CITATION:
R. v. Turnbull, 2011
          ONCA 121

DATE: 20110211

DOCKET: C51811

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shalenea
Turnbull

Applicant/Appellant

Robert Sheppard, for the appellant

Dena Bonnet, for the respondent

Heard & released orally:
February 8,
          2011

On appeal from the conviction and sentence imposed by Justice J.
          Donohue of the Superior Court of Justice, dated February 18, 2009, and June 22,
          2009.

ENDORSEMENT

[1]

This is an appeal from conviction and sentence for
    impaired driving causing death and failure to remain at the scene of an
    accident causing death.

[2]

The appellant argues that there was insufficient
    evidence to support the trial judges finding of impairment, as well as
    insufficient evidence to support his finding that she knew that she had struck
    a person causing bodily harm.  The
    appellant also argues that the global sentence of four and a half years was
    excessive.

[3]

In our view, there was ample evidence to support the
    trial judges finding that the appellants ability to operate a motor vehicle was
    impaired and that aspect of the verdict was not unreasonable.

[4]

Several witnesses testified about the appellants
    drinking both at a party and later at the tavern.  At the tavern, the bartender, a waitress and
    a cashier each testified that they had served the appellant quantities of
    alcohol.  This was borne out by the
    appellants significant bar tab for the evening.  The tavern employees also described the
    appellant as being intoxicated and not fit to drive.  Although the appellant herself did not
    consume everything she had ordered
,
it was not
    unreasonable on this evidence for the trial judge to find that her ability to
    operate a motor vehicle was impaired.

[5]

In our view, there was also sufficient evidence to
    support the trial judges conclusion that the Crown had established beyond a
    reasonable doubt the elements of the failure to remain charge.  The appellant struck with her car and threw
    aside a large living being.  Given the circumstances
    of the accident, it was open to the trial judge to find that it was much more
    likely that she had struck a person than an animal and that, at a minimum, the
    appellant was wilfully blind to the fact that she had caused bodily harm to
    another person.  We note that the
    appellant did not testify at trial.  We
    do not agree that the verdict on the failure to remain charge was unreasonable.

[6]

We agree with the respondent Crown that the sentence
    imposed was well within the appropriate range for these offences.  The trial judge did consider the age and
    circumstances of the appellant and the impact the sentence would have on her
    three young children.  We see no basis
    for appellate intervention.

[7]

Accordingly, the appeal from conviction is dismissed as
    is the appeal from sentence.

Robert J. Sharpe J.A.

David Watt J.A.

A. Karakatsanis J.A.


CITATION:
R. v. Wolfe-Bard, 2011 ONCA 158

DATE:
          20110228

DOCKET: C52127

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and
Rouleau
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Wolfe-Bard

Appellant

Brian Snell, duty counsel, for the appellant

Jennifer
Woollcombe
, for the
          respondent

Heard: February 9, 2011

On appeal from the conviction entered on February 19, 2010 by
          Justice Jack Nadelle of the Ontario Court of Justice.

MacPherson J.A.:

A.

INTRODUCTION

[1]

Andre
    Wolfe-Bard was convicted of robbery following a one-day trial before Justice
    Nadelle of the Ontario Court of Justice in Ottawa. The conviction related to an
    attack on Marie
Carriere
at about 1:30 a.m. on
    December 13, 2009 at the front door of her apartment building on Montreal Road
    in Ottawa.

[2]

The
    principal issue at the trial was the identity of the man who attacked Ms.
Carriere
. The trial judge rejected Ms.
Carrieres
in-dock identification of the appellant. However, he nevertheless convicted the
    appellant because this is a case in which there are a large number of facts,
    that show that it was in fact, the accused, who committed the robbery.

[3]

The
    appellant appeals the conviction. He contends that the trial judges treatment
    of the evidence, especially the identification evidence, resulted in an
    unreasonable verdict.

B.

FACTS

(1)

The parties and events

[4]

Marie
Carriere
was unloading her car in the parking lot of
    her apartment building on Montreal Road in Ottawa at about 1:30 a.m. on
    December 13, 2009. She noticed a man walking behind her. As she reached the
    front door of the building, she noticed the same man running towards her. He
    grabbed her and said Give me your keys. He then grabbed her hand in which she
    was holding the keys. Ms. Carrier fought back, grabbing her assailants shirt,
    hitting him on the head, and kneeing him in the groin area. The assailant
    backed away and then left empty-handed.

[5]

Ms.
Carriere
went upstairs to her apartment and told her
    boyfriend about the attack. Together, they looked out the apartment window and
    Ms.
Carriere
saw the same man in the parking lot of
    the church next to the apartment buildings parking lot. The boyfriend called
    the police.

[6]

The
    police arrived at the apartment shortly after the call. Ms.
Carriere
provided a description of her assailant. The police officer at the scene,
    Constable
Quintonea
, broadcast a description of the
    assailant, summarized by the trial judge as: white male, baggy clothes,
    intoxicated.

[7]

Sergeant
    Josh
Pulfer
was in his cruiser on Montreal Road when
    he heard the broadcast description of a man involved in a robbery and attempted
    car-jacking. Almost immediately, he saw a man fitting this description walking
    on the sidewalk on Montreal Road. Sergeant
Pulfer
pulled over and started to talk to the man, who identified himself as Justin
    Bard.

[8]

As
    they were talking, Constable
Quintonea
gave an
    updated description of the suspect, which Sergeant
Pulfer
recalled as: white male in his 20s, wearing light blue jeans, a baggy dark
hoody
sweater with some sort of pattern and he had some
    facial hair. Sergeant
Pulfer
was of the view that
    this description matched the man to whom he was speaking.

[9]

Constable
    Adrian Benjamin arrived in a second police cruiser. The suspect became
    belligerent. The officers formally arrested him shortly after he was first
    observed at 2:03 a.m. The officers searched the suspect and discovered that his
    name was Andre Wolfe-Bard. The scene of the arrest was just
under
one kilometer from the scene of the attack.

(2)

The trial

[10]

The
    appellant was charged with robbery and obstruction of a peace officer. The
    Crown called three witnesses  Ms.
Carriere
and
    Officers
Pulfer
and Benjamin. The
defence
called one witness, the
accuseds
mother, Nicole
    Bard, who essentially testified that she saw her son on the street about seven
    hours before the attack at which point he was wearing an orange, not a dark,
hoody
.

[11]

At
    the conclusion of the evidence, the trial judge, without objection from the
    Crown, did not call on counsel to make submissions on the obstruction charge
    because [t]heres no evidence of obstruction and acquitted the accused on
    that charge.

[12]

On
    the robbery charge, the principal issue was identity. The trial judge rejected
    the complainants in-dock identification of the accused, saying that it would
    be very dangerous to convict on this basis. He also said that the
    complainants in-dock identification was also quite tainted by her viewing of
    his picture on
Facebook
a day or two after the
    robbery.

[13]

However,
    the trial judge continued:

However,
    this is a case in which there are a large number of facts, that show that it
    was in fact, the accused, who committed the robbery. I have already mentioned a
    number of them; the clothing description matched that of the accused, as did
    the facial hair description and the drunkenness and drunken walk. Add to the
    above, the accused was the only pedestrian in the area at 2:03 a.m., the
    accused was a short distance from the site of the robbery when arrested, the
    accused had a fresh cut on the top of his right hand, which could very well
    have occurred in the struggle with Ms.
Carriere
over
    her car keys. It is an inference I think that could very well be made in the
    particular circumstances of this case. There was only a brief period from the
    time of the robbery to the time of the arrest.

Based
    on all the evidence in this case, I find the Crown had proven guilt beyond a
    reasonable doubt and the accused will be found guilty.

[14]

The
    trial judge imposed a sentence of 302 days imprisonment, with credit for 148
    days of pre-trial custody, two years probation, a lifetime firearm prohibition
    and a DNA order.

C.

ISSUE

[15]

The
    appellant contends that his conviction for robbery was an unreasonable verdict
    because the trial judge did not deal properly with the identification evidence.

D.

ANALYSIS

[16]

The
    general framework within which a submission of unreasonable verdict must be
    considered was set out by
Arbour
J. in
R. v.
Biniaris
,
    [2000] 1 S.C.R. 381 at
para
. 36:

The
    test for an appellate court determining whether the verdict of a jury or the
    judgment of a trial judge is unreasonable or cannot be supported by the
    evidence has been unequivocally expressed in
Yebes
as follows:

[C]
urial
review is invited whenever a jury
    goes beyond a reasonable standard. . . . [T]he test is whether the verdict is
    one that a properly instructed jury acting judicially, could reasonably have
    rendered.

(
Yebes
, supra
, at p. 185 (quoting
Corbett v.
The Queen
, [1975] 2 S.C.R. 275, at p. 282,
per
Pigeon J.).)

That formulation of the test imports both an
    objective assessment and, to some extent, a subjective one.
It requires the appeal court to determine what verdict a reasonable
    jury, properly instructed, could judicially have arrived at, and, in doing so,
    to review,
analyse
and, within the limits of
    appellate disadvantage, weigh the evidence.  This latter process is usually understood as referring to a subjective
    exercise, requiring the appeal court to examine the weight of the evidence,
    rather than its bare sufficiency.   The
    test is therefore mixed, and it is more helpful to articulate what the
    application of that test entails, than to characterize it as either an objective
    or a subjective test.

[17]

In
    the context of appellate review of a verdict in a judge alone trial,
Arbour
J. further defined the task for the reviewing court,
    at
para
. 37:

The
Yebes
test
    is expressed in terms of a verdict reached by a jury.  It is, however, equally applicable to the
    judgment of a judge sitting at trial without a jury. The review for
    unreasonableness on appeal is different, however, and somewhat easier when the
    judgment under attack is that of a single judge, at least when reasons for judgment
    of some substance are provided.  In those
    cases, the reviewing appellate court may be able to identify a flaw in the
    evaluation of the evidence, or in the analysis, that will serve to explain the
    unreasonable conclusion reached, and justify the reversal.

[I]n
    trials by judge alone, the court of appeal often can and should identify the
    defects in the analysis that led the
trier
of fact to
    an unreasonable conclusion.  The court of
    appeal will therefore be justified to intervene and set aside a verdict as
    unreasonable when the reasons of the trial judge reveal that he or she was not
    alive to an applicable legal principle, or entered a verdict inconsistent with
    the factual conclusions reached.  These
    discernable defects are themselves sometimes akin to a separate error of law,
    and therefore easily sustain the conclusion that the unreasonable verdict which
    rests upon them also raises a question of law.

[18]

There
    is no doubt that there were several important similarities between the
    complainants description of her assailant and the suspect detained by the two
    police officers a half-hour after the attack. Three examples come immediately
    to mind  some facial hair, light-
coloured
blue
    jeans, and intoxicated condition.

[19]

However,
    in spite of these similarities, there were several discrepancies between the
    complainants description of her assailant and the appellant which, I say with
    respect, the trial judge dealt with improperly. In addition, the trial judge
    erred in his treatment of significant contextual factors, namely, time and
    place.

[20]

First,
    and by far most importantly, there was a striking contrast between the size
    attributed to her assailant by the complainant and the appellants size.

[21]

In
    her statement to the police immediately after the attack, the complainant, who
    was 5'6'' in height, described her assailant as 5'6'', maybe 5'8''. In her
    evidence at the trial, she said that she had reconsidered this description and
    that the assailant was more than that and more than 5'8'', although she did
    not specify a new height figure. The complainant also testified that I dont
    have the impression that he was a very big muscular guyI didnt get the
    impression that he was too big, no.

[22]

In
    contrast, Sergeant
Pulfer
, who is 6' or 6'1'',
    recorded in his note book that the suspect was approximately 5'11''. In his
    trial testimony, in examination-in-chief, he said that the suspect was 5'11''
    or 6'. In cross-examination, he testified that Im about 6'1'' and I do
    recall him being kind of, either the same height as myself or a bit taller.
    Sergeant
Pulfer
also testified: Thinking back now I
    recall getting out of my car and looking at him and thinking, hes a big kid.

[23]

Constable
    Benjamin testified in examination-in-chief with respect to the suspects
    height: Based on memory it was probably six foot, 6'1'' about. In
    cross-examination his testimony was:

Q.
           Okay. And how tall are you, sir?

A.
           About 6'3'', 6'4''.

Q.
           Okay. And do you recall the height
    of Mr. Wolfe-Bard?

A.
           Yeah. He was a little bit shorter
    than me.

Q.
           So was he close to your height?

A.
           Yeah, I said about 6'1'', 6'2''.

Q.
           Okay. If Im going to suggest to
    you that he was 6'3'',   is that a fair
    assumption? Does that.

A.
           I would assume, yeah.

Q.
           Okay.

A.
    He was a fairly tall gentleman.

[24]

Finally,
    Nicole Bard, the appellants mother, testified that her son was 6'2'' tall.

[25]

In
    his reasons for judgment, the trial judge referred to the complainants
    description in her police statement of the assailant as being 5'6'', maybe 5'8''
    and to her testimony that on further consideration, she felt he was taller
    than five foot eight. Later he said:

With
    respect to the discrepancy in her initial height estimate and the accused
    actual height, again, she was under great stress and was in the midst of
    fighting off her attacker.

[26]

The
    trial judges explanation that the complainants ability to observe may have
    been compromised by the circumstances of the attack was entirely reasonable. However,
    in my view, the discrepancies in evidence with respect to the assailants and
    appellants height and size are simply too pronounced to be set aside on this
    laconic basis. The simple fact is that the complainant never put her
    assailants height at anything approximating 6' whereas both police officers
    described the appellant as about, and even well above, 6'. This is a large difference.
    Further, the complainant did not regard her assailant as a big guy, whereas
    that is precisely how Sergeant
Pulfer
described him.

[27]

Second,
    there are two important discrepancies in the testimony relating to the clothing
    worn by the assailant and the appellant on the night in question.

[28]

The
    complainant testified that her assailant was wearing a dark
coloured

hoody
or a hooded sweater. Sergeant
Pulfer
testified that the suspect was wearing a dark
coloured

hoody
. However,
    Constable Benjamin testified that the suspect was wearing a
hoody
and an outer jacket. The trial judge inaccurately described the complainants
    testimony as the hood seemed to be the same
colour
as the outer sweater or coat; in fact, the complainant said that the assailant
    wore only a
hoody
, with no additional outerwear.

[29]

In
    addition, although perhaps more minor in nature, the complainant said that the
    assailant wore a baseball cap and the suspect was wearing a baseball cap.
    However, the complainant described the cap as dark, while Sergeant
Pulfer
testified that the suspects cap was a light kind
    of brown/white and Constable Benjamin described it as a beige multi
colour
 cap.

[30]

The
    trial judge said this about the clothing: The description Ms.
Carriere
did give of the clothing, did pretty well match
    the clothing of the accused when arrested. With respect, in light of the above
    discrepancies, I do not think this is an accurate conclusion.

[31]

Turning
    to context, the trial judge included in his recitation of the facts that
    supported a conviction the accused was the only pedestrian in the area at 2:03
    a.m. and the accused was a short distance from the site of the robbery when
    arrested. In my view, the fact that the suspect was detained about a half-hour
    after the attack, that he was almost a kilometer away from the site of the
    attack, and that the suspect was on Montreal Road in the City of Ottawa
    (albeit, admittedly, at 2:03 a.m. on a December night) suggest a need for
    caution in linking the assailant at the apartment building at 1:30 a.m. and the
    appellant almost a kilometer away on a major street a half-hour later.

[32]

Taken
    together, these problems amount to, in the language of
Biniaris
, a flaw in the
    evaluation of the evidence. I do not reach this conclusion lightly in a case
    where the trial judge provided full reasons for his decision and where the
    evidence established important similarities between the complainants
    description of her assailant and the appellant when he came in contact with the
    police a half-hour later. However, in the end, the discrepancies between the
    assailant and the appellant, especially the substantial one relating to
height,
and the shift in time (about 30 minutes) and place
    (almost a kilometer) in a large city lead me to the reluctant conclusion that
    the conviction in this case was unreasonable.

E.

DISPOSITION

[33]

I
    would allow the appeal and enter a verdict of acquittal on the charge of
    robbery.

RELEASED:  FEB 28 2011 (J.C.M.)

J. C. MacPherson J.A.

I agree. R. A. Blair J.A.

I agree.
Paul S. Rouleau J.A.


CITATION: Ryman v. Bodmore, 2011 ONCA 157

DATE: 20110228

DOCKET: C52617

COURT OF APPEAL FOR ONTARIO

Moldaver, Sharpe and Armstrong JJ.A.

BETWEEN

Tracy Ryman

Applicant (Respondent in Appeal)

and

Alan Bodmore

Respondent (Appellant in Appeal)

Michael David Lannan, for the appellant

Sue Paterson, for the respondent

Heard and endorsed: February 24, 2011

On appeal from the judgment of Justice Heather McGee of the
          Superior Court of Justice, dated July 27, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We are not persuaded that the motion judge erred in her analysis or
    conclusion.

[2]

The evidence before the motion judge supported her conclusions and any
    shortcomings in the evidence were entirely the fault of the appellant who
    refused to make financial disclosure or otherwise participate in the hearing.

[3]

With respect to the date the motion judge selected for retrospective
    support, we are not persuaded that she erred in selecting the 2001 date. But in
    any event, the amount she awarded is significantly discounted. As well, the
    evidence supports the amount of income the motion judge imputed to the
    appellant.

[4]

Accordingly, the appeal is dismissed.

[5]

Costs to the respondent fixed at $8,000 inclusive of disbursements and
    applicable taxes. Costs are payable in relation to support.


CITATION:
Sloan v. Ultramar
          Limited, 2011 ONCA 91

DATE: 20110203

DOCKET: C52501

COURT OF APPEAL FOR ONTARIO

Armstrong, Epstein and Karakatsanis JJ.A.

BETWEEN

Audrey Sloan

Plaintiff (Appellant)

and

Ultramar
          Limited and Sauve Heating Limited
Rick Brown
          and R.T. Brown Trucking Ltd.

Defendants (Respondents)

Alexandra White, for the appellant, Audrey Sloan

Mitchell K. Kitagawa, for the respondents, Rick Brown and R.T.
          Brown Trucking Ltd.

Heard:
January 27, 2011

On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice, dated July 7,
          2010.

ENDORSEMENT

[1]

We agree with the appeal judge that the Master erred in
    finding that the evidence filed on behalf of the plaintiff raised an issue of
    fact or credibility on the discoverability issue that would merit consideration
    at a summary judgment motion or a trial.

[2]

The oil spill that forms the basis of this action took
    place on February 23, 2004.  The action
    was commenced February 22, 2006.  The triggering
    event in terms of the discovery of a potential claim against the proposed
    defendants was the delivery, on August 9, 2006, of the statement of defence of
    the defendant, Ultramar Limited, which, in clear terms indicated the
    involvement of an independent contractor that actually delivered the fuel.

[3]

Counsel for the plaintiff failed to act on this
    information until eight months later at the discovery of a representative of
    Ultramar, when she asked questions about the truck driver and the independent
    contractor. Only the name of an independent contractor was provided  a name
    that turned out to be erroneous. The undertakings given on this discovery, several
    of which related to the independent contractor and the truck driver, remained
    outstanding until April 30, 2009.  The
    motion to add the truck driver and independent contractor was brought November
    13, 2009.

[4]

On this record, in
    the two years following the triggering event, the only step the plaintiff took
    to pursue the possibility of a potential claim against the proposed defendants
    was to question the representative of Ultramar on discovery about the truck
    driver and independent contractor.

[5]

While the threshold on a motion to add a party is low,
    it was not open to the Master on the available evidence to find that the
    plaintiff had provided a reasonable explanation as to why the proposed
    defendants were not identifiable and therefore not named as parties prior to
    the expiry of the limitation period under s. 4 of the
Limitations Act, 2002.

[6]

As a result, the appeal judge did not err in setting
    aside the Masters order.

[7]

However, it is unclear why the appeal judge ordered
    that the costs awarded by the Master be paid, resulting in a net costs award of
    $500 payable by the proposed defendants to the plaintiff. Costs should have
    reflected the proposed defendants success on the issue.

[8]

As a result, the appeal is dismissed except as it
    relates to costs. The appeal judges order is varied to make the costs on the
    motion before the Master payable by the plaintiff to the proposed defendants,
    fixed in the amount of $5,500.

[9]

Costs of this appeal are payable to the respondents,
    fixed in the amount of $2,500 all-inclusive.

R.
    Armstrong J.A.

G.
    J. Epstein J.A.

A. Karakatsanis J.A


CITATION: Slovenia v. Soba, 2011 ONCA 137

DATE: 20110218

DOCKET: C52024

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

The
          Republic of Slovenia

and the
          Minister of Justice

and Attorney General of Canada

Respondent

and

Bostjan Soba

Appellant

John Norris and Brydie CM Bethell, for the appellant

Richard A. Kramer, for the respondent

Heard: February 17, 2011

On appeal from the committal order
          of Justice Wailan Low of the Superior Court of Justice, dated February 17,
          2009.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Soba submits that the committal order ought to be set aside because
    the extradition judge erred in her appreciation of the discrepancies in the
    ROC.  He relies on the decision of the British Columbia Supreme Court  in
Tarantino
.

[2]

We do not agree with this submission.  This case differs significantly
    from
Tarantino
.  The discrepancies in this case were minor, and were
    corrected in the supplementary ROC.  In our view, these minor discrepancies did
    not taint the remaining evidence in the ROC.

[3]

Moreover, as Mr. Soba concedes, there is sufficient evidence in the ROC,
    apart from the evidence he challenges, to justify the committal order on all
    the charges.

[4]

Accordingly, the appeal from the committal order is dismissed.


CITATION:
Tannahill
v. Lanark Mutual Insurance
          Company, 2011 ONCA 123

DATE: 20110211

DOCKET: C52412

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Karakatsanis JJ.A.

BETWEEN

Susan
Tannahill
and Georges
Marchand

Applicants (Respondents)

and

Lanark Mutual Insurance Company

Respondent (Appellant)

Stephen S.
Appotive
, for the
          appellant

D. Hollingsworth, for the respondents

Heard & released orally:
February 7,
          2011

On appeal from the judgment of Justice Rick Leroy of Ontario
          Superior Court of Justice, dated June 24, 2010.

ENDORSEMENT

[1]

Lanark Mutual Insurance Company appeals a judgment that
    requires it to defend and indemnify the respondents in a tort action brought by
    their daughter, Naomi
Marchand
, who fell off the
    balcony of their home and was seriously injured.

[2]

The issue is whether Naomis claim is excluded from the
    respondents farm insurance policy because she was an insured, defined to
    include a relative while living in the named insureds household.

[3]

The application judge found that seven or eight years
    before her injury, Naomi had been driven from the family home at age 15 as a
    result of conflict with her mother, serious religious and lifestyle differences
    with both parents and her disclosure of five years of sexual exploitation by
    her father.  She had lived a peripatetic
    existence away from her parents for the next several years.  She had come to the respondents home to see
    her brother who was returning to Canada from Guyana and had been staying there
    for two and a half weeks before her injury.

[4]

The application judge found that the term household
    signified more than a transient visitor.  He found that at the time of her injury, Naomi shared no unity of
    purpose with her family and that she was merely a short-term visitor and not
    living in her parents household.

[5]

We see no error on the part of the application
    judge.  In the context of this case and
    this policy, the application judges reference to the definition of you and
    your in the part of the policy dealing with first party liability had no
    practical bearing on the proper interpretation of the phrase living in the
    named insureds household.

[6]

We agree with the application judge that the term
    household connotes a family like group of people living together with an
    element of intimacy or community in the relationship.  The exclusion clause protects the insurer
    against collusive claims brought by individuals living together in such
    relationships.  The respondents did not
    enjoy that type of relationship with Naomi.

[7]

There is ample evidence to support the application
    judges conclusion that Naomi was not living in the named insureds household
    at the time of her injury.  Her
    relationship with her parents had and remained completely broken down and she
    had not lived at her parents home since she had moved out or was evicted after
    her fathers sexual abuse conviction many years before her injury.  She had established an itinerant life of her
    own and it was open for the application judge to find that she was not living
    in the named insureds household at the time of her injury.

[8]

Accordingly, the appeal is dismissed.  Costs fixed at $20,000 inclusive of
    disbursements and applicable taxes, as agreed to by the parties.

Robert J. Sharpe J.A.

David Watt J.A.

A. Karakatsanis J.A.


CITATION: Toronto-Dominion Bank v. 466888 Ontario
      Limited, 2011 ONCA 149

DATE: 20110225

DOCKET: C52492

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg & Goudge JJA

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

466888 Ontario Limited,
1246787 Ontario Inc., James
          John Maga, Katherine Marie Maga and David Joseph Maga

Defendants (Appellants)

J. Sebastian Winny, for the appellants

Michael R. Kestenberg, for the respondent

Heard: February 24, 2011

On appeal from the judgment of Justice Thomas R.
Lederer
of the Superior Court of Justice
          dated July 2, 2010, with reasons reported at 2010 ONSC 3798.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge was fully aware of where the onus rested in the
    proceeding before him.  He found that the respondent had entirely satisfied
    that onus and that the appellant had put forward nothing to advance an
    affirmative defence.  We agree with that decision.  Appeal dismissed.

[2]

Costs as agreed $7,500 all in to the respondent.


CITATION: Turner v. Inndirect Enterprises Inc., 2011
      ONCA 97

DATE: 20110204

DOCKET: C51415

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN

Linda Turner

Plaintiff (Respondent)

and

Inndirect Enterprises Inc.

Defendant (Appellant)

J. Michael Mulroy, for the appellant

Kyle C. Armagon, for the respondent

Heard and endorsed: February 3, 2011

On appeal from the judgment of Justice David Salmers of the
          Superior Court of Justice, dated November 12, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge applied the proper test as set out in
Evans v.
    Teamsters Union
, 2008, SCC 20.  And based on his findings of fact, which
    are supported by the evidence, the conclusion that the respondent did not have
    to return to work was correct.

[2]

Accordingly, the appeal is dismissed with costs fixed at $7,500
    inclusive of disbursements and HST.


CITATION:
Willmot
v. Benton, 2011 ONCA 104

DATE: 20110204

DOCKET: M39529 (C52943)

COURT OF APPEAL FOR ONTARIO

Armstrong, Epstein, Karakatsanis JJ.A.

BETWEEN

Julie Willmot

Plaintiff (Appellant)

and

Robert Allen Benton, Lynn Marie
          McMahon, Danielle Valentik,
Re/Max Quinte
          Limited, Ian W. Brady, Jennie Marlene Crowe, Corporation of
          the City of Quinte West, Corporation of
          the Lower Trent Region Conservation Authority, Marlene Crowe
          and Steven Crowe

Defendants (Respondents)

Julie Willmot, in person

Mark R. Frederick, for the Corporation of the Lower Trent
          Region Conservation Authority

Suzanne Hunt, for the Corporation of the City of Quinte West

Heard and released orally: January 27, 2011

ENDORSEMENT

[1]

This is a motion to quash the appeal.  The respondents submit that this court lacks
    jurisdiction to entertain the appeal because the order in question is
    interlocutory in that it does not finally dispose of the issues between the
    parties.

[2]

The motion judge, on the basis of his conclusion
    that the interests of the plaintiff, respondent in this motion, would be best
    served through assistance, made an order that provides that the plaintiff
    appoint a litigation guardian and then that the plaintiffs litigation guardian
    appoint counsel to represent her.

[3]

The primary aspect of the order requiring the
    plaintiff to appoint a litigation guardian and counsel is procedural in nature
    and does not finally resolve an issue that goes to the merit or substance of
    this litigation that asserts claims for damages primarily based on
    misrepresentation and harassment.

[4]

There is one specific aspect of the order that
    was the subject of additional submissions.  It reads as follows:

This court further orders that the plaintiff`s
    litigation guardian shall appoint counsel in the action, the application and
    the small claims action within 30 days of the date of the order failing which
    the Conservation Authority or any other defendant in the action or respondent
    to the application may move without further notice pursuant to rule 21.01 of
    the
Rules of Civil Procedure
to
    strike out the plaintiff`s pleadings and seek dismissal on the grounds that the
    plaintiff`s pleadings disclose no reasonable cause of action and are frivolous,
    vexatious and an abuse of the court
s process.

[5]

This part of the order has caused us some
    concern primarily because it gives any defendant the opportunity to move, on an
ex parte
basis to obtain a dismissal
    of the plaintiffs claim.  However, this term,
    while unfortunate, does not render the order final.

[6]

Accordingly, notwithstanding the able
    submissions of Ms. Willmot, we conclude that the order is interlocutory.  The motion to quash is therefore granted and
    the appeal is quashed without prejudice to the respondents ability to seek
    leave to appeal to the Divisional Court.

[7]

There is no order as to costs.

Robert
    P. Armstrong J.A.

Gloria
    Epstein J.A.

Karakatsanis
    J.A.


CITATION:
120079 Ontario
          Inc. v. 253687 Ontario Limited, 2011 ONCA 200

DATE: 20110314

DOCKET: C51620

COURT OF APPEAL FOR ONTARIO

MacPherson, Rouleau and Epstein JJ.A.

BETWEEN

1290079 Ontario Inc.

Plaintiff (Respondent)

and

253687 Ontario Limited

Defendant (Appellant)

Peter
Azman
,
          for the appellant

Leo Klug, for the respondent

Heard
&
          released orally: March 4, 2011

On appeal from the judgment of Justice Eva Frank of the
          Superior Court of Justice dated January 14, 2010.

ENDORSEMENT

[1]

The appellant appeals the judgment of Frank J. of the
    Superior Court of Justice dated January 14, 2010 interpreting a commercial
    lease between the parties.

[2]

Following a brief trial with testimony from the
    principals of the two corporate parties, the trial judge determined that the
    initial term of the lease was 25 years and not 5 years as alleged by the
    appellant.  Therefore, the respondent had
    not failed to renew the lease in accordance with the terms of the lease.  The trial judge also ordered the appellant to
    pay the respondent $24,000 for rental of a roof sign on the leased
    property.

[3]

On appeal, the appellant contends that the trial judge
    was biased against him, that she misinterpreted the lease and that she erred in
    rejecting the appellants claim that providing for a 25 year initial term in
    the lease constituted a unilateral mistake entitling the appellant to void the
    lease.

[4]

We do not accept these submissions.  There is absolutely nothing in the record to
    support the appellants claim of judicial bias.  On the interpretation of the lease issue, it is our view that the trial
    judges interpretation is supported by the record.

[5]

As to the claim of unilateral mistake, we see no error
    in the trial judges rejection of this claim.  The appellant is an experienced businessman who participated in the
    drafting of the lease and the trial judges finding that the true intent of the
    parties when they entered into the lease was that the initial term be 25 years
    is well supported by the evidence.

[6]

The appeal is dismissed.  Costs are fixed at $7,000 inclusive of
    disbursements and applicable taxes.

J.C. MacPherson J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


CITATION: 1455293 Ontario
      Inc. v. Virani, 2011 ONCA 175

DATE:20110304

DOCKET: C52823

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Juriansz JJ.A.

BETWEEN:

1455293 Ontario Inc., Save on Auto Inc. and Ali
          Sepehripour

Plaintiffs (Respondents)

and

Dr. Mirza R. Virani and Alice Virani

Defendants (Appellant)

Morris Trent and Darren J. Smith, for the appellant

Kimberly Boara Alexander, for the respondents

Heard and endorsed: March 3, 2011

On appeal from the judgment of Justice Michael A. Penny of the
          Superior Court of Justice, dated September 22, 201.

APPEAL BOOK ENDORSEMENT

[1]

Despite Mr. Morris full and complete submissions, we are not persuaded
    that the motion judge erred in granting partial summary judgment. Based on the
    record, including the appellants own admissions, the motion judge properly
    concluded that there was no basis to set aside the bargain struck by the
    parties on account of duress. Accordingly, there was no genuine issue for
    trial. The partial summary judgment is not, in our view, an impediment to the
    trial of the remaining issues between the parties and certainly presents no
    basis for holding up the judgment to which the respondent is entitled.

[2]

Accordingly, the appeal is dismissed.

[3]

Costs to the respondent fixed at $6,500 inclusive of applicable taxes
    and disbursements payable by the appellant Dr. Virani.


CITATION: 1562860 Ontario Ltd. (Shoeless
      Joes) v. Insurance Portfolio Inc., 2011 ONCA 180

DATE: 20110307

DOCKET: C50400

COURT OF APPEAL FOR ONTARIO

Winkler, Rosenberg and Goudge JJ.A.

BETWEEN

1562860 Ontario Ltd. carrying on business as Shoeless Joes

Plaintiff (Appellant)

and

Insurance Portfolio Inc. and Christopher Coniglio

Defendants (Respondents)

and

The Dominion of Canada General Insurance Company

Third Party

Katherine I. Henshell and M. Dylag, for the appellant

Mikel C. Pearce, for the respondents

Christopher I. R. Morrison and Stephanie R. Quesnelle, for the
          third party

Heard: February 25, 2011

On appeal from the order of Justice Thomas A. Bielby of the
          Superior Court of Justice dated April 1, 2009.

BY THE COURT:

[1]

At the conclusion of argument, the court ordered that the appeal be
    allowed to the extent of lifting the stay of the main action so far as it is
    based on the claim that the respondents caused the appellant to be
    underinsured. The court indicated that reasons would follow, which would also
    deal with costs. These are those reasons.

[2]

The respondents arranged business loss insurance for the appellant. The
    third party was the insurer. When the appellant called on that insurance, it
    was told that there was insufficient coverage. Without the assistance of the
    respondents, it settled with the third party for less than the value of its
    loss, and signed a release in favour of the third party, agreeing not to make a
    claim against anyone who might claim contribution or indemnity from the third
    party.

[3]

The appellant then sued the respondents, who claimed indemnification
    against the third party. The third party moved to stay the appellants action
    and the respondents claim for indemnification, on the basis of its release.
    The motion judge stayed both the main action and the third party claim, finding
    that the action and the third party claim were clearly linked, and that the
    appellant must live with the consequences of its release.

[4]

Both the appellant and the third party have appealed.

[5]

In our view, it is plain and obvious that the respondents third party
    claim for indemnification arising from the appellants underinsured claim
    cannot succeed. The appellants allegation in the main action is that the
    respondents left the appellant underinsured. The respondents third party claim
    arising from this is founded on the allegation that the appellant was not
    underinsured, but was properly insured, and the third party was negligent in
    adjusting the claim and in paying less than it should have.

[6]

If the appellant succeeds in the main action and proves that it was
    underinsured, the basis of the respondents third party claim falls away. It
    cannot succeed because it cannot establish that the appellant was properly
    insured. On the other hand, if the appellant fails, it has suffered no loss due
    to underinsurance, and there is nothing for which the respondent can claim
    contribution or indemnity. In either case, the third party claim arising from
    the underinsured claim in the main action cannot succeed. It is not just
    clearly linked with the appellants claim. It is incompatible with it. A stay
    of the third party proceedings arising from the underinsured claim is therefore
    appropriate and, in those circumstances, permitting the main action to proceed
    based on this claim no longer engages the appellants release of the third
    party. To that extent, the stay of the main action ordered at first instance
    must be lifted.

[7]

As the respondents point out, the appellant has also claimed that the
    respondents were negligent and in breach of their fiduciary duty in failing to
    assist the appellant in settling its insurance claim with the third party. The
    appellant seeks general damages as a result. The respondents deny this claim
    and claim indemnity from the third party for breaching the duty of care
    requiring it to settle the appellants insurance claim on a reasonable basis.

[8]

Although the motion judge did not expressly deal with this aspect of the
    matter, we see no reason to interfere with the stay of the main action and the
    third party arising from this claim. Both raise issues of negligence arising
    from the way the insurance claim was settled and are not incompatible with each
    other. The claim in the main action based on the manner of the appellants
    settlement of its insurance claim and the claim of the respondents for
    indemnity from the third party based on this, must remain stayed. For this claim
    in its main action, the appellant must live with the consequences of its
    release of the third party. Indeed, in argument, the appellant did not oppose
    this.

[9]

We would therefore allow the appeal in part and amend the order below
    consistent with these reasons.

[10]

We would alter the costs order at first instance to provide that the
    appellant recover a portion of its partial indemnity costs at first instance
    from the respondents fixed at $6,000 inclusive of disbursements and applicable
    taxes. This reflects the appellants significant but only partial success. The
    amount of the third partys costs ordered below should not be altered but
    should be paid jointly and severally by the appellant and the respondents in
    light of their joint responsibility for the outcome.

[11]

In this court, the same costs considerations should apply. The appellant
    should recover a portion of its partial indemnity costs to be paid by the
    respondents, fixed at $6,000 inclusive of disbursements and applicable taxes.
    The third parties should recover its partial indemnity costs jointly and
    severally from the appellant and the respondents fixed at $10,000 inclusive of
    disbursements and applicable taxes.

RELEASED:  MAR 07 2011 (S.T.G.)

Winkler C.J.O.

M. Rosenberg J.A.

S. T. Goudge
    J.A.


CITATION:
Abou-Elmaati
v. Canada (Attorney
          General), 2011 ONCA 231

DATE: 20110325

DOCKET: C52120

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Karakatsanis JJ.A.

BETWEEN

Ahmad
Abou-Elmaati
,
Badr

Abou-Elmaati
, Samira Al-
Shallash
and
Rasha

Abou-Elmaati

Plaintiffs (Respondents/Appellants
          on Cross-Appeal)

and

The Attorney General of Canada
, John Doe and
          Jane Doe

Defendant (Appellant/Respondent
          on Cross-Appeal)

Robert MacKinnon and Zoe
Oxaal
,
          for the appellant

M. Philip
Tunley
and
          Andrea
Gonsalves
, for the respondents

Heard: December 14, 2010

On appeal from the order of Justice P.M. Perell of the Superior Court
          of Justice dated April 8, 2010, with reasons reported at 101 O.R. (3d) 424.

ENDORSEMENT
    RE COSTS

[1]

We have now reviewed the parties written submissions
    relating to the costs of this appeal and of the motion in the Superior
    Court.  In our view, in the circumstances
    of this case, the appropriate order is that the appellant Attorney General of
    Canada be awarded costs in the cause in this court and in the Superior Court in
    the total amount of $35,000, inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

David Watt J.A.

Karakatsanis J.A.


CITATION: Bank of Montreal v. Shelvan, 2011 ONCA 222

DATE:20110322

DOCKET: C52630

COURT OF APPEAL FOR ONTARIO

Rosenberg, Moldaver and Feldman JJ.A.

BETWEEN

Bank of Montreal

Plaintiff (Respondent)

and

Sanchitha Shelvan and Shelvan Kannuthurai

Defendants (Appellants)

Sanchitha Shelvan and Shelvan Kannuthurai, in person

Michael Collis, for the respondent

Heard and endorsed: March 18, 2011

On appeal from the judgment of Justice Duncan Grace of the
          Superior Court of Justice dated July 12, 2010.

APPEAL BOOK ENDORSEMENT

[1]

There is no triable issue in this case. The appellants did not qualify
    for the skip a payment plan. We agree with the respondent that the trial judges
    reasons are inconsistent and there was no basis for sending the single payment
    issue on for trial.

[2]

Accordingly, the appeal is dismissed.

[3]

The cross-appeal is allowed and para. 1 of the judgment is amended to
    refer to the amount of $394,431.33. Costs to the respondent fixed at $4,000
    inclusive of disbursements and HST.


CITATION: Bedford v. Canada
    (Attorney General), 2011 ONCA 209

DATE: 20110316

DOCKET: M39752-C52799 and C52814

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O. (In Chambers)

BETWEEN:

Terri Jean Bedford, Amy Lebovitch and Valerie Scott

Applicants

(Respondents
          in Appeal)

and

Attorney General of

Canada

Respondent

(Appellant in Appeal)

and

Attorney General
          of Ontario

Intervener (Appellant in Appeal)

Rahool P. Agarwal and Michael Kotrly, for the proposed
          intervener, Maggies: The Toronto Sex Workers Action Project

Alan Young and Daniel Sheppard, for the respondents

Megan Stephens and Christine Bartlett-Hughes, for the
          intervener, Attorney General of Ontario

Sandra Nishikawa and Michael H. Morris, for the Attorney
          General of Canada

Heard:
March 11, 2011

ENDORSEMENT

[1]

This is a
    motion brought by Maggies: The Toronto Sex Workers Action Project (the
    moving party) seeking to intervene in this appeal.
Counsel for the respondents
    do
not oppose the motion provided that the intervention does not delay
    the hearing of the appeal.  Counsel for
    both appellants opposed the intervention.

[2]

The respondents on this appeal brought a challenge to
    certain provisions of the
Criminal Code
,
    R.S.C. 1985,
c
. C-46 that creates prostitution related
    offences, arguing that they violated ss. 7 and 2(b) of the
Canadian Charter of Rights and Freedoms
and could not be saved under
    s. 1 of the
Charter
.  The matter was fully argued on an application
    before the Superior Court of Justice.  The parties to the application filed a substantial record, extending to
    some 25,000 pages, to deal with the constitutional validity of the impugned
    legislative provisions as measured against the requirements of ss. 7 and 2(b)
    of the
Charter
.

[3]

In a lengthy and comprehensive decision, the applications
    judge ruled in favour of the respondents and struck down the impugned
    provisions.  The matter is now before this
    court and is to be heard in June, 2011.  To
    ensure that a range of voices and perspectives are available to assist the
    court in dealing with this difficult issue, the parties have agreed, and the
    court has authorized, the intervention of seven interveners, most of whom are
    coalitions or organizations with expertise in relation to the issues that are
    to be determined on the appeal.

[4]

The moving party, which was founded in 1986, is an
    independent, not-for-profit agency dedicated to providing support to, and
    advocating on behalf of, Torontos sex- worker community.  It is the first sex-worker agency in the
    world to be government-funded.  It has
    been a valuable resource to the community and has developed considerable
    expertise in respect of issues affecting sex workers.

[5]

The moving party wishes to participate in two areas.  First, it seeks to challenge the impugned
    legislative provisions on the basis that they do not comply with s. 15 of the
Charter
.  Second, it wishes to argue that the objectives of the impugned provisions
    are driven by moral views on the sale of sex, which it will argue is a constitutionally
    impermissible justification for the legislation.

[6]

The first issue is new to this litigation.  The original application challenging the
    validity of the impugned provisions was premised only on their alleged
    violation of ss. 7 and 2(b) of the
Charter
.  Further, it was successfully argued that those
    violations could not be justified under s. 1 of the
Charter
. The proposed intervention does not merely raise an
    alternative legal argument in relation to the ss. 7 and 2(b) issues but rather
    raises an entirely new ground on which to challenge the legislation.  The second issue was raised by the parties in
    the lower court and forms part of the reasons of the application judge.

[7]

The moving party suggests that it would be beneficial
    to have all of the dimensions of the constitutional argument as to the validity
    of this legislation considered before this court.  While that may be so in a perfect world, the
    fact remains that the parties chose not to raise this issue and the application
    judge did not address s. 15 in her reasons.

[8]

The test for intervention as a friend of the court has
    been succinctly expressed by Dubin C.J.O. in
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of
    Canada Ltd.
(1990), 74 OR (2d) 164 at p. 167.  In considering such an application, the court
    must consider the nature of the case, the issues that arise and the likelihood
    of the applicant being able to make a useful contribution to the resolution of
    the appeal without causing injustice to the immediate parties.  In addition, the intervention must not
    prejudice the existing parties.

[9]

With regard to new arguments being presented on appeal,
    in
767269 Ontario Ltd. v. Ontario Energy
    Savings L.P.
,

2008 ONCA 350, at
    para. 3, this court commented as follows, borrowing from the Nova Scotia Court
    of Appeals decision in
Ross v. Ross
(1999), 131 N.S.R. (2d) 22:

[S]uch an argument could only be entertained if the
    court of appeal is persuaded that all of the facts necessary to address the
    point are before the court as fully as if the issue had been raised at
    trial.  The rationale for the principle
    is that it is unfair to permit a new argument on appeal in relation to which
    evidence might have been led at trial had it been known the issue would be
    raised.

[10]

I am not prepared to allow the moving party to
    intervene to raise the s. 15 challenge for two reasons:  (1) the existing record was not developed
    with a view to establishing or responding to a s. 15 challenge; and (2) allowing
    the moving party to intervene to raise the s. 15 ground at this stage of the
    litigation process would be unfair to the parties.

[11]

I start with the record.  On the application, the parties were
    represented by experienced counsel.  They
    developed a record focused on the issues as they had framed them.  The record is over 25,000 pages and includes
    numerous reports, studies, affidavits and cross-examinations.

[12]

The moving party accepts that it should not be entitled
    to introduce new evidence at this stage.  It is prepared to take the record as it is.  The moving party has reviewed the
    record.  It points to a number of
    extracts from the record from which it could draw support for its s. 15
argument
.  Indeed, it
    urges that the record is complete and sufficient to permit this court to deal fairly
    with the s. 15 issue.

[13]

Counsel for the appellants  the two governments  strongly
    disagree that the record is satisfactory from their standpoint to address
a
s. 15 challenge.  They say that had they been confronted with
a
s. 15 challenge, in addition to the ss. 7 and 2(b) challenges, before the
    application was heard, they would have introduced additional evidence and
    developed a different more fulsome record directed specifically at ss. 15 and 1.  They accept that some of the record is
    relevant to
a
s. 15 challenge.  However, they did not put their minds to s.
    15 when they were developing the record.  On the motion before me, counsel for the appellants were able to
    articulate a number of specific issues and types of evidence that they may well
    have canvassed and included in the record had s. 15 been a live issue on the application.  The matters that they pointed to seem
    perfectly sensible to me.

[14]

I accept the appellants positions as to the state of
    the record for s. 15 purposes. There is some material in the record, and indeed
    some of the findings of the application judge, that could be used in making or
    responding to
a
s. 15 challenge.  There is obviously overlap among some of the
    factual and legal issues arising from an application of the two sections.  But there are also differences.

[15]

The fact that the moving party is able to find portions
    of the record that would address s. 15 issues does not mean the record is
    complete and sufficient for
a
s. 15 challenge.  Nor does the moving partys acceptance of the
    record as is cast an onus on the appellants to establish that the record is
    incomplete.

[16]

To state the obvious, the moving party is not a party
    to the litigation.  The parties have
    framed the issues and developed the record as they thought best.  The respondents did not include a challenge
    to the legislation on the basis of s. 15.  I am satisfied that it would do a disservice to the parties, to the
    court and, indeed, the public interest to litigate a s. 15 challenge on the
    basis of this record.

[17]

I would also dismiss the motion to intervene with
    respect to s. 15 on the basis of fairness to the parties to the appeal.  This is a complicated appeal.  All of the parties are anxious that it be
    heard as soon as possible.  It is
    scheduled to be argued in mid-June.  The
    court has imposed tight timelines for the filing of material.  Seven interveners are going to
    participate.  The respondents do not
    oppose the moving partys motion to intervene provided there is no delay in the
    hearing of the appeal.

[18]

I am satisfied that if the moving party were allowed to
    intervene on s. 15, it would result in the argument of the appeal having to be
    delayed.  Introducing such a significant
    new ground on which to challenge the legislation, even on the existing record,
    would necessitate a thorough analysis of the record and the preparation of new
    material to address the issues.

[19]

Finally, counsel for the moving party suggests that if
    I am not inclined to grant the intervention on the s. 15
issue
,
    I should defer the issue to the panel hearing the appeal.  I am not prepared to do that.  It would be of little comfort to the parties
    who take the position that the record is incomplete and insufficient for the
    purposes of fully examining
a
s. 15 argument to adopt
    this approach.  Such a process would
    place the parties, particularly the appellants, in the position of having to
    fully prepare the s. 15
argument
.

[20]

For the reasons I have set out above, I am of the view
    that this court ought not to allow an intervention on the basis of s. 15.  I would not defer the issue to the panel.

[21]

The moving party also seeks to intervene to make the
    argument that the objectives of the impugned legislative provisions are driven
    by moral views on the sale of sex.  This,
    it argues, is a constitutionally impermissible justification for the
    legislation.  This issue was raised below
    and forms part of the reasons of the application judge.  Clearly, this argument will be made by the
    respondents and/or other groups that have already been granted intervener
    status.

[22]

I see no reason to make a separate grant of intervener
    standing to the moving party on this basis.  That said, I accept that the moving party has a longstanding interest
    and expertise in the issues
raised
on the appeal.  As such, I think it would be appropriate for
    the moving party to join one of the existing intervener groups. If there is any
    problem in this respect, I may be spoken to.

[23]

In the result, the motion for leave to intervene in order
    to raise the s. 15 issue is dismissed.  The balance of the motion shall be addressed as I indicate in the
    preceding paragraph.  There is no order
    as to costs of this motion.

Dennis OConnor
    A.C.J.O.


CITATION:
Bishop v. Bishop, 2011
          ONCA 211

DATE:  20110317

DOCKET: C52841

COURT OF APPEAL FOR ONTARIO

Rosenberg, Moldaver and Feldman JJ.A.

BETWEEN

Christine Catherine Bishop and Anne Alma McGourty

Applicants (Respondents)

and

James Michael Bishop

Respondent (Appellant)

James Bishop, in person

Annette Casullo, for the respondents

Heard: March 15, 2011

On appeal from the order of Justice R. Dan Cornell of the
          Superior Court of Justice, dated October 5, 2010.

ENDORSEMENT

[1]

The appellant appeals from the order of Cornell J. of
    the Superior Court of Justice dated October 5, 2010 declaring him to be a vexatious
    litigant pursuant to s. 140 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and (1) prohibiting him from
    continuing any proceeding, including any appeal, in any court governed by the
Courts of Justice Act
without first obtaining
    leave of a judge of the Superior Court of Justice; and (2) prohibiting him from
    commencing any proceedings or appeal in any court governed by the
Courts of Justice Act
without first
    obtaining leave of a judge of the Superior Court of Justice.

[2]

The appellant submits that the motion judge erred in
    making that order, essentially for two reasons.

[3]

First, the appellant submits that the court proceedings
    instituted by him were few in number and they were not vexatious; rather, they
    were brought in good faith on the basis of his sincerely held belief that his
    sisters (the respondents) had used a power of attorney to misappropriate large
    sums of money from their mother before she died. He therefore takes issue with
    the motion judges finding that the proceedings instituted by him were vexatious.

[4]

Second, the appellant submits that in finding him to be
    a vexatious litigant, the motion judge erroneously took into account numerous
    non-judicial proceedings, including complaints to various professional bodies against
    individuals who had either opposed him in his attempt to expose his sisters
    alleged wrongdoings or who had allegedly failed to provide him with competent
    advice and service.

[5]

We would not give effect to either of these grounds of
    appeal.

[6]

The motion judge provided comprehensive reasons for
    concluding that the appellant met the criteria identified in
Re Lang Michener et al. and Fabian et al.
(1987), 59 O.R. (2d) 353 (H.C.), to be declared a vexatious litigant under s.
    140(1) of the
Courts of Justice Act
.
    At paras. 15 and 16 of his reasons, the motion judge summarized his findings in
    this regard:

It is readily apparent that Mr. Bishop has
    satisfied most, if not all, of the criteria to be applied in determining if
    someone is a vexatious litigant. He has brought one or more actions to
    determine an issue that has already been judicially determined. In each case,
    there was no reasonable basis for the position that was being advanced by him.
    His scorched earth approach to this matter constitutes harassment and
    oppression of not just his siblings, but of anyone else who has been associated
    with this matter. Despite a thorough review by various independent agencies and
    the courts, it is now clear that Mr. Bishop refuses to accept that his concerns
    are unfounded. Mr. Bishop has continued with a multiplicity of proceedings in
    an effort to re-litigate the matter. In addition, Mr. Bishop persists in taking
    unsuccessful appeals from judicial decisions.

Mr. Bishop has had his day, indeed more than one
    day, in court. He refuses to accept the independent and impartial decisions
    which have been rendered and doubtless would continue on this unreasonable
    course of conduct for, to use his own words, another twelve years on this one
    if I have to ....

[7]

In our view, the motion judge was justified in
    concluding that the appellant is fixed in his belief that the
respondents
misappropriated funds from his late mother and
    that nothing short of a vexatious litigant order will prevent him from continuing
    his crusade against them in the courts indefinitely. Contrary to the submission
    of the appellant, the record amply supports those findings.

[8]

As for the second ground of appeal  that the motion
    judge improperly took non-judicial proceedings into account  we agree with the
    principle enunciated by Dawson J. in
Canada
    Post Corp. v. Varma
, [2000] F.C.J. No. 851 at para. 23:

A respondents behaviour both in and out of the
    court has been held to be relevant. In
Canada
    v. Warriner
, (1993), 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous
    and unsubstantiated allegations of impropriety had been levelled against
    lawyers who had acted for or against the respondent. In
Vojic, supra
, McGillis J. took into account the fact that the
    respondent had failed to appear on several occasions and had shown disregard
    for the court. In
Yorke v. Canada
,
    (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors,
    including that the respondents proceedings in the Federal Court were replete
    with extreme and unsubstantiated allegations.

[9]

We would simply add to that statement by noting that in
    our view, the institution of non-judicial proceedings can, depending on the
    circumstances, constitute evidence from which a court may infer that court
    proceedings commenced by the litigant are not
bona fide
but the product of someone who is unreasonably obsessed
    with a cause and likely to pursue vexatious court proceedings on an indefinite
    basis unless stopped.  In this case, we
    are satisfied that the motion judge was entitled to look to the extra-judicial
    proceedings commenced by the appellant in assessing the
bona fides
of the legal proceedings he had commenced and was
    continuing to pursue.

[10]

For these reasons, we would dismiss the appeal and uphold
    the motion judges order.

[11]

The appellant also submits that the motion judge erred
    in fixing costs against him in the amount of $28,146.57. We see no basis for
    granting leave in this case. The appellant has not identified any error in
    principle and the costs award is not unreasonable. Accordingly, leave to appeal
    costs is denied.

[12]

With respect to the appeal, we are satisfied that the
    respondents should have their costs on a partial indemnity basis in the amount
    of $10,000, inclusive of disbursements and applicable taxes. Rule 49 relating
    to the cost consequences of offers to settle
does
not
    apply to appeals.

Signed:           M.
    Rosenberg J.A.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.


CITATION: Caledonia Service Station Inc. v. Cango
      Inc., 2011 ONCA 184

DATE: 20110309

DOCKET: C51770

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and LaForme JJ.A

BETWEEN

Caledonia Service Station Inc.

Applicant (Respondent)

and

Cango Inc.

Respondent (Appellant)

Tamara Farber, for the appellant

Nicholas C. Tibollo and Lori Marzinotto, for the respondent

Heard: January 6, 2011

On appeal from the order of Justice David Price of the
          Superior Court of Justice dated January 28, 2010, with reasons reported at
          (2010) 90 R.P.R. (4th) 236.

Goudge J.A.:

[1]

The appellant operated a gas bar on premises that it leased from the
    respondent in Mississauga, Ontario. In the spring of 2008, the appellant
    discovered a failure in one of the underground fuel lines on the premises. It capped
    the line, discontinued its use and notified the respondent in April 2008.
    Subsequently, in June 2008, the appellant terminated the lease and vacated the
    premises, leaving behind the underground tanks and lines, including the capped
    line.

[2]

The respondent then brought an application seeking a declaration that
    the appellant is the owner of the underground storage tanks and fuel lines, and
    an order requiring the appellant to remove them. The application judge dismissed
    this request. The respondent has not appealed from this order. In the
    alternative, the respondent sought an order declaring that the lease required
    the appellant to repair the underground storage tanks and fuel lines. The
    application judge granted this order, together with an order declaring that the
    appellant had breached its duty of repair.

[3]

The appellant appeals, arguing that its lease imposed no such repair
    obligation. For the reasons that follow, I agree. I would therefore allow the
    appeal.

[4]

The appellant was the third lessee to carry on the gas bar business on
    the respondents premises. The first tenant signed its lease with the
    respondent in 1985. That lease explicitly required the tenant to remove its
    equipment and improvements at the end of the lease. The first tenant went
    bankrupt in March 1991 and did not remove its equipment and improvements.

[5]

In June 1991 the second lessee, Pioneer, signed a new lease with the
    respondent. It did not contain a provision requiring the tenant to remove its
    equipment and improvements at the end of the lease. This lease was subsequently
    assigned to the appellant in 1993.

[6]

The important provisions of the 1991 lease are as follows:

3.
USE OF PREMISES:

...

a) Pioneer may at its expense and in conformity
    with all laws, by-laws and regulations construct and install on the Premises
    any buildings, structures, improvements and equipment, including advertising
    signs and billboards. All buildings, improvements and equipment constructed,
    installed or placed on this Lease and any renewal and overholding thereof shall
    be and remain the property of Pioneer until the termination of this Lease.

...

5.
REMOVAL OF TRADE FIXTURES:

Pioneer may at any time during the term
    of this Lease and any renewal or extension thereof, and within thirty (30) days
    thereafter remove any of its trade fixtures and other equipment installed or
    placed on the Premises by it and shall repair damage caused by such removal.
    Any such trade fixtures and equipment not so removed and all buildings and
    improvements constructed, installed or placed on the Premises by Pioneer shall
    thereupon become the absolute property of the Landlord....

6.
REPAIR AND REPLACEMENT:

Pioneer shall at its expense maintain
    and keep the Premises and all improvements thereon neat and clean and in good
    order and repair having regard to the age of such improvements and the business
    of Pioneer. Pioneer will permit the Landlord or its servants or agents to enter
    at all reasonable times upon the premises to examine the state or condition of
    the same.

[7]

The application judge found that the underground storage tanks and fuel
    lines were trade fixtures belonging to the tenant, which it could restore to
    their character as chattels by severing their connection with the soil. The
    respondent conceded this finding in its factum. In oral argument in this court,
    although not attacking the finding as incorrect, the respondent urged that the
    reasons below be read as finding that these were the landlords trade fixtures.
    I cannot do so. Nowhere did the trial judge say or imply this. Rather he found
    explicitly that they were owned throughout the lease by the tenant.

[8]

The application judge then focused on paragraph 5 of the 1991 lease,
    which gave the appellant the right, although not the obligation, to remove any
    of its trade fixtures at the end of the lease. This paragraph states that any
    trade fixtures not so removed become the property of the respondent. Since the
    appellant did not remove the underground storage tanks and fuel lines when it
    vacated, this paragraph provides that they now belong to the respondent.
    Paragraph 5 necessarily serves as the underpinning for the application judges
    dismissal of the respondents request for a declaration that the appellant is
    the owner of these tanks and lines and an order requiring the appellant to
    remove them from the premises. As I indicated, the respondent has not appealed the
    dismissal order.

[9]

The application judge then turned to the appellants duty to repair. It
    is governed by paragraph 6 of the 1991 lease. He found that improvements in
    that paragraph include the underground storage tanks and fuel lines. That was
    the only issue before him concerning the repair obligation. In this case the
    respondent did not allege that the failure to repair caused damage to the
    premises. The damage alleged was only to the trade fixtures themselves.

[10]

The application judge concluded that paragraph 6 imposed an obligation
    to repair the underground storage tanks and fuel lines, and that the appellant
    breached its duty by failing to repair the fault that it reported in April
    2008.

[11]

I am inclined to agree with the appellants alternative argument that
    the application judge had no basis to conclude that the capping of the failed
    fuel line constituted a breach of the duty to repair. However, it is
    unnecessary to finally decide that question because I agree with the
    appellants primary argument, namely that the application judge erred in
    finding that the duty to repair applied to the underground storage tanks and
    fuel lines at all.

[12]

The lease clearly distinguishes between the tenants trade fixtures and
    improvements. Paragraph 5 refers to both explicitly and treats them differently.
    The tenant is given the right to remove any of its trade fixtures during or at
    the end of the lease. If it chooses not to do so, they become the property of
    the landlord on termination of the lease.

[13]

On the other hand, the tenant is given no right to remove improvements
    that it constructs on the premises. While paragraph 3(a) provides that such
    improvements are the property of the tenant during the term of the lease,
    paragraph 5 provides that they become the property of the landlord on the
    leases termination.

[14]

This distinction accords with the ordinary meaning of improvements and
    trade fixtures in the law of real property: improvements refer to things
    constructed on and attached to the realty that are intended to become part of
    it; trade fixtures refer to things placed on and connected to the realty but in
    a way that the connection can be severed, restoring their character as
    chattels. See
Stack v. T. Eaton Co.
(1902), 4 O.L.R. 335 (Div. Ct.);
Fas
    Gas Oil Ltd. v. J. H. Automotive Ltd.
(2004), 31 Alta. L.R. (4th) 197 (C.A.);
Beloit Sorel Walmsley, Ltd. v. New Brunswick
(1976), 71 D.L.R. (3d) 240
    (N.B.C.A.).

[15]

Paragraph 6 of the lease sets out the tenants repair obligation. It
    clearly applies to improvements. It does not refer to the tenants trade fixtures.
    This not only reflects the ordinary distinction that is drawn between the two
    in the law of real property, but it also reflects the distinction that is explicitly
    drawn in this lease. It reflects the fact that, because they cannot be removed,
    improvements made by the tenant will inevitably become the property of the
    landlord, giving the landlord an interest in ensuring their repair. On the
    other hand, a tenants fixtures may be removed by the tenant, in which case the
    landlord has no stake in their state of repair. A landlord wishing to protect
    itself against unrepaired trade fixtures left behind by the tenant can do so by
    requiring the tenant to remove its trade fixtures at the end of the lease, as
    this landlord did in the 1985 lease, but did not in the 1991 lease.

[16]

I therefore conclude that, having found the underground storage tanks
    and fuel lines to be tenants trade fixtures, the application judge erred in
    concluding that they were improvements for the purposes of the tenants repair
    obligation. The appellant had no obligation to the landlord to repair them.

[17]

I would therefore allow the appeal, set aside the order below and
    substitute an order dismissing the application in its entirety.

[18]

The appellant is entitled to partial indemnity costs here and below,
    which I would fix at $10,000 and $25,000 respectively, each inclusive of
    disbursements and applicable taxes.

RELEASED:  MAR 09 2011 (S.T.G.)

S. T. Goudge
    J.A.

I agree. Robert J. Sharpe
    J.A.

I agree. H. S. LaForme J.A.


CITATION: Capmor Financial
          Services Corporation v. Sibilia, 2011 ONCA 151

DATE: 20110301

DOCKET: C51494

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman, Juriansz, JJ.A.

BETWEEN

Capmor Financial Services Corporation

Plaintiff (Respondent)

and

Victor Sibilia

Defendant (Appellant)

Helen A. Daley, for the appellant, Victor Sibilia

Benjamin Salsberg, for the respondent, Capmor Financial
          Services Corporation

Heard: February 2, 2011

On appeal from the order of Justice Spies of the Superior
          Court of Justice, dated December 7, 2009.

Feldman J.A.:

[1]

The respondent sued the appellant for
    arrears owing on an equipment lease more than two years after the appellants
    co-lessee defaulted on the lease by going bankrupt, and after both lessees then
    failed to make the next payment. The motion judge held that the lease signed by
    the two co-lessees amounted, in
effect,
to two
    separate leases and that the two year limitation period had not run against the
    appellant on his lease. For the reasons that follow, I would allow the appeal.

Facts

[2]

The appellant Sibilia owned two companies, Enviro Tire
    Technologies Ltd. and 1446968 Ontario Ltd. Enviro was in the rubber recycling
    business, operating out of premises owned by 144, and using two pieces of large
    equipment, a flocking machine and an oven, both of which were leased from the
    respondent. The oven lease was entered into by Enviro and Sibilia as
    co-lessees. The lease provided in paragraph 29 that if more than one lessee
    is named in this lease, the liability of each shall be joint and several. The
    lease commenced on August 1, 2004.

[3]

Enviro was sold to Unisphere, a public company,
    sometime after the lease was entered into, and before it made an assignment in
    bankruptcy in February, 2005. The February lease payment was not made.

[4]

The appellant later met with the Chairman of the
    respondent and made an oral arrangement regarding the oven. After hearing the
    evidence of the parties, the trial judge made the following finding:

I find that it was agreed that while efforts were being
    made to sell the Equipment, Mr. Sibilia would not have to make the monthly
    payments on the oven lease and during that period of time those payments would
    in effect be forgiven, and Capmor would not have to make any payments for
    storage of the Equipment in the Leased Premises.

[5]

Eventually, 144 sued Capmor for storage fees for the
    oven before it was ultimately sold, and Capmor sued Mr. Sibilia for the amount
    owing under the oven equipment lease. The two actions were tried together.

[6]

The trial judge granted judgment in favour of Mr.
    Sibilia in the 144 action on the basis of
quantum
    meruit
, finding that Mr. Sibilia and 144 had effectively terminated the
    oral agreement on October 1, 2005, and that Capmor was responsible to pay
    storage rent to 144 from November 1, 2005 until December 22, 2006, the date the
    oven was sold. She found that the oven was stored by 144 to the benefit of
    Capmor, and that Capmors conduct constituted acquiescence in that it accepted
    the ongoing storage of the oven. It would have been unjust not to hold Capmor
    responsible for the fair value of the cost of storage. 144
was
entitled to be compensated for the reasonable value of the storage and
    dismantling of the equipment. The judgment in the 144 action was not appealed.

[7]

In the Capmor action, the trial judge granted judgment
    in favour of Capmor, finding that Mr. Sibilias obligation to make the monthly
    payments under the lease resumed as of November 1, 2005 and that Mr. Sibilia
    remained responsible as a co-lessee under the lease. Neither action was pleaded
    or argued on the basis of equitable set-off, which may have avoided the
    limitations issue but raised other issues such as mutuality between 144s claim
    for storage fees and Capmors claim for unpaid rent pursuant to the lease, in
    the period following the termination of the oral agreement.

[8]

This appeal deals only with the Capmor action, and
    specifically, only with the issue of whether the action was statute-barred.

[9]

On the limitation issue, the trial judge first accepted
    Capmors submission that the effect of Mr. Sibilia signing the lease as
    co-lessee is the same as if he had signed a separate lease for the oven on the
    same terms. She further found that the parties agreed to a set-off type of
    arrangement for the period from February, 2005 to when it was terminated in
    October, 2005, whereby Mr. Sibilias lease payments on the oven were set off
    against an amount that Capmor would have otherwise had to pay to 144 for
    storage of its oven at 144 pending its sale.

[10]

Capmor issued a notice of action in June, 2007 and a
    statement of claim in July, 2007, more than two years after February, 2005 when
    Unisphere went bankrupt and the lease payment on the oven for that month was
    not made. The trial judge held that the bankruptcy of Unisphere did not trigger
    a default of the oven lease between Capmor and Mr. Sibilia. Further, there was
    no default in payment by Mr. Sibilia because of the set-off arrangement he made
    with Capmor which covered the period up to the November, 2005 payment. It was
    only when that payment was not made that Mr. Sibilia defaulted on his lease,
    less than two years before the action was commenced.

Issue

[11]

What was the event of default under the lease that
    triggered the commencement of the limitation period?

Analysis

[12]

It is common ground that the applicable limitation
    period is two years from default under the lease (s. 4 of the
Limitations Act, 2002
). There is no
    discoverability issue.

[13]

In my view, the trial judge erred when she accepted
    counsels submission that although Enviro (later Unisphere) and Mr. Sibilia
    were co-lessees, there were, in law, two separate leases with Capmor. There is
    one lease document made between Capmor Financial Services as lessor and Enviro
    Tire Technologies Ltd. and Victor Sibilia - Co-Lessees as lessee.

[14]

As noted above, paragraph 29 of the lease makes
    co-lessees jointly and severally liable. The legal effect of joint and several
liability
is described in
Halsburys Laws of England,
vol. 9(1), 4th ed. (London:
    Butterworths, 1998) at p. 810, para. 1079, as  follows: where two or more persons join in
the same instrument
in making a promise to the same person, and at
    the same time each of them individually makes the same promise to that same
    promisee (emphasis added).  G.H. Treitel
    in
The Law of Contract
, 11
th
ed. (London: Sweet & Maxwell, 2003) at p. 568, states that joint and
    several liability arises where each promisor makes one promise binding both of
    them and in addition  makes a separate promise binding him alone. See also
McLarty v. Dixon
,

[1914] O.J. No. 731 (C.A.) and
Standard
    Trust (Liquidator of) v. Protective Plastics Ltd. (Trustee of)
(1999), 49
    B.L.R. (2d) 159 (Ont. C.A.), where this court adopted the decision of Lord Campbell
    C.J. in
Gardner v. Walsh
(1855), 119
    E.R. 412 (Q.B.), that while a joint and several instrument may contain two
    promises in the alternative, it remains one contract and one instrument.

[15]

There is nothing in the lease document that suggests
    that it is intended to operate as two separate leases, one with each lessee,
    nor would that be a commercially reasonable result. For example in this case,
    the business that used the oven was operated by the corporate lessee, the
    entity that went bankrupt. In such circumstances, a lender would want the
    ability to have its choice of remedies upon default, including removal of its
    equipment from the premises in order to sell it for the best possible price and
    mitigate its damages. A lender and the co-lessee could always enter into
    whatever new arrangement they were able to agree to, but always in the context
    of the original lease that governed the rights and obligations of the parties.

[16]

As found by the trial judge, the lender and the
    co-lessee did enter into such an arrangement. However, it was clearly made
    based on the fact that the assignment into bankruptcy constituted an event of
    default by the co-lessee Unisphere, following which, the equipment was being
    held at 144 not under the lease, but on a storage basis for which Capmor had to
    pay 144 until it could sell the equipment. The storage charges were set off
    against the amount still owing under the lease by the appellant, the co-lessee.
    If the lease was continuing with Mr. Sibilia, Capmor would not have had to pay
    rent to 144 to store the
oven ,
nor could it sell the
    equipment.

[17]

Paragraphs 15 and 16 of the lease are the default
    clauses. Paragraph 15 defines the events of default and paragraph 16 describes
    the consequences of default. The two paragraphs   provide as follows:

15. DEFAULT. The occurrence or happening of any one
    or more of the following events shall constitute an Event of Default: (a) if
    Lessee fails to observe or perform any term, covenant or condition of this
    Lease or of any other lease or other agreement between Lessor and Lessee
    whether heretofore or hereafter made; (b) if any representation or warranty
    made by the Lessee to Lessor herein or pursuant to any document or certificate
    provided by the Lessee in connection with this Lease shall prove to be
    incorrect in any material respect; (c) if Lessee makes any assignment for the
    benefit of creditors; (d) if a receiver or trustee is appointed for Lessee or
    any of its property without its consent and is not dismissed within 30 days;
    (e) if bankruptcy reorganization or insolvency proceedings are instituted by or
    against Lessee and, if instituted against Lessee, not dismissed within 30 days;
    (f) if Lessee admits in writings its inability to pay its debts generally as
    they fall due or commits any other act of bankruptcy or does or omits to do any
    other thing in furtherance of any of the aforesaid purposes; (g) if all or any
    part of the Equipment is, or is in imminent danger of being confiscated,
    attached, sequestered or seized under legal process; or (h) Lessee ceases to
    carry on business in the normal course.

16. CONSEQUENCES OF REPUDIATION OR DEFAULT. In the
    event of repudiation of this Lease by the Lessee or upon the happening of an
    Event of Default, Lessor may in addition to any of the rights it may have in
    law or in equity at its option and upon notice to the Lessee exercise any one
    or more of the following:

(a) enter upon the
    premises where the Equipment is located and take immediate possession thereof,
    whether it is affixed to the realty or not, and remove the Equipment without
    liability to Lessor for or by reason of such entry or taking of possession,
    whether for damage to property or otherwise, and to sell, lease or otherwise
    dispose of the Equipment for such consideration and upon such terms and
    conditions as Lessor may reasonably deem fit.

(b)  in the name of and as the irrevocably
    appointed agent and attorney for Lessee without terminating or being deemed to
    have terminated this Lease, take possession of the Equipment and proceed to
    lease the Equipment to any other person, firm or corporation on such terms and
    conditions, for such rental and for such period of time as Lessor may deem fit
    and receive such rental and hold the rental and apply it against any monies
    expressly payable from time to time by Lessee hereunder.

(c) terminate this
    Lease and by written notice to Lessee specifying a payment date not earlier
    than five days from the date of such notice, require Lessee to pay to Lessor on
    the date specified in such notice, as a genuine pre-estimate of liquidated
    damages for loss of a bargain and not as a penalty, the entire unrecovered
    cost, including residual of said Equipment leased hereunder as at the date of
    repudiation calculated in accordance with the Rule of Seventy-Eights.

(d) As a late charge
    require the payment of interest at the Interest Rate per annum on any overdue
    amount until paid.

Upon the occurrence of
    an Event of Default Lessee shall be liable for any and all unpaid additional
    rent due or to become due hereunder and other costs and expenses incurred by
    reason of the occurrence of any Event of Default or the exercise of Lessors remedies
    in respect thereof, including all costs and expenses incurred in connection
    with the placing of the Equipment in the same conditions as when delivered,
    ordinary wear and tear excepted.

[18]

The trial judge found that on the happening of an event
    of default, Capmor had a number of options including whether or not to
    terminate the
lease,
and that there was no evidence
    that Capmor exercised any of [these] options.  However, the language in paragraph 16 is permissive, not mandatory and
    speaks to a choice of remedies upon default. Paragraph 16 expressly reserves to
    Capmor any rights it had in law or in equity upon an event of default, and
    provides that Capmor may exercise one or more of the options prescribed
    therein. There is nothing in the lease that suggests that Capmor was required
    to explicitly exercise one of the prescribed options.  In this case, the parties agreed that rather
    than take immediate possession of the oven for the purposes of selling it,
    Capmor would store the oven at its current location while it attempted to find
    a buyer. The terms of the oral arrangement between Capmor and Mr. Sibilia
    following the bankruptcy of Unisphere were wholly consistent with an acceptance
    of termination of the original lease by both remaining parties. Accordingly,
    Mr. Sibilia remained liable pursuant to paragraph 16 to pay the remaining
    balance of unpaid rent on the lease. That amount was set off against the
    storage charges for the oven as agreed.

[19]

As the arrangement between Capmor and Mr. Sibilia
    following the bankruptcy of Unisphere constituted a new agreement to deal with
    the equipment following the default under the lease, and as the action by
    Capmor was an action for payment under the lease, the limitation period can run
    only from the default under the lease, and expired before the action was
    commenced. I recognize that the result of Capmor having to compensate 144 for
    the storage charges without receiving the balance of the unpaid rent under the
    lease from Mr. Sibilia may appear unjust, as Capmor appeared to have been
    trying to accommodate Mr. Sibilia when it entered into the oral arrangement.
    However, this outcome is the unavoidable result of the application of the
Limitations Act, 2002
.

Result

[20]

In the result, the appeal is allowed with costs fixed
    at $15,000 inclusive of disbursements and HST.

Signed:           K. Felmdan
    J.A.

I
    agree M. Rosenberg J.A.

I
    agree R. G. Juriansz J.A.

RELEASED: MR MARCH 1, 2011


CITATION:
Case v. Case, 2011 ONCA 166

DATE:
          20110303

DOCKET: C52149

COURT OF APPEAL FOR ONTARIO

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Penelope Mara Case

Applicant (Respondent)

and

Craig Andrew Case

Respondent (Respondent)

and

The Childrens Lawyer

Appellant

Martha
H
é
der
, for the appellant

No one appearing for the respondents

Heard: March 1, 2011 (in writing)

On appeal from the order of Justice Victor Paisley of the
          Superior Court of Justice dated April 29, 2010.

ENDORSEMENT

[1]

In accordance with the reasons of this court in
A.C.B. v. R.B.
, 2010 ONCA 714, the
    appeal is allowed, the
parens

patriae
order
    of Paisley J. dated April 29, 2010 is set aside, and the standard form order
    made by Paisley J. on the same date is confirmed.

J. C. MacPherson J.A.

J. MacFarland J.A.

Gloria Epstein J.A.


CITATION:
Cecile v.
Retrofoam
of Canada Incorporated, 2011 ONCA 199

DATE: 20110314

DOCKET: C52716

COURT OF APPEAL FOR ONTARIO

MacPherson, Rouleau and Epstein JJ.A.

BETWEEN

Robert
          Cecile, Michelle Cecile, Gerald Patrick Doyle, Stanley Lawton, Stanislao
          Calandra, Bruce Andrew MacLellan, Jeffrey Michael Simpson, Simone Marisa Cupid, Cindy Ruth
          Armstrong, Jaime Batista and Susan Huntley

Plaintiffs (Respondents)

and

Retrofoam
          of Canada Incorporated, Retrofoam Holdings Inc., Retrofoam Windsor Inc.,
          Retrofoam of Southern Ontario Inc., Retrofoam of Eastern Ontario Ltd.,
          Polymaster Inc., Enerliv Inc., Paul John Weigel, Northern Retrofoam
          Inc., Enwise Power Solutions Inc., Enwise Building Science Inc., Gary Zavaros,
          756882 Ontario Ltd. C.O.B. as Lambton Insulation Ltd., The Attorney
          General of Canada, National Research Council of Canada, Attie Enterprises Ltd., I-Gen
          Energy Inc. and
Foam Comfort Inc.

Defendants (
Respondent
)

and

Federated
          Insurance Company of Canada

Non-party (Appellant)

Donald Dacquisto, for the appellant
          Federated Insurance Company of Canada

David Zuber, for the respondent Foam
          Comfort Inc.

William V. Sasso, for the plaintiff-respondents

Heard
&
          released orally: March 4, 2011

On appeal from the order of Justice Terrence L.J. Patterson of
          the Superior Court of Justice dated September 1, 2010.

ENDORSEMENT

[1]

This is an appeal from the order of Justice Patterson
    of the Superior Court of Justice dated September 1, 2010, requiring the
    Federated Insurance Company of Canada to defend Foam Comfort Inc. in a class
    action and to file a statement of defence within 30 days.

[2]

Neither the plaintiffs nor Foam Comfort requested that
    Federated Insurance be involved in the litigation.  Indeed, at the hearing of the motion from
    which this order arose, Foam Comfort sought leave to represent itself.  Federated Insurance was not a party to the
    motion.

[3]

Since that order, the class action against Foam Comfort
    has been dismissed pursuant to the agreement of the parties and the court has
    approved the dismissal by order dated January 6, 2011.

[4]

Foam Comfort has therefore abandoned its cross-appeal
    seeking leave to represent itself.  Federated Insurance nonetheless wishes to
proceed
with its appeal from the September 1, 2010, order against it.

[5]

In response to the respondents preliminary issue of
    mootness, Federated Insurance argues that the appeal is not moot and that there
    remains a live controversy that may affect the rights of the parties in the
    future because the dismissal of the claim against Foam Comfort was subject to
    the following terms and conditions:

1)

Foam Comfort would consent to a dismissal without costs;

2)

If the plaintiff Batista is not made whole in the class
    proceeding, he may in his discretion bring an action against Foam Comfort; and

3)

Foam Comfort will not raise a
Limitations Act, 2002
defence.

[6]

It is Federated Insurances position, therefore, that
    there remains a tangible and concrete dispute between the parties as the
    dispute can be revived if the plaintiff, Mr. Batista, decides to pursue a
    separate claim against Foam Comfort in the future.  Should that happen, the order of Patterson J.
    dated September 1, 2010, will remain in effect requiring Federated Insurance to
    defend Foam Comfort.  Therefore, a
    decision by this court will serve a purpose in determining whether Federated
    Insurance has a duty to defend Foam Comfort, should the issue arise in the
    future.

[7]

We disagree.  As
    a result of the dismissal, with prejudice, of the present action against Foam
    Comfort, the order of Patterson J. is no longer of any relevance.  If a new claim is later issued against Foam
    Comfort, the issue of whether Federated Insurance will be required to defend on
    behalf of Foam Comfort will need to be decided in the context of that later
    action.  As conceded by counsel for the respondents,
    the order of Patterson J. will have no relevance whatsoever to that
    determination.  In our view, therefore,
    the appeal is moot.

[8]

As a result we dismiss the appeal.  In the circumstances, we make no order as to
    costs.

J.C. MacPherson J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


CITATION: Chu v. Chang, 2011 ONCA 223

DATE: 20110323

DOCKET: C52442

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese and Karakatsanis JJ.A.

BETWEEN

Lily
          Man-Lee Chu, in her personal capacity and in her capacity as

Attorney for property and for
          personal care of How Seem Chang

Applicant (Respondent)

and

Kin
          Kwok Chang, Kin Wah Cheung, Kin Keung Chang, Man Ying Lam

Man Yee Wu, also known as Peggy
          Wu, and Chunmei Chen

Respondents (Appellants)

Newton Wong, for the appellant Kin Kwok Chang

Ian Hull, for the respondent Dr. S. Chu

Heard: March 21, 2011

On appeal from the order of Justice Thomas R. Lederer of the
          Superior Court of Justice dated June 22, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We see no error on the part of the motion judge.  The appellants did not
    appeal the order of Brown J.  In our view, a complete answer to the appellants
    position is para. 13 of the reasons of the motion judge.  Costs to the
    respondents fixed at $5,000 inclusive of disbursements and applicable taxes.