COURT OF APPEAL FOR ONTARIO

CITATION: Spirleanu v. Transglobe Property Management Service
    Ltd., 2015 ONCA 187

DATE: 20150318

DOCKET: C59261

Cronk, Gillese and Brown JJ.A.

BETWEEN

Ilie Spirleanu

Appellant

and

Transglobe Property Management Service Ltd.

Respondent

Ilie Spirleanu, acting in person

Martin P. Zarnett, for the respondent

Heard: March 13, 2015

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated August 1, 2014.

ENDORSEMENT

[1]

The appellant, Ilie Spirleanu, appeals from the order of the Pollak J.
    dated August 1, 2014, which granted summary judgment dismissing his action
    against the defendant, Transglobe Property Management Services Ltd., and
    awarded costs of $5,100 in favor of Transglobe.

[2]

Mr. Spirleanu moves for leave to file fresh evidence on this appeal.
    The materials he seeks leave to file consist of three sets of documents: (i)
    the Landlord and Tenant Board file for application TNL-21855, (ii) the file of
    the Sheriffs Office dealing with the eviction of Mr. Spirleanu from his
    residential unit in October, 2010, pursuant to the eviction order granted by
    the Landlord and Tenant Board, and (iii) miscellaneous correspondence and photographs.
    Those materials do not meet the criteria for the admission of fresh evidence
    set out in
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775.
    Specifically, all of the materials were available to Mr. Spirleanu to file as
    part of his responding materials before the judge on the summary judgment
    motion.  Consequently, we do not grant his motion for leave to file fresh
    evidence.

[3]

Turning to the merits of the appeal, we see no error in the order of the
    motion judge.

[4]

Mr. Spirleanus statement of claim alleged that Transglobe had
    unlawfully evicted him from residential rental premises on October 15, 2010.
    The eviction had been made pursuant to a May 5, 2009 order of the Landlord and
    Tenant Board, an appeal from which had been dismissed by the Divisional Court for
    failure to perfect in time.  The Divisional Court also dismissed the motion by
    Mr. Spirleanu for leave to extend the time to perfect his appeal and for an
    order for re-entry into the premises.

[5]

On September 7, 2012, Mr. Spirleanu commenced an action in the Small
    Claims Court against Transglobe seeking virtually the same relief as that
    sought in this action. The Small Claims Court dismissed his claim against
    Transglobe on November 29, 2013.

[6]

Accordingly, the present action was an attempt by Mr. Spirleanu to
    re-litigate issues previously decided against him by the Landlord and Tenant
    Board, Divisional Court and Small Claims Court.  As well, the allegations of
    Mr. Spirleanu solely concerned his residential tenancy agreement with
    Transglobe and the disposition of his possessions in the unit following his
    eviction.  As such, the motion judge was correct in concluding that their
    adjudication lay within the exclusive jurisdiction of the Landlord and Tenant
    Board.

[7]

While Mr. Spirleanu argues that the motion judge did not consider his
    evidence, we do not agree.  The motion judge applied to the evidence the legal
    principles the law required her to consider.  We see no unfairness in the
    hearing conducted by the motion judge.

[8]

The motion judge did not err in granting Transglobe summary judgment
    dismissing Mr. Spirleanus action.  We therefore dismiss Mr. Spirleanus appeal
    and order him to pay Transglobe its costs of the appeal fixed in the amount of
    $1,000, inclusive of disbursements and H.S.T.

E.A.
    Cronk J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Swain v. Gorman, 2015 ONCA 194

DATE: 20150324

DOCKET: C59353

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Mary Swain

Plaintiff

(Appellant)

and

Sherry Gorman, Estate of Clifford Ross, by the
    estate trustee Shirley Ross, and Shirley Ross, personally

Defendants

(Respondents)

Andrew Kerr, for the appellant Mary Swain

Joanne R. Witt and R. Boucher, for the respondent Ross

Chris G. Paliare and Tina H. Lie, for the respondent
    Sherry Gorman

Heard and released orally:  March 2, 2015

On appeal from the order of Justice Susan E. Healey of
    the Superior Court of Justice, dated August 13, 2014.

ENDORSEMENT

[1]

In this summary judgment motion concerning the defendant's liability in
    a multi-vehicle motor vehicle action, the motion judge exercised her powers
    under r. 20.04. She relied on the evidence of the appellant and another
    witness, as well as on the accident report, in concluding that the respondent
    was not liable for the accident.

[2]

The fact that, somewhat unusually, the respondent's own evidence about
    her position in the accident queue was not accepted by the motion judge, was
    fully explained by her on the basis that it was inconsistent with the other
    evidence, and particularly with the complete absence of damage to the front of
    the respondent's car. The appellant has shown no palpable and overriding error
    or any legal error. The appeal is dismissed.

[3]

The appellant seeks leave to appeal the award of costs on the basis that
    the motion judge did not consider whether it was appropriate to pass the costs
    of the motion along to the respondent Ross. This was not raised in argument
    before the motion judge and we decline to address it.

[4]

The costs of the appeal are payable by the appellant to the respondent
    Sherry Gorman in the amount of $9,000 and to respondent Ross in amount of $4,500.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Taylor v. Ontario Securities Commission, 2015 ONCA 143

DATE: 20150304

DOCKET: M43982

Juriansz, Epstein and Pepall JJ.A.

BETWEEN

Lewis
    Taylor, Sr., Lewis Taylor, Jr., Colin Taylor, 1248136

Ontario Limited, and Jared
    Taylor

Applicants (Appellants on Appeal)

and

Ontario Securities Commission

Respondent (Respondent on Appeal)

Melvyn L. Solmon, for the moving parties, the lenders

Lewis Taylor, Sr., Lewis Taylor, Jr., Colin Taylor,
    1248136 Ontario Limited, and Jared Taylor, acting in person

Matthew Britton and Jonathon Feasby, for the respondent,
    the Ontario Securities Commission

Heard in writing

ENDORSEMENT

[1]

This is a rare motion to reopen a motion for leave to appeal that was
    dismissed on April 16, 2014. The matter has been delayed because, regrettably,
    the motion material was misfiled by the court office.

[2]

In the initial motion for leave to appeal, the appellants sought to
    appeal the Divisional Court's dismissal of their appeal from findings made
    against them by the Ontario Securities Commission (the "OSC"). The OSC found
    that the appellants traded in securities without the proper registration.
    Specifically, the appellants had sought to characterize the sale of securities
    as loans. The OSC ordered disgorgement of the proceeds by the appellants.

[3]

The moving parties on the motion to reopen are approximately 175 of the
    223 individuals (the "lenders") who are promisees under promissory notes provided
    by the appellants. The lenders were not provided with notice of the appellants'
    motion for leave to appeal, and they bring the motion to reopen on the basis
    that they have the right to be heard on the appropriateness of the disgorgement
    remedy granted by the OSC. Though, customarily, the court does not provide
    reasons on motions for leave to appeal from the Divisional Court, we provide
    these brief reasons because the lenders did not participate in the motion for
    leave.

[4]

The lenders are not "affected" by the order dismissing the appellants'
    motion for leave as required by rule 27.14. That order did not create a right
    or obligation on their part. The lenders suffered losses at the hands of the
    appellants, but the OSC proceedings were not civil proceedings designed to
    compensate them directly. The issues the lenders seek to raise would not be
    relevant on the appellants' motion for leave.

[5]

We note that the proceedings had been ongoing for many years and that
    many of the moving parties were well aware of the proceedings, even if they
    were not formally served with notice. They did not seek to participate before
    the Divisional Court, and we doubt they would have had standing before the OSC.

[6]

The motion to reopen the motion for leave is dismissed with costs in favour
    of the OSC fixed in the amount of $1500 all-inclusive.

"R.G.
    Juriansz J.A."

"Gloria
    Epstein J.A."

"S.E.
    Pepall J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Thompson v. Sun Life Assurance Company of Canada, 2015
    ONCA 162

DATE: 20150312

DOCKET: C59477

Cronk, Gillese and Brown JJ.A.

BETWEEN

Patricia Thompson

Appellant

and

Sun Life Assurance Company of Canada

Respondent

Andrew R. Kerr, for the appellant

Dina Konduros, for the respondent

Heard: March 10, 2015

On appeal from the judgment of Justice David Salmers of
    the Superior Court of Justice, dated September 9, 2014.

ENDORSEMENT

[1]

The appellant, Patricia Thompson, appeals from the judgment of D. Salmers
    J. dated September 9, 2014 which granted summary judgment dismissing her
    action. The only evidence on the summary judgment motion was that filed by the
    respondent, Sun Life Assurance Company of Canada (Sun Life); Ms. Thompson did
    not file any evidence.

[2]

Ms. Thompson was employed by Casino Rama Services Inc. (Casino Rama)
    from June, 1996 until September 19, 2008.  Sun Life had issued a group policy
    of insurance to Casino Rama (the Policy) which was in force during that
    period of time, and Ms. Thompson was an eligible employee of Casino Rama for
    the purposes of long-term disability benefits under the Policy.

[3]

Casino Rama terminated Ms. Thompsons employment on September 19, 2008.
    Ms. Thompson commenced her action on September 17, 2010.  In her statement of
    claim, Ms. Thompson claims payment of long-term disability benefits from
    September 20, 2008, for the duration of her disability.

[4]

Prior to issuing her statement of claim, Ms. Thompson had not submitted
    any proof of claim under the Policy seeking disability benefits.

[5]

The primary ground of appeal advanced by Ms. Thompson is that the motion
    judge erred in concluding that her action was barred by reason of a contractual
    one-year limitation provision contained in the Policy.  We agree that the
    motion judge erred in reaching that conclusion.

[6]

The January 1, 2006, Group Benefits Handbook for the Policy described
    the limitation period for long-term disability benefit claims as follows: No
    legal action may be brought by you more than one year after the date we must
    receive your claim forms or more than one year after we stop paying Long-Term
    Disability benefits.

[7]

In his reasons, the motion judge simply wrote in respect of this issue:
    The plaintiffs claim in this action is barred by the contractual one-year
    limitation provision of the policy.  The reasons of the motion judge do not
    explain how he reached that conclusion.  Section 22 of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sched. B, permits the variation of the general
    two-year limitation period set out in s. 4 in two circumstances.  First, s.
    22(2) provides that a limitation period under the Act may be varied or excluded
    by an agreement made before January 1, 2004.  Second, s. 22(5) provides that
    the s. 4 limitation period may be varied or excluded by a business agreement
    made on or after October 19, 2006.

[8]

The motion judge made no finding whether the Policy was made before
    January 1, 2004.  Nor did the motion judge make any finding as to whether the
    Policy was a business agreement within the meaning of s. 22(5) of the Act.
    In the absence of such findings, the conclusion by the motion judge that Ms.
    Thompsons action was barred by the contractual one-year limitation provision
    of the Policy is not supportable.

[9]

Moreover, in light of this courts decision in
Kassburg v. Sun Life
    Assurance Company of Canada
, 2014 ONCA 922, which was released after the
    motion judge had granted summary judgment in this case, there is strong reason
    to doubt that the Policy would fall within the business agreement exception
    contained in s. 22(5) of the Act.

[10]

Notwithstanding
    that the motion judge erred in dismissing Ms. Thompsons action on the basis of
    the contractual limitation period, other findings he made supported the
    actions dismissal.

[11]

First,
    the motion judge held that Ms. Thompson had not met qualifying conditions of
    the Policy, stating:

Under the policy, the plaintiffs coverage for disability
    benefits ended when her employment terminated on September 19, 2008.  The
    plaintiff made no claim while she was an employee.  The plaintiff did not make
    a claim for benefits within the 60 day period after disability that is required
    pursuant to the policy.

[12]

These
    conclusions were based upon the uncontroverted evidence filed by Sun Life, and
    there is no reason to interfere with them.

[13]

Second,
    the motion judge also concluded that Ms. Thompsons action was barred by the
    statutory two-year limitation period in s. 4 of the Act.  In para. 7 of her
    statement of claim, Ms. Thompson had pleaded:

In August of 2008, while the aforesaid policy was in full force
    and effect, the Plaintiffbecame totally disabled from her employment as a
    result of severe pain in her foot, leg, hip, groin and back.

[14]

The
    pleading thus indicates that Ms. Thompson discovered her total disability in
    August, 2008. However, she did not commence this action until more than two
    years later, on September 17, 2010, making her action statute-barred.

[15]

We
    see no error in these additional reasons given by the motion judge for
    dismissing Ms. Thompsons action. Indeed, we agree with them.

[16]

The
    appeal, therefore, is dismissed.  Sun Life is entitled to its costs of the
    appeal, fixed in the sum of $2,700, inclusive of disbursements and HST.

E.A.
    Cronk J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Warshafsky v. Gasner, 2015 ONCA 174

DATE: 20150316

DOCKET: C59507

Cronk, Gillese and Brown JJ.A.

BETWEEN

Max Warshafsky (by his
    litigation guardian Steven Warsh)

Applicant (Appellant)

and

Cynthia Gasner

Respondent (Respondent)

William Friedman and Mark Russell, for the appellant

Avra Rosen and Kelly Eckert, for the respondent

Heard: March 9, 2015

On appeal from the order of Justice Victor Paisley of the
    Superior Court of Justice, dated September 23, 2014.

By the Court:

[1]

Max Warshafsky and Cynthia Gasner were married in 1999, when they were
    67 and 68, respectively. It was a second marriage for both.  Each had four
    adult children from their previous marriages.

[2]

Mr. Warshafsky and Ms. Gasner entered into a marriage contract after
    full financial disclosure and with the benefit of independent legal advice.
    The purpose of the marriage contract was to ensure that each remained
    financially independent so that they could pass their individual property on to
    their respective children.  Thus, for example, the marriage contract provided
    that there would be no equalization of net family property and no spousal
    support.

[3]

The marriage contract also provided that each would pay for his or her
    own nursing and health care expenses.  Article 21.3 of the marriage contract provided
    that:

[I]n the case of either party becoming incompetent or requiring
    nursing carethe other shall be at liberty to retain appropriate nursing care
    at the expense of the party requiring such care.  The parties agree that the
    joint account shall not be utilized for the purposes of providing nursing care.

[4]

Mr. Warshafsky had been ill and was admitted to hospital in September
    2011, after which he was transferred to a rehabilitation hospital.  For the
    seven years leading to his hospitalization, Ms. Gasner had cared for Mr.
    Warshafsky in their home.

[5]

When Mr. Warshafskys health improved somewhat, he wanted to return
    home.  Ms. Gasner indicated that because of her own advanced age and the frail
    state of her health, she could not properly care for him in their home.  She
    was 80 at that time.

[6]

Mr. Warshafsky then lived in extended care facilities until his death on
    July 1, 2014.

[7]

In May 2012, Ms. Gasner informed Mr. Warshafsky that she wished to
    separate from him.  They were divorced on April 15, 2014.

[8]

In May 2013, Mr. Warshafsky was found not competent to make decisions
    regarding his medical and personal care.

[9]

In August 2013, Mr. Warshafsky, through his litigation guardian, Steven
    Warsh, brought a claim against Ms. Gasner flowing from her allegedly unlawful
    refusal to allow him to return to the matrimonial home.  Steven Warsh is one of
    Mr. Warshafskys children.  The claim was later continued on behalf of Mr.
    Warshafskys estate.  For ease of reference, the applicant (appellant) is
    referred to as the estate.

[10]

In
    its claim, the estate sought to have the marriage contract set aside.  It asked
    for damages for occupation rent due to Mr. Warshafskys loss of possession of
    the matrimonial home.  The estate quantified those damages as the costs of Mr.
    Warshafskys nursing care and medical expenses.

[11]

Ms.
    Gasner moved for summary judgment.

[12]

The
    motion judge granted summary judgment in favour of Ms. Gasner.  In dismissing
    the estates claim, the motion judge found that the evidence did not show that
    Ms. Gasner refused to allow Mr. Warshafsky to return to the matrimonial home.
    He stated that there was no evidence that Mr. Warshafsky was prevented from
    returning home and, thus, there was no genuine issue requiring a trial.

[13]

Prior
    to the motion, Ms. Gasner served the estate with an offer to settle, which the
    estate declined.  The motion judge found that the offer to settle complied with
    rule 18(14) of the
Family Law Rules
, O. Reg. 114/99, and awarded her
    substantial indemnity costs, fixed at $45,000.

[14]

The
    estate appeals.

THE ISSUE

[15]

The
    estates primary submission on appeal is that the motion judge erred in finding
    that there was no genuine issue requiring a trial on the question of whether
    Ms. Gasner improperly barred Mr. Warshafsky from the matrimonial home.

[16]

In
    its factum, the estate also sought leave to appeal the costs award.

ANALYSIS

[17]

We
    see no error in the decisions below.

[18]

When
    the motion judge said that there was no evidence that Mr. Warshafsky was
    prevented from returning home, we understand him to mean that there was no
    evidence that Ms. Gasner had refused to allow him to reside in the matrimonial
    home.  On the record, that finding was amply justified.

[19]

Ms.
    Gasner did not refuse to allow Mr. Warshafsky to return home.  She simply
    indicated that after December 2011, her own frail health and advanced age meant
    that she could not properly meet Mr. Warshafskys health needs in their home.
    This evidence was accepted by the motion judge and confirmed by evidence about
    a family meeting, held in December 2011 at the rehabilitation hospital,
    regarding Mr. Warshafskys medical issues, care, and needs.

[20]

Mr.
    Warshafsky and his children, with the exception of Mr. Warsh, and Ms. Gasner
    and her children, were at the family meeting, along with staff from the
    rehabilitation hospital.  The staff members advised that Mr. Warshafsky could
    not return to reside at the matrimonial home.  Everyone at the meeting
    concurred and Mr. Warshafskys children then made the arrangements for him to
    move into the first extended care facility.

[21]

In
    this regard, we note that as Mr. Warsh did not attend the meeting, his
    affidavit evidence about it is speculative.

[22]

A
    further family meeting was held on April 25, 2012.  A memorandum of that
    meeting was prepared by Naomi Warshafsky. At the meeting, Mr. Warshafskys
    children agreed that he required long-term care and that Ms. Gasner was unable
    to provide it due to her own health issues.  Paragraphs 2 and 3 of the
    memorandum reflect this.  They read as follows:

2. The Warshafskys expressed gratitude and appreciation to
    Cynthia for her years of commitment, devotion and care to their father Max.
    Their concern is to determine the best place for Max to reside.  It was also
    stated that they hope to find a way to alleviate the stress and impact this
    situation has on Cynthia so as to allow Max and Cynthia to continue to enjoy
    their time together.

3.  It was determined that due to recent health concerns of her
    own, Cynthia is not in a position to agree to Max returning home at this point
    in time.

[23]

It
    is also worthy of note that on the record before this court, neither Mr.
    Warshafsky nor his children ever made a request to Ms. Gasner, with an
    appropriate plan of care for Mr. Warshafskys health needs, that Mr. Warshafsky
    return to the matrimonial home.

[24]

Further
    and in any event, the claim for reimbursement of medical and nursing expenses
    is barred by art. 21.3 of the marriage contract, set out above.

[25]

We
    conclude on this issue by responding to the estates suggestion that the motion
    judge required Mr. Warshafsky to have attempted to force entry into the
    matrimonial home or, at least, to have threatened forced entry in order to
    succeed in his claim for ousted possession.  We do not read the motion judges
    reasons in that way and would expressly state that no such requirement exists.

[26]

This
    reasoning is dispositive of the appeal.  Accordingly, we find it unnecessary to
    address the other grounds of appeal raised in the estates factum.

[27]

Although
    the estate did not pursue its costs appeal at the oral hearing of the appeal,
    we would simply add that we see no basis on which to grant leave to appeal that
    award.  In any event, we see no error in the motion judges finding that Ms.
    Gasners offer to settle complied with the rules and entitled her to costs on a
    substantial indemnity basis.  Nor do we accept that the motion judge erred in
    his determination of the quantum of costs.

DISPOSITION

[28]

Accordingly,
    the appeal is dismissed and leave to appeal the costs award is refused.  Costs are
    ordered in favour of the respondent fixed at $12,500, all inclusive.

Released: March 16, 2015 (E.A.C.)

E.A. Cronk J.A.

E.E. Gillese J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: West v. Ontario, 2015 ONCA 147

DATE: 20150305

DOCKET: C59360

Laskin, Rouleau and Huscroft JJ.A.

BETWEEN

Paula West

Plaintiff (Appellant)

and

Her Majesty the Queen
    in right of Ontario

Defendant (Respondent)

M. Olanyi Parsons, for the appellant

Christopher Thompson, for the respondent

Heard and released orally: February 27, 2015

On appeal from the order of Justice David Aston of the Superior
    Court of Justice, dated August 15, 2014.

ENDORSEMENT

[1]

The motion judge struck the plaintiffs claims for malicious prosecution
    and negligent investigation on the ground they were commenced beyond the two
    year limitation period in the
Limitations Act
. But the motion judge
    permitted the plaintiff to amend her statement of claim to pursue her
    allegation that the defendant has infringed her privacy rights by mishandling
    her personal information  her fingerprints and photographs.

[2]

The plaintiff appeals the dismissal of her claim for negligent
    investigation. Ordinarily the cause of action for that claim would accrue when
    the plaintiff was acquitted on December 2, 2011. Thus, when she commenced her
    claim in February 2014 she was out of time. The plaintiff however, contends
    that the negligent investigation claim and the breach of privacy claim are
    interconnected and at least on a Rule 21 motion the negligent investigation
    claim should not be dismissed.

[3]

We do not accept this contention. The two claims protect different legal
    interests. The tort of negligent investigation protects accused who are
    improperly charged, convicted or imprisoned because of a negligent
    investigation. This tort is therefore distinct from the plaintiffs breach of
    privacy claim.

[4]

Finally we see no error in the motion judges costs award. Accordingly,
    the plaintiffs appeal is dismissed. Costs are payable to the defendant in the
    amount of $5,000 inclusive of disbursements and applicable taxes.

John
    Laskin J.A.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.