COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. J.M., 2016 ONCA 644

DATE: 20160826

DOCKET: C61560

Feldman, Gillese and Brown JJ.A.

BETWEEN

A.M.

Applicant (Respondent)

and

J.M.

Respondent (Appellant)

Edward Rae, for the appellant

Milena M. Soczka, for the respondent

Heard: March 23, 2016

On appeal from the order of Justice Paul U. Rivard of the
    Superior Court of Justice, dated December 17, 2015, with reasons reported at
    2015 ONSC 7921.

Feldman J.A.

[1]

This is a custody dispute involving the parties two young boys. The
    trial judge found both parents to be very good parents and that custody could
    be awarded to either one in the best interests of the children.

[2]

At the time of the trial, the children had been residing with the father
    and his partner for approximately one year, with access to the mother, pursuant
    to an
ex parte
order that had been confirmed on a full hearing one month
    later. The trial judge concluded that the father had created an unlawful
status
    quo
by failing to make full disclosure on the
ex parte
motion, suggesting
    that had the father made full disclosure, the
ex parte
order would not
    have been granted. All other matters being equal, the trial judge decided that
    the mother should be awarded custody of the children since they had lived with
    her and thrived in her care for most of their young lives.

[3]

On appeal to the Superior Court, the appeal judge held that it was open
    to the trial judge to have found that the father obtained an unlawful
status
    quo
, and that the confirmation of the
ex parte

order at
    the comeback hearing one month later did not cure the problem. He also rejected
    the fathers alternative submission that the trial judge displayed a reasonable
    apprehension of bias by raising the issue of non-disclosure and the lawfulness
    of the
status quo
on his own motion.

[4]

The father now appeals to this court, arguing that the appeal judge
    erred in upholding the trial judges finding that the
ex parte

order
    had created an unlawful
status quo
. In the alternative, he submits
    that the appeal judge erred in failing to find that the trial judge exhibited a
    reasonable apprehension of bias by pursuing that issue on his own motion.

Facts

(1)

The parties relationship

[5]

The parties met in the winter of 2006-2007. They initially lived in
    North Bay, Ontario, where the mothers family lives, but moved to MacTier, where
    the fathers family lives, shortly after. Their first son was born in 2009 and
    their second in 2010. The mother was the primary caregiver of the two boys.

[6]

After the parties separated in October 2011 or January 2012, the mother moved
    back to North Bay with the children. The father had liberal access, except for
    a period of a few weeks in 2012 when he lived and worked in Montreal. He also
    paid child support. However, there was friction between them.

[7]

In March 2013, the mother brought an application for an order granting
    her custody of the two boys. The father opposed the application.

[8]

As a result of a court order made that spring for the purposes of the
    custody hearing, the Office of the Childrens Lawyer (OCL) conducted a
    clinical investigation. At a disclosure meeting in September 2013, the mother was
    very upset to learn that the OCL report recommended that custody be awarded to
    the father. The investigator concluded that joint custody was not in the
    childrens best interests because of the parents inability to communicate, and
    that the father could provide a more stable, predictable and consistent
    environment for them.  The investigator was critical of the mothers sense of
    entitlement to custody, and also noted a history of volatility. That report
    was submitted to the court in early October 2013.

[9]

Matters came to a head days later following the Thanksgiving weekend,
    which the children spent with the father. When the mother could not pick them
    up at the courtordered drop-off time of 11 a.m. on the Monday in North Bay, the
    father made arrangements with the mothers sister, D.M., to meet him and take
    the children at 3:00 p.m. But after D.M. later returned the children to the mother,
    the mother texted D.M. asking her to look after the children. The mother said
    she was not mentally capable of caring for the boys and that she may end up
    hurting them. D.M. had made other plans that night but she arranged for the
    children to be taken by their grandmother.

[10]

Unbeknownst
    to the mother, all her text messages were inadvertently being forwarded to the
    fathers cell phone. When the father saw the text messages between the mother
    and D.M., he became very concerned for the childrens safety and sought the
    assistance and advice of the North Bay Childrens Aid Society.

(2)

The
ex parte

motion

[11]

On
    October 18, 2013, the father brought an
ex parte
motion seeking interim
    custody. He swore an affidavit stating that he had concerns for the childrens
    safety. He appended a number of the text messages exchanged between the mother and
    her sister and also stated that D.M. followed up by promptly ensuring that the
    children were removed from the mothers care.

[12]

The
ex parte
motion

judge, who ultimately became the trial judge,
    granted temporary custody to the father with supervised access to the mother.

(3)

The comeback hearing

[13]

A
    full comeback hearing was held on November 22, 2013. Both parents were present;
    the mother was represented by counsel.  Through counsel, the mother
    acknowledged feeling overwhelmed. She attributed her distress over the
    Thanksgiving weekend to the negative OCL report, which she thought was unfair
    and inaccurate. After hearing fully from both sides, Rodgers J. confirmed the motion
    judges temporary order.

[14]

The
    children continued to reside with their father in MacTier throughout 2014, with
    access to the mother, which eventually became unsupervised access.

(4)

The trial

[15]

On
    November 12, 2014, after a four-day trial in which custody was the primary
    issue, the trial judge awarded custody of the children to the mother. In analyzing
    the best interests factors under s. 24 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12

(
CLRA
), he concluded that both parties
    were equally capable of providing their children with a stable, loving home in
    which the two boys thrived and were happy.

[16]

Normally,
    if children are successfully residing with one parent at the time of the trial,
    that is a factor a court will weigh in determining the best interests of the
    children:
CLRA
, s. 24(2)(c). However, although the children had been
    residing with the father for a year at the time of the trial, the trial judge declined
    to consider the existing
status quo
as a factor in the fathers favour.
    He found that the father had obtained that
status quo
unlawfully by
    failing to disclose all relevant information on the
ex parte

motion.

[17]

The
    trial judge explained that the father neglected to disclose on the
ex parte

motion that his concern for the childrens well-being when he saw the
    October 2013 text messages between the mother and D.M. was tempered
    drastically by his knowledge, given in evidence at trial, that Aunt D.M. would
    never do anything to put [the children] in jeopardy: p. 56. The trial judge
    also criticized the father for failing to disclose that in the spring of 2013,
    when the mothers mental state had also deteriorated, she had asked the father to
    take the children until she was medically cleared to have them back, and then
    needed a court order to get them back from him. The trial judge concluded, at
    pp. 57-58 of his reasons:

A false
status quo

cannot stand under those
    conditions and forms no part of this analysis. If anything, the only
status
    quo

that could or should be considered by the Court is the one that
    existed from [the] separation date in October 2011 until the fateful
ex
    parte

temporary order of October 18, 2013. That is, the children
    resided with their mother.

[18]

In
    concluding that custody should be granted to the mother, the trial judge
    reiterated that the children were thriving in her care when custody was
    changed on October 18th last and she is capable of providing the same stable
    environment where they have lived for most of their young lives: p. 65.

(5)

The motion for a stay pending appeal

[19]

The
    father moved to stay the trial judges order. Justice Ellies granted the motion
    on November 17, 2014. He determined that the trial judge might have
    misapprehended what had occurred when the father obtained temporary custody. He
    held there was evidence that the father had provided full and fair disclosure
    on the
ex parte

motion, and even if one could say that the
    initial temporary custody should not have been granted on an
ex parte
basis, it was difficult to see how it could be considered to have been obtained
    improperly thereafter, in light of the full comeback hearing.

[20]

As
    a result, the children continued to reside with the father after the trial.

(6)

The first appeal

[21]

The
    father appealed the trial judges order to the Superior Court, arguing that he
    had not obtained the
ex parte
order unlawfully, and that the trial
    judges interventions during the trial gave rise to a reasonable apprehension
    of bias. On December 17, 2015, the appeal was dismissed. The appeal judge held
    that it was reasonable for the trial judge to have concluded that the father
    did not make full disclosure at the
ex parte

hearing, and he
    rejected the submission that the comeback hearing cured any problems with
    disclosure because the
ex parte

order had already established a
    new
status quo
.

[22]

The
    appeal judge also rejected the fathers allegation of reasonable apprehension
    of bias on the part of the trial judge. He noted that there is a strong
    presumption of impartiality and held that the degree of judicial intervention
    at trial was not excessive.

[23]

Since
    the appeal judges order, the children have resided with the mother in North
    Bay.

Issues on appeal

[24]

Before
    this court, the father renews the arguments he made before the appeal judge.
    He argues that the appeal judge erred by upholding the trial judges finding
    that the father obtained an unlawful
status quo
on the
ex parte

motion, and by rejecting the allegation of reasonable apprehension of bias.

[25]

I
    will address each issue in turn.

Analysis

Issue 1: Did the appeal judge err by upholding the trial
    judges finding that the father obtained an unlawful
status quo
on the
ex parte

motion?

(1)

Ex Parte
Orders

[26]

Rule
    14(12)(c) of the
Family Law Rules
, O. Reg. 114/99,

allows a
    motion to be brought without notice if there is an immediate danger to the
    health or safety of a child or of the party making the motion, and the delay
    involved in serving a notice of motion would probably have serious consequences.
    If an
ex parte
order is made, under rule 14(14) that order must
    contain a requirement that the matter come back to court, if possible before
    the same judge, within 14 days or on a date chosen by the court. And under rule
    14(15), an order made without notice must be served immediately on all parties
    affected, together with all documents used on the motion, unless the court
    orders otherwise.

[27]

These
    rules are consistent with the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, for other civil matters. An
ex parte
order is intended to be
    used only in exigent situations where the delay required to serve the motion
    would probably have serious consequences, or where the giving of notice by the
    service itself would probably have serious consequences. A judge hearing an
ex
    parte
motion who is not satisfied of the probability of those consequences
    will decide that the motion cannot proceed
ex parte
and order that
    notice be given.

[28]

Where
    a motion is brought without notice, the person bringing the motion must make
    full and fair disclosure of all material facts (rule 39(6) of the
Rules of
    Civil Procedure
), including facts that may not be helpful to that partys
    position. An
ex parte
order that is obtained without full and fair
    disclosure, even if the lack of full disclosure was unintended, is subject to
    being set aside. See for example,
Rinaldi v. Rinaldi
, 2013 ONSC 7368.

[29]

Notice
    and the opportunity to be heard are basic tenets of our justice system.
Ex
    parte
orders are therefore made only in very limited circumstances. The
    requirement for full and frank disclosure is essential to allow a court to
    fairly make a temporary order that will affect the rights of another person in
    an emergency situation where the court has not heard both sides of the story.

[30]

That
    requirement is well-known to lawyers. It applies equally to self-represented
    parties.

(2)

The
ex parte
order of October 18 and the comeback hearing of
    November 22, 2013

[31]

The
    post-Thanksgiving 2013
ex parte
motion that the father brought for temporary
    custody of his children was the third such motion he had initiated over the
    previous six-month period. Neither of the previous two had been successful.
    However, as I have said, by October of that year, the OCL had prepared a report
    recommending that the father be granted sole custody of the children.

[32]

When
    he saw the text messages from the mother indicating that she was distraught and
    worried that she might hurt the children if her sister did not take them and
    look after them that day, the father was concerned for their safety. He sought
    advice from the CAS, and was apparently advised to seek an
ex parte
order, which is what he did.

[33]

The
    following is the content of the affidavit sworn by the father, where he
    highlights the text messages of greatest concern:

1. I am the respondent father in this
    matter and I write this affidavit in support of my urgent motion for the
    interim custody of my two children  and for no improper purpose. I believe the
    contents of this affidavit to be true.

2. I reside in MacTier and I currently
    see the children on alternate weekends plus extra access as arranged.

3. On October 7, 2013 the OCL reported
    to the court and recommended sole custody of the children to myself plus access
    to the mother along with other recommendations.

4. The mother is not handling the OCL
    recommendations well. The last court date was adjourned at the request of the mother.

5. I am very concerned about the
    well-being of the children since I dropped them off to the mothers sister, D.M.,
    on Monday, October 14, 2013. The mother refused to meet me to receive them four
    hours earlier at the scheduled, court-ordered drop-off time of 11:00 AM.

6. Attached and marked as Exhibit A
    is a true copy of text messages, which I believe are texts between the mother
    and her sister primarily.

7. In the paragraphs that follow, I have set out the text
    messages of greatest concern wherein the mother is requesting her sister to
    take the children because if not I may end up hurting them. I am not certain
    of the mothers mental well-being at this point and have grave concerns for the
    children.

the sense of urgency came from messages I received after the
    children were returned to North Bay on October 14, 2013. Serious safety
    concerns arisen.

9. The court ordered drop-off time for me to return our
    children to North Bay is 11:00 AM on Monday mornings. On October 14, 2013, the
    applicant was unprepared to care for [the children] and did not meet at the
    scheduled time to receive the children. She then proceeded to ignore my
    attempts to contact her as well as those of the North Bay Police. Arrangements
    were made with the applicants sister, [D.M.], and she met me to pick up [the
    children] at 3:00 PM in the parking lot of Tammies, a North Bay restaurant.
    After the children were returned to the mother by her sister, [A.M.] refused to
    care for the children that night. [A.M.] indicated that she may harm our
    children if [D.M.] did not come and pick them up right away. Her sister
    acknowledged this and followed up by promptly ensuring that the children were
    removed from the mothers care.

[A.M.]: Im not going to parent them. Im gonna go upstairs in
    my room and shut the door

[D.M.]: Ok [A.M.]

[A.M.]: Come get them or Im calling J.M. [the father] to

[D.M.]: No

[A.M.]: I may end up hurting them

[D.M.]: What the fuck is your problem

[D.M.]: And I understand that if I dont you might hurt them

10. The applicant is mentally unstable and unfit to be caring
    for the children at this time as indicated by herself via text message.

[D.M.]: If you take off skating today instead of taking your
    boys never expect any help from me ever again. Not one cent. Not one hand with
    anything. Nothing

[A.M.]: I cant

[D.M.]: Why?

[A.M.]: Cause I mentally cant

[A.M.]: I dont want to be a fucking parent. Im not mentally
    capable of doing this

[A.M.]: I am pretty fuct up. Everything has caught up with me

[A.M.]: Im going crazy

[D.M.]: U are too volatile. Theres no way I can help you in
    court anymore. You had one last chance that I was giving you so we can fight
    this

[D.M.]: If I had left everything to you yesterday shit would
    be completely fucked up beyond repair with J.M. You just go off and it makes me
    think I would be crazy to back u financially in court. Even if u got custody of
    the boys u are one breakdown away from losing them

11. I called North Bay C.A.S. on the morning of October 15,
    2013 and to the best of my knowledge C.A.S. did not intervene that day. On the
    morning of October 16, 2013, I contacted Bracebridge C.A.S. out of concern as
    it had been indicated that the applicant would again have the children in her
    care beginning that evening. Anna of the Bracebridge C.A.S. recommended that I
    immediately come to court to seek an urgent motion for interim custody.
    [Citations to Exhibit A omitted.]

[34]

As
    noted above, paragraph 9 makes it clear that the children were not with the mother
    any more, as her sister, D.M., to whom the father had delivered the children on
    the Monday, had removed them from her sisters care.

[35]

The
    father also attached to his affidavit an appendix that appears to be an
    electronic print-out of the text messages that had been inadvertently forwarded
    to him, and which includes messages on October 15, the day after the mother said
    she could not parent the boys. One of those messages states: J.M. [the father]
    set me off and so did work. Considering everything Im surprised I did not go
    crazy yet. Id never hurt the boys. Or let anything happening [
sic
]. I
    was beyond pissed off last night.

[36]

On
    its face, this affidavit appears to satisfy the requirement for full and fair
    disclosure. It:

·

described the status of the situation between the parents;

·

described the mothers concern that she was not able to care for
    the children, using her own words by quoting the most significant texts between
    her and her sister;

·

explained that D.M. promptly ensured that the children were
    removed from their mothers care; and

·

included an apparent print out of the texts from the relevant
    days, including the one where the mother says she would never hurt the boys
    and was beyond pissed off the previous night when she warned otherwise.

[37]

As
    I explained above, the
ex parte

order of October 18, 2013 was
    followed by a full comeback hearing before Rodgers J. on November 22, 2013. The
    mother was served with all the materials supporting the
ex parte
order
    and was represented by counsel at the comeback hearing, a transcript of which
    is in the appeal record. The mother did not raise any issue in her materials or
    in oral submissions about the adequacy of the fathers disclosure on the
ex
    parte

motion.

[38]

At
    the comeback hearing, the mother sought an arrangement where she would have
    either weekly or weekend access to the children, but supervised by her sister D.M.
    or by other family. She acknowledged that she had been overwhelmed as a single
    mother but said she intended to address her issues. She also intended to refute
    the report by the OCL in preparation for the custody trial. Justice Rodgers questioned
    the mother extensively about the text messages, including messages proffered by
    the father at the comeback hearing that suggested that she was dealing drugs,
    and asked for her explanation.

[39]

Justice
    Rodgers also heard submissions from the father, who represented himself, and
    questioned him. Both the mothers counsel and the father explained the entire
    sequence of events to the court, including what had taken place between the
ex
    parte
order by Klein J. on October 18 and the return on November 22, as
    there had been a number of court attendances before different judges, including
    Klein J., where access arrangements were adjusted. During that time, D.M. had
    been involved in supervised access to the mother. It was clear that both
    parties trusted D.M.

[40]

Immediately
    following the hearing, Rodgers J. gave his oral reasons for continuing the
    temporary order granting custody of the two boys to the father, and set out
    terms of supervised access for the mother. He based his decision primarily on
    the fact that the mother had indicated in her text message exchange with her
    sister of October 14 that she was overwhelmed by her caregiving role, called on
    her sister to take the children, that she was not capable of parenting them and
    was afraid that she might hurt them.

[41]

Justice
    Rodgers discussed some of the procedural history of the custody dispute,
    including his own involvement in making the first temporary order on April 18,
    2013 (the reasons say October 18 in error) placing the children in the care of
    the mother with access to the father, and that the father had been relentless
    since that date in his attempts to have that order changed.

[42]

By
    the judges count, there had been 16 court attendances, either on notice or
ex
    parte
since the first order, including multiple attempts by the father to
    bring
ex parte
and emergency motions, most of which were denied. The
    judge stated that he was not real sympathetic to [the father] because it
    appears that hes tried everything in his power to get these children away from
    their mother, at least in terms of custody. However, the new evidence from the
    text messages was very, very alarming.

[43]

Justice
    Rodgers did not accept the mothers explanations for the text messages that
    appeared to describe drug trafficking, finding that to be a concern that could
    not be ignored. However his main focus was the mothers own doubts about her ability
    to look after the children safely. I quote his conclusions in full:

I have to deal with where the children live right now as this
    matter is proceeding through the court and I share the concerns that Justice
    Klein had. I have had the opportunity to hear what the parents have to say.
    This is what this hearing is about. An
ex parte
order has been made, [A.M.]
    didnt have the opportunity to participate in that order that significantly
    affected her and her children. This hearing was the opportunity for the Court
    to try and get as much information as possible from both parties in order to
    determine whats in these childrens best interest in the short term. And that
    is why I asked questions of [A.M.] because I found it very troubling that the
    very essence of the material that was placed before Justice Klein prior to
    making the order, the concern about [A.M.] being overwhelmed and the concern
    about her possibly being connected to the drug trade. Theres very little in
    her material that she filed in response that addressees the heart of the issue,
    as I see it. She was more concerned about raising her concerns about the
    quality of the OCL report.

So I have had the opportunity to read all of her material and
    ask her specific questions about the concerns that are raised by the material
    that was before Justice Klein. I have come to the conclusion for the reasons I
    am attempting to express, there should be a temporary order that [J.M.] shall
    continue to have custody of the children. [A.M.] shall have access every
    second weekend. That access will be supervised by [D.M.] or another family
    member designated by [D.M.]. Thats with the intent that [A.M.] is not left
    alone with the children as their primary caregiver. The access, Im not saying
    that the access has to be at [D.M.s] home, Im not saying the access has to be
    at [A.M.s] home. Im saying that the access can occur wherever, as long as
    there is a responsible family member who is present so that [A.M.] is not left
    alone as the caregiver at this time because of my concerns that were raised by
    her own utterances on October 14th in the text messages; her expressions of
    being overwhelmed and of possibly harming the children and her expressions of
    not wanting to parent the children.

(3)

The errors by the trial judge and the appeal judge

[44]

The
    trial judge found that the
status quo
that had been established by the
    October 18, 2013
ex parte

order and confirmed at the November
    22, 2013 comeback hearing was unlawful because the father had failed to make
    full and fair disclosure. In my view, he made two errors in his apprehension of
    the evidence and of the submissions in making this finding.

[45]

First,
    in his reasons for discounting the
status quo
, the trial judge stated:
    The father urges that I maintain [the]
status quo
. The mother claims
    that the fathers failure to disclose all the information that was known to him
    set up an unlawful
status quo
or a
status quo
that was
    obtained without full disclosure: at p. 55 (emphasis added). This statement
    constituted an error of fact by the trial judge. At no time did the mother take
    the position that the father had not made full disclosure on the
ex parte
motion or that he had created an unlawful
status quo
.

[46]

The
    mothers counsel did not question the father regarding his disclosure on the
ex
    parte
motion. The issue was raised only by the trial judge in lengthy
    questioning of the father.

[47]

Second,
    the trial judge erred in finding that the father had not made full disclosure
    because he had not indicated that any concern he had about the mother was
    tempered drastically by his knowledge, given in evidence at trial, that Aunt D.M.
    would never do anything to put [the children] in jeopardy.

[48]

With
    respect, D.M. did not have legal custody of the children. The mother did.
    Although D.M. tried to be available to help her sister, she could not be
    available all the time, nor was it her legal obligation to do so. Nor did the father
    in any way suggest that he did not trust D.M. To the contrary, the affidavit
    disclosed that he had delivered the children to D.M. after his Thanksgiving
    access visit, and D.M. had indeed removed the children from her sisters care,
    and although she could not take them herself that night, her mother did.

[49]

As
    Rodgers J. recognized at the comeback hearing, the mothers self-declared
    inability to parent the children and her fear of harming them was the issue
    that caused the concern and the emergency situation. The
ex parte

motion
    judge was told that the children had been removed from the mother. He therefore
    knew the immediate danger had been addressed. The issue was for the ongoing
    care and well-being of the children.

[50]

The
    trial judge also criticized the father for failing to disclose some of the past
    history of the proceedings. Again, as Rodgers J. recognized, whatever had
    happened in the past was overtaken by the mothers concerns about her kids
    safety with her in October. Those concerns could not be ignored based on what
    had occurred in the past, nor did the trial judge explain how those prior
    events would have been relevant on the
ex parte

motion.

[51]

In
    addition, it is clear from Rodgers J.s reasons that he was fully aware both of
    the entire procedural history, as well of the role played by D.M. and the fact
    that everyone trusted D.M. He understood that the
ex parte
order had
    been made without notice and that the comeback hearing was the time to hear
    both sides of the story. He did so and confirmed the temporary order.

[52]

In
    my view, there was no basis on the record for the trial judge to find material non-disclosure
    by the father at the
ex parte
hearing, and the appeal judge erred in
    holding otherwise. Furthermore, it was an error of law for the appeal judge to discount
    the full comeback hearing held by Rodgers J. and to find, contrary to the
    reasons, that Rodgers J. felt bound to confirm the
ex parte
order.

[53]

As
    a result, the conclusion that the childrens residency
status quo
with
    the father created by those hearings was unlawful cannot stand.

Issue 2: Did the appeal judge err by rejecting the allegation
    of reasonable apprehension of bias?

[54]

The
    father also submits that that the trial judge showed a reasonable apprehension
    of bias in his approach to the non-disclosure issue and his conduct of the
    trial.

[55]

The
    test for reasonable apprehension of bias was recently stated by this court in
Martin
    v. Martin
, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: Would a reasonable
    and informed person viewing the matter realistically and practically and having
    thought it through conclude that the judge, consciously or unconsciously would
    not decide fairly. The threshold for finding a reasonable apprehension of bias
    is extremely high. There is a strong presumption in favour of the judges
    impartiality and the question of a reasonable apprehension requires a highly
    fact-specific inquiry:
Martin
, at para. 71.

[56]

In
Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs)
,
    2010 ONCA 47,
265 O.A.C. 247, leave to appeal refused,
    [2010] S.C.C.A. No. 91,
at para. 243, this court cautioned:

[A]
ppellate courts are reluctant to intervene
    on the basis that a trial judge entered the arena and improperly intervened
    in a trial.  There is a strong presumption that judges have conducted
    themselves fairly and impartially.  Isolated expressions of impatience or
    annoyance by a trial judge as a result of frustrations, particularly with
    counsel, do not of themselves create unfairness.  Similarly, a trial
    judges willingness to debate with counsel openly over relevant factual and legal
    issues should not serve as a basis for a reasonable apprehension of bias.
    In the end, an appellate court should only intervene if satisfied that the
    trial judges interventions, considered in the context of the entire trial,
    created a reasonable apprehension that the trial judge was biased. [Citations
    omitted.]

[57]

The
    father submits that the trial judge demonstrated a reasonable apprehension of
    bias in six ways. The first was by suggesting that the argument regarding
    non-disclosure came from the mother, when in fact it was the trial judges
    concern, expressed in questioning of witnesses, in argument and in his reasons
    for decision. The second and third were in his questioning of D.M. and of the father
    on the non-disclosure issue, which had not been raised by anyone else. The
    trial judge questioned the father for 20 pages of transcript, in a
    cross-examining style. The fourth area was in submissions by the fathers counsel
    where the trial judge interrupted counsel to debate his theory regarding the
    non-disclosure. The fifth area was the trial judges failure to advert to the worrisome
    facts that gave rise to the
ex parte
order. The sixth concern was that
    the trial judge improperly reviewed the continuing record rather than limiting
    himself to the evidence at the trial.

[58]

The
    mother submits that none of these issues went beyond the proper role of a trial
    judge, and that taking the conduct of the trial as a whole, there was no
    appearance of a prejudgment of critical issues or the creation of a reasonable
    apprehension of bias.

[59]

The
    appeal judge considered this issue in the context of the test as set out in
Martin
,
    quoted above. He noted that the trial judge appeared to have been gentler with
    the mother in his questioning than with the father, but on his review of the
    record he could not discern a predisposition to decide the issues in favour of
    the mother. He concluded that there was no reasonable apprehension of bias.

[60]

On
    my reading of the record, it appears that the trial judge, who was also the
ex
    parte
motion judge, became concerned that in hindsight he should not have
    granted the
ex parte
motion and pursued his theory of material
    non-disclosure in his examination of witnesses, and during submissions, then
    referred to it as part of his unlawful
status quo
finding.

[61]

However,
    that concern must be viewed in the context of the entire proceeding, the
    presumption of impartiality, and the findings made by the trial judge that
    favoured the father in the analysis of the best interests of the children.

[62]

Viewing
    the proceeding as a whole, it is clear that the trial judge was focused on
    deciding the custody issue by determining the best interests of the children.
    Applying the strong presumption in favour of impartiality, I would not
    interfere with the conclusion reached by the appeal judge that there was no
    reasonable apprehension of bias.

(4)

Remedy for the error in finding an unlawful
status quo

[63]

The
    father submits that as the trial judge found that the other best interest
    factors favoured each parent equally, it cannot be said that the trial judges
    error in finding that the father created an unlawful
status quo
by
    failing to make full disclosure at the
ex parte
hearing did not
    influence his decision to award custody to the mother.

[64]

The
    best that can be said is that it is not clear whether the trial judge would
    have used the
status quo
as the determining factor to award custody to
    the father. He concluded that the children had thrived when they were with
    their mother, that they had lived with her for most of their lives, and that it
    was in their best interests to be returned to her custody.

[65]

Even
    if the fathers submission has some merit, the issue for this court is what
    remedy, if any, should be ordered in the best interests of the children at this
    point. Since the decision of the appeal judge on December 17, 2015, the
    children have resided with the mother. The
status quo
factor has been
    effectively neutralized as a result of the decision of the appeal judge.

[66]

The
    effect of this decision is that the father has been exonerated of the charge of
    misleading the court on the
ex parte
motion. However, there is no
    basis to change the custody arrangements of the children. They are lucky in
    that they have two loving parents and extended families. It is not in their best
    interests to put the parties to the stress and uncertainty of a new trial.

[67]

The
    father also asked for an amendment to the order regarding his support
    obligation. The trial judge ordered child support to commence following the
    trial in December 2014. As the children remained with the father until December
    2015, I agree that the fathers child support obligation should commence on
    January 1, 2016. The appeal is allowed to that extent.

[68]

I
    want to thank and commend both counsel who provided very helpful written and
    oral submissions. No costs of the appeal were requested as both parties were
    legally aided.

DISPOSITION

[69]

The
    appeal is allowed in part only: para. 5 of the order of Klein J., dated
    November 12, 2014, shall be amended by substituting January 1, 2016, in lieu of
    December 1, 2014, for the date on which the father was to commence payment of
    child support.

Released: August 26, 2016 (K.F.)

K. Feldman J.A.

I agree. E.E. Gillese J.A.

I agree. David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D'Angelo v. Barrett, 2016 ONCA 605

DATE: 20160802

DOCKET: C59705

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Donatella DAngelo

Applicant

(Respondent in appeal)

and

Christopher Wayne Barrett

Respondent

(Appellant in appeal)

APPLICATION UNDER Parts I, II and
    III of the
Family Law Act

Julian W. Lipkowski, for the appellant

Gary S. Joseph and Meghann P. Melito, for the respondent

Heard: July 18, 2016

On appeal from the judgment of Justice E. Ria Tzimas of
    the Superior Court of Justice, dated November 5, 2014.

ENDORSEMENT

[1]

The parties married in 2000 and had two children. They separated in
    2011.

[2]

Following a nine-day trial, the application judge ordered that the
    childrens primary residence will be with the respondent, with generous access
    awarded to the appellant; that s. 7 expenses are to be shared between the
    appellant and the respondent on a 65-35% basis; and that the respondent pay the
    appellant $43,092 in equalization. The application judge determined that the
    appellant could not advance a constructive trust claim against the respondents
    mother in respect of her interest in the matrimonial home because the appellant
    ought to have commenced a separate claim against her.

[3]

The appellant challenges the application judges decision on custody and
    equalization.

Custody and access

[4]

The application judge found that the best interests of the children were
    in remaining at the matrimonial home, where they have a stable environment. She
    found, further, that the respondent is a fit parent and is able to provide the
    children with the guidance, education, and the necessaries of life. She
    rejected the appellants narrative that the respondent was missing in action
    and was unable to make decisions for their children.

[5]

The appellant argues that the application judge wrongly disregarded the
    report of an investigator from the Office of the Childrens Lawyer (OCL), who
    recommended that the appellant be awarded sole custody with access to the
    respondent.

[6]

We disagree.

[7]

The decisions of trial judges on custody and access are entitled to a
    high degree of deference. An appellate court is not to overturn a custody order
    in the absence of a material error, a serious misapprehension of the evidence,
    or an error in law:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014.

[8]

It was for the application judge to determine the best interests of the
    children, and the report of the investigator of the OCL was simply evidence in
    this regard. The application judge was under no obligation to accept the report
    or the recommendations of the investigator, either in whole or in part.

[9]

The application judge gave extensive reasons for rejecting the
    investigators recommendation, running for several pages in her decision. The
    application judge considered the fact that the investigator wrote her report
    approximately 15 months prior to the conclusion of the trial in this case. As
    it was not updated, it did not reflect counselling and parenting sessions that
    the respondent had undertaken. Nor did it reflect the respondents willingness
    to consider joint parenting or a joint custody agreement. Further, the application
    judge found that the investigator was biased against the respondent.

[10]

There was ample evidence supporting the respondents parenting,
    including evidence from three independent counsellors and social workers. The application
    judge gave detailed and careful consideration to all of the evidence in
    reaching her decision. Significantly, she found that the appellant was
    determined to take whatever liberties he could with the truth to obtain sole
    custody of his daughters.

[11]

The appellant has not demonstrated that the application judge made any error
    in this case. There is no basis for this court to interfere with her decision
    on custody.

Equalization

The matrimonial home

[12]

The application judge found that the respondents mother lent
    approximately $70,000 to the respondent to enable the purchase of a home in
    Maple in 1999 and that the mothers name was listed on title as a 50% owner of
    the home. The appellant moved into the Maple home in 2000 and it was sold in
    2002. The proceeds of the sale went towards the purchase of a new matrimonial
    home in Brampton, and again the respondents mother was listed on title as a
    50% owner.

[13]

Although the appellant did not claim a constructive trust in his Answer with
    respect to the mothers interest in the matrimonial home in Brampton, he
    advanced a constructive trust claim at trial. The application judge accepted
    the respondents submission that the court did not have jurisdiction to make
    any ruling regarding the mothers interest in the matrimonial home because the
    appellant had not made a claim against her; she was thus not a party to the
    proceedings. The application judge stated that the mothers testimony at trial
    was not the equivalent of being a party to a proceeding and defending a claim.

[14]

As a result, the application judge concluded there was no need to review
    the evidence concerning the mothers loans to the respondent. In calculating
    the respondents net family property for equalization purposes, the application
    judge included only 50% of the value of the Brampton matrimonial home.

[15]

The appellant submitted that the application judge erred by not
    determining his constructive trust claim against the mother. However, the
    thrust of his argument was that the respondents mother was merely a lender,
    although possibly a secured lender, and that her registration on title is not
    relevant in determining the value of the respondents share of the matrimonial
    home.

[16]

The argument, in short, is that a court can find that the respondent
    owns the matrimonial home for the limited purpose of equalization without
    affecting her mothers title and, as a result, it does not matter that the
    respondents mother was not added as a party to the action. The appellant
    submits that the respondent should have been listed as the 100% owner of the
    Brampton home and the $70,000 advanced by the mother as a loan should be
    deducted from the value of the home before equalization.

[17]

We disagree.

[18]

As to the constructive trust submission, the appellant brought no claim
    against the respondents mother. She was not a party to the proceedings against
    the respondent and no order affecting her 50% ownership interest in the home could
    be made. The application judge correctly concluded that testifying at trial was
    not the same as being a party to a proceeding and defending a claim.

[19]

As to the equalization claim, as this court stated in
Korman v.
    Korman
,
2015 ONCA 578, 126 O.R. (3d) 561,
at
    para. 25,
property entitlements must be
    determined before they can be equalized: see also
Martin v. Sansome
,
    2014 ONCA 14, 118 O.R. (3d) 522, at para. 47, citing
Rawluk v. Rawluk
,
    [1990] 1 S.C.R. 70. It is undisputed that the respondents mother contributed
    towards the purchase of the home and is listed on the title as a joint owner. The
    appellant did not bring a claim to challenge her property entitlement. Therefore,
    the application judge did not err in finding that the respondents mother owned
    50% of the home, and that only the 50% owned by the respondent was relevant for
    equalization purposes.

Various loans

[20]

The trial judge held that the respondents mother made various additional
    loans to the respondent totalling $52,326.46. As a result, the trial judge
    deducted this amount from the value of the respondents net family property.

[21]

The appellant argues that this money should not be deducted because the
    loans were forgivable.

[22]

Again, we disagree.

[23]

Although the application judge could have provided a better explanation
    for deducting the value of the loans from the respondents net family property,
    her reasons for doing so are implicit in the record and there is a rational
    basis underlying the determination. The loans were evidenced by promissory
    notes signed by the respondent, her mother, and a witness. The mother made a
    demand for repayment on September 19, 2012. Further, the mother, whom the
    application judge commended for her honest demeanour, testified that she
    expected to be repaid, even though this had not yet occurred.

[24]

There is no basis to interfere with the application judges decision.

Disposition

[25]

The appeal is dismissed.

[26]

The respondent is entitled to costs of the appeal, fixed by agreement of
    the parties at $10,000, inclusive of taxes and disbursements.

Alexandra Hoy A.C.J.O.

David
    Brown J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Donaldson Travel Inc. v. Murphy, 2016 ONCA 649

DATE: 20160830

DOCKET: C61838

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Donaldson Travel Inc.

Plaintiff (Appellant)

and

Mary
    Murphy, Peter Van Der Heyden

and
    1631318 Ontario Inc.

Defendants (Respondents)

John W. McDonald, for the appellant

Gary E. Flaxbard, for the respondent Mary Murphy

Patricia J. Forte, for the respondents Peter Van Der
    Heyden and 1631318 Ontario Inc.

Heard: August 22, 2016

On appeal from the order of Justice David A. Broad of the
    Superior Court of Justice, dated February 5, 2016 and the cost order dated
    February 26, 2016, with reasons reported at 2016 ONSC 740 and 2016 ONSC 1396.

ENDORSEMENT

[1]

The appellant travel agency appeals from an order made
    on a summary judgment motion dismissing its claims for breach of contract,
    misappropriation of confidential information, inducing breach of contract and
    interference with contractual relations against a former employee travel agent
    and her new travel agency employer.

[2]

The issues on appeal boil down to whether
    the motion judge erred: i) in interpreting the restrictive covenant in the
    respondent former employees employment contract with the appellant as a
    non-competition clause as opposed to a non-solicitation clause and in therefore
    finding it unreasonable and unenforceable; and ii) in finding that the former
    employee had not misappropriated the appellants confidential information.

[3]

We see no error in the motion judges
    finding that the restrictive covenant was a non-competition clause. The
    covenant at issue provides as follows:

[The personal respondent] agrees that in the
    event of termination or resignation that she will not solicit or accept
    business from any corporate accounts or customers that are serviced by [the
    appellant], directly, or indirectly.

[4]

Based primarily on the language or accept
    business the motion judge found that the clause at issue restricts competition
    and is not merely a non-solicitation clause.

[5]

We see no error in this conclusion. The motion
    judges interpretation was available based on the plain wording of the clause. The
    fact that the appellant abandoned previous employment contracts containing more
    restrictive non-competition clauses and that its policy manual required only
    that employees sign a non-solicitation agreement does not change this
    conclusion. We see no basis on which to interfere with the motion judges
    finding. Further, given that the restrictive covenant is a non-competition
    clause (as opposed to a non-solicitation clause) and also because it contains
    no temporal limitation, there is no basis on which to interfere with the motion
    judges conclusion that the clause is unreasonable and therefore unenforceable:
J.G. Collins Insurance Agencies Ltd. v. Elsley
,
    [1978] 2 S.C.R. 916, at para. 19;
H.L. Staebler Co. v. Allan
, 2008 ONCA 576, 92 O.R. (3d) 107, at para. 36.  The appellants
    arguments concerning severance of the phrase or accept business have no merit:
Shafron v. KRG Insurance Brokers (Western) Inc.
,
2009 SCC 6,
[2009] 1 S.C.R.
    157 at para. 36.

Finally, and in any event, we note
    that the record before the motion judge failed to establish that the departed
    employee had solicited any of the appellants clients.

[6]

As for the misappropriation of confidential
    information issue, the motion judge found that the appellants evidence failed
    to demonstrate that the departed employee shared information with her new
    employer that had a quality of confidence. On the significant issue of
    whether the departed employee had disclosed sales volumes and revenues
    associated with particular client names, the motion judge found that the
    appellants evidence of what the departed employee had said to a current
    employee was not inconsistent with the respondents evidence that the departed
    employee had disclosed only her own annual sales volumes.

[7]

The motion judges findings were available on
    the record before him  as was his underlying expectation that the appellant
    had put its best foot forward in terms of the evidence. While the appellant
    objects that the motion judge erred in failing to accede to its request to
    conduct a mini-trial, the appellant did not cross-examine the respondents witnesses
    on their affidavits. In these circumstances, the appellants assertion that
    cross-examination would have yielded inferences beneficial to the appellant and
    weaknesses in the respondents case lacks any foundation.

[8]

Given that the appellants claims that the motion judge erred in finding
    that the departed employee breached her employment contract and disclosed
    confidential information fail, the appellants claims that the motion judge erred
    in finding that the departed employees new employer induced such a breach or
    participated in such disclosure also fail.

[9]

In its factum, the appellant sought leave to appeal the motion judges
    costs award, relying in large measure on the asserted novelty of the issues
    relating to the restrictive covenant. Leave to appeal is denied. The appellant
    failed to meet the high threshold for obtaining leave to appeal a costs award.

[10]

Costs of the appeal are to the respondents on a partial indemnity scale
    fixed in the amount of $7,500 each, inclusive of disbursements and applicable
    taxes.

K.  Feldman
    J.A.

Janet Simmons
    J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fantl v. Transamerica Life Canada, 2016 ONCA 633

DATE:.20160822

DOCKET: C61284

Strathy C.J.O., Blair and Lauwers JJ.A.

BETWEEN

Joseph Fantl

Plaintiff/Respondent

and

Transamerica Life Canada

Defendant/Appellant

Mary Jane Stitt and Doug McLeod, for the appellant

David F. OConnor and J. Adam Dewar, for the respondent

Heard: May 11, 2016

On appeal from the order of the Divisional Court (H.
    Sachs, D.L. Corbett and Gilmore JJ.), dated March 9, 2015, with reasons
    reported at 2015 ONSC 1367, setting aside in part the certification order of
    Justice P. Perell of the Superior Court of Justice, dated April 18, 2013, with
    reasons reported at 2013 ONSC 2298.

Strathy C.J.O.:

A.

introduction

[1]

The issue on this appeal is whether a class action for negligent
    misrepresentation is the preferable procedure for the resolution of the class
    members claims.

[2]

The certification judge held that it was not, because the individual
    issues of reliance, causation and damages would overwhelm or subsume the
    common issues. The Divisional Court allowed the appeal, noting that the
    certification judge did not have the benefit of the Supreme Court of Canadas
    decision in
AIC Limited v. Fischer
, 2013 SCC 69, [2013] 3 S.C.R. 949
.

[3]

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

B.

the facts

[4]

The proposed class is composed of investors in Transamericas Can-Am
    Fund, an investment vehicle offered under insurance contracts sold by Transamerica
    between October 1992 and March 2001.
It
    was a synthetic fund, similar to a mutual fund and designed to replicate the
    performance of the S&P 500.

[5]

The respondents class action encompasses 53
    different insurance contracts. Five of these contained an express statement
    that the fund would on a best efforts basis replicate the performance of the
    S&P 500 Total Return Index.

[6]

The other 48 contracts did not contain this express
    statement. However,
beginning in 1994, every investor in the Can-Am Fund
    received an information folder containing a statement that
the
    goal of the fund was to replicate, on a best efforts basis, the performance
    of the S&P 500 Total Return Index.

[7]

The information folder was provided pursuant to regulations under the
    Ontario
Insurance Act
,
R.S.O. 1990, c. I.8, which required that
    investors receive a disclosure document before investing in a segregated fund
    like the Can-Am Fund. That document, referred to as an information folder, is
    required to disclose the funds investment policy and objectives. Investors are
    required to acknowledge receipt of the information folder.

[8]

The respondents negligent misrepresentation claim arises from the best
    efforts statement in the information folder. He says this representation was
    untrue.

C.

Decisions below

[9]

I will give a brief overview of the reasons in the courts below. Further
    detail will be added in the Analysis section.

(1)

The certification judge

[10]

The
    certification judge certified the plaintiffs action for breach of contract
    based on the five insurance contracts that contained an express best efforts
    clause. He did not certify the negligent misrepresentation claim in relation to
    the statements in the information folders provided to investors in the other 48
    contracts.

[11]

He
    found that two, or possibly three, of the five constituent elements of the tort
    of misrepresentation could be common issues: (a) the existence of a duty of
    care; (b) whether the representation was untrue, inaccurate or misleading; and
    (c) whether the misrepresentation was made negligently. This left issues of
    reliance and damages to be decided at individual trials  issues that he
    regarded as critical, difficult, and contentious.

[12]

He
    concluded that these individual issues overwhelmed or subsumed the common
    issues, and that resolving the common issues would mark just the beginning of
    the process leading to a final disposition of the claims of class members. For
    this reason, he said, a class action was not the preferable procedure for the
    negligent misrepresentation claims. Moreover, this was not a case in which the
    policyholders claims were so small that access to justice would not be
    available absent a class action.

(2)

The Divisional Court

[13]

The
    Divisional Court noted that although a certification judges decision on
    preferable procedure is normally entitled to deference, the judge here did not
    have the benefit of the approach to the preferability analysis set out by the
    Supreme Court in
Fischer
.

[14]

Applying
    that analysis, the Divisional Court held that a class proceeding was a fair,
    efficient and manageable method of advancing the claim and the only reasonable
    way to remove the economic barriers to access to justice. It also found that
    the certification judge had overstated the value of the plaintiffs claim in
    coming to his conclusion that it was economically viable as a stand-alone
    claim. It was not viable and there was no reasonable alternative.

[15]

The
    Divisional Court recognized that
Fischer

does not displace or
    eliminate the requirement that the proposed class proceeding must be a fair,
    efficient and manageable method of resolving the claims. However, as the certification
    judge noted, two, and perhaps even three, of the five elements of the tort of negligent
    misrepresentation could be dealt with at a common issues trial.

[16]

Moreover,
    contrary to the certification judges finding that the common issues to be
    tried in the certified breach of contract claim would not assist the
    prosecution of the tort claim, the evidence on the breach of contract common
    issue would likely overlap with the evidence in the tort claim. That evidence
    would examine how the Can-Am Fund was invested and managed and how it ought to
    have been managed to replicate the performance of the S&P 500.

[17]

While
    the duty of care issue might not be particularly contentious, determining
    whether the representation was false and whether Transamerica was negligent
    would require expensive and complex expert evidence and it would be efficient
    to address these issues in a class action.

[18]

The remaining elements of the tort of misrepresentation
    reliance and damages  were individual issues. The Divisional Court noted that
    there have been cases in which such reliance-based claims have not been
    certified due to the unmanageability of individual issues: see
e.g.
:
Musicians
    Pension Fund of Canada (Trustees of) v. Kinross Gold Corporation
, 2014 ONCA 901, 61 C.P.C. (7th)
    1
;
Green v. Canadian Imperial Bank of Commerce
,
2012 ONSC
    3637
,
[2012]
    O.J. No. 3072
, revd on other grounds, 2014 ONCA 90, affd, 2015 SCC
    60
.

[19]

On
    the other hand, it noted, claims involving a single representation, a uniform
    set of representations, or even separate representations having a common import
    have been certified, notwithstanding individual issues of reliance and damages,
    citing:
Ottawa Police Association v. Ottawa Police Services Board
,
    2014 ONSC 1584 (Div. Ct.), at para. 59;
Cannon v. Funds for Canada
    Foundation
, 2012 ONSC 399, at paras. 340, 350-351, leave to appeal to Div.
    Ct. refused, 2012 ONSC 6101 (Div. Ct.);
Ramdath v. George Brown College of
    Applied Arts and Technology
, 2010 ONSC 2019, 93 C.P.C. (6th) 106, at para.
    103;
Carom v. Bre-X Minerals Ltd.

(2000)
, 51 O.R. (3d) 236 (C.A.), at
    paras. 48-49;
Canadian Imperial Bank of Commerce v. Deloitte & Touche
,
    [2003] O.J. No. 2069 (Div. Ct.), at para. 35;
Lewis v. Cantertrot
    Investments Ltd.
, [2005] O.J. No. 3535 (S.C.), at para. 20;
Hickey-Button
    v. Loyalist College of Applied Arts & Technology
(2006), 267 D.L.R.
    (4th) 601 (Ont. C.A.);
Murphy v. BDO Dunwoody
, [2006] O.J. No. 2729
    (S.C.); and
Silver v. IMAX Corp.
, [2009] O.J. No. 5585 (S.C.), leave
    to appeal to Div. Ct. refused, 2011 ONSC 1035 (Div. Ct.)
[1]
.

[20]

Here,
    there was a single uniform representation, contained in a statutorily-mandated
    disclosure document, which was given to each class member and which each
    acknowledged receiving.

[21]

The
    Divisional Court considered, at para. 46, that the individual issues of
    reliance and damages might be capable of resolution through fairly
    straightforward mechanisms. While reliance would be an individual issue, a class
    member would not need to prove that the representation was the only factor that
    induced the investment, but simply that they relied on the representation
    (para. 44, referring to
NBD Bank, Canada v. Dofasco Inc.
(1999), 46
    O.R. (3d) 514 (C.A.) at para. 78, leave to appeal to SCC refused, [2000]
    S.C.C.A. No. 96).

D.

submissions of the parties

[22]

The
    appellant submits that
Fischer
does not eliminate
Hollick

s
    requirement that the proposed class action be a fair, efficient and manageable
    method of resolving class members claims. It says that this courts decision
    in
Kinross
illustrates that a class proceeding based on common law
    misrepresentation is unsuitable for certification because individual issues of
    reliance, causation, mitigation and damages make it unmanageable. As a result,
    it simply cannot promote judicial economy and efficiency.

[23]

The
    respondent argues, as he did in the Divisional Court, that deference is not
    owed to the decision of the certification judge as he did not have the benefit
    of
Fischer
, which refocused the preferable procedure analysis on
    access to justice. He says that the presence of individual issues does not
    preclude certification, for the reasons set out by the Divisional Court.

E.

ANALYSIS

[24]

I
    would dismiss the appeal, substantially for the reasons given by the Divisional
    Court.

[25]

The
    Divisional Court noted that a certification judges decision on preferable
    procedure attracts deference and a reviewing court should intervene only where
    the judge has made a palpable and overriding error of fact or has erred in
    principle:
Pearson v. Inco Ltd.

(2005), 78 O.R. (3d) 641 (C.A).
    Here, the effect of
Fischer
, released subsequent to the certification
    judges decision, was to reduce the deference that would normally be given to
    the certification analysis. This is consistent with
Kinross
, at para.
    107, where this court considered that the failure of the certification analysis
    to comport with
Fischer
was a factor that reduced the deference owned
    to the certification judge and permitted the court to conduct its own analysis.

[26]

In
Fischer
, Cromwell J. emphasized that the preferability analysis is a
    comparative one that considers whether the proposed class action will achieve
    the goals of the
Class Proceedings Act, 1992
, S.O. 1992, c. 6, as
    compared to other means of resolving the claim. This requires a consideration
    of whether the process is fair and will provide claimants with a just and
    effective remedy. The remedy will not be just and effective if, at the end of
    the day, claimants remain faced with the same economic and practical hurdles
    they faced at the outset of the proceeding.

[27]

Fischer

requires us to consider (a) the barriers to access to justice; (b) the
    potential of a class action to address those barriers; and (c) the alternatives
    to a class action, including the extent to which the alternatives address the
    relevant barriers and how the two proceedings compare.

[28]

As
    Cromwell J. noted, the most common barrier to access to justice is an economic
    one. That is the case here.

[29]

The
    motion judge concluded that the amount of damages claimed at the individual
    issues trial could be substantial. He suggested that Mr. Fantl had the
    alternative of commencing an action in the Superior Court and that efficiencies
    might be obtained by joinder of plaintiffs. He made reference to the fact that
    Mr. Fantl had made a total investment of around $100,000.

[30]

As
    the Divisional Court pointed out, however, Mr. Fantl invested only a part of
    this amount in the Can-Am Fund. His investments in the Can-Am Fund during the
    material time ranged in value between approximately $27,000 and $52,000. His
    monetary damages, calculated on the difference between what he earned on those
    investments and what he would have earned had the representation not been made,
    would have been a fraction of his investment.

[31]

I
    agree with the Divisional Courts conclusion, at para. 32, that Mr. Fantls
    claim could not reasonably be viewed as economically viable to litigate in the
    Superior Court. The cost of expert evidence to establish that the
    representation was untrue or misleading, and that the misrepresentation was
    made negligently, would be out of all proportion to the amount at issue. That
    cost would be a significant barrier to access to justice. That barrier would
    not be addressed by joinder, which is not a practical means of bringing access
    to justice to a class of thousands. A class proceeding, on the other hand, has
    the potential to address this economic barrier by distributing the costs over
    thousands of class members, rather than one or even a few.

[32]

The
    real issue on this appeal was not at issue in
Fischer
, but was in
Kinross

 whether a class action would be a fair, efficient and manageable
    proceeding, having regard to the common issues in the context of the action as
    a whole and the individual issues that would remain after the common issues are
    resolved.

[33]

The
    appellant submits that the Divisional Courts decision is in direct conflict
    with this courts decision in
Kinross
. According to the appellant,
Kinross

establishes that common law negligent misrepresentation claims in investor
    class actions are inherently unsuitable for certification because the need for
    numerous individual inquiries undercuts the goal of judicial economy and
    overwhelms the resolution of the common issues, producing an inefficient and
    unmanageable class proceeding.

[34]

Kinross
involved claims under the
Securities Act
, R.S.O. 1990, c. S.5, for
    secondary market misrepresentation and common law claims for negligent
    misrepresentation. The motion judge denied leave to proceed with the statutory
    claims and declined to certify both the statutory and common law claims.

[35]

This
    court found that the motion judge had erred in refusing to certify the common
    law claims solely on the basis of the denial of leave for the statutory claims.
    While this court found that the motion judges preferability analysis did not
    comport with
Fischer
, it found that the proposed class action did not
    meet the preferable procedure criterion because the individual issues of
    reliance, causation and damages rendered the common law claims unsuitable for
    certification. It held, at para. 127, that a class proceeding would not
    represent a fair, efficient and manageable procedure that is preferable to any
    alternative method of resolving the common law claims.

[36]

Kinross
is distinguishable for several reasons.
First
, as I have noted, the
    action was for both the statutory remedy for misrepresentation in the secondary
    securities market and for common law misrepresentation. It has often been noted
    that securities cases frequently present difficulties in class actions, hence
    the statutory remedy, which obviates the need to prove reliance: see
Green
    v. CIBC

at paras. 595, 610-611. This court noted in
Kinross
that proof of reliance, causation and damages would pose particular
    difficulties, making it necessary to answer numerous investor-specific questions
    related to multiple representations, investors sophistication and investment
    advice, dates of acquisition and prices.  This court considered that the host
    of individual inquiries would make the common law claims unsuitable for
    certification.

[37]

Here,
    in contrast, there was a single common written representation made in the
    English language materials. Moreover, every class member acknowledged receiving
    it. This substantially obviates the need for individual inquiries into whether
    the alleged misstatement was received by class members.

[38]

Second
, in
Kinross
there had been a judicial
    determination that the statutory misrepresentation claims, which rested on the
    same foundation as the common law claims, had no reasonable prospect of success
    at trial. This favoured the conclusion that a class action was not the
    preferable procedure for advancing the common law claims. That circumstance
    does not apply here.

[39]

Third
,
    in this case some of the necessary heavy lifting on the misrepresentation
    common issues will be shared with the certified breach of contract common
    issues. This will promote judicial economy and will avoid a multiplicity of
    proceedings. As the Divisional Court observed, at para. 41, referring to this
    courts decision in
Carom v. Bre-Ex Minerals Ltd.
, where there is
    substantial overlap between two legal claims advanced in the same proceeding
    and each claim raises common issues, a decision to certify one of the claims
    weighs heavily in favour of certifying the other.

[40]

Fourth
,
    the resolution of the common issues of duty of care, truth or falsity of the
    representation and negligence would go a long way towards the determination of
    the appellants liability and would significantly advance the claim of every
    class member.

[41]

If
    the common issues are resolved in favour of the defendant, that will be the end
    of the matter. If they are resolved in favour of the class, a class proceeding
    can provide a framework for the resolution of the individual issues. It is
    realistic to expect that having tried the common issues the trial judge will
    have a full appreciation of the individual issues and will be well equipped to
    devise a procedure for the resolution of those issues. Section 25 of the
CPA

gives the judge authority to craft fair, inexpensive and efficient
    procedures in order to do so. This is ancillary to the broad discretion
    conferred on the court under s. 12 to make any order it considers appropriate
    respecting the conduct of a class proceeding to ensure its fair and expeditious
    determination.

[42]

While
    damages might be a more complex individual issue, s. 6.1 of the
CPA

expressly provides that the need for individual assessments of damages is
    not, in itself, a bar to certification. See
Brown v. Canadian Imperial Bank
    of Commerce
, 2012 ONSC 2377, at para. 195, affd 2013 1284 (Div. Ct.), affd,
    2014 ONCA 677.

[43]

In
    my view, therefore, a class action in this proceeding has the potential to
    address the barriers to access to justice and can promote the resolution of
    claims that cannot be efficiently litigated through individual proceedings or
    by alternatives such as joinder.

[44]

Although
    class actions have been with us in Ontario for almost 25 years, there have, at
    most recent report, been less than 20 common issues trials: see  Jon Foreman
    & Genevieve Meisenheimer, The Evolution of the Class Action Trial in
    Ontario (2014) 4 Western Journal of Legal Studies. Few of these have resulted
    in individual issues trials. If class actions are to deliver on their promise
    of access to justice it is perhaps time to test some of the assumptions made
    about the manageability of the individual issues stage of a class action.
    This appears to be an ideal case in which to do so.

French language issue

[45]

The
    appellant raised for the first time an argument based on the difference between
    the French and English versions of the information folder.
Instead
    of the best efforts language, one French version states, afin de reproduire
    le plus précisément possible la performance de lindice de rendement global
    S&P 500.
Another French version uses the wording afin dafficher
    globalement, le plus .

[46]

The
    appellant claims that the phrase best efforts is a concept unique to common
    law jurisprudence that has a distinct meaning and specific legal implications.
    He says that the result is that the proposed class, which includes those who
    received French and English folders, is overbroad.

[47]

This
    issue was not raised in the courts below and there is no evidentiary basis for
    it in the record. For this reason, I would not consider it. It can be
    addressed, if necessary, in the ordinary course of case management, through the
    creation of a sub-class and sub-class common issues.

F.

order

[48]

For
    these reasons, I would dismiss the appeal, with costs of the leave motion and
    the appeal payable to the respondent in the agreed amount of $65,000, inclusive
    of disbursements and all applicable taxes.

Released: GRS  AUG 22 2016

G.R. Strathy C.J.O.

I agree R.A. Blair
    J.A.

I agree P. Lauwers
    J.A.

[1]
In
Silver
, van Rensburg J. (as she then was) rendered a separate
    decision concerning leave to pursue a claim for secondary market
    misrepresentation against the defendant. This decision was appealed to the
    Court of Appeal and thereafter to the Supreme Court of Canada:
Silver v.
    IMAX Corp.
, 2012 ONSC 4881, affd, 2014 ONCA 90, affd, 2015 SCC 60.