COURT OF APPEAL FOR ONTARIO

CITATION: 1475707 Ontario Inc. Operating as Action Electric
    Construction and Maintenance v. Foran, 2014 ONCA 830

DATE: 20141124

DOCKET: C58635

MacFarland, LaForme and Lauwers JJ.A.

IN THE MATTER OF THE
Construction
    Lien Act
, R.S.O. 1990, c. C-30, as amended

BETWEEN

1475707 Ontario Inc. Operating as Action
    Electric                                 Construction and Maintenance

Plaintiff

(Respondent)

and

David Foran

Defendant

(Appellant)

Mark Abradjian and Renata Kis, for the appellant, David
    Foran

David Thompson, for the respondent, 1475707 Ontario Inc.

Heard:  October 9, 2014

On appeal from the order of the Divisional Court
    (Justices Gladys I. Pardu and Joseph M.W. Donohue, Justice P. Theodore Matlow
    dissenting), dated November 5, 2013, with reasons reported at 2013 ONSC 6882,
    117 O.R. (3d) 772, allowing an appeal from the order of Justice Linda M.
    Walters of the Superior Court of Justice, dated January 3, 2013.

MacFarland J.A.:

[1]

This is an appeal, brought with leave, from the order of the Divisional
    Court which set aside the order of the motion judge vacating and discharging a
    claim for lien and Certificate of Action.

[2]

This appeal raises an interesting question concerning the interplay
    between s. 37(1) of the
Construction Lien Act
,
R.S.O. 1990, c. C-30 (the
CLA
)
    and rules 2.01 and 48.01 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.

THE FACTS

[3]

The facts in this case are not in dispute.  In its statement of claim,
    the respondent alleged it was owed money for construction work performed on the
    appellants property. A claim for lien was registered on March 20, 2009, and
    the lien was perfected by issuance of the statement of claim and registration
    of the Certificate of Action on May 11, 2009.

[4]

The appellant served a statement of defence and counterclaim. Sometime
    after receiving this, on April 28, 2011, the respondent set the action down for
    trial. At that time, it had not yet filed any defence to the counterclaim. The
    counter staff could quite properly have refused to set the matter down
    pleadings were neither closed, nor had the defendant by counterclaim been noted
    in default at that time. However, the trial record was accepted and the matter
    set down for trial.  On October 16, 2012, the respondent served its defence to
    counterclaim.

PROCEEDINGS BELOW

Motion Judge

[5]

In January, 2013, the appellant moved to discharge and vacate the claim
    for lien and Certificate of Action on the basis that the lien had expired under
    s. 37(1) of the
CLA
.

[6]

The appellant argued that the action was improperly set down for trial
    when pleadings were not yet closed. He said that rule 2.01(1) may not be used
    in these circumstances to excuse imperfect compliance with the requirements for
    setting an action down for trial, because to do so would have the effect of
    extending the two-year limitation period set out in s. 37(1) of the
CLA
.

[7]

The respondent argued that the fact that it set the action down for
    trial before filing a defence to counterclaim was merely an irregularity which could
    be cured by rule 2.01.  It submitted that the action was in fact set down for trial
    before the expiration of the limitation period.

[8]

The motion judge determined that setting the matter down for trial while
    pleadings were still open was not just an irregularity.  She held that to
    relieve against such an irregularity would in effect extend the time limits
    under s. 37(1) of the
CLA
.  In this regard she relied on decision of
    Quinn J. in
Ravenda Homes Ltd. v. 1372708 Ontario Inc.
, 2010 ONSC 881,
90 C.L.R. (3d) 250.

[9]

She concluded that the court did not have discretion to extend the
    limitation period.  She discharged the lien and vacated the Certificate of Action,
    and ordered that the matter continue as an ordinary action.

Divisional Court

[10]

The
    respondent appealed to the Divisional Court and succeeded before a divided
    court.

[11]

In
    reasons by Pardu J. (as she then was), a majority of the court concluded there
    was no reason why the motion judge could not have granted leave to the
    respondent to file an amended trial record containing the missing statement of
    defence to counterclaim. The lien claim need not have been struck when the
    trial record was originally filed within the two-year limit.

[12]

The
    court observed in its reasons:

[10]    This was not a case of abuse by the plaintiff filing a
    trial record before any pleadings in response had been delivered.  Both parties
    dragged their feet at times.  The plaintiff had to bring a motion to compel the
    defendant to deliver an affidavit of documents and to set a date for his
    examination under oath.

[11]    In
310 Waste Ltd. v. Casboro Industries Ltd
.
    (2006), 83 O.R. (3d) 314, [2006] O.J. No. 3817 (C.A.), the court suggested that
    imperfect compliance with the rules regarding setting an action down for trial
    may be the better course when faced with a looming s. 37 deadline, implicitly
    leaving it open that there could be relief granted against irregularities at a
    later date.

[12]    Here the plaintiff attempted to file a trial record within
    two years from the date the statement of claim was issued.  There are no
    particular equities favouring the plaintiff or the defendant other than the
    possible loss of a lien to the plaintiff and the preservation of the lien
    against the defendant.

[13]    We do not agree that a trial record which does not
    comply with the Rules is necessarily a nullity, as suggested in
Ravenda
    Homes Ltd. v. 1372708 Ontario Inc.
, [2010] O.J. No. 510, 2010 ONSC 881
    (S.C.J.).

[15]    With respect, we do not see that granting relief by way
    of an order permitting filing an amended trial record is necessarily the
    equivalent of extending the time limit imposed by s. 37 of the
Construction
    Lien Act
.  Such a conclusion would fly in the face of rule 2.01 which
    specifically provides that a failure to comply with the Rules is an
    irregularity and does not render a  step, document, or order a nullity.  We
    see no manifest inconsistency between the ability to correct an irregularly
    filed trial record and the mandatory deadlines imposed by the
Construction
    Lien Act
.

[13]

In
    dissent, Matlow J. was of the view that s. 37 of the
CLA
was an unqualified
    declaratory provision and that the Act recognized no allowance for granting
    relief to those who do not comply with it  no matter the reason for such
    non-compliance. It does not matter that the non-compliance results from
    something that may reasonably be characterized as an irregularity.  He was of
    the view that the requirement in s. 37(1) of the
CLA
that an action be
    set down for trial within the statutory time limit must be interpreted as a
    requirement that the action be set down correctly, in accordance with the
Rules
.
    Further, the motion judge correctly recognized that she had no jurisdiction to
    grant relief for the plaintiffs non-compliance with s. 37 of the
CLA
.
    No rule, including rule 2.01(1), can or does, retroactively or prospectively,
    apply so as to remedy non-compliance with s. 37, whether the non-compliance
    stems from an irregularity or something more.

[14]

Further,
    Matlow J. was of the view that the majority had misinterpreted this courts
    decision in
310 Waste
. The two cases were similar in that it was not
    beyond the plaintiffs ability to comply with s. 37, and it could easily have
    done so and closed pleadings by delivering a defence to counterclaim. The plaintiff
    chose not to do so and thereby placed compliance out of reach.

[15]

In
    the result, the majority allowed the appeal and the order of the motion judge
    was set aside.

THE LEGISLATION

[16]

This
    case requires an analysis of the interaction between the
Construction Lien Act
and the
Rules of Civil Procedure.
Accordingly, I now set out the
    relevant statutory provisions.

Construction Lien Act
,
    ss. 37 and 67

Expiry of a perfected lien

37(1) A perfected lien expires immediately after the second
    anniversary of the commencement of the action that perfected the lien, unless
    one of the following occurs on or before that anniversary:

1.       An order is made for the trial of an action in which
    the lien may be enforced.

2.       An action in which the lien may be enforced is set
    down for trial.

Summary Procedure

67(1)  The procedure in an action shall be as far as possible
    of a summary character, having regard to the amount and nature of the liens in
    question.

(2)  Interlocutory steps, other than those provided
    for in this Act, shall not be taken without the consent of the court obtained
    upon proof that the steps are necessary or would expedite the resolution of the
    issues in dispute.

(3)     Except where inconsistent with this Act, and subject to
    subsection (2), the
Courts of Justice Act
and the rules of court apply
    to pleadings and proceedings under this Act.

Rules of Civil Procedure
 rules 2.01,
    25.05 and 48.01

2.01(1)  A failure to comply with these rules is an
    irregularity and does not render a proceeding or a step, document or order in a
    proceeding a nullity, and the court,

(a)     may grant all necessary amendments or other relief, on
    such terms as are just, to secure the just determination of the real matters in
    dispute; or

(b)     only where and as necessary in the interest of justice,
    may set aside the proceedings or a step, document or order in the proceeding in
    whole or in part.

25.05 Pleadings in an action are closed when,

(a)     the plaintiff has delivered a reply to every defence in
    the action or the time for delivery or a reply has expired; and

(b)     every defendant who is in default in delivering a
    defence in the action has been noted in default.

48.01 After the close of pleadings, any party to an action or
    to a counterclaim or crossclaim in the action who is not in default under these
    rules or an order of the court and who is ready for trial may set the action
    down for trial, together with any counterclaim or crossclaim.

ANALYSIS

[17]

Simply
    stated, the issue before this court is whether or not there was compliance with
    s. 37(1) of the
CLA
in the circumstances of this case. More
    specifically, the question is whether rule 2.01 of the
Rules
may apply
    to relieve a party from the effects of non-compliance with rule 48.01 in the
    context of a construction lien action.

[18]

For
    the reasons that follow, I conclude that rule 2.01 is applicable in the
    circumstances.

[19]

It
    is clear in this case that when the action was set down for trial, the
    respondents defence to the appellants counterclaim had not yet been prepared
    and was not in the record.  Further, the appellant had not noted the respondent
    in default. The pleadings were therefore still open when the action was set
    down for trial, contrary to the requirements of rule 48.01.

[20]

Despite
    these shortcomings, the action was set down for trial on April 28, 2011, thirteen
    days before the second anniversary of the commencement of the action that
    perfected the lien, to use the language of s. 37(1) of the
CLA
.

[21]

The
    appellant argues that because the pleadings were still open when the action was
    set down for trial, the setting down was null and void. He further submits that
    rule 2.01 cannot be applied to cure this irregularity, as to do so would
    contravene the requirement in s. 37(1) of the
CLA
that an action be set
    down for trial within two years of the perfection of the lien. I cannot agree.

[22]

As
    noted earlier, it would have been open to counter staff to refuse to accept the
    record and to decline to set the matter down, but the fact remains that they
    did not do so.  Had the respondent been notified that its statement of defence
    to counterclaim was missing, it could easily have drafted a
pro forma
defence, simply repeating the allegations in the statement of claim, and filed
    it.  There was plenty of time to do so within the two-year deadline imposed by
    the
CLA
.

[23]

In
    my view, the important fact here is that the respondent did set the action down
    within the two years and the appellant knew it. There was no non-compliance
    with s. 37(1) as has been argued. The action was set down as that section
    requires.  The fact that the record was irregular for want of a pleading was,
    in my view, a matter for rule 2.01.

[24]

Section
    67(3) of the
CLA
expressly provides that the rules of court apply to
    proceedings under the
CLA
, except where inconsistent with the
CLA
.
    While Rule 48 governs setting a matter down for trial, this rule must be read
    in conjunction with the more general rule 2.01, which permits the court to
    grant relief where there has been an irregularity unless it would not be in the
    interests of justice to do so. The
CLA
does not address procedural
    matters such as how to set an action down for trial or when an irregularity in
    setting a matter down for trial may be cured. The
Rules
do address these
    issues, and s. 67(3) of the
CLA
directs that those rules are to
    apply unless they conflict with a specific provision of the
CLA
. In my
    view, there is no such conflict in the circumstances presented by this case.

[25]

Section
    37(1) of the
CLA
sets a mandatory two-year deadline for setting construction
    lien actions down for trial. However, permitting the respondent to amend the
    trial record and file its defence to counterclaim after the action has been set
    down does not have the effect of extending that period. The respondent set the
    matter down for trial well within the two-year period, albeit irregularly.
    That irregularity is curable by use of rule 2.01.

[26]

Prior
    to the Divisional Court decision which is the subject of this appeal, other
    lower court decisions have considered the question of whether or not rule 2.01 may
    be used to cure an irregularity stemming from imperfect compliance with Rule 48.
    The courts below have divided on this issue.

[27]

Both
    the appellant and Matlow J., dissenting below, rely on
Ravenda
for the
    proposition that procedural irregularities in the setting down of an action for
    trial cannot be cured by recourse to Rule 2. In
Ravenda
, Quinn J. explicitly
    states, albeit in obiter, that Rule 2 cannot be used to cure a defective
    setting down for trial as, in his opinion, this would amount to an extension of
    the time limit imposed by s. 37 of the
CLA
.

[28]

In
Ravenda
,
the plaintiff
    lien claimant, after being served with a statement of defence and counterclaim,
    served a reply and defence to counterclaim. The plaintiff then set the action
    down for trial, before the two-year deadline, but without waiting for a reply
    to its defence to counterclaim.  The defendant argued that the setting down was
    a nullity because pleadings remained open for ten days after it received the
    defence to counterclaim, during which time it could have served its reply to
    the defence to counterclaim. It claimed that the two-year deadline mandated by
    s. 37(1) expired during those ten days, and hence the lien had expired.

[29]

Quinn
    J. found that replies were not authorized in construction lien actions.
    Therefore, he held that the pleadings were closed when the defence to
    counterclaim was served, and the matter was properly set down for trial in
    time. However, he stated that had he held otherwise, a defective setting down
    for trial would constitute a nullity that could not be cured by rules 2.01(1)
    or 3.02.  To apply these curative provisions, he said, would amount to
    extending the time limit mandated by s. 37 of the
CLA
.  The decision
    of Matlow J. in his dissenting opinion below follows similar reasoning.

[30]

Pardu
    J., writing for the majority, rejects that reasoning:

[13]    We do not agree that a trial record which does not
    comply with the Rules is necessarily a nullity, as suggested in
Ravenda
    Homes Ltd. v. 1372708 Ontario Inc
. [2010] O.J. No. 510, 2010 ONSC 881
    (S.C.J.).

[15]    With respect, we do not see that granting relief by way
    of an order permitting filing an amended trial record is necessarily the
    equivalent of extending the time limit imposed by s. 37 of the
Construction
    Lien Act
. Such a conclusion would fly in the face of rule 2.01, which
    specifically provides that a failure to comply with the Rules is an
    irregularity and does not render a  step, document or order a nullity. We see
    no manifest inconsistency between the ability to correct an irregularly filed trial
    record and the mandatory deadlines imposed by the
Construction Lien Act
.

[31]

I
    agree with the majority in the Divisional Court. For the reasons discussed
    above, I would also reject the conclusion in
Ravenda
to the effect
    that rule 2.01 is not available to correct a procedural irregularity in setting
    a matter down for trial where there may have been irregular compliance with Rule
    48.

[32]

The
    appellant also relies on
Pineau v. Kretschmar Inc
. (2004), 37 C.L.R.
    (3d) 29 (Ont. C.J.), in support of his position that procedural irregularities
    in setting matters down for trial should not be addressed through Rule 2. In my
    opinion, his reliance on this case is misplaced. The appellant argues that
Pineau
provides a precedent for the courts refusal to regularize a procedural
    irregularity in setting a matter down for trial.  I do not read the case this
    way.
Pineau
was concerned with jurisdictional issues.  The plaintiff
    in that case had moved before the Master for a fixed trial date. The court held
    that absent a direction from a judge pursuant to s. 58(1) of the
CLA
,
    the Master was without jurisdiction. That case was about jurisdiction, not
    procedural irregularities.

[33]

In
    other cases, by contrast, courts have held that rule 2.01 may relieve against failure
    to strictly comply with Rule 48 in construction lien actions.  For example, in
Beaver
    Engineering Ltd. v. Swedlove
(1994), 111 D.L.R. (4th) 750 (Ont. Div. Ct.),
    the court held that rules 2.01 and 2.03 should be applied to relieve against
    non-compliance with Rule 48.

[34]

At
    issue in
Beaver
was the established practice of the Ottawa bar of
    placing actions on the Trial Ready List without requiring that trial records be
    served and filed. Actions were considered as set down for trial once they were
    placed on the Trial Ready List.  The motion judge found that this local
    practice did not comply with rules 48.02(1) and 48.04(1) or with ss. 37 and 46
    of the
CLA
. He found that he had no discretion to extend the two-year
    period mandated by s. 37 and declared the lien expired.

[35]

The
    Divisional Court overturned this decision, finding that in the circumstances,
    compliance with local practice constituted sufficient compliance with the
    requirements of the
CLA
. Furthermore, it was in the interests of justice
    that any non-compliance with Rule 48 be relieved pursuant to rules 2.01(1)(a)
    and 2.03. The court therefore concluded that the action was properly set down
    for trial and the liens had not expired.

[36]

As
    these reasons make clear, I agree that Rule 2 may apply to correct
    irregularities in setting an action down for trial in a construction lien
    action. However, I have one final comment. In reaching a similar conclusion,
    the majority of the Divisional Court relied on this courts decision in
310
    Waste Ltd. v. Casboro Industries Ltd.
(2006), 83 O.R. (3d) 314, for the
    proposition that imperfect compliance with the rules regarding setting a
    matter down for trial may be the better course when faced with a looming s. 37
    deadline, implicitly leaving it open that there could be relief granted against
    irregularities at a later date.

[37]

With
    respect, I do not think
310 Waste
can be read as widely as the
    Divisional Court has suggested.
310 Waste
is a very brief, seven
    paragraph
per curiam
endorsement which dealt with a very different
    issue. The issue before this court in that case was whether the Divisional
    Court had erred in failing to recognize an authority in the courts to extend
    the mandatory time requirements of ss. 37 and 46 of the
CLA
. This
    court found it was not necessary to decide the question in the circumstances of
    that case.

[38]

The
    facts were as follows:
310 Waste Ltd
.
and another company perfected their lien. The owner of the subject land then
    brought a motion to discharge the lien on the basis that the work done was not
    lienable.  The motion judge held that it was, but the landowner appealed to the
    Divisional Court, which reserved its decision.  While the decision remained
    under reserve, the lien expired because 310 Waste Ltd. had not set the action
    down for trial.

[39]

In
    dismissing the appeal from the order vacating the lien, this court stated:

[3]      The provisions of ss. 37 and 46 are mandatory.  There
    is no indication of legislative intent that a reserve judgment on the issue of
    lienability would suspend the operation of these sections.

[4]      This action would have had to be set down for trial no
    matter what the result of the appeal relating to lienability. We do not find it
    necessary to decide whether there ever could be circumstances warranting a
    judicial relaxation of the mandatory expiration period in s. 37. In our view,
    the circumstances of this case would not warrant the exercise of such a
    discretion.

[5]      This was not a case of impossibility, either legal or
    practical. On the record before this court, no intervening events over which
    the appellants lacked control precipitated the expiration of the lien. It was
    possible for the appellants to attempt to comply with s. 37 by setting the
    action down.  They failed to do so.

[40]

310
    Waste
did not in any way concern the
Rules
or procedural
    irregularities. Unlike the present case, the plaintiff had made no attempt to
    set the action down for trial. The issue before the court was whether or not
    there might be judicial authority to extend the mandatory time requirements of
    ss. 37 and 46 of the
CLA
.  The court found it unnecessary to decide
    that issue, saying instead that even if such a discretion existed, the
    circumstances of that case would not warrant the exercise of it.
310 Waste
was not concerned with imperfect compliance with the
Rules
 it was
    simply a case where the lien claimant failed to make any effort to set the
    action down for trial within the two-year period prescribed by s. 37(1) of the
CLA
.

[41]

In
    the present case, the lien claimant took steps which it thought were sufficient
    to set the lien action down for trial within the time requirements of s. 37(1)
    of the
CLA
. The fact that it did so imperfectly is a matter that can
    be regularized by the application of rule 2.01. This does not, as the appellant
    claims, effectively extend the two-year limitation under s. 37. That deadline
    was met on the facts of this case when the respondent set the matter down for
    trial, albeit imperfectly.  To hold otherwise would, in my view, be to ignore
    the clear language of rule 2.01:

2.01(1)  A failure to comply with these rules is an
    irregularity and does not render a proceeding or a step, document or order in a
    proceeding a nullity, and the court,

(a)     may grant all necessary amendments or other relief,
    on such terms as are just, to secure the just determination of the real matters
    in dispute; or

(b)     only where and as necessary in the interest of
    justice, may set aside the proceeding or a step, document or order in the
    proceeding in whole or in part.

[42]

For
    these reasons, I would dismiss the appeal.

[43]

I
    would award costs of the appeal to the respondent fixed in the sum of $6,000,
    all inclusive, the figure to which the parties agreed.

Released: November 24, 2014 JMacF

J.
    MacFarland J.A.

I
    agree H.S. LaForme J.A.

I
    agree P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  2249778 Ontario Inc. v. Smith (Fratburger), 2014
    ONCA 788

DATE: 20141107

DOCKET: C58342

Blair, Pepall and Hourigan JJ.A.

BETWEEN

2249778 Ontario Inc.

Applicant (Appellant)

and

Glenn Smith carrying on business as
    Fratburger

Respondent
    (Respondent)

Tiffany Soucy, for the appellant

Andrew McCoomb, Timothy Fleming and Dana Carson, for the
    respondent

Heard: August 19, 2014

On appeal from the judgment of Justice James W. Sloan, of
    the Superior Court of Justice, dated January 7, 2014, with reasons reported at
    2014 ONSC 93.

Pepall J.A.:

Introduction

[1]

This appeal concerns the interpretation of a fast-food restaurant lease
    and whether the permitted use provision in the lease allows for the
    installation of an automatic teller machine (ATM).

Facts

[2]

The appellant, 2249778 Ontario Inc. (the Landlord), owns a strip mall
    in Waterloo, Ontario.  It leased two units in the mall to the respondent, Glenn
    Smith (the Tenant), carrying on business as Fratburger.  The Tenant runs a
    fast-food restaurant that sells, among other things, hamburgers, hot dogs,
    chicken sandwiches, French fries and poutine.  An estimated three-quarters of
    the Tenants customers are university students.

[3]

The parties entered into a lease dated May 1, 2011.  The Tenant stated
    that the lease was drafted and presented to the Tenant by the Landlord.  Few,
    if any, amendments were made prior to its execution.  In s. 10.1, which was
    headed Permitted Use, the Tenant covenanted to use the Premises
only for the purpose
set out in Section 1.1(g)(v)
    of the Lease and for no other purpose.

[4]

Section 1.1(g)(v) described the use as:

A fast food restaurant primarily selling hamburgers, hot dogs,
    chicken sandwiches, french fries, poutine and individual servings of soft
    drinks, coffee and tea and as ancillary thereto, the Tenant may use a minor
    portion of the Premises for offices as reasonably required for the Tenants
    business from the Premises and for no other purpose.  The Tenant shall be
    permitted, at its sole expense, to apply for and obtain a licence to serve
    alcoholic beverages with this use.

[5]

The lease also contained numerous provisions under a heading entitled
    Conduct and Operation of Business including ss. 10.8(a) and (d) which stated
    as follows:

(a)   operate its business with due
    diligence and efficiency and maintain an adequate staff to properly serve all
    customers; own, install and keep in good order and condition free from liens or
    rights of third parties, fixtures and equipment of first class quality; and
    carry at all times such stock of goods and merchandise of such size, character
    and quality as will produce the maximum volume of sales from the Premises
    consistent with good business practices;

(d)   stock in the Premises only merchandise the Tenant intends
    to offer for retail sale from the Premises, and not use any portion of the
    Premises for office, clerical or other non-selling purposes except minor parts
    reasonably required for the Tenants business in the Premises.

[6]

In the parties negotiations, the topic of an ATM was never discussed.

[7]

After the lease was executed, the Tenant immediately installed and
    operated an ATM on the leased premises.  The Landlord stated that the Tenant
    did not obtain the Landlords consent to such use nor did he seek an amendment
    to the lease to include the operation of an ATM as a permitted use.  The Tenant
    stated that he did not think that anything in the lease prevented him from
    installing an ATM.

[8]

The Tenant explained that debit card machines are problematic for his
    business because each transaction costs approximately 50 cents which he either
    has to absorb himself or charge to his cost-conscious student customers.
    Furthermore, customers often try to use debit machines as if they were ATMs and
    ask for cash back with purchases.  These requests result in limited cash on
    hand for his business.  Accordingly, the Tenant explained that he preferred not
    to use debit machines.  In contrast, an ATM is convenient for students and
    other customers.  The Tenants evidence was that he was not interested in
    running a bank; the ATM was nothing more than an economical way to make his
    business more effective and attractive to customers.

[9]

About a year after it was installed, the Landlord took issue with the
    presence of the ATM.  The Landlord stated that he attempted negotiations to
    resolve the issue.  They were unsuccessful.

[10]

The
    Landlord then commenced an application for a declaration that the lease did not
    permit an ATM on the premises and an order requiring the Tenant to remove it.

The Application

[11]

Before
    the application judge, the Landlord argued that the operation of an ATM was not
    a permitted use under the lease and that, since non-fast food customers could
    access the ATM, the Tenant was effectively offering banking services on the
    premises.

[12]

The
    Tenant countered that students often did not carry cash, and debit card
    transactions cost him too much money.  He argued that the ATM was a tool to
    facilitate his business; it was convenient for customers and lowered his business
    costs.

[13]

The
    application judge accepted the Tenants position and dismissed the Landlords
    application.  He found that the use of the ATM was for appropriate business
    reasons: to assist the Tenant in keeping his costs low and his clients happy.  The
    installation of an ATM that simply dispensed cash did not constitute the
    offering of banking services.  He concluded at para. 12 of his reasons:

On the evidence before me, the installation of the ATM does not
    in any way change the purpose of the premises, which is a fast-food restaurant.
    The primary focus of the establishment and the attendance of its patrons, is
    for the consumption of food.

Grounds of Appeal

[14]

The
    Landlord submits that the application judge erred in law by ignoring the plain,
    ordinary and unambiguous meaning of the words in the lease; failed to consider
    whether the ATM was a permitted use under the lease; and erred in his
    interpretation of s. 10.8(a) of the lease.  The Landlord argues that the
    application judges interpretation resulted in a commercially absurd result and
    violated the fundamental principle of certainty of contract.  Lastly, the Landlord
    submits that future planning and the ability to provide exclusivity to other potential
    tenants of the strip mall should not be negatively affected by use that is not
    contemplated by the lease it entered into with the Tenant.

[15]

In
    addition, the Landlord asks this court to admit fresh evidence consisting of an
    affidavit of one of the Landlords employees.  In the affidavit, the employee
    states that he attended Fratburger for the sole purpose of using the ATM.  The ATM
    charged him a $2.00 fee payable to a non-party.  The Landlords motion to admit
    fresh evidence is unopposed.  While of questionable relevance, given that the
    Tenant is unopposed and that the fresh evidence provides additional context, I
    would grant the Landlords motion to admit fresh evidence:
Katokakis v.
    William R. Waters Limited
(2005), 194 O.A.C. 353, at para. 5.

Analysis

(a)

Applicable Law

(i)

Standard of Review

[16]

In
Sattva
Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, 373
    D.L.R. (4th) 393, the Supreme Court recently addressed the appropriate standard
    of review to be applied to the interpretation of a contract.  Absent an
    extricable question of law, questions of interpretation are no longer to be
    treated as pure questions of law reviewable on a correctness standard.  Rather,
    as Rothstein J., writing for the court, stated at para. 50: Contractual
    interpretation involves issues of mixed fact and law as it is an exercise in
    which the principles of contractual interpretation are applied to the words of
    the written contract, considered in light of the factual matrix.

[17]

Rothstein
    J. recognized that extricable questions of law would continue to include the
    application of an incorrect principle, the failure to consider a required
    element of a legal test, or the failure to consider a relevant factor:
Sattva
at para. 53.  However, he cautioned appellate courts not to be too quick to
    identify extricable questions of law, stating at para. 55:

[T]he goal of contractual interpretation, to ascertain the
    objective intentions of the parties, is inherently fact specific.
The close relationship between the selection and application of
    principles of contractual interpretation and the construction ultimately given
    to the instrument means that the circumstances in which a question of law can
    be extricated from the interpretation process will be rare.

[18]

Accordingly,
    questions of contractual interpretation will generally attract a deferential
    standard of review:
Sattva
, at para. 52 and
Martenfeld v. Collins
    Barrow Toronto LLP
, 2014 ONCA 625, 116 O.R. (3d) 401 (C.A.), at para. 41.

(ii)

Principles of Contractual Interpretation

[19]

As
    stated in
Ventas, Inc. v. Sunrise Senior Living Real Estate Investment
    Trust
,
2007 ONCA 205, 85
    O.R. (3d) 254 (C.A.), at para. 24, a commercial contract is to be interpreted:

(a)

as a
    whole, in a manner that gives meaning to all of its terms and avoids an
    interpretation that would render one or more of its terms ineffective;

(b)   by determining the intention of
    the parties in accordance with the language they have used in the written
    document and based upon the cardinal presumption that they have intended what
    they have said;

(c)   with regard to objective evidence
    of the factual matrix underlying the negotiation of the contract, but without
    reference to the subjective intention of the parties; and (to the extent there
    is any ambiguity in the contract),

(d)   in a fashion that accords with
    sound commercial principles and good business sense, and that avoids a
    commercial absurdity.

[20]

In
Sattva
, the Supreme Court addressed the issue of surrounding
    circumstances.  Rothstein J. wrote, at para. 57:

While the surrounding circumstances will be considered in
    interpreting the terms of a contract, they must never be allowed to overwhelm
    the words of that agreement.  The goal of examining such evidence is to deepen
    a decision-makers understanding of the mutual and objective intentions of the
    parties as expressed in the words of the contract.  The interpretation of a
    written contractual provision must always be grounded in the text and read in
    light of the entire contract.  While the surrounding circumstances are relied
    upon in the interpretive process, courts cannot use them to deviate from the
    text such that the court effectively creates a new agreement.  [Citations
    omitted.]

[21]

Evidence
    of surrounding circumstances should consist only of objective evidence of the
    background facts at the time of execution of the contract: knowledge that was
    or reasonably ought to have been within the knowledge of both parties at or
    before the date of contracting:
Sattva
,

at para. 58.

[22]

Finally,
    the rule of contra proferentum applies in cases where the contractual terms are
    ambiguous:
Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery
    Insurance Co.
, [1980] 1 S.C.R. 888, at p. 900 and
Manulife Bank of
    Canada v. Conlin
, [1996] 3 S.C.R. 415, at pp. 425-426.

(b)

Analysis

[23]

In this appeal, the Landlord challenges the application judges interpretation
    of the lease and his finding that the installation and operation of an ATM did
    not change the fast-food restaurant purpose of the premises and therefore was a
    permitted use under the lease.

[24]

The
    application judge found that the use of the ATM was for appropriate business
    reasons, to assist the Tenant in keeping his costs low and his clients happy.
    The application judge considered the language of the lease.  He found that the ATM
    fell within the definition of permitted use because it was the tool used to
    achieve the business objectives of running the fast-food restaurant: the
    installation of the ATM does not in any way change the purpose of the premises,
    which is a fast food restaurant.  Furthermore, the application judge found
    that the use of an ATM was not a purpose for which the Tenant was using the
    premises.  Specifically, the application judge rejected the suggestion that the
    Tenant was offering banking services.

[25]

These
    are findings of mixed fact and law which are entitled to deference.

[26]

The
    lease did not define fast-food restaurant; was silent on other equipment and
    business tools such as a cash register and a debit terminal that are critical
    to a fast-food restaurant and implicitly included in the permitted use of the
    premises; and nothing in the lease prohibited the installation and operation of
    an ATM.  Lastly, the application judge did not base his decision on s. 10.8(a)
    of the lease as alleged by the Landlord.

[27]

Applying
    the principles articulated in
Sattva
, I am unable to conclude that
    there was any error of law or mixed fact and law that would justify appellate
    intervention.

[28]

From
    a practical perspective, I also reject the Landlords submission that such a
    result produces uncertainty in the law.  First, this case is confined to these
    parties and interpretation of this particular lease.  Second, it is open to
    parties to a commercial lease to specifically include the installation and
    operation of an ATM as a prohibited activity in the lease.

Disposition

[29]

I
    would therefore dismiss the appeal and order that the Landlord pay the Tenant its
    costs of the appeal fixed in the amount of $15,000 inclusive of disbursements
    and applicable taxes.

Released:

NOV -7 2014                                    S.E.
    Pepall J.A.

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

I
    agree C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Amini (Re), 2014 ONCA 794

DATE: 20141110

DOCKET: C58359

Weiler, Gillese and van Rensburg JJ.A.

IN THE MATTER OF:  Ali Amini

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Susan Magotiaux, for the respondent, the Attorney
    General of Ontario

Barbara Walker-Renshaw, for the respondent, the Ontario
    Shores Mental Health Sciences

Heard: November 7, 2014

On appeal against the disposition of the Ontario Review
    Board dated November 20, 2013 with reasons dated January 31, 2014.

APPEAL BOOK ENDORSEMENT

[1]

Despite the able submissions of Ms. Szigeti, we are not persuaded that
    the Board committed any error in coming to its conclusion that the appellant
    continues to pose a significant threat to the safety of the public. While Ms.
    Szigeti points to a list of factors and argues that they support a different
    conclusion than that reached by the Board, having regard to all the
    circumstances and in particular those outlined in para. 10 of the respondents
    factum, the Boards decision was reasonable.

[2]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Biladeau v. Ontario (Attorney General), 2014 ONCA
    848

DATE: 20141127

DOCKET: C57830

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

Bill Biladeau

Appellant

and

Ministry of the Attorney General

Respondent

Bill Biladeau, in person

Nadia Laeeque, for the respondent

Heard: September 19, 2014

On appeal from the order of Justice Morgan of the Superior
    Court of Justice, dated October 15, 2013.

H.S. LaForme J.A.:

I.        INTRODUCTION

[1]

The appellant, who has represented himself throughout these civil
    proceedings, commenced an action against The Attorney General of Ontario
[1]
alleging malicious prosecution and seeking damages for breach of
Charter
rights.
    Underlying this action is a criminal proceeding initiated against the appellant
    that ultimately terminated in his favour. At the appellants criminal trial,
    Crown counsel (not counsel on this appeal) commented on the appellants failure
    to testify. This appeal arises out of those comments.

[2]

The defendant  Ministry of the Attorney General (MAG)  brought a
    motion to strike the appellants statement of claim for failing to disclose a
    reasonable cause of action. On the first hearing of the motion, an adjournment was
    granted to allow the appellant to amend his claim. On the second hearing, the
    motion to strike the statement of claim was granted and the appellants claims
    were dismissed. This second decision is the subject of this appeal.

[3]

For the reasons that follow, I would allow the appeal and order that the
    appellant be given an opportunity to further amend his statement of claim in
    accordance with these reasons.

II.       BACKGROUND

[4]

In May 2007 the appellant was tried for sexual assault. He did not
    testify. The trial Crown began his closing address by cautioning the jury not
    [to] get mesmerized by reasonable doubt and that reasonable doubt is not a
    speculative doubt conjured up by a timid juror to escape his or her duty. He
    then twice observed that the complainants evidence stood uncontradicted.
    Finally, and most significantly, the trial Crown commented on the appellants
    failure to testify in reference to the appellants belief in consent: But he
    didnt testify, so he cant be asked directly what he thought at the time or
    what he construed or what he knew. The appellant was convicted.

[5]

On December 9, 2008, this court overturned the appellants conviction
    and ordered a new trial:
R. v. Biladeau
, 2008 ONCA 833,
    93 O.R. (3d) 365 (the conviction appeal). Sharpe J.A., writing for this
    court, concluded at para. 35: The comments of Crown counsel violated the
    appellants statutory right under   s. 4(6) of the
Canada Evidence Act
[and] prejudiced the appellants right to a fair trial. Ultimately, the Crown
    determined it would not proceed with a new trial.

[6]

In August 2011 the appellant commenced an action against MAG. He claimed
    damages for malicious prosecution, breach of professional conduct, and alleged
    that the conduct of the prosecution had breached his right to a fair trial as
    guaranteed by the
Charter of Rights and Freedoms
.

[7]

MAG brought a motion under rule 21 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 to strike the appellants claim for failing to disclose a
    reasonable cause of action. On the first hearing of the respondents motion on
    October 19, 2012, the motion judge granted an adjournment to allow the
    appellant to amend his statement of claim. The motion judge advised the
    appellant that he must plead facts from which an inference of malice may
    arise, and that [o]rdinarily, a reversible error in a Crowns closing
    argument would not be sufficient for that purpose.

[8]

On October 15, 2013, the appellants amended statement of claim was
    struck out and his action was dismissed. In his brief handwritten endorsement,
    the motion judge found that the amended claim still did not meet the test for
    malicious prosecution. Specifically, the motion judge found that the claim was
    deficient in pleading two essential ingredients of the tort of malicious
    prosecution: malice, and an absence of reasonable and probable grounds to initiate
    the prosecution.

[9]

The motion judge noted: [The appellants claim] does not provide any
    material facts supporting the claim of malice; in fact, it does not even make
    mention of the Plaintiffs view that the prosecutors actions in leading to the
    erroneous conviction were intentional. He also noted:

The one fact that the claim now adds is that the prosecutor had
    over 10 years experience.  The plaintiff says, in effect, that it goes without
    saying that his error to the jury must have been malicious. Such an experienced
    prosecutor, the plaintiff contends, could not have otherwise made such a
    mistake.

[10]

The
    motion judge made no reference to the appellants
Charter
damages
    claim.

[11]

On
    this appeal, the appellant argues that the facts he pled support his
    allegations of malicious prosecution and breach of
Charter
rights.
    According to the appellant, these facts describe the experience of the trial
    Crown, which in turn shows that any missteps were more likely to be deliberate
    than accidental. These facts therefore show Crown counsels intention, facing
    evidence that favoured the defence, to obtain a guilty verdict through
    knowingly improperly commenting on the appellants failure to testify or to
    avoid an acquittal by causing a mistrial.

[12]

I
    agree with the appellant. Although the amended statement of claim suffers from
    drafting deficiencies  as one might expect from a self-represented litigant
    without any legal training  when read generously and having due allowance for the
    deficiencies, it is not plain and obvious that no reasonable causes of action are
    disclosed:
Hunt v. T & N plc
, [1990] 2 S.C.R. 959, at p. 980.  I
    expand below.

III.      ISSUES

[13]

From
    the appellants notice of appeal and his oral submissions, I believe this
    appeal turns on the answers to two questions:

(1) Were there
    sufficient facts pled to support a claim for malicious prosecution, keeping in
    mind the test applied on a rule 21 motion?

(2) Did the
    motion judge consider the appellants claim for
Charter
damages and,
    in any case, are the elements of the
Charter
damages claim similar to
    the elements of malicious prosecution?

[14]

Finally,
    if this court concludes that additional facts are required in the appellants
    pleadings, the appellant requests a further opportunity to amend his claim.

IV.     ANALYSIS

[15]

The
    motion judge in this case was ruling on a self-represented plaintiffs second
    attempt to plead the complex private law tort of malicious prosecution and the
    public law claim for
Charter
damages. The burden on the moving party
    under rule 21.01 is significant. To succeed, MAG must demonstrate that neither
    claim has a chance of succeeding; indeed, that the claims are certain to fail.
    Put another way: is it plain and obvious that no reasonable cause of action is
    disclosed? At this preliminary stage, the alleged facts are to be taken as true
    and the statement of claim is to be read as generously as possible with a view
    to accommodating any inadequacies in the allegations: see
Guergis v. Novak
,
    2013 ONCA 449, at paras. 35-36.

[16]

The
    motion judge was satisfied that MAG discharged its heavy burden.      I
    respectfully disagree. I examine the motion judges conclusions about malicious
    prosecution before addressing the appellants
Charter
damages claim.

(i)

Malicious Prosecution

[17]

The
    tort of malicious prosecution has four elements, namely, that the proceedings
    must have been: (1) initiated by the defendant; (2) terminated in favour
    of the plaintiff; (3) undertaken without reasonable and probable cause to
    commence or continue the prosecution; and (4) motivated by malice or a primary
    purpose other than that of carrying the law into effect: see
Nelles v.
    Ontario
, [1989] 2 S.C.R. 170, at pp. 192-194; see also
Miazga v.
    Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 3. Only the
    third and fourth elements are at issue in this appeal.

[18]

The third element in a malicious prosecution claim is focused on
    the trial Crowns decision to initiate or continue with a criminal
    prosecution. This decision is one of the core elements of prosecutorial
    discretion, and is beyond the legitimate reach of the court unless a Crown
    prosecutor steps out of his or her role as minister of justice:
Miazga
, at paras. 6-7.

[19]

A description of the Crowns role as minister of justice that is
    often cited in our jurisprudence is found in
Boucher v. The Queen
,
    [1955] S.C.R. 16, at pp. 23-24:

It cannot be over‑emphasized that
    the purpose of a criminal prosecution is not to obtain a conviction
, it
    is to lay before a jury what the Crown considers to be credible evidence
    relevant to what is alleged to be a crime. Counsel have a duty to see that all
    available legal proof of the facts is presented: it should be done firmly and
    pressed to its legitimate strength but
it must also be
    done fairly
.
The role of prosecutor excludes
    any notion of winning or losing
; his function is a matter of public
    duty than which in civil life there can be none charged with greater personal
    responsibility. It is to be efficiently performed with an ingrained sense of
    the dignity, the seriousness and the justness of judicial proceedings.
    [Emphasis added.]

[20]

In
R. v. Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 79, the
    Supreme Court added the following comment on the role of Crown counsel:

Crown counsel are expected to present, fully and diligently,
    all the material facts that have evidentiary value, as well as all the proper
    inferences that may reasonably be drawn from those facts.
However, it is not the Crowns function to persuade a jury to
    convict other than by reason
:
R. v. Proctor
(1992), 11 C.R.
    (4th) 200 (Man. C.A.), at para. 59.
Rhetorical techniques
    that distort the fact-finding process, and misleading and highly prejudicial
    statements, have no place in a criminal prosecution
. [Emphasis added.]

[21]

The
    fourth element in a malicious prosecution claim  that the proceedings were
    motivated by malice  requires that the trial Crown commenced or continued the
    prosecution with a purpose inconsistent with his or her role as a minister of
    justice:
Miazga
, at para. 89
.

[22]

The
    question before the motion judge, therefore, was whether there was a sufficient
    factual foundation in the pleadings to indicate that the Crown proceeded to
    prosecute the appellant without reasonable or probable cause for success, and
    that the Crown acted with malice in doing so.  A perfect pleading is not
    required.

(a)     Relevant pleadings in the amended claim

[23]

The
    appellants pleadings enumerate facts that I believe are considerably more
    important to the malice element of malicious prosecution than the motion judge appears
    to have appreciated. The following are excerpts from the appellants amended
    statement of claim, the first two of which are critical comments and findings
    of Sharpe J.A. in his reasons for decision in the conviction appeal:

·

[The trial Crowns] reference to timid juror in the face of a
    clear warning from this court in [
R. v. Karthiresu
(2000), 129 O.A.C.
    291], when read with the comment on the appellants failure to testify,
    suggests that Crown counsel may well have been flirting with danger and
    deliberately testing the outer limits of what is permissible: p. 5 of Amended
    Statement of Claim, quoting para. 33 of conviction appeal.

·

[In my view], the comments in the case at bar cannot be excused
    as ambiguous or off-hand.  Rather, they appear to have been part of a
    carefully structured closing address that pointedly drew the attention of the
    jury to the fact that the accused did not take the stand.  If the Crowns
    closing address did not do so explicitly, it strongly implied that the jury
    could and should infer that the appellants silence and his refusal to expose
    himself to cross-examination were indicia of his guilt: p. 5 of Amended
    Statement of Claim, quoting para. 31 of conviction appeal.

·

The Crown prosecutor had more than ten years experience at the
    time of trial. The Prosecutor said to my lawyer at the time that he studied his
    closing that night which will show knowledge of the law and information: p. 5
    of Amended Statement of Claim.

[24]

I
    now turn to analyzing how the appellants pleadings map onto the third and
    fourth elements of malicious prosecution.

(b)     Third element  reasonable or probable
    grounds

[25]

The
    motion judge observed that there was nothing in the conviction appeal to
    suggest that the Crown had no grounds on which to proceed with the prosecution
    in the first place.  The third element of the tort, however, requires that the
    Crown have reasonable or probable cause to both commence and
continue
the prosecution. It appears that the motion judge believed he only had to
    consider the Crowns cause to commence the prosecution.

[26]

It
    is true that the appellants pleadings make no reference to facts that support
    an allegation that the trial Crown had no reasonable cause to continue the
    prosecution.
[2]
However, the record in this case suggests that there are facts that the
    appellant could plead in support of this third element. For example, Sharpe
    J.A. makes several findings and observations in the conviction appeal on this
    issue, including:

·

The complainants evidence that she experienced vaginal bleeding
    after the incident was not corroborated by the evidence of the nurse who
    treated her: para. 9 of conviction appeal.

·

The complainants evidence was challenged and the Crowns case
    was not overwhelming: para. 35 of conviction appeal.

[27]

The
    trial transcript reveals that the presence of blood on the complainants
    underwear was also not confirmed by the DNA expert, who testified she saw no
    blood when she examined the garment.

[28]

In
    oral argument before this court the appellant alleged that the Crown knew the
    case was lost but persisted with the prosecution. He submitted that at this
    preliminary stage, an inference can be made

that the Crown had no
    reasonable grounds to proceed with the prosecution for two reasons. First, he
    points out that the nurse and the DNA expert contradicted the complainant at
    trial. Second, he says that following his successful conviction appeal, the
    Crown dropped the case after the appellant rejected what the Crown allegedly
    described as the deal of a lifetime.

[29]

The
    appellant argues that the Crowns offers  and the eventual abandonment of the
    case  show that the Crown knew it had a weak case against him, particularly
    when combined with Sharpe J.A.s comment that the Crowns case was not
    overwhelming. These facts, he says, demonstrate that the Crown did not have
    reasonable or probable cause to commence or continue the prosecution.

[30]

I
    agree with the appellant. In my view, had these facts been pleaded, had they
    been taken as being true, and had the claim been read as generously as possible
    with any inadequacies in the allegations being accommodated, I am satisfied
    that these facts would have been sufficient to survive the Crowns rule 21
    motion in connection with the third element.

[31]

Given
    the motion judges apparent narrow view of the requirements of the third
    element, I would grant the appellant leave to further amend his statement of
    claim to conform to these reasons.

(c)     Fourth element  malice

[32]

In
    analyzing this final element of the tort, the motion judge was required to
    generously read the appellants claim to determine whether it is plain and
    obvious that the appellants allegation of malice would fail. In other words, is
    it plain and obvious that the pleaded facts fail to indicate that the trial
    Crown commenced or continued the prosecution of the appellant with a purpose
    inconsistent with his or her role as a minister of justice? Contrary to the
    opinion of the motion judge, in my view, it is not plain and obvious that the
    facts underpinning the appellants allegations of malice are deficient in this
    regard.

[33]

The
    motion judge found that the appellants amended pleadings did not meet the
    test. As mentioned above, in his view, [the appellants claim] does not
    provide any material facts supporting the claim of malice; in fact, it does not
    even make mention of the Plaintiffs view that the prosecutors actions in
    leading to the erroneous conviction were intentional.  I disagree.  Had the
    motion judge read the claim generously and accommodated the drafting
    deficiencies, he would have arrived at a different conclusion.

[34]

By
    including Sharpe J.A.s findings and comments from paras. 31 and 33 of the
    conviction appeal, set out above, a generous reading of the appellants claim discloses
    that the appellant was attempting to demonstrate that the experienced trial Crowns
    actions were neither negligent nor mere mistakes; rather, these actions were wilful
    and intentional. That is to say, the more experience one has, the more likely one
    understands fully the relevant law. As the appellant writes in his notice of
    appeal: The evidence shows [trial Crowns] intention to get a guilty verdict
    with his closing address to the jury and not follow the law.

[35]

The
    appellants pleadings allow for the inference to be made that the trial Crown
    may have been motivated by the improper purpose of getting a conviction at all
    costs, or that he may have been attempting to get a mistrial.

[36]

The
    passages from Sharpe J.A.s reasons contained in the appellants claim
    illustrate that the trial Crown employed misleading and highly prejudicial
    statements and [r]hetorical techniques that distort[ed] the fact-finding
    process:
Trochym
, at para. 79.  A trial Crown  a minister of justice
     who relies on such dubious strategies may be motivated by an improper
    purpose. For example, it would be an improper purpose to use these strategies to
    persuade a jury to convict other than by reason:
Trochym
, at para.
    79. The appellants pleadings read generously allow for this inference.

[37]

I
    would allow this ground of appeal.

II.
Charter
Damages Claim

[38]

The
    appellants pleadings in support of his claim for
Charter
damages is
    limited to the fact that the trial Crown commented on his failure to testify at
    trial.  His claim is that his s. 11
Charter
right to a fair trial was
    breached and that as a result he suffered damages under s. 24(1) of the
Charter
    of Rights and Freedoms
. The motion judge made no mention of this issue in
    his reasons for decision in which he ordered the appellants entire statement
    of claim struck out.

[39]

Section
    24(1) of the
Charter
authorizes a court to award constitutional
    damages to individuals for
Charter
infringements where appropriate
    and just:
Vancouver (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, at
    para. 4. To determine what is appropriate and just in a given case, the court
    in
Ward
articulated a four-part approach. These four steps can be
    paraphrased as follows:

First, determine that there has been a
Charter
breach.

Second, determine whether damages are a just and appropriate
    remedy. In doing so, consider whether damages would fulfill any of the related
    functions: compensation for loss, vindication of the right, or the deterrence
    of future breaches.

Third, determine whether the state has established that other
    countervailing considerations render damages inappropriate or unjust.

Fourth, assess the quantum of the damages.

[40]

In
Ward
, when addressing the requirement that damages be appropriate and
    just, the court used malicious prosecution as an example, and at para. 43 stated:
    When appropriate, private law thresholds and defences may offer guidance in
    determining whether s. 24(1) damages would be appropriate and just.

[41]

Although
    authority on awarding
Charter
damages is relatively recent, it seems
    clear that when it comes to malicious prosecution, there is a high degree of
    overlap between the elements of the tort and a corresponding claim for
Charter
damages. The precise extent of the overlap is unclear; however, malice appears
    to be an integral component of both actions. Accordingly, the facts alleged by
    the appellant in regard to the tort of malicious prosecution appear to be
    equally applicable to the appellants corresponding claim for
Charter
damages: see
Forrest v. Kirkland
, 2012 ONSC 429, 296 O.A.C. 244 (Div.
    Ct.) at para. 62; see also
Henry v. British Columbia (Attorney General)
,
    2014 BCCA 15; 370 D.L.R. (4th) 742, leave to appeal to S.C.C. granted, 35745 (May
    15, 2014).

[42]

Therefore,
    the bar that the appellant will have to overcome for his
Charter
damages
    claim is at least as high as the bar he must surmount for a private law
    malicious prosecution action. However, as with his claim for malicious
    prosecution, the appellant is merely at the pleadings stage and is only required
    to plead facts sufficient to show that it is not plain and obvious that no
    reasonable cause of action is disclosed.

[43]

As
    mentioned above, the appellants pleadings referencing paras. 31 and 33 of the
    conviction appeal allow the inference to be drawn that the experienced trial Crowns
    actions were wilful and intentional, and carried out for an improper purpose.
    My reasons for allowing the appeal in regards to the malice requirement of
    malicious prosecution apply equally to the
Charter
damages claim. Further,
    in the absence of any explanation in his endorsement, it is difficult to
    discern why the motion judge struck this part of the appellants claim.

[44]

Although
    it may not be strictly necessary for the appellant to repeat the relevant facts
    under both claims, his pleadings should at least make it clear that he relies
    on the same facts to support both his malicious prosecution claim and his
Charter
damages claim. Accordingly, I would grant the appellant leave to amend his
    pleadings to accord with these reasons.

V.      DISPOSITION

[45]

For
    these reasons, I would allow the appeal and set aside the motion judges order.
    I would order that the self-represented appellant be granted leave to further
    amend his amended statement of claim in accordance with these reasons. Lastly, as
    neither party sought costs on this appeal, I would order there be no costs
    awarded.

Released: HSL  November 27, 2014

H.S. LaForme J.A.

"I
    agree. R.G. Juriansz J.A.
"

"I
    agree. P. Lauwers J.A.
"

[1]

Although the defendant is improperly named in the style of
    cause, this has not been made an issue in these proceedings.

[2]
The motion judge who granted the appellant an adjournment to amend his
    statement of claim after the first hearing of the motion on October 19, 2012
    only referenced the malice element in his brief endorsement. The endorsement
    was silent on the reasonable or probable grounds element of the tort.


COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Ontario, 2014 ONCA 806

DATE: 20141117

DOCKET: M44293 (C59327)

Cronk, Gillese and Rouleau JJ.A.

BETWEEN

Sylviette Rita Brown, Trustee

Respondent/

Appellant in appeal

and

Her
    Majesty the Queen in Right of Ontario,

Eric
    Jolliffe, Chief of Police for the Regional Municipality of York,

Paul
    Pedersen, York Regional Police Superintendent,

Keith
    Merith, York Regional Police Superintendent,

Christopher
    Armstrong, York Regional Police Detective,

Constable
    Jim Wright, York Regional Police Detective,

Constable
    Jane Doe 1, John Doe 1, John Doe 2 and John Doe 3

Moving Parties/

Respondents in appeal

Sylviette Brown, in person

David Elman, for the respondents

Heard and released orally: November 12, 2014

ENDORSEMENT

[1]

The moving parties, the respondents in the underlying appeal, move to
    quash this appeal on the basis that the order sought to be appealed is
    interlocutory, rather than final, in nature, among other grounds.

[2]

At the commencement of oral argument, the appellant sought an
    adjournment of the motion pending the determination of a recusal motion brought
    by her in the Superior Court, apparently scheduled for argument on December 2,
    2014, and to provide her with time to perfect her appeal.  The litigation
    between the parties has been marked by numerous adjournments, requested or
    occasioned by the appellant.  Neither the perfection of the appellants appeal
    nor the determination of her unrelated recusal motion concerning the Superior
    Court case management judge is necessary for adjudication of the respondents
    motion to quash in this court.  Accordingly, we denied the appellants request
    for an adjournment.

[3]

Turning to the merits of the motion to quash, the order in question is
    an order of a Superior Court judge denying an adjournment and setting a date
    for argument of the respondents pending motion to strike the appellants
    statement of claim.  This type of order does not affect the substantive merits
    of the dispute between the parties or their final rights.  The order, therefore,
    is clearly interlocutory in nature, any appeal from which lies to the
    Divisional Court with leave rather than to this court.  On this ground alone,
    the appeal must be quashed.

[4]

The motion is allowed and the appeal is quashed for want of
    jurisdiction.  Costs of the motion are awarded to the moving parties, fixed in
    the amount of $2,000, inclusive of all disbursements and applicable taxes.

E.A. Cronk J.A.

E.E. Gillese J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brummell v.
    Ontario (Attorney General), 2014 ONCA 828

DATE: 20141121

DOCKET: C58354

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

Gerald Guy Brummell

Appellant

and

The Attorney General for Ontario, Andrew Beatty,
    Darryl Foulkes, Commissioner Julian Fantino, Superintendent Ken Smith,
    Inspector George Miller, Inspector Pat Finnigan, Inspector Earl Johns,
    Inspector Carson Pardy, Mark Zulinski, Mike Smith,
Paul
    Beesley
, Chris Newton, Baldassare Nuccio, Brian Hollenbeck, Jayne
    Pellerin, Christina Reive, Vern Crowley, Al Doubrough, Dennis Desjardins, Brad
    Robson, Jon Bakelaar, Bernie Gaw, Kevin Knowack, Al OByrne, Conner Durkin,
    Jeff McKinnon, Brad Burkholder, Mark Allison, Don Davies, Troy Bellehumeur,
    Terry Penlington, Andrew Goad, Kevin Conner, Matt Casie, Tom Whittaker, Dan McAuley,
The City of Quinte West Police Services Board
,
Her
    Majesty the Queen in Right of Ontario

Respondents

Gerald Guy Brummell, appearing in person

Darrell Kloeze and Judith Parker, for the respondents

Heard: November 7, 2014

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated January 20, 2014.

ENDORSEMENT

[1]

The appellant seeks to adjourn his appeal of the January 20, 2014 order
    of the motion judge striking out his claim without leave to amend and
    dismissing the action in its entirety. He also brings an application to have a
    CPIC statement that shows that certain charges against him were withdrawn
    before his criminal trial, admitted as fresh evidence.

[2]

The appellant argues  on the basis of the CPIC statement  that this
    appeal should be adjourned until this court reviews Rosenberg J.A.s December
    12, 2013 decision. In his decision, Rosenberg J.A. denied the appellant an
    extension of time to appeal his September 30, 2008 conviction on two charges of
    making false statements for the purpose of procuring a passport for other
    persons contrary to s. 57(2) of the
Criminal Code
, two charges of
    uttering forged documents in relation to the passports contrary to s.
    368(1)(b), one charge of obtaining credit by fraud contrary to s. 362(1)(b),
    and four charges of fraud contrary to s. 380(1).

[3]

The request for an adjournment and the application to have the CPIC
    statement admitted as fresh evidence are both dismissed. The CPIC statement is
    not relevant to the issues that were before the motion judge.

[4]

We therefore turn to the appeal.

[5]

As the respondents assert in their factum, the motion judge found that
    the appellants claim was fatally flawed, making allegations of malicious
    prosecution when the criminal proceedings had not been resolved in the
    appellants favour, raising allegations which were plainly and obviously beyond
    the limitation period, and seeking damages for causes of action which either do
    not exist or for which the material facts were, and could not be pleaded.

[6]

On appeal, the appellant argues that the motion judges order should be
    overturned because the respondents did not bring their rule 21 motion soon
    enough, two unissued draft amended Statements of Claim superseded the last
    issued claim, the motion judge made errors of fact, and the motion judge was
    biased against him.

[7]

In our view, this appeal is without merit.

[8]

There is no basis to interfere with the exercise of the motion judges
    discretion to hear and grant the rule 21 motion. Delay was understandable. The
    appellant continued to amend his claim. Further, it would be antithetical to
    the aim of litigation efficiency to insist that a claim that has no chance of
    success cannot be the subject of a rule 21 motion because of delay, and must be
    brought to trial.

[9]

The motion judge considered both the most recent claim filed by the
    appellant (the Second Amended Statement of Claim), a draft amended claim called
    the Fresh as Amended Statement of Claim,  and the most recent draft claim,
    served only the week before the rule 21 motion, and after the close of
    pleadings. The procedure the motion judge adopted was appropriate given the
    last-minute nature of the amendments and given that the appellant had not
    brought a motion to amend his claim after the close of pleadings or obtained
    the parties consent.

[10]

To
    the extent that the motion judge made any factual errors, they are clearly not
    overriding. As indicated above, the motion judge found that the claim was
    fatally flawed, no matter the form of pleading.

[11]

Finally,
    there is strong presumption of judicial impartiality. The appellant has not shown
    that, objectively, there was a reasonable apprehension of bias.

[12]

The
    appeal is accordingly dismissed. The appellant shall pay costs to the respondents
    in the amount of $4500, inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

Gloria Epstein J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: CanaSea PetroGas Group Holdings Limited (Re), 2014
    ONCA 824

DATE: 20141120

DOCKET: M44375

Sharpe J.A.

(In Chambers)

In the Matter of the
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c. C-36 as amended

And In the Matter of a Plan of
    Compromise or Arrangement of CanaSea PetroGas Group Holdings Limited, CanaSea
    Oil and Gas Group Pte. Ltd., CanaSea International Pte. Ltd., CanaSea PetroGas
    Investment Inc. and CanaSea Oil and Gas Ltd.

Rebecca Huang, Brent McPherson and Martine S.W. Garland
    for the moving parties, CanaSea PetroGas Group Holdings Limited

Shawn T. Irving and Andrea Lockhart for the respondent Equity
    Ventures International Holdings Limited

Pamela L.J. Huff and Matthew Kanter for the respondent Blue
    Energy Holdings Limited

Heard: October 31, 2014

ENDORSEMENT

[1]

The moving parties seek leave to appeal from a judgment setting aside a
Companies
    Creditors Arrangement Act

(CCAA) Initial Order.

[2]

The moving parties are five affiliated companies, the CanaSea Group.
    The corporate structure was described by the application judge, at para. 6, as
    follows:

The applicant CanaSea PetroGas Holdings Limited (CPGH) is a
    holding company incorporated under the
Canada Business Corporations Act

with its head office in Toronto.  The other applicants are all
    subsidiaries of CPGH.  CPGH owns 100% of the shares of CanaSea Oil and Gas
    Group Pte. Ltd. (COGG), a Singapore company.

COGG owns 100% of the shares of CanaSea

Investment

Inc.

(CPII),

a

CBCA company.  CPII
    owns 100% of the shares of CanaSea Oil and Gas Limited (COGL), the Saskatchewan
    operating company.  CanaSea International Pte. Inc. (CPIL), another
    Singapore company, is also wholly owned by CPGH.

[3]

The moving parties applied for and obtained the Initial Order
ex
    parte
. I pause here to observe that in oral argument on this motion,
    counsel for the moving parties was unable to offer an acceptable explanation
    for having moved
ex parte
.

[4]

The respondents on this motion, Equity Ventures International Holdings
    Limited (Equity Ventures) and Blue Energy Holdings Limited (Blue Energy)
    are creditors of the Singapore company, COGG. They are owed $13 million,
    approximately 90% of the debt obligations of COGG and 49% of the total debt
    obligations of the CanaSea Group as a whole. They oppose any restructuring of
    COGG and intend to enforce their loans in Singapore where they have initiated
    proceedings against COGG in accordance with the loan documents which provide
    for Singapore jurisdiction.

[5]

Equity Ventures and Blue Energy moved to set aside the Initial Order on
    the ground that the CCAA court lacks statutory jurisdiction over COGG as well
    as jurisdiction
simpliciter
.

[6]

The application judge agreed and set aside his Initial Order.

[7]

The moving parties argue that they were denied procedural fairness
    before the application judge. They characterize the basis of the application
    judges reasons for setting aside the Initial Order as being their failure to
    make full and frank disclosure on the
ex parte

application. They
    argue that had they been put on notice that this was the issue, they could have
    satisfied the application judge that the disclosure was adequate.

Preliminary Issue: Jurisdiction of a single judge

[8]

The respondents submit that as a single judge, I should decline to hear
    this motion for leave to appeal and defer the matter to be dealt with in
    writing by a panel of the court.

[9]

The CCAA, s. 13, provides:

Except in Yukon, any person dissatisfied with an order or a
    decision made under this Act may appeal from the order or decision on obtaining
    leave of the judge appealed from or of the court or a judge of the court to
    which the appeal lies and on such terms as to security and in other respects as
    the judge or court directs.

[10]

It
    is clear from the wording of s. 13 that a motion for leave to appeal in a CCAA
    proceeding may be heard either by a judge of the court or by the court: see
Re 1078385 Ontario
Ltd.

(2004),
16 C.B.R. (5th) 152;

206 O.A.C. 17
,

at
    para. 2:
Section 13 of the
Companies Creditors
    Arrangement Act
, R.S.C. 1985, c. C-36, provides the moving party with the
    procedural option of bringing a leave motion to a single judge
;
Re
    Country Style Food Services Inc.

[2002] O.J. No. 1377,

158 O.A.C. 30
(Ont. C.A.).
While the usual
    practice is to bring CCAA leave motions before a panel in writing (see
Re
    Air Canada

(2003), 173 O.A.C. 154) and while there are no doubt
    advantages to proceeding before a full panel in writing, both to the party
    seeking leave and to the court, I am not persuaded that there is any proper
    basis shown upon which I should decline to hear this motion.

Should leave to appeal be granted?

[11]

In
    my view, the moving parties fail to make out a case for granting leave to
    appeal.

[12]

I
    do not agree with their characterization of the application judges reasons.
    While the application judge was plainly troubled by what he regarded as the
    misleading picture the moving parties had painted on the
ex parte

application,
    I cannot agree that he set aside the Initial Order on purely procedural grounds
    not signaled by the respondents Notice of Motion.  I agree with the
    respondents that the real basis for setting Initial Order is found at paras. 24
    to 26 of his reasons where he finds that the evidence filed by the moving
    parties contains no evidence of COGLs solvency, independent of COGG and that
    CIPL and COGG, the real debtors in this proceeding, are Singapore companies
    and have very little connection to Canada.

[13]

The
    application judge observes that he granted the
ex parte
order on the
    basis that:

(1)

each applicant had
    liabilities in excess of $5 million and was clearly insolvent;

(2)

each applicant was
    unable to meet its obligations as they came due; and

(3)

each applicants
    finances were inextricably intertwined through intercompany debt obligations.

[14]

Upon
    closer examination of the record and with the benefit of opposing argument, he
    found, at para. 26, that in fact, the situation was entirely different:

The evidence now produced
    as a result of the Convertible Noteholders motion simply does not support those
    conclusions.  These conclusions were, in fact, wrong on the basis of the
    evidence now available.  The evidence only supports the conclusion that
    CPGH, CIPL and COGG have obligations in excess of $5 million and are
    insolvent.  CPGH, although a Canadian company, essentially carries on no
    business  it is a holding company.

[15]

The
    claim that the finances of all the applicants were inextricably intertwined
    through intercompany debt obligations could not withstand scrutiny in the face
    of the admission given by the moving parties principal on cross-examination
    that there were no documented inter-company loans.

[16]

The
    application judge concluded, at para. 36:

The evidence does not support the conclusion that CPII or COGL
    qualify as applicants under the CCAA.  On the evidence, the only entities
    which meet the insolvency and $5 million thresholds are at the COGG level or
    above.  COGG is a Singapore company with a tenuous connection to Canada,
    whose loan agreements provide for the resolution of disputes in Singapore under
    Singapore law.

[17]

That
    finding and conclusion, fatal to the request for CCAA protection, corresponds
    precisely with the grounds set out in the Notice of Motion to set aside the
    initial order and I do not accept that the moving parties were taken by
    surprise.

[18]

It is firmly established that the test for leave to appeal in
    insolvency proceedings is stringent where it involves the exercise of
    discretion as to the assessment of competing interests and the availability of
    the special protection afforded by the CCAA: see
Re Country Style Food
    Services Inc.
, at para. 16;
Regal Constellation Hotel Ltd.
,

(2004)
71 O.R. (3d) 355;

242 D.L.R. (4th)
    689;

[2004] O.J. No. 2744 at para. 22.

[19]

In
    my view, this case falls squarely within the category in which deference is
    owed to the CCAA judge and where leave to appeal will be refused. It was for
    the CCAA judge to assess the evidence as to the nature of the debts from which
    the moving parties seek relief, the nature of the financial relationship
    between the various components of the CanaSea Group and the degree of
    connection between the alleged insolvency and Canada. There was ample evidence in
    the record to support the findings he made and I am far from persuaded that he
    made any error in principle or that he misapprehended the evidence.

[20]

I
    see no merit to the contention that simply because the debtor Singapore
    companies are part of a larger group under the umbrella of a Canadian holding
    company (CPGH), they can somehow claim the benefit of the CCAA in relation to
    debt they incurred in Singapore that is subject to Singapore law. The moving
    parties were unable to provide any authority to support their claim that there
    exists a common law doctrine of common enterprise insolvency that goes to such
    a length.

Disposition

[21]

Accordingly,
    I refuse leave to appeal. The respondents are entitled to their costs of this
    motion fixed at $20,000 for Equity Ventures and $16,000 for Blue Energy, both
    amounts inclusive of disbursements and taxes.

Robert Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carbone v.
    Zderic, 2014 ONCA 849

DATE: 20141127

DOCKET: C58670

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

Francesco Carbone

Plaintiff

(Respondent)

and

Zeljko A. Zderic,
    a.k.a. Zeljko Zeluca Zderic, a.k.a. Sasha Vujacic, a.k.a. Sasa Vujacic, a.k.a.
    Sasaa Vujacic, a.k.a. Alex Vujicic, a.k.a. Aleksandar Vujicic, a.k.a. Alex
    Visser, a.k.a. Pavle Kolic and
Brenda Kover a.k.a. Brenda
    Marie Joyce Kover

Defendants

(Appellants)

Robert W. Wilson, for the appellant

Raffaele Sparano, for the respondent

Heard and released orally: November 19, 2014

On appeal from the judgment of Justice David L. Edwards
    of the Superior Court of Justice, dated March 12, 2014.

ENDORSEMENT

[1]

The appellant concedes that she is liable to the respondent for the sum
    set out in para. 3 of the judgment of Edwards J. of March 12, 2014, but
    disputes those monies were obtained by fraud or false pretenses.  She seeks to
    have the judgment against her in relation to the two promissory notes set
    aside.

[2]

There is no allegation in the statement of claim nor in the initial
    affidavit of Francesco Carbone in support of the motion for summary judgment
    that the appellant signed either promissory note. Further, there is no
    allegation of fraudulent conduct against her either in the statement of claim
    nor in the initial affidavit in support of the motion for summary judgment.

[3]

The second affidavit filed in support of the motion for summary judgment
    was never served on the appellant and there was no order dispensing with service
    of same. So, in our view, those portions of the judgment against the appellant on
    the promissory notes; the findings of false pretenses or fraudulent
    misrepresentation; and the award of punitive damages based on such conduct
    cannot stand and are set aside.

[4]

Although the brief reasons of the motion judge are conclusory and do not
    explain the basis for his determinations, having been awarded on a full
    indemnity basis, the costs award below must have been based on the finding of
    fraudulent conduct.

[5]

Accordingly, the costs award below as against the appellant is varied to
    $7500 on a partial indemnity scale. Costs of the appeal will be to the
    appellant on a partial indemnity scale fixed in the amount of $7500 inclusive
    of disbursements and applicable taxes.

Janet
    Simmons J.A.

J.
    MacFarland J.A.

M. L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cash Store
    Financial Services Inc. (Re) 2014 ONCA 834

DATE: 20141125

DOCKET: C59377 & C59379

Hoy A.C.J.O., Cronk and Blair JJ.A.

In the Matter
    of the
Companies Creditors Arrangement Act
,

R.S.C.
    1985, c. C-36, as amended

And in
    the Matter of a Plan of Compromise or Arrangement of The

Cash
    Store Financial Services Inc., The Cash Store Inc., TCS Cash Store

Inc.,
    Instaloans Inc., 7252331 Canada Inc., 5515433 Manitoba Inc., 1693926 Alberta
    Ltd. doing business as The Title Store

Robert W. Staley, Jonathan Bell and Ilan Ishai, for 0678786
    B.C. Ltd.

Brett Harrison, for Trimor Annuity Focus LP No.5

Andrew Hatnay and Adrian Scotchmer, for Timothy Yeoman

Alan Merskey and Andrew McCoomb, for DIP Lenders and
Ad
    Hoc
Committee of Noteholders

Alan Mark and Brendan O'Neill, for DIP lenders and
Ad
    Hoc
Committee of Noteholders

Jeremy Dacks, for the Chief Restructuring Officer

Heather Meredith, for FTI Consulting Canada Inc., in its
    capacity as Monitor

Heard: November 18, 2014

On appeal from the order of Justice Geoffrey B. Morawetz
    of the Superior Court of Justice, dated August 5, 2014.

ENDORSEMENT

[1]

The appellants, 0678786 B.C. Ltd. and Trimor Annuity Focus Limited
    Partnership #5, advanced funds to Cash Store Inc. and 1693926 Alberta Ltd.
    (collectively Cash Store)  a payday lending company now operating under the
    protection of the
Companies Creditors Arrangement Act
, R.S.C. 1985, c.
    C-36 (CCAA).

[2]

The appellants brought motions before the Commercial List motion judge
    seeking a determination that they were the sole legal and beneficial owners of
    both the proceeds on hand from loan payments made by, and  accounts receivable
    from, Cash Stores customers at the time that Cash Store sought protection
    under the CCAA. Loan payments by Cash Stores customers were commingled with
    Cash Stores funds and it was not possible to identify the source of the funds
    on hand at the time of the initial order under the CCAA.  Relying principally
    on the framework of agreements entitled Broker Agreements that they had
    entered into with Cash Store, the appellants argued that they had loaned funds
    to Cash Stores customers, and Cash Store merely operated as a broker to
    facilitate placement and collection.

[3]

The motion judge disagreed. He found that the relationship between the
    appellants and Cash Store was a debtor-creditor relationship. Effectively, the
    appellants had loaned money to Cash Store, which in turn made its own loans to
    its customers. Accordingly, the appellants were required to stand in line with
    Cash Stores other creditors. By orders dated August 5, 2014, the motion judge
    dismissed the appellants motions.

[4]

On this appeal, the appellants argue that the motion judge improperly varied
    the terms of the Broker Agreements. They cite
Technicore Underground Inc.
    v. Toronto (City)
, 2012 ONCA 597, 354 D.L.R. (4th) 516 for the proposition
    that before a court can vary a contract based on conduct, there must be a pattern
    of conduct by the parties to the contract demonstrating that they did not
    intend to be bound by its terms. The appellants argue that the motion judge
    erred in law because he did not apply this test or that, if he did, he made
    palpable and overriding factual errors in doing so. The appellants say the test
    could not be met in the face of what they characterize as evidence from themselves
    and a former officer of Cash Store that the parties intended to be bound by the
    terms of the Broker Agreements, as well as the description of the parties
    relationship in various public disclosures made by Cash Store.

[5]

We are not persuaded that there is any basis for this court to intervene
    with the motion judges order dismissing the appellants motions.

[6]

Technicore
 a case where one party to the contract unsuccessfully
    argued that the other party varied the notice provisions in the contract by its
    conduct and therefore could not rely on its provisions  was not argued before
    the motion judge.

[7]

We agree with the respondents, the DIP Lenders and the
Ad Hoc
Committee of Noteholders, that, fundamentally, the appellants seek to have this
    court re-visit the factual determinations of the motion judge.

[8]

The task undertaken by the motion judge was to determine  in the context
    of an insolvency, where third party creditors asserted that the accounts
    receivable were the property of Cash Store  the true legal characterization of
    the relationship between the appellants and Cash Store. As the appellant Trimor
    Annuity Focus Limited Partnership #5 noted in its reply and responding factum
    before the motion judge:

In determining the issue of ownership, it is important to
    carefully consider the facts. [Para. 5]

The DIP Lenders correctly note that the Cash Stores legal
    relationship with the [appellants] is not exhaustively defined by the Broker
    Agreements. The conduct of the parties is also relevant. [Para. 15]

[9]

In our view, there was no error in the approach of the motion judge. He
    considered the terms of the Broker Agreements and the manner in which the
    parties actually operated. At para. 37 of his reasons, he concluded that the
    Broker Agreements did not accord with reality. The actual practices followed
    by the parties were not consistent with the Broker Agreements. In reality, the
    appellants and Cash Store were in a debtor-creditor relationship, and not the principal-broker
    relationship contemplated by the Broker Agreements. There were several bases
    for his conclusion: the ongoing payments at the rate of 17.5% of the
    outstanding funding that Cash Store made to the appellants reflected a payment
    of interest, and the payment of interest was inconsistent with the broker
    position argued by the appellants; loan repayments were co-mingled with Cash
    Store funds in its operating account; and Cash Store provided capital
    protection to the  appellants, insulating them from any credit risk as a
    result of loan defaults by Cash Stores customers. The motion judges
    conclusion is amply supported by the record and is entitled to deference.

[10]

This
    appeal is accordingly dismissed. There shall be no order as to costs.

Alexandra Hoy A.C.J.O.

E.A. Cronk J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cavalier (Re) 2014 ONCA 768

DATE: 20141103

DOCKET: C58657

Laskin, van Rensburg and Benotto JJ.A.

IN THE MATTER OF JAMES CAVALIER

AN APPEAL UNDER PART XX.1 OF THE
CODE

Dean F. Embry, for the appellant

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Nathan Kruger, for the Attorney General

Heard: October 30, 2014

On appeal against the disposition of the Ontario Review
    Board dated February 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal of the Boards disposition of February 18, 2014. The
    evidence that was considered by the Board and referred to in its reasons was
    that the appellant had a long history of threatening and harassing behaviour
    that targeted media agencies. The Board agreed with the proposed deletion of
    the term restricting the appellants telephone access, consistent with his move
    into the community where supervision of his telephone contact would be
    impossible. The evidence at the time of the index offences was that, although
    such offences had been directed at NOW Magazine, the appellant was also
    preoccupied with the Toronto Star for the same reasons that led to the
    offending behaviour. The appellants preoccupations have continued, and he has
    continued to make phone calls and to send letters regarding the distribution of
    pornography in NOW Magazine, although no formal charges have been laid.

[2]

The need for a no-contact provision is not disputed; the only issue is
    its scope. There was, in our view, sufficient evidence before the Board to
    justify the continued inclusion of the Toronto Star in condition 4(a). We would
    interfere with the Boards disposition only to the extent proposed by the
    Attorney General and the hospital, and would otherwise dismiss the appeal. We
    note that there is no evidence that the appellant has in fact contacted or
    attempted to contact the Toronto Star. The appellant can raise this issue in
    his upcoming review hearing before the Board in January.


COURT OF APPEAL FOR ONTARIO

CITATION: Daoust-Crochetiere v. Ontario (Natural Resources), 2014 ONCA 776

DATE: 20141106

DOCKET: C58577

Strathy C.J.O., Feldman and Lauwers JJ.A.

BETWEEN

Jason Daoust-Crochetiere

Plaintiff (Appellant)

and

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

Defendant (Respondent)

Andrew Kerr, for the appellant

Thomasina Dumonceau, for the respondent

Heard: October 28, 2014

On appeal from the order of Justice J.R. McCarthy of the
    Superior Court of Justice, dated February 28, 2014.

BY THE COURT:

[1]

The appellants claim as pleaded falls squarely within s. 5(1)(c) of the
Proceedings Against the Crown Act
, R.S.O. 1990, c. P.27 (
PACA
).
    It is a claim in tort in respect of a breach of the duties attaching to the
    ownership, occupation, possession or control of property at the respondents
    boat launch at Wasaga Beach Provincial Park.

[2]

The motion judge made no error in granting summary judgment dismissing
    the appellants action in tort because he failed to give the ten day notice
    required by s. 7(3), or the sixty day notice required by s. 7(1) of
PACA
.

[3]

The accident occurred on June 13, 2010. The notice given on October 27,
    2010 was well beyond the ten day period and clearly out of time. The motion
    judge properly rejected the submission that the plaintiff could assert an
    over-arching tort falling within s. 5(1)(a) when the claim was clearly in
    respect of a breach of the duties attaching to the ownership [etc.] of
    property. As this court observed in
Latta v. Ontario
(2002), 62 O.R.
    (3d) 7, at para. 18, the purpose of s. 5(1)(c) and s. 7(3) was to target
    occupiers liability with a special and strict notice requirement. That
    purpose would not be achieved by the interpretation proposed by the appellant.

[4]

Similarly, the motion judge properly rejected the submission that
    because part of the launch ramp was under the surface of the water it was not
    within the scope of s. 5(1)(c). The statement of claim pleads that the
    respondent had control over the facilities at the park and was responsible for
    the maintenance of the launch.

[5]

We did not consider it necessary to call on the respondent with respect
    to the appellants submission that strict compliance with s. 7(3) of
PACA
was not required in the circumstances of this case, including the absence of
    demonstrated prejudice to the respondent. This is not a case like
Leone v.
    University of Toronto Outing Club
, 151 A.C.W.S. (3d) 1170, [2006] O.J. No.
    4131 (S.C.), where the injuries prevented the appellant giving notice. In this
    case, the appellant suffered an injury and he knew who was responsible. He
    simply thought the injury was not as severe or as permanent as it ultimately
    proved to be.

[6]

Nor is this a case in which notice was imperfect but sufficient to put
    the respondent on notice that a claim could reasonably be anticipated.
Coulter
    v. Ontario (M.N.R.)
, 2014 ONSC 1573, 119 O.R. (3d) 571, cited by the
    appellant, is distinguishable, because there was evidence on which a court
    might conclude that the defendant had sufficient notice of the incident to
    satisfy the statutory requirement, notwithstanding the absence of formal notice.
    In this case, the respondent had no notice of any kind until more than four
    months after the injury.

[7]

The appellant would have the court import into
PACA
a relieving
    provision similar to s. 44(12) of the
Municipal Act 2001
, S.O. 2001,
    c. 25 (see the discussion of this provision in
Coulter
and
Crinson
    v. Toronto (City)
, 2010 ONCA 44, 100 O.R. (3d) 366)
.
We reject
    this submission.

If the legislature intended a flexible approach to be
    taken to the notice period under
PACA
, it would have been simple to add
    a similar relieving provision.

[8]

We did call on the respondent to address the appellants submission that
    the motion judge erred in not granting leave to amend the claim to plead breach
    of contract. This proposed reframing of his claim in contract would have
    avoided the s. 7(3)
PACA
notice requirement and was premised on the
    allegation that he had paid a fee to use the boat launch. There was no motion
    for leave to amend before the summary judgment motion judge, who appears to
    have raised the issue of amendment on his own motion.

[9]

The motion judge found that the statement of claim, framed in tort, did
    not plead facts sufficient to disclose a cause of action in contract and that
    it neither related to nor flowed naturally from the tort cause of action
    pleaded.

[10]

We agree. The statement of claim was issued on June 13, 2012, on the
    second anniversary of the accident. Reading it generously, there was no
    reference to a contract or to any contractual claim.   The appellants payment
    of a fee to use the boat launch, the key factual premise on which he relies for
    his contractual claim, was not even mentioned.

[11]

The amendment was raised at the respondents summary judgment motion,
    heard on February 28, 2014  more than three and a half years after that cause
    of action arose. The motion judge properly refused the amendment as the claim
    was time-barred:
Limitations Act
,
2002
, S.O. 2002, c. 24,
    Sch. B, s. 4.

[12]

The appellants argument about there being no prejudice to the
    respondent must be rejected. It presupposes that the basic limitation period
    under the
Limitations Act
may be excused in special circumstances
    where there is no prejudice. This suggestion was rejected by this court in
Joseph
    v. Paramount Canadas Wonderland
, 2008 ONCA 469, 90 O.R. (3d) 401.

[13]

The appeal is therefore dismissed. Costs, if requested, may be addressed
    by written submissions.

G.R. Strathy C.J.O.

K. Feldman J.A.

P. Lauwers J.A.

Released: November 06, 2014