COURT OF APPEAL FOR ONTARIO

CITATION: Krivicic (Re), 2017 ONCA 379

DATE: 20170510

DOCKET: C62629

Weiler, Feldman and Huscroft JJ.A.

IN THE MATTER OF:  Elvis Krivicic

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jill R. Presser,
Amicus Curiae

Elvis Krivicic, in person

Craig Harper, for the Respondent Crown

Janice Blackburn, for the Respondent persons in charge
    of Providence Health Care Kingston and North Bay Regional Health Centre

Heard: April 26, 2017

On appeal from the disposition of the Ontario Review
    Board dated August 11, 2016.

Huscroft J.A.:

[1]

The appellant, Elvis Krivicic, appeals the August 11, 2016 Disposition
    of the Ontario Review Board, which concluded that he constitutes a significant
    threat to the safety of the public and transferred him from the Secure Forensic
    Unit of the North Bay Regional Health Centre (North Bay) to the Secure Forensic
    Unit at Providence Health Care Kingston (Providence) with escorted hospital and
    grounds privileges.

[2]

Amicus
submits that the Board erred in failing to grant the
    appellants request for an absolute discharge. The Crown seeks to uphold the
    Boards disposition. The persons in charge of Providence and North Bay submit
    that the Boards disposition was reasonable at the time it was made, but it is
    appropriate for the court to grant the appellant an absolute discharge on the
    basis of fresh evidence.
Amicus
and the appellant also bring fresh
    evidence applications in support of their positions.

[3]

For the reasons that follow, I would admit the fresh evidence of the
    persons in charge of Providence and North Bay, allow the appeal, and remit the
    matter to the Board for a fresh determination.

A.

Background

[4]

The appellant is a 38 year-old man. On February 27, 2007, he was found
    not criminally responsible (NCR) on account of mental disorder in connection
    with one count of criminal harassment and two counts of failure to comply with
    recognizance.

[5]

The index offences involved repeated telephone calls and attempts to
    contact a woman the appellant did not know. The appellant has been detained in
    the mental health system pursuant to Board dispositions for over ten years
    since the index offence.

[6]

The appellant has been diagnosed with delusional disorder, erotomoaniac
    type, and adjustment disorder with depressed mood. He has a history of cannabis
    abuse as well as anti-social and schizoid personality traits. He has Crohns
    Disease and problems with his skin and is concerned that he has not been able
    to receive the medical treatment he requires.

B.

The decision of the Board

[7]

The Boards August 11, 2016 Disposition was based on the Boards prior Disposition,
    dated March 3, 2016. In that disposition, the Board noted that the appellant
    continued to deny that he has a mental illness and that he remains untreated
    and continues to be in a paranoid and delusional state. However, the Board also
    noted that the appellant had not been involved in any violent acts and had not
    made any attempt to contact the victim of the index offences. Nevertheless, the
    Board concluded that the appellant poses a significant threat to the safety of
    the public and that he should be transferred from the Waypoint Centre for
    Mental Health Care to North Bay.

[8]

In the normal course, the appellant would not have had another Board review
    for 12 months. However, as a result of a shortage of psychiatrists, North Bay
    requested an early Board review for the purpose of moving the appellant to an
    institution where he could receive psychiatric care. The result was the Boards
    August 11, 2016 Disposition that is the subject of this appeal.

[9]

The Board concluded that nothing had changed since its March 2016
    disposition and that the appellant continued to pose a significant threat to
    the safety of the public. The Board ordered that he be transferred from the
    Secure Forensic Unit of the North Bay to the Secure Forensic Unit at
    Providence, with escorted hospital and grounds privileges. A minority of the
    Board would have granted the appellant additional privileges.

C.

The Fresh Evidence

[10]

Amicus
 fresh evidence application consists of the full
    evidentiary record of the hearing that resulted in the Boards March 2016
    Disposition. The appellants fresh evidence application concerns his medical
    condition, in particular Crohns Disease, and treatment regime. The fresh
    evidence proffered by the persons in charge of Providence and North Bay is a
    report prepared by the appellants current psychiatrist, Dr. Chan, who expresses
    the view that the appellant does not meet the significant threat threshold and
    is entitled to an absolute discharge.

D.

Analysis

[11]

The Boards decision is subject to review on the reasonableness
    standard. The question for the court is whether, in all of the circumstances,
    the Boards has reached an
acceptable and defensible outcome.

[12]

In my view, the Boards decision is unreasonable in light of the fresh
    evidence proffered by the persons in charge of Providence and North Bay, which I
    would admit.

[13]

The appellant had not been seen by a regular psychiatrist between his
    transfer to North Bay and the August Board hearing. As noted above, the purpose
    of that hearing had been to transfer the appellant to an institution that could
    provide the psychiatric care not available at North Bay. The Board had no new
    information to go on in determining whether the appellant posed a significant
    threat to the safety of the public, and so relied on the information provided
    at the prior hearing in March in denying his request for an absolute discharge.

[14]

The fresh evidence provides an up-to-date medical report from the
    appellants current psychiatrist, Dr. Chan, based on a thorough psychological
    assessment conducted by a clinical forensic psychologist, Dr. Looman. He administered
    a different test than had been previously used to assess the appellants risk
    to the public if released. Dr. Chan expresses the opinion that the appellant
    does not meet the significant threat threshold.

[15]

This is significant evidence, as it is clearly at odds with the evidence
    relied on by the Board in its August 11 Disposition. However, Dr. Chans
    evidence has not been tested by the Crown, nor has it been evaluated by the
    Board. If Dr. Chans evidence had been before the Board in August, the Board
    would have had to evaluate it alongside the evidence it relied on in making its
    prior dispositions.

[16]

This is an unusual situation, in which the appellants new treating
    psychiatrist and the person in charge of his current treatment centre agree
    that he should be absolutely discharged.

[17]

In these circumstances, I would conclude that the Boards decision is now
    unreasonable. Through no fault of the Board, its decision is based on an
    incomplete picture. If Dr. Chans evidence is accepted by the Board, the
    appellant is entitled to an absolute discharge.

[18]

It is not for the court to reconcile the competing psychiatric evidence
    in this case. That is the responsibility of the Board, an expert body charged
    with responsibility for evaluating the medical evidence, and the Board must be permitted
    to do its job.

[19]

Accordingly, I would allow the appeal and remit the matter to the Board
    for a fresh determination in light of Dr. Chans evidence, and any other
    evidence it considers relevant.

[20]

The Board should hold its hearing as soon as possible, and in any event no
    later than June 14.

Grant Huscroft
    J.A.

I agree. K.M.
    Weiler J.A.

Feldman J.A. (dissenting as to remedy)

[21]

I agree with my colleagues that the fresh evidence tendered by the
    person in charge of the hospital should be admitted and considered by this
    court. That evidence is that in the opinion of the psychologist who tested the
    appellant, and the psychiatrist charged with his care, he does not pose a
    significant threat to the safety of the public and should be absolutely
    discharged.

[22]

In my view, based on the fresh evidence, and with no contradictory
    evidence either tendered or proposed, in accordance with s. 672.54 of the
Criminal
    Code
, the appellant should be granted an absolute discharge.

[23]

The fresh evidence tendered by the person in charge of Providence Care
    is the affidavit of Dr. Chan, the appellants treating psychiatrist, as well as
    the report of Dr. Looman, the psychologist who conducted the testing of the
    appellant.

[24]

Following the Boards disposition of August 11, 2016, the appellant was
    transferred to Providence Care, where he told Dr. Chan that he no longer posed
    a significant threat to the safety of the public. Dr. Chan decided that that
    issue should be reviewed. In particular, he noted that given the index offence
    of criminal harassment of a woman with whom the appellant had no prior
    relationship or romantic contact, it might be appropriate for the appellant to
    be assessed using psychological risk assessments that have been developed to
    address that type of issue.

[25]

Dr. Chan referred the appellant for a [thorough] psychological
    assessment with respect to risk to Dr. Looman, an experienced clinical forensic
    psychologist who practises at Providence Care.

[26]

Dr. Looman met with the appellant for six hours over the course of three
    days and reviewed the previous hospital reports prepared for Board hearings,
    including the appellants risk assessments. He noted that the last assessment
    was prepared at Waypoint Center in December 2015. It was done using the tool
    HCR-20. The appellant scored 28/36 with 2 items omitted. There were also
    clinical concerns of: lack of insight, negative attitude, active symptoms of
    major mental illness and unresponsiveness to treatment. His risk management
    concerns were lack of appropriate personal support and non-compliance with
    remediation attempts.

[27]

Dr. Looman reported that the appellant told him that the index offence
    occurred because a friend told him that the victim liked him. He said that once
    he understood that she did not want contact with him he stopped, and that his
    attempted contacts from jail were to extricate himself.

[28]

Dr. Looman noted that the HCR-20 assessment tool was specifically
    designed to predict risk for violent recidivism and doubted its applicability,
    given that the appellant has no history of violence, nor has he been violent in
    hospital despite his anger over his legal situation and his medical treatment.
    He noted that as the appellant was 38 years of age and the risk of violence
    decreases after age 40, it was reasonable to assume that the appellant was now
    unlikely to engage in violence into the future.

[29]

Dr. Looman decided that given the nature of the index offence, a stalking-specific
    risk assessment was the most appropriate. The results of the three parts of the
    Stalking Risk Profile were as follows: 1) risk of stalking violence, 2/15
    factors = low risk; 2) risk of persistence, 2 or 3/12 factors (lack of empathy
    is questionable) = low risk; risk of reoccurrence, 2/8 factors = low risk.

[30]

I quote his summary and conclusion in full:

Mr. Krivicic is thus considered to present a low risk for
    violence overall. While he continues to refuse treatment and remains
    delusional, his delusions focus on persecutory themes and he no longer thinks
    about the victim of his index offence. While he experiences anger regarding
    what he perceives as injustices he is subject to; he channels this anger into
    writing letters and complaints.

It should be noted that the current risk assessment reaches a
    quite different conclusion than previous assessments. The most recent
    assessment was conducted at Waypoint Centre in 2015 and assessed Mr. Krivicic
    using the HCR-20. As discussed above, I see this as an inappropriate tool for
    this purpose. Other assessments appear to have been clinical in nature and
    appear to have focused on his refusal of treatment and his on-going delusions
    as indicating an elevated risk. This again does not appear to be an appropriate
    conclusion for a variety of reasons; not least because clinical judgement
    regarding risk for re-offence is well-known to be inaccurate. Part of this
    inaccuracy is due to the fact that when making clinical assessments of risk for
    re-offence the person conducting the assessment tends to focus on factors which
    [are] NOT related to risk.

The risk assessment in the current report is the first to use a
    measure specific to Mr. Krivicics index offence, the Stalking Risk Profile,
    which is a validated measure of risk for stalking violence; and this assessment
    places him at low risk.

Mr. Krivicic is asking for an absolute discharge from his
    disposition. His current risk level would suggest that this is an appropriate
    result. In addition to his presenting a low risk for violence Mr. Krivicic is
    current[ly] experiencing a great deal of distress due to what he perceives as
    the forensic systems denying him access to what he sees as adequate medical
    care. Granting him a discharge will allow him to access the care he seeks, and
    may be considered to be in his best interest.

[31]

In his affidavit, Dr. Chan explained that the appellant told him he did
    not wish to proceed with the new evidence to an early Review Board hearing, as
    that would have the effect of making this appeal moot. That had already
    happened to the appeal of his March, 2016 Review Board disposition when the
    August hearing was held to transfer him to Providence Care from North Bay. Dr.
    Chan understood that the fresh evidence was being presented to this court.

[32]

Dr. Chan states that he endorses the conclusion reached by Dr. Looman,
    and that in his opinion the appellant does not meet the significant threat
    threshold for remaining under the jurisdiction of the Ontario Review Board,
    and that the person in charge of Providence Care supports the absolute
    discharge of Mr. Krivicic. He also wanted this court to be aware that if an
    absolute discharge were to be granted, Providence Care would provide a bed for
    the appellant for a reasonable period of time in order to facilitate discharge
    planning.

[33]

This case presents a very unusual situation where the person in charge
    of the hospital brings forward fresh evidence and supports an order of absolute
    discharge. I note that both respondents, the person in charge of Providence
    Care, and the person in charge of North Bay Regional Health Centre, where the
    appellant was held at the time of the Board disposition under appeal and which
    supported that disposition, support an absolute discharge order from this
    court.

[34]

The opposition comes only from the respondent Ministry of the Attorney
    General. It was the Ministrys position that the fresh evidence should not be
    admitted. That position has been rejected. The Ministry has brought forward no
    evidence to suggest that there is any medical or psychiatric professional who
    has concerns about the conclusion reached by Dr. Looman and Dr. Chan that
    should be brought to the attention of the Board.

[35]

My colleagues state that this court is not to reconcile competing
    psychiatric evidence. However, there is no competing psychiatric evidence.
    There is old evidence that was before previous Boards and the fresh evidence
    based on new, current testing. The fresh evidence is the un-contradicted
    opinion of the appellants treating psychiatrist and of the experienced
    forensic psychologist at the appellants hospital. It is tendered by the person
    in charge of the hospital as reliable.

[36]

Under s. 672.78(3)(a), where the court of appeal allows an appeal from a
    disposition of the Board, it may make any disposition the Board could have
    made. In this case, had the Board had the fresh evidence we have admitted, it
    could have ordered an absolute discharge. Under s. 672.78(3)(c) this court may
    make any order that justice requires.

[37]

I would order an absolute discharge under either paragraph (a) or (c).

[38]

In
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451 this
    court ordered an absolute discharge where it concluded that the evidence before
    the Board did not support the finding of significant threat to the safety of
    the public. Doherty J.A., writing for the court, reviewed the legal and
    constitutional basis for the requirement that a person found not criminally
    responsible (NCR) only have his or her liberty restricted where the person
    poses a significant threat to the safety of the public. See
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779, at para 25. Otherwise, the Board must order
    an absolute discharge. See
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, at paras. 52, 57 and 62.

[39]

The assessment of risk is normally done by the Review Board, an expert
    panel able to assess complex psychiatric evidence. However, in
Ferguson
,
    this court overruled the finding by the Board that the accused posed a
    significant threat to the safety of the public. The court concluded that the
    Board had overstated the treating psychiatrists opinion, which did not go so
    far as saying that the accused in that case was likely to cause harm to the
    public in the future, and therefore, at its highest amounted to uncertainty. As
    a result, the Board should have ordered an absolute discharge. The court
    therefore made that order.

[40]

In this case, although the Board has not had an opportunity to assess
    the fresh evidence, that evidence is unequivocal and one-sided. Based on the
    record before this court, there is no evidence that the appellant continues to
    pose a significant risk to the safety of the public.

[41]

For these reasons, I would direct an absolute discharge.

Released: KF MAY 10 2017

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: MacKay v. Starbucks Corporation, 2017 ONCA 350

DATE: 20170502

DOCKET: C60621

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Carole MacKay

Plaintiff (Respondent)

and

Starbucks Corporation
, City of Toronto,

K.J.
    Beamish Construction Co. Limited, and

Queen
    Hammersmith Holdings Inc.

Defendants (
Appellant
)

Bruno Roti, for the appellant

Murray Tkatch and Barbara K. Opalinski, for the
    respondent

Heard: September 8, 2016

On appeal from the judgment of Justice Mary A. Sanderson of
    the Superior Court of Justice, sitting with a jury, dated January 18, 2016,
    with reasons on the relevant ruling reported at 2015 ONSC 4718, 58 R.P.R. (5th)
    310.

Feldman J.A.:

[1]

Following a trial by judge and jury, the jury found that the place where
    the respondent fell was on an ice-covered municipal sidewalk at the entrance to
    a patio in front of Starbucks. In a ruling before the case went to the jury, the
    trial judge held that Starbucks was an occupier of that part of the sidewalk
    and therefore owed the respondent a duty of care. The jury found that Starbucks
    breached its duty of care as an occupier of the sidewalk.

[2]

The trial judges finding that Starbucks was an occupier of that
    portion of the sidewalk, within the meaning of the
Occupiers Liability Act
,
    R.S.O. 1990, c. O.2 (the Act), was a ruling of mixed fact and law. This is an
    appeal of that ruling.

Facts

[3]

The Starbucks location where the fall occurred is in Toronto, at the
    corner of Queen Street and Hammersmith Avenue, part of a small retail mall
    where Starbucks is a tenant. As part of its lease, Starbucks has an outdoor
    patio that abuts the municipal sidewalk along Hammersmith. The patio is
    enclosed by a fence that includes a 3-4 foot opening, the effect of which, the
    trial judge found, seamlessly joins the patio and the sidewalk.

[4]

The trial judge accepted the evidence of a number of witnesses that the
    patio was not a common element of the shopping centre complex and that
    Starbucks had exclusive use of the patio. Starbucks also maintained the patio,
    including the area leading into the patio from the sidewalk, where the
    respondent fell.

[5]

In particular, the evidence from the Starbucks shift manager was that
    Starbucks personnel were given a shovel and salt and instructed to salt and
    sand not only the patio area, but also to clear, salt and sand a pathway a
    couple of feet wide, wide enough for walking, in an area that included the
    first steps off the patio, the area of the sidewalk where the Starbucks fence
    opened on to the municipal sidewalk. They were instructed to ensure the safety
    of the customers with a clear passageway to the Hammersmith entrance to the
    store that is accessed through the patio.

[6]

Another Starbucks witness who bought his coffee at the location almost
    every morning for several years, said that the sidewalk was like a passage or
    corridor, and that it was necessary to walk across it to get inside. He
    testified that in the mornings the Hammersmith entrance was busier than the Queen
    Street entrance, and that users of the sidewalk in that area were mostly
    Starbucks customers. His view was that anyone coming through the opening in the
    patio fence would expect Starbucks to make the area safe for its customers.

[7]

Based on this evidence, the trial judge made a number of findings:

·

Starbucks
    expected that in the mornings, many customers would drive to Hammersmith, park,
    cross over the sidewalk, enter the store through the patio and exit using the
    same path.

·

By
    constructing the patio and fence opening as it did, for its commercial benefit,
    Starbucks created a pathway from its side door through the patio and out over
    the sidewalk, which it knew was used by many of its customers and only by its
    customers.

·

The
    respondent and other Starbucks customers only used the sidewalk to access
    Starbucks from Hammersmith and would not have been there otherwise.

·

The
    use of the sidewalk that Starbucks created was unrelated to other uses of the
    sidewalk in the ordinary course.

·

By
    its actions, Starbucks effectively directed all of its customers entering and
    exiting its store on the Hammersmith side to use that area of the sidewalk. It
    effectively controlled their access route and ensured that they would walk on
    the pathway it had designated, including on that portion of the sidewalk.

·

Based
    on the evidence of the Starbucks customer witness that the trial judge
    specifically accepted, she concluded that, in the mornings, customers parking
    on Hammersmith to access Starbucks through the patio entrance constituted most
    of the users of the sidewalk in that area, and that the customers had almost
    exclusive use of the sidewalk in that area.

·

Starbucks
    took upon itself sufficient possession and control of the area of the sidewalk
    adjacent to the fence opening to allow it to ensure the safety of its customers
    using that area to come into and out of its store.

Conclusion of the trial judge

[8]

Based on her factual findings, the trial judge concluded, as a matter of
    law, that Starbucks was an occupier, within the meaning of the Act, of the
    space on the sidewalk adjoining the patio entrance. I quote her finding, which
    fully explains her conclusion:

In summary, by building its fence and patio in the manner that it
    did, by making a path over the sidewalk leading directly to its side door, by
    monitoring the condition of the pathway, by clearing, salting and sanding it to
    be sure it was safe for its customers, and by directing the ingress and egress
    of its customers in the manner that it did, Starbucks assumed sufficient
    control over the sidewalk and the persons it allowed to enter its premises
    using the sidewalk, to come within the definition of Occupier under s. 1 of the
Occupiers Liability Act
.

Issues

[9]

This appeal raises two issues:

(1) Did the trial judge err in her conclusion that Starbucks
    was an occupier, within the meaning of the Act, of the area of the sidewalk
    leading to its patio, where the respondent slipped and fell?

(2) If that finding was in error, did Starbucks nevertheless
    owe a common law duty of care to the respondent?

Analysis

[10]

Since it came into force on September 8, 1980, the
Occupiers
    Liability Act
has governed the duty of care owed by an occupier of premises
    to anyone who enters those premises. The legislation was enacted following the
    1972 Report of the Ontario Law Reform Commission, which recommended that the
    common law duty of care owed by occupiers, which mandated a standard of care
    that was more or less stringent depending on why the injured person was on the
    property (invitee, licensee or trespasser), should be replaced with one generalized
    statutory duty.

[11]

Section 2 of the Act replaces the common law duty of care with a single statutory
    duty:

2.
Subject to section 9, this Act applies in place of the rules of the
    common law that determine the care that the occupier of premises at common law
    is required to show for the purpose of determining the occupiers liability in
    law in respect of dangers to persons entering on the premises or the property
    brought on the premises by those persons.

[12]

Section 3 of the Act prescribes the duty of care that is owed by an
    occupier of premises to persons entering onto the premises to see that they are
    reasonably safe:

3. (1) An occupier of premises owes a duty to take such care as
    in all the circumstances of the case is reasonable to see that persons entering
    on the premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises.

[13]

Occupier is defined inclusively in s. 1 as follows:

occupier includes,

(a) a person who is in physical possession of
    premises, or

(b) a person who has responsibility for and control
    over the condition of premises or the activities there carried on, or control
    over persons allowed to enter the premises,

despite the fact that there is more than one occupier
    of the same premises.

[14]

As the definition makes clear, there can be more than one occupier of
    the same premises. This includes municipal sidewalks:

Bongiardina v.
    York (Regional Municipality)
(2000), 49 O.R. (3d) 641 (C.A.), at para. 20
.

[15]

Because the municipality owns the sidewalk, it has the primary
    responsibility for its condition and owes a duty of care to persons who use the
    sidewalk. The municipality is not, however, liable for personal injuries caused
    by snow or ice on a sidewalk except in cases of gross negligence:
Municipal
    Act
, S.O. 2001, c. 25, s. 44(9). This gross negligence standard takes
    account of the fact that it takes time for the municipality to clear every
    sidewalk in a city following a snowfall or other inclement weather.

[16]

Although occupiers of both residential and commercial properties are
    often subject to municipal by-laws that obligate them to clear the ice and snow
    on public sidewalks that surround their property, that obligation is not
    sufficient to make them occupiers of the sidewalk within the meaning of the
    Act:
Bongiardina
, at para. 29;
Slumski v. Mutual Life Assurance
    Co. of Canada
, [1994] O.J. No. 301 (Div. Ct.), at para. 5.

[17]

In order to be an occupier of the sidewalk within the meaning of the Act,
    the occupier of the adjacent premises must have taken steps to come within
    clause (a) or (b) of the definition,

by sharing sufficient possession or
    control with the municipality. That is what occurred in two often-referred to
    cases,
Bogoroch v. Toronto (City)
, [1991] O.J. No. 1032 (C.J. (Gen.
    Div.)) and
Moody v. Toronto (City) (1996)
, 31 O.R. (3d) 53 (C.J. (Gen.
    Div.)).

[18]

The facts in
Bogoroch
bear a number of similarities to this
    case.  The plaintiff slipped and fell on an ice patch on the sidewalk in front
    of the defendants Kitchen Table store on Spadina Road, and suffered a broken
    ankle. The City of Toronto had issued a permit to Kitchen Table to use a
    portion of the sidewalk in front of the store, constituting about 25 percent of
    the sidewalk, to sell and display its goods. The trial judge first found that
    Kitchen Table was in physical possession of the portion of the sidewalk covered
    by the permit. However, that was not where the plaintiff fell. He fell on the
    sidewalk in front of the goods on display.

[19]

On the issue whether Kitchen Table was an occupier of that area, the
    trial judge accepted the plaintiffs submission that Kitchen Table intended to
    and did use the entire sidewalk, not just the portion granted by the permit, to
    sell and display its goods throughout the year, and that the rest of the
    sidewalk became virtually an aisle of the store  from which both the general public
    and its customers could view and buy its goods. He found that through its
    policy of aggressive marketing, the defendant used the entire sidewalk to
    further its commercial objectives, and was therefore an occupier of the entire
    sidewalk in front of its store, within the meaning of what is now clause (a) of
    the definition.

[20]

Moody
also involved a slip and fall on a sidewalk. The accident
    occurred outside the Rogers Centre (then called the Skydome) at 10:15 p.m. when
    the plaintiff was leaving a Blue Jays game. The plaintiff fell on part of the
    road allowance for Blue Jays Way owned by the City of Toronto. The plaintiff
    tripped over the raised edge of a concrete slab. The plaintiff did not see the protruding
    concrete edge because he was walking in a large crowd at the time and had to
    keep his head up.

[21]

The plaintiff sued both the City and the Skydome. The Skydome moved for
    summary judgment on the basis that it was not an occupier within the meaning of
    the Act. The motion judge dismissed the motion. He found that the evidence
    could support a finding of control by the Skydome over the patrons using the
    walkway, and thus could support a finding that the Skydome was an occupier of
    the premises within the meaning of clause (b) of the definition.

[22]

The evidence showed that: i) the walkway was used almost exclusively by
    Skydome patrons; ii) a significant number of Skydome patrons had no alternative
    but to use the walkway; and iii) the number of patrons using the sidewalk
    before and after each game created a crush of activity that made it impossible
    for a patron to watch for hazards on the walkway.

[23]

The motion judge in
Moody
also addressed the concern that the
    result in the case could represent an extension of liability beyond the old common
    law of occupiers liability and the policy that had informed it. He referenced
    two cases decided before the enactment of the
Occupiers Liability Act
,
    where the courts imposed a duty of care on property owners who invited a person
    to use the sidewalk in front of their properties and the person suffered injury
    as a result:
Driscoll v. Breslin et al.
, [1954] O.R. 913 (C.A.), affd
    [1956] S.C.R. 64 and
Snitzer v. Becker Milks Co. Ltd. et al.
(1976), 15
    O.R. (2d) 345 (H.C.). The motion judge did not cite these cases to suggest that
    the common law of occupiers liability continues to apply. He cited them simply
    to demonstrate that imposing liability in a case like the one before him would
    not represent a novel departure or be contrary to public policy.

Did the trial judge err in concluding that Starbucks was an
    occupier within the meaning of the Act?

[24]

The trial judge found that Starbucks had the requisite responsibility
    and exerted the requisite amount of control over the sidewalk entrance to its
    patio and over its customers who used that area to access its store to be an
    occupier within the meaning of the Act.

[25]

The portion of the municipal sidewalk at issue is displayed in trial
    exhibit 7. That exhibit shows an area of the sidewalk extending from the opening
    of the Starbucks patio to the sidewalk curb. While the trial judge held that Starbucks
    was an occupier of the entire area shown in exhibit 7, in my view, the trial
    judges conclusion and jurys verdict can be upheld on a narrower basis.

[26]

It was open to the trial judge to conclude that Starbucks was an
    occupier, within the meaning of the Act, of the portion of the municipal sidewalk
    at the threshold of its patio entrance. In light of the available evidence, the
    jury must have found that that was where the respondent fell.

[27]

The jury found that the respondent did not fall on the patio, but on the
    sidewalk occupied by Starbucks. The only evidence to support the latter finding
    was the respondents. The respondents evidence was that she either fell within
    or immediately outside the Starbucks patio. Two eye-witnesses, a married
    couple, testified that they saw the respondent fall off the sidewalk curb or
    even on the roadway. One of those eye-witnesses marked, on trial exhibit 4,
    where she believed the respondent fell. The spot she identified is outside the
    portion of the sidewalk that the trial judge determined was occupied by
    Starbucks as shown in exhibit 7.

[28]

Given that the jury found that the respondent fell within the portion of
    the sidewalk occupied by Starbucks, it must have rejected the married couples eye-witness
    account and accepted the respondents evidence that, if she did not fall within
    the patio, she fell immediately outside it.

[29]

It is the appellants submission, however, that it should be not be held
    liable as an occupier for accidents that occurred anywhere beyond the strict
    limits of its patio. It makes this argument on two grounds. First, the
    appellant argues that the trial judges finding undermines the principle from
Bongiardina
that sanding and salting a municipal sidewalk will not make an adjacent
    landowner or tenant civilly liable to a person who slips and falls on that
    sidewalk.

[30]

I disagree. In
Bongiardina
, the court framed the issue in terms
    of whether there was a common law duty on a property owner, in that case a
    residential homeowner, to clear sidewalks adjacent to the property. The court
    found no such duty. The court explained that clearing snow and ice from
    sidewalks and fixing potholes is the legal responsibility of the municipality,
    not the homeowner, subject to two exceptions: 1) if the homeowner is deemed to
    be an occupier of the sidewalk under the Act by assuming control of it, such as
    occurred in
Bogoroch
and
Moody
; or 2) if the homeowner allows
    something from his or her property, such as water, to flow off it and onto the
    sidewalk causing injury to persons.

[31]

Bongiardina
, therefore, simply reiterates that a property owner
    or tenant will not be deemed by the Act to be an occupier of an adjacent
    sidewalk merely by clearing that sidewalk of snow and ice, whether in
    compliance with a municipal by-law obligation or otherwise. More will be needed
    to meet the definition and impose civil liability. This principle has been
    stated in a number of cases, both before and after
Bongiardina
:
Slumski
    v. Mutual Life Assurance Co. of Canada
, [1994] O.J. No. 301 (Div. Ct.);
Bondy
    v. London (City)
, [2013] O.J. No. 1281 (S.C.), affd 2014 ONCA 291;
Mark
    v. Bhangari
, 2010 ONSC 4011;
Levy v. Brampton (City)
(2005), 12
    M.P.L.R. (4th) 18 (S.C.);
Graham v. 7-Eleven Canada Inc.
, [2003] O.J.
    No. 544 (S.C.);
Peterson v. Windsor (City)

(2006), 27 M.P.L.R.
    (4th) 129 (S.C.);
Coulson v. Hamilton (City)
(2008), 53 M.P.L.R. (4th)
    251 (S.C.);
Baker v. Perth East (Township)
(2009), 58 M.P.L.R. (4th)
    51 (S.C.);
Gribowski v. Singh
, 2013 ONSC 744, 9 M.P.L.R. (5th) 286;
Campana
    v. Mississauga (City)
, 2016 ONSC 3421, 55 M.P.L.R. (5th) 326.

[32]

The trial judges finding that Starbucks was an occupier of the sidewalk
    was not based simply on its efforts to clear snow and ice from the sidewalk at
    the entrance to its patio. Her ruling rested expressly on the combined effect
    of her factual findings, set out in para. 7, and her application of the Act and
    the case law to those findings. Her ruling, therefore, is in no way
    inconsistent with
Bongiardina
.

[33]

The appellant next argues that Starbucks did no more than any storefront
    owner or tenant who has customers that enter the store from the sidewalk. The
    appellant raises the spectre that this ruling therefore improperly shifts the
    responsibility for accidents resulting from snow and ice on sidewalk entrances
    back from the municipality to storefront owners and occupiers.

[34]

I would reject this submission on three bases. First, to the extent that
    the appellant is challenging findings of fact made by the trial judge, I see no
    basis to interfere. The appellant has identified no palpable and overriding
    error in the trial judges assessment of the evidence.

[35]

Second, the analysis by the trial judge shows that the determination of
    occupier status requires a case-by-case factual analysis and an application of
    those facts to the definition of occupier in the Act. There is no blanket rule.

[36]

Having said that, the factors established by the case law will tend to
    have the effect of making some storeowners rather than homeowners liable as
    occupiers of portions of sidewalks

immediately adjacent to their store. The
    volume of customers that use the sidewalk immediately adjacent to the entrance
    to enter and exit a particular store, to the virtual exclusion of others, has
    been a factor in a number of cases, including
Bogoroch
and
Moody
,
    and applies very specifically on the facts of this case.

[37]

On the other hand, where circumstances dictate, storeowners will not be found
    to be occupiers of the sidewalks at the thresholds of their store entrances:
    e.g.
Kreska v. Toronto (City)
(2000), 13 M.P.L.R. (3d) 53 (S.C.);
Graham
    v. 7 Eleven Canada Inc.
, [2003] O.J. No. 544 (S.C.);
Baker v. Perth
    East (Township)
(2009), 58 M.P.L.R. (4th) 51 (S.C.). For example, in
Graham
    v. 7 Eleven
, the trial judge focused on the factors from the case law,
    noting that there was no evidence that the sidewalk in front of the 7-Eleven
    was used almost exclusively by patrons of the convenience store or that
    patrons use made it more difficult to see hazards on the sidewalk.

[38]

The third reason I would reject the appellants submission is that, to
    the extent that storefront owners and occupiers have been found to be, in
    effect, joint occupiers with the municipality of portions of the sidewalk
    immediately adjacent to their stores that their customers use, such findings
    are consistent with the purpose and public policy objectives of the Act. That
    purpose and policy is to impose liability on those who, by their conduct, assume
    control over and responsibility for a portion of the immediately adjacent sidewalk
    and the safety of those who use it. That conduct must, as in this case, amount
    to much more than merely clearing adjacent public sidewalks of snow and ice,
    whether in compliance with municipal by-laws or otherwise.

[39]

In my view, therefore, while exhibit 7 was drawn too broadly, it was
    open to the trial judge to conclude that Starbucks was an occupier within the
    meaning of the Act of the portion of the municipal sidewalk at the threshold of
    its patio entrance where the jury must have found that the respondent actually
    fell.

Does Starbucks owe a common law duty of care to the respondent?

[40]

The respondent argued, in the alternative, that if the appellant were
    not found to be an occupier within the meaning of the Act, it should
    nevertheless be found negligent based on a breach of a common law duty of care that
    continues to exist together with the statutory duty.

[41]

The section of the Act that addresses this issue directly is s. 2, which
    I quote again here for ease of reference:

2
.
Subject to section
    9, this Act applies in place of the rules of the common law that determine the
    care that the occupier of premises at common law is required to show for the
    purpose of determining the occupiers liability in law in respect of dangers to
    persons entering on the premises or the property brought on the premises by
    those persons.

[42]

As stated above, the section states that it replaces the previous common
    law rules that determined the nature of the duty of care owed by an occupier of
    premises to different sorts of visitors to the premises with one single duty of
    care. That duty is to make the premises reasonably safe, and it is owed by an
    occupier of the premises to anyone who enters the premises. The work of the
    definition of occupier is to determine the extent of the premises for which the
    occupier has the statutory duty of care.

[43]

However, where a person is found not to be an occupier of the sidewalk
    adjacent to the persons premises, were there other common law duties of care
    owed by an adjacent property owner to persons on the adjacent sidewalk that
    existed before the enactment of the Act, and if so, have those duties of care been
    abolished?

[44]

It appears to me that the question has already been answered, at least
    in part, by this court in
Bongiardina
. There the court identified
    three possible duties that an owner of premises adjacent to a municipal
    sidewalk could owe to someone injured on that sidewalk. The first was a common
    law duty of care. The court said that there is no common law duty on an owner or
    occupier of premises to keep the adjacent sidewalk clear of ice and snow. Second
    was the statutory duty: there will be a statutory duty of care if the adjacent
    property owner or tenant is an occupier of the sidewalk within the meaning of
    the Act. The third duty the court identified was the common law duty that could
    be owed by an owner or tenant of adjacent premises to ensure that conditions or
    activities on his or her property do not flow off it and cause injury to persons,
    i.e. a cause of action in nuisance or negligence in failing to prevent a
    nuisance.

[45]

Whether there may be any other common law duties on adjacent landowners
    who are not occupiers, such as a duty to warn in appropriate circumstances,
    will have to be determined on a case-by-case basis. As Lewis N. Klar explains
    in
Tort Law
, 5th ed. (Toronto: Carswell, 2012) at p. 627, fn. 118: even
    though the defendant might not have been an occupier of the property in
    question, the defendant still owes a common law duty of care with respect to
    unreasonable risks created with regard to that property citing, as an example,
Lytle v. Toronto (City)
(2004), 2 M.P.L.R. (4th) 58 (S.C.), affd
    (2006) 28 M.P.L.R. (4th) 162 (C.A.).

[46]

What is clear, however, based on s. 2 of the Act, is that there is no
    general common law duty of care, based on proximity principles, owed by an
    adjacent property owner or tenant in respect of sidewalks that abut that
    persons property. The only duty is the statutory duty that is owed by a person
    who meets the definition of occupier under the Act. As Klar writes in
Tort
    Law
at p. 627: [i]t seems irrefutable that the legislation was intended
    to be exclusive and comprehensive, in so far as the liability of occupiers is
    concerned.

[47]

As a result, no common law duty of care arises in this case.

Disposition

[48]

I would dismiss the appeal with costs fixed at $10,000 inclusive of
    disbursements and HST.

Released: K.F. May 2, 2017

K. Feldman J.A.

I agree. John Laskin J.A.

I agree. C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marshallzehr Group Inc. v. Callidus Capital
    Corporation, 2017 ONCA 371

DATE: 20170505

DOCKET: C62398

Doherty, Benotto and Trotter JJ.A.

BETWEEN

Marshallzehr Group Inc.

Applicant (Respondent)

and

Callidus Capital Corporation

Respondent (Appellant)

Stephen Schwartz, for the appellant

J. Greg Murdoch, for the respondent

Heard and released orally:  April 27, 2017

On appeal from the judgment of Justice D.J. Gordon of the
    Superior Court of Justice, dated June 13, 2016.

ENDORSEMENT

[1]

The parties agree that the application judge properly identified the
    applicable legal principles at para. 6 of his reasons.  The parties also agree
    that the application judge accurately summarized the relevant background facts.

[2]

The outcome on the application and indeed on this appeal turns on the
    application of the well-established legal principle to the entirety of the
    circumstances as revealed by the evidence on this application.

[3]

Counsel for the appellant (mortgagee) ably argues that the application
    judge misinterpreted the terms of the forbearance agreement, the crucial
    document in this case, and that he drew certain unreasonable factual inferences
    from the totality of the evidence.

[4]

We do not agree.  As counsel for the respondent (mortgagor) concisely
    put it, after the forbearance agreement was in place, the mortgagor had
    virtually no control over the property.

[5]

We do not accept that the application judge misread the forbearance
    agreement.  We read the agreement as he did and note, in particular, the
    following:

·

the mortgagee had control over the sale of the property;

·

the mortgagee had control over whether any capital improvements
    could be made on the property;

·

the mortgagee had effective control over the ongoing relationship
    with the tenant in the building; and

·

the mortgagee had control over the cash flow generated by the
    property.  Any funds received by the mortgagor were held in trust for the
    mortgagee under the terms of the forbearance agreement.  Those funds had to be
    deposited into the designated blocked account and at that point became the
    property of the mortgagee.

[6]

The application judges ultimate factual finding appears at para. 16:

The purpose of this forbearance agreement was for Callidus (the
    mortgagee) to obtain complete control of the property and the business
    operation of Cheese Factory and the related corporations.  The critical term of
    the agreement was the enhanced security not previously available to BMO.  I am
    not persuaded this was merely a situation of rent payments going to the
    mortgagee. Callidus controlled every decision, including lease renewal, repairs
    and marketing.

[7]

We see no error in the trial judges findings in para. 16.  Certainly,
    the effect of the forbearance agreement was to give the mortgagee total
    control.  The mortgagee proceeded to exercise that control.

[8]

In terms of the broader implications that counsel for the appellant says
    will flow from the application judges decision, we emphasize, as did the
    application judge, that the findings are limited or are based on the specific
    facts of this case.  The application judges ultimate conclusion was not based
    solely on the language of the forbearance agreement.  As he said, at para. 17,
    Not every forbearance agreement puts a mortgagee in control.  This agreement
    and the conduct of the parties does.

[9]

The appeal is dismissed.   The parties agree that the successful party,
    the respondent, should have its costs in the amount of $15,000, inclusive of
    relevant taxes and disbursements.

Doherty J.A.

M.L. Benotto J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McGinn v. Evanshen, 2017 ONCA 431

DATE: 20170530

DOCKET: C62778

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Angelica McGinn

Plaintiff (Appellant)

and

Richard Evanshen, Evanshen Holdings Inc.
and Indwisco Limited

Defendants (Respondents)

Mark Gelowitz and Larry Franschman, for the appellant

Bobby Sachdeva, for the respondents

Heard: May 12, 2017

On appeal from the order of Justice Freya Kristjanson of
    the Superior Court of Justice, dated September 6, 2016.

REASONS FOR DECISION

[1]

This is an appeal to which the principles in
Sattva
apply:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633
.
The sole issue is whether the
    appellant has identified an extricable error of law in the motion judges
    interpretation of the shareholders agreement at issue or a palpable and
    overriding error in her assessment of the evidence. In our view, for the reasons
    that follow, no such error has been established. The motion judges
    interpretation of the agreement is entitled to deference.

A.

Background

[2]

Indwisco Limited was founded in 1973 by Peter
    McGinn (Peter) and Alex Garvin (Al). It is a successful manufacturing
    business. The respondent, Richard Evanshen, was hired in 1983 and eventually
    became Vice President and General Manager and a key employee, running the
    business for some 23 years.

[3]

Initially, Peter and Al each owned, either
    directly or through holding companies, 50% of the shares of Indwisco. In 1994,
    Peter, Al and the respondent entered into a shareholders agreement. The
    agreement gave Peter and Al the right to purchase the others shares in the
    event the other wished to sell, became incapable or died. If the other
    shareholder did not wish to purchase the shares, the respondent was given the
    right to do so.

[4]

A new shareholders agreement, the one at issue,
    was executed in 2000 (the Agreement). There was evidence before the motion
    judge concerning the circumstances that gave rise to it.

[5]

The respondent had become increasingly important
    to the success of the business. In recognition of this, at the time the
    Agreement was signed, he acquired 10% of the shares of Indwisco through an employee
    stock option agreement. The Agreement gives him the right to acquire additional
    shares in various specified circumstances.

[6]

As well, Peter had been diagnosed with a
    terminal illness. It was agreed that he could transfer his shares to himself
    and his wife, the appellant Angelica McGinn, jointly, with right of
    survivorship. There was evidence before the motion judge, which she accepted,
    that this was done to avoid taxes or probate fees on Peters death. The
    Agreement contains a provision limiting the appellants rights in relation to
    these shares.

[7]

As events transpired, Peter, whose death was
    anticipated when the Agreement was signed, lived until 2016. But Al, whose
    death had not been anticipated, died in 2012. At that time, the respondent
    exercised his right under the Agreement to acquire a portion of Als shares to
    increase his shareholdings to 50% and Peter and the appellant purchased the
    balance of Als shares. The result was that the respondent, on the one hand,
    and Peter and the appellant, on the other, were 50/50 shareholders. That
    remained the case until Peters death in 2016.

[8]

Prior to Peters death, the respondent advanced
    his interpretation of the Agreement that on Peters death, he is entitled to
    purchase the shares held jointly by Peter and the appellant. Peter and the
    appellant took a contrary position and brought this application, seeking a
    declaration that the respondent has no right to purchase the shares on Peters
    death. Peter died shortly before the hearing of the application.

B.

The Motion Judges Reasons

[9]

The motion judge resolved the issue in the
    respondents favour, after considering the terms of the Agreement in light of
    the factual matrix in which it was executed.

[10]

She rejected the appellants submission that her
    ownership of the jointly-held shares, by right of survivorship, gives her
    independent status as a shareholder and that the respondent is not entitled to
    purchase those shares on Peters death.

[11]

Article 2.7, entitled Application to Jointly
    Hold [
sic
] Shares, provides as follows:

The parties acknowledge and agree that Peter
    and Angelica jointly (with right of survivorship) hold the Shares previously
    owned by Peter. For all purposes of this Agreement, such Shares shall be
    considered as owned by Peter. For example, Peter alone shall vote such Shares.
    Further, in a transaction of purchase and sale of Shares herein where Peter is
    a vendor of Shares, Angelica must sell the same number of Shares. The same
    would apply to a purchase of Shares by Peter.

[12]

The motion judge accepted the evidence that
    Article 2.7 was added on the advice of Peters accountant for tax or estate-planning
    purposes, particularly to avoid probate fees. Neither Al nor the respondent was
    given a similar right to hold their shares jointly with their spouses.

[13]

The motion judge found that the Agreement
    contemplates that the shares held by the appellant and Peter were to be treated
    as being owned by Peter and could be purchased by one or both of the other two
    shareholders on his death.

[14]

The motion judge also rejected the appellants
    submission that the respondent is not entitled to acquire more than 50% of the
    shares without the consent of the other shareholders. Before this court, the
    appellant does not challenge this conclusion.

C.

The appellants submissions

[15]

The appellant makes three submissions. First, she
    submits that the motion judge failed to recognize that the Agreement contained
    protection for the founders (Al and Peter) and that the respondent is not
    entitled to acquire the founders shares held by the appellant.

[16]

Second, she submits that the motion judge erred
    in finding that the respondent is the only surviving shareholder. Instead, the
    motion judge should have recognized that the appellant is a shareholder of the
    jointly-held shares pursuant to her right of survivorship.

[17]

Third, she submits that the motion judge erred
    in her interpretation of the option clause of the Agreement.

D.

Discussion

[18]

We begin with the first submission. There is
    nothing in the factual matrix to suggest that the concepts of founder or
    founders shares played a role in the formation of the Agreement. Nor do
    those terms appear in the Agreement. The appellant did not express the argument
    in this way before the motion judge.

[19]

The Agreement does contain terms to ensure that
    Al and Peter could preserve their relative positions in the ownership of
    Indwisco through the exercise of options in various circumstances (for example,
    as a result of another shareholder dying or wishing to sell his shares).
    However, there is nothing to prevent the respondent from increasing his
    shareholdings if the other two are unwilling or unable to exercise their
    options. Nor is there anything that would enable the estate of a founder to
    refuse to sell the founders shares where another shareholder is entitled to
    exercise an option to purchase them. Indeed, the appellant admits that if Peter
    had died first, his estate would have had no right to retain his shares. We see
    no reasonable way of interpreting the Agreement so as to find that on Peters
    death his estate can refuse to permit the respondent to exercise his option to
    purchase because the shares were founders shares.

[20]

What was addressed in the court below, and what
    informed the motion judges interpretation of the Agreement, was the factual
    matrix in which the Agreement was executed. This included the reason for giving
    the appellant a right of survivorship in relation to the jointly-held shares
    namely, and solely, the avoidance of probate fees and taxes. This explains why
    the Agreement also provides that those shares would nevertheless be treated as
    Peters [f]or all purposes  there was no intention to affect the other
    provisions of the Agreement.

[21]

This also answers the appellants second submission.
    Although the appellant had title to the shares by virtue of survivorship, they are
    to be treated as Peters shares and are subject to the option to purchase of
    the other shareholder(s) on Peters death.

[22]

In our view, the motion judges interpretation is
    reasonable. One provision in the Agreement, made solely to address Peters tax and
    estate-planning wishes, does not alter the meaning of other provisions of the Agreement,
    which do not contemplate that the estates or spouses of any of the three shareholders
    could refuse to sell the deceaseds shares to a surviving shareholder who
    wished to purchase them. Requiring the appellant to sell the shares on Peters
    death is consistent with treating the shares as being Peters [f]or all
    purposes, within the meaning of Article 2.7.

[23]

We turn to the appellants third submission. At
    the time the Agreement was signed, the parties did not foresee that Al might
    predecease Peter. But the Agreement was not amended after Als death and the
    motion judge was faced with its interpretation where the respondent was the
    only surviving shareholder. While limiting the respondent to 50% of the shares
    without the acquiescence of the other shareholder makes sense when there was at
    least one other shareholder, it makes no sense when the respondent was the only
    survivor.

[24]

The appellant argues that the motion judge erred
    in the interpretation of Article 10.1, which appears in the Agreement under the
    heading Death of a Shareholder. That provision states:

Upon the death of a Shareholder (hereinafter
    called the Deceased Party) the surviving Shareholders (the Survivors) shall
    have thirty (30) days (the Notice Period) within which to notify the other
    parties hereto of the exercise of an option to acquire Shares owned by the
    Deceased Party.

[25]

Article 10.6 provides that if the surviving
    shareholders do not elect to purchase all the shares of the Deceased Party, the
    estate of the Deceased Party can either retain the shares or require that they
    be sold to a third party.

[26]

The motion judge found that Article 10.1 gives
    the respondent the right to exercise an option to acquire Peters shares. Only
    if the other shareholders did not acquire the shares can Peters estate retain
    them.

[27]

The appellant submits that the motion judges
    conclusion that Article 10.1 is a stand-alone option is an extricable error of
    law or a palpable and overriding error that permeates the motion judges
    interpretation of Article 10. She submits that Article 10.1 simply introduces
    the options that follow, but is not itself an option. She submits, in any event,
    that Article 10.1 only applies when there are surviving Shareholder
s
 (plural) and not when there is a sole surviving
    shareholder.

[28]

We disagree. The Agreement contains a standard
    provision (Article 17.6) that the singular includes the plural and vice versa.
    Thus, Article 10.1 can be interpreted to mean that when there is only one
    surviving shareholder, that person has the right to purchase all the shares
    held by the deceased shareholder. The other provisions of Article 10 can
    reasonably be interpreted to put limits on the respondents right to acquire
    more than 50% of the shares when there is a second surviving shareholder, but
    not when the respondent is the sole survivor.

[29]

Article 10.6 reinforces the conclusion that a
    sole surviving shareholder is entitled to purchase the shares held by the
    deceased shareholder (whether a founder or not) and that only if the option
    is not exercised can the estate retain the shares or sell them to a third
    party.

[30]

The motion judges responsibility was to apply
    the principles of contractual interpretation to the language of the Agreement
    in light of the factual matrix in which it was executed. In so doing, the
    motion judge was required to give meaning and, if possible, harmony, to all the
    terms of the contract. In our view, the motion judge fulfilled her
    responsibilities and her interpretation was reasonable  the respondent is
    entitled to compel the estate of the deceased shareholder to sell the shares to
    him, at a price to be determined as provided in the Agreement. The appellant
    has not discharged the heavy burden of establishing either an extricable error
    of law in the interpretation of the Agreement, or a palpable and overriding
    error in the motion judges assessment of the evidence of the factual matrix.

[31]

In the circumstances, it is unnecessary to
    consider the alternative question of the respondents rights on the appellants
    death.

[32]

For these reasons, the appeal is dismissed.
    Costs to the respondent in the amount of $15,000, inclusive of disbursements
    and all applicable taxes.

G.R. Strathy C.J.O.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mizrachi Organization of Canada v. Bernstein, 2017
    ONCA 370

DATE: 20170508

DOCKET: C62581

Juriansz, Lauwers and Hourigan JJ.A.

BETWEEN

Mizrachi Organization of Canada, Kurt Rothschild
    in his capacity as Trustee for Torah V'Avodah Congregation, Jack Kahn in his
    capacity as Trustee for Torah V'Avodah Congregation and Joseph Rosenfield in
    his capacity as Trustee for Torah V'Avodah Congregation

Applicants

(Respondents)

and

Harry Bernstein, Yisroel Zlotnick, James Beliak,
    George Vitriol, David Yunger, Binyamin Zlotnick and Torah V'Avodah Congregation

Respondents

(Appellants)

Colby Linthwaite, for the appellants

Gregory M. Sidlofsky, for the respondents

Heard: March 28, 2017

On appeal from the judgment of
    Justice Michael A. Penny of the Superior Court of Justice, dated July 25, 2016.

SUPPLEMENTARY COSTS
    ENDORSEMENT

[1]

The costs awarded by the application judge are vacated and the costs of
    the application are left to the trial judge.

R.G. Juriansz
    J.A.

P. Lauwers
    J.A.

C.W. Hourigan
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. Apollo Health & Beauty Care, 2017 ONCA
    383

DATE: 20170511

DOCKET: C62816

Laskin, Lauwers and Brown JJ.A.

BETWEEN

Alexandra Emily Moore

Appellant

and

Apollo Health & Beauty Care

Respondent

Alexandra E. Moore, acting in person

Stephanie E. Sangster, for the respondent

Heard: May 1, 2017

On appeal from the order of the Divisional Court (Justice
    Elizabeth M. Stewart), dated June 16, 2016, with reasons reported at 2016 ONSC 3331,
affirming the order of Deputy Judge Michael Bay of the Small
    Claims Court, dated January 9, 2015
.

Brown J.A.:

I.

Overview

[1]

The appellant, Alexandra Moore,
    sued her former employer, the respondent Apollo Health & Beauty Care
    (Apollo), in Small Claims Court for constructive dismissal and other employment-related
    damages. Ms. Moore has represented herself throughout the matter. At trial, she
    advanced two claims.

[2]

First, Ms. Moore alleged Apollo had fundamentally changed the terms of
    her employment, thereby constructively dismissing her. The trial judge found in
    Ms. Moores favour, holding Apollo had constructively dismissed her. However,
    the trial judge concluded Apollo provided Ms. Moore with appropriate
    termination notice calculated in accordance with the terms of the employment
    contract.

[3]

Second, Ms. Moore alleged Apollo had failed to pay her amounts for hours
    she had worked, for two statutory holidays, and for six sick days. The trial
    judge did not award any amount for these claims on the basis Ms. Moore had
    abandoned them during her trial evidence.

[4]

Ms. Moore appealed to the Divisional Court, requesting that court
    overturn the trial judges ruling she had abandoned portions of her claim and
    his finding on wrongful termination. A single judge of the Divisional Court
    dismissed her appeal. Ms. Moore then sought and obtained leave to appeal to
    this court.

[5]

I would not interfere with the trial judges finding that Apollo provided
    Ms. Moore with the amount of termination notice to which she was entitled under
    her employment contract. However, I would allow the appeal in respect of her claim
    for unpaid wages, statutory holidays and sick days. The trial judges
    conclusion she had abandoned her claim was based on a misapprehension of Ms.
    Moores evidence and therefore must be set aside.

II.

Facts

The appellants employment

[6]

Apollo hired Ms. Moore, an engineer, in November 2012 as a line
    technician. The company presented her with an employment contract. One term of
    the contract stated that in the event Apollo terminated her employment, Ms.
    Moore would be entitled to receive only such notice of termination,
    termination pay, benefit continuation and/or severance pay, if any, as are
    required by the [
Employment Standards Act, 2000
, S.O. 2000, c. 41
] in the circumstances
    of the termination. The company advised Ms. Moore she was free to seek
    independent legal advice before signing the contract. She signed the contract
    without doing so.

[7]

Apollo also provided Ms. Moore with an employee handbook, which stated
    employees were entitled to paid half-hour lunch breaks, double-time for Sunday
    work, and six paid sick days a year.

[8]

By the spring of 2013, three events had transpired. First, Ms. Moore discovered
    she was not receiving paid lunch breaks, paid sick days or double-time for
    Sunday work, as represented in the employee handbook. Apollo took the position
    the handbook was out-of-date, those terms had been changed before Ms. Moore had
    started her job, and therefore she was not entitled to receive those benefits.

[9]

Second, Ms. Moore discovered she was not being given credit for the full
    number of hours she had worked on several days.

[10]

Finally, Ms. Moores duties expanded from those of a line technician to
    more managerial responsibilities, akin to a line manager. Her pay, however, did
    not change.

[11]

On May 21, 2013, Ms. Moore provided Apollo with eight weeks notice of
    her resignation. In response, the company shortened her notice period to three
    weeks, relying on the terms of the employment contract.

The trial

[12]

A few weeks after her employment with Apollo had ended, Ms. Moore
    brought an action in the Small Claims Court against the company and some of its
    employees. Before trial, she withdrew her claim against the employees. As
    mentioned, her claim against Apollo contained two main components: (i) damages
    for constructive dismissal, using eight weeks as the appropriate period of
    notice; and (ii) damages for unpaid wages, two statutory holidays, and six
    unpaid sick days (hereafter collectively the Unpaid Wages).

[13]

Ms. Moore represented herself at trial. She testified. Apollo called one
    former employee to testify. The trial judge reserved.

[14]

The trial judge held the alteration of Ms. Moores responsibilities from
    that of a non-supervisory line technician to a line supervisor was a
    fundamental change in her job amounting to constructive dismissal. As well, he
    found the handbook was part of her employment contract. By denying Ms. Moore
    the listed benefits of paid lunch breaks, sick days and double-overtime for
    Sunday shifts, Apollo violated the employment contract and committed acts of
    constructive dismissal. The trial judge concluded Ms. Moore was constructively
    dismissed.

[15]

However, the trial judge went on to find the contract specified the
    amount of notice to which Ms. Moore was entitled when constructively dismissed.
    He concluded Apollo provided Ms. Moore with the notice to which she was
    entitled.

[16]

The trial judge found Apollo denied Ms. Moore her contractual benefits for
    paid lunch breaks, sick days and Sunday double-overtime. As well, he found, at
    para. 15, that hours were improperly and repeatedly deducted from her time
    records without justification and in violation of her employment contract.
    However, he denied her claim for Unpaid Wages, writing, at para. 19:

The claim for lost pay for lunch breaks, sick days, Sunday
    double-overtime, etc. cannot be awarded for the simple reason that this claim
    was abandoned.

Motion for a new trial

[17]

Ms. Moore brought a motion for a new trial pursuant to r. 17.04(1) of
    the
Rules of the Small Claims Court
, O. Reg. 258/98. Pursuant to rr.
    17.04(4) and (5), the Small Claims Court may grant a new trial or
pronounce the judgment that ought to have been given at trial and order
    judgment accordingly where (i) there was a purely arithmetical error in the
    determination of the amount of damages awarded, or (ii) there is relevant
    evidence that was not available to the party at the time of the original trial
    and could not reasonably have been expected to be available at that time.

[18]

Deputy Judge Clemenhagen directed a review by the trial judge, writing:

I have reviewed the transcript of the trial. It appears that DJ
    Bays finding in the course of her evidence the plaintiff abandoned her claim
    for unpaid wages as well as missed holiday and sick pay was not appearing in
    the course of her evidence. Therefore, the decision should be reviewed by Judge
    Bay on this issue to determine if his remarks were supported.

[19]

The trial judge subsequently dismissed Ms. Moores r. 17.04 motion,
    writing: My conclusion re waiving heads of damage is substantive, not
    mathematical.

Divisional Court decision

[20]

Ms. Moore appealed to a single judge of the Divisional Court, who
    dismissed her appeal. In regard to Ms. Moores claim for damages for
    constructive dismissal, the appeal judge wrote, at para. 7:

Moore does not take issue with the determination by the trial
    judge that she was wrongfully dismissed by Apollo. Similarly, although she may
    not agree with it, she does not challenge the trial judges decision that the
    employment agreement she had entered into with Apollo when she took the job
    disentitles her to any extra notice of termination or damages in lieu thereof
    beyond that which she admits she was given by Apollo.

[21]

The appeal judge also rejected Ms. Moores argument that the trial judge
    had erred in finding she had abandoned her claim for Unpaid Wages, writing, at
    paras. 22 and 23:

In my view, the trial judge made no palpable and overriding
    error in construing the evidence at trial and Moores position as he did. Moore
    presented no documentary quantification of any losses sustained by her and told
    the trial judge that she was just explaining one of the reasons why she left,
    i.e., why she claimed that she had been constructively dismissed.

Although Moore is a self-represented litigant, she is evidently
    very capable. The trial judge was obliged to be fair and even-handed in his
    conduct of the trial and could not function as her counsel. Moore did not
    pursue any specific money compensation for the pay differential issues, and
    specifically said she was not expecting compensation for them. The trial judge
    was entitled to conclude that she had abandoned any claim for repayment.

III.

First Issue: Damages for Constructive Dismissal

[22]

Ms. Moore submits the trial judge erred in relying on the notice
    provisions of her employment contract to calculate damages for constructive
    dismissal. She argues that once the trial judge found Apollo constructively
    dismissed her, the employment contract was void and its terms could not be used
    to calculate the notice to which she was entitled.

[23]

I do not accept this submission. Provisions respecting notice of
    termination of employment can limit the pay applicable on constructive
    dismissal:
Simpson v. Global Warranty Management Corp
.
, 2014
    ONSC 6916 (Div. Ct.), at paras. 3-4; Howard Levitt,
The Law of Dismissal in
    Canada
, loose-leaf (February 2017  Rel. 51), 3d ed., (Aurora: Canada Law
    Book, 2003), at para.11:40.10.

[24]

In the present case, the terms of the employment contract specifically
    address the calculation of notice upon constructive dismissal. Section 10
    provides:

If Apollo terminates your
    employment, you shall be entitled to receive only such notice of termination,
    termination pay, benefit continuation and/or severance pay, if any, as are
    required by the [
Employment Standards Act, 2000
] in the circumstances of
    the termination. This paragraph defines and limits your full entitlement to
    notice of termination, pay in lieu of notice, benefit continuation and
    severance pay upon termination of employment, and shall apply regardless of any
    changes to the terms and conditions of your employment (including changes in
    position, duties and responsibilities, reporting relationships, and
    compensation). Please read it carefully.

[25]

Accordingly, I see no error in the trial judges findings that Apollo
    gave Ms. Moore notice of its intent to terminate that was well within the
    contractual requirements and that Ms. Moore received what she was entitled
    to.

IV.

Second Issue: Damages for Unpaid wages

[26]

Ms. Moore submits the trial judge erred in finding she had abandoned her
    claim for Unpaid Wages. His error, she argues, was based on a misunderstanding
    of her evidence. She contends the error was repeated by the appeal judge.

[27]

I accept her submission. To explain why I do requires reviewing the
    sequence of Ms. Moores evidence at trial and the trial judges interactions
    with her.

Ms. Moores evidence at trial

[28]

Ms. Moore filed a lengthy Claim to start her action against Apollo. Her
    Claim concluded, at para. 74, with a list of the damages she was seeking to
    recover: (i) five weeks additional notice - $5,434; (ii) pay for three days,
    which included statutory holidays - $452.60; (iii) six paid sick days - $855;
    (iv) extra hours that she had worked, but had not been recorded by Apollos
    plant time clock - $250.83; and (v) $17,500 in punitive and aggravated damages.
    Paragraph 75 of the Claim set out an itemized, day-by-day calculation of the
    unpaid work days; para. 77 particularized her claim for unpaid sick days.

[29]

As permitted by r. 7.01(2)2 of the
Small Claims Court Rules
,
    Ms. Moore attached a number of supporting documents to her Claim, including
    copies of the Apollo timecards recording her hours of work.

[30]

Early in her evidence-in-chief at the trial, Ms. Moore explained to the
    trial judge that Apollo had not paid her for a number of hours she had worked. The
    trial judge asked for details. Ms. Moore stated the timecards were attached to
    her Claim. The trial judge asked her to separate from her Claim those documents
    she wanted him to consider as evidence. She did, and a bundle of 27 pages of
    documents was marked as Exhibit 1.

[31]

Then, Ms. Moore took the trial judge through the timecards and
    identified those days on which the plants time clock had not given her full
    credit for work.

[32]

Ms. Moore next gave evidence on the issue of unpaid sick days. She
    referred to the employee handbook, extracts from which had been marked as part
    of Exhibit 1. She testified that she was not paid for six sick days. Her
    evidence on this issue included the following exchange:

Ms. Moore: And I guess thats really all I have to say about
    sick days.

Court: Okay.

Ms. Moore: Thats, I think, is pretty straight-forward.

In response to a question from the
    Bench, Ms. Moore identified the dates for which she was claiming sick-day pay.

[33]

Ms. Moore then moved on to a new issue: how her job duties had changed,
    and the basis for her constructive dismissal claim. In that context, she began
    to testify about how Apollo had not provided paid lunch breaks and
    double-overtime for Sundays, as had been represented in the employee handbook.
    In the course of her evidence about Apollos overtime policy, the court
    intervened and the following exchange occurred:

Court: Are you going to be providing an accounting for all of
    this at some point?

Ms. Moore: Im just, Im just  just stating.

Court: But are you going to be providing an accounting? Are you
    going to be adding all of this up for the court at some point?

Ms. Moore: The breaks, no, Im just

Court: Then I hope youre not expecting to be compensated for
    them?

Ms. Moore: No, Im not. Im just explaining one of the reasons
    why I left.

Court: Mm-hmm.

[34]

Ms. Moore then testified about giving notice to Apollo that she would be
    leaving the company.

[35]

In his reasons, the trial judge stated: In the course of her evidence
    the Plaintiff abandoned her claim for unpaid wages as well as missed holiday
    and sick pay. The appeal judge held that in light of the exchange between the
    trial judge and Ms. Moore set out in para. 33 above, the trial judge made no
    palpable and overriding error in construing her evidence as the abandonment of
    her claim for such damages.

[36]

With respect, both the trial judge and appeal judge erred in so
    concluding. They committed two errors. First, both misapprehended Ms. Moores
    evidence and did not assess one short statement made by her in the context of
    her entire evidence. Second, they failed to take the proper approach in
    ascertaining whether Ms. Moore, a self-represented person, in fact had
    abandoned part of her claim.

Misapprehension of the evidence

[37]

A misapprehension of the evidence may refer to a failure to consider
    evidence relevant to a material issue, a mistake as to the substance of the
    evidence, or a failure to give proper effect to evidence:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 538.

[38]

In the present case, the trial judge mistook the substance of Ms.
    Moores evidence. When, in answer to his question, Ms. Moore testified that she
    was not expecting compensation for the unpaid breaks, but just referring to the
    issue as one of the reasons why I left, the trial judge mistakenly concluded
    Ms. Moore was not pursuing her claim for Unpaid Wages. It was not reasonable
    for the trial judge to reach that conclusion, without further inquiry, in light
    of: (i) Ms. Moores itemization of those items in her Claim, together with a
    calculation of the compensation sought; (ii) her placing the Apollo timecards
    into evidence; and (iii) her testimony about the specific days for which she
    sought compensation.

[39]

The transcript of Ms. Moores evidence at trial reveals the trial judge
    misapprehended her evidence when, in his reasons, he stated that [i]n the
    course of her evidence the Plaintiff abandoned her claim for unpaid wages as
    well as missed holiday and sick pay. She did no such thing. The Small Claims
    Court reviewing judge properly queried whether there was any support for that
    conclusion by the trial judge in the evidence. Unfortunately, the appeal judge
    fell into the same error as the trial judge.

[40]

The trial judges misapprehension of Ms. Moores evidence was palpable
    on the face of the transcript. That error was an overriding one, leading the
    trial judge to deny Ms. Moore damages for a claim in which he had ruled in her
    favour on the issue of liability. On the basis of that error, I would set aside
    the trial judges dismissal of Ms. Moores claim for damages for Unpaid Wages.

Ascertaining whether a self-represented person has abandoned part of her
    claim

[41]

The new reality of civil litigation in public courts is the significant
    number of parties who are not represented by a lawyer, but present their own
    cases. Presiding over a trial where a party is not represented by a lawyer
    poses distinct challenges for a trial judge, and also brings with it distinct
    responsibilities.

[42]

Both the challenges and responsibilities are succinctly described in the
Statement of Principles on Self-represented Litigants and Accused Persons
(the
Statement
) issued by the Canadian Judicial Council in September
    2006. The Supreme Court of Canada endorsed the
Statement
in
Pintea
    v. Johns
, 2017 SCC 23.

[43]

The main challenge faced by a trial judge when a party is not
    represented by a lawyer lies in the difficulty of managing an adversarial
    proceeding when one party lacks formal training in the law and its procedures.
    As described by the
Statement
, at p. 3:

Self-represented persons are generally uninformed about their
    rights and about the consequences of choosing the options available to them;
    they may find court procedures complex, confusing and intimidating; and they
    may not have the knowledge or skills to participate actively and effectively in
    their own litigation.

[44]

While self-represented persons vary in their degree of education and
    sophistication, I think it safe to say that most find court procedures
    complex, confusing and intimidating. That state of affairs gives rise to the
    responsibility of judges to meet the need of self-represented persons for
    simplicity and to provide non-prejudicial and engaged case and courtroom
    management to protect the equal rights of self-represented persons to be
    heard:
Statement
, pp. 4 and 6.

[45]

The
Statement
, at p. 7, offers specific advice to judges about
    how to meet their responsibilities to self-represented persons in the courtroom
    environment:

Judges have a responsibility to inquire whether self-represented
    persons are aware of their procedural options, and to direct them to available
    information if they are not.
Depending on the
    circumstances and nature of the case, judges may explain the relevant law in
    the case and its implications, before the self-represented person makes
    critical choices.

In appropriate circumstances, judges should consider providing
    self-represented persons with information to assist them in understanding and
    asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not
    used to unjustly hinder the legal interests of self-represented persons.
    [Emphasis added.]

[46]

In the present case, the trial judge did several things to discharge his
    responsibility to protect the right of the self-represented person to be heard.
    Ms. Moore had not prepared a formal calculation of damages to place into
    evidence. However, the trial judge: clarified that some of the documents
    appended to Ms. Moores Claim were ones she wanted put into evidence; drew on
    the resources of the court staff to make copies of the relevant documents;
    assisted Ms. Moore in marking them as formal exhibits; and asked questions to clarify
    some of the details of her claim for Unpaid Wages.

[47]

However, the trial judge did not make sufficient inquiries before
    concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the
    evidence of a self-represented party raises a question in the trial judges
    mind about the specific relief the party is seeking, a trial judge must make
    the appropriate inquiries of the party to clarify the matter. Those inquiries
    must be made in a clear, unambiguous, and comprehensive way so that several
    results occur: (i) the trial judge is left in no doubt about the partys position;
    (ii) the self-represented person clearly understands the legal implications of
    the critical choice she faces about whether to pursue or abandon a claim; and
    (iii) the self-represented person clearly understands from the trial judge
    which of her claims he will adjudicate.

[48]

Deputy judges of the Small Claims Court operate under significant time
    and volume pressures. As well, they daily face the challenge of trying to
    modify an adversarial civil litigation process historically predicated on
    representation by counsel to the increase in self-representation by parties.
    Nevertheless, such is the new reality. And it often requires a trial judge to
    take the time to ask those few extra questions to nail down, with clarity for
    all, the claims of the self-represented person upon which he will adjudicate.
    Trial fairness requires no less.

[49]

In the present case, the trial judge did not make those clear,
    unambiguous, and comprehensive inquiries. As a result, he proceeded on the erroneous
    basis that Ms. Moore had abandoned her claim for Unpaid Wages, while Ms. Moore
     quite reasonably  thought she had done no such thing. As well, the trial
    judge failed to inform Ms. Moore clearly that he would not consider her claim
    for Unpaid Wages, which she had just spent a considerable amount of time
    reviewing for him. His failure to do so resulted in an unfair trial.

Conclusion

[50]

As a result of the trial judges error in treating as abandoned Ms.
    Moores claim for Unpaid Wages, I would set aside his dismissal of that part of
    her claim. Before us, the parties agreed that claim totaled $1,558.43 ($452.60
    + $855 + $250.83). Given the modest amount of damages at issue, this is not a
    case where the assessment of damages should be referred back to a trial judge.
    Instead, I would exercise the powers of this court under s. 134(1)(a) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43. The evidentiary record supports Ms.
    Moores claim for Unpaid Wages. Consequently, I would grant judgment to Ms.
    Moore in the amount of $1,558.43.

V.

Disposition

[51]

For the reasons set out above, I would allow the appeal in part. I would
    set aside the order of the Divisional Court and the order of the Small Claims
    Court dismissing Ms. Moores claim for Unpaid Wages. I would grant judgment to
    Ms. Moore against Apollo in the amount of $1,558.43.

[52]

Ms. Moore is critical of the way Apollos lawyers conducted its defence,
    going so far to ask this court to refer them to the Law Society of Upper
    Canada, or to award elevated costs. I see nothing in the record about the
    conduct of Apollos lawyers that would justify so doing.

[53]

However, I would award Ms. Moore, as the successful party, her costs of
    the proceedings throughout, in the amount of her reasonable out-of-pocket
    disbursements fixed at $6,000, inclusive of HST.

Released: May 11, 2017 (JL)

David Brown J.A.

I agree. John Laskin J.A.

I agree. P. Lauwers J.A.