CITATION:
Covriga v. Covriga, 2011 ONCA 769

DATE: 20111207

DOCKET: C50900

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Mihaela Juliana Covriga

Appellant in Appeal (Applicant)

and

Remus Joan Covriga

Respondent in Appeal (Respondent)

Mihaela Covriga, in person

Kim Stock, for the respondent

Heard and released orally: November 21, 2011

On appeal from the order of Justice Carolyn Horkins of the
          Superior Court of Justice dated August 8, 2009.

ENDORSEMENT

[1]

The appellants main issue raised before this court is that her trial
    counsel was not well versed in family law and trial procedure, that this was
    apparent to the trial judge, and that as a result, the trial judge should have
    declared a mistrial at some point.

[2]

We cannot give effect to this submission. The appellant made no motion
    for a mistrial. The trial lasted 14 days. The appellant was represented by her
    counsel throughout. There was no basis for the trial judge, on her own motion,
    to declare a mistrial in the circumstances of this case.

[3]

The trial judge gave thorough reasons and made clear findings of fact on
    which she based her legal conclusions. She also gave lengthy and thorough
    reasons for awarding costs in this case, in part against trial counsel to
    reflect her role in the delay and other conduct that added to the cost of this
    proceeding.

[4]

The trial judge learned only after the trial, in an affidavit filed for
    the cost hearing, that the appellants lawyer was on administrative suspension
    from the Law Society for several days during the trial. On the record before
    us, there was no basis to conclude that the administrative suspension affected
    the fairness of the trial.

[5]

The appeal is therefore dismissed with costs on a partial indemnity
    scale fixed at $12,000 inclusive of disbursements and H.S.T.

Signed:           K. Feldman
    J.A.

Robert
    J. Sharpe J.A.

G.J. Epstein J.A.


CITATION:
Davis v. Guelph (City), 2011 ONCA 761

DATE: 20111206

DOCKET: C53429

COURT OF APPEAL FOR ONTARIO

Blair, Juriansz JJ.A. and Pepall J. (
ad hoc)

BETWEEN

Erica Davis

Appellant (Respondent in Appeal)

and

The Corporation of the City of Guelph

Respondent (Appellant in Appeal)

Scott Worsfold for the appellant, The Corporation of the City
          of Guelph

Ms. Erica Davis, self-represented

Heard: October 24, 2011

On appeal from the order of Justice D.G. Price of the Superior
          Court of Justice, dated February 18, 2011, allowing an appeal from an order
          of the Citys Property Standards Committee and quashing the order of the
          Citys Property Standards Officer.

R.A. Blair J.A.:

Overview

[1]

This appeal has its roots in an ongoing dispute between Ms. Davis and
    the City of Guelph over the state of repair of a swimming pool located in her
    back yard at 8 Terrace Lane.  The dispute began in the spring of 2006.

[2]

Following a complaint from one of Ms. Davis neighbours at that time,
    the City conducted two inspections of the property and observed that there was
    standing water on a tarp covering the pool and that the circulation pump for
    the swimming pool did not appear to be functioning.  On May 31, 2006, the City
    served a Notice of Violation under No. (2003)  17192,
Standing Water By-law
,
    requiring Ms. Davis to ensure by June 6 that the pool pump was circulating the
    pool water and that the water remained chlorinated.  Standing water is a
    breeding ground for mosquitoes, and the threat of the West Nile virus was a
    prevalent concern at the time.

[3]

On June 15, 2006, an enforcement officer from the City, Ray Borthwick,
    attended at the premises and  in the absence of Ms. Davis, who was out of the
    country on a family matter  re-entered the back yard.  Observing that the
    standing water remained on the tarp and that the pump was still not
    functioning, Mr. Borthwick arranged to have the standing water removed from the
    tarp, the tarp removed from the pool and  after consultation with an outside
    swimming pool company  the pool drained to a depth of 6 in the shallow end,
    and the remaining water chlorinated.

[4]

These actions, and Ms. Davis failure to take any steps to respond to
    the Citys Notice, were the genesis of the ongoing problems that followed.  Ms.
    Davis says that when she returned from abroad she discovered that the vinyl
    lining on the pool had begun to peel away and the surrounding earth had begun
    to collapse into the pool.  On June 26, 2006 she wrote to the City asking what
    they had done and requesting compensation.  In August, the City conducted
    another inspection and noted that there was green-coloured standing water in
    the pool and that the pool liner was still in disrepair.  The City issued
    another Notice of Violation on August 2, 2006 requiring that Ms. Davis ensure that
    the pool pump was circulating water and that the water was chlorinated by
    August 8, 2006. When that was not done Mr. Borthwick and a Building Inspector,
    Robert Reynen, attended at the premises on August 10 and caused the remaining
    water to be drained from the pool.

[5]

There followed a series of further Notices of Violation under the Citys
    Standing Water By-law in 2007, in 2008 and in 2009.  Ms. Davis did not respond
    to any of them.  It was her position that the City had caused the damage to the
    pool by improperly draining the water out of it, and that the City should pay
    for and repair the damage.  In June 2008, she commenced a civil action against
    the City claiming damages in the amount of $75,000, representing her estimated
    cost of repairing the pool.

[6]

Finally, on May 26, 2009, Mr. Reynen  by then the Citys Manager of
    Inspection Services and the Property Standards Officer  issued a Repair Order
    to Ms. Davis requiring her to repair the pool and make it structurally sound,
    as well as the surrounding concrete walk areas in the yard, or, alternatively,
    to remove the pool.  She was to comply by June 26, 2009.

[7]

Ms. Davis appealed this order to the Citys Property Standards
    Committee, which confirmed the Repair Order on June 23, 2009.  She then
    appealed the Order of the Committee to a judge of the Superior Court of
    Justice, as she is entitled to do under the
Building Code Act
, S.O.
    1992, c. 23, s.15.3(4).

[8]

On February 18, 2011, Price J. allowed her appeal, quashed the order of
    the Property Standards Officer and substituted his own order that the costs of
    repairing the swimming pool be shared by the parties in proportions to be
    determined by him.

[9]

The City appeals, raising procedural fairness, statutory interpretation
    and jurisdictional grounds.  In particular, Mr. Worsfold argues that the
    appeals judge erred by:

a)

breaching the principles of
    procedural fairness by determining issues without providing the City with the
    opportunity to respond and make submissions, including issues concerning:

(i)
    whether the respondents back-yard swimming pool constituted a room or place
    actually being used as a dwelling as contemplated by s. 437 of the
Municipal
    Act, 2001
,

S.O. 2001, c. 25;

(ii)
    the application of
Charter
privacy rights to an inspection under the
Municipal
    Act
, and City by-laws; and

(iii)
    Whether the appeals judge had jurisdiction to make the order requiring the
    parties to share the costs of repair;

b)

by erring in his determination of the foregoing issues in any event;
    and,

c)

by holding that the Repair Order should be set aside on the grounds of
    bias.

[10]

I would allow the appeal for the reasons that follow.

Facts

[11]

The City of Guelph has a Standing Water By-law that prohibits a swimming
    pool and swimming pool cover from containing standing water (i.e., any water
    that is not continuously in movement by natural or mechanical means).  As
    noted, there was a particular concern during this period of time that standing
    water areas not become breeding grounds for mosquitoes in order to protect the
    public from the spread of the West Nile virus.

[12]

In the spring of 2006, the City received a complaint from one of Ms.
    Davis neighbours that standing water in her pool constituted a health hazard.
    Mr. Borthwick was sent to investigate.  He observed the pool from an adjacent
    property on May 9 and May 29, 2006, saw water on a blue tarp covering the pool,
    and concluded that the circulation pump was not functioning to keep the water
    circulating.  He issued a Notice of Violation on May 31, 2006, requiring Ms.
    Davis to ensure that by June 6 the pool pump was circulating the pool water and
    that the water remained chlorinated.

[13]

On June 15, 2006, Mr. Borthwick returned to the Davis premises again to
    determine whether the Notice had been complied with and to carry out the work
    if required.  Ms. Davis was out of the country.  He entered the rear yard of
    the property, without consent or a warrant, and observed that standing water
    remained on the blue tarp covering the pool and that the pool pump was not
    functioning.

[14]

As a result, Mr. Borthwick caused the blue tarp covering the pool to be
    vacuumed dry and removed.  He also observed that there was pre-existing damage
    to the pool liner in a number of locations and that the liner was pulled away
    at the corners and at the side of the pool.  There was duct tape evident at the
    side of the pool to fasten the liner, temporarily, to the concrete wall.
    Photographs taken at the time confirm this. Mr. Borthwick then consulted an
    outside pool company and, following the advice he received from that source,
    arranged to have the water in the pool drained to a depth of 6 in the shallow
    end.  The idea was to leave some water in the pool to avoid further damage to
    the liner until the owner could put the pool into proper operating condition.
    The water in the pool was then chlorinated with the approval of the
    Wellington-Dufferin-Guelph Public Health Inspector.

[15]

When Ms. Davis returned she was upset to learn that her pool cover and
    pump had been removed and that the water in the pool had been emptied to a
    level below the entry valves through which water had to enter to keep water
    circulating, and which  she says  caused the vinyl liner to peel away further
    and the surrounding earth to begin collapsing into the pool.  She wrote to the
    City in June to complain, but received no response to her letters.

[16]

On August 2, 2006, Mr. Borthwick again inspected the Davis pool from an
    adjacent property and observed that there was green coloured standing water in
    the pool and that the pool liner was still pulled away at the corners and
    side.  It appeared to him that no steps had been taken by the owner since the
    June 15 inspection, and he issued another Notice of Violation under the
    Standing Water By-law requiring the owner to ensure that the pool pump was
    circulating the pool water and that the water remained chlorinated.  He posted
    the Notice and sent a copy to Ms. Davis by mail.

[17]

On August 9, 2006, Mr. Reynen  then one of the Citys Building
    Inpectors  attended at the Davis premises.  He knocked on the door but
    received no response.  He left a notice on the front door advising that
    remedial work would be carried out by the City the following day to comply with
    the Standing Water By-law as required by the August 2 Notice issued by Mr.
    Borthwick.  Prior to his August 9 attendance, Mr.
Reynen was aware that Mr. Borthwick had attended the property in June to carry
    out earlier work relating to a standing water violation.  There is no evidence,
    however, that Mr. Reynen had any involvement in any of the steps earlier taken
    by Mr. Borthwick.

[18]

Ms. Davis says that she sent letters to the City, including one to Mr.
    Reynen on June 26, and that she had a number of telephone conversations with
    City officials, including Mr. Reynen, in which she complained that the City had
    unnecessarily caused damage to her pool and asked that the City repair the
    damage.  Mr. Reynen does not recall the various letters referred to by Ms.
    Davis, save for one  the letter dated June 26, 2006, to which he did not
    respond on the advice of his superior, Bruce Poole, the Citys Chief Building
    Inspector.  Nor does he recall any telephone calls with Ms. Davis during the
    course of the summer, although his records indicate that he tried,
    unsuccessfully, to call her on four separate occasions on August 9.

[19]

At the outset of the appeal hearing, Ms. Davis filed an audio tape and a
    transcript of a telephone conversation that satisfied the appeal judge she had
    spoken to Mr. Reynen on the phone on August 10, 2006.  Counsel for the City did
    not have a copy of the audio tape, but in any event the upshot of the conversation
    between Ms. Davis and Mr. Reynen on August 10  according to the transcript
    is that, on Ms. Davis side, she wanted to have her expert and her lawyer and
    witnesses there when the City officials attended and that she wanted the City
    to repair the pool, and, on Mr. Reynens part, that he refused to budge from
    the Citys position that the City would be attending that day to empty the
    pool.

[20]

Mr. Reynen did attend at the Davis premises on August 10, 2006, along
    with Mr. Borthwick and a Wellington-Dufferin-Guelph Health Inspector and a
    Guelph police officer.  Ms. Davis grudgingly permitted access to her back yard
    where Mr. Reynen directed the City staff to empty the pool of the remaining
    standing water as it was in contravention of the Standing Water By-law and had
    not been corrected as required by the August 2 Notice of Violation.

[21]

The saga continued over the next few years.

[22]

As a result of complaints about standing water in the pool, further
    Notices of Violation under the Standing Water By-law were issued on June 22,
    2007, August 13, 2007, May 26, 2008 and May 15, 2009.  On May 6, 2008, an Order
    of the Public Health Inspector was issued under the
Health Protection and
    Promotion Act
, R.S.O. 1990, c. H.7, requiring the respondent to treat the
    water in the pool with larvicide and to have the pool fully operational or
    permanently backfill the pool.

[23]

Inspections of the premises by Mr. Borthwick and a Public Health
    Inspector on July 9, 2007, August 21, 2007, June 19, 2008, July 2, 2009 and
    August 12, 2009 confirmed that Ms. Davis had done nothing to comply with the
    various Notices of Violation.  On each of these attendances, no one answered
    the door when the officials arrived and they entered the rear yard of Ms.
    Davis property without consent and without having obtained a warrant.  The
    City contractor added larvicide to the water on three of these occasions.

[24]

In June 2008, Ms. Davis commenced her action against the City claiming
    damages for the costs of repairing the pool.  The action was dismissed by
    Herold J. on February 16, 2010.  Ms. Davis subsequently appealed that decision,
    but was considerably late in filing her Notice of Appeal.  She was ultimately
    denied an extension of time to appeal.

[25]

The condition of the swimming pool continued to deteriorate during all
    this time.

[26]

On May 14, 2009, a Property Standards Inspector for the City, Stephen
    Jamieson, attended the Davis property in response to yet another complaint
    about standing water.  He testified that he obtained the consent of a male
    occupant of the house to enter the property.  Ms. Davis contests this
    vigorously, insisting that she did not have a male visitor or a male occupant
    in the house during this period of time.  The trial judge rejected Mr.
    Jamiesons evidence on this point and found that he entered the property
    without permission.

[27]

In any event, Mr. Jamieson discovered that the rear yard was locked.  He
    therefore viewed the yard from an adjacent property and then gained access to
    Ms. Davis rear yard from the adjacent property.  He observed that there was
    standing water in the pool and that there was visible structural failure due to
    the partial collapse of the pool walls.  He considered this to be a hazard to
    any persons in the immediate vicinity and he issued a Notice of Violation under
    the Standing Water By-law the following day, May 15, 2009.

[28]

Mr. Jamieson then had a discussion with Mr. Reynen, who in his then
    capacity as Manager for Inspection Services was Mr. Jamiesons supervisor. As a
    result of the information conveyed to Mr. Reynen, together with the photographs
    showing the deterioration of the swimming pool and the surrounding concrete
    walkway, Mr. Jamieson and Mr. Reynen concluded that the condition of the
    swimming pool and adjacent walkways was such that they posed a hazard to any
    persons in the vicinity of the pool in the event of further collapse of the
    structure.

[29]

On May 26, 2009, Mr. Reynen issued the Repair Order that is the subject
    of these proceedings.

Analysis

Procedural Fairness Issues

[30]

I do not think it is necessary to deal at length with the procedural
    fairness issues raised by the City.

[31]

It appears that the evidence and the issues at the appeal hearing
    focussed on the alleged impropriety of the City officials conduct in doing
    what they did to the pool in 2006 and on whether Mr. Jamieson and the other
    agents had consent to enter on Ms. Davis property in her absence.  The issue
    of whether the swimming pool is a room or place actually being used as a
    dwelling does not appear to have arisen, nor do counsel appear to have been given
    an opportunity to make submissions on it.  The same may be said for the issue
    of the appeal judges jurisdiction to make the remedial order he made.  While
    the foregoing errors may amount to reversible error in themselves, I do not
    propose to deal with the appeal on that basis.  I am persuaded that the appeal
    judge erred in his determination of the issues outlined above on their merits
    and that the appeal should be allowed.

[32]

I say this for the following reasons.

A Room or Place Actually Being Used
    as a Dwelling

[33]

The appeal judge concluded that Ms. Davis backyard swimming pool
    constitutes a room or place actually being used as a dwelling as contemplated
    by s. 437 of the
Municipal Act
and therefore that the City required
    either the consent of the occupier or a warrant  neither of which it had  to
    enter upon Ms. Davis premises.  I disagree.

[34]

The
Municipal Act
and the
Building Code Act
provide a
    framework within which municipalities may pass by-laws permitting their
    officials to enter upon property for purposes of inspection, without consent
    and without a warrant, subject to certain qualifications (the right of entry
    provisions).  The City of Guelph has passed such a by-law.

[35]

For these purposes, the relevant statutory provisions are the following:

The Municipal Act

Power
    of entry re inspection

436.
(1)
A municipality has the power to pass by-laws
    providing that the municipality may enter on land at any reasonable time for
    the purpose of carrying out an inspection to determine whether or not the
    following are being complied with:

1.   A
    by-law of the municipality passed under this Act.

2.   A
    direction or order of the municipality made under this Act or made under a
    by-law of the municipality passed under this Act.

3.   A
    condition of a licence issued under a by-law of the municipality passed under
    this Act.

4.   An order made under section 431.

...

Restriction re
    dwellings

437.

Despite any
    provision of this Act, a person exercising a power of entry on behalf of a
    municipality under this Act shall not enter or remain in any room or place
    actually being used as a dwelling unless,

(a) the consent of
    the occupier is obtained, the occupier first having been informed that the
    right of entry may be refused and, if refused, may only be made under the
    authority of an order issued under section 438, a warrant issued under section
    439 or a warrant under section 386.3;

(b) an order issued
    under section 438

is obtained;

(c) a warrant issued
    under section 439 is obtained;

(d) a warrant issued
    under section 386.3 is obtained;

(e) the delay
    necessary to obtain an order under section 438, to obtain a warrant under
    section 439 or to obtain the consent of the occupier would result in an
    immediate danger to the health or safety of any person; or

(f)  the
    municipality has given notice of its intention to enter to the occupier of the
    land as required under subsection 435 (2) and the entry is authorized under
    section 79, 80 or 446.

The Building Code
    Act

Inspection of property
    without warrant

15.2
(1)
Where
    a by-law under section 15.1 is in effect, an officer may, upon producing proper
    identification, enter upon any property at any reasonable time without a
    warrant for the purpose of inspecting the property to determine,

(a)  whether the
    property conforms with the standards prescribed in the by-law; or

(b)  whether an
    order made under subsection (2) has been complied with.

Contents of order

(2)
An officer who finds that a
    property does not conform with any of the standards prescribed in a by-law
    passed under section 15.1 may make an order,

(a)   stating the
    municipal address or the legal description of the property;

(b)  giving reasonable
    particulars of the repairs to be made or stating that the site is to be cleared
    of all buildings, structures, debris or refuse and left in a graded and
    levelled condition;

(c)   indicating the
    time for complying with the terms and conditions of the order and giving notice
    that, if the repair or clearance is not carried out within
    that  time, the municipality may carry out the repair or clearance at
    the owners expense; and

(d)  indicating the
    final date for giving notice of appeal from the order.

Service and posting
    of order

(3)
The order shall be served on
    the owner of the property and such other persons affected by it as the officer
    determines and a copy of the order may be posted on the property.

...

[36]

The Citys By-Law No. (2009)  18776,
Power of Entry By-Law
,
    mirrors these statutory permissions and qualifications.

[37]

The statutory right of entry provisions and the Citys by-law constitute
    a regulatory administrative power of entry designed to enable municipal
    officials to monitor and inspect premises for compliance with municipal
    by-laws, licensing requirements, standards, directions and orders.  They are
    enacted for the safety and protection of the public:  see
Comité paritaire
    de lindustrie de la chemise c. Jonathan Potash
, [1994] 2 S.C.R. 406, at p.
    419;
Orillia (City) v. Nicol
(1997), 114 C.C.C. (3d) 570 (Ont. C.A.), at
    paras. 9-10.   They accomplish this purpose  while at the same time respecting
    the enhanced privacy rights in a home  by enabling those officials to enter
    upon a persons property without the need for consent or a warrant
unless
the place being entered is a room or place actually being used as a
    dwelling.

[38]

In my view a room or place actually being used as a dwelling, for
    these purposes, is a building, room or physical structure that is actually
    being occupied and used as a residence or live-in accommodation.  A dwelling in
    this sense does not include a backyard swimming pool  in this case, Ms. Davis
    swimming pool  which is an amenity exterior to the building or structure in
    which she lives and incidental to its use.  This interpretation is consistent
    with the regulatory right of entry provisions in the
Municipal Act
, the
Building
    Code Act
, and the by-law, and their purpose, as described above.  Were it
    otherwise, a municipalitys right of entry could readily be frustrated by
    recalcitrant owners and occupiers who refused consent and who camouflaged their
    non-compliant activities in a manner that made it difficult for municipal
    officials to obtain a warrant.

[39]

The jurisprudence has drawn a distinction between a private dwelling or
    home and a persons backyard or other structure on the basis that there is a
    significantly reduced expectation of privacy in the latter.  It also draws a
    distinction between the criminal law and municipal regulatory law for
Charter
and constitutional purposes: see
R. v. Puskas
, 36 O.R. (3d) 474 (Ont.
    C.A.), at paras. 17-18;
Nicol
, at paras. 9-10.

[40]

The fundamental principles of statutory interpretation direct that the
    words of a statute be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of the legislature: see
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, per Iacobucci J. at para. 21; see also
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para.26,
    and the cases cited therein.  In the case of s. 437 of the
Municipal Act
,
    some assistance may also be found in the principle that says words may take
    their meaning from the words with which they are associated  the
euisdem
    generis
rule.

[41]

Here, the word room is significant.  A swimming pool is not a room
    although it may be a place.  But the word place must take some of its
    colour from the word preceding it  room  in my view.  A room in this
    context connotes a living space and therefore a place in this context does as
    well.  Both must be actually being used as a dwelling.  Dwelling as well
    takes its meaning from the words preceding it, both of which speak to the
    notion of a living space.  The words actually being used suggest that the
    room or place must be presently and for practical purposes being used as living
    space.

[42]

Ms. Davis back yard swimming pool is consistent with none of these
    indicators.

[43]

There is no definition of the word dwelling in the
Municipal Act
or in other Ontario legislation.  However, dwelling unit is defined in a
    number of Ontario and federal enactments and regulations  always in a way that
    carries the sense of a residence or domestic establishment where people typically
    eat, sleep and live.  Perhaps most closely associated with the present
    circumstances are the regulations under the
Building Code Act
(O. Reg.
    350/06) itself, which define dwelling unit to mean a suite operated as a
    housekeeping unit, used or intended to be used as a domicile by one or more
    persons and usually containing cooking, eating, living, sleeping and sanitary
    facilities: see also the
Planning Act
, R.S.O. 1990, c. P.13, s. 33(1);
    the
Architects Act
, R.S.O. 1990, c. A.26, s. 11(6); the
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 2; the
Income Tax Act
, R.S.C. 1985 (5
th
Supp.), c. 1, s. 231.  Indeed, the word unit might easily be replaced by the
    word place in these definitions, in my view  a dwelling place instead of a
    dwelling unit. An exterior swimming pool is not such a unit or place.

[44]

At the same time, the foregoing interpretation of the word dwelling is
    also consistent with the way in which that word is defined in municipal
    regulatory provisions in other provinces.  For example:

Nova Scotia

Matrimonial Property Act
, R.S.N.S. 1989, c.
    275, s. 2(d):

In this Act,

dwelling includes a
    house, condominium, cottage, mobile home, trailer or boat
occupied as a
    residence
. [Emphasis added.]

Health Protection
    Act
, S.N.S. 2004, c. 4, s. 3(a):

In this Act,

dwelling means a
    building or a portion of a building
that is occupied and used as a residence
and includes a house, condominium, apartment, cottage, mobile home, trailer or
    boat
that is occupied and used as a residence
. [Emphasis added.]

Manitoba

Fumigation and Pest
    Control Regulation
, Man. Reg. 323/88R, s.1:

In this regulation,

house or dwelling
    means any building, hut, or tent used for human habitation whether that use is
    permanent or temporary, and whether it is stationary or movable, and includes
    also any school or factory in part so used.

Dwellings and Buildings Regulation
,
    Man. Reg. 322/88R, s. 1:

In this regulation,

dwelling means a
    building or other structure all or part of which is used, or intended to be
    used, for human habitation.

[45]

All of these suggest that when legislators and regulators resort to the
    word dwelling they do not intend it to encompass structural amenities such as
    outside backyard swimming pools.

[46]

The appeals judge referred to a number of authorities in arriving at the
    contrary conclusion.  Those authorities do not support his view, however.  They
    are all distinguishable and do not address the issue whether a backyard
    swimming pool constitutes a place used as a dwelling.

[47]

For instance, while
Balon v. SGI Canada
, 2004 SKPC 104, 226 Sask.
    R. 141, did concern a swimming pool and the issue whether an insurance policy
    covered moisture damage in a room containing the pool, the pool was an interior
    pool and therefore was clearly within a room or place used as a dwelling.  The
    other authorities referred to by the appeal judge either did not involve
    swimming pools at all (
Lehmann v. Co-operators General Insurance Co.
,2009
    MBQB 6, 71 C.C.L.I. (4th) 135,), or the insurance policy in question expressly
    included swimming pools as part of a dwelling (
Klenk v. Saskatchewan
    Government Insurance
, 2009 SKPC 96, 339 Sask. R. 211)  a case dealing with
    coverage for garage doors)  or the cases involved other structures that were
    considered, like swimming pools, to be incidental to or ancillary to the use of
    a single family dwelling, but were not found to be part of the dwelling: a
    skate board ramp (
A.B. Eight Holdings, Ltd. v. West Vancouver (Dist.)
(1987), 16 B.C.L.R. (2d) 129 (C.A.)); a motorbike practice ramp (
R. v.
    Mane-Tail Land Development Ltd.,
2007 NSSC 173, 255 N.S.R. (2d) 376, at
    paras. 19-20); a garage/stable for three horses (
Oliver v. Eastern
    Newfoundland Regional Appeal Board
, 2010 NLTD 30, 301 Nfld. & P.E.I.R.
    301).
Boudreau v. Viola
, 2007 QCCS 1082, J.E. 2007-818, had a link to a
    swimming pool but had nothing to do with whether that pool was part of a
    dwelling; it concerned a dispute between a swimming pool owner who planted a
    row of trees on her property for the purpose of protecting her privacy, and the
    pool-owners neighbours who argued that the trees were interfering with their
    right to a pleasant view of the neighbourhood.

[48]

In
Puskas
, at paras. 15-17, this Court expressly distinguished
    between a dwelling and a backyard for purposes of assessing the implications of
    a warrantless search.  Although the case is decided in the criminal law
    context, the same underlying concerns that apply to the entry of municipal
    officials into a persons home or dwelling, as opposed to other parts of the
    persons lands, are in play.  Respectfully, rather than being distinguishable,
    as the appeal judge found, the distinction drawn in
Puskas
is consistent
    with the foregoing interpretation of
dwelling.

[49]

In summary, a room or place actually being used as a dwelling, for
    purposes of s. 437 of the
Municipal Act
and the City By-law, is a
    building, room or physical structure that is actually being occupied and used
    as a residence or live-in accommodation.  A backyard swimming pool  an
    exterior amenity the use of which is incidental to the residence  is not a
    dwelling.

The
Charter

[50]

That being the case, no
Charter
issue arises because the City
    officials were entitled to enter onto the respondents property without her
    consent to determine whether the Citys by-laws or its orders or directions
    were being complied with, pursuant to the Citys right of entry by-law enacted
    pursuant to s. 436 of the
Municipal Act
. The appeal judges concern, and
    his negative findings with respect to the apparently high-handed manner in
    which the various City officials entered upon the Davis property over the years
     particularly in May and June 2006, and in the case of Mr. Reynen and Mr.
    Jamieson in May and August, 2009  and what they did upon entry, are of little
    relevance as a result.

[51]

Because the
Charter
is not applicable, the appeal judge erred in
    excluding the evidence of the Property Standards Inspector, Mr. Jamieson, and
    the By-law Enforcement Officer, Mr. Borthwick, from his consideration.  That
    evidence amply supported the Citys decision to serve the Repair Notice and to
    take the steps it did in relation to Ms. Davis property.

Jurisdiction To Make The Order

[52]

The appeal judge ordered that the City and Ms. Davis share the costs of
    repairing the pool in proportions to be determined by him. While it is not
    necessary to decide the issue, given the foregoing determination, the appeal
    judge did not have the authority to make such an order under the
Building
    Code Act
, in my view.

[53]

Section 15.2(2) and s. 15.3 of the
Building Code Act
provide the
    framework for the orders that may be made and for what may be done in the
    appeal process relating to those orders.  They state:

Inspection of property
    without warrant

15.2
(2)
An officer who finds that a
    property does not conform with any of the standards prescribed in a by-law
    passed under section 15.1 may make an order,

(a)   stating the
    municipal address or the legal description of the property;

(b)  giving
    reasonable particulars of the repairs to be made or stating that the site is to
    be cleared of all buildings, structures, debris or refuse and left in a graded
    and levelled condition;

(c)   indicating
    the time for complying with the terms and conditions of the order and giving
    notice that, if the repair or clearance is not carried out within
    that  time, the municipality may carry out the repair or clearance at
    the owners expense; and

(d)  indicating the
    final date for giving notice of appeal from the order.

15.3  (1)
An owner or
    occupant who has been served with an order made under subsection 15.2 (2) and
    who is not satisfied with the terms or conditions of the order may appeal to
    the committee by sending a notice of appeal by registered mail to the secretary
    of the committee within 14 days after being served with the order.

Confirmation of order

(2)
An order that is not
    appealed within the time referred to in subsection (1) shall be deemed to be
    confirmed.

Duty of committee

(3)
The committee shall hear the
    appeal.

Powers of committee

(3.1)
On an appeal, the
    committee has all the powers and functions of the officer who made the order
    and the committee may do any of the following things if, in the committees
    opinion, doing so would maintain the general intent and purpose of the by-law
    and of the official plan or policy statement:

1.   Confirm,
    modify or rescind the order to demolish or repair.

2.  Extend
    the time for complying with the order.

Appeal to court

(4)
The municipality in which
    the property is situate or any owner or occupant or person affected by a
    decision under subsection (3.1) may appeal to the Superior Court of Justice by
    notifying the clerk of the municipality in writing and by applying to the court
    within 14 days after a copy of the decision is sent.

Appointment

(5)
The Superior Court of
    Justice shall appoint, in writing, a time and place for the hearing of the
    appeal and may direct in the appointment the manner in which and the persons
    upon whom the appointment is to be served.

Judges powers

(6)
On the appeal, the judge has
    the same powers and functions as the committee.

Effect of decisions

(7)
An order that is deemed to
    be confirmed under subsection (2) or that is confirmed or modified by the
    committee under subsection (3) or a judge under subsection (6), as the case may
    be, shall be final and binding upon the owner and occupant who shall carry out
    the repair or demolition within the time and in the manner specified in the
    order.

[54]

The appeal judge has the same powers and functions as the Property
    Standards Committee.  That Committee has all the powers and functions of the
    Property Standards Officer and may either confirm, modify or rescind the order
    to demolish or repair or extend the time for complying with the order.  A
    Property Standards Officer may make an order providing for the matters set out
    in subsection 15.2(2), including an order that if the repairs are not carried
    out within the time prescribed, the municipality may carry them out at the
    owners expense.  But the officer has no authority to require the municipality
    to share the costs.

[55]

The appeal judge, therefore, had no authority to require the
    municipality to share the costs.

[56]

There is another reason why the order ought not to have been made.  Ms.
    Davis had commenced a civil action against the City in the Superior Court
    claiming damages in the amount of $75,000, representing the costs of repairing
    the pool.  On February 16, 2010, Herold J. dismissed her claim.  The question
    of the Citys responsibility for repairing the pool had already been determined
    against her in an action involving the same parties and the same issue, and was
    therefore
res judicata
.

Bias

[57]

One further issue remains to be discussed.

[58]

Mr. Reynen issued the Repair Order on May 26, 2009.  He did so in his
    capacity as Property Standards Officer and as the Manager for Inspection
    Services for the City.  Earlier, however  in August, 2006, and in a different
    capacity as a City Building Inspector and by-law enforcement officer  Mr.
    Reynen had been one of those attending Ms. Davis property and directing that
    the pool be drained and the other remedial work about which Ms. Davis
    complains, be done.  The appeal judge found, at para. 213, that:

... Mr. Reynens decision on May 26, 2009, to order
    Ms. Davis to repair her pool at her own expense was invalid by reason of his
    earlier responsibility for the unfairly made decision to drain the pool, which
    she claimed had caused the damage in question, and which was the subject of a
    pending lawsuit in which she sought to hold the City responsible for the
    repairs.
The interest Mr. Reynen held, both personally and professionally,
    in vindicating his previous decision caused a reasonable apprehension of bias
    in his decision
as to who should be responsible for the cost of repairs.
    [Emphasis added.]

[59]

And later stated, at para. 219:

In the present case, Mr. Reynen had been personally
    involved in the decision to drain Ms. Davis pool.  Ms. Davis alleged, in an
    action that was still pending, that that decision had caused the damage to her
    pool.  Mr. Reynen was performing a quasi-judicial function in deciding, not
    only that the pool should be repaired, but that Ms. Davis should undertake the
    repairs or that the City would do so at her expense.  I conclude that a
    reasonable person, with knowledge of the circumstances, would conclude that Mr.
    Reynen would have a pre-disposition to validate his previous decision by
    holding Ms. Davis, rather than the City, responsible for the repairs to her
    pool.

[60]

There are a number of difficulties with this conclusion.

[61]

First, whether or not the evidence supports the appeal judges view that
    the original decision to drain Ms. Davis pool was unfairly made, the appeal
    judge appears to have been under the misapprehension that
Mr. Reynen
was
    responsible for that decision.  He was not. The original decision to drain the
    pool to a level of 6 was made on June 15, 2006, by Mr. Borthwick, after
    consultation with an outside company specializing in swimming pools; the pool
    was drained in accordance with the advice given at that time.  Although Mr.
    Reynen was aware, in his capacity as Building Inspector, that Mr. Borthwick had
    attended the Davis premises in June to carry out earlier work relating to a
    Notice of Violation under the Standing Water By-law, there is no evidence to
    indicate that he had any involvement in the Notices that were issued or
    decisions made with respect to them prior to his own first attendance on August
    9, 2006.

[62]

On that date, Mr. Reynen attended at the Davis property and, when no one
    responded to his knock, he left a notice indicating that City personnel would
    attend the following day to carry out the remedial work required to be done
    under an earlier August 2 Notice of Violation under the Citys Standing Water
    By-Law, issued by Mr. Borthwick.  The following day, he attended again and directed
    City staff, including Mr. Borthwick, to empty the pool of the remaining
    standing water as it was in contravention of the Standing Water by-law.  I
    note, however, that it was on June 15, under the direction of Mr. Borthwick,
    that the major draining of water from the pool  about which Ms. Davis
    complains mainly  had already taken place.

[63]

Secondly, there is no evidence to suggest that Ms. Davis pending law
    suit against the City, and which did not name Mr. Reynen as a personal
    defendant, had any bearing whatsoever on the decision to issue the Repair Order
    in August 2009.  I observe in passing that by the time the appeal judge heard
    the appeal, Herold J.  to the knowledge of the appeal judge  had already
    given his decision dismissing Ms. Davis action against the City for damages
    for the cost of the repairs.  Herold J. found that it was impossible to
    conclude that anything the City or its agents had done either on June 15th,
    2006, or August 10th, 2006, or at any other time during the course of the
    period covered by this litigation, did anything to cause any damage to Ms.
    Davis property.

[64]

Thirdly, there is nothing in the conduct attributed by Ms. Davis to Mr.
    Reynen that could found a conclusion that he had a personal bias towards her.
    That evidence consists of essentially two things.  Ms. Davis states that she
    complained to the City in letters sent to the Mayor and to Mr. Reynen, but
    received no response.  The appeal judge accepted, however, that Mr. Reynen did
    not respond on the advice of his superior, the Chief Building Inspector, Mr.
    Poole.  Ms. Davis contends that she had a number of telephone conversations
    with Mr. Reynen during which he was discourteous to her (once suggesting that
    she had complained to the Mayor) and, in particular that she had two conversations
    with him on August 9 and 10, 2006 in which he refused her request that he
    postpone the August 10 attendance so that she could have her expert attend.

[65]

Mr. Reynen does not recall these conversations but there was some
    evidence on the late-filed audio tape that persuaded the appeal judge that the
    August 10 conversation took place.  Taken at its highest in favour of Ms.
    Davis, however, this evidence is not an indication that Mr. Reynen bore any
    personal
animus
towards her, or, indeed, that he was doing anything
    other than acting in accordance with his statutory duties as a City officer.

[66]

It must be remembered that Ms. Davis had failed to comply with Notices
    of Violation on May 31, 2006, August 2, 2006, June 22, 2007, August 13, 2007,
    May 26, 2008 and May 15, 2009 prior to the Repair Order being issued on May 26,
    2009.  If Mr. Reynen was being firm or even expressing frustration, his
    position was not unreasonable given the history.

[67]

The appeal judge made no finding of bad faith.

[68]

In the end, however, the conclusion of bias was simply wrong in law on
    this record, in my view.  Apart from what is dealt with above, there is nothing
    to suggest that Mr. Reynen had a personal interest in vindicating his
    previous decision.  Nor is there anything to indicate that in issuing the
    Repair Order he acted in his professional capacity other than on the basis of
    facts presented to him by Mr. Jamieson, the Property Standards Inspector who
    had attended at the Davis premises on May 14, 2009.  Those facts indicated that
    the conditions at the property posed a hazard to persons in the vicinity of the
    swimming pool in the event that further collapse of the structure occurred.
    There was ample evidence to support that position.

[69]

The appeal judge concluded that Mr. Reynen was exercising a
    quasi-judicial function and that the traditional reasonable apprehension of
    bias test applied.  He cited the well-known statement of de Grandpré
J.
in
The Committee for Justice and Liberty  v. National
    Energy Board
, [1978 1 S.C.R. 369, at p. 394:

[T]he apprehension must be a reasonable one, held
    by reasonable and right-minded persons, applying themselves to the question and
    obtaining thereon the required information.  In the words of the Court of
    Appeal, that test is what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through
    conclude.  Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide
    fairly.

[70]

There is no jurisprudence of which I am aware dealing specifically with
    the test for bias that is applicable in circumstances where a municipal
    official issues a repair order or an order requiring remedial steps to be taken
    in order to comply with the municipalitys by-laws.  The authorities touch on
    the conduct of municipal tribunals that are making adjudicative decisions of
    one sort or another, or  at the other end of the spectrum  with municipal
    councillors or commissions that are exercising policy-making or purely
    administrative functions.

[71]

It is well settled, however, that the test for bias varies depending
    upon the functions of the decision maker and the question being decided.  For
    example, in
Newfoundland Telephone Co. v. Newfoundland (Board of
    Commissioners of Public Utilities)
, [1992] 1 S.C.R. 623, at pp. 636,
    638-39, Cory J. observed that there is a spectrum of decision-making tasks to
    be considered when determining the question of bias in the administrative law
    context, and the test to be applied is a flexible one, varying with the nature
    of the decision making body.  At the adjudicative end of the spectrum, the
    traditional reasonable apprehension of bias test will apply in full force.
    At the other end of the spectrum, however  where the nature of the decision is
    more of an administrative, policy or legislative nature  the courts have held
    that a more lenient test, known as the closed mind test is applicable: see
    also
TransCanada Pipelines Ltd. v. Beardmore (Township)
(2000), 186
    D.L.R. (4th) 403 (Ont. C.A.), at paras. 147-150;
Pelletier v. Canada (A.G.)
,
    2008 FCA 1, [2008] F.C.R. 40, at para. 55;
Chrétien v. Canada
, 2008 FC
    802, [2009] 2 F.C.R. 417, affd 2010 FCA 283, 409 N.R. 193, at para. 67.

[72]

I do not know that it is helpful to characterize Mr. Reynens decision
    to issue the Repair Order as a quasi-judicial decision.  It does not fall
    neatly into either category described above, but rather somewhere in between.
    The decision has some aspects of an adjudicative decision  it imposes a by-law
    standard upon a property owner and has some impact on the rights of the
    property owner in that respect.  However, it is primarily an enforcement
    decision, not an adjudicative one.  It seems to me that the appropriate
    approach in such circumstances is to apply the reasonable apprehension of bias
    standard, but not to do so in its strictest form.  It should take more for
    the reasonable person to perceive bias on the part of a municipal official
    issuing an order to enforce a by-law or similar regulation than would be the
    case where the decision made is closer to the adjudicative end of the scale.

[73]

On that basis, I do not see how the conduct attributed to Mr. Reynen
    as described above  could, in law, lead to a reasonable and right-minded
    person, fully informed and viewing the matter in context, realistically and
    practically, to conclude that his decision was the product of a biased mind
    sufficient to invalidate the decision.  The test cannot be met in law where, as
    here, a municipal officer before issuing an impugned Repair Order, had done
    nothing more than be involved in an earlier decision respecting the same
    disputed by-law violation, engage in some testy telephone exchanges with an
    irate resident, and decline to postpone further action on the part of the City against
    the background of years of non-compliance by the resident. Mr. Reynen had an
    obligation, pursuant to the legislative and regulatory regime that governed his
    duties on behalf of the City, to enforce the Citys Property Standards By-law
    and the provisions of the
Building Code Act
.

[74]

I would set aside the appeal judges finding of bias against Mr. Reynen.

Disposition

[75]

For the foregoing reasons, I would allow the appeal, set aside the order
    of the appeal judge and restore the order of the Citys Property Standards
    Committee.

[76]

The City is entitled to its costs of the appeal, fixed in the amount of
    $12,000 inclusive of disbursements and all applicable taxes.  We do not think
    there should be any costs for the proceedings below.

R.A. Blair J.A.

I agree R.G. Juriansz
    J.A.

I agree S.E. Pepall J.

RELEASED:  December 06, 2011


CITATION:
Dhingra (Re), 2011 ONCA 799

DATE: 20111216

DOCKET: C53754

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Hoy JJ.A.

IN THE MATTER OF: Ved Dhingra

Ved Dhingra, appearing in person

Anita Szigeti, as
amicus curiae

Scott Latimer, for the Attorney General

Heard:
December 14, 2011

On appeal against the disposition of the Ontario Review Board,
          dated May 6, 2011.

ENDORSEMENT

[1]

The appellant, Mr. Dhingra, was found not criminally responsible on a
    charge of murder. As a result, he came under the jurisdiction of the Ontario
    Review Board.  He appeals the Boards decision dated May 6, 2011, ordering that
    he be detained within the General Forensic Unit of the Centre for Addiction and
    Mental Health (CAMH), with community living privileges.

[2]

Mr. Dhingra submits that he should have been granted the travel
    privilege to India that he sought and discharged conditionally, as opposed to
    remaining subject to a detention order.

[3]

Pursuant to s. 672.54 of the
Criminal Code
, it was open to the
    Board to order that Mr. Dhingra be discharged absolutely, discharged subject to
    conditions or detained in custody in a hospital, subject to conditions.  That
    section required the Board to, in making its decision, take into consideration
    the need to protect the public from dangerous persons, the mental condition of
    the accused, the reintegration of the accused into society and the other needs
    of the accused, and to make the disposition that was the least onerous and
    least restrictive to the accused.

[4]

The court may set aside the Boards order if it is of the opinion that:
    (1) the decision is unreasonable or cannot be supported by the evidence; (2)
    the decision is based on an error of law; or (3) there was a miscarriage of
    justice.

[5]

In our view, there is no basis to intervene.  The Boards reasons,
    coupled with the questions posed during the hearing and in the course of
    submissions, sufficiently demonstrate that the Board was aware of and applied
    the relevant legal considerations.

[6]

It was conceded that the appellant remained a significant threat to
    public safety.  The Board found that this threat could only be managed with a
    detention order based on evidence of (1) the real possibility of relapse, given
    the stress-related variables in the appellants life at the time of the
    hearing, and (2) the advantage of a detention order, over a conditional
    discharge, in facilitating hospital re-admittance if these stressors (or other
    issues) caused the appellants mental health to decompensate.

[7]

The appellant wished to go on an up to three-week trip to India.  The
    Boards decision to deny the appellant travel privileges to India was
    reasonable.  The appellant was receiving medication by injection every two
    weeks.  A switch to oral medication to facilitate travel was concerning, given
    the appellants history of failure to take his medication prior to the index
    offence, particularly when travelling to India, and the more rapid
    decompensation that follows from failure to take oral medication.  The Board
    adopted an incremental approach to travel, permitting the appellant to travel
    to Nova Scotia for a shorter period.

[8]

The appeal is accordingly dismissed.

[9]

When the Board next reviews Mr. Dhingras disposition, it may wish to
    consider, and specifically address in its reasons, whether the threat to public
    safety can be managed with a conditional discharge, which includes as a
    condition that Mr. Dhingra continue to receive medication by injection.  While
    in the course of the proceeding before the Board, Mr. Dhingra had indicated a
    preference to revert to oral medication, he indicated to this court that he is
    now ambivalent as to form in which his medication is administered.

Janet Simmons
    J.A.

R.A. Blair
    J.A.

Alexandra Hoy J.A.


CITATION:
Elsegood v. Cambridge
          Spring Service (2001) Ltd., 2011 ONCA 831

DATE: 20111223

DOCKET: C53625

COURT OF APPEAL FOR ONTARIO

Blair and Juriansz
          JJ.A and Pepall J. (
ad hoc
)

BETWEEN

Brian Elsegood

Plaintiff (Respondent)

and

Cambridge Spring Service (2001) Ltd.

Defendant (Appellant)

J. Sebastian Winny, for the appellant

Robert A. Konduros, for the respondent

Heard: October 24, 2011

On appeal from the order of Justice Dale Parayeski of the Divisional
          Court dated January 25, 2011, with reasons reported at [2011] O.J. No. 488.

Juriansz J.A.:

[1]

This appeal
    raises the novel legal question of whether the operation of s. 56(1) of the
Employment
    Standards Act
, 2000, S.O. 2000, c. 41 (ESA) can support an employees
    claim for common law damages. Section 56(1)(c) of the ESA provides that an
    employer terminates the employment of an employee for purposes of section 54
    if the employer lays the employee off for 35 weeks in a period of 52
    consecutive weeks.

[2]

The respondent
    employee had been in the appellant employers employ for some seven years as a
    spring technician. The employment relationship was not governed by a written
    contract. He was 48 years old at the time of his termination. He was laid off
    twice. He was laid off for the first time on April 4, 2009, and then was recalled
    on June 9, 2009. He was laid off again on July 28, 2009. On January 22, 2010,
    the cumulative duration of the layoffs reached the statutory maximum of 35
    weeks within a 52-week period. Until January 22, 2010, the employee considered
    that he remained on the employers payroll subject to recall.

[3]

Upon the
    length of this layoff reaching 35 weeks, the employee brought a claim for
    common law damages for wrongful dismissal in the Small Claims Court rather than
    claiming termination pay under s. 54 of the ESA. Holub Deputy J. awarded him $9,900
    in damages reflecting a notice period of six months together with interest and
    costs of $2,060. The employers appeal to the Divisional Court was dismissed by
    Parayeski J.

Issue

[4]

The employers
    appeal is based on a simple premise:
the ESA and the common law are
    independent regimes; an employees actual employment status is defined by the
    common law, and the ESA operates only to entitle the employee to the remedies
    under the ESA. On this premise,
common law damages for wrongful
    dismissal are only available for what would constitute a dismissal at common law
    and are not available for a deemed termination under the ESA. This leads to
    the issue in the case:

Did the
    Divisional Court err by refusing to set aside the trial judges award of common
    law damages based on the employees termination by the operation of s. 56(1) of
    the ESA?

Analysis

[5]

In
    my view, s. 56(1) of the ESA operates to terminate an employees employment in
    law, so that the employee may claim for common law wrongful dismissal damages. I
    reach this conclusion in two ways. First, I do not accept the employers
    premise
that the ESA and common law
    operate as two independent regimes. I conclude that a
n
    employees employment status simply does not survive termination by a valid
    enactment of the legislature.

Second,
    accepting the employer
s premise for the sake
    of argument,
an employee laid off for more than 35 weeks in a 52-week
    period would be able, in every case, to claim constructive dismissal at common
    law.
I discuss these two lines of analysis in turn.

A
    section 56(1) Termination is a Termination for all Purposes

[6]

I
    do not accept the employers premise that an employees employment status
    survives a statutory termination by the ESA. Simply put, statutes enacted by
    the legislature displace the common law.

[7]

At
    the outset, I note that although the employer refers to a termination under s.
    56(1) as a deemed termination, s. 56(1) does not use the word deemed. The
    word deemed appears in s. 56(5), which provides that employment terminated
    under s. 56(1)(c) shall be deemed to be terminated on the first day of the
    lay-off. The word deemed refers to the date of the termination and not the
    termination itself.

[8]

The
    employer also relies on the phrase in s. 56(1) that provides that the employee
    is terminated for purposes of section 54 of the ESA. The employer argues this
    means that the employee is not terminated for all purposes, but only for the
    purposes of s. 54. However, s. 54 does not bear on the character of the
    termination under s. 56(1); instead, s. 54 prohibits an employer from
    terminating an employee without notice
or payment in lieu of notice
. If
    anything, s. 54 undermines the employers argument, because it applies
    generally in all cases to require the employer to give notice whenever an
    employee is terminated.

[9]

The
    employer proposes the scenario where the employee would actually be on a
    prolonged indefinite layoff, but terminated for the purposes of the statute. I
    find it telling that the employer offers no date when a prolonged indefinite
    layoff would become a termination. It is telling because in the employers
    scenario, there is no date when the employer becomes responsible for
    termination pay in lieu of notice. The evident purpose of s. 54 is to prevent
    employers from avoiding the liabilities that flow from terminating the
    employment of employees under the guise of placing them on indefinite layoff.
    The legislature has provided that when a layoff reaches 35 weeks in 52, the
    employee is terminated. The legislatures action leaves no room for the
    continued operation of the common law respecting when an employee is terminated.

[10]

I
    find it unnecessary to discuss the employers reliance on a single sentence in
    the minority reasons in
National
    Automobile, Aerospace Transportation and General Workers Union of Canada (CAW
    Canada), Local No. 27 v. London Machinery Inc.
(2006), 79 O.R. (3d) 444 (C.A.).
    The case is of limited assistance. It involved a collective agreement and the
    ESA has special provisions governing unionized employees. In any event, the
    majority held that an employee subject to a collective agreement that preserved
    recall rights up to two years could elect to accept the statutory termination
    of his employment at 35 weeks on layoff.

[11]

I
    see no merit in the employers further argument that the courts have already
    found that the common law continues to operate despite the enactment of the
    ESA. The employer argues that the courts have found that an employee continues
    to be able to claim common law damages for wrongful dismissal despite the
    enactment of the ESAs termination pay provisions. However, it must be
    remembered the statute itself provides for the continued application of the
    common law in that context.  As Iacobucci J. pointed out, at para. 25 of
Machtinger
:

It is also
    clear from ss. 4 and 6 of the Act that the minimum notice periods set out in
    the Act do not operate to displace the presumption at common law of reasonable
    notice. Section 6 of the Act states that the Act does not affect the right of
    an employee to seek a civil remedy from his or her employer. Section 4(2)
    states that a right, benefit, term or condition of employment under a
    contract that provides a greater benefit to an employee than the standards set
    out in the Act shall prevail over the standards in the Act. I have no
    difficulty in concluding that the common law presumption of reasonable notice
    is a benefit, which, if the period of notice required by the common law is
    greater than that required by the Act, will, if otherwise applicable, prevail
    over the notice period set out in the Act. Any possible doubt on this question
    is dispelled by s. 4(1) of the Act, which expressly deems the employment
    standards set out in the Act to be minimum requirements only.

[12]

My conclusion
    that s. 56(1) terminates an employees employment disposes of the appeal.

[13]

Nevertheless,
    to further demonstrate the employers position is untenable I go on to consider
    what would be the result if one accepted that the employees employment at
    common law survived the operation of s. 56(1).

Termination
    under the ESA Would Result in Termination at Common Law

[14]

At
    common law, an employer has no right to layoff an employee. Absent an agreement
    to the contrary, a unilateral layoff by an employer is a substantial change in
    the employees employment, and would be a constructive dismissal.

[15]

In
    this case, the employer asserts that the employment agreement contained an
    implied term that allowed the employee to be placed on an indefinite layoff. The
    employee had accepted a previous layoff and recall, and he testified that he considered
    his employment to continue during the second layoff until it reached 35 weeks. Like
    the courts below, I find it unnecessary to decide exactly what the term of the
    agreement was. The analysis that follows applies even if the employment
    agreement contained an implied term allowing the employer to layoff the
    employee for more than 35 weeks within a consecutive 52-week period. I proceed
    as if that were the case.

[16]

The
    employers argument is that since the employee agreed to be laid off for an
    indeterminate period of time, his status at common law continued to be an
    employee on layoff subject to recall. The argument is untenable because, even accepting
    the faulty premise that the common law continues to operate independently of
    the ESA, the common law would always allow an employee laid off for more than 35
    weeks to claim constructive dismissal at common law. This is consistent with
    the provisions of s. 67(3) of the ESA, to which I will refer later and which
    entitle an employee to elect whether to be paid termination or severance pay or
    retain the right to be recalled. A term of an employment contract that provided
    otherwise would be null and void. This conclusion flows from
the Supreme Courts reasoning in
Machtinger
    v. HOJ Industries Ltd.,
[1992] 1 S.C.J. No. 41.

[17]

In
Machtinger
, two employees were dismissed in accordance with their
    written employment contracts. The employment contract of one of the employees
    allowed his termination without notice, and the contract of the other allowed
    termination on only two weeks notice. However, under the ESA they were
    entitled to a minimum notice period of four weeks. The trial judge, reasoning
    that the termination clauses in the contracts were invalid because they violated
    the ESA, held that the employees were entitled to reasonable notice of seven
    months and seven and a half months respectively.

[18]

On
    appeal, this court agreed that the termination provisions were null and void,
    but held that the termination provisions in the contracts supported the
    inference that the employees intended to agree to very short notice periods.
    Therefore, the Court of Appeal limited their entitlement to notice to the
    statutory period of four weeks.

[19]

The
    Supreme Court reinstated the trial decision. The Supreme Court held that if a
    term [of an employment contract] is null and void, then it is null and void for
    all purposes, and cannot be used as evidence of the parties intention (at
    para. 28). The employment contracts had to be interpreted and applied as not
    containing the offending provisions. Consequently, as the employment contracts
    did not address the matter of notice, the employees were entitled to reasonable
    notice at common law.

[20]

Germane to
    this case is
Machtingers
conclusion that a term of an employment
    agreement that is inconsistent with the ESA is null and void for all purposes.
    The offending term is not read down and interpreted to provide for the minimum
    standard imposed by the ESA. Rather, the agreement is interpreted and applied
    as not containing the offending term.

[21]

For the
    purposes of this discussion, I proceed on the basis that the employment
    agreement in this case had an implied term allowing the employer to place the
    employee on indefinite layoff exceeding 35 weeks in a 52 week period.
The
    minimum standard of the ESA is that layoff amounting to 35 weeks in 52 results
    in the termination of employment. Since the indefinite layoff provision of the
    agreement fails to meet the ESAs minimum standard, it is null and void.
The
    term is not read down to allow a layoff limited to 35 weeks in 52, but is
    excised from the agreement. The result is that the employment agreement is left
    without a term allowing any layoff at all and, if the common law applied, the
    employee could claim constructive dismissal as of the first day of the layoff.

[22]

I
    note that s. 67(3) of the ESA, despite the terms of s. 56(1), allows employees
    to forego receiving termination pay and retain their right of recall. Neither
    party made any reference to s. 67(3) in this case, and so I am reluctant to
    comment on it. Suffice it to say, I am satisfied that it does not change the
    analysis. A term in an employment contract that provides for a layoff exceeding
    35 weeks without providing the employee with the election available under s.
    67(3) would be null and void, because it fails to provide the minimum standard
    set out in the ESA. In any event, by commencing this action the employee in
    effect made his election uner s. 67(3) to be paid his termination in severance
    and not to retain any right to be recalled.

[23]

Thus,
    even if one accepts the premise that an individuals employment status continues
    at common law after a statutory termination under s. 56(1) of the ESA, the
    employee could claim constructive dismissal at

common
    law whenever a layoff exceeds 35 weeks in 52.

Conclusion

[24]

For these
    reasons, I would dismiss the appeal. The respondent is entitled to his costs of
    the appeal fixed in the amount of $15,000.00 inclusive of disbursements and all
    applicable taxes.

R.G. Juriansz J.A.

I agree R.A. Blair J.A.

I agree S.E. Pepall J.

RELEASED:
    December 23, 2011


CITATION:
Gill v. Singh, 2011 ONCA 770

DATE: 20111207

DOCKET: C51782

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Gurdev Singh Gill

Plaintiff (Respondent)

and

Kanwar
          N. Singh and Kanwaljit Kaur Singh
, both carrying on business as
          AJIT, Kanwar Sandeep Singh, Author and Darshan Singh also known as
          Darshan Singh Sapmark

Defendants
          (Appellants on Appeal)

Kanwar N. Singh and Kanwaljit Kaur
          Singh

Bobby H. Sachdeva, for the
          appellants

Sidney Klotz, for the respondent

Heard & released orally:
November 25,
          2011

On appeal from the decision of Justice Gordon Lemon of the
          Superior Court of Justice dated February 2, 2010.

ENDORSEMENT

[1]

The appellants appeal both liability and the damages awarded in this
    defamation action arising from articles published in a newspaper intended for
    the Sikh community.  The respondent is a member of that community and a
    publisher of a rival newspaper.

1. Liability

[2]

We see no merit in the argument that the appellants are not liable on
    the ground that the respondent failed to prove their specific roles in the
    publication of the articles.  All named defendants, including the appellants,
    admitted in the statement of defence that they published the article and that
    provides a complete answer to this submission.

[3]

While the trial judge found one named defendant, Darshan Singh, not
    liable, the statement of defence did provide some elaboration as to why that
    defendant should not be liable, distinguishing him from the appellants.

2. Damages

[4]

The trial judge awarded $50,000 for general damages and $25,000 for
    punitive damages.

(a) General
    damages

[5]

We do not agree with the submission that there was any procedural unfairness
    accruing to the appellants because of inadequate pleading or inadequate answers
    given to written interrogatories as to the damages claimed by the respondent.
    In defamation, damages are at large and damages for mental suffering form the
    essence of those damages.  We do not accept that the appellants were taken by
    surprise by the claim advanced at trial and accepted by the trial judge.

[6]

While the award of $50,000 general damages was certainly generous in the
    light of the evidence that the respondent did not suffer loss of political
    career or business, it was not so excessive so as to attract appellate
    intervention.  In his reasons at para. 29, the trial judge focused on the
    mental suffering and distress suffered by the respondent in the particular
    circumstances of his prominence in this particular community and the
    humiliation he felt because of the articles. In our view, the damages he
    awarded, while generous, were within the range of acceptability.

[7]

In the circumstances, we see no basis upon which an appellate court could
    interfere with those findings or with the general damage award.

(b) Punitive
    damages

[8]

This was not a case for punitive damages which in law are reserved for
    exceptional cases.  Malice was neither pleaded nor proven as found by the trial
    judge.  The lack of an apology standing by itself did not, in our view, provide
    an adequate basis for punitive damages. The other factors identified by the
    respondent as justifying punitive damages namely, late admissions at trial,
    were matters of trial tactics that would more appropriately be taken into
    account with respect to the costs of the trial.

[9]

In our view, the trial judge erred in law in awarding punitive damages,
    particularly in the light of that generous damage award.

DISPOSITION

[10]

Accordingly, the award of punitive damages is set aside but otherwise
    the appeal is dismissed with costs to the respondent fixed at $5,000 inclusive
    of disbursements and H.S.T.

K. Feldman J.A.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.


CITATION:
Goorbarry v. Bank of Nova Scotia, 2011 ONCA
          793

DATE: 20111216

DOCKET: C53790

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN:

Camille Goorbarry

Plaintiff (Appellant)

and

The Bank of Nova Scotia, Operating as Scotiabank

Defendant (Respondent)

William G. Scott, for the appellant

William M. LeMay and Kathryn J. Bird, for the respondent

Heard: November 25, 2011

On appeal from the judgment of Justice P. Theodore Matlow of
          the Superior Court of Ontario dated April 26, 2011.

Feldman J.A:

[1]

The appellant commenced her action for long term disability benefits in
    December 2006. On a motion for summary judgment, the action was dismissed because
    it was commenced beyond the limitation prescribed by her Employee Benefit Plan.
[1]
The Claims provision of the Plan reads as follows:

Initial proof of the
    individuals disability must be given to the Head Office of the Administrator
    in writing within 90 days from the date on which the individual has been
    continuously disabled for 26 weeks. The Administrator may demand proof of the
    continuance of his disability at any time thereafter when and so often as it
    may reasonably require. If proof of the continuance of the individuals
    disability is not so furnished at any time, he will be deemed to have ceased to
    be disabled immediately prior to the date as of which such demand was made.

The Planholder shall have the right and opportunity
    to have a physician designated by it examine any person in respect of whom a
    claim is being made when and so often as it may reasonably require.

No action or proceeding against the Planholder in
    respect of a claim under this plan shall be commenced within 60 days of the date
    on which proof of the claim is filed with the Administrator, nor after 2 years
    from the date of the happening of
the covered event
. [Emphasis added.]

[2]

The phrase the covered event is not defined anywhere in the Plan.

[3]

The appellant suffered two accidents, one at work in June 1993, and a
    car accident in May 1994. The appellant applied for and received short term
    disability benefits for 26 weeks, then she applied for long term disability
    benefits. That application was denied by letter dated June 23, 1995 from Canada
    Life, the Plan administrator. The same letter advised her of the appeal
    process. The appellant appealed but her appeal was denied. The respondents
    records show a letter dated July 31, 1995 from Canada Life, explaining that the
    medical opinion the appellant provided was unsupported by any objective tests
    or other support to substantiate her claim. As a result, her appeal was denied
    and her claim remained terminated as of July 31, 1995. According to the
    appellants Statement of Claim, she received a letter from Canada Life
    terminating her benefits effective November 21, 1995. Although this letter is
    not in the record on the appeal, its existence seems to be acknowledged by the
    respondent and by the motion judge.

[4]

Although no action was started until 2006, 11 years after the claim was
    denied, the appellant submits that the claim is not barred for two reasons. The
    first is that because there is no definition of the covered event in the Plan
    document, there is an ambiguity in that document which must be read
contra
    proferentem
against the insurer. The result is that there is no
    identifiable starting point for the limitation period and therefore the claim
    is not out of time.

[5]

The second argument is that case law has established that long term
    benefits that are payable monthly are governed by a rolling limitation period
    that runs for two years from each month that no payment was made. The result is
    that although the claim cannot go back to 1995, it was commenced in time in
    respect of the payment for November 2004 and for all following payments as long
    as the disability continues.

[6]

In my view, neither argument has merit.

[7]

When the Claims section is read as a whole and in context, the intent
    and meaning of the term covered event as well as the intent and meaning of
    the two year limitation period are clear.

[8]

Although there is no specific definition of the covered event in the
    Plan document, the meaning flows from these three paragraphs of the Claims
    section. The first paragraph describes the time criteria and method for launching
    a claim and for maintaining the claim. The second gives the plan holder the
    right to require a medical examination and the third contains the limitation
    period for commencing an action on a claim under the Plan.

[9]

From these three paragraphs, it is apparent that the covered event
    defines the factual elements that must be in place before a claimant can
    commence an action.  There are two possible covered events. The first is the
    date when the person provides initial proof of disability following 26 weeks of
    being continuously disabled. If no payment is made, the person has two years to
    commence an action. The second covered event occurs when the person is deemed
    to have ceased to be disabled as of the date prior to the date when demand was
    made for proof of continuing disability and proof was not furnished. Again, the
    person has two years following that date to commence an action.

[10]

In this case, the appellants claim is that she became disabled in
    accordance with the Plan for the purpose of entitlement to long term disability
    benefits when she made a claim after being continuously disabled for 26 weeks
    in 1994. From the record before this court, although her claim was denied, it
    appears that she was paid benefits up to either the end of July 1995 or mid-November
    of that year. It is unclear whether these were short term or long term
    disability benefits. Alternatively, when she appealed the denial of her claim,
    she provided some medical evidence but it was rejected as insufficient,
    resulting in her being deemed no longer disabled. Again, this occurred either in
    July or November of 1995. Therefore, one or both of the covered events occurred
    in 1995 and the appellant had two years thereafter to commence her action,
    unless the rolling limitation period case law applies.

[11]

I now turn to that argument. It is based on the decision of this court
    in
Wilsons Truck Lines Ltd. v. Pilot Insurance Co.
(1996), 31 O.R. (3d)
    127 (C.A.); (1997), 33 O.R. (3d) 37 (C.A.). The claim in that case was for
    accident benefits payable under the
Insurance Act
, R.S.O. 1980, c. 218,
    Schedule "C", (3), para. 7, subsection (c), which contained the
    limitation period of one year from the date on which the cause of action
    arose. The court adopted the definition of cause of action previously given
    by Morden J.A. in
July v. Neal
(1986), 57 O.R. (2d) 129 (C.A.), at
    p. 137, adopting the words of Lord Diplock in
Letang v. Cooper
, [1965] 1
    Q.B. 232 at 242-43: a factual situation the existence of which entitles one
    person to obtain from the court a remedy against another person.

[12]

Applying that definition, the court rejected the argument that the cause
    of action did not arise until there was a definite denial of a claim by the
    insurer.  Rather, the right to sue arises when the claimant has a right to what
    is being claimed, which in that case was 31 days after the claim was filed with
    the insurer. (para. 38) Importantly, the court added at para. 58 that if the
    claimant was actually entitled to the benefits claimed, then his right to sue
    for them accrued every 30 days thereafter and lasted for one year each time.
    This is referred to as a rolling limitation period.

[13]

In order for the rolling limitation period to apply in the context of
    the limitation contained in the respondents Benefit Plan, the covered event would
    have to occur every month, just as the cause of action accrued every month in
    the
Wilsons Truck
case. However, on the specific wording of this Plan,
    the covered event does not reoccur.  As I explained above, there are two
    covered events that are described within the Claims section of the Plan. The
    first occurs when the person first qualifies for long-term disability benefits,
    and the second, when the person is deemed no longer to be disabled because they
    have not provided satisfactory proof of continuing disability. Unlike in
Wilsons
    Truck
, each of these events happens only once, not every month on an
    ongoing basis.

[14]

I agree with the motion judge that the action must be dismissed as it
    was brought beyond the period set out in the Benefit Plan.

[15]

I would therefore dismiss the appeal with costs to the respondent fixed
    at $7,500
inclusive of disbursements and H.S.T.

Signed:           K.
    Feldman J.A.

I agree
    Robert J. Sharpe J.A.

I agree G.
    J. Epstein J.A.

RELEASED: KF DECEMBER 16, 2011

[1]
Under the former
Limitations Act
R.S.O. 1990 c. L.15, no section
    prohibited parties from agreeing to a limitation other than the statutory
    limitation. Under the
Limitations Act 2002
S.O. 2002, c. 24 Schedule B,
    s. 22, private agreements cannot supercede the Act, subject to a number of exceptions,
    one of which in s. 22(2) allows a limitation under the new Act to be varied or
    excluded by an agreement made before January 1, 2004. In his article,
    Developing a New Uniform Limitations Act: A Survey of Canadas Emerging
    Limitations Regimes in Jacob Ziegel, Wayne Gray, Brian Bucknall et al. eds.,
The
    New Ontario Limitations Regime
(Toronto: Ontario Bar Association, 2005)
    165, author John Lee states at p. 183 that under the former Act, it was
    accepted that parties could make their own limitation agreement because the Act
    was silent on the issue.


CITATION:
Hadjor v. Sault Ste. Marie Chamber of
          Commerce, 2011 ONCA 811

DATE: 20111220

DOCKET: C52748

COURT OF APPEAL FOR ONTARIO

Sharpe and Epstein JJ.A. and Pardu J. (
ad hoc
)

BETWEEN

T. Kofi Hadjor

Appellant (Plaintiff)

and

The
          Sault Ste. Marie Chamber of Commerce,

The Sault Ste.
          Marie Police Services Board,

Monique
          Rollin, David Helwig, and

The
Soo Today.com

Respondents (Defendants)

Osborne G. Barnwell, for the
          appellant

Brian L. DeLorenzi, for the
          respondents David Helwig and The Soo Today.com

John C. Walker, for the
          respondents The Sault Ste. Marie Police Services Board and Monique Rollin

Heard & released
          orally:
December 7, 2011

On appeal from the order of
          Justice Edward J. Koke of the Superior Court of Justice dated September 10,
          2010.

ENDORSEMENT

[1]

The appellant raises three grounds of appeal from the dismissal of his
    defamation claim following a jury trial.

1. the jurys verdict was perverse and
      unreasonable;

2. there were errors of law relating to
      qualified privilege, responsible communication and fair comment; and

3. the trial
      judges charge to the jury was unbalanced and factually flawed.

[2]

We see no merit in the argument that the verdict was perverse.  There
    was ample evidence to support each of the jurys answers to the questions put.

[3]

Nor do we agree that the trial judge erred in law in leaving the
    defences of qualified privilege, responsible communication and fair comment
    with the jury in the circumstances of this case.  There was a sound basis in
    law to put each of these defences to the jury.  The trial judge left with the
    jury the factual issues that had to be decided in relation to each of these
    defences and, as we have indicated, there was a basis in the evidence for the
    jurys answer to each question.

[4]

Finally, we do not agree that the trial judges charge was otherwise
    unfair, unbalanced or factually inaccurate.  The trial judge properly explained
    to the jury that the factual issues were theirs to decide and in our view, he
    did not treat any of the evidence improperly or unfairly.

[5]

Accordingly, the appeal is dismissed with costs to each set of respondents
    in this court fixed at $10,000 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.

G. Pardu J. (
ad hoc
)


CITATION:
Harris v. Leikin Group Inc., 2011 ONCA 790

DATE: 20111215

DOCKET: C54033

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Adam Leikin
          Harris, Naomi Sara (Harris) Stanton,

Sheira Rachel
          Harris, Zena Leah Harris, Hilliard Brian (Rick) Kesler,

and David
          Joseph Spieler

Plaintiffs/Appellants

and

Leikin Group
          Inc., Barbara Linda Farber, David Lawrence Katz,

Andrew Mark
          Katz, Grant Jameson, Geoffrey Gilbert,

Ogilvy Renault
          LLP, Gerald Levitz, Patricia Day,

Ginsburg Gluzman
          Fage & Levitz LLP and
First Capital Realty Inc.

Defendants/Respondents

Randy Bennett and Sara J. Erskine, for the appellants

Crawford Smith and Molly M. Reynolds, for the respondent First
          Capital Realty Inc.

Heard:
December 5, 2011

On appeal from the Order of Justice
          David M. Brown of the Superior Court of Justice, dated August 10, 2011,
          reasons reported at 2011 ONSC 3556.

BY THE COURT:

I.         Background

[1]

The dispute in this case arose from transactions involving changes in
    the ownership of a retail shopping mall in Ottawa known as College Square.

[2]

Prior to the events at issue, College Square was owned by a group of
    cousins through shareholdings in various family-owned companies.  When some of
    the cousins (the appellants) sought to liquidate their interests in the
    property, negotiations commenced with the remaining cousins (the Katz Group) about
    a possible share redemption transaction with the family companies that would permit
    the Katz Group to acquire the appellants interests in College Square.

[3]

The Katz Group required financing to fund the share redemption
    transaction.  Ultimately, they obtained the necessary funds by selling a 50% interest
    in College Square to the respondent, First Capital Realty Inc. (FCR).

[4]

The purchase price paid for the appellants shares (based on a total
    value of $60 million for College Square) was considerably less than the
    purchase price paid to the Katz Group by FCR (based on a total value of $78.8
    million for College Square).  When the appellants subsequently learned of the differential
    between the values assigned to College Square for the share redemption
    transaction, on the one hand, and for the FCR acquisition, on the other hand, they
    sued the Katz Group and others for damages based on various torts, including
    breach of fiduciary duties, among other matters.  The appellants also sued FCR
    for damages based on the tort of knowing assistance in breach of fiduciary duties.

[5]

On motion brought by FCR, Brown J. of the Superior Court of Justice granted
    summary judgment in favour of FCR on the ground that the appellants had no
    legal or evidentiary basis on which to complain against FCR and, thus, no
    genuine issue for trial arose concerning FCR.  Concurrently, the motion judge
    denied summary judgment motions brought by the remaining defendants, including the
    Katz Group, concluding that the appellants claims against those parties required
    a trial.  This appeal concerns only the motion judges summary judgment ruling
    regarding FCR.

II.        Issues and
    Discussion

[6]

The appellants attack the motion judges decision regarding FCR on two
    main grounds.  They submit that the motion judge: (1) misapplied the test for
    knowing assistance in breach of fiduciary duty; and (2) failed to consider
    relevant evidence that allegedly supported their claim against FCR, including
    circumstantial evidence that the appellants say supported the inferences that
    FCR had the requisite knowledge to meet the test for the tort asserted and,
    armed with that knowledge, that it participated or assisted in the breach or
    breaches of fiduciary duty said to have been committed by the Katz Group.

[7]

We reject these arguments.  For the following reasons, we conclude that there
    is no basis for appellate intervention with the motion judges ruling
    concerning FCR.

[8]

There is no dispute concerning the constituent elements of the tort of
    knowing assistance in breach of fiduciary duty: (1) there must be a fiduciary
    duty; (2) the fiduciary must have breached that duty fraudulently and
    dishonestly; (3) the stranger to the fiduciary relationship must have had
    actual knowledge of both the fiduciary relationship and the fiduciarys
    fraudulent and dishonest conduct; and (4) the stranger must have participated
    in or assisted the fiduciarys fraudulent and dishonest conduct:
Air Canada v.
    M & L Travel Ltd.
, [1993] 3 S.C.R. 787;
Gold v. Rosenberg
,
    [1997] 3 S.C.R. 767.  The knowledge requirement for liability based on this
    tort is actual knowledge, which, as the Supreme Court confirmed in
Air
    Canada
, at para. 38, includes recklessness and wilful blindness.  As this
    court observed in
Keeton v. The Bank of Nova Scotia
, 2009 ONCA 662, 254
    O.A.C. 251, at para. 82, to found liability [on knowing assistance in a breach
    of fiduciary duty], the stranger to the trust must have actual (as opposed to
    constructive) knowledge of the misconduct, or be wilfully blind to the breach
    or reckless in his failure to realize that there was a breach.

[9]

In order to successfully resist FCRs summary judgment motion in the
    circumstances of this case, the appellants were required to demonstrate a
    genuine issue for trial concerning: (1) FCRs actual knowledge of the existence
    of fiduciary duties owed to the appellants by the Katz Group and of the
    fraudulent and dishonest breach of those duties by one or more members of the
    Katz Group; and (2) FCRs participation or assistance in those breach of duties.

[10]

The motion judge reviewed the evidence at great length in his reasons,
    including that relied on by the appellants as the basis for their claim against
    FCR.  Based on his detailed review of the evidence, the motion judge held that
    the appellants had failed to establish a genuine issue for trial regarding the
    requisite knowledge by FCR.

[11]

In our view, this finding is firmly anchored in the evidentiary record.
    We note, in particular, the following.

[12]

The appellants maintain that members of the Katz Group breached their fiduciary
    duties to the appellants by failing to disclose  at a time when the parties were
    engaged in discussions about the sale of the appellants shares to the Katz
    Group  FCRs interest in College Square and its apparent willingness to pay a
    purchase price for a partial equity position in College Square based on a value
    that significantly exceeded the appraised value of the property as at August
    2004 and the value(s) for College Square discussed between the appellants and
    the Katz Group.  The appellants maintain that this information was relevant and
    material to their decision to sell their shares at the price eventually agreed
    on and, if known to them at the time, could well have influenced their decision
    to sell their shares.

[13]

However, it was FCRs evidence on the summary judgment motion that
    neither the involved FCR business executive nor FCRs transaction counsel knew
    the details of the proposed share redemption arrangement between the appellants
    and the Katz Group, including the various proposed or agreed share redemption
    prices.

[14]

As the motion judge pointed out, the appellants failed to adduce any
    evidence to counter FCRs evidence on this critical point.  Simply put, on the
    record before the motion judge, there was no evidence that FCR had the
    requisite knowledge that the Katz Group was withholding information, let alone
    information potentially material to the appellants decision to sell their
    shares, from the appellants at the relevant times.

[15]

The appellants argue that there was evidence that FCR knew that the
    acquisition of the appellants interests in College Square by the Katz Group
    was a necessary precondition to the acquisition by FCR of an interest in the
    property.  They also contend that the Katz Groups discussions with FCR were
    conducted in secret and that FCR was requested to keep these discussions
    secret when they were told to refrain from contacting any of the appellants
    concerning College Square.  The appellants submit that this was circumstantial
    evidence that FCR had sufficient information of the share redemption
    transaction to put it on inquiry as to the authority of David Katz to speak for
    the owners of College Square and as to the propriety of the Katz Groups
    dealings with the appellants.  In these circumstances, the appellants maintain,
    FCRs failure to inquire further constituted recklessness or wilful blindness
    in respect of the Katz Groups alleged breach of fiduciary duties.

[16]

We disagree.  As we have said, there was no evidence before the motion
    judge that FCR had the requisite knowledge that the purchase of the appellants
    shares was to be effected at a materially lower price than that which
    corresponded to the value placed by FCR on College Square.

[17]

Further, the appellants entered into a binding letter of intent
    regarding the sale of their shares in April 2005.  The record contains no
    indication that FCR knew any details of the discussions between the appellants
    and the Katz Group in the fall of 2004 and the spring of 2005 concerning the
    value of College Square, the price for the appellants shares or the other
    arrangements which led to the signing of the letter of intent by the
    appellants.  Indeed, FCR had no significant contact with the Katz Group throughout
    the entire period of October 2004 to May 2005.

[18]

Moreover, after the appellants entered into their letter of intent, the
    proposed sale of part of College Square to an institutional or other investor
    was the subject of an independent and public auction process conducted by a
    sophisticated and experienced external investment firm.  FCR submitted its
    first and only offer to acquire an interest in College Square in July 2005, as
    part of that external bid process.  Its offer was recommended to the Katz Group
    for acceptance by the independent overseer of the public bid process.

[19]

Finally, while it is true that FCR was asked not to contact the
    appellants directly, this request did not render FCRs discussions with the
    Katz Group clandestine or surreptitious.  This was a family share buy-out
    situation.  FCRs discussions were held with a senior executive of the
    corporate group that controlled College Square.  There is no evidence that FCR
    had any reason to believe that the fact and content of those discussions were
    being hidden from some involved family members but not others.  Viewed in this
    context, there is nothing untoward in the request that FCR not negotiate or
    undertake discussions with other family members.

[20]

We therefore agree with the motion judge that no genuine issue for trial
    exists regarding the appellants claim against FCR.  As framed by the
    appellants, that claim rests solely on the tort of knowing assistance in breach
    of fiduciary duty.  Whatever view is taken of the knowledge required to make
    out this tort, the evidence before the motion judge, taken at its highest, failed
    to establish the requisite knowledge by FCR of any fraudulent and dishonest
    conduct by the Katz Group in its dealings with the appellants.  On this basis
    alone, the appellants claim against FCR was doomed to fail.

III.      Disposition

[21]

Accordingly, the appeal is dismissed.  FCR is entitled to its costs of
    the appeal, fixed in the amount of $14,000, inclusive of disbursements and all
    applicable taxes.

RELEASED:

MR                                                              M.
    Rosenberg J.A.

DEC 15 2011                                                E.A.
    Cronk J.A.

David
    Watt J.A.