COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yantha, 2013 ONCA 255

DATE: 20130423

DOCKET: C56710

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Yantha

Appellant

Victor Giourgas, for the appellant

Marcella Henschel, for the respondent

Heard: April 22, 2013

On appeal from the sentence imposed on October 22, 2012
    by Justice David P. Cole of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

While the appellant raises a number of issues, it is sufficient for the
    purposes of resolving this appeal to deal with two. First, the trial judge
    jumped the Crowns submission by a considerable amount without giving counsel
    an opportunity to address the issue. Second, the trial judge refused to allow
    the appellant to address the court before sentencing, perhaps believing that he
    had given him that opportunity on the earlier occasion. The appellant has now
    served well beyond the sentence that might have been imposed had the Crowns
    submission been accepted.

[2]

In the circumstances, particularly given the appellants
    continuing commitment to seeking treatment, we think the appropriate
    disposition is to grant leave to appeal and reduce the sentence to time served.
    The probation terms as imposed by the trial judge will remain. We appreciate
    this may cause some hardship for the appellant because his mother lives in one
    of the named buildings. If this turns out to be a serious problem interfering
    with the appellants treatment or rehabilitation he can apply to have the terms
    of probation varied.


COURT OF APPEAL FOR ONTARIO

CITATION: Republic of Korea v. Lee, 2013 ONCA 192

DATE: 20130402

DOCKET: C55006 & C55642

Sharpe, Watt and Hoy JJ.A.

IN THE MATTER OF an appeal of a committal order pursuant to
    s. 49 of the
Extradition Act
, S.C. 1999, c. 18

AND IN THE MATTER OF an application by the Republic of Korea,
    Requesting State, for the extradition of Pyong Sik Lee

AND IN THE MATTER OF an application for judicial review of
    the decision of the Minister of Justice

BETWEEN

The Republic of Korea

and

Her Majesty the Queen

and

Minister of Justice

Respondents

and

Pyong Sik Lee

Applicant/Appellant

Brian H. Greenspan and Robin K. McKechney, for the appellant

Heather J. Graham, for the respondents

Heard: March 19, 2013

On appeal from the committal order of Justice E. Eva
    Frank of the Superior Court of Justice, dated February 2, 2012, with reasons
    reported at 2012 ONSC 815, and on application for judicial review of the
    surrender order of the Minister of Justice, dated June 22, 2012.

ENDORSEMENT

[1]

The appellant  applicant (the appellant) appeals from a committal for
    extradition and seeks judicial review of the Ministers surrender order.

[2]

The appellant is sought for extradition to the Republic of Korea for
    fraud and conspiracy to commit fraud. The fraud and conspiracy allegations
    relate to a government compensation scheme in relation to property that had
    been unlawfully obtained. Both the appellant and his father were convicted in
    Korea in relation to the original fraud whereby the property had been illegally
    obtained (although it is clear that the appellants father was the principal
    author of the scheme). The current charges relate to applications submitted for
    compensation from the government by various individuals who claimed to have
    been defrauded in the original scheme. It is alleged that the appellant
    participated in the presentation of fraudulent claims and in the management and
    control of funds fraudulently obtained. The appellants father has been
    convicted in Korea in relation to the same scheme.

Appeal from Committal

[3]

The appellant alleges that the extradition judge erred in finding that
    the certified record of the case provided a sufficient basis for committal. The
    record of the case consists principally of the prosecutors recital of the
    will-say statements of eight witnesses giving rise to six discrete allegations
    of fraud. Appended to the record of the case are the findings of an investigation
    conducted by the Korean Board of Audit and Inspection that led the prosecutor
    to conduct its investigation.

[4]

The appellant contends that certain facts recited in the Board of Audit
    and Inspection report are inconsistent with facts contained in the will-say
    statements. The appellant also points to some significant translation problems
    with the record of the case. The appellant submits that when the record of the
    case is read as a whole, it fails to provide a sufficient basis to warrant
    committal.

[5]

We disagree.

[6]

In our view the will-say statements recited in the record of the case
    provide some evidence of three fraudulent transactions involving witnesses Kim,
    O and Park. That evidence is analyzed and considered at paragraphs 21 to 33 of
    the reasons of the committal judge. We agree with the committal judge that the
    will-say statements provide a basis upon which a properly instructed trier of
    fact could conclude that the appellant had met with Kim and O to fill out
    fraudulent application forms, and that the appellant had been involved in
    handling the funds obtained by Kim, O and Park as a result of the fraud alleged
    against the appellant and his father. The allegation that the appellant was
    involved in the management of these fraudulently obtained funds is also supported
    by banking records.

[7]

While the facts recited in will-say statements are not entirely
    consistent with all the facts included in the Board of Audit and Inspection report,
    we do not agree that this lack of correspondence undermines the reliability of
    the evidence in the record of the case to the point of reducing it to below the
    level required for committal. The Board of Audit and Inspection report was a
    preliminary investigation that led to the prosecutors subsequent investigation
    which constitutes the record of the case as certified by the Korean prosecutor.
    To the extent the preliminary investigation by the Board of Audit and
    Inspection differs in detail from the evidence of the witnesses recited in the
    record of the case, that is a matter for trial in Korea.

[8]

The authority to proceed recites global counts of fraud and conspiracy
    to commit fraud. In our view the findings of the committal judge as to the
    three incidents of fraud are sufficient to support committal on those global
    counts. We do not agree that the absence of evidence or findings of evidence as
    to all of the alleged incidents of fraud provides a basis for interfering with
    the committal.

[9]

While there are issues concerning the accuracy of the translation of the
    record of the case, we are not persuaded that they are so serious or
    significant as to undermine the integrity of the evidence presented by Korea to
    support the request for extradition. Nor are we persuaded that the committal
    judge engaged in speculation with respect to the factual inferences required to
    warrant committal.

Application for Judicial Review of the Surrender Order

[10]

The
    appellant argues that the Ministers surrender order should be set aside on the
    ground that he failed to seek assurances from Korea that the appellant would be
    tried only on particularized allegations that correspond to the findings of the
    committal judge.

[11]

In
    our view, this argument cannot be sustained in the face of the decision of the
    Supreme Court of Canada in
Canada (Justice) v. Fischbacher,
2009 SCC
    46, [2009] 3 S.C.R. 170.

Disposition

[12]

Accordingly,
    the appeal from committal and the application for judicial review of the
    surrender order are dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Cole, 2013 ONCA 201

DATE: 20130402

DOCKET: C55844

MacFarland, Rouleau and Pepall JJ.A.

BETWEEN

Lourdes Singh in Trust, Lourdes Singh and Binod
    Singh

Plaintiffs (Appellants)

and

David Cole, James Wickens, Paul Ross, Catherine
    Clemens, Karen Clemens, Nancy Clemens, James Clemens, the Estate of Judith
    Thrasher, Deceased, by Her Estate Trustee, Garrett John Thrasher

Defendants (Respondents)

and

Her Majesty the Queen in
    Right of the Province of Ontario as represented by the Minister of Natural
    Resources

Third Party (Respondent)

Sam Cosentino, for the plaintiffs/appellants Singh

Robert J. Fenn for the respondents, Clemens and Ross

Izaak De Rijcke, for the defendant/respondent, the
    estate of Judith Thrasher

Dave Vickers, for the respondent (third party), Her
    Majesty the Queen in Right of the Province of Ontario as represented by the
    Minister of Natural Resources

Gavin Smyth, for the defendants/respondents, David Cole
    and James Wickens

Heard and released orally: March 25, 2013

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated December 21, 2011 (incorporating her
    decisions of December 21, 2011 and March 15, 2012).

ENDORSEMENT

[1]

The appellants and the respondents are involved in long standing
    litigation concerning the boundaries that exist among three islands and part of
    a fourth island in Lake Huron.

[2]

The islands were once separated by the waters of Lake Huron.  Over the
    years the lake level has receded and what were once four separate islands, as
    that term is commonly understood, are now part of a larger land mass that
    includes what was once lake bottom. The ownership of this now partially exposed
    lake bottom is the subject of the litigation.

[3]

The appellants are the current owners of Island 11. The respondents Cole
    and Wickens are their predecessors in title. The respondent Ross is the current
    owner of part of Cranberry Island. The respondents Clemens are the current
    owners of Island 11A and the estate of Judith Thrasher, the owner of Island
    11D.

[4]

During the course of the litigation, Thrasher accepted the appellants
    settlement offer dated February 14, 2011. Thereafter the appellants submitted
    to Thrasher several consent orders, which purported to reflect the settlement
    agreement between themselves and Thrasher. Thrasher signed the necessary
    consent. All of the proposed draft orders expanded on the terms of the
    agreement and as the motion judge noted in paragraph 35 of her reasons, several
    provisions contained in the draft orders may have had the effect of
    determining certain boundaries in issue or limiting or restricting ownership,
    easements and rights-of-way of the other co-defendants in the broader
    litigation.

[5]

The litigation, which has been ongoing since 2000, concerns boundary
    disputes among the current and previous owners of Island 11 and the current
    owners of part of Cranberry Island, Island 11A and Island 11D. While it was
    open to the appellants and Thrasher to resolve aspects of the lis between them,
    it was not open to them to do so in a way that affected the rights and/or
    obligations of the other parties to the litigation.

[6]

The motion judge appreciated the issues among the parties and the effect
    that the appellants effort to enforce the agreement could have on the overall
    litigation were she to accede to their motion and grant the declarations contemplated
    by the terms of the settlement.

[7]

In our view, her order was correct in the circumstances of the
    particular case.

[8]

The settlement agreement remains and, as between the appellants and
    Thrasher, the appellants can, of course, plead and rely on that agreement in
    the overall litigation. We also note that the application judges order in
    paragraph 4 thereof dismissed Thrashers counterclaim including her request for
    a right of way.

[9]

As found by the motion judge any order resulting from the settlement
    between the appellants and Thrasher should not affect the issues as among the
    appellants and the other defendant respondents. As a result, the appeal is
    dismissed.

[10]

As
    to costs, leave is granted to appeal the costs orders made against the
    appellants on the application. We see no error in the costs award made to
    Thrasher. Given the date of the offer to settle made by Ross and Clemens, the
    quantum of the substantial indemnity costs awarded to them was excessive and we
    would reduce those costs from $20,033.45 to $15,000.00 all inclusive.

[11]

As
    for the award to Cole and Wickens, we see no basis upon which the motion judge
    could have awarded substantial indemnity costs and we note that no materials
    were filed by them. Accordingly, we would reduce those costs to $1500 all
    inclusive.

[12]

Costs
    of the appeal are awarded to Clemens and Ross in the sum of $10,000; to
    Thrasher, in the sum of $7,000; and to Cole and Wickens, in the sum of $1,000.  All
    amounts are inclusive of disbursements and applicable taxes.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.

S. E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sozonchuk v. Polych, 2013 ONCA 253

DATE: 20130425

DOCKET: C54980

Winkler C.J.O., Weiler and Laskin JJ.A.

BETWEEN

Stephen Michael Sozonchuk, Margaret Rachel Moser,
    Mikelina Naomi Moser Sozonchuk, Elizabeth
    Anne Sozonchuk

Plaintiffs

and

Carol Polych
,
    University Heath Network c.o.b. as Toronto
    Western Hospital,
Ontario Best Nursing Agency Ltd.

Defendants (
Appellants
/Respondent)

Steven Stieber, for the appellants

John J. Morris, for the respondent

Heard: April 5, 2013

On appeal from the judgment of Justice Laurence Arthur Pattillo
    of the Superior Court of Justice, dated January 6, 2012.

ENDORSEMENT

Background

[1]

The appellants, Nurse Carol Polych and Ontario Best Nursing Agency
    (Best Nursing), were found to be 50 per cent liable in negligence on the
    respondent University Health Networks (UHN) crossclaim. The crossclaim was
    issued in response to an action by Mr. Sozonchuk against UHN for damages while
    he was a patient at the respondent Toronto Western Hospital (the Hospital).

[2]

Mr. Sozonchuk suffered a subarachnoid haemorrhage as a result of an
    aneurysm that burst in the interior communicating artery of his brain. On
    October 5, 2003, during or after an operation to clip the artery, Mr. Sozonchuk
    suffered a stroke. He developed complications as a result of the surgery
    including respiratory problems, a fever and bacteria in the spinal fluid, which
    required a drain. On October 8, weakness on the right side of his body was
    noted and he was diagnosed as having mild to moderate vasospasm  that is,
    bleeding around the surface of the brain.  He was treated for this with pharmacological
    therapy.

[3]

On October 17, Mr. Sozonchuk suffered an additional injury. The injury
    was noted around 2 pm when paralysis of his right side due to a stroke (hemiplegia)
    was observed. The CT scan undertaken revealed that the vasospasm had become
    severe enough that there was not enough blood to supply the brain adequately
    and a number of brain cells had been deprived of oxygen for a period of time.
    He underwent balloon angioplasty to allow more blood to flow to the brain
    because vasospasm, if untreated, can cause death.

[4]

Mr. Sozonchuk sued the Hospital and alleged that there was a delay by
    the nurses in detecting and treating his condition, which caused additional
    harm to him.  The Hospital settled Mr. Sozonchuks claim against it and pursued
    its cross-claim against Nurse Polych and her employer, Best Nursing.

[5]

The factual causation issue at trial was whether Nurse Polych, who was
    assigned to look after Mr. Sozonchuk the morning of October 17, and Nurse Benn,
    the charge nurse employed by UHN, caused or aggravated some portion of Mr. Sozonchuks
    injuries.

[6]

Based on the evidence he accepted, the trial judge made the following
    findings concerning Mr. Sozonchuks injury on a balance of probabilities:

1)

During his surgery on October 5, 2003, Mr. Sozonchuk suffered injury in
    the form of a stroke to the left side of his brain as a consequence of the
    surgery;

2)

On October 17, 2033, Mr. Sozonchuk suffered further injury to the left
    side of his brain from an ischemic stroke by  severe vasospasm;

3)

The injury Mr. Sozonchuk suffered on October 17, 2003 began to occur at
    or shortly after he became hemiplegic;

4)

Mr. Sozonchuk became hemiplegic sometime between mid morning and early
    afternoon on October 17, 2003;

5)

There was a significant delay in diagnosing Mr. Sozonchuks hemiplegia.
    It was not diagnosed until around 2:00 pm when Nurse Potvin assessed him.
    Thereafter he received prompt and appropriate treatment;

6)

The angioplasty was successful in arresting Mr. Sozonchuks stroke;

7)

Neither Dr. Miller nor Dr. Benoit were able to provide a firm opinion
    that the delay in obtaining the angioplasty on October 17, 2003 contributed to
    Mr. Sozonchuks injury;

8)

Drs. Miller, Benoit and Tymianski all agree that the earlier the
    assessment and treatment for vasospasm (in this case angioplasty), the more
    likely Mr. Sozonchuks ultimate deficits would have been reduced.

[7]

The trial judge ultimately found that the two nurses were jointly
    responsible for the delay in diagnosis and treatment of Mr. Sozonchuks
    vasospasm and that this delay exacerbated Mr. Sozonchuks injuries.

[8]

Nurse Polych and Ontario Best Nursing appeal this finding of fact. This
    is the sole ground of appeal.  The appellants concede that Nurse Polych fell
    below the standard of care and that the trial judge applied the correct test
    for causation.

Argument and Analysis

[9]

The appellants submit that the time frame Dr. Miller gave as to when the
    additional injury took place was so broad as to make it impossible for the
    trial judge to determine whether the negligence of Nurse Polych exacerbated the
    injuries suffered by Mr. Sozonchuk. In chief, Dr. Miller testified that, from
    the appearance of the CT scan, Mr. Sozonchuks condition was typical of
    patients who have been without adequate blood supply to the brain for a period
    of one to three hours at the time.  In cross-examination he stated, [T]hose
    times are not very precise, theyre speculation.  But I dont think it would be
    eight hours, and it could be a half an hour. Accordingly, the appellants
    submit that the trial judges finding of fact that Mr. Sozonchuk suffered a
    stroke or became hemiplegic sometime between midmorning and early afternoon on
    October 17, 2003 is unreasonable.

[10]

Having
    regard to the evidence as a whole, there was evidence upon which the trial
    judge could make the finding he did.  There was evidence that:

·

Both Dr. Miller and Dr. Benoit were of the opinion that the
    damage to Mr. Sozonchuks brain probably occurred within minutes to an hour
    from when he became hemiplegic or paralyzed on the right side of his body;

·

Between 10:30 and 12:30 p.m. Nurse Polych became more concerned
    about Mr. Sozonchuks condition and that sometime in late morning or early
    afternoon, she spoke to Nurse Benn about it;

·

Nurse Benn agreed to page a doctor;

·

When Nurse Practitioner Potvin saw the patient around 1:45 p.m.
    she noticed that he was hemiplegic on his right side and at 2:10 p.m. paged
    both doctors on call and ordered a CT scan; and

·

When Dr. Tymianski examined Mr. Sozonchuk around 3 p.m. and asked
    Nurse Polych how long Mr. Sozonchuk had been hemiplegic, he was unable to
    obtain an answer.

[11]

The
    doctors were unanimous in stating that the longer vasospasm, or a decrease in
    the flow of blood to the brain, exists, the greater the likelihood of damage.

[12]

The
    trial judge also held that Nurse Polychs duty of care was not discharged when
    she notified Nurse Benn of her concern respecting Mr. Sozonchuk. She was
    obligated to ensure Mr. Sozonchuk received the care he required and, in the
    absence of a timely response after speaking with Nurse Benn, to go over her
    head to get a doctor to see him. This holding was not challenged. Thus, there
    was a basis on which the trial judge could conclude that Nurse Polychs
    continuing negligence after the time period Mr. Sozonchuk became hemiplegic
    exacerbated the harm to him.

[13]

The
    evidence, viewed as a whole, and the trial judges holding on Nurse Polychs
    duty of care, taken together, support the trial judges finding.

[14]

The
    appellants also submit that there was merely a chance that Mr. Sozonchuks
    injuries were aggravated by Nurse Polych and loss of a chance is not
    compensable. In support of this submission the appellants rely on the evidence
    of Dr. Miller to the effect that if the angioplasty had been done sooner,
    [t]here may have been a chance that the damage to the brain would have been
    less.

[15]

We
    disagree with this submission. This was not a loss of a chance case. Dr.
    Miller was never asked to quantify whether the chance of exacerbation was
    more probable than not.  The further question he was asked was whether it was
    correct that if the procedure had been done earlier, the death to the brain
    cells may have been eliminated or been prevented.  His answer was: Correct.

[16]

The
    appellant also relies on the evidence of Dr. Benoit to the effect that had the
    angioplasty been undertaken sooner, the effect on Mr. Sozonchuks impairment
    would not have been significant. However, Dr. Benoit clarified his answer and
    stated that this effect could still have translated into a major impact on Mr.
    Sozonchuks ability to function.

[17]

Accordingly,
    the appeal from the cross-claim is dismissed.

[18]

Costs
    are agreed in the amount of $25,000, inclusive of any taxes and disbursements,
    and are payable to UHN.

Warren K. Winkler C.J.O.

Karen M. Weiler J.A.

John Laskin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Spiers v. The Manufacturers Life Insurance Company
(Manulife Financial), 2013 ONCA 200

DATE: 20130402

DOCKET: C55861

Blair, Tulloch and Lauwers JJ.A.

BETWEEN

James Speirs

Appellant

and

The Manufacturers Life Insurance Company carrying
on business as Manulife Financial and Canon Canada Inc.

Respondent

Terrence Pochmurski, for the appellant

Adrienne Boudreau, for the respondent Canon Canada Inc.

Heard and released orally: March 19, 2013

On appeal from the judgment of Justice Michael A. Penny
of the Superior Court of Justice, dated June 29, 2012.

ENDORSEMENT

[1]

Mr. Speirs was employed by Canon Canada Inc. for approximately 19 years.
At some point in time in May 2006, he stopped coming to work and asserted a
claim for disability benefits from Canon. Short term disability benefits were
paid for seven and a half weeks but not thereafter.

[2]

Mr. Speirs sued Canon for the balance of the short term benefits to
which he says he was entitled and The Manufacturers Life for long term
benefits. The action against The Manufacturers Life was settled at mediation,
but the action against Canon continues.

[3]

In May 2012, Mr. Speirs brought a motion to amend his statement of claim
to assert a claim for wrongful dismissal. The claim is based on the position
Mr. Speirs took in January 2010, and conveyed to Canon in his lawyers letter
dated January 13, 2010, that he was able to and wished to return to work. Canon
did not respond. Mr. Speirs therefore asserts that he has been constructively
dismissed.

[4]

On the motion to amend, Canon argued that the wrongful dismissal claim
was statute barred because the motion was brought more than two years after Mr.
Speirs knew or ought to have known that he had a claim for wrongful dismissal:
see the
Limitation Act
2002, S.O. c. 34, sch. B, s. 5. The motion
judge agreed and refused to permit the amendment. He found that by his own
admission and by the clear language of the letter written to Canon on his
behalf, Mr. Speirs knew or ought to have known no later than January 13, 2010
that he had a claim for wrongful dismissal.

[5]

Respectfully, this finding is unreasonable and unsupported by the
evidence. It therefore constitutes a palpable and overriding error.

[6]

It is not tenable that merely by sending a letter saying he was prepared
to go back to work, Mr. Spiers would know that Canon was refusing to take him
back. Some response from Canon was required either expressly or by inference.
Here, there is nothing on the record to make that link.

[7]

Counsel for Canon concedes that some reasonable period of time would
have had to elapse after the January 13, 2010 letter within which  either
expressly or by silence  Canon could be taken to have responded negatively.
But what is a reasonable period of time? It could not have been at the time the
letter was sent, as the motion judge found, but how long after?

[8]

The motion judge did not apply his mind to this question, there were no
cross-examinations, and no evidence was directed to this point.

[9]

In these circumstances, we think that the limitation period issue should
be left for determination at trial after discoveries and on the basis of the
testimony at trial as to who understood or intended what and when. Canon can
raise its limitation period arguments in defence.

[10]

The
appeal is therefore allowed and the proposed amendment permitted.

[11]

Costs
to the appellant fixed at $3,013.76 inclusive of disbursements and all
applicable taxes.

[12]

The
motion judge made no order as to costs below and, we would not alter that
disposition.

R.A. Blair J.A.

M.H. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Stevens v. Stevens, 2013 ONCA 267

DATE: 20130429

DOCKET: C55152

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Joel M. Stevens

Applicant (Appellant)

and

Pamela Beverley Stevens
and Rosalyn Tsao

Respondents (Respondent in Appeal)

D. Smith, Lawrence E. Thacker and Yashoda Ranganathan,
    for the appellant

Stephen Grant and Gillian Kerr, for the respondent
    Pamela Beverley Stevens

W.E. Pepall, for the respondent Epstein Cole LLP and
    Roslyn Tsao

Heard: April 16, 2013

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated February 6, 2012, with reasons reported at
    2012 ONSC 706, 109 O.R. (3d) 421, and from his costs ruling, dated December 3,
    2012, with reasons reported at 2012 ONSC 6881.

By the
    Court:

[1]

This appeal arises from a matrimonial dispute as to the validity of a
    marriage contract. After a 16-year marriage that produced three children, the
    parties encountered difficulties when the respondent wife discovered that the
    appellant husband was having an affair. They attempted to reconcile and, in the
    process of reconciliation, a marriage contract was prepared by the solicitor
    for the respondent to provide for what would happen in the event that the
    reconciliation failed. The respondent had acquired substantial wealth from her
    father and had put a significant amount of money into the matrimonial home. In
    her covering letter, the solicitor stated that the agreement was that the
    appellant would receive one-half of the value of the matrimonial home. The
    appended written agreement provided that the appellant would receive 100 per cent
    of the value. The agreement was signed by the parties and, when the attempted
    reconciliation did not succeed, the appellant commenced this proceeding to
    enforce the written contract.

[2]

The appellant insisted at trial that the written contract, which gave
    him the full value of the matrimonial home, reflected the agreement between the
    parties. That was disputed by the respondent.

[3]

The central issue at trial was the validity of the written contract. In
    a lengthy judgment, the trial judge made detailed findings of fact leading him
    to conclude that there was no enforceable agreement. He reached that conclusion
    on a variety of grounds including:

1.

There was no
    meeting of the minds as to essential terms of the written agreement;

2.

The contract was
    unconscionable; and

3.

The contract
    should be set aside pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3,
    s. 56(4).

[4]

On the meeting of the minds issue, the trial judge found that the
    provision in the written agreement providing that the appellant would get the
    entire value of the parties matrimonial home was a drafting error. The trial
    judge found that there was no agreement that the appellant would receive the
    entire value. He further found that, in view of the discrepancy between the
    agreement and the cover letter, the appellant and his counsel had an obligation
    to seek clarification from the respondent as to her position before signing the
    agreement. They failed to do so.

[5]

The trial judge also found that the parties were not
ad idem
as
    to the way the contract affected a loan of approximately $1 million that the
    respondent had made to the family trust. According to the respondent and the
    terms of the note, the loan was repayable on demand. According to the
    appellant, the respondent had agreed to forbear calling the loan until all of
    the children had finished school so that the loan could be used to fund the
    childrens education.

Issues

[6]

In oral argument, the appellant focused on two issues, namely, the
    remedy of rectification and the contention that the trial judge placed undue
    reliance on the appellants matrimonial misconduct.

Analysis

Issue 1. Is the appellant entitled to rectification?

[7]

Before this court, the appellant seeks rectification of the written
    contract. While the respondent advanced rectification as an alternative
    position at trial, the appellant resisted that remedy and insisted that he was
    entitled to enforce the agreement as written and to receive the entire value of
    the matrimonial home.

[8]

In our view, on this record and in the light of the position he took at
    trial, the remedy of rectification is not open to the appellant on appeal. If
    accepted, it would permit the appellant to take a fundamentally different
    position on appeal, one that is completely inconsistent with the position he
    took and the evidence he led at trial. To do so would be fundamentally unfair
    to the respondent.

[9]

We do not accept the appellant's submission that as the respondent was
    prepared to enter into the agreement on the basis that the value of the
    matrimonial home would be shared equally, and as the trial judge rejected his evidence
    as to the bargain between the parties, it must follow that had the written
    contract provided for an equal division of the value of the matrimonial home,
    it would accurately reflect the parties agreement and that rectification is
    therefore the appropriate disposition. The trial judge found as fact that the
    appellant was aware of the drafting error and that he knew that it needed to be
    clarified. The appellant refused to take steps to make the clarification and
    continued to insist that the agreement should be enforced as written. Simply
    put, he cannot ask this court to rectify an agreement to reflect terms he swore
    he did not agree to.

[10]

Nor
    is there any basis for interfering with the trial judges findings regarding
    the appellant's loan to the family trust.

Issue 2. Did the trial judge place undue reliance on
    the appellants matrimonial misconduct?

[11]

We
    do not accept the submission that in coming to the conclusion that there was no
    meeting of the minds, the trial judge placed undue reliance upon the
    appellant's matrimonial misconduct. This case revolved around the fact that the
    marriage was falling apart and any discussion of the context and the process of
    the attempt to reconcile inevitably included some reference to the conduct of
    the parties and the prospects of achieving a reconciliation. However, in the
    end, the trial judge clearly stated at para. 179 of his judgment that he found
    that the appellant's conduct could not be connected to the issue of whether the
    marriage contract should be set aside. In our view, the trial judges findings
    on the meeting of the minds point did not rest upon any misuse of evidence of
    matrimonial misconduct.

Other issues

[12]

Given
    our conclusion with respect to the meeting of the minds point, we do not find
    it necessary to address the issues raised with respect to the alternative
    grounds for refusing to enforce the marriage contract.

[13]

We
    see no error in the trial judge's valuation of the matrimonial home or in his
    finding that the cottage and chalet are not matrimonial homes. These were
    factual determinations entitled to deference on appeal and there was ample
    evidence to support the findings.

[14]

With
    respect to the issue of support, the trial judge made no error in principle and
    did not misapprehend the evidence. Specifically, he did not err in attributing
    PC Outlets pre-tax earnings to the appellant. The appellant repeatedly
    misrepresented his income to limit his liability.

Costs

[15]

While
    the costs awarded by the trial judge are certainly very high, we are not
    persuaded that the appellant has demonstrated grounds for appellate
    intervention. It is well-established that appellate courts are reluctant to
    interfere with a trial judges exercise of discretion concerning costs and, for
    the following reasons, we decline to intervene in this case.

[16]

First,
    there can be no doubt that the high costs are largely attributable to the
    appellants behaviour in this litigation. The trial judge was clearly entitled
    to consider the appellant's behaviour before and at trial with regard to
    disclosure and requests to admit and the fact that the appellant had refused a
    very reasonable offer of settlement.

[17]

Second,
    neither before this court not before the trial judge was there any serious
    challenge to the hours spent and the rates claimed by counsel for the respondent
    and the added party.

[18]

While
    this costs award pushes reasonableness and proportionality to their limits, in
    the end, we see no error in the trial judges careful analysis and disposition
    of costs that would justify intervention.

Disposition

[19]

Accordingly
    the appeal is dismissed with costs to the respondent fixed at $25,000 and to
    the added party fixed at $3,500, both amounts inclusive of disbursements and
    applicable taxes.

K.M. Weiler J.A.

Robert J. Sharpe
    J.A

Paul Rouleau J.A.

Released: April 29, 2013