to permanent approval
    by the TSCC board.  Since that approval was never sought or obtained, the
    agreement was not enforceable.

(d)     The oppression application

[26]

In
    its oppression application, Baghai sought to require TSCC to enter into an
    agreement that would permit Rabba to display its merchandise in front of its
    store.  It relied on s. 98 of the Act, which provides in part:

An owner may make an addition, alteration or improvement to the
    common elements that is not contrary to this Act or the declaration if,

(a)The board, by
    resolution, has approved the proposed addition, alteration, or improvement.

[27]

Baghai
    relied on the evidence of two Board members who testified that if they had
    known what needed to be done to enter into a permanent agreement, the Board
    would have done so.  Baghai claimed that the Boards failure to honour its
    agreements constituted oppressive conduct under s. 135 of the Act.

[28]

In
    light of all the circumstances, including the fact that a permanent agreement
    was never reached, the application judge concluded that TSCCs conduct was not
    oppressive. Further, she held that there was no agreement to enforce in any
    event.  She explained, at para. 124:

Although Baghai argues that the applicant should be compelled
    to honour its agreement, there is no agreement that this court can enforce.
    In the circumstances of this case, where there are so many variables to be
    negotiated and concluded, this court has no jurisdiction to compel the parties
    to negotiate a permanent and an enforceable agreement or arrangement in
    accordance with the Act and the applicants Declaration, By-laws and Rules.

(e)     The limitations issue revisited

[29]

Finally,
    Baghai submitted that as a result of further evidence provided at the trial of
    the issues, as well as an intervening decision of the Divisional Court, the
    application judge should reconsider and change her decision in respect of the
    limitation period.  She declined to do so.

(3)

The third stage:
    spring 2011

(a)

The parties submissions

[30]

The third stage of the proceedings before the application judge
    concerned costs.  TSCC claimed partial indemnity costs of $172,373.01 and full
    indemnity costs of $199,020.97.  TSCC argued that it was entitled to the higher
    amount by virtue of s. 134(5) of the
Condominium Act, 1998
, which
    provides:

If a corporation obtains an award of damages or costs in an
    order made against an owner or occupier of a unit, the damages or costs,
together
    with any additional actual costs to the corporation in obtaining the order,
    shall be added to the common expenses for the unit
. [Emphasis added].

[31]

Baghai
    and Rabba acknowledged that, as the successful party, TSCC was entitled to an
    award of costs.  However, they disputed TSCCs entitlement to full indemnity
    costs, and also argued that the amounts claimed were excessive.  They suggested
    an award of $80,000, plus or minus disbursements, was appropriate.

(b)

The application
    judges June 14, 2011 costs endorsement

[32]

The
    application judge began her analysis by reviewing the principles established by
    this court in
Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline
    Executive Properties Inc.
(2005), 197 O.A.C. 144 (C.A.).  In that case,
    Doherty J.A. explained the distinction between an award of costs under s. 131
    of the
Courts of Justice Act
, R.S.O. 1990, Chap. C. 43, and
    additional actual costs under s. 134(5) of the Act.  He wrote, at para. 8:

An award of costs refers to the costs that the court orders
    one litigant to pay to another litigant.
Additional actual costs
    can encompass those legal costs owing as between the client and its own lawyer
    beyond the costs that the court had ordered paid by an opposing party
. To
    the extent that the legal bills owed by MTCC to its own lawyers exceeded the
    costs awarded against Skyline, MTCC could properly add those amounts to the
    common expenses of the Skyline units as long as MTCC could demonstrate that
    those additional legal costs were incurred in obtaining the compliance order.
    [Emphasis added.]

[33]

Justice
    Doherty also drew a distinction between obtaining an order and enforcing an
    order, and concluded that only costs related to obtaining an order can be added
    to the losing partys common expenses pursuant to s. 134(5).

[34]

Applying
    these principles to the case before her, the application judge held that TSCCs
    additional actual costs excluded any amount spent defending Baghais
    oppression application, because those costs did not relate to obtaining the
    compliance order.

[35]

The
    application judge went on to observe that the only additional actual costs
    submitted by TSCC were the fees and disbursements charged by counsel in excess
    of the partial indemnity costs.  She held, at para. 14, that the determination
    of these additional actual costs was subject to the courts discretion under
    s. 131(1) of the
Courts of Justice Act
and rule 57.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.  She explained, at para. 15:

In other words, section 134(5) of the
Condominium Act
,
    1998
, does not allow the applicant to expend or authorize its counsel to
    expend any amount and then ask that it be completely indemnified for costs that
    are otherwise disproportionate and unreasonable. The Court retains its
    discretion to determine what amount of costs is fair and reasonable and to
    award no costs where appropriate.

[36]

The
    application judge accepted that TSCC was entitled to full indemnity for
    counsels appearances at cross-examinations and the various court hearings.
    However, she concluded that the amounts claimed for preparation and research
    (over 330 hours in total) were overkill given the relative simplicity of the
    legal issues, on the one hand, and the expertise of TSCCs counsel, on the
    other.  She explained, at para. 22, that TSCC could have avoided much of the
    expenses claimed if it had tried to negotiate or arbitrate a solution, instead
    of embarking on a scorched earth campaign.

[37]

Ultimately,
    the application judge fixed TSCCs costs and additional actual costs at
    $95,000, including disbursements and taxes.

(b)     The application judges
    addendum of June 22, 2011

[38]

The
    application judge released her costs endorsement on June 14, 2011, before she
    had received TSCCs reply submissions.  She subsequently reviewed those
    submissions and released an addendum on June 22, 2011.

[39]

In
    the addendum, at para. 5, the application judge reiterated that TSCC was entitled
    to full indemnity for its fair and reasonable costs related to obtaining the
    compliance order.  She also held that TSCC was entitled to fair and
    reasonable partial indemnity costs for its successful defence of Baghais
    oppression application.  The dockets TSCC provided revealed that counsel spent
    $5,846.00 defending the oppression application. (These dockets do not appear to
    have been included in the appeal materials.)  The application judge added
    partial indemnity fees of $1,500 on this amount.

[40]

The
    application judge also accepted that TSCC spent an additional $3,918.11 on
    photocopying related to the compliance order.  She reimbursed TSCC in full for
    this amount as part of its additional added costs.

[41]

The
    application judge therefore fixed TSCCs costs at $100,418.11, including taxes
    and disbursements.

THE APPEAL AND THE CROSS-APPEAL

[42]

Baghai
    and Rabba raise three issues on appeal:

(1)

Did the application judge err by failing to find
    that the two-year limitation period had expired?

(2)

Did the application judge err by concluding that the
    waiver provisions in TSCCs declaration trump the
Limitations

Act, 2002
?

(3)

Did the application judge err by failing to grant
    the cross-application for relief from oppression?

[43]

TSCC
    seeks leave to appeal the costs order.  Its principal submission is that that
    the application judge erred by failing to order full indemnity costs, in
    accordance with s. 134(5) of the Act as interpreted by this court in
Skyline
.

[44]

I
    will address each issue in turn.

ANALYSIS: THE MAIN APPEAL

(1)

Did the application judge err by failing to find that the two-year
    limitation period had expired?

[45]

Baghai
    submits that the application judge erred by finding that the various breaches
    of the condominiums declaration, by-laws and rules were not uniform or
    constant, thereby constituting fresh breaches giving rise to separate causes of
    action.  Rather, Baghai submits, the limitations clock started running in 2005
    when TSCC first raised objections to Rabbas use of the sidewalk.

[46]

In
    the alternative, Baghai submits that even if the evidence established that
    there were a series of separate breaches giving rise to distinct causes of
    action, TSCC was only entitled to pursue those breaches that occurred within
    the applicable two-year limitation period.  Since TSCCs application was filed
    on September 2, 2009, only those alleged breaches that occurred after September
    2, 2007, were actionable.

[47]

TSCC
    responds that the
Limitations Act, 2002,
does not apply because the
    basis of its application does not amount to a claim within the meaning of
    that statute.  The application judge does not appear to have addressed this
    question.

[48]

In
    the alternative, TSCC submits that if a limitation period applies here, it is
    the ten-year limit for adverse possession claims set out in the
Real
    Property Limitations Act
, R.S.O. 1990, Chapter L. 15.

[49]

In
    the further alternative, TSCC submits that Baghai and Rabba were in a continuing
    state of breach, and that there is no time limit for compliance with the terms
    of the
Condominium Act, 1998
.

[50]

Finally,
    TSCC submits that in August 2009, Rabba moved a display table on the sidewalk
    and affixed it with a lock.  This constituted a new and actionable breach, to
    which TSCC responded the following month by bringing its application.

[51]

Assuming
    that the
Limitations Act, 2002,
does apply and that the relief sought
    falls within the basic two-year period, Baghais appeal on this ground still fails.
    There was evidence before the application judge to support her finding that the
    limitation period had not expired because of the repeated, and varied, nature
    of Rabbas misconduct.  Even if only those breaches that occurred after
    September 2, 2007 were actionable, those incidents alone were more than
    sufficient to entitle TSCC to the relief requested.

(2)     Did the
    application judge err by finding that the waiver provisions in TSCCs
    declaration trump the
Limitations Act, 2002
?

[52]

Baghai
    submits that the application judge erred by essentially concluding that the
    general waiver clause  in s. 33 of the condominium declaration trumps the
    limitation periods mandated in the
Limitations Act, 2002
. In support
    of this submission, Baghai points to s. 22(1) of the
Limitations Act, 2002
,
    which provides: A limitation period under this Act applies despite any
    agreement to vary or exclude it, subject only to the exceptions in subsections
    (2) to (6).  None of the exceptions apply in this case.

[53]

TSCC
    responds that there is no conflict between s. 33 of its declaration and s. 22
    of the
Limitations Act, 2002
, because the latter does not apply to
    compliance proceedings brought under the
Condominium Act
.

[54]

As
    I have already explained, I am satisfied that the conduct complained of here
    falls within the statutory two-year limitation period.  Accordingly, it is
    unnecessary for me to decide this issue.

(3)     Did
    the application judge err by failing to grant the cross-application for an
    oppression remedy?

[55]

In
    support of its oppression claim, Baghai submits that both it and Rabba had a
    reasonable expectation that the 2005 agreement was valid and binding.  Baghai
    further argues that the application judges distinction between permanent and
    temporary agreements is meaningless, because all the parties clearly thought
    the agreement was valid.  Baghai submits that if the agreements were
    unenforceable, it is only because TSCC failed to make them enforceable  i.e.
    by seeking Board approval to make them permanent.  This, Baghai argues, is
    oppressive behaviour.

[56]

Baghai
    also argues that the application judge erred by failing to differentiate
    between Rabbas permitted and non-permitted uses of the sidewalk.  Baghai
    submits that the 2005 and 2007 agreements allowed Rabba to display its
    merchandise on stands in front of the store.  The agreements did not allow
    Rabba to store all manner of items (e.g. bread skids and shipping pallets)
    outside. In fact, Baghai argues, it did not countenance the latter actions.

[57]

In
    my view, there was ample evidence to support the application judges conclusion
    that TSCC did not act oppressively against Baghai and Rabba.  I also accept
    that the evidence supported the application judges finding in respect of the
    lack of a permanent agreement and therefore her conclusion that there was no
    agreement to enforce.  Finally, she was entitled to conclude that the use of
    the display stands and of the adjacent sidewalk space were not separate issues
    and that both kinds of display were prohibited under the declaration, by-laws
    and rules of the condominium corporation.

ANALYSIS: THE CROSS APPEAL

[58]

Counsel
    for TSCC raised a number of issues on the costs appeal.  However, I find it
    necessary to deal with only two of the issues to dispose of the costs appeal:

(1)   Did the
    application judge err by failing to award full indemnity costs in respect of
    the oppression application?

(2)   Did the
    application judge err in her approach to additional actual costs under s.
    134(5) of the Act?

(1)     Did
    the application judge err by failing to award full indemnity costs in respect
    of the oppression application?

[59]

TSCC
    submits that the oppression application was no more than a defence to the
    compliance application, and its costs beyond partial indemnity rates in
    responding to the oppression application should therefore be characterized as
    additional actual costs to which full indemnity rates apply.

[60]

I
    agree with the application judges analysis on this point.  While there is
    obviously some overlap in respect of the two applications, the oppression
    application was a separate and independent application that stood on its own
    pursuant to s. 135 of the Act.  The dismissal of the oppression application
    does not attract an order for additional actual costs under s. 134(5) of the
    Act.

(2)     Did
    the application judge err in her approach to additional actual costs under s.
    134(5) of the Act?

[61]

To
    repeat, s. 134(5) of the Act provides:

If a corporation obtains an award of damages or costs in an
    order made against an owner or occupier of a unit, the damages or costs,
    together with
any additional actual costs to the corporation in obtaining
    the order
, shall be added to the common expenses for the unit and the
    corporation may specify a time for payment by the owner of the unit. [Emphasis
    added.]

[62]

As
    explained above, this courts decision in
Skyline

established
    that additional actual costs under s. 134(5) include the legal costs properly
    owed by the condominium corporation to its own lawyers in obtaining a
    compliance order, above and beyond the amounts awarded by the court or an
    assessment officer.

[63]

TSCC
    submits that the application judge confused an award of costs with additional
    actual costs and treated them as if they were the same.  According to TSCC, if
    the application judge had applied
Skyline
, she would have simply made
    a partial indemnity costs award in respect of the proceedings before her.  TSCC
    would then be free to charge the difference between the application judges
    costs award and TSCCs costs of its own lawyer (full indemnity costs) to the
    Baghai units.

[64]

However,
    counsel concedes that he did not request or suggest that the application judge
    adopt that procedure.  Rather, he simply submitted a costs outline listing both
    partial and full indemnity rates, and asked the application judge to award
    TSCCs costs on a full indemnity basis throughout.  It is difficult, after the
    fact, to say that the application judge should have done something that she was
    not asked to do.

[65]

That
    said, I conclude that the application judge erred in principle by failing to
    explain how she arrived at the quantum of costs on the compliance application.

[66]

As
    explained above, TSCC calculated its costs on a partial indemnity scale at
    $172,373.01 and on a full indemnity scale at $199,020.97.  Both amounts
    included disbursements of $11,313.01.  The only difference between the partial
    indemnity costs and the full indemnity costs was counsels hourly rates.

[67]

The
    application judge explained her approach to costs on the compliance application
    at paras. 13-15 of her costs endorsement:

[13]    ...I must assess the applicants partial indemnity
    costs and determine whether the applicant has any additional actual costs
    related to the obtaining of the compliance order against Baghai and Rabba.  In
    the present case, the only additional actual costs submitted are the legal
    fees and disbursements of Fine & Deo, the applicants counsel.

[14] As the Court must determine the applicants additional
    actual costs,
the applicants entitlement to any additional actual costs
    under section 134(5) of the Condominium Act, 1998 is necessarily subject to the
    Courts exercise of its discretion under section 131(1) of the Courts of
    Justice Act and to the application of the appropriate costs principles and
    factors set out under Rule 57.01 of the Rules of Civil Procedure and in the
    relevant jurisprudence.

[15] In other words, as noted by [counsel for Baghai] ,
    section 134(5) of the
Condominium Act, 1998
does not allow the
    applicant to expend or authorize its counsel to expend any amount and then ask
    that it be completely indemnified for costs that are otherwise disproportionate
    and unreasonable.  The Court retains its discretion to determine what amount of
    costs is fair and reasonable and to award no costs where appropriate. [Emphasis
    added.]

[68]

The
    application judge went on to hold that the amount TSCC spent on the compliance
    order was excessive given that the legal issues were relatively
    straightforward, and its counsel, Mr. Fine, is an expert in condominium law.

[69]

For
    example, she described the time counsel spent preparing the application
    materials (some 196 hours in total) as overkill.   Similarly, she found that
    the nearly 36 hours counsel spent on legal research was not warranted.

[70]

The
    application judge presumably reduced the costs order in light of these
    assessments, but she did not indicate what the deduction was, nor did she
    indicate whether she applied full indemnity rates before factoring in that
    deduction.

[71]

The
    only references in the application judges endorsement to the assessment of
    quantum on a full indemnity scale are in paras. 19(iv) and (v):

The 34.4 hours for the attendance at the 7 cross-examinations
    and 1.5 hours at triage court hearing are all related to obtaining the
    compliance order.  The time spent is not excessive but fair and proportionate.
    I have included this time on a full indemnity basis.

The applicant is entitled to full indemnity for its counsels
    court attendances on November 13, 2009, May 26, 27, November 15, 16 and
    December 8, 2010, which amount to about 40 hours.  The hours of preparation
    claimed for those attendances in excess of 100 hours  are excessive for a
    senior practitioner like Mr. Fine who is an expert in condominium law.

[72]

Unfortunately,
    it is not possible to discern from the above paragraphs what deduction was
    applied for the excessive hours of hearing preparation.

[73]

Ultimately,
    the application judge ordered Baghai and Rabba to pay costs of $95,000.  This
    was subsequently increased to $100,418.11 when additional photocopying costs
    and partial indemnity costs of defending the oppression application were included.
    This was roughly half of what TSCC spent on the application.

[74]

In
    arriving at this figure, it appears that the application judge essentially came
    up with what she thought was a reasonable amount for TSCC to have paid its
    lawyers to obtain the compliance order.  There is no arithmetic to support the
    amount of $95,000.  This may have been a reasonable number, but the calculation
    of it is not apparent from the application judges endorsement.

[75]

It
    is trite law that a trial judge has wide discretion to award costs.  An
    appellate court will not interfere unless the trial judge considered irrelevant
    factors, failed to consider relevant factors, or reached an unreasonable
    conclusion:
Canadian Pacific Ltd. v. Matsqui Indian Band
, [1995] 1
    S.C.R. 3.

[76]

Ordinarily,
    an appellate court will defer to a trial judges decision to reduce a bill of costs
    because the successful party overspent on the litigation. This holds true even
    when the trial judge does not show her work  that is, when the final number
    is not accompanied by a detailed breakdown of how it was arrived at.  Rather,
    where the record discloses a proper basis for the judges exercise of
    discretion, the absence of reasons, on its own, does not justify appellate
    intervention:
McPhee v. Canadian Union of Public Employees
, 2008 NSCA
    104, (2008), 270 N.S.R. (2d) 265 (C.A.), leave to appeal to S.C.C. refused
    [2008] S.C.C.A. No. 546.

[77]

The
    difficulty in this case is the application judge was not simply tasked with
    making an award of costs pursuant to s. 131 of the
Courts of Justice Act
and rule 57.01 of the
Rules of Civil Procedure
.  She was also asked
    and acceded to the request to make an order for additional actual costs under
    s. 134(5) of the
Condominium Act, 1998
.  Both types of costs orders
    must be reasonable, but the measure of reasonableness differs with each. In my
    view, this is where the application judge fell into error.

[78]

Justice
    Doherty explained the distinction in
Skyline
, at para. 45:

As actual legal costs refers to those costs properly claimed by
    a lawyer against his or her own client, the principles governing the assessment
    of legal bills as between a lawyer and his or her client, should govern any
    dispute between MTCC and Skyline as to the propriety of any part of the legal
    bills relied on by MTCC in support of a claim for additional legal costs
    under s. 134(5): see Mark M. Orkin,
The Law of Costs
, 2
nd
ed., looseleaf (Aurora, Ont: Canada Law Book Inc., 2004) at 602FF.

[79]

In
    the above reference, Mr. Orkin says the following:

There is a clear distinction between a judge fixing the costs
    of a successful litigant and an assessment officer assessing the fees of the
    successful litigants counsel.  A judge fixing costs must determine what is
    reasonable for the losing party to pay.
By contrast, an assessment officer
    conducting a solicitor-client assessment must determine what is reasonable for
    the client to pay in light of the circumstances between the solicitor and the
    client.
These analyses, it has been held, can lead to different results,
    especially where the judge fixes fees based, in part, on docketed time and the
    assessment officer assesses fees by applying
quantum meruit
. [Emphasis
    added.]

[80]

At
    para. 14 of her costs endorsement, the application judge held that TSCCs
    entitlement to additional actual costs was necessarily subject to the
    courts exercise of discretion under s. 131(1) of the
Courts of Justice Act
and rule 57.01 of the
Rules of Civil Procedure
.  In the addendum to
    her costs endorsement, at para. 5, the application judge noted that TSCC was
    entitled to full indemnity
for its fair and reasonable costs
related
    to obtaining the compliance order (emphasis added).  But she does not explain
    in either passage whether the costs ordered were fair and reasonable for
    Baghai and Rabba to pay TSCC (as with an award of costs), or whether they were
    fair and reasonable for TSCC to pay its own lawyers (as with an award under
    s. 134(5)).  Only the latter assessment was relevant.

[81]

If the application judge assessed the reasonableness of the
    additional actual costs by reference to what Baghai and Rabba could be
    expected to pay the winning party, TSCC, this was an error in principle.  If
    the application judge assessed the reasonableness of the additional actual
    costs by reference to what TSCC could be expected to pay its own counsel, she
    failed to explain how she arrived at what she thought was the right amount.
    This, too, was an error in principle.

[82]

I
    conclude reluctantly, given the already drawn-out nature of the litigation,
    that the matter of costs should be remitted to the application judge for
    reconsideration.  While the appropriate scale of costs for the application
    judge to consider would ordinarily be restricted to the partial indemnity
    scale, counsel, as I have already observed, requested the judge to make an
    award that includes additional actual costs.  While this should not be taken
    as the normal course, I would make such an order in the circumstances of this
    case in order to avoid further prolonged litigation.

[83]

The
    reconsideration should start from the premise that TSCC is entitled to be fully
    indemnified for having obtained the compliance order.  The application judge
    must then explain what amounts, if any, should be deducted based on the
    principle of
quantum meruit
.

[84]

In
    remitting the matter back to the application judge, I emphasize that while s.
    134(5) of the Act may entitle TSCC to more than it would get in an ordinary
    award of costs, the provision for additional actual costs does not
    automatically lead to whatever amount is claimed.  Section 134(5) does not give
    counsel licence to spend the clients money with impunity.

[85]

As
    I have just explained, there is a difference between the quantum of costs a
    losing party is reasonably expected to pay to the successful party, and the
    quantum of costs the successful party is reasonably expected to pay its own
    lawyer.  But reasonableness remains the touchstone of both analyses.

DISPOSITION

[86]

I
    would dismiss the appeal on the merits in respect of the compliance application
    and the oppression application.  I would grant leave to appeal the costs award
    and allow the costs appeal.  I would refer the costs back to the application
    judge for reassessment.  In light of the already protracted history of this
    dispute I would urge the parties to sit down and attempt to settle the costs,
    and, failing which, to seek an expedited date for this matter.

Costs of the main appeal

[87]

In
    accordance with Skyline, TSCC is entitled to partial indemnity costs for the
    costs of responding to the appeal of the compliance order, plus additional
    actual costs in accordance with s. 134(5) of the Act. In respect of the
    oppression application appeal, TSCC is entitled to partial indemnity costs.

[88]

If
    the parties cannot agree on what these costs should be, then counsel for TSCC
    should submit a new bill of costs and costs submissions limited to seven pages,
    double-spaced, within 15 days of the release of these reasons. Counsel for
    Baghai and Rabba can then file a response within ten days, limited to seven
    pages, double-spaced.

Costs of the cross-appeal

[89]

To
    a great extent TSCC was responsible for the problems associated with the costs
    order made by the application judge. In these circumstances I would make no
    costs award in respect of the cross-appeal.

Released:

JUN 19 2012                                    Robert P.
    Armstrong J.A.

MR                                                  I
    agree M. Rosenberg J.A.

I
    agree Janet Simmons J.A.

APPENDIX

TSCC No. 1633 Declaration

Section 12(a): Each owner may make reasonable use of and has
    the right to occupy and enjoy the whole or any part of the common elements, and
    each owner has the right to make reasonable use of, and has the right to enjoy
    and exclusive use common element area which has been designated to his Unit in
    Schedule F, subject to any conditions and restrictions set out in the Act,
    the Declaration, the Corporations by-laws, and the Rules and easement and
    rights registered against the property.  However, no condition shall be
    permitted to exist and no activity shall be carried out in the common elements
    that is likely to damage the property or that will unreasonably interfere with
    the use or enjoyment by other Owners of the common elements and the other
    Units.

Section 12(b): No Owner shall make any installation or any
    change or alteration to an installation upon the common elements, or maintain,
    decorate, alter or repair any part of the common elements, except for
    maintaining those parts of the common elements which he has a duty to maintain,
    without obtaining the written approval of the Corporation in accordance with
    the Act, unless otherwise provided for in this Declaration.

Section 18(c)(4): Notwithstanding any provision in this
    Declaration or in any by-laws or Rules hereafter passed or enacted to the
    contrary, an owner of a retail Unit, its tenant and their designated agents
    and/or employees shall not be permitted access to any portion of the common
    elements save and except to gain access to and egress from his retail Unit.

Schedule A of By-Law No. 1

Section 9: The sidewalks, entry, passageways, walkways and
    driveways used in common by the owners shall not be obstructed by any of the
    owners or used by them for any purpose other than for ingress and egress to and
    from their respective units.

Offer to lease

Section 8: [T]he landlord specifically grants to the Tenant
    an exclusive and irrevocable licence to use the area outlined in yellow on
    Schedule A attached hereto, at no extra charge to the Tenant, for the purpose
    of the seasonal display of fresh produce, fresh flowers, live plants and other
    temporary sales kiosks in such a manner as not to impede the safe flow of
    pedestrian traffic around the area, and subject to compliance with all
    applicable laws.


COURT OF APPEAL FOR ONTARIO

CITATION:
Trebilcock v. Trebilcock, 2012
    ONCA 452

DATE: 20120628

DOCKET: C51561

Goudge, Juriansz and Ducharme JJ.A.

BETWEEN

Linda Trebilcock

Applicant (Respondent in appeal)

and

Brian Trebilcock

Respondent (Appellant)

Robert Martin, for the respondent (appellant)

Geoffrey Carpenter, for the applicant (respondent in
    appeal)

Heard: June 14, 2012

On appeal from the order of Justice D.R. Gray of the Superior
    Court of Justice, dated December 17, 2009.

ENDORSEMENT

[1]

At the outset of this appeal, counsel advised that the respondent had died
    and the appeal was subject to the automatic stay provided for by rule 11.01. We
    made an order that the proceeding could be continued by the respondents sister
    Mary Llewellyn as litigation administrator.

[2]

This appeal is allowed in part.

[3]

Counsel for the appellant argues that there was no basis in the record
    to support attributing an income of $75,000 per year to the appellant. That may
    well be. The record seems to indicate that the appellant was incapable of
    earning income and the motion judge remarked early in his reasons that it was
    highly unlikely that he would ever have any earned income. Counsel submits that
    the greatest income that could be attributed to the appellant is $30,000 per
    year given the investment income his capital assets would generate and his CPP
    income.

[4]

However, we do not read the motion judge's award as based on an
    attribution of income.  We note that the motion judge said he would attribute
    the income if necessary" to support his determination that the appellant
    should pay monthly support of $1,098.  It was not necessary.  It seems to us
    that the judge exercised his discretion under s. 10(1) of the Child Support
    Guidelines to order an amount of support different than that set out in the
    tables. Here the mother of the children was disabled at the time of the order
    and was raising the children on social assistance. She had received no support
    from the appellant since 2001. The appellant while incapable of earning an
    income had inherited significant capital assets and had dissipated a portion of
    them.  The children were reaching a post- secondary education age.

[5]

The level of support and the order that it be paid as a lump sum were
    entirely reasonable in the unique circumstances of this case, particularly
    given the evidence of dissipation of assets by the appellant.

[6]

The respondent concedes that the vesting order was not appropriate in
    this case.  Given the motion judges finding that the value of the appellants
    house significantly exceeded the amount of the lump sum support order, the
    motion erred by ordering that the property would vest absolutely in the
    respondent if the lump sum support was not paid.

[7]

The appeal of the order that lump sum child support in the amount of
    $150,000 be paid is dismissed.

[8]

The vesting order is set aside and replaced by an order that the
    Mountainside Drive property in Burlington stand as security for the support
    order within the meaning of section 41(10)(e) of the
Family Responsibility and Support Arrears
    Enforcement Act
, 1996
,
SO 1996, c 31
.

[9]

In view of the respondent's death, the order that the appellant pay lump
    sum child support in the amount of $150,000 to her solicitor is varied to order
    that Brian Trebilcock shall pay child support to the estate of Linda Trebilcock
    for the benefit of the two children Jacob and Megan in the amount of $150,000.
    The estate shall hold this amount in trust for Jacob Trebilcock and Megan
    Trebilcock to be paid to the person appointed as guardian of the children to
    meet the childrens needs.

[10]

Unless
    the order is withdrawn from the office of the Director, Family Responsibility
    Office, it shall be enforced by the Director, and amounts owing under the order
    shall be paid to the Director, who shall pay them to the person to whom they
    are owed.

[11]

The
    Director, Family Responsibility Office, shall hold any of the money received in
    respect of this support order pending the appointment of an executor to
    administer the estate of Linda Trebilcock as provided by section 56(2) of the
Family
    Responsibility and Support Arrears Enforcement Act.

[12]

In
    the event the ordered payment is not made within 30 days, this court orders
    that the Director, Family Responsibility Office may have the property seized
    and sold to satisfy any outstanding amount owing under the support order.

[13]

Counsel
    have advised the court that no costs order is necessary.

S.T. Goudge J.A.

R.G. Juriansz J.A.

Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Walsh v. Ontario
    (Disability Support Program), 2012 ONCA 463

DATE:  20120629

DOCKET: C54712

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Diane Walsh

Appellant

and

Director of the Ontario Disability Support
    Program

Respondent

Lesli Bisgould and Martha Macfie, for the appellant

Mimi Singh, for the respondent

Heard: April 20, 2012

On appeal from the order of the Divisional Court (Jennings,
    Gray and Ramsay JJ.), dated March 11, 2011, with reasons by the court reported
    at 2011 ONSC 1526, allowing the appeal from the decision of the Social Benefits
    Tribunal dated December 17, 2008.

H.S. LaForme J.A.:

OVERVIEW

[1]

Diane Walsh is a 63 year old woman with numerous mental and
    physical disabilities. Since about 1993, she has been receiving disability
    benefits under the
Ontario
Disability Support Program Act, 1997
, S.O. 1997, c. 25, Sched. B
(ODSPA and the Act).
    I
n September 2005,
the Director of the Ontario Disability Support Program
    (the "Director") suspended
Ms.
    Walshs benefits as a result of her failure to comply with an eligibility
    review.

[2]

In July 2007, Ms. Walsh obtained legal assistance, sought a review of
    the Directors decision and commenced an appeal to the Social Benefits Tribunal
    (the Tribunal).  The Tribunal rescinded the Directors decision and
    reinstated Ms. Walshs benefits. It held that her non-compliance was the
    product of her disabilities, which interfered with her ability to understand what
    was required of her.  The Tribunal granted her appeal and its Acting Chair
    later confirmed the decision.

[3]

The Director appealed the Tribunals
    decision to the Divisional Court, which overturned the decision on March 11,
    2011.  It held that the Tribunal lacked jurisdiction to hear the appeal from
    the Directors decision. The appeal was statute-barred after one year from the
    date of the decision.

[4]

Ms. Walsh appeals
from
the Divisional Courts decision.

BACKGROUND

[5]

As mentioned, Ms. Walsh is 63 years old and her mental
    and physical disabilities have made it necessary for her to rely on support
    under the Ontario Disability Support Program (ODSP) and its predecessor since
    about 1993.  Her disabilities are longstanding.

A.

The History of the Suspension

[6]

In 2005, the Director of the ODSP began a routine
    financial update of Ms. Walsh's file called the Consolidated Verification
    Process.  The process is directed at verifying ongoing financial eligibility as
    prescribed by the legislation.
Between July 6, 2005, and September 13,
    2005, the Director sent five letters to Ms. Walsh seeking information to
    establish her ongoing eligibility.

[7]

In the first letter, dated July 6, 2005, the Director
    notified Ms. Walsh that she was to attend an in-person interview on July 21,
    2005, and provide certain information.  A list of the required information was
    said to be attached to the letter.  Ms. Walsh asserts that no such list was
    attached.

[8]

The second letter, dated July 21, 2005,  the same
    date that the first letter had set for an interview  notified Ms. Walsh that
    her benefits were being suspended as of August 1, 2005, because of
    "Information missing.

[9]

The third letter, dated August 4, 2005, referred
    to the income support "you receive" from the ODSP.  It made no
    reference to any suspension of her income support; rather, it indicated that an
    update of the information on file was needed.  The letter went on to advise Ms.
    Walsh that another in-person appointment had been scheduled for August 15,
    2005.  Attached to the letter was a checklist of the information required.

[10]

In August 2005, Ms. Walsh responded to the Directors letters.  Apparently,
    she sent all of the information that the Director required.  In a letter to the
    Director dated August 24, 2005, she explained why she had been slow to respond
    to the requests.  She explained her health situation and her consequent
    inability to attend a meeting.  She expressed frustration, noting that she had
    had a stroke a while back and could not handle stress.
She concluded
    the letter by saying that she could no longer fight for her disability,
    stating, I dont need it. Thanks anyway.

[11]

In response to Ms. Walshs August 2005 correspondence, the Director
    sent her two more letters, both

dated September 13, 2005.  One stated
    that her income support was suspended as of September 1, 2005, because of
    "Information missing".  However, the other letter acknowledged that
    Ms. Walsh had provided the necessary information, but indicated that she must
    come in to the office on October 5, 2005, to complete and sign a form.

[12]

Nevertheless, Ms. Walshs benefits were suspended effective
    September 1, 2005,  before the October 5 date
to complete the
    review
referred to in the Directors second letter of September 13, 2005
.

[13]

In
June 2006,
Ms. Walsh
successfully applied for income assistance under the
Ontario Works
    Act
,
1997, S.O. 1997, c. 25,
    Sched. A ("OWA").  For reference purposes, benefits through Ontario
    Works are less than those provided through the ODSP: see
Asgedom v. Ontario (Ministry of Community and Social Services),
2010 ONSC 939, 259
    O.A.C. 144, at para. 16.

[14]

On
    July 23, 2007, after receiving legal advice, Ms. Walsh asked the Director to
    extend the time for conducting an internal review of the September 2005
    decision.  By letter dated July 24, 2007, Ms. Walshs request for an internal
    review was denied because the request for internal review was due by September
    27, 2005.  The Director was not prepared to extend the time for this review.
    These facts are central to this appeal, which I will discuss in more detail
    below.

[15]

On August 7, 2007, Ms. Walsh appealed the Directors September
    2005 decision suspending her benefits to the Tribunal.  Independent of the
    appeal,
Ms. Walsh re-applied for ODSP benefits; she qualified and benefits
    were re-instated.  She was receiving benefits in 2008 when the Tribunal heard
    her appeal.  I would note, however, that the appeal is not moot given that
    disability benefits for the period when she was not receiving them are still at
    issue.

B.

The Relevant Legislative
    Provisions in Brief

[16]

Together
    with O. Reg. 222/98 (the Regulation or Reg.), the ODSPA sets out the appeal
    routes and procedure for decisions made under the Act.  An appeal of a
    Directors decision to suspend benefits lies to the Tribunal: s. 21(1).
    However, before such an appeal can be commenced, an internal review must be
    requested within 10 days of receipt of the Directors decision: ODSPA, s. 22
    & Reg., s. 58(1).
[1]
Although the Director has the power to extend the time to seek an internal
    review, its decision on the matter is not appealable: Reg., s. 58(3); ODSPA, s.
    21(2) & Reg., s. 57.

[17]

Once
    the Directors decision to suspend benefits becomes final, the appeal to the
    tribunal must be brought within 30 days: ODSPA, ss. 20(3) & 23(1) &
    Reg. S. 61(1). Finally, s. 61(2) of the Regulation provides that: No appeal to
    the Tribunal shall be commenced more than one year after the date of the
    Directors decision.

C.

The Appeal to the Tribunal

[18]

On
    appeal to the Tribunal, Ms. Walshs position was that her disabilities made her
    incapable of complying with the Directors demands to complete the review forms
    and prolonged the date of effective notice of the Directors decision to
    suspend her benefits.  She argued that she did not
receive
effective
    notice of the Directors decision until the legal clinic informed her that she
    should seek an internal review. Prior to that time, she did not understand what
    she was required to do to pursue her rights.

[19]

The
    Director took the position that the Tribunal lacked jurisdiction to hear the
    appeal because it was brought outside of the one year limitation period set out
    in s. 61(2) of the Regulation. Further, the Director had declined to extend the
    time to seek an internal review, a necessary precursor to an appeal, and there
    was no right of appeal from that decision.

[20]

On
    December 17, 2008 the presiding member of the Tribunal decided that it did have
    jurisdiction to hear the appeal.  He concluded that the deadline for internal
    review was ambiguous and should be resolved in Ms. Walshs favour.

[21]

According
    to the member, the central issue was the date on which the Directors decision
    became effective.  Relying on s. 58(1) of the Regulation, which sets outs the
    prescribed time for requesting an internal review, the member reasoned that the
    Directors decision became effective when it was received. And, received was
    interpreted as meaning the time at which the appellant understood the decision:

To be received the Appellant must receive the decision; that
    is understand it.  The Tribunal is satisfied that the Appellant did not
    understand her rights under the legislation until she attended the local legal
    clinic and explained her situation to them.  This meeting occurred less than
    ten days before the July 23, 2007 request for an Internal Review.  Therefore,
    the options before the Tribunal are to find that the date from which the time
    for an Internal Review starts is July 31, 2005 or 10 days before the appeal was
    made.

[22]

The
    member found that the health issues that disabled Ms. Walsh were also responsible
    for her failure to satisfy the Directors demands for information and attending
    meetings.  In light of this, the Director was held to have a positive duty to
    ensure that Ms. Walsh completed the forms, which included attending at her
    residence if necessary.

[23]

The
    member referred to this courts decision in
Gray v. Ontario (Disability
    Support Program Director)
2002, 59 O.R. (3d) 364, at para. 9, where it was
    held that the ODSPA is remedial legislation and should therefore be interpreted
    broadly and liberally and in accordance with its purpose of providing support
    to persons with disabilities. Furthermore, any ambiguity in its interpretation
    should be resolved in the claimants favour.

[24]

Finally,
    the member concluded that:

there is ambiguity as to the effective date of the
    Respondents decision and therefore as to the deadline for an Internal Review.
    In accordance with the
Gray
decision the Tribunal accepts jurisdiction
    of the appeal.

[25]

On
    the merits, the Tribunal concluded that the Directors decision to suspend Ms.
    Walshs benefits should be rescinded.  It ordered that Ms. Walsh was eligible
    for retroactive support from September 1, 2005, to the present.

[26]

The
    member acknowledged the Directors position that the Tribunal was without
    jurisdiction to hear Ms. Walshs appeal because she failed to appeal within the
    one year time limit, and that there was no appeal from its decision that Ms.
    Walshs review request for an internal review was out of time. However, he did
    not address these arguments in the Tribunals reasons.

D.

Tribunal (Acting Chair)

[27]

The
    Director applied to the Acting Chair of the Tribunal for a reconsideration of
    the Tribunals decision.  On March 30, 2009, the request was refused because,
    in the Acting Chairs opinion, the Tribunals reasons focused on Ms. Walshs
    problems and difficulties and found that: (i) she was incapable of complying;
    (ii) she did not understand the notice; and (iii) the ODSP is required to
    accommodate persons like Ms. Walsh.  The Acting Chair found that the Tribunals
    decision was eminently reasonable and correctly found that [it] had
    jurisdiction  the Director was incorrect in the decision to suspend Ms.
    Walshs income support.

E.

The Appeal to the Divisional Court

[28]

The
    Director appealed under s. 31 of the Act to the Divisional Court on the basis
    that the Tribunal acted without jurisdiction, and, specifically, that the presiding
    member of the Tribunal did not address: (i) the Directors refusal to extend the
    time for an internal review; or (ii) the one year limitation in s. 61(2) of the
    Regulation.

[29]

The
    Divisional Court allowed the appeal and agreed that the Tribunal acted
    without authority in hearing the appeal.  It held that regardless of the
    correct interpretation of the word received, the Tribunal lacked jurisdiction
    to hear the appeal because it was brought outside the one year limitation
    period found in s. 61(2) of the Regulation, stating at para. 5:

Even if the Board made no error in its interpretation of the
    statutory and regulatory provisions relating to the period in which an internal
    review may be requested, we are of the view that subs. 61(2) of the Regulation
    provides an overriding prescription that ends one year after the Director's
    decision is made, whenever the decision is considered final and whenever it
    becomes effective. This one-year limit applies whether or not the requirements
    for requesting an internal review are complied with.

[30]

The
    court further held that the Regulation was within the scope of the authority
    delegated to the Lieutenant-Governor-in-Council under the Act and fit within
    the purpose and scheme thereof. The court explained the purpose and scheme of
    the Act at paras. 9-11:

The scheme of the Act is to provide an expeditious review and
    appeal to a person who has been denied benefits and to provide a further
    opportunity to apply for benefits for needs that arise at a later time, or if
    new or other evidence of need becomes available. Under s. 10 of the Act, a
    person who has been denied benefits may apply again "upon new or other
    evidence or if material circumstances have changed." In fact, the
    respondent has done this and is currently receiving benefits.

The Regulation confines the review and appeal to a time period
    reasonably close to the situation that existed at the time of the denial,
    leaving later needs to be dealt with under s. 10 of the Act.  This is
    consistent with the purpose and scheme of the legislation.

The Director's decision was made on July 21, 2005.  The appeal
    was filed on August 7, 2007.  We do not need to decide whether the Tribunal had
    jurisdiction under subs. 23 (2) of the Act to extend the time for filing an appeal
    beyond the one year prescription.  The Tribunal was not asked to extend the
    time, and it did not do so.  Rather it erroneously decided that the appeal had
    been commenced within the prescribed time.  In hearing the appeal the Tribunal
    acted without jurisdiction.  The appeal is allowed and the order of the
    Tribunal is set aside.

ISSUE ON APPEAL

[31]

The focus of the appeal is whether the Divisional Court correctly concluded that the Tribunal lacked jurisdiction to hear Ms.
    Walshs appeal. Specifically at issue is whether the Tribunal erred in law in
    failing to consider the prescription against appeals commenced more than one
    year after the Director's decision is made and the Directors refusal to extend
    the time to seek an internal review.  In essence,
it is about how timelines for appealing decisions
    regarding a person's entitlement to income support pursuant to the ODSPA should
    be interpreted.

Positions of Counsel

A.      M
s. Walsh

[32]

Ms.
    Walsh, of course, favours the approach to timelines taken by the Tribunal.
    That is, she submits that timelines for appeals under the Act are contingent on
    when the Director's decision is "received".  And, just as the
    Tribunal found, she says that because of her disabilities she did not
receive
the Director's decision to suspend her
    benefits until she
understood
it.  Thus, she
    contends, her appeal was commenced within statutory time limits.

[33]

In the alternative,
Ms. Walsh
submits
that even if the appeal was commenced
    beyond the established time limits, s. 23(2) of the Act actually authorizes the
    Tribunal to extend the time for appealing a decision if it is satisfied that
    there are apparent grounds for an appeal and reasonable grounds for applying
    for the extension.

B.      T
he Director

[34]

In
    a contrary argument, the Director submits that by virtue of the combined effect
    of s. 61(2) of the Regulation and s. 21(2) para. 5 of the Act, no appeal to the
    Tribunal from a decision of the Director of the ODSP affecting eligibility for,
    or the amount of, income support, may be commenced more than one year after the
    date of the Directors decision.  Therefore, the Tribunal lacked jurisdiction
    to hear Ms. Walshs appeal since it was brought more than one year after the
    Directors September 13, 2005 decision.

ANALYSIS

[35]

I
    will discuss each of Ms. Walshs arguments in order.  Ultimately, however, I
    conclude that her appeal cannot succeed.  I arrive at the same conclusion as
    the Director; if Ms. Walshs arguments were to prevail, the purpose and scheme
    of the legislation would be thwarted.  Certainly, timelines for internal
    reviews and appeals would be virtually eliminated, unnecessary delays would
    result, and unfairness would be inserted into the scheme.  Consequently, as I
    will explain, the appeal should be dismissed.

[36]

I begin with an observation agreed on by both
    parties to this appeal: the Act and Regulation must be interpreted in
    accordance with what is termed the modern approach.  This involves a contextual
    and purposive analysis of the impugned provisions and the statute itself, the
    history of the specific provisions, the overall scheme of the Act and
    regulations, and, finally, the intention of the legislature in enacting both the
    specific provisions and the scheme as a whole:
Rizzo & Rizzo
    Shoes Ltd. (Re)
,

[1998] 1 S.C.R. 27, at para. 21.
    This is the approach I have taken.

A.      Did the Tribunal have
    jurisdiction to hear Ms. Walshs appeal?

[37]

Ms.
    Walsh contends that the Divisional Court failed to apply the correct approach
    to its interpretation of the Act.  Specifically, she argues that the court
    erred by interpreting s. 61(2) of the Regulation as providing "an
    overriding and absolute prescription on all appeals that ends one
year after the Director's decision is made, regardless
    of disability, human rights or any other issues."  I disagree.

[38]

Some
    further detail to the background of what transpired in this case and the
    working of the ODSP demonstrates the correctness of the Divisional Courts
    decision.

(i)

Additional background

[39]

On
    July 23, 2007, Ms. Walsh made a formal request for an extension of time to seek
    an internal review of the September 2005 suspension of her benefits.  Her
    reasons for the request were, because I was too sick at the time to do
    anything about this decision.  By letter dated July 24, 2007, the Director
    responded to Ms. Walshs request and reminded her that her request for an
    internal review was due by September 27, 2005.  The letter goes on to
    reproduce s. 58(1) and (3) of the Regulation:

(1) The prescribed time for requesting an internal review is 10
    days from the day the decision is received or deemed to have been received
    under section 50 of the Act.  [Since amended to be 30 days]

...

(3) The Director may hold an internal review even if it was not
    requested within the prescribed time if the Director is satisfied that the
    applicant or recipient was unable to request an internal review within that
    time because of circumstances beyond his or her control.

[40]

The
    letter reaffirmed the decision to suspend Ms. Walshs benefits and denied her
    request to extend the time for an internal review.  It concluded with this
    statement: your request for internal review [is deemed] to be out of time you
    do not have further recourse to appeal this decision.

[41]

On
    August 7, 2007, Ms. Walsh applied to the Tribunal to appeal the decision to
    suspend her benefits.  Notably, her appeal did not provide notice to the
    Tribunal of any human rights issue or a challenge under the
Human Rights
    Code
as provided for by the Tribunal's rules of practice.  Furthermore, no
    evidence supporting such claims was put before the Tribunal.

[42]

Responding
    to Ms. Walshs application to the Tribunal  in accordance with ss. 23(7) and
    (8) of the Act  the Director provided written submissions dated September 27,
    2007.  In the submissions the Director contended that it:

has the authority to determine the decision out of time with
    no further recourse to appeal.  This is a
prescribed decision
made,
    which is not appealable to the Tribunal Further the Tribunal is limited as
    well as the decision was made more than one year in the past. [Emphasis added.]

[43]

The
    submissions go on to enumerate s. 58(1) and (3) of the Regulation and s. 21(2)
    para. 5 of the Regulation, which provides:

(2) No appeal lies to the Tribunal with respect to the
    following matters:

5.  A prescribed decision.

[44]

Additionally
    the submissions briefly describe the background leading up to the Directors
    decision.  They conclude with this: the decision to suspend her allowance in
    2005 is clearly out of time to appeal and as a prescribed decision, outside the
    jurisdiction of the Tribunal.

[45]

Nevertheless,
    as I noted earlier, the Tribunal decided that the Director was wrong.  The
    member found that the Tribunal did indeed have jurisdiction to hear the appeal;
    that the deadline for internal review was ambiguous, and that the ambiguity
    should be resolved in Ms. Walsh's favour.  In spite of the Directors clear
    submissions, the Tribunal did not address the fact that the Director had
    refused to extend the time for internal review or the one year time limit to
    bring an appeal.  In other words, neither s. 21(2) para. 5 of the Act, nor s.
    61(2) of the Regulation was addressed.

[46]

The
    Divisional Court agreed with the Director and set aside the order of the
    Tribunal finding that, even if the Tribunal made no error in its interpretation
    for when internal review may be requested, s. 61(2) of the Regulation
    "provides an overriding prescription that ends one year after the
    Director's decision is made, whenever the decision is considered final and
    whenever it becomes effective."

(ii)

Interpreting the ODSPA

(a)

Purpose
    and scheme

[47]

The purpose of the Act, as the Divisional Court observed at para.
    8 of its reasons, is to provide for the basic needs and shelter of a person
    under disability on a monthly basis.
Among the
    purposes of the Act listed in s.
1 are the effective delivery of
    assistance to persons in need, and accountability to the taxpayers of the
    province.
B
ecause
    the Act is meant to ensure support for disabled persons, it must be interpreted
    in a broad and generous manner
with any ambiguity resolved in favour of
    the claimant, recipient or dependent
.  No one takes
    issue with this observation.

[48]

Section 5 of the Act sets out the eligibility requirements for
    income support. It requires a recipient, like Ms. Walsh, to provide ongoing
    financial information as a condition of eligibility.  Where an applicant,
    recipient or dependent fails to comply with this requirement, s. 9(1) of the
    Act and s. 23 of the Regulation, make it mandatory for the Director to suspend
    or cancel that persons income support. That is clear from the mandatory
    language of the provisions, as well as the decision in
Rea v. Simcoe (County Administrator, Social Services Department)
(2005),
79 O.R. (3d) 583, at para. 3
,
where
    this court held that the equivalent provisions of the OWA made termination
    mandatory as a result of non-compliance with eligibility requirements.

[49]

No
    doubt s. 5 is meant to attend to the legislative purpose of accountability to
    the taxpayers.  In any case, even if benefits are suspended for non-compliance,
    once compliance is re-established and the required information provided, s.
    9(2) of the Act permits the Director to expeditiously re-instate income support
    to its former level based on a new application.  Incidentally, this is what
    occurred in Ms. Walshs case.

(b)

Prescribed decision: no internal review, no extension of time, no right
    of appeal

[50]

Section
    21 of the Act allows that any decision of the Director affecting eligibility
    for income support can be appealed to the Tribunal, except for, among others, a
    prescribed decision.  A prescribed decision
includes
    a decision of the Director not to extend the time [to request an internal
    review] as set out in subsection 58 (3). The Directors letter of July 24,
    2007, advising that the time to request an internal review had passed and would
    not be extended, is precisely the type of decision referred to in the Act.  Further,
    the prescribed, and therefore unappealable, nature of the decision was expressly
    argued by the Director in its written submissions to the Tribunal, and
    unfortunately ignored.

[51]

Subsections
    22(1) and (2) of the Act allow a person that has received a Directors decision
    about eligibility, to commence an appeal of that decision to the Tribunal,
    provided that an internal review has been requested first.  Importantly, the request
    for internal review must have been made within the prescribed time, in this
    case 10 days: ODSPA, s. 58(1).  An extension of time for an internal review can
    be granted by the Director, if it is satisfied that the applicant did not
    request such a review because of circumstances beyond his or her control:
    ODSPA, s. 58(3).

[52]

In
    this case, the Director refused to extend the time for internal review. That
    decision was, by law, not appealable.  As I described above, and as the
    Director specifically wrote in its submissions to the Tribunal, s. 21(2) para.
    5 of the Act and s. 57(1) of the Regulation specifically prohibit an appeal of
    such a refusal.

[53]

Section
    23 of the Act also speaks to appeals to the Tribunal, but again requires that an
    internal review has been requested:

(1) An applicant or recipient may appeal a decision of the
    Director within the prescribed period after an internal review by filing a
    notice of appeal that shall include reasons for requesting the appeal.

(2) The Tribunal may extend the time for appealing a decision
    if it is satisfied that there are apparent grounds for an appeal and that there
    are reasonable grounds for applying for the extension.

While subsection (2) allows the Tribunal to extend
    time to appeal, subsection (1) makes it clear that an internal review must have
    been requested within the prescribed time.

[54]

Here,
    an internal review was requested by Ms. Walsh, but it was some two years after
    the Directors decision to cancel her benefits.  The Director refused her
    request because it was out of time and declined to extend the time to make the
    request. The decision to do so was not appealable because it was a prescribed
    decision.

[55]

The
    ability of the Tribunal to extend the time to appeal a decision in s. 23(2) can
    only be speaking to the extension of the 30 day time limit to appeal from a decision
    of the Director for which there exists a right of appeal. The decision to deny
    the request to extend the time to seek an internal review is not appealable.  In
    other words, the Tribunal does not have the jurisdiction to extend the time to
    appeal from a prescribed decision of the Director.

[56]

In
    any case, the Divisional Court recognized that the issue was neither in play,
    nor dispositive, and I concur with the holding at para. 11 of its reasons:

We do not need to decide whether the Tribunal had jurisdiction
    under subs. 23 (2) of the Act to extend the time for filing an appeal beyond
    the one year prescription.  The Tribunal was not asked to extend the time, and
    it did not do so.  Rather it erroneously decided that the appeal had been
    commenced within the prescribed time.  In hearing the appeal the Tribunal acted
    without jurisdiction.

[57]

Ms.
    Walsh appears to have accepted the decision of the Director to cancel her
    benefits in 2005 and did not, at that time, make a request for an internal
    review.  It was not until 2007 that Ms. Walsh attempted to exercise her right
    to an internal review, and appreciating that she was seriously out of time,
    requested an extension of time to do so.  The Director denied her request.
    While the Director could have extended the time for requesting an internal
    review, it refused to do so.  The Director's refusal to extend the time, as I
    have noted several times, is a prescribed decision that cannot be appealed to
    the Tribunal.

[58]

The
    unavoidable result is that the Divisional Court was correct in deciding this
    case as it did.  Ms. Walsh could not appeal the Directors decision to suspend
    her benefits without requesting an internal review within the prescribed time.
    She did not request an internal review within the prescribed time and the
    Director declined to extend the time period to do so. That decision was not
    appealable. The failure to make a timely request for an internal review left
    Ms. Walsh without a right of appeal of the Directors decision to suspend her
    benefits. The Tribunal therefore lacked jurisdiction to hear Ms. Walshs appeal
    from the decision to suspend her benefits. As an aside, it also lacked
    jurisdiction to entertain an appeal of the Directors decision not to extend
    the time for the internal review.

(c)

Ultimate
    limitation period of one year  s. 61(2)

[59]

In
    addition to the lack of a timely request for an internal review, the Tribunals
    jurisdiction to hear the appeal of the decision to suspend Ms. Walshs benefits
    was, as the Divisional Court held, circumscribed by operation of s. 61(2) of
    the Regulation. For ease of reference that section provides: No appeal to the
    Tribunal shall be commenced more than one year after the date of the Directors
    decision.

[60]

There
    is no ambiguity in this provision. To interpret it, as the Divisional Court
    did, as providing an overriding prescription [against appeal] that ends one
    year after the Directors decision is made, whenever the decision is considered
    final and whenever it becomes effective, was in keeping with the overall
    purpose and scheme of the legislation.

[61]

To
    interpret this provision any other way would render it moot.  But, moreover, it
    would open the door to uncertainty, virtually eliminating timelines for
    internal reviews and appeals, causing unnecessary delays, and inserting unfairness
    into the legislative scheme. This, of course, runs counter to the purpose of
    the ODSPA of providing for the basic needs and shelter of eligible persons with
    disabilities in a timely and cost-effective fashion, and in a manner that
    promotes accountability to Ontarios taxpayers. I would adopt the holding of
    the Divisional Court that s. 61(2) of the Regulation imports what is
    effectively an ultimate limitation period of one year to bring an appeal from
    an eligible decision of the Director.

[62]

While
    this is sufficient to dispose of the appeal, I believe that given the issues
    underlying the alternative grounds of appeal advanced by Ms. Walsh on this
    appeal, it will be helpful, and provide a measure of completeness, to offer
    some comment on them.

B.       Alternative grounds of appeal

[63]

Ms.
    Walsh argues that the Divisional Court failed to address all the issues she advanced
    and refers to some specific errors she alleges it made.  These include: (i) that
    the Director conducted an unreasonable eligibility review; (ii) that the
    Tribunal had jurisdiction to hear the appeal based on internal review; and
    (iii) that the Tribunal has the same power as the Director on internal review
    once an appeal is brought before it.  I will discuss each of these submissions
    in order with (ii) and (iii) being discussed together.

(i)     Unreasonable eligibility review

[64]

Ms. Walsh submits that the Director has considerable discretion as to
    the manner in which an eligibility review is conducted, and in determining what
    information is required.  S
uspending income
    support, she says, is a decision of last resort and requires recipients to be
    given a meaningful opportunity to comply.
Where the Director ultimately
    suspends income support, the Act requires that it must give the affected person
    written notice, which must include, among other things, reasons for the
    decision: see ODSPA, s. 19 & Reg., s. 56.  Ms. Walsh contends that the
    Director failed to properly exercise its discretion in deciding her eligibility
    in accordance with these principles.

[65]

I
    disagree.  First, this argument only becomes relevant if the Tribunal had
    jurisdiction to hear the appeal, which it did not.  The Divisional Court,
    therefore, did not err by not dealing with it.  Second, the Director's conduct
    is not relevant.  As this court made clear in
Rea
, s. 9 of the Act
    makes it mandatory for the Director to suspend or cancel income support where
    there is non-compliance with the financial reporting condition of eligibility.
    The Director was obliged, in all the circumstances of this case, to cancel Ms.
    Walshs benefits and would have been in breach of the legislation had it not
    done so.

[66]

Ms.
    Walsh also submits that the Directors decision was unreasonable because it
    violated the
Human Rights Code
in that it failed to consider and
    accommodate her disabilities. The Divisional Court's interpretation of s. 61(2),
    she says, perpetuated this violation by ignoring human rights concerns in
    interpreting the Act and Regulation.

[67]

The
    alleged violation of human rights is being raised for the first time on this
    appeal.  Ms. Walsh did not raise this argument with the Tribunal. And, because
    the Divisional Court was not alerted to this issue, it would not be appropriate
    on this record to suggest that the court erred by failing to do so.  Inherent
    in the appellate function is the requirement that in most cases, issues should
    be raised and adjudicated upon before they will be considered on appeal:
R.
    v. Rollocks
(1994),
19 OR (3d) 448
(Ont.
    C.A.), at p. 453.

(ii)
    & (iii) The Tribunals jurisdiction on internal review and powers on appeal

[68]

Section
    58(1) of the Regulat
ion prescribes the time for
    requ
esting an internal review as 10 days from the day the decision is
    received
or deemed to have been received
under s. 50 of the Act
    (emphasis added).  Ms. Walsh does not deny that the Director's letters arrived
    at her home around the time they are dated; it is their substance, and her
    capacity to understand and comply that is in issue.

[69]

As
    I understand Ms. Walshs submissions, it is the Tribunals findings of fact
    that form the substance of this ground of appeal.  That is, the Tribunal found
    that Ms. Walsh's disabilities were responsible for her failure to fully satisfy
    the Director's demands for information and meeting times, and that the Director
    had a duty, pursuant to its own policy, to assist her in completing the forms
    as required - including by way of a home visit if necessary.  The Director's
    failure to do so, she says, was a violation of its own policy.  The Tribunal, on
    the other hand, correctly adopted a liberal interpretation of the Act and the
    Regulation.  It considered the impact of the claimants disabilities in
    determining when a Directors decision to suspend benefits was received for
    purposes of bringing an internal review and then appealing that decision: see
    Reg., s. 58(1).

[70]

Essentially,
    Ms. Walsh argues that an appeal can proceed within 10 days following a request
    for an internal review, the timeline being triggered when a person receives and
    understands the Director's decision.  In effect, she says that once a person
    requests an internal review, an appeal to the Tribunal can be made regardless
    of the Directors decision.  That includes, whether the Director refuses,
    delays or fails to hold an internal review, or whether it conducts the review
    and upholds the original decision.

[71]

The
    result of Ms. Walshs claims is that once the matter is before the Tribunal,
    it can make any decision that the Director could have made, on internal review
    or otherwise.  She adds that while s. 61(1) of the Regulation prescribes that
    an appeal is to be commenced within 30 days after the Director's decision is
    final, s. 23(2) of the Act gives the Tribunal the power to extend the time for
    appealing, and
the Act puts no limit on the
    length of the extension which the Tribunal may grant
.

[72]

I have already indicated that the Divisional Courts treatment of
    s. 23(2) was both appropriate and correct.  However, Ms. Walsh urges this court
    to consider some additional arguments that she says illustrate why the Divisional Court erred
.

[73]

Ms.
    Walsh submits that the Divisional Court found that the appeal was commenced
    outside of the one year limitation period that provides an overriding
    prescription for appeals, and for that reason it did not consider the meaning
    of s. 58 of the Regulation.  That is, the Tribunal  exercising its powers for
    those of the Director prescribed in s. 58  could hold an internal review after
    the 10 day time limit if satisfied that the Ms. Walsh was unable to request an
    internal review because of circumstances beyond her control.

[74]

I
    do not accept that the court was in error in not considering this argument.
    First, this once again presumes that the Tribunal had jurisdiction to hear Ms.
    Walshs appeal in the first place; it did not.

[75]

Second,
    Ms. Walshs submissions dramatically distort the purpose and scheme of the
    legislation.  Taken together the Act and Regulation provide a complete code
    regarding appeals from a Directors decision.  They include a series of
    provisions that regulate the timelines for appeal forming a coherent and
    workable scheme.  Ms. Walsh is urging that the word "receive" in s.
    58(1) have a different meaning for the purpose of the timeline for requesting
    internal review than its meaning elsewhere under the scheme.

[76]

As
    I have explained, the scheme requires a person to satisfy eligibility requirements
    to receive benefits, failing which the Director is required to suspend or
    cancel their payment.  Where the Director makes such a decision the person has
    a right of appeal to the Tribunal, but must do so within the legislated timeframes
    and having regard for the legislated procedure.  A request for an internal
    review  which at the time had to be commenced within 10 days of the Directors
    decision  is a prerequisite to an appeal to the Tribunal.  And, no appeal to
    the Tribunal can be commenced beyond one year after the date of the Director's
    decision.

[77]

To
    repeat, the purpose of the legislative scheme is to provide for the basic needs
    and shelter of a person under disability on a monthly basis.  It is to do so
    through the effective delivery of assistance to persons in need and with
    accountability to the taxpayers.  This in turn requires fair and expeditious
    review and decision-making, which includes review and opportunity for appeal.
    Ms. Walshs interpretation, if accepted, would run entirely contrary to this
    scheme.  That is, it would virtually eliminate certainty as to timelines for
    internal reviews and appeals; cause unnecessary delays, and create unfairness.

[78]

The
    Act seeks to compensate for any perceived unfairness arising from the timelines
    in two ways: the right to re-apply; and the Directors ability to extend the
    time under s. 58(3) of the Regulation for requesting internal review.  Ms.
    Walsh availed herself of both of these.

DISPOSITION

[79]

For
    the foregoing reasons I would dismiss the appeal.  Given the position of the
    Director in oral argument, I would make no order as to costs.

Released:

JUN 29 2012                                    H.S.
    LaForme J.A.

RJ                                                   I
    agree Russell Juriansz J.A.

I
    agree E. Ducharme J.A.

[1]
Unless otherwise stated, all references to timelines under the ODSPA refer to
    the timelines in place at the time of the Directors decision to suspend
    benefits. The Act has since been modified and the timeline for requesting an
    internal review is now 30 days.


COURT OF APPEAL FOR ONTARIO

CITATION:
Amaral v. Kennedy, 2012
    ONCA 517

DATE: 20120726

DOCKET: M41377 (M41182)

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Arnaldo Amaral

Applicant

(Appellant/Responding Party)

and

Angela Kennedy
and Barbara Poplawski

Respondents

(Respondent in Appeal/Moving Party)

Maureen L. Whelton and Colin P. Stevenson, for the
    moving party

Peter R. Jervis, for the responding party

Heard: July 20, 2012

On a motion to quash the motion for leave to appeal from
    the order of the Divisional Court (Aston, MacKinnon and Moore JJ.), dated March
    5, 2012.

ENDORSEMENT

[1]

The moving party requests an order quashing a
    motion for leave to appeal from a decision of the Divisional Court. The
    Divisional Court set aside an order finding that the responding party violated
    the
Municipal Conflicts of Interest Act,
R.S.O. 1990, c. M50, and dismissed the moving party's application under that
    Act.

[2]

The issue of whether a right of appeal to this
    court exists from the decision of the Divisional Court is governed by the
Municipal
    Conflicts of Interest Act
and not the
Courts
    of Justice Act
, R.S.O. 1990, c. C43: s. 15 of the
Municipal
    Conflicts of Interest Act
. See also
Ruffolo v.
    Jackson,
[2010] O.J. No. 2840, at para. 14.

[3]

Section 11(2) of the
Municipal
    Conflicts of Interest Act
provides that, on an appeal
    from any order made under s. 10 of the
Municipal Conflicts of
    Interest Act
, "[t]he Divisional Court may give any
    judgment that ought to have been pronounced,
in which case its decision is
    final
(emphasis added)".

[4]

Given s. 15, this court's decision in
Ruffolo
    v. Jackson
and the clear language of s. 11(2) of the
Municipal
    Conflicts of Interest Act
, we conclude that there is no
    right of appeal to this court from the Divisional Court's decision. The motion
    for leave to appeal is therefore quashed.

[5]

Costs of the motion are to the moving party on a partial indemnity scale
    fixed in the amount of $3,000.00 inclusive of disbursements and applicable
    taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Amorim
    (Re), 2012 ONCA 522

DATE:  20120731

DOCKET: C54846

Doherty, Watt and Pepall JJ.A.

IN THE MATTER OF:  Paulo Amorim

Stephen F. Gehl, as
amicus
    curiae

Matthew Asma, for the Attorney General

Julie Zamprogna Ballès, for Regional Mental Health Care
    St. Thomas

Heard: July 30, 2012

On appeal against the disposition of the Ontario Review
    Board dated, November 29, 2011.

APPEAL BOOK ENDORSEMENT

[1]

There has been a request for an early Board hearing.  Counsel advises
    that the appeal will not be pursued.

[2]

The appeal is dismissed as abandoned.


COURT OF APPEAL FOR ONTARIO

CITATION:
Burhoe v. Mohammed, 2012
    ONCA 499

DATE: 20120711

DOCKET: C55059

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Derrick Burhoe

Plaintiff (Respondent)

and

Abdenuce Mohammed, Budget Car Rentals Toronto
    Ltd.

Defendants (Appellants)

Chris G. Paliare, for the defendants (appellants)

Mark A. Klaiman, for the plaintiff (respondent)

Heard & released orally: June 29, 2012

On appeal from the order of Justice Gordon Lemon of the Superior
    Court of Justice, dated August 15, 2011, with reasons reported at 2011 ONSC
    4853.

ENDORSEMENT

[1]

The plaintiff claimed damages in excess of $1 million as a result of a
    motor vehicle accident.  Included were claims for general damages, past income
    loss, past housekeeping loss, future income loss and future housekeeping loss.

[2]

After a 16 day trial, the jury awarded the plaintiff general damages of
    $54,000 and past income loss of $11,000.  Nothing was awarded for the remaining
    three heads of damages.  In addition, there was a $15,000 deductible pursuant
    to s. 267.5(7)3 of the
Insurance Act
, R.S.O. 1990 c. I.8, that was to
    be applied to reduce the award of damages to $50,000.

[3]

The trial judge set aside the jury verdict as perverse and ordered a new
    trial.  The trial judge then proceeded to fix the costs in favour of the
    plaintiff in the amount of $196,695.

[4]

The defendants appealed to this court on both the setting aside of the
    jury verdict and on the issue of costs.  The appellants advanced two arguments
    on the costs appeal.  First, they argued that costs should not have been
    determined until after the second trial.  Second, they argued that due regard was
    not paid by the trial judge to the principle of proportionality given the
    limited amount awarded by the jury.

[5]

This court reinstated the jurys verdict, set aside the costs award and
    remitted the matter of costs to the trial judge.  The trial judge then carried
    out a new assessment of costs and once again assessed costs at $196,695.

[6]

The appellants ask that this second costs order be set aside and that
    this court fix the costs.  They suggest a sum of $50,000 plus disbursements of
    $53,290.  They argue that the second costs order is inconsistent with this
    courts decision in the earlier appeal and that the trial judge failed to
    consider and apply the proper principles, in particular, the principle of
    proportionality.

[7]

The trial judges reasons in large measure repeated the reasons he gave
    when he made the first costs award.  In support of his decision he referred to
    the case of
Dennie v. Hamilton
(2008), 89 O.R. (3d) 542, a case
    similar to the present case.  In
Dennie
, recovery by the plaintiff at
    trial was for an amount substantially below the amount claimed, but exceeded any
    offer made by the defendant in that case.  In
Dennie
, the trial judge
    recognized that a trial was necessary because of the inadequate settlement
    offer.  Although the plaintiff only recovered about $40,000, balancing the
    interests on the issue of costs the trial judge nonetheless awarded approximately
    $106,000 in costs.  This represented a reduction in the costs sought by the
    plaintiff of about $34,000.

[8]

In the present case we agree with the trial judge that having recovered
    more than the offers of settlement, the plaintiff is entitled to costs.  However,
    in our view, the amount awarded by the trial judge cannot stand.  In light of
    the previous decision of this court setting aside his earlier costs award, the
    principle of proportionality made a reduction in the plaintiffs costs, similar
    to the reduction made in
Dennie
, necessary and appropriate.

[9]

The appeal is allowed and the award of costs is reduced from $196,695 to
    $166,695.  The appellants are awarded costs of the appeal fixed at $7,500
    inclusive of disbursements and applicable taxes.

Paul Rouleau J.A.

David Watt J.A.

S.E. Pepall J.A.