COURT OF APPEAL FOR ONTARIO

CITATION: R. v. White, 2020 ONCA 639

DATE: 20201013

DOCKET: C66614

Pardu, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Masson Maxwell White

Appellant

Richard Litkowski,
    appearing as duty counsel

Hannah Freeman,
    for the respondent

Heard: October 7, 2020 by
    video conference

On appeal from the sentence imposed on February
    15, 2019 by Justice Graeme Mew of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from the 16-year period of parole ineligibility
    fixed by the trial judge in relation to the life sentence imposed for second
    degree murder.

[2]

In able submissions on behalf of the appellant, duty counsel argues that
    the sentencing judge committed two errors in principle:

1.

He failed to explain why he imposed a period of
    parole ineligibility at the high end of the range.

2.

He treated the absence of remorse as an
    aggravating factor.

[3]

This was a brutal killing. The appellant shot his step-mother in the
    head at point blank range. She was defenseless, seated in an armchair with her
    phone in her lap. The shooting took place in front of her husband, the
    appellants father, who described the victim as the pride and joy of his life,
    and in front of the appellants former partner.

[4]

The sentence imposed is acknowledged to be within the range established
    by cases such as
R. v. McKnight
, 43 O.R. (3d) 263

(C.A.), and
R. v. Czibulka
,
    2011 ONCA 82, 275 O.A.C. 64.

[5]

R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11,
stipulates
    that a departure from the range is in itself insufficient to open the door to
    appellate intervention. Here, the sentencing judge explained why he arrived at
    his decision and his reasons are sufficient. He concluded that the appellant
    was more blameworthy than the appellant in
McKnight.

[6]

Reading the reasons as a whole, we are not persuaded that the sentencing
    judge used remorse as an aggravating factor. Rather, he referred to remorse to
    distinguish this case from
McKnight
,
where this court reduced the
    period of parole ineligibility from 17 years to 14, in light of numerous
    mitigating factors. There, the appellant had killed his wife while affected by
    a serious depression. There was evidence that the homicide would not have
    occurred but for the appellants mental health problems and that the appellant
    was profoundly remorseful. No similar mitigating factors are present in this
    case.

[7]

The sentence is not demonstrably unfit, nor affected by error which had
    an impact on the ultimate period of parole ineligibility imposed. There is no
    basis for appellate intervention.

[8]

Leave to appeal sentence is granted but the appeal from sentence is
    dismissed.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rolley v. MacDonell, 2020 ONCA 642

DATE: 20201013

DOCKET: C66200

Juriansz, Hourigan and Thorburn
    JJ.A.

BETWEEN

Mark Rolley, Jocelyn Rolley,
    Emily Rolley, Benjamin Rolley, Joseph Rolley, Tommy Paupst and Angel Paupst

Plaintiffs

(Respondents/Appellants by way of cross-appeal)

and

Dorothy MacDonell
and Belair Insurance Company Inc.

Defendants

(
Appellant/Respondent by way of cross-appeal
)

Alan L. Rachlin, for the appellant/respondent
    by way of cross-appeal

Joseph Y. Obagi and Elizabeth A. Quigley,
    for the respondents/appellants by way of cross-appeal

Heard: September 30, 2020 by
    videoconference

On appeal from the judgment of Justice Sylvia
    Corthorn of the Superior Court of Justice, dated November 1, 2018 with reasons reported
    at 2018 ONSC 6517, 87 C.C.L.I. (5th) 56.

REASONS FOR DECISION

[1]

This appeal is from the judgment dated November
    1, 2018 in the respondents action against the appellant and Belair Insurance
    Company Inc. arising from a motor vehicle accident. The respondent Mark Rolley,
    a pedestrian, was struck by a motor vehicle driven by the appellant, Dorothy
    MacDonell. The trial judge, after discharging the jury mid-trial, awarded the
    respondents damages totaling $2,023,016 plus interest, costs and disbursements.

[2]

The appellant argues the trial judge erred by
    striking the jury, refusing to grant a mistrial, erred in her treatment of Mr.
    Rolleys application for Canada Pension Plan disability benefits, and erred by
    refusing to admit surveillance videos of Mr. Rolley. In oral argument the
    appellant did not advance the allegation in the notice of appeal that the
    cumulative effect of these rulings demonstrated bias on the part of the trial
    judge. In oral argument the appellant submitted these errors amounted to a
    miscarriage of justice.

[3]

We are not persuaded there is any basis to
    interfere with the trial judges exercise of her discretion to discharge the
    jury.

[4]

The trial judge gave two reasons for discharging
    the jury, each of which provided a sufficient basis for doing so. First, as a
    result of counsels gross underestimation of the length of trial, there would
    be a 44-day break in the calling of evidence. Second, in mid-trial the respondents
    reasonably changed their claim for attendant care after the appellants late
    disclosure of an umbrella policy that substantially increased the limits of her
    insurance coverage. The trial judge had an ample basis to conclude the timing
    of the late disclosure and its resulting effect on the strategic decisions made
    by the respondents immediately following the disclosure of that information
    would result in potential prejudice to the respondents in the eyes of the jury.

[5]

We agree with the trial judge that the appellants
    motion at trial for a mistrial was an attempt to re-argue the respondents
    motion to discharge the jury and continue the trial with judge alone. This
    ground of appeal necessarily fails.

[6]

We see no error in the trial judges treatment
    of Mr. Rolleys application documents for CPP disability benefits as evidence of
    his condition at the point he completed them. It was the trial judges role to
    assess and weigh all the evidence including the CPP application. We reject the appellants
    argument that, as a matter of law, the CPP application had to be understood as
    showing Mr. Rolley suffered from a prolonged and continuing condition. We note
    the trial judge reduced the respondents damages by 25 percent to address the
    possibility Mr. Rolley, had the accident not taken place, would have been in
    the same position as he found himself after the accident.

[7]

Finally, we agree that the trial judge should
    have admitted the surveillance videos tendered as evidence by the appellant.
    Whether the surveillance evidence would have made a difference to the outcome thereby
    causing a miscarriage of justice is a case specific contextual assessment:
Nemchin
    v
.
Green
, 2019 ONCA 634, 147 O.R. (3d) 530, at paras. 72-73. It is
    determinative that after viewing the videos, the trial judge assessed them as
    having minimal, if any, probative value. The admission of the surveillance
    evidence would not have made a difference to the outcome and did not cause a
    miscarriage of justice.

[8]

The appeal is dismissed. The respondents have withdrawn
    the cross-appeal. The respondents costs are fixed in the amount of $51,540.66
    as agreed by counsel.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Samad v. Rasool, 2020 ONCA 656

DATE: 20201020

DOCKET: M51112 (C67483)

Hourigan, Trotter and Jamal JJ.A.

BETWEEN

Shahab Samad

Appellant

(Respondent by Application)

and

Shahanaz
    Rasool

Respondent

Applicant by Application

Shahab Samad, self represented

Audrey Lee, for the respondent

Heard: October 15, 2020

REASONS FOR DECISION

[1]

The appellant brings a motion to set aside the
    order of the motion judge, dismissing his motion for an order extending the
    time to perfect his appeal.

[2]

In his endorsement, the motion judge noted that
    the appellant had previously been granted an extension of time to perfect his
    appeal but had missed the deadline. He then considered the merits of the
    appeal, observing that the grounds of appeal do not relate to the order
    appealed, and concluded that the appeal did not have any real chance of
    success. The motion judge also found that the justice of the case favoured the
    respondent because the appellants conduct in the litigation had resulted in
    his pleadings being struck below.

[3]

We do not see any error in principle made by the
    motion judge. He properly applied the test on the motion and exercised his
    discretion in a manner that was entirely consistent with this courts
    jurisprudence and the justice of the case.

[4]

The motion is dismissed. The appellant shall pay
    the respondent her all-inclusive costs of this motion in the amount of $4,000.

C.W. Hourigan J.A.

Gary
    Trotter J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Svia Homes Limited v. Northbridge
    General Insurance Corporation, 2020 ONCA 684

DATE: 20201029

DOCKET: C67937

Rouleau, Miller and Zarnett JJ.A.

BETWEEN

Svia
    Homes Limited

Applicant
(Appellant)

and

Northbridge General Insurance
    Corporation

Respondent
(Respondent)

Thomas J. Donnelly and Joyce Tam, for
    the appellant

James G. Norton and James Tausendfreund,
    for the respondent

Heard: September 24, 2020 by video conference,
    with supplementary submissions in writing

On
    appeal from the judgment of Justice William S. Chalmers of the Superior Court
    of Justice, dated December 18, 2019, with reasons reported at 2019 ONSC 7459,
    99 C.C.L.I. (5th) 310.

Zarnett J.A.:

INTRODUCTION

[1]

The appellant, Svia Homes Limited (Svia), holds
    an unsatisfied judgment against 1390348 Ontario Limited (139 Limited). Svia
    brought an application to recover payment of that judgment from the respondent,
    Northbridge General Insurance Corporation (Northbridge). Svias application
    was under s. 132 of the
Insurance Act
, R.S.O. 1990, c. l.8, which
    permits the holder of an unsatisfied judgment against an insured person to recover
    the amount of the judgment from that persons insurer, subject to the same
    equities as the insurer would have if the judgment had been satisfied. Northbridge
    is the insurer of 139 Limited under a Commercial General Liability policy of
    insurance (the Policy).

[2]

The application judge held that 139 Limited had
    breached a condition in the Policy requiring it to give Northbridge timely
    notice of the action that led to the judgment, resulting in forfeiture of 139
    Limiteds right under the Policy to claim indemnity from Northbridge. In the
    application judges view, the grounds necessary to justify granting relief from
    that forfeiture were not established. As Svia, under s. 132 of the
Insurance
    Act
, stood in no higher position than 139 Limited, Svias claim against
    Northbridge for payment of the judgment failed.

[3]

Svia appeals the dismissal of its application. For
    the reasons that follow, I would dismiss the appeal.

BACKGROUND

[4]

Between 2004 and 2008, Svia developed a
    townhouse project in Oakville, Ontario. Svia hired 139 Limited to install the
    projects sewer system.

[5]

Problems were encountered with the sewers. In
    2008, Svia commenced an action (the 2008 Action) against 139 Limited and
    others, claiming damages related to the defective installation of the sewers.

[6]

Under the Policy, which was issued by
    Northbridges predecessor, 139 Limited had liability coverage for sums 139
    Limited became obligated to pay because of property damage occurring between
    March 18, 2006 and March 18, 2007.

[7]

Northbridge was not provided with notice of the
    2008 Action until nine years after it was commenced. In the meantime, 139
    Limited defended the 2008 Action until 2011, when its lawyer was removed from
    the record and its pleading was struck. Examinations for discovery of other
    parties took place in 2011, but 139 Limited did not participate. In 2013, 139
    Limited was noted in default.

[8]

In April 2017, Svias counsel in the 2008 Action
    provided notice of the 2008 Action to Northbridge.
[1]
Upon receipt, Northbridge obtained
    a Non-Waiver Agreement from 139 Limited to allow it to investigate and consider
    whether the claims in the 2008 Action were covered.
[2]

[9]

In July 2017, Northbridge sent a letter denying
    coverage for the 2008 Action. It asserted a number of bases for this position:
    that it had received no notice from 139 Limited in the nine years that had
    elapsed since the 2008 Action was commenced, and that this breach of condition
    precluded an action for coverage under the Policy; that even if there had been
    timely notice, the claims in the 2008 Action to recover the cost of replacing
    the sewer system were excluded under the Policy; and that, to the extent the
    2008 Action made a minor claim for resultant damage, an action for coverage
    was barred by the expiry of a limitation period.

[10]

In March 2018, Svia amended its statement of
    claim in the 2008 Action to include broader claims for resultant damage. The
    amended claim was not provided to Northbridge. On April 20, 2018, without
    notice to Northbridge, Svia obtained default judgment in the 2008 Action against
    139 Limited (and one other defaulting defendant) in the amount of
    $1,979,555.38, plus interest and costs fixed in the amount of $23,500. On May
    25, 2018, counsel for Svia provided a copy of the default judgment to
    Northbridge.

[11]

On December 4, 2018, Svia moved, without notice
    to Northbridge, to amend the default judgment. The judgment was reduced to
    $1,864,619.87 as a result of a mathematical error, and the damages awarded were
    broken down: the damages for repairing the sewer system were quantified at
    $69,505.16, and resultant and consequential damages were quantified at
    $1,795,114.71.

[12]

After unsuccessful attempts, including by
    execution, to collect the judgment from 139 Limited, Svia commenced an
    application against Northbridge for the amount of the judgment. The application
    was brought under s. 132 (1) of the
Insurance Act
, which provides:

132 (1) Where a person incurs a
    liability for injury or damage to the person or property of another, and is
    insured against such liability, and fails to satisfy a judgment awarding
    damages against the person in respect of the persons liability, and an
    execution against the person in respect thereof is returned unsatisfied, the
    person entitled to the damages may recover by action against the insurer the
    amount of the judgment up to the face value of the policy, but subject to the same
    equities as the insurer would have if the judgment had been satisfied.

THE APPLICATION JUDGES REASONS

[13]

The application judge referred to the principle
    that persons, such as Svia, who seek recovery in a proceeding under s. 132, can
    stand in no better position than the insured would if it were claiming payment
    from the insurer. Thus, if Northbridge had a defence to a claim by 139 Limited,
    that would also be a defence to Svias claim.

[14]

He then considered whether the judgment fell
    within the terms of coverage the Policy provided. He noted that the Policy
    excluded coverage for the cost to repair the insureds own defective work ($69,505.16
    of the judgment), giving Northbridge a defence to that part of the claim.
    However, the terms of coverage did extend to consequential damage resulting
    from the insureds defective work ($1,795,114.71 of the judgment). Therefore,
    the terms of coverage alone would not afford Northbridge a defence to that part
    of the claim.

[15]

The application judge then turned to whether
    Northbridge had a defence based on the lack of timely notice of the claim,
    which he dealt with by considering two issues.

[16]

First, he considered whether 139 Limited breached
    the Policy by failing to provide timely notice of the 2008 Action. He noted
    that Liability Condition 5 of the Policy required that If a claim is made or action
    is brought against any Insured, you [that is, 139 Limited] must see to it that
    we [Northbridge] receive prompt written notice of the claim or action. He
    also noted that the Policy permitted Svia to give notice, as Statutory
    Condition 8 provided that if the insured was absent, unable to provide notice,
    or refused to do so, notice could be given by a person to whom any part of the
    insurance money is payable. He found that 139 Limited breached Liability
    Condition 5 by its failure to provide timely notice, the notice by Svia coming
    nine years after the 2008 Action had been commenced.

[17]

Second, in light of the provision of the Policy
    that no claim could be brought against the insurer unless all terms of the
    Policy had been complied with, he considered whether relief from forfeiture
    could be granted under s. 129 of the
Insurance Act
, which provides:

Where there has been imperfect
    compliance with a statutory condition as to the proof of loss to be given by
    the insured or other matter or thing required to be done or omitted by the
    insured with respect to the loss and a consequent forfeiture or avoidance of the
    insurance in whole or in part and the court considers it inequitable that the
    insurance should be forfeited or avoided on that ground, the court may relieve
    against the forfeiture or avoidance on such terms as it considers just.

[18]

The application judge found that Svia had
    standing to request relief from forfeiture as an applicant in a s. 132
    application. But he held that the test for relief from forfeiture set out in
Monk
    v. Farmers Mutual Insurance Company (Lindsay)
, 2019 ONCA 616, 92 C.C.L.I.
    (5th) 84, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 384, had
    not been met. First, the conduct of 139 Limited in failing to give timely
    notice had not been reasonable; second, the breach of the condition to give
    timely notice was substantial and had prejudiced Northbridges ability to
    respond on behalf of 139 Limited to the 2008 Action; and third, although the
    forfeiture of insurance coverage was significant, the loss of Northbridges
    ability to defend the action was also significant such that there was no
    disparity between the insureds loss of coverage and the damage caused to the
    insurer by the breach of condition.

[19]

Svias application was accordingly dismissed.

THE ISSUES ON APPEAL

[20]

Svias factum on appeal focussed on the refusal
    of the application judge to grant relief from forfeiture. It argued that the
    application judge erred in finding that there had been prejudice to Northbridge
    arising from the late notice (the no prejudice argument). It also argued that
    the application judge was wrong to focus on 139 Limiteds conduct, rather than
    Svias conduct, in deciding whether to grant relief (the wrong perspective
    argument).

[21]

In oral argument, Svia made an additional argument
    (the Statutory Condition 8 argument). Svia submitted that Statutory Condition
    8, under which Svia had provided notice of the 2008 Action to Northbridge, did
    not have a timeliness requirement. Therefore, there was no late notice; the
    Policys relevant notice requirement was not breached. The questions the
    application judge had considered, namely, whether 139 Limited had breached the
    requirement for timely notice under Liability Condition 5, and whether that
    breach should be relieved against, were irrelevant. Since notice under
    Statutory Condition 8 was given, and since there was no other coverage defence
    (except as to the relatively minor amount allocated in the judgment to the
    repair of 139 Limiteds defective work), Svia was entitled to succeed.

ANALYSIS

(1)

The Statutory Condition 8 Argument

[22]

For ease of analysis, I first address the Statutory
    Condition 8 argument advanced by Svia in its oral submissions.

Should the Argument Be Considered?

[23]

After oral argument was completed and the matter
    had been taken under reserve, Northbridge sought leave to make the submission that
    the Statutory Condition 8 argument should not be considered, since it was not advanced
    before the application judge, nor was it referred to in Svias appeal factum.
    Northbridge relies on this courts decision in
Becker v. Toronto (City)
,
    2020 ONCA 607. Svia, for its part, acknowledges that the Statutory Condition 8
    argument was not made below or in its factum on appeal, but submits that it
    should nevertheless be entertained because it flows from what Svia argues is a
    far-reaching concession that first appeared in Northbridges factum on appeal.
    Svia says that
Becker
does not apply to this kind of circumstance.

[24]

It is true that

Becker
dealt with a different situation than that present in this
    case. In
Becker
, the appellant did not ask this court to consider an
    argument that it acknowledged was being made for the first time on appeal;
    rather, it argued that the trial judge had been required to consider a particular
    issue or theory and had erred in not doing so. The decision in
Becker
turned on what issues or theories a trial judge is obliged to consider, given
    the way a case is presented at trial. That said, the principle applied in
Becker
,
    that a trial judge does not err when he or she considers only the issues and theories
    actually articulated and advanced by the parties, and the principle that a
    party is generally foreclosed from raising entirely new issues on appeal, are
    closely linked: see
Becker
, at paras. 36-41.

[25]

The rationale for the general rule that
    appellate courts will not entertain an entirely new issue on appeal is that it
    is unfair to spring a new argument upon a party at the hearing of an appeal in
    circumstances in which evidence might have been led at trial if it had been
    known that the matter would be an issue on appeal. The party seeking to raise
    the new argument must persuade the appellate court that the facts necessary to
    address the point are before the court as fully as if the issue had been
    raised at trial, a burden more easily met if the issue is one of law. The decision
    whether to grant leave to allow a new argument is discretionary, guided by the
    balancing of the interests of justice as they affect all parties:
Kaiman
    v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[26]

The Statutory Condition 8 argument is aptly
    described as entirely new. It was not raised before the application judge. It
    was not referred to in, and is inconsistent with, Svias factum on appeal, in
    which Svia both conceded that there had been late notice and characterized the
    issue on appeal as whether the application judge erred in refusing to grant
    relief from forfeiture. Additionally, the Statutory Condition 8 argument does
    not raise an issue of law alone. The argument turns on the interpretation of
    the Policy, which is a question of mixed fact and law.

[27]

Nevertheless, Svia justifies the timing of its
    new argument by reference to a concession it says first appeared in
    Northbridges factum on appeal. The concession was that although Statutory
    Condition 8 gave Svia a right to provide notice, it imposed no obligations on
    Svia; Svia did not breach any obligation it had under the Policy in giving
    Northbridge notice when it did; and thus, there was no forfeiture arising from
    a breach by Svia for the court to relieve. Svia maintains that this is a
    concession of all points necessary for a finding in its favour. On Svias approach,
    it would be unjust for this court not to give effect to what it maintains are
    the legal consequences of this concession.

[28]

In the unusual circumstances of this case, I
    would exercise the discretion to consider the Statutory Condition 8 Argument on
    its merits. I would do so for two reasons. First, we heard extensive oral
    submissions from the parties on the Statutory Condition 8 argument, before
    Northbridge asked for, and obtained, the opportunity to object to the argument
    as new. Second, Svias justification for advancing an entirely new argument on
    appeal, and the merits of the new argument, are tightly interwoven. One cannot
    assess Svias claim, that the new argument ought to be entertained because it
    flows from a complete concession of liability first appearing in Northbridges
    factum on appeal, without considering the scope of the concession and comparing
    that to what is necessary, under s. 132 of the
Insurance Act
,
to
    find Northbridge liable to Svia.

The Merits of the Argument

[29]

As noted above, Svia maintains that Northbridge
    has conceded all the ingredients necessary to find that it is liable to Svia. I
    disagree. I read Northbridges concession to be limited to pointing out that
    although Statutory Condition 8 gave Svia a right to give notice, it imposed no
    obligation on it to do so, and therefore Svia did not breach any obligations under
    the Policy that needed to be relieved against.
[3]
I do not read it as a concession that
139 Limited
did not breach the
    Policy, that
139 Limiteds
breach should be relieved against or, most
    importantly, that without relief from
139 Limiteds
breach, Svias
    application could or should succeed.

[30]

The language of s.
    132 (1) of the
Insurance Act
demonstrates that it is those non-conceded
    items that matter, as the central question is whether the insured (here 139
    Limited) would have had a valid claim to coverage if it had satisfied the
    judgment. In
The Sovereign General Insurance
    Company v. Walker,
2011 ONCA 597, 107 O.R. (3d)
    225, at para. 13, this court stated:

The concluding words of s. 132(1)  subject
    to the same equities as the insurer would have if the judgment had been
    satisfied  are important. Persons  seeking recovery under s. 132 can stand
    in no better position than the insured. So, if the insurer  had a defence
    against its insured  that defence would apply to the [s. 132 claimants] claim
    [Citation omitted.].

[31]

The question of whether 139 Limited breached the
    Policy provisions concerning notice requires interpretation of the Policy. In
    that process, meaning must be given, if possible, to both Liability Condition 5
    and Statutory Condition 8. An insurance policy, like any contract, must be read
    as a whole; interpretations that render any term of the contract meaningless
    are to be avoided. Similarly, an interpretation which defeats the intentions
    of the parties and their objective in entering into the commercial transaction
    in the first place should be discarded in favour of an interpretation of the
    policy which promotes a sensible commercial result:
Consolidated-Bathurst
    v. Mutual Boiler
, [1980] 1 S.C.R. 888, at p. 901.

[32]

Liability Condition 5 required the insured, 139
    Limited, to give Northbridge timely notice of an action against it. In relevant
    part, it provides that If a claim is made or action is brought against any
    Insured, you [that is, 139 Limited] must see to it that we [Northbridge] receive
    prompt written notice of the claim or action. Liability Condition 5 supplements
    that requirement with obligations that 139 Limited provide Northbridge with copies
    of any legal papers received by 139 Limited in connection with the claim or
    action, authorize Northbridge to obtain records and information, and cooperate
    in the defence of the claim or action.

[33]

The purpose of a notice provision (like
    Liability Condition 5) in a liability insurance policy is to make [the
    insurer] aware of a claim against its insured so that it has the
timely
opportunity to deal with it.  Typically, once served with notice, [the
    insurer] will have to open a file, retain an adjuster, and take any other steps
    necessary to respond to the claim against its insured:
Sovereign
, at
    para. 35 [Emphasis added.].

[34]

Statutory Condition 8 of the Policy does not by
    its language, completely override or displace Liability Condition 5. Rather,
    Statutory Condition 8 expands the category of persons who may give notice to
    the insurer if the insured is absent, unable to provide notice, or refuses to
    do so. It provides:

Notice of loss may be given and proof of loss
    may be made by the agent of the Insured named in the contract in case of
    absence or inability of the Insured to give the notice or make the proof, and
    absence or inability being satisfactorily accounted for, or in the like case,
    or if the Insured refuses to do so, by a person to whom any part of the
    insurance money is payable

[35]

The application judge held that Svia was a
    person who came within the concluding words of Statutory Condition 8, and was a
    proper party to provide notice. Northbridge does not contest that conclusion. Therefore,
    Northbridge could not ignore Svias notice on the sole basis that it came from
    a person who was not the insured. Northbridge had to treat such a notice as
    though the insured, 139 Limited, had provided it.

[36]

Nevertheless, Statutory Condition 8 did not detract
    from the right of Northbridge, or the obligation of 139 Limited, that any notice
    that was provided be timely, as contemplated by Liability Condition 5. The
    provision of a notice by Svia under Statutory Condition 8 partially cured the
    failure of 139 Limited to provide notice, in the sense that before Svias
    notice, 139 Limited had not provided any notice. But it did not fully cure the
    default, as it did not make the notice timely. Since the notice was not
    provided until 2017, it was not timely within the meaning of Liability
    Condition 5; the fact that Svia provided the notice under Statutory Condition 8
    does not alter that conclusion.

[37]

I would reject Svias argument that reading the
    Policy this way makes Statutory Condition 8 meaningless. On the contrary, it
    has an important meaning. It confers a right on third parties, such as Svia, to
    give notice and deprives the insurer of the ability to ignore a notice on the
    sole basis that its insured did not give it. It requires the insurer to treat
    the Statutory Condition 8 notice as though the insured provided it at that time.
    In a case where a Statutory Condition 8 notice is timely, it would fully deprive
    the insurer of a right to complain of a failure of its insured to provide
    timely notice. In a case where a Statutory Condition 8 notice was late, but no
    prejudice to the insurer arose, the Statutory Condition 8 notice and other
    relevant factors may be sufficient for the court to relieve from any forfeiture
    arising from the insureds breach of the Policy. The fact that the Statutory
    Condition 8 notice does not have either effect on the facts of this case does
    not mean the provision was meaningless. It is not necessary, in order to give Statutory
    Condition 8 meaning, to read it as requiring the insurer to treat a notice as
    proper no matter when it was received, even one coming so late that it deprives
    the insurer of all opportunities that timely notice of a claim is intended to
    provide.

[38]

On the other hand, reading Statutory Condition 8
    as Svia proposesmaking incontestable a Statutory Condition 8 notice regardless
    of when it was givenwould seriously undermine the value to the insurer of Liability
    Condition 5 and its requirement of timely notice. The premise, accepted by the
    parties in this court, was that Svia could give a Statutory Condition 8 notice
    because it was a person, other than the insured, to whom any part of the
    insurance money is payable, as Svia had a claim against the insured that fell
    within the terms of coverage the Policy afforded. As this was a liability
    policy, the same premise would apply to any other person who had a claim against
    139 Limited that was covered by the Policy. Accordingly, a consequence of
    Svias proposed interpretation would be that for any claim coming within the
    terms of coverage there would always be a person who could provide notice without
    regard to timeliness and thereby render the insurer liable, even where the
    insurer was not afforded the opportunity to defend the claim against its
    insured. Given the important relationship of a provision like Liability
    Condition 5 to the insurers right to meaningfully respond to an action against
    its insured, such an interpretation would not yield a sensible commercial
    result.

[39]

The question on a s. 132 application is whether
    the insurer would have a defence to a claim by its insured if the insured had
    satisfied the judgment. If 139 Limited had satisfied Svias judgment, Northbridge
    would have had a defence to 139 Limiteds claim for indemnity under the Policy
    on the basis that the first notice it received of the 2008 Action (the notice
    from Svia) was nine years after the action commenced and therefore was not
    timely notice, in breach of 139 Limiteds obligations under the Policy.

[40]

Svia can stand in no higher position than 139
    Limited. The Statutory Condition 8 argument must therefore be rejected.

(2)

The Lack of Prejudice Argument

[41]

Svias argument that the application judge erred
    when he held that Northbridge had been prejudiced by late notice of the 2008
    Action fails on the application judges findings of fact. The notice Northbridge
    received came well after 139 Limiteds defence had been struck out, discoveries
    had been conducted, and 139 Limited had been noted in default. The application
    judge rejected the contention that Northbridge would have denied coverage for
    the claim for resultant damages, and would have declined to participate in the
    defence of the action, even if it had received timely notice. He rejected Svias
    contention that the denial of coverage letter should be read that way, or that other
    evidence on the application supported that view. Instead, he found that Northbridge
    was denied the opportunity to carry out a timely investigation into the claim
    for resultant damages, and to participate in the discovery process, and that by
    the time it received notice, the limitation period for bringing an action for
    contribution and indemnity against other parties who might be liable had
    expired. In all these respects Northbridge had suffered significant prejudice. These
    findings were open to the application judge and are supported by the record.

[42]

I would therefore reject the lack of prejudice
    argument.

(3)

The Wrong Perspective Argument

[43]

Svia argues that the application judge should
    have considered relief from forfeiture solely from the perspective of Svia and based
    on its conduct, rather than from the perspective of 139 Limited and based on its
    conduct. For example, it argues that the application judge should have
    considered what Northbridge would have done differently if it received earlier
    notice from Svia, and contends that Northbridge would have ignored that notice
    and cannot be said to have been prejudiced by the timing of the notice
    Northbridge actually received from Svia.

[44]

Northbridge objects to this argument as one
    that is entirely new. Svia submits that this is not an entirely new argument,
    as relief from forfeiture and the factors relevant to it were in issue before
    the application judge. Given the disposition I would make of the argument, it
    is unnecessary to resolve the debate between the parties about the extent to
    which Svia put its case this way to the application judge.

[45]

Svias argument founders on the requirement that
    in a s. 132 application the court is to apply the
same
equities as would
    apply if the insured had satisfied the judgment and was itself claiming the
    insurance moneys from the insurer. If that had occurred here, the court would
    have considered the conduct of 139 Limitedits failure to provide timely notice,
    why that occurred, and the effect that had on Northbridgeas equities in
    deciding whether to grant relief from forfeiture. That is exactly what the
    application judge was required to do in evaluating Svias claim on the required
    basis that Svia could stand in no higher position than 139.

[46]

I would therefore reject the wrong perspective
    argument.

CONCLUSION

[47]

For these reasons I would dismiss the appeal.

[48]

I would award Northbridge its costs of the
    appeal fixed in the agreed amount of $18,000 inclusive of disbursements and
    applicable taxes.

Released: PR October 29, 2020

B.
    Zarnett J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. B.W. Miller J.A.

[1]
Svias counsel had, shortly before sending this notice, learned of
    the existence of the Policy from one of the other defendants in the 2008
    Action.

[2]
Svia argues that the Non-Waiver Agreement also reflected that
    notice had been given by 139 Limited. Svia does not contend that any notice by
    139 Limited preceded the notice given by Svia in April 2017, so nothing turns
    on this point.

[3]
The statements were made in the context of an argument by
    Northbridge that in seeking relief from forfeiture, Svia was seeking relief
    from the consequences of a breach by the insured, not its own breach, and that
    this informed from whose perspective relief should be considered.


COURT OF APPEAL FOR ONTARIO

CITATION: W.D.M. v. Native Child and Family
    Services of Toronto, 2020 ONCA 641

DATE: 20201014

DOCKET: C68533

Juriansz, Hourigan and Thorburn
    JJ.A.

BETWEEN

W.D.M.

Plaintiff (Appellant)

and

Native Child and Family Services
    of Toronto, Hatts Off Specialized Services, Hanrahan Youth Services, Her
    Majesty the Queen in Right of Ontario and Toronto Police Services

Defendants (Respondents)

W.D.M., acting in person

Daniel Mayer, for the respondents Her
    Majesty the Queen in Right of Ontario and the Public Guardian and Trustee

Heard: In writing

On appeal from the order of Justice Lorne
    Sossin of the Superior Court of Justice, dated May 20, 2020.

REASONS FOR DECISION

[1]

This is a request by Her Majesty the Queen in Right
    of Ontario and the Public Guardian and Trustee for an order under rr. 2.1.01(6)
    and 2.1.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
    dismissing this appeal because it appears, on its face, frivolous or vexatious
    or otherwise an abuse of the process of the court. The appellant was afforded
    an opportunity to respond and has done so.

[2]

The Notice of Appeal, the request under r.
    2.1.01(6), the request record, and the appellants written response were placed
    before this panel. Upon consideration of these materials, we are satisfied this
    appeal is frivolous and should be dismissed under r. 2.1.01(1).

[3]

In his one-page response the appellant does not
    make any substantive argument why the appeal is not frivolous, vexatious, or
    abusive. Instead, he states the request is based on issues already rectified
    before filing and does not contain anything relevant to strike an appeal under
    a rule where a decision is being appealed because of a decision under that
    rule. He further states that the court should apply
Wouters 2018-ONCA-26
wherever it may be applicable.

[4]

The background of this appeal is as follows. The
    appellant was the plaintiff in two personal injury actions commenced by
    litigation guardian when he was a minor. Upon attaining majority, the appellant
    dismissed his counsel and commenced more than 20 additional lawsuits against
    various defendants including several telecommunications companies, Ryerson
    University, Native Child and Family Services of Toronto, the Toronto Police
    Services Board, Toronto Pearson International Airport, Toronto Catholic
    District School Board, the United Kingdom Home Office, and the United States
    government.

[5]

In January 2016, Mew J., as the case management
    judge for the appellants lawsuits, ordered the appellant to undergo a capacity
    assessment. Pursuant to the assessment, he declared the appellant a party under
    disability under r. 7.04 of the
Rules of Civil Procedure
, appointed the
    Public Guardian and Trustee as the appellants litigation guardian for some of
    the appellants lawsuits, and stayed the remaining lawsuits on the grounds they
    appeared frivolous.

[6]

Despite Mew J.s finding the appellant was a
    person under disability, he continued to initiate legal proceedings by himself
    without leave of the court. Almost all of these proceedings have now been dismissed
    or stayed as frivolous, vexatious, or abusive under r. 2.1.01 of the
Rules
    of Civil Procedure
, or on consent.

[7]

Subsequently, a capacity assessor under the
Substitute
    Decisions Act, 1992
, S.O. 1992, c. 30 found the appellant to be incapable
    of managing his property. As a result, the Public Guardian and Trustee became
    the statutory guardian of the appellants property as well as his litigation guardian.

[8]

In June 2017, the Consent and Capacity Board
    overruled the capacity assessors determination and found the appellant capable
    of managing his property. Following this, the appellant sought the removal of
    the Public Guardian and Trustee as his litigation guardian. Myers J., then case
    management judge, refused his request and continued the litigation guardianship
    of the Public Guardian and Trustee. He pointed out that the assessment of
    disability for litigation purposes involves somewhat wider considerations than
    those before the Consent and Capacity Board. He provided a detailed and
    sensitive explanation for his finding that the appellant remained a party under
    disability within the meaning of r. 7.04 of the
Rules of Civil
    Procedure
.

[9]

Myers J. also noted the appellants consent for
    the dismissal of all but four of the proceedings brought by him.

[10]

On May 20, 2020, Sossin J., as the new case
    management judge, stayed another action the appellant had brought against the
    Toronto Police Services Board, Native Child and Family Services of Toronto, and
    others as frivolous, vexatious, or abusive. In its reasons for the stay the
    court relied in part on the decision of Myers J. dated March 29, 2017, which
    was issued before the Consent and Capacity Boards decision finding the
    appellant capable of managing his property. Sossin J. issued a further
    endorsement confirming his May 20, 2020 decision. In this second endorsement
    Sossin J. referred to and quoted at length from Myers J.s subsequent decision
    confirming that the appellant continued to suffer a disability for the purpose
    of r. 7.04 of the
Rules of Civil Procedure

despite his
    ability to manage his own property.

[11]

The appellants prolix Notice of Appeal states it
    is appealing the May 20, 2020 order of Sossin J. but includes in its style of
    cause the names of 16 defendants to the various actions the appellant has
    filed. In its 19 pages it appears to challenge various orders issued from 2015
    onwards in the 25 or so proceedings commenced by the appellant.

[12]

The Notice of Appeal, for the most part, is not
    intelligible and seems to claim relief that this court cannot grant. While it
    states the appeal is from the May 20, 2020 decision of Sossin J., it seeks
    relief in the appellants previously stayed and dismissed actions. The one
    discernible matter is that the appellant does not want the Public Guardian and
    Trustee to be his litigation guardian and he wants his previously dismissed actions
    reinstated so that he can represent himself in them.

[13]

Leaving aside all of the technical deficiencies
    in the Notice of Appeal, there is no prospect whatsoever that the appellant
    could succeed in having any of the Superior Court of Justices decisions appointing
    or maintaining the Public Guardian and Trustee as his litigation guardian set
    aside in this appeal. This is readily apparent on the face of the Notice of
    Appeal itself. The appellants drafting of the Notice of Appeal demonstrates
    that he is incapable of representing himself. The appeal proceeding initiated
    by the Notice of Appeal cannot possibly succeed or even place a justiciable
    appeal before the court. An appeal that cannot succeed is frivolous.

[14]

The appeal is dismissed pursuant to r. 2.1.01(1)
    of the
Rules of Civil Procedure.
There will be no order as to costs.

[15]

We have issued this decision using the names of
    the defendants in the style of cause of the May 20, 2020 order from which the
    Notice of Appeal states it is appealing.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Walters v. Nusseiri, 2020 ONCA 615

DATE: 20201002

DOCKET: C66495

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Errol M. Walters

Plaintiff/Defendant by Counterclaim

(Appellant)

and

Lubna (a.k.a. Susan) Nusseiri

Defendant/Plaintiff by Counterclaim

(Respondent)

Harvey A. Swartz, for the
    appellant

Sukh Jagpal, for the
    respondent

Heard: in writing

On appeal from the judgment
    of Justice Cynthia Petersen of the Superior Court of Justice, dated January 2, 2019,
    with reasons reported at 2019 ONSC 22.

REASONS FOR DECISION

Introduction

[1]

The appellant, Errol Walters, appeals from the trial judges decision
    dismissing his action claiming entitlement to a share of the proceeds of sale
    of a residential property in Brampton, Ontario (the Property), and granting
    the respondent, Lubna Nusseiris, counterclaim to the proceeds based on a
    resulting trust.

Background Facts

[2]

The appellant and the respondent were involved in a relationship. They
    met in 2001 and never married. The nature of the relationship was in dispute. The
    respondent claimed he was a committed common law spouse who contributed
    financially to the initial purchase of the Property and to the carrying costs
    of the mortgage, property tax and utilities during the time that he lived there.
    The appellant claimed that she was an exploited sex worker and that the respondent
    was a controlling pimp who took her earnings and lived off of them.

[3]

The respondent purchased the Property in her name alone on July 29, 2005.
    Title was then transferred to both parties as joint tenants two months later on
    September 28, 2005. The trial judge found that the Property was the appellants
    principal residence from 2005 until 2009, when the parties ended their
    relationship and the appellant moved out. The Property was then sold in 2016.

[4]

When the Property was sold, the respondent received half of the proceeds
    of the sale. A dispute arose over the entitlement to the other half of the
    proceeds, an amount of $169,774.01. The appellant claimed that he was entitled
    to this share of the proceeds because he was a registered 50 percent owner of
    the Property. For her part, the respondent counterclaimed that the transfer of
    title in the Property to the appellant was invalid because of duress or undue
    influence. In the alternative, she argued that since the transfer to the
    appellant was gratuitous, he held his interest in the Property for her benefit,
    based on the doctrine of resulting trust.

Trial Judges Decision

[5]

After a three-day trial, the trial judge dismissed the appellants claim
    and concluded that his half interest in the Property was held in trust for the
    respondents benefit. She granted the respondents counterclaim and ordered
    that the other half of the proceeds of sale be released to her immediately. The
    trial judge found it unnecessary to deal with the respondents argument that
    the transfer was invalid because of undue influence or duress.

[6]

In very detailed and comprehensive reasons, the trial judge found that
    the appellant controlled the activities of the respondent and exploited her
    financially, living in the Property without contributing anything to expenses.
    She described the appellant as a domineering and parasitic partner and
    specifically found that the appellant confiscated the respondents income from
    sex work until he moved out in 2009.

[7]

The trial judge went on to find that the appellant made no contribution
    to the initial purchase of the Property in July 2005 and that the respondents
    transfer of 50 percent of her ownership interest to the appellant gave rise to
    a presumptive resulting trust. The trial judge held that the presumption had
    not been rebutted since the appellant led no evidence that the respondent
    intended to transfer the half interest to him as a gift.

[8]

Although the appellant did not advance a constructive trust claim, the
    trial judge also considered whether he was entitled to half or some other share
    of the proceeds because of his contributions to renovations to the Property.
    She concluded that there was no basis to impose a constructive trust in the
    appellants favour, because his work on the Property did not unjustly enrich
    the respondent.

Issues on Appeal

[9]

On appeal, the appellant argues that the trial judge erred by:

(i)

misapprehending the principles of resulting trust and the presumption of
    advancement;

(ii)

accepting
    the respondents evidence, even though she found that the respondent had
    exaggerated during her testimony;

(iii)

ignoring
    evidence that the appellant had contributed financially to the down payment for
    the Property;

(iv)ignoring evidence from a real estate lawyer who
    testified that one of the parties told him that the appellant and respondent
    had been cohabiting for more than three years before the purchase of the
    Property;

(v)

ignoring
    the appellants financial contributions to the mortgage on the Property until
    he moved out in 2009; and

(vi)ignoring the evidence of the appellant and his
    father that they made numerous improvements to the Property.

Analysis

[10]

We
    do not accept any of the appellants arguments. In our view, the appellant is
    inviting this court to retry the case by asking this court to revisit many of
    the careful factual findings made by the trial judge. Those findings of fact
    are owed deference, and we see no basis to interfere with them. Each of the
    appellants arguments can be dealt with briefly.

[11]

First,
    the trial judge did not misapprehend the principles of resulting trust and the
    presumption of advancement. Her reasons carefully track the jurisprudence on
    the presumptions of resulting trust and advancement from the Supreme Court of
    Canada:
Kerr v. Baranow
, 2011 SCC 10, [2011] S.C.R. 269, at para. 20;
Pecore
    v. Pecore
, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24. She concluded
    that the presumption of resulting trust applied to these unmarried parties
    because there was a gratuitous property conveyance between them. The trial
    judge also examined s. 14 of the
Family Law Act
, R.S.O. 1990, c.F.3,
    and held that the presumption of joint tenancy did not apply. The parties were
    never married nor were they spouses within the meaning of the Act. We have not
    been directed to any error in the trial judges review of the principles that
    would justify this courts intervention.

[12]

Second,
    although the trial judge found that the respondent had a tendency for hyperbole,
    she was perfectly entitled to prefer the respondents evidence over the
    evidence of the appellant. Nor did the trial judges finding mean that she was
    required to wholly reject the evidence of the respondent. A trial judge can believe
    some, none or all of a witnesss evidence. We see no error in her credibility
    assessment.

[13]

Third,
    the trial judge did not ignore the appellants evidence that he had contributed
    to the down payment of the Property. She considered the appellants claim and expressly
    rejected it. In rejecting his evidence, the trial judge considered the
    testimony of both parties and the documentary evidence. She rejected the
    appellants contention that he used insurance benefits in connection with two
    separate motor vehicle accidents to contribute to the purchase. Indeed, the
    trial judge made very strong findings of credibility against the appellant and
    concluded that his evidence was riddled with internal contradictions, multiple
    inconsistencies, frequent implausibility and apparent fabrication. These findings
    were clearly open to her.

[14]

Fourth,
    the trial judge did not ignore the evidence from the solicitor who handled the
    real estate transactions of the Property in 2005. The appellant led evidence
    from the solicitor to establish that he was in a common law relationship and
    cohabitating with the respondent since 2002. According to the solicitor, he was
    told that the parties had been living in a common law relationship for over three
    years before the purchase of the Property in 2005. The trial judge noted that
    the fact that the solicitor was told by one of the parties that they were
    common law spouses was an out-of-court hearsay statement, and not proof that
    they were indeed spouses. Instead, the trial judge rejected the appellants
    position that he was in a common law marriage with the respondent since 2002. She
    accepted the respondents testimony that the appellant misrepresented their
    status to the solicitor in order to avoid paying land transfer taxes. The
    solicitor confirmed in his evidence that taxes would have been imposed had the
    parties not been common law spouses.

[15]

Fifth,
    the trial judge did not ignore the appellants evidence that he made financial
    contributions to the mortgage on the Property until he moved out in 2009. Again,
    the trial judge expressly rejected this evidence because she found the
    appellant had no employment income throughout the entire relationship and that
    the appellant lived solely from the earnings of the respondent.

[16]

Finally,
    the trial judge did not ignore the evidence of the appellant and his father
    that they made numerous improvements to the Property. The trial judge
    considered this evidence in dealing with a possible constructive trust claim. The
    trial judge assessed the appellants claim that he did some exterior stone
    work, refinished a deck, replaced a closet door, put up walls in the basement
    and built a fireplace in the living room. The trial judge found that there was
    insufficient evidence to establish that this work enhanced the value of the Property
    and noted that all the work had to be redone after the appellant moved out in
    2009. Her conclusion that there was no basis to find that the respondent was
    enriched by the appellants work on the Property was fully supported by the
    evidence.

Disposition

[17]

The
    appeal is dismissed. The parties may make brief submissions of two to three
    pages on costs within ten days of the release of this decision.

S.E. Pepall J.A.

M.L. Benotto J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: White v. 6975429 Ontario Inc.,
    2020 ONCA 627

DATE: 20201006

DOCKET: C67537 & C67538

Pepall, Benotto and Coroza JJ.A.

C67537

BETWEEN

Kenneth White, Jacqueline Chepurnyj and Brenda Innes

Plaintiffs (Respondents)

and

6975429 Ontario Inc. carrying on business as Engreen Inc. and
    Anthony Guido

Defendants (Appellants)

C67538

AND BETWEEN

Albino
    Armanasco and Anthony Fusco

Plaintiffs

(Non-Parties
    to Appeal)

and

Brenda Innes, Kenneth White and
    Jacqueline Chepurnyj

Defendants

(Respondents/Appellants
    by way of Cross-Appeal)

and

2402169 Ontario Inc., Engreen Inc.
    and Anthony Guido

Third
    Parties (Appellants)

(Appellants/Respondents
    by way of Cross-Appeal)

James Zibarras, for the appellants/respondents
    by way of cross-appeal

Christophe Shammas and Tamara Watson,
    for the respondents/appellants by way of cross-appeal

Heard: September 21, 2020 by video conference

On
    appeal from the orders of Justice William S. Chalmers of the Superior Court of Justice,
    dated September 13, 2019 with reasons reported at 2019 ONSC 7455.

REASONS FOR DECISION

[1]

This appeal and cross-appeal arise from the sale of the shares of
    2402169 Ontario Inc. (240) by Kenneth White, Brenda Innes and Jaqueline
    Chepurnyj (the Innes Parties) to 6975429 Ontario Inc., carrying on business
    as Engreen Inc. (Engreen). Anthony Guido (Guido) is the principal of
    Engreen.

[2]

The only assets of 240 were a quarry, the licence to operate it and
    related equipment. The terms of the share purchase involved a sale price of
    $1,610,000, a promissory note signed by Engreen, a personal guarantee signed by
    Guido, and an agreement by Engreen to assume the obligations of 240 with
    respect to three mortgages on the property. Engreen and Guido also agreed to
    indemnify the Innes Parties for all liabilities in connection with the
    mortgages.

[3]

Prior to the closing of the transaction, the appellants were provided with
    a bill of sale that described the equipment 240 owned and that it had been acquired
    on an as is condition from a third party.

[4]

Engreen did not make the payments required by the share purchase
    agreement including the payments on the first mortgage held by Albino Armanasco
    and Anthony Fusco.

[5]

The Innes parties brought an action in Newmarket for damages arising
    from breach of the agreement. Engreen and Guido defended the action on the
    basis that they were induced to enter the agreement by misrepresentations made
    by the Innes Parties. They also counterclaimed asserting that the respondents
    had breached the agreement because they failed to deliver equipment that was in
    working order.

[6]

Meanwhile Armanasco and Fusco brought an action in Toronto against the Innes
    Parties for payment of the first mortgage. They obtained judgment against the
    Innes Parties for $577,893.07 plus interest and costs. It was also a term of
    the judgment that - in accordance with the security provided in the mortgage  Innes
    and Chepurnyj deliver possession of their homes to Armanasco and Fusco. The
    Innes Parties brought a third-party action against Engreen, Guido and 240 for
    contribution and indemnity.

[7]

The Newmarket action and the third-party action in the Toronto action
    became the subject matter of two summary judgment motions heard together.

Decision Below

[8]

In the Newmarket action, the motion judge granted judgment against
    Engreen and Guido for $1,477,200 plus interest and dismissed their counterclaim.
    He held that the various agreements were valid, and that Engreen and Guido were
    not induced to enter into these agreements by any misrepresentation.

[9]

In the Toronto action, the motion judge held that Engreen and Guido
    breached their agreement to assume all obligations and indemnify the Innes
    Parties in relation to the Armanasco/Fusco mortgage. He declared that the Innes
    Parties were entitled to contribution and indemnity from Engreen and Guido for
    all costs, claims, payments, and demands in relation to the judgment against
    them. Although the motion judge gave no reasons with respect to the Innes Parties
    claim for contribution and indemnity against 240, the claim was dismissed.

The Appeal

[10]

Before the motion judge, Engreen and Guido raised several bases
    for misrepresentation. On appeal, they relied only on the allegation that the condition
    of the equipment was misrepresented as being in good working order.

[11]

They submit that the motion judge erred in his interpretation of
    the agreement by failing to consider the circumstances surrounding the
    agreement when he concluded that there was no representation in the Agreement
    that the equipment [was] in good working order. They point to various factors that
    should have been considered, including: the definition of equipment in the
    agreement, Engreens intention to use the equipment to operate the quarry, the
    requirement to deliver keys to Engreen and Engreens intention to have a turn
    key operation. They submit that these factors support their allegation that
    the Innes Parties misrepresented the condition of the equipment and that they
    relied on the misrepresentation. They also complain of the motion judges
    reference to the terms of the agreement being just as consistent with a
    transfer of the equipment on an as is basis.

[12]

We do not accept these submissions.

[13]

The
    motion judge considered the surrounding circumstances. He addressed the factual
    matrix and specifically found that there was no misrepresentation as to the
    condition of the equipment. A plain reading of the agreement, including the
    entire agreement clause and the express list of warranties and
    representations, which made no reference to the condition of the equipment,
    support his conclusion. The as is reference in his reasons must be read in
    that context. It certainly does not mean the motion judge found ambiguity in
    the contract. We see no legal error and the motion judges interpretation of
    the agreement is entitled to deference.

The Cross-Appeal

[14]

The

motion judge
    provided no reasons for the dismissal of the Innes Parties claims in relation
    to 240. This aspect of the appeal is not capable of review. There was no
    consideration of the request for a declaration for an indemnity from 240, be it
    at law or in equity. The claim against 240 is therefore remitted to the motion
    judge for determination.

Disposition

[15]

The
appeal is dismissed. The cross-appeal
    is allowed and remitted back to the motion judge. Costs are payable to the
    Innes Parties in the amount of $20,000 inclusive of disbursements and HST.

S
.E. Pepall J.A.

M.L.
    Benotto J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Whitby (Town) v. G & G 878996
    LM Ltd., 2020 ONCA 654

DATE: 20201019

DOCKET: C66211

Hourigan, Trotter and Jamal JJ.A.

BETWEEN

The Corporation of the Town of Whitby

Applicant

(Respondent in Appeal)

and

G
    & G 878996 LM Ltd.

Respondent

(Appellant)

John A. Annen, for the appellant

R. Andrew Biggart and Natalia Sheikh
    for the respondent

Heard: October 13, 2020

On
    appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice,
    dated October 26, 2018.

REASONS FOR DECISION

[1]

The appellant, G&G 878996 LM Ltd.
    (G&G), owns a multi-story, mixed-use commercial/residential building in
    downtown Whitby with the municipal address of 123,125 and127 Brock Street South
    (123). On April 2, 2015, a fire occurred at an adjacent building, 121 Brock
    Street South (121), which resulted in 121 being demolished, except for 121s
    wall adjoining G&Gs property.  This adjoining wall was eventually removed
    with the approval of the respondent, the Corporation of the Town of Whitby
    (Whitby).

[2]

Whitbys Chief Building Official (CBO) later determined
    that 123s north wall, which had previously abutted 121, constituted an
    immediate danger to occupants and the public-at-large. Pursuant to her
    authority under s.15.10 of the
Building Code Act
,
1992
, S.O.
    1992, c. 23, (the Act), the CBO issued two emergency orders dated November
    30, 2017 and December 1, 2017, to eliminate the immediate danger posed by the
    exposed wall. Whitby then spent $335,089.86 to protect the public and effect
    repairs to terminate the danger.

[3]

Following the issuing of an emergency order
    under s. 15.10 of the Act, a CBO must apply to a judge of the Superior Court to
    confirm the order. On such an application, the court must confirm, modify, or
    rescind the order. It must also determine whether the amounts spent to
    terminate the danger may be recovered in whole, in part, or not all.  In the
    case at bar, the application judge confirmed the emergency orders and ordered
    that Whitby could recover from G&G its full costs in taking steps to
    terminate the immediate danger, as well as its costs of the application.

[4]

The primary ground of appeal is that the application
    judge erred in failing to consider whether the doctrine of equitable set-off
    applied in determining whether the amounts spent by Whitby were recoverable
    from G&G. G&G submits that equitable set-off is applicable because it
    has a claim against Whitby for failing to enforce an order it made against the
    owner of 121 to, among other things, repair the foundation walls, stone rubble
    footings and slab on grade that were exposed to the elements as a consequence
    of the fire and the building being demolished. It also submits that the
    application judge erred in law by approaching the case on the basis that it is
    analogous to an environmental damage claim. Finally, G&G submits that the
    application judge made her order based on an incomplete evidentiary record.

[5]

Whitby makes two submissions in response. First,
    it argues that, pursuant to s. 15.10 (9) of the Act, the application judges
    order is final and not subject to appeal. Second, it submits that this court
    should decline to consider G&Gs equitable set-off argument because it was
    not raised before the application judge.

[6]

We conclude that the appeal must be dismissed
    based on the second argument advanced by Whitby.

[7]

We reject the argument that the application
    judge incorrectly analogized the case at bar to an environmental damage claim.
    The comments of the application judge in that regard were part of a dialogue
    with counsel and not part of her reasons. Regarding the evidentiary record, no
    complaint was made by G&G on the return of the application about the state
    of the record. In any event, we are not satisfied that the record was
    insufficient for the application judge to make her order.

[8]

Regarding the equitable set-off argument, we
    note that G&G commenced an action against its insurers, Whitby, and the current
    and former owners of 121. In its statement of clam, which was an exhibit to the
    affidavit filed by G&G on the application, it alleged various acts of
    negligence by Whitby. However, at the hearing of the application, G&G did
    not argue that it was entitled to an equitable set-off. In her oral
    submissions, the then counsel for G&G referenced the claim but offered no
    details about its quantity. Instead of arguing equitable set-off, she submitted
    that [Whitby] should be estopped from collecting any of the funds expended on
    measures determining this perceived danger at that time.

[9]

In our view, G&G did not properly raise the
    issue of equitable set-off below. Generally, this court will not entertain
    entirely new issues on appeal because it is unfair to force a party on an
    appeal to respond when they might have adduced evidence below had they known
    that the matter would be an issue on appeal:
Kaiman v. Graham
, 2009
    ONCA 77, 245 O.A.C. 130, at para. 18.  This concern is heightened in the
    present case where G&G is seeking an equitable remedy, and we have a wholly
    inadequate evidentiary record to assess the equities of the case. Further, G&G
    has not explained why equitable set-off was not raised on the application. It
    would be contrary to the interests of justice to allow G&G to introduce
    this new argument on appeal. Consequently, it is unnecessary to consider Whitbys
    submission that the application judges order is immune from appeal.

[10]

The appeal is dismissed. G&G shall pay Whitby
    its costs of the appeal in the all-inclusive amount of $9,000.

C.W. Hourigan J.A.

Gary Trotter J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wilton v. Northern Bruce Peninsula
    (Municipality), 2020 ONCA 674

DATE:  20201026

DOCKET: C66314

Doherty, Paciocco and Coroza
    JJ.A.

BETWEEN

Shirley Wilton as an Estate
    Trustee of Anneliese Weiss

Appellant

and

Municipality of Northern Bruce
    Peninsula

Respondent

Shirley Wilton, acting in person

Nicholas Lovell, for the respondent

Heard: in writing

On appeal from the order of Justice Kofi
    N. Barnes of the Superior Court of Justice, dated November 2, 2018.

Paciocco J.A.:

OVERVIEW

[1]

Shirley Wilton appeals a judgment denying her
    application to set aside a 2016 municipal tax sale of a property at 19 Duke
    Lane, Lions Head, Ontario (19 Duke Lane). That property was registered under
    the
Registry

Act
,
    R.S.O. 1990, c. R.20,
in the name of her deceased parents, Frank
    and Anneliese Weiss, who purchased the property in 1968. Anneliese Weiss
    survived Frank Weiss. She lived until March 2005.

[2]

In the application now under appeal, Ms. Wilton
    contended that the municipal tax sale was null and void as the respondent, the
    Municipality of Northern Bruce Peninsula (the Municipality), had failed to
    give her notice of the tax sale, as required by law. The application judge
    dismissed the application, finding that the Municipality was not required by
    law to notify Ms. Wilton.

[3]

Ms. Wilton appeals that decision, arguing that
    the application judge erred in finding that the Municipality was not required to
    notify her of the tax sale. She also argues, for the first time on appeal, that
    the Municipality acted in bad faith by not furnishing her with notice. She asks
    this court to award her damages in the sum of $167,437.68, which she claims to
    be the fair market value of the property less the costs of sale.

[4]

Ms. Wilton brought the application, and now
    brings this appeal, as the Estate Trustee of Anneliese Weiss. Although she
    attests in her affidavit in support of the application to being the
    executor/trustee of the estate of Anneliese Weiss, Ms. Wilton has not filed
    documentation confirming her appointment as executor or trustee. I would nonetheless
    address her appeal on its merits. I would dismiss the appeal on the simple
    basis that the Municipality complied with its notice obligations and owed her
    no duty that it could have breached in bad faith.

MATERIAL FACTS

[5]

Ms. Wilton did not have a registered interest in
    19 Duke Lane when the tax sale was underway, or at any other time. She was never
    shown as an owner of the property on municipal tax assessment rolls. Nor did
    she file a notice of change of address with the Municipality, linking 19 Duke
    Lane to her personal address. Further, no documents relating to the estate of
    either Frank or Anneliese Weiss were lodged on title.

[6]

Ms. Wiltons claim that she was nonetheless
    entitled to notice is closely linked to evidence, presented during the
    application, that municipal employees were aware that: (1) in early 2009, Ms.
    Wilton arranged for the payment of the tax arrears on 19 Duke Lane that were
    outstanding at that time; (2) in related email correspondence with municipal
    employees, she referred to the Weiss estate and sought receipts in the name
    of the estate; (3) in September 2012, she arranged for the Municipality to send
    prepayment authorizations to her personal address. She and her husband gave prepayment
    authorization for taxes owing on property they owned, but one such
    authorization was completed for 19 Duke Lane, which she signed as Trustee for
    Weiss Estate and returned to the Municipality; (4) in October 2012, she arranged
    for the variation of the pre-authorized payment amounts in correspondence that
    included her contact information; and (5) further correspondence was exchanged
    between January 2013 and September 2015 relating to pre-authorized payments.
    This most recent correspondence, exchanged after cheques received by the Municipality
    were declined for insufficient funds and the Municipality gave notice of its
    refusal to process further pre-authorized payments, contained Ms. Wiltons
    personal contact information.

[7]

The Municipality decided to pursue a tax sale of
    19 Duke Lane and retained the firm REALTAX Inc. to undertake the process. After
    the necessary searches were conducted and tax arrears were confirmed in the
    amount of $11,356.27, as of December 31, 2014, a Tax Arrears Certificate was
    registered on title on January 30, 2015. A copy of that certificate and a
    Notice of Registration of Tax Arrears Certificates were sent by registered mail
    to Frank and Anneliese Weiss at two addresses: the 19 Duke Lane address shown
    on the Municipal Assessment Roll, and the Kitchener, Ontario address shown in
    the registered title document that disclosed their interest in the 19 Duke Lane
    property. Duplicate notices were also sent to Frank and Anneliese Wiess at both
    addresses in their capacity as spouses of one another. A Statutory Declaration
    Regarding Sending of Notice was sworn. The registered letters were returned
    unopened.

[8]

In November 2015, the property search was
    updated, and final notices were sent to Frank and Anneliese Weiss at the same
    addresses, once again, both in their personal capacity and as spouses of one
    another. A second Statutory Declaration Regarding Sending of Notice was sworn, notices
    of the pending tax sale were published in regional newspapers and in the
    Ontario Gazette, and tenders were opened on March 3, 2016. The property was
    transferred to the successful tenderer on March 24, 2016.

THE ISSUES

[9]

The issues raised by Ms. Wilton can be fairly
    described as follows:

A.

Did the Municipality fail to comply with the statutory notice
    obligations?

B.

Did the Municipality breach its duty of good faith to Ms. Wilton?

ANALYSIS

A.

Did the
M
unicipality
    fail to comply with the statutory notice obligations
?

[10]

The required notice obligations relating to a
    tax sale are set out in the
Municipal

Act,

2001
,
    S.O. 2001, c. 25. Section 374 provides, in relevant part, that within 60 days
    of the registration of a tax arrears certificate, the municipality is required
    to send a notice of the registration of the certificate to the following
    persons. The provision then lists persons to whom the notice must be sent. Two
    are relevant to the 19 Duke Lane tax sale:

1. The assessed owner of the land.

3. Where the
Registry Act
applies to the land, every person appearing by the abstract index and by the
    index of executions for the area in which the land is situate to have an
    interest in the land on the day the tax arrears certificate was registered.

[11]

Additionally, s. 374(2) of the
Municipal

Act, 2001

requires that notice also be sent to the spouse of the
    person receiving notice.

[12]

Where the cancellation price remains unpaid 280
    days after the tax arrears certificate is registered, s. 379(1) requires the
    municipality to send a final notice to the same parties entitled to receive
    notice under s. 374.

[13]

Section 381(1) of the
Municipal

Act,
    2001
sets out how both notices are to be provided. It directs that any
    notice required may be given by personal delivery or be sent by certified or
    registered mail. It then describes where the notice may be sent to, by
    certified or registered mail, depending upon the party being given notice.
    Three possibilities are relevant:

(a) in the case of the assessed
    owner, to the address of the person as shown on the last returned assessment
    roll of the municipality;

(b) in the case of any person whose
    interest is registered against the land, to the address for service of the
    person furnished under the
Land Registration Reform Act

(d) in the case of a spouse of the
    person appearing by the records of the land registry office to be the owner of
    the land, addressed to the spouse of (name of person) at the usual or last
    known address of such spouse or, if unknown, at the address of the land.

[14]

As indicated, the Municipality sent notices by
    registered mail to Frank and Anneliese Weiss at the address shown on the Municipalitys
    last assessment roll, and at the address shown in the registered documents
    disclosing their interest in the land. Moreover, duplicate notices were sent to
    Frank and Anneliese Weiss at both addresses, in their capacity as spouses of
    one another.

[15]

Ms. Wilton argues that, despite this, the notice
    requirements under the
Municipal

Act, 2001

have not
    been satisfied based on s. 381(2) and s. 374(5) of the statute.

[16]

She relies on s. 381(2) to argue that since the
    registered letters were returned unopened, proper notice was not provided.
    Section 381(2) provides:

A statutory declaration made under
    subsection 374(3) or made under clause 379(2)(a) is proof in the absence of
    evidence to the contrary that the notices required to be sent were sent to the
    persons named in the statutory declaration and received by them.

[17]

It is Ms. Wiltons position that the return of
    the registered mail is evidence to the contrary, thereby rebutting the deemed
    receipt provided for in s. 381(2). In my view, even if this is correct, it
    would be immaterial to whether proper notice has been given.

[18]

In
Elliott v. Toronto (City)
(1999)
, 171 D.L.R. (4th) 64 (Ont. C.A.), leave
    to appeal refused, [1999] S.C.C.A. No. 244, Morden A.C.J.O. rejected a similar
    argument made under the now repealed
Municipal Tax Sales Act
, R.S.O.
    1990, c. M-60, the precursor legislation to the tax sale provisions now
    found in the
Municipal Act, 2001
. There are minor differences in
    wording between relevant provisions of the
Municipal Tax Sales Act
and
    the
Municipal Act, 2001
but those differences are not material. The
    operation of the relative provisions remains identical.

[19]

To explain why the return of the registered
    letters has no bearing on the sufficiency of the notice provided, I will quote
    what Morden A.C.J.O. said in
Elliott
, at para. 28, but replace the
Municipal
    Tax Sales Act
sections with their counterparts in the
Municipal Act, 2001
:

Whatever the full meaning and effect
    of this provision may be, it does not state that it is a requirement of the Act
    that the s. [374(1)] and s. [379(1)] notices to be legally effective must be
    received. Receipt is not a necessary element of the concept of send to (ss.
    [374(1) and 379(1)]) and would be inconsistent with s. [381(4)]. I can envisage
    that in some circumstances it might be useful to a municipality to submit that
    there was, in addition to the sending of the notice, receipt  and s. [381(2)]
    allows this submission to be made. [Citation omitted.]

[20]

Put otherwise, since ss. 374(1) and 379(1) do
    not require receipt before a notice that has been sent is effective, s. 381(2)
    has nothing to do with whether proper notice has been provided. Instead, it was
    enacted so that if a municipality found value in arguing receipt, they could
    rely on the evidentiary shortcut that s. 381(2) provides. Section 381(4), a
    provision that would lose meaning were we to accept Ms. Wiltons submission,
    strongly reinforces this outcome. It provides: Nothing in this Part requires
    the treasurer to ensure that a notice that is properly sent under this Part is
    received by the person to whom it was sent.

[21]

I therefore reject the submission that the
    return of the registered letters had any bearing on whether notice had been
    properly sent.

[22]

Nor does s. 374(5) of the
Municipal Act, 2001
assist Ms. Wilton. It provides:

A person is not entitled to notice under this
    section if,

(a)
after a reasonable search of the records mentioned in
    subsection 381(1), the treasurer is unable to find the persons address and the
    treasurer is not otherwise aware of the address;
or

(b) the
    person has expressly waived the right to notice, either before or after the
    notice should have been sent. [Emphasis added.]

[23]

Ms. Wilton appears to argue, based on the words
    underlined above, that s. 374(5)(a) imposes a duty on the Municipality to
    undertake a reasonable search of the records mentioned in s. 381(1) and to give
    notice at the addresses identified. This is a misreading of s. 374(5)(a). As
    the heading of the section, Limitation, reflects, s. 374(5) is a limitation
    on the statutory duty to give notice of a tax sale. It does not impose an
    additional statutory notice obligation of general application. The plain
    meaning of s. 374(5) is that it operates where the address of a person entitled
    to notice is not disclosed by the records identified in s. 381(1). Where this
    is so, and the treasurer is not otherwise aware of the address, any otherwise
    operative right to receive notice pursuant to ss. 374(1) and 379(1) is lost.
    Section 374(5) does not apply in this case because the Municipalitys assessment
    roll and the registered documentation disclosing Frank and Anneliese Weisss
    interest in the land did supply addresses for Frank and Anneliese Weiss.

[24]

I would therefore dismiss this ground of appeal.
    The Municipality satisfied their notice obligations relating to the tax sale of
    19 Duke Lane.

B.

Did the Municipality

breach its duty
    of good faith to Ms. Wilton?

[25]

Ms. Wilton argues that, given that it knew or
    should have known that she had assumed responsibility for paying the taxes on
    19 Duke Lane, the Municipality had a good faith obligation to notify her before
    proceeding with a tax sale. Even if we chose to entertain this argument for the
    first time on appeal, it would have to be rejected.

[26]

First, the
Municipal Act, 2001

provides
    a comprehensive legislative scheme for the conduct of tax sales. According to
    the terms of the statute, the Municipality was not obliged to give Ms. Wilton
    notice of the tax sale. It would not be appropriate to rely on knowledge within
    a municipality of interested parties to fashion additional notice obligations
    on the municipality not provided for in this carefully crafted legislative
    scheme:
Zeitel
v.
Ellscheid
, [1994] 2 S.C.R. 142, at p.
    152;
Elliott
, at paras. 50-51. The Municipality owed no duty to Ms.
    Wilton to give her notice. In the absence of such a duty, there is no basis for
    her claim that the Municipality acted in bad faith.

[27]

Second, even if it were appropriate to recognize
    an additional, non-legislated notice obligation based on bad faith reasoning,
    this would not be an appropriate case in which to do so. Means were available
    to Ms. Wilton to ensure that she would have a legal right to receive notice.
    She could have lodged estate documents on title. She could have submitted a
    change of address redirecting tax information relating to the property to her
    personal address after her mothers death. Yet, she did nothing. In this
    context, I find unpersuasive her attempt to cast the Municipality as having
    acted in bad faith for failing to make the link, or failing to act on the
    link, between her inconsistent tax payment efforts and the correspondence they generated,
    and the notice required in relation to the 2016 tax sale.

[28]

I would reject this ground of appeal.

CONCLUSION

[29]

I would dismiss the appeal. The Municipality has
    indicated that it is seeking costs. If the parties cannot agree on costs, the
    Municipality should have 10 business days from the release of this decision to
    provide written costs submissions. Ms. Wilton should have a further 5 business
    days to respond. Costs submissions are confined to 3 pages, plus a supporting
    bill of costs.

Released: DD October 26, 2020

David
    M. Paciocco J.A.

I
    agree. Doherty J.A.

I
    agree. S. Coroza J.A.