COURT OF APPEAL FOR ONTARIO

CITATION: Labourers International Union of North America,
    Local 183 v. Castellano, 2020 ONCA 71

DATE: 20200203

DOCKET: C66642

Rouleau, Roberts and Harvison Young JJ.A.

BETWEEN

Labourers International Union of North America,
    Local 183,
Nelson Melo, John Evans, Patrick Sheridan, Paul Giovinazzo, Carlee Horner and Ricardo
    Teixeira

Plaintiffs (Respondents)

and

Daniel Joseph Castellano

Defendant (App
ella
nt)

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Heard: November 14, 2019

On appeal from the judgment of Justice Bernadette Dietrich
    of the Superior Court of Justice, dated January 30, 2019, with reasons reported
    at 2019 ONSC 506.

By the Court:

A.

OVERVIEW

[1]

The appellant appeals from the motion judges dismissal of his motion
    under s. 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (commonly
    referred to as the anti-SLAPP provision), as well as the judgment allowing
    the respondents action for defamation on a motion for summary judgment and granting
    injunctive relief.

[2]

The respondents brought a defamation action against the appellant, a former
    member of the respondent union, Local 183, based on Internet posts that the
    appellant had made. They brought a motion for summary judgment and the
    appellant, by cross-motion, brought a s. 137.1 motion seeking the dismissal of
    the respondents action. The motion judge dismissed the appellants s. 137.1
    motion, granted the respondents motion for summary judgment on their
    defamation claim against the appellant, and granted broad injunctive relief.

[3]

The appellant concedes that the impugned posts were defamatory and does
    not appeal from the motion judges findings of defamation on the summary
    judgment motion. However, he submits that the motion judge erred in her application
    of the weighing test to be carried out on the s. 137.1 motion in that: first, any
    evidence of harm to the respondents was insufficient to outweigh the public
    interest in the appellants free expression; second, she understated the public
    interest value of the expressive content of the appellants posts.

[4]

The appellant also argues that, in any event, the injunctive relief prohibiting
    him from making any statements about the respondents was overly broad and that there
    was no finding of wrongdoing or evidentiary basis to justify restraining his movements
    in relation to the respondents.

[5]

The respondents maintain the position that the appellant should not have
    been permitted to bring the s. 137.1 motion after the summary judgment motion
    was ready to be heard, because a s. 137.1 motion is intended to serve as a screening
    procedure at the early stages of the litigation. They further submit that, in
    any case, there is no utility in appealing the motion judges findings on the s. 137.1
    motion, as she found that the full record substantiated the appellants liability
    in defamation. The respondents submit that there was no error in the injunctive
    relief ordered by the motion judge; it was amply supported by the evidence and
    is entitled to deference by this court.

[6]

For the reasons that follow, we dismiss the appeal in relation to the s. 137.1
    motion but allow the appeal in part with respect to the injunctive relief
    ordered by the motion judge.

B.

ANALYSIS

(1)

Section 137.1 motion

[7]

Starting with the appellants s. 137.1 motion, we agree with the appellants
    position that the motion judge made no error in hearing the s. 137.1 motion at
    the same time as the summary judgment motion. There is no statutory or other
    prohibition against proceeding in this manner and it was within the discretion
    of the motion judge to determine the order in which the motions would be
    addressed.

[8]

Moreover, the purpose of s. 137.1 could be undercut if the bringing of a
    summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While
    mindful that the efficacy of s. 137.1 could be undermined if the motion is not
    brought on a timely basis, there is no statutory timeline for its hearing.

[9]

There should be no hard and fast rule dictating when such a motion should
    be brought; otherwise, the inherent discretion of a motion judge to manage the
    proceedings before him or her would be fettered. We do not read para. 50 of
Zoutman v. Graham
, 2019 ONSC 2834, appeal as of
    right to the Court of Appeal filed,
as purporting to set down as general
    principle anything to the contrary.

[10]

We do not, however, see any error in the motion judges dismissal of the
    appellants s. 137.1 motion. She correctly articulated and applied the appropriate
    test, as set out in para. 7 of this courts decision in
1704604 Ontario
    Ltd. v. Pointes Protection Association,
2018 ONCA 685, 142 O.R. (3d) 161,
    leave to appeal granted and appeal heard and reserved November 12, 2019, [2018]
    S.C.C.A. No. 467:

Stripped to its essentials, s. 137.1 allows a defendant to move
    any time after a claim is commenced for an order dismissing that claim. The
    defendant must demonstrate that the litigation arises out of the defendants
    expression on a matter relating to the public interest. If the defendant meets
    that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit
    clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle
    in s. 137.1(4)(b).

[11]

The motion judges weighing of the competing interests under s. 137.1 is
    entitled to deference on appeal, absent an identifiable legal error, or a palpable
    and overriding factual error:
1704604 Ontario Ltd.
, at para. 97.

As
    this court noted in
1704604 Ontario Ltd.
, at para. 97, [d]eference is
    important, as there is no reason to think that a simple recalibration of the competing
    interests by an appeal court will provide a more accurate assessment.

[12]

In this case, we see no error in the motion judges balancing of the
    competing interests that would permit appellate intervention.

[13]

The motion judge properly considered the issue of the reputational
    damage to the respondents. In particular, she found that the appellants
    expression had cast serious aspersions upon their individual characters. The
    motion judge found the respondents general damages, as exacerbated by the appellants
    malice, to have been more than nominal, partly in the light of the positions
    held by the individual plaintiffs. It was not necessary for her to find
    monetary damages because a serious libel does not always manifest itself in
    financial losses:
Montour

v. Beacon Publishing Inc.
, 2019
    ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154.

[14]

Similarly, the motion judge carefully considered the public interest in
    the expressive content of the appellants posts, including the videos. She did
    not, as the appellant submits, limit her analysis to the added commentary to
    the videos. She found that the posts involved gratuitous personal attacks, as well
    as vulgar and offensive language, and did not address any governance or
    leadership issues in any constructive or cogent way. She therefore found that the
    public interest in the appellants expression was low. Her conclusion that the
    harm suffered by the respondents outweighed the public interest in protecting
    the appellants expression was well-grounded in the evidence and free from
    error.

(2)

Scope of injunctive relief

[15]

With respect to the injunctive relief granted, the appellant submits that
    the injunction prohibiting any statements or posts about any of the respondents
    and restricting his attendance was overly broad and that the motion judge erred
    in failing to consider whether a more restricted injunction would have
    sufficed. Given the motion judges determination of the summary judgment motion,
    the appellant concedes that an injunction prohibiting defamatory posts was appropriate.

[16]

The motion judge ordered the following injunctive relief in subparas. 2
    to 8 of her judgment:

2.  THIS COURT ORDERS that the Defendant shall take all necessary
    steps to remove all audio and video recordings, and written statements, of or
    about any and all of the Plaintiffs, from the internet or any other location in
    which they are accessible to the public and to destroy all such audio and video
    recordings and written statements within seven days of the release of these reasons.

3.  THIS COURT ORDERS that immediately following those seven
    days, the Defendant shall provide, in writing, to counsel for the plaintiffs,
    proof of all steps taken to remove and destroy all such material, and shall
    confirm, in writing, that no such material remains publicly accessible or
    within his possession or control, or, to the best of his knowledge, remains in
    the possession or control of a third party.

4. THIS COURT ORDERS that the defendant shall not make or
    publish, or cause any other person to make or publish any video or audio
    recording, or written statement, of or about any of the Plaintiffs.

5.  THIS COURT ORDERS that the Defendant shall not make,
    ratify, endorse, publish or re-publish, post or re-post, or cause anyone else
    to do so, on the internet or elsewhere, any statement about any of the Plaintiffs.

6.  THIS COURT ORDERS that the Defendant shall have no further
    contact with any of the Plaintiffs, either directly or indirectly, but shall
    deal directly with the Plaintiffs counsel.

7.  THIS COURT ORDERS that the Defendant shall not knowingly attend
    or be present within 500 meters of the individual Plaintiffs or their families,
    their personal residences, their places of employment, or any other location where
    he knows them to be present, unless such conduct occurs as a consequence of the
    defendant encountering any of the Plaintiffs on a jobsite where the Defendant
    is, at that time, employed to work.

8.  THIS COURT ORDERS that the Defendant shall not, without the
    written consent of the president of Labourers International Union of North America,
    Local 183, attend within 500 meters of any office, property or training centre
    of Local 183 including the Local 183 offices located at 1263 Wilson Avenue
    #200, North York, Ontario M3M 3G3, and 560 Dodge St., P.O. Box 156, Cobourg,
    Ontario K9A 4K5. The defendant shall not attend at any jobsite where Local 183
    holds bargaining rights unless the Defendant is employed to work at such
    jobsite and his attendance there is directly related to such employment.

[17]

In support of the motion judges conclusions and order, the respondents seek
    to introduce fresh evidence consisting of the reasons of the trial judge in relation
    to the appellants criminal trial on unrelated charges to demonstrate the
    appellants continuing animus against the respondents. The appellant takes no position
    respecting the respondents fresh evidence motion. Since the proposed fresh
    evidence could not have been obtained with diligence before the hearing of the motions,
    is credible and potentially relevant to the scope of the injunctive relief
    ordered and could therefore affect the outcome of an issue on appeal, we admit
    it:
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.). However,
    as the evidence concerning ongoing animus is dated, we give it little weight.

(a)

Publication injunction

[18]

In considering whether the injunction against the publication of any
    commentary concerning the respondents was overly broad, we start with some well-established
    general principles. As this court stated in
St. Lewis v. Rancourt
, 2015
    ONCA 513, 337 O.A.C. 15, at para. 16, leave to appeal refused, [2015] S.C.C.A.
    No. 407: A broad ongoing injunction is an extraordinary remedy which should be
    used sparingly. However, where there has been a campaign of defamation and a
    likelihood that it will continue, there is authority for such an order. The injunctive
    relief must be broad enough to be effective but no broader than reasonably
    necessary to effect compliance:
Cambie Surgeries
    Corp. v. British Columbia (Medical Services Commission)
, 2010 BCCA 396, 9
    B.C.L.R. (5th) 299
, at para. 39.

[19]

While the evidentiary record supports a permanent injunction prohibiting
    the appellant from posting defamatory comments about the respondents, it does
    not justify a permanent blanket injunction enjoining him from making or publishing
    any comments about the respondents.

[20]

The motion judge concluded that the appellant would likely continue to
    post defamatory comments about the respondents if not enjoined from doing so. Her
    finding is grounded in the evidence and entitled to deference on appeal. However,
    she made no finding that the appellant was incapable of discerning between defamatory
    comments and legitimate criticism, such that a blanket injunction was required.
    Nor is there any evidence from which such a conclusion could be inferred. Absent
    evidence that prohibiting the appellant from making non-defamatory statements
    is reasonably necessary to address the identified likelihood of future
    defamation, the injunction should not have been cast so broadly that it captured
    non-defamatory statements.

[21]

Accordingly, we amend subparas. 4 and 5 of the judgment to specify that
    the appellant is enjoined from making or publishing any defamatory communications,
    including video or audio recordings, about the respondents, as follows:

4.  THIS COURT ORDERS that the Defendant shall not make or publish,
    or cause any other person to make or publish, any defamatory video or audio
    recording, or defamatory written statement, of or about any of the Plaintiffs.

5.  THIS COURT ORDERS that the Defendant shall not make,
    ratify, endorse, publish or re-publish, post or re-post, or cause anyone else
    to do so, on the Internet or elsewhere, any defamatory statement about any of
    the Plaintiffs.

[22]

With respect to subparas. 2 and 3 of the judgment, the appellant has
    complied with them. However, he may need the remaining copy of the videos filed
    with this court for the purposes of his ongoing human rights complaint. We therefore
    amend those subparagraphs to permit the use of those materials in any court or administrative
    proceeding, as follows:

2. THIS COURT ORDERS that the Defendant shall take all
    necessary steps to remove all audio and video recordings, and written
    statements, of or about any and all of the Plaintiffs, from the Internet or any
    other location in which they are accessible to the public and to destroy all
    such audio and video recordings and written statements within seven days of the
    release of these reasons. The Defendant is permitted to keep and use a copy of
    these recordings or statements for the sole purpose of using or producing them as
    required in a court or administrative proceeding related to his ongoing human
    rights complaint, following which they are to be destroyed.

3. THIS COURT ORDERS that immediately following those seven
    days, the Defendant shall provide, in writing, to counsel for the Plaintiffs,
    proof of all steps taken to remove and destroy all such material, and shall
    confirm, in writing, that no such material remains publicly accessible or
    within his possession or control, or, to the best of his knowledge, remains in
    the possession or control of a third party. The Defendant is permitted to keep
    and use a copy of this material for the sole purpose of using or producing it as
    required in a court or administrative proceeding related to his ongoing human
    rights complaint, following which they are to be destroyed.

(b)

Injunction restraining the appellants attendance and communications

[23]

Finally, we consider the provisions of the judgment that permanently restrict
    the appellants attendance near the respondents and their families and prohibit
    any communications directly with the respondents.

[24]

We reiterate that permanent injunctions constitute extraordinary relief that
    must be granted sparingly. A different test applies for a permanent injunction
    than for an interlocutory injunction. A different test is required because, in considering
    an application for a permanent injunction, the court has the ability to finally
    determine the merits of the case and fully evaluate the legal rights of the
    parties. See
1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers
    Ltd.
, 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80;
Cambie Surgeries
    Corp.
, at paras. 27-28.

[25]

As referenced in Robert J. Sharpe,
Injunctions and Specific Performance
,
    loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in
NunatuKavut
    Community Council Inc. v. Nalcor Energy
, 2014 NLCA 46, 358 Nfld. &
    P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized
    the approach to be applied in deciding whether to grant a permanent injunction:

(i)
Has the claimant proven that all the elements of a cause
    of action have been established or threatened
? (If not, the claimant's suit
    should be dismissed);

(ii)
Has the claimant established to the satisfaction of the
    court that the wrong(s) that have been proven are sufficiently likely to occur
    or recur in the future that it is appropriate for the court to exercise the
    equitable jurisdiction of the court to grant an injunction?
(If not, the injunction
    claim should be dismissed);

(iii)
Is there an adequate alternate remedy, other than an
    injunction, that will provide reasonably sufficient protection against the
    threat of the continued occurrence of the wrong?
(If yes, the claimant
    should be left to reliance on that alternate remedy);

(iv) If not, are there any applicable equitable discretionary
    considerations (such as clean hands, laches, acquiescence or hardship)
    affecting the claimant's
prima facie
entitlement to an
    injunction that would justify nevertheless denying that remedy? (If yes, those
    considerations, if more than one, should be weighed against one another to
    inform the court's discretion as to whether to deny the injunctive remedy.);

(v) If not (or the identified discretionary considerations are
    not sufficient to justify denial of the remedy), are there any terms that
    should be imposed on the claimant as a condition of being granted the injunction?

(vi) In any event, where an injunction has been determined to
    be justified,
what should the scope of the terms of the injunction be so as
    to ensure that only actions or persons are enjoined that are necessary to
    provide an adequate remedy for the wrong that has been proven or threatened
or to effect compliance with its intent? [Emphasis added.]

[26]

Given their potentially broad and restrictive scope, permanent injunctions
    must be particularly tailored to the specific circumstances of the case in
    which they are ordered. It is therefore incumbent on the court asked to
    consider such relief to conduct a careful analysis and to limit the breadth of any
    permanent injunction to only what is reasonably necessary to remedy the specific
    wrong committed and prevent further harm to the claimant. See
Cambie
    Surgeries

Corp.
, at para. 39;
NunatuKavut
    Community Council Inc.
, at para. 71.

[27]

In their statement of claim, in addition to damages for defamation, the
    respondents claimed damages for intrusion upon seclusion and harassment. However,
    the respondents only pursued the defamation claim on summary judgment. The motion
    judge sets out clear reasons for her findings of defamation, which are not
    disputed on appeal. But she makes no determinations concerning the respondents
    claims in relation to intrusion upon seclusion or harassment.

[28]

Moreover, the motion judge makes no reference to nor carries out any
    discernible analysis of the rationale applied to impose the restriction of the
    appellants movements and communications, as ordered in subparas. 6 to 8 of her
    judgment. While she adverts, in para. 99 of her reasons, to the circumstances
    in which permanent injunctions against the publication of defamatory statements
    may be warranted, the motion judge does not reference any criteria respecting
    the advisability of granting a permanent injunction restraining the appellants
    movements or communications.

[29]

In the following excerpt from para. 100 of her reasons, the motion judge
    highlights aspects of the appellants conduct that she says, go to continue his
    campaign of harassment of the plaintiffs:

The fact that Mr. Castellano fabricated a reason to attend at
    Mr. Evans personal residence, when he had no legitimate purpose to go there,
    is further evidence of the lengths that Mr. Castellano is prepared to go to
    continue his campaign of harassment of the plaintiffs. At a Trial Board hearing
    regarding Mr. Castellanos conduct, the Trial Board found that Local 183s
    staff feared for their safety. The Trial Board expressed concern that Mr. Castellanos
    conduct would only escalate.

[30]

The motion judges above-noted observations about harassment are sandwiched
    between her conclusions in para. 100 about the prospect of the appellant
    continuing to make defamatory comments. Specifically, the first two and
    concluding two sentences of para. 100 focus on the question of the likelihood
    of the appellant continuing his defamatory postings.

[31]

Recall that a permanent injunction is a remedy that may be granted once
    a legal right or a cause of action has been finally adjudicated and proven on a
    balance of probabilities. Since defamation was the only tort that the motion
    judge found to have been established, the remedy sought and granted should have
    been only in relation to and for the purpose of preventing a continuation of that
    tort. As such, to justify the granting of a permanent injunction restricting the
    appellants movements or communications, the motion judge would have had to conclude
    that a permanent injunction restricting the appellants movements or communications
    with the respondents was reasonably necessary to remedy the defamation and to prevent
    the defamation campaign from continuing. She did not do so.

[32]

The motion judge erred in failing to carry out the required analysis and
    make the appropriate findings to determine whether such a broad permanent injunction,
    which severely restricts the appellants movements and communications, was
    necessary to put an end to the appellants defamation campaign.

[33]

Restrictions on a persons communications and expressions of opinion are
    extraordinary; court-ordered restraints on a persons physical freedom imposed in
    a civil dispute, outside certain statutorily prescribed circumstances, should be
    even more exceptional. The reasons for the latter caution are evident: they
    limit a persons freedom and breaches of such ordered limitations could result
    in penal sanctions, including imprisonment.

[34]

The motion judges findings regarding the likelihood that the appellant would
    continue his defamation campaign do not justify the broad restraining order enjoining
    the appellant from contacting, or communicating with, all the respondents. There
    is nothing in the evidence to suggest that restricting the appellants movements
    and communications is reasonably necessary to prevent the appellant from continuing
    his defamation campaign.

[35]

However, the respondents are not without recourse. If necessary, other
    remedies are available to restrain the appellants behaviour, such as issuing a
    trespass notice under the
Trespass to Property Act
, R.S.O. 1990, c.
    T.21, which Local 183 already did, or pursuing a peace bond under the
Criminal
    Code
, R.S.C. 1985, c. C-46:
Rainy River (Town) v. Olsen
, 2017 ONCA
    605, 64 M.P.L.R. (5th) 76, at para. 9.

[36]

In consequence, we set aside subparas. 6 to 8 of the motion judges judgment.

C.

Disposition

[37]

Accordingly, we admit the fresh evidence, allow the appeal in part, and set
    aside and amend the motion judges judgment as indicated above.

[38]

The appeal is otherwise dismissed.

[39]

The success on this appeal was mixed. We therefore make no order as to
    the costs of this appeal. Since the motion below was mostly devoted to the defamation
    and s. 137.1 motion issues on which the appellant was and remains unsuccessful,
    we do not disturb the costs order made below.

Released: February 3, 2020 (P.R.)

Paul Rouleau J.A.

L.B. Roberts J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: M & M Homes Inc. v. 2088556
    Ontario Inc., 2020 ONCA 134

DATE: 20200218

DOCKET: M51177, M51186 (C67632)

Paciocco J.A. (Motions Judge)

BETWEEN

M & M Homes Inc.

Plaintiff (Respondent)

and

2088556 Ontario Inc
., Royal Lepage Real Estate Services Ltd., John Redvers, 697350
    Ontario Limited, 1375051 Ontario Limited, Dorothy Kushner, Sam Goldman, Frank
    Goodman, Lillian Goodman, Dinapet Holdings Limited, 614921 Ontario Limited,
    Maria Traina, Howard Brian Goldman, Joseph Burdi, Doris Miller, Carole
    Greenspan, Community Trust Company, 2178875 Ontario Inc., Jong Suk Im, Sung Ran
    Lee, Yeon Hee Huh and In Hee Woo

Defendants (
Appellant
)

Robert S. Choi and Gina Rhodes for the
    appellant, responding party on M51177, and moving party on M51186

Elliot Birnboim, for the respondent, moving
    party on M51177, and responding party on M51186

Heard: February 5, 2020

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, 2088556 Ontario Inc. (208
    Ontario), as vendor, and the respondent, M & M Homes Inc. (M & M
    Homes), as purchaser, entered into an agreement of purchase and sale (APS)
    relating to development land. The sale did not close, and litigation ensued. In
    the trial decision appealed from, the respondent purchaser, M & M Homes,
    prevailed, receiving an order for specific performance to be enforced through a
    vesting order (the vesting order), and costs on a substantial indemnity
    basis. 208 Ontario is appealing both the vesting order and the costs order.

[2]

There are now two interconnected motions before
    me, arising out of that appeal.

[3]

In motion M51177, M & M Homes moves to set
    aside a certificate of stay relating to the costs order that was issued by the
    registrar of this court, pursuant to r. 63.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[4]

In motion M51186, 208 Ontario moves for a stay
    of the vesting order and the costs order pending appeal.

[5]

I address both motions in this decision after
    setting out the material facts, most of which are common to the two motions.
    For the reasons below, I find that the costs order was automatically stayed
    under r. 63.01 and do not set aside the certificate of stay issued by the
    registrar. I also find that it is in the interests of justice to stay the
    vesting order.

MATERIAL FACTS

[6]

The respondent, 208 Ontario, under the directing
    mind of Mr. Lam, severed land for development purposes. 208 Ontario initially retained
    one part of that land for residential development (the residential property).
    On September 14, 2012, 208 Ontario entered an APS to sell the other part of
    that land to M & M Homes (the commercial property), for a purchase price
    of $2,150,000.

[7]

Under the APS, 208 Ontario was obliged to bring
    municipal services to the land and obtain written confirmation from the
    municipality relating to those services. This was not accomplished by the
    initial closing date, leading to closing extensions being mutually granted.

[8]

Ultimately, litigation ensued, with M & M
    Homes seeking specific performance of the APS and an abatement relating to the
    costs of bringing the required services to the land. M & M Homes filed a Certificate
    of Pending Litigation

(the CPL) on title.

[9]

After the CPL was filed, 208 Ontario transferred
    the property to CRC Sutton Inc. (CRC), another corporation controlled by, and
    under the directing mind of, Mr. Lam. In addition, collateral mortgages were
    placed on the commercial property as additional security for loans on the
    residential property.

[10]

M & M Homes prevailed at trial, securing an
    order for specific performance and two abatements (a services abatement and a
    management fee abatement) together amounting to close to two-thirds of the agreed
    purchase price. The trial judge provided for enforcement of the specific
    performance order by specifying that upon payment into court of an adjusted
    purchase price and other adjustments that may be ordered on motion in writing brought
    before her, the commercial property would vest in M & M Homes.

[11]

Although the relief requested in the litigation
    would affect CRC and CRC was not a party to the litigation, the trial judge
    found that CRC had adequate notice through Mr. Lam to protect its interests,
    had it wished to do so.

[12]

In her judgment, the trial judge specified the
    amount of the adjusted purchase price, $713,979.05, that M & M Homes would
    have to pay into court to secure its vesting order. That adjusted purchase
    price was arrived at after itemizing the services abatement and the management
    fee abatement.

[13]

In para. 129 of her judgment the trial judge wrote:

[M & M Homes] also seeks its costs in this
    action, and submits that any costs awarded should be payable, in the first
    instance, as an abatement of the purchase price. [Trial counsel for 208
    Ontario] has not responded to this submission. Costs will be determined after
    review of the written submissions. Absent a r. 49 offer from the defendant that
    could trigger r. 49.10(2), the plaintiff will have its costs in this action. I
    agree that these costs should be deducted from the adjusted purchase price
    prior to payment into court.

[14]

The parties could not agree on costs. In a
    separate Reasons for Decision on Costs, the trial judge awarded M & M Homes
    $210,000 in substantial indemnity costs based on her finding that 208 Ontario
    had misconducted itself in its dealing with the land despite the CPL having
    been registered on the property, and again repeatedly misconducted itself during
    the trial proceedings. The Reasons for Decision on Costs makes no mention of
    the costs being deducted from the adjusted purchase price, as referenced in
    para. 129 of the judgment, above.

[15]

208 Ontario now appeals the specific performance
    order (C67632). As part of that appeal, 208 Ontario has also appealed the costs
    decision, but it has not sought leave to appeal the costs order.

[16]

After filing its notice of appeal, 208 Ontario
    requisitioned a certificate of stay from the registrar of this court relating
    to the costs order, which was granted.

[17]

In response, M & M Homes moves in motion
    M51177 to have that certificate of stay set aside.

[18]

In response to that motion, 208 Ontario has
    applied for a stay of the vesting order and the costs order. A stay of the
    vesting order would forestall the risk of M & M Homes seeking to enforce the
    vesting order pending appeal by paying the full $713,979.05 adjusted purchase
    price set out in the judgment and taking its chance on collecting the costs
    award without the benefit of the abatement referred to by the trial judge in
    para. 129 of the judgment, reproduced above.

MOTION M51177 FOR AN ORDER STRIKING THE
    CERTIFICATE OF STAY

[19]

The primary argument M & M Homes offers in
    support of an order setting aside the registrars certificate of stay is its
    contention that a certificate of stay can only properly be issued, absent an
    order for a stay pending appeal, if an automatic stay is in place. It argues
    that r. 63.01, the relevant rule, does not automatically stay the costs award
    in this case because the trial judge did not make an order for the payment of
    money within the meaning of r. 63.01. Instead, M & M Homes contends that
    the trial costs are ordered to be collected through an abatement from the money
    required to be paid into court when M & M Homes triggers the vesting order.
    In its view, the registrars certificate of stay was therefore improperly
    issued.

[20]

208 Ontario disputes M & M Homes contention
    that the trial judge ordered the costs abatement. 208 Ontario points out that when
    the trial judge set out the adjusted purchase price in her judgment, she did
    not include a deduction for the costs order, and she made no mention of such a deduction
    in the Reasons for Decision on Costs she provided. Neither party has taken out
    a formal order that can be consulted to resolve this dispute.

[21]

In my view, it does not matter whether the trial
    judge ordered an abatement from the adjusted purchase price for the costs order
    she made. The costs order itself is an order for the payment of money and is
    automatically stayed under r. 63.01, even if provision was made to deduct the
    costs award from the adjusted purchase price.

[22]

Rule 63.01 provides as follows:

63.01(1) The delivery of a notice of
    appeal from an interlocutory or final order stays, until the disposition of the
    appeal, any provision of the order for the payment of money, except a provision
    that awards support or enforces a support order.

[23]

There is authority supporting the notion that a
    costs order is an order for the payment of money within the meaning of r. 63.01(1):
    see
City Commercial Realty (Canada) Ltd. v. Backich
, [2005] O.J. No.
    6443 (C.A.) (In Chambers). I agree with this, and it remains true even where a
    trial judge orders the costs awarded to be collected through an abatement. M
    & M Homes conceded during the hearing that a proper formal order in this
    case would have to specify the costs order of $210,000, even if an abatement
    relating to the costs order had been ordered. That concession was correct,
    since it is through the costs order that the debt obligation that permits the
    abatement would arise. It necessarily follows that the costs order is a
    provision for the payment of money, even where a short-cut mechanism such as an
    abatement is provided for in a judgment to ensure the payment of this debt
    obligation.

[24]

For this reason, I also reject M & M Homes
    ancillary argument, that it was misleading for 208 Ontario not to disclose the
    abatement in its requisition. In my view, because r. 63.01 automatically stayed
    the costs order, mention that the costs order was enforceable by way of
    abatement was immaterial to the requisition request. There was nothing
    misleading on the part of 208 Ontario in failing to mention this unimportant
    detail to the registrar when seeking the certificate of stay relating to the
    costs order.

[25]

It is evident that I reject, as well, M & M
    Homes alternative argument that the automatic stay of a costs order under r. 63.01
    operates only if the substantive order under appeal is itself automatically
    stayed by r. 63.01. In
Backich
the substantive order did not provide
    for the payment of money. The appeal was from an order dismissing a claim for
    unpaid commission, yet Lang J.A. said: By rule 63.01, the trial judgment,
    insofar as it awards costs to the moving party, is automatically stayed pending
    the outcome of the appeal, at para. 4.

[26]

Finally, I will not entertain M & M Homes oral
    submissions relating to whether the certificate of stay should be removed after
    consideration of factors analogous to those in
RJR-MacDonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311. When M & M Homes made these
    submissions, I understood it to be responding to Ontario 208s argument that M
    & M Homes was advancing the wrong test when challenging the propriety of
    the certificate of stay, and that a similar standard to that used in
RJR-MacDonald
    Inc.
should apply. I do not decide this motion on the basis that M & M
    Homes used the wrong test and should have used the
RJR-MacDonald Inc.
test,
    and so I need not consider this further. Moreover, M & M Homes did not plead
    this theory as an alternative basis for setting aside or removing the certificate
    of a stay.

[27]

The motion to set aside the certificate of say
    is therefore denied.

MOTION M51186 FOR A STAY PENDING APPEAL

[28]

208 Ontario brings a motion for a stay of both
    the vesting order and the costs order pending appeal. I would stay the vesting
    order.

[29]

The overarching consideration in whether to
    grant a stay is the interests of justice:
Zafar v. Saiyid
, 2017 ONCA
    919, at para. 18. This is determined by a holistic consideration of the factors
    identified in the
RJR-MacDonald Inc
., at p. 334, for assessing whether
    an interlocutory injunction should be granted, namely:

(1)

A preliminary assessment must be made of the
    merits of the case to ensure that there is a serious question to be tried;

(2)

It must be determined whether the applicant
    would suffer irreparable harm if the application were refused; and

(3)

An assessment of the balance of convenience must
    be made as to which of the parties would suffer greater harm from the granting
    or refusal of the remedy pending a decision of the merits.

[30]

Although M & M Homes concedes for the
    purpose of this motion that the first factor has been satisfied given its low
    standard, it urges that 208 Ontario has not met its burden of showing that it
    would suffer irreparable harm if its application were refused, and that the
    balance of convenience lies with M & M Homes, rather than 208 Ontario.

[31]

M & M Homes also asks that 208 Ontarios
    motion be denied because 208 Ontario does not come forward with clean hands: see
Morguard Residential v. Mandel
, 2017 ONCA 177, at paras. 26-28. M
    & M Homes relies on the findings of the trial judge that 208 Ontario
    misconducted itself by dealing with the commercial property in ways designed to
    complicate M & M Homes recovery in the face of a CPL, and by being
    spectacularly inattentive to its litigation obligations both before and at
    trial. Counsel for M & M Homes also relies upon allegations it makes that
    208 Ontario misled the registrar in seeking the certificate of stay, and by
    presenting the registrar with a false affidavit of service.

[32]

I will begin by noting that I have considered
    but am not materially influenced by clean hands considerations in resolving
    this motion.

[33]

I have already rejected the claim that 208
    Ontario misled the registrar through non-disclosure when requisitioning the
    certificate of a stay. Nor am I persuaded that the evidentiary foundation supports
    the allegation that counsel for 208 Ontario filed a false affidavit of service.

[34]

Moreover, the most central findings relied upon
    by the trial judge to impose substantial indemnity costs against 208 Ontario
    are going to be before this court during the appeal, including whether the
    post-CPL

transactions were improper. This court will have to consider whether
    the trial judge misapprehended the evidence and argument in finding that 208
    Ontario attempted to hoodwink the court relating to the status of the
    servicing to the commercial property. Since these findings are the subject of
    the appeal, they should not be held against 208 Ontario in deciding an
    interlocutory issue relating to that appeal.

[35]

Finally, the conduct of counsel for M & M
    Homes itself has been questioned. As indicated, on M & M Homes behalf, unproven
    allegations of misrepresentation against opposing counsel were made, and such
    allegations were communicated to the registrar of this court in email exchanges.
    There may also have been a lapse in expected standards of civility that
    occurred when counsel for M & M Homes called Mr. Lam an egregious liar at
    the end of his cross-examination on this motion.

[36]

In my view, this motion therefore turns on the
    traditional
RJR-MacDonald Inc.
factors, and the holistic assessment of
    the interests of justice.

[37]

As indicated, M & M Homes concedes that
    there are serious issues to be tried in this appeal. That concession was
    well-taken. The appeal is not frivolous and warrants consideration on its
    merits.

[38]

I do agree with M & M Homes that some of 208
    Ontarios irreparable harm submissions are unimpressive, and there are
    complications in finding that 208 Ontario, itself, would be prejudiced if a
    stay is not ordered.

[39]

Specifically, 208 Ontarios main claim relating
    to the harm it would experience is that if the vesting order is triggered, the
    encumbrancers who registered their mortgages after the CPL could lose their
    mortgage security on the commercial property, and those mortgagees would immediately
    enforce their debts against 208 Ontario, causing the insolvency of 208 Ontario.
    I need not decide whether the evidentiary foundation for this risk has effectively
    been established before me because were this to happen, 208 Ontario would be
    the author of its own misfortune. When the litigation began, it was not exposed
    to the risks these mortgages may present. Knowing that it could lose the commercial
    land in litigation, it made a conscious choice to encumber that land, thereby
    courting the risk of defaulting on its financial obligations if that commercial
    land was lost in the pending litigation. It does not lie in the mouth of a
    litigant who did not face the risk of irreparable harm from the enforcement of
    a pending claim, to voluntarily assume such risk after the litigation is
    pending, and then rely upon that risk to impede the enforcement of that claim
    after it succeeds.

[40]

Nor am I impressed by the risks to the post-CPL mortgagees
    themselves. They too chose to run the risk that 208 Ontario or its assignees
    could lose the land in this litigation. The materialization of that accepted
    risk does not qualify as irreparable harm. In any event, the vesting order
    cannot be triggered without the competing priorities being determined. Those
    holding encumbrances on the land are entitled to participate and protect their
    legitimate interests in a priority hearing.

[41]

I do accept, however, that there is a material
    risk that irreparable harm will be caused by now enforcing a vesting order
    remedy that may be overturned in the future. By its very nature, the
    enforcement of that vesting order will deprive the owners of the land, which M
    & M Homes itself contends is unique enough to warrant a specific
    performance remedy. There is no assurance that should 208 Ontario prevail on
    appeal, it will be possible to reverse the enforcement of a vesting order
    pending appeal. If the vesting order is enforced pending appeal, M & M
    Homes will be entitled to transfer the land, putting it out reach of
    restoration. Or, a party holding title after the vesting order could make
    changes to the land that diminish its value, or that may require costly reinstatement.
    Or, improvements could be made to the land that could require settlement negotiations
    or litigation that ensnares the owners of the land. Or, liens could be placed
    on the land, impeding effective restoration.

[42]

I appreciate that there is an impediment to 208
    Ontario relying on the risks of prejudice that I have described. As counsel for
    M & M Homes stresses, technically, such harm will not be caused to 208
    Ontario, the moving party, or applicant, because 208 Ontario no longer owns the
    land. CRC does. If the second
RJR-MacDonald Inc.
factor  relating to
    irreparable harm to the applicant - was a strict precondition to staying an
    appeal, this would prove fatal to the current motion. However, irreparable harm
    to the applicant is not a strict precondition to a stay. The ultimate test for
    granting the stay is the interests of justice, and the
RJR-MacDonald
considerations
    are factors, not prerequisites. In the unusual circumstances of this case, the
    absence of irreparable harm to the applicant does not undercut this motion.

[43]

First, as a matter of law, the risk of
    irreparable harm that I describe does not evaporate simply because 208 Ontario
    no longer owns the land. Those risks obtain, and are faced by the current
    owner, CRC.

[44]

Second, substance cannot be ignored. CRC currently
    owns the land as a legal vehicle to facilitate a development plan involving several
    parties. The enforcement of the vesting order and the loss of the control of
    the land that this would entail would pose risk of prejudice not only to CRC
    but to the principals of CRC and the participants in the development project.

[45]

Finally, M & M Homes cannot have it both
    ways. It obtained an order of specific performance against 208 Ontario even
    though 208 Ontario is not the owner, on the clear premise that, in substance, 208
    Ontario is sufficiently connected to the land that such order is just. It is
    not equitable for M & M Homes to now resist a stay of that remedy on the
    premise that 208 Ontario is not sufficiently connected to the land for material
    prejudice to arise.

[46]

I am therefore persuaded that there is a risk of
    irremediable harm, if not to 208 Ontario, then to CRC and others associated
    with the development project. Regardless of whether the irreparable harm to
    these third parties is to be considered under
RJR-MacDonald Inc.
s irreparable
    harm head, or under the balance of convenience inquiry, these interests warrant
    consideration.

[47]

Of importance, M & M Homes has not presented
    evidence that it would be prejudiced by delaying the enforcement of the vesting
    order until the appeal can be resolved on its merits. Its sole claim is that a
    stay will obstruct or scuttle the priorities hearing that is scheduled. This is
    not material prejudice. If the vesting order is reversed on appeal, that hearing
    will prove to have been moot. The priorities hearing can wait.

[48]

Any other inherent prejudice there may be can
    adequately be remedied by an order expediting the appeal, which both parties
    agree to do.

[49]

Given the balance of convenience and the
    irreparable harm that may arise, I am persuaded that it is in the interests of
    justice to stay the vesting order. I have already found that the costs order is
    automatically stayed pending appeal, but I would also have stayed the costs
    order pending appeal, in any event, had that not been so.

[50]

I therefore allow 208 Ontarios motion and stay
    the vesting order made by the trial judge, pending determination of the appeal.
    However, I order that this appeal be expedited. As suggested by counsel for M
    & M Homes, the appellant must perfect its appeal within 45 days of receipt
    of notice that the required transcripts have been transcribed. The respondent
    must serve and file the respondents factum and compendium within 30 days of
    service of the appeal book, compendium, exhibit book, transcript and appellants
    factum.

COSTS

[51]

I am reserving a decision on the costs of these
    motions. The parties may file written costs submissions, not to exceed 5 pages,
    along with supporting bills of costs, on the following deadline: ten business
    days after the release of this decision for the appellant, 208 Ontario, and five
    business days after the receipt of the appellants written costs submission by
    the respondent, M & M Homes.

[52]

I direct that this decision be filed in both
    motion records, M51177 and M51186.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: MacQuarie Equipment Finance Ltd. v. 2326695 Ontario
    Ltd. (Durham Drug Store), 2020 ONCA 139

DATE: 20200220

DOCKET: C67478

MacPherson, Sharpe and Jamal JJ.A.

BETWEEN

MacQuarie Equipment
    Finance (Canada) Limited

Plaintiff (Respondent)

and

2326695 Ontario Ltd. operating as Durham Drug
    Store

Defendant (Appellant)

and

MedviewMD
    Inc.,
Leasecorp Capital Inc.
, and Daniel Nead

Third Parties (
Respondent
)

Amer Mushtaq, for the appellant

Ron Aisenberg, for the respondent, MacQuarie Equipment
    Finance (Canada) Limited

No one appearing for the respondent, Leasecorp Capital
    Inc.

Heard: February 3, 2020

On appeal from the judgment
    of Justice Lorne Sossin of the Superior Court of Justice, dated August 28, 2019,
    with reasons reported at 2019 ONSC 5019.

By the Court:

Introduction

[1]

The appellant, 2326695 Ontario Limited operating as Durham Drug Store
    (Durham Drug Store), appeals from the motion judges decision granting
    summary judgment to the respondent, Macquarie Equipment Finance (Canada)
    Limited (Macquarie), for $90,057.13 under a lease financing agreement dated
    February 19, 2016 (the Lease).

[2]

Macquarie cross-appeals the motion judges decision to award pre- and
    post-judgment interest at the rates prescribed under the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43, rather than at the contractual rate under the
    Lease of up to 2.0% per month (24% per annum).

[3]

For the reasons that follow, the appeal is allowed. In the unusual
    circumstances of this case, Durham Drug Store had a right to terminate the
    Lease and return the leased equipment to Macquarie upon the default of the
    respondent, MedviewMD Inc. (Medview). The cross-appeal is dismissed as moot.

Background facts

[4]

Durham Drug Store operates a pharmacy in Pickering, Ontario, run by its
    principal, Ms. Zeinab Abdulaziz, a pharmacist.

[5]

In late 2015, Mr. Daniel Nead met with Ms. Abdulaziz to propose a
    business arrangement between Medview, of which he was a representative, and
    Durham Drug Store. Based on that proposal, Durham Drug Store engaged Medview to
    supply a telemedicine studio in the pharmacy to provide remote medical services
    to the public.

[6]

Medview then contacted Mr. Barry Johnston, a representative of the
    respondent, Leasecorp Capital Inc. (Leasecorp), an equipment lease broker, to
    lease Durham Drug Store the necessary telemedicine equipment.

[7]

Mr. Johnston met with Ms. Abdulaziz at Durham Drug Store on February 8,
    2016, where they completed a credit application. It was approved the next day.

[8]

Ms. Abdulazizs evidence was that she thought Mr. Johnston was a Medview
    representative and that he said he was sent by Nead/Medview. Mr. Johnstons
    evidence was that he identified Macquarie as the equipment lessor.

[9]

On February 11, 2016, Medview emailed Ms. Abdulaziz a copy of the written
    Master Service Agreement (Medview MSA) between Medview and Durham Drug Store,
    which set out the terms of Medviews proposed telemedicine services, for review
    and signing. Medviews cover email, copied to Mr. Johnston, stated: I believe
    Barry [i.e., Mr. Johnston] will be visiting you tomorrow for signing.

[10]

The Medview
    MSA emailed to Ms. Abdulaziz was to have the same termination date as the
    equipment lease. The Medview MSA also contained a broad early termination
    provision, which reads in relevant part:

10.

Early Termination
.
A Party shall
    be entitled, at its option, to terminate this Agreement immediately upon notice
    in writing to the other Party

(g) if the other Party shall be in
    breach of or default under any of the terms, conditions, covenants or
    agreements contained in this Agreement (other than a breach default [sic] of
    its payment obligations to the other Party under this Agreement) and shall fail
    to cure such breach or default within fifteen (15) calendar days after delivery
    to the other Party of written notice to that effect.

[11]

On
    February 19, 2016, Mr. Johnston visited Ms. Abdulaziz, but did not come with a
    copy of the proposed Medview MSA. Instead, he came with a proposed Lease
    between Macquarie and Durham Drug Store.

[12]

Ms.
    Abdulazizs evidence was that she was busy in the pharmacy with customers and
    did not review the Lease in detail, believing it to be a version of the Medview
    MSA. Although she noticed Macquaries name on the document, she believed it was
    another business name for Medview. Ms. Abdulazizs evidence was that Mr.
    Johnston asked her to sign the paperwork so that Medview could deliver the
    equipment to Durham Drug Store. She signed it and initialed each page. The
    whole meeting lasted just a few minutes.

[13]

Durham
    Drug Store then took possession of the telemedicine equipment. Under the Lease,
    Ms. Abdulaziz was to pay a total of $98,522.31, with monthly payments of $50
    for the first three months, and then $1,725.83 plus tax per month for the rest of
    the lease term. This tracked exactly the Equipment Fee she owed Medview under
    the Medview MSA, both in total amount and in payment instalments.

[14]

Durham
    Drug Store paid Macquarie under the Lease for almost a year, but then stopped
    in February 2017 because it learned that Medview had failed to disclose that its
    telemedicine services lacked the necessary regulatory approvals. As a result,
    Durham Drug Store ceased offering telemedicine services.

[15]

Macquarie
    then contacted Durham Drug Store. Ms. Abdulaziz advised Macquarie that she had
    contacted Medview and it had advised her that the telemedicine equipment would
    be picked up. Macquarie responded that it had nothing to do with any
    arrangement she had with Medview, and Durham Drug Store would be responsible
    for any shortfall if she sold the equipment to Medview.

[16]

At
    this point, Ms. Abdulaziz queried how she had become involved with Macquarie, separate
    and apart from Medview. She told Macquarie that it could pick up the equipment
    and sort out the issue with Medview and Mr. Nead.

[17]

It
    was not until then, as the motion judge found, that Macquarie provided Ms. Abdulaziz
    with a signed copy of the Lease.

[18]

Macquarie
    then sued Durham Drug Store, claiming $90,057.14 under the Lease and for possession
    of the leased equipment.

[19]

Durham
    Drug Store defended on the basis that it believed that its contract was with
    Medview and Mr. Nead, not Macquarie, and that it was the victim of a scam
    perpetrated by Medview and Mr. Nead. It claimed it was never advised that it
    was contracting with anyone other than Medview and Mr. Nead.

[20]

Durham
    Drug Store issued a third party claim against Leasecorp, Mr. Nead, and Medview.
    Mr. Nead and Medview did not defend and were noted in default.

[21]

On
    Macquaries motion for summary judgment to enforce the terms of the Lease, the motion
    judge found that although Ms. Abdulaziz appears to have been the victim of the
    fraud perpetrated by Medview and Nead, there is no evidence that either
    Macquarie or Leasecorp participated in or knew about the fraud. He concluded
    that because the Lease was signed by Ms. Abdulaziz, it was enforceable against
    Durham Drug Store:

The failure to provide Abdulaziz with a copy of the lease, and
    the apparent failure of communication between Johnston and Abdulaziz with
    respect to the various parties involved in the transaction, and their roles,
    led to Abdulazizs understandable confusion and consternation when eventually
    contacted by Macquarie in relation to the default under the lease agreement,
    but this confusion and consternation does not vitiate the enforceability of the
    agreement.

[22]

Durham
    Drug Store now appeals this determination to this court.

[23]

In
    advance of the oral hearing, the court wrote to the parties asking them to be
    prepared to address the potential application of
Tilden Rent-A-Car Co. v.
    Clendenning
(1976), 18 O.R. (2d) 601 (C.A.), and
Forest Hill Homes v.
    Ou
, 2019 ONSC 4332. These cases address how extremely onerous or unfair
    contract terms may be unenforceable if inadequate notice of those terms was provided
    to the other contracting party at the time of contract formation.

[24]

In
    response to the courts letter, the parties filed supplementary authorities and
    made oral submissions addressing the principles in these decisions.

Analysis

[25]

In
    our view, on the evidence before him, the motion judge was entitled to find
    that Macquarie and Leasecorp did not participate in or have knowledge of any
    fraud allegedly committed by Medview and Nead, or fraudulently misrepresent
    anything to Durham Drug Store.

[26]

The fraud
    alleged was outlined in an affidavit of a former Medview employee. Medview and
    Mr. Nead had allegedly defrauded several pharmacies by recruiting them to join its
    telemedicine business and to purchase related equipment. Medview allegedly advised
    pharmacies that its telemedicine services were approved by the Ontario Ministry
    of Health, when this was false. Several disputes involving these issues are or
    have been before the courts.

[27]

The
    motion judge was also entitled to find that the evidence was insufficient to
    establish that the Lease was an unconscionable agreement, because neither
    Macquarie nor Leasecorp knowingly took advantage of Ms. Abdulazizs
    vulnerability and the Lease was neither unfair nor improvident
per se
.

[28]

However,
    that does not resolve all issues as to the enforceability of the Lease. The
    Lease also contained a term that purported to eliminate Durham Drug Stores
    ability to terminate or cancel the Lease during its term for any reason,
    including equipment failure, damage or loss:

3.
Non-Cancellable:
Lessee cannot terminate
    or cancel this Lease during the Term for any reason, including equipment
    failure, damage or loss. Lessee acknowledges and agrees that it has selected
    the Equipment and the Equipment Supplier and such acceptance cannot be revoked
    at any time. Lessor has purchased the Equipment at Lessees request and
    instruction only.

[29]

The
    effect of this provision is that Durham Drug Store would have to keep paying
    for the equipment even if Medview and Mr. Nead defaulted in providing telemedicine
    services. Without those services, the equipment was of no use.

[30]

As
    is evident, this no cancellation provision in the Lease is at odds with the early
    termination provision of the Medview MSA.

[31]

We
    do not dispute the ability of the contracting parties to agree to such a no
    cancellation provision in an adhesion contract such as the Lease between Macquarie
    and Durham Drug Store.

[32]

Nor
    do we dispute the binding effect of a partys assent to a contracts terms by
    signing it, whether or not they read the contract with appropriate care or at
    all. As noted by Professor John D. McCamus in
The Law of Contracts
, 2nd ed.
(Toronto: Irwin Law, 2012), at
    p. 193: If an agreement is entered into on the basis of a document proffered
    by one party and signed by the other, it is clearly established that the
    agreement between the parties contains the terms expressed in the document,
    whether or not the signing party has read the documents.

[33]

However,
    Professor McCamus adds that sometimes, even with a signed agreement, inadequate
    notice of a particularly unfair term may render that term unenforceable, at p.
    194:

In many contractual settings, it will not be expected that a
    signing party will take time to read the agreement. Even if the document is
    read, it may well be, especially in the context of consumer transactions, the
    purport of particular provisions of the agreement will not be understood by the
    signing party. Under traditional doctrine, then, although the fact of the
    signature appears to dispense with the notice issue, the opportunities for
    imposing harsh and oppressive terms on an unsuspecting party are, as a
    practical matter, as present in the context of signed documents as they are in
    the context of unsigned documents. Accordingly, it is perhaps not surprising
    that the recent jurisprudence indicates that notice requirements are migrating
    into the context of signed agreements.

[34]

The
    leading Ontario case on this point remains this courts decision in
Clendenning
.
    There, Dubin J.A. (as he then was) for the majority refused to enforce a limitation
    of liability provision in a car rental agreement that purported to exclude the
    rental companys liability for a collision where the customer had driven the
    car after consuming alcohol. Before renting the car, the customer had chosen to
    pay an additional premium for collision damage waiver, which he had been led
    to understand provided comprehensive insurance for vehicle damage. He signed
    the rental agreement without reading it.

[35]

In
    finding the exclusion clause unenforceable, Dubin J.A. highlighted that such a rental
    transaction was typically concluded in a hurried, informal manner, and that the
    liability exclusion provision was [o]n the back of the contract in particularly
    small type and so faint in the customers copy as to be hardly legible: at pp.
    602, 606. The exclusion clause was also inconsistent with the over-all purpose
    for which the transaction is entered into by the hirer: at p. 606.

[36]

In
    these circumstances, Dubin J.A. concluded that something more should be done
    by the party submitting the contract for signature than merely handing it over
    to be signed (at p. 606)  namely, reasonable measures must be taken to draw
    harsh and oppressive terms to the attention of the other party, at p. 609:

In modern commercial practice,
    many standard form printed documents are signed without being read or
    understood. In many cases the parties seeking to rely on the terms of the
    contract know or ought to know that the signature of a party to the contract does
    not represent the true intention of the signer, and that the party signing is
    unaware of the stringent and onerous provisions which the standard form
    contains. Under such circumstances, I am of the opinion that the party seeking
    to rely on such terms should not be able to do so in the absence of first
    having taken reasonable measures to draw such terms to the attention of the
    other party, and, in the absence of such reasonable measures, it is not
    necessary for the party denying knowledge of such terms to prove either fraud,
    misrepresentation or
non est factum
.

[37]

In
    our view, the highly unusual circumstances of this case bring it within the principle
    in
Clendenning
. Without suggesting that there was any intention to
    mislead Ms. Abdulaziz, here, the no-cancellation provision should have been
    specifically brought to Ms. Abdulazizs attention. It should have been
    explained to her that she would remain obligated to pay for the telemedicine
    equipment under the Lease even if Medview defaulted on its obligations.

[38]

While
    on its face a no-cancellation clause is a commonplace provision that is neither
    harsh nor oppressive, here it became so when seen in the light of the
    interactions among the parties and when juxtaposed with the early-termination
    provision of the Medview MSA  the only agreement that Ms. Adbulaziz was sent
    and which Medview advised her, to Mr. Johnstons knowledge, that Mr. Johnston
    would bring to her for signature. The Lease was then signed in a hurried
    manner, with no opportunity to negotiate the terms, without Ms. Abdulaziz reading
    it with any care because Mr. Johnston came by when she was busy in the pharmacy,
    and without the benefit of legal advice. Moreover, the entire Lease is
    contained in two tightly-packed pages in extremely small font. While technically
    legible, it can only be read with difficulty.

[39]

Mr.
    Johnstons evidence was that it was his standard practice to bring certain
    clauses to the attention of the lessee  the payment terms, the lessors
    remedies, and lessees obligations upon default  but he did not appear to do
    so in this case with respect to the no-cancellation provision, nor did he explain
    that Durham Drug Store would have to keep paying for the equipment even if
    Medview defaulted.

[40]

In
    these circumstances, it was not reasonable for Mr. Johnston or Macquarrie to
    have believed that Ms. Abdulaziz really assented to the no-cancellation provision
    of the Lease, which was at odds with the termination provision in the Medview
    MSA, without having first taken reasonable measures to bring that clause to her
    attention.

[41]

As
    the motion judge found, the apparent failure of communication between Mr.
    Johnston and Ms. Abdulaziz and the failure to provide Ms. Abdulaziz with a copy
    of the Lease led to her understandable confusion and consternation when
    Macquarie ultimately contacted her about her default. In our view, in this case
    that failure of communication bears on the enforceability of the Lease.

[42]

In all
    the circumstances, the no-cancellation provision is unenforceable. Upon
    Medviews default, Durham Drug Store was entitled to terminate the Lease and
    return the leased equipment to Macquarie. This is in effect what it purported
    to do when Medview defaulted and it told Macquarie to pick up the equipment.

[43]

Given
    this conclusion, it is not necessary to address whether interest is payable at
    the contractual rate of 2% per month for the remainder of the term of the
    Lease. That issue is moot.

Disposition

[44]

The
    appeal is allowed. The cross-appeal is dismissed as moot. Costs of the appeal
    and cross-appeal are payable by Macquarie to Durham Drug Store in the agreed
    amount of $15,000, inclusive of disbursements and taxes.

Released: February 20, 2020 (J.C.M)

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marley v. Salga, 2020 ONCA 104

DATE: 20200210

DOCKET: C67241

Simmons,
    Pepall and Trotter JJ.A.

BETWEEN

Karen Marley

Applicant (Appellant)

and

Suzanne
    Marcela Salga, Michelle Jessica Salga, The Estate of

Leslie
    Salga, and Helmut Klassen, in his capacity as

Estate
    Trustee of the Estate of Leslie Salga

Respondents (Respondents)

AND BETWEEN

Suzanne
    Marcela Salga and Michelle Jessica Salga

Applicants (Respondents)

and

Helmut Klassen
and Karen Marley

Respondents (
Respondent
)

Lionel J. Tupman, Arieh Bloom and
    Caroline Tarjan, for the appellant

Holly LeValliant and Joshua Eisen, for
    the respondents Suzanne Marcela Salga and Michelle Jessica Salga

Anne Marie DiSanto, for the respondent
    Helmut Klassen

Heard: February 3, 2020

On appeal
    from the judgment of Justice Robert B. Reid of the Superior Court of Justice, dated
    June 6, 2019 with reasons reported at 2019 ONSC 3527.

APPEAL BOOK ENDORSEMENT

[1]

We reject the appellants argument that the
    recording on which the application judge relied was inadmissible. The appellant
    did not raise this as a ground of appeal. Further, the appellant pointed to no
    authority to support this position. We are satisfied that the recording was
    relevant to a material issue and admissible. In particular, it corroborated the
    respondents position on the applications.

[2]

The application judge set out the proper test
    for determining whether a joint tenancy has been severed. This is a fact
    specific inquiry. We see no basis on which to interfere with the application
    judges decision. The appeal is dismissed.

[3]

The respondents seek costs on a full indemnity
    basis against the appellant in the amount of $78,860.02. We consider this
    amount grossly excessive. Their substantial indemnity costs claim in the court
    below was $12,555.16. We order costs of $25,000 on a full indemnity scale
    inclusive of disbursements and HST payable out of the estate. Like the
    application judge we conclude this litigation was made necessary by the actions
    of the deceased. The appellant shall bear her own costs.


COURT OF APPEAL FOR ONTARIO

CITATION: Medcof (Re), 2020 ONCA 105

DATE: 20200212

DOCKET: C66962

Doherty, Watt and Hourigan JJ.A.

IN THE MATTER OF:  William R. Medcof

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mercedes Perez, for the appellant

Lisa Fineberg, for the respondent, Her Majesty the Queen

Michele Warner, for the Person in Charge of the Centre
    for Addiction and Mental Health

Heard: January 31, 2020

On appeal against the disposition of the Ontario Review
    Board dated, April 4, 2019.

REASONS FOR DECISION

[1]

On November 29, 2002 the appellant was found not criminally responsible
    on account of mental disorder (NCRMD) of several offences committed on three
    separate victims over a period of two days. The offences included aggravated
    assault; assault with a weapon; kidnapping; uttering death threats; and
    criminal harassment, as well as breach of probation and of a form of judicial
    interim release. The victims included his roommate and his parents in separate
    incidents.

[2]

During the first decade of his supervision by the Ontario Review Board,
    the appellant was generally detained in the minimum and medium secure units of
    two local mental health facilities. He was found treatment incapable in 2006
    and remains so to this day. The Public Guardian and Trustee is his substitute
    decision-maker.

[3]

In 2012, the appellant was discharged to reside in the community in
    supportive housing. He has been re-hospitalized on many occasions as a result
    of urine screens positive for cannabis. Once transitioned to an injectable form
    of anti-psychotic medication in 2013, the appellant has remained compliant.

[4]

The appellant, currently 52 years old, has not been involved in any
    violent or other criminal behaviour in the community since his discharge to the
    community in 2012. Since May 8, 2017, the appellant has been subject to a
    conditional discharge.

The Current Disposition

[5]

On April 4, 2019 the Review Board ordered that the appellant be
    conditionally discharged. He lives in the community in a supervised residence.
    Among other terms, he is required to report to the Hospital not less than once
    every four weeks. The frequency of his reporting is linked to the schedule for
    injections of his anti-psychotic medication. He is also entitled to travel
    passes for up to four weeks duration with the prior approval of the Person in Charge
    of the Hospital.

The Grounds of Appeal

[6]

The appellant seeks an absolute discharge, in the alternative, a new
    hearing before a differently constituted panel of the Review Board. He advances
    two grounds of appeal. He says that:

i.

the Board's determination that he remains a significant threat to the
    safety of the public is unreasonable and cannot be supported on the evidence
    adduced on the hearing; and

ii.

the Board misapprehended the sufficiency of the availability of civil
    mechanisms to manage the appellant's risk were he to be discharged absolutely.

[7]

In our view, this appeal fails.

Ground #1: Unreasonable Finding of Significant Threat

[8]

The appellant says that the Board's finding that he remained a
    significant threat to the safety of the public" nearly two decades after
    he was found NCRMD is unreasonable and not supported by the evidence adduced at
    the hearing. Several factors, the appellant argues, taken together, support
    this conclusion. Among them are these:

i.

since the index offence, the appellant has not engaged in any violent
    conduct in or out of hospital;

ii.

the appellant has not been hospitalized since 2016;

iii.

the appellant, apart from two brief lapses several years ago, has been
    compliant with his anti-psychotic medication even in the absence of direct
    legal compulsion to do so;

iv.

the Board failed to expressly analyse the likelihood, timing, nature and
    gravity of recidivistic violence;

v.

the Board equated lack of insight and the prospect of non-compliance
    with anti-psychotic medication with the requirement of significant
    threat";

vi.

the Board relied on the appellant's history of decompensation when not
    medication-compliant or suboptimally medicated, but failed to consider the
    absence of violence on these occasions; and

vii.

the Board cut and pasted into its reasons several paragraphs of a prior Board's
    Reasons for Disposition which included recitals of evidence by the treating
    psychiatrist and reference to certain test results which were not before the
    Board on the hearing in this case.

[9]

In our view, the Board's conclusion on the issue of significant threat
    falls within the range of reasonable outcomes available on the evidence adduced
    at the hearing. That evidence included several factors identified by this court,
    on a prior appeal by the appellant; as relevant to the significant
    threat" determination:

i.

the appellant suffers from a major mental illness;

ii.

the serious nature of the index offences;

iii.

the appellant's lack of insight into his mental illness, his need for
    continuing treatment and the role his illness played in the index offences;

iv.

the appellant's historic resistance to treatment and his declared and
    unwavering intention to discontinue his psychotropic medication if absolutely
    discharged;

v.

his history of decompensation when not medication-compliant or when
    suboptimally medicated; and

vi.

the unanimous conclusion of the treatment team that he constitutes a significant
    threat".

See,
Medcof (Re)
, 2018 ONCA 1011, at para. 3.

[10]

In our assessment of the reasonableness of the finding of significant
    threat" in a case such as this where violent recidivism has not occurred
    during the Board's supervision of the appellant, we also keep in mind the
    exhaustive definition of a significant threat to the safety of the
    public" in s. 672.5401 of the
Criminal Code
:

For the purposes of section 672.54, a significant threat to the
    safety of the public means a risk of serious physical or psychological harm to
    members of the public  including any victim of or witness to the offence, or
    any person under the age of 18 years  resulting from conduct that is criminal
    in nature but not necessarily violent.

[11]

In addition, there was evidence before the Board that on the two prior
    periods of decompensation occasioned by medication non-compliance, the
    behavioural changes  increased antagonism, hostility and persecutory beliefs
    were the very factors afoot when the index offences were committed.

[12]

In a portion of its
Reasons for Disposition
under the heading,
Evidence
    at the Hearing
, the Board cut and pasted seven paragraphs of the
Reasons
    for Disposition
of the Board on the previous year's annual review. This
    was ill-advised and should not be repeated. The phrase
Evidence at the Hearing
" is
    self-explanatory. It means what it says. Nothing more. Nothing less. And
    nothing other than
Evidence at The Hearing
".

[13]

Despite this error, we are not persuaded that it resulted in an
    unreasonable finding of significant threat". In large measure, the copied
    information was contained in the Hospital Report to the Board on which both
    parties relied at the hearing. The actuarial risk assessments referred to in
    the incorporated paragraphs were re-administered within a month of the hearing
    with which we are concerned without inclusion of the actual scores on the
    relevant tests. The conclusions replicated those of the prior year.

[14]

We do not give effect to this ground of appeal.

Ground #2: Misapprehension of the Availability of Civil Mechanisms

[15]

The second ground of appeal alleged error in the Board's failure to
    appreciate the sufficiency of available civil mechanisms, coupled with an
    absolute discharge, to contain the risk to the public arising from the need to
    ensure that the appellant remained medication-compliant.

[16]

On the annual hearing with which we are concerned, the appellant was
    subject to a Community Treatment Order (CTO) on the basis of the consent
    provided by his substitute decision-maker, the
Public Guardian and Trustee
. The order was issued under the
    provisions of s. 33.1 of the
Mental Health Act
, R.S.O. 1990, c. M. 7 on
    the basis that if the appellant does not receive continuing treatment or care
    while residing under supervision in the community, he is likely at risk of
    causing serious bodily harm to another person or suffering substantial mental
    deterioration. The order was monitored by the appellants attending
    psychiatrist in the Extended Forensic Outpatient Service at CAMH. The order was
    in force for six months and could be renewed for a further six-month period.

[17]

On the hearing of the appeal, we were advised that the appellant's CTO
    expired four months after the hearing. It was not renewed. In these
    circumstances, the appellant did not press this ground of appeal and we see no
    reason to consider it further.

[18]

The Crown respondent applied to introduce a victim impact statement from
    the appellants father as fresh evidence on the hearing of the appeal. We did
    not receive submissions from the parties on the admissibility of this proposed
    fresh evidence. As a result, we have not considered this statement in reaching
    our conclusion on this appeal.

Disposition

[19]

The appeal is dismissed.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Muslim Green Cemeteries
    Corporation v. Toronto Muslim Cemetery Corp., 2020 ONCA 94

DATE: 20200205

DOCKET: C66533

Simmons, Pepall and Trotter
    JJ.A.

BETWEEN

Muslim Green Cemeteries
    Corporation

Applicant (Respondent)

and

Toronto Muslim Cemetery Corp.

Respondent (Appellant)

Michael N. Freeman, for the appellant

John Longo and Patrick Copeland, for
    the respondent

Heard: February 4, 2020

On appeal from the order of Justice Jill
    M. Copeland of the Superior Court of Justice, dated January 9, 2019.

APPEAL BOOK ENDORSEMENT

[1]

The issues on appeal concern the interpretation
    of an agreement dated May 13, 2014 between the appellant and the respondent and
    whether the agreement is tainted by illegality. Past litigation confirmed the
    validity of the agreement subject to excising paragraph 7(7). (See order of
    Lederer J. dated August 20, 2015 subsequently affirmed by this court). Further
    litigation required specific performance of the agreement. (See order of Dow J.
    dated November 22, 2016 subsequently upheld by this court, leave to the S.C.C.
    refused).

[2]

The application judge rejected the appellants
    proposed interpretation of the agreement. We see no palpable and overriding
    error or extricable error of law in her interpretation. The appeal is
    dismissed. Costs of the appeal to the respondent fixed in the agreed amount of
    $25,000 on a partial indemnity scale, inclusive of disbursements and HST.