COURT OF APPEAL FOR ONTARIO

CITATION: Tibbett & Britten Group Canada Inc. v. Sobeys
    Inc., 2016 ONCA 861

DATE: 20161116

DOCKET: C 61918

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Tibbett & Britten Group Canada Inc.

Respondent

(Applicant)

and

Sobeys Inc.

Appellant

(Respondent)

Jennifer McAleer, for the appellant

Peter Griffin and Kelly Hayden, for the respondent

Heard: November 1, 2016

On appeal from the order/judgment of Justice H.J. Wilton-Siegel
    of the Superior Court of Justice, dated March 1, 2016.

ENDORSEMENT

[1]

This appeal arises out of a dispute over whether Sobeys is contractually
    obligated to fund the deficit in an employee pension plan following the wind-up
    of that plan.

[2]

The wind-up was triggered when agreements for which Sobeys and Tibbet
    & Britten Group Canada Inc. are now responsible were terminated. Those
    agreements provided for the sale of certain warehouse assets by Sobeys
    predecessor to Tibbetts predecessor, and a corresponding agreement by
    Tibbetts predecessor to provide transportation services from those warehouses.

[3]

Justice Wilton-Siegel held that Sobeys was obliged by its contractual
    relations to fund the pension deficit directly. Sobeys contests that decision
    and appeals.

[4]

For the following reasons, we dismiss the appeal.

Factual Background

[5]

The complex facts are detailed in the application judges thorough
    reasons. We need not repeat them all here, but touch on the following for the
    purposes of this endorsement.

[6]

In an asset sale transaction in January 1995, a company known as Oshawa
    Foods (Sobeys predecessor) sold its warehousing and distribution assets in two
    of its warehouses to a company known as Surelink (Tibbetts  predecessor). In a
    parallel warehouse and transportation service transaction at the same time,
    Surelink agreed to provide warehousing and transportation services to Oshawa in
    connection with that companys food distribution business.  Under the
    warehousing and transportation agreement (the WTA) Surelink assumed
    responsibility for the former employees of Oshawa who were working in the
    warehouses, including responsibility for the benefits under the existing
    Pension Plan. The extent to which those obligations reverted to Sobeys (as Oshawas
    successor) on termination of the agreement is what was contested on the
    application.

[7]

Following its acquisition of Oshawa in 1999, Sobeys terminated the
    agreements  for reasons open to it under the agreements  and resumed its own
    warehousing and transportation functions. As a result, all of the positions of
    the Surelink employees at the two warehouses were terminated, thereby
    triggering a wind-up of the Plan effective March 5, 2000. Surelink took certain
    steps to further the winding-up process, with the assistance of the Plans
    actuaries, Aon Consulting, and in conjunction with the Financial Services
    Commission of Ontario (FSCO) under the
Pension Benefits Act
, R.S.O.
    1990, c. P.8 (the PBA).

[8]

Tibbetts position (as Surelinks successor) is that by June 2001, Sobeys
    had undertaken by agreement to take over both the administration of the Plan
and
the obligation to fund the deficit in the Plan
    directly. Tibbett submits that Sobeys assumption of the administration of and
    responsibility for the Plan continued with little or no further involvement of
    Tibbett and with the direct involvement of Aon until April 2013, when Tibbett
    says it first learned that Sobeys was refusing to comply with its contractual
    obligation to fund the Plan deficit.

[9]

The application judge held that:

(i)

the termination provisions of
    the WTA required Sobeys to reimburse Tibbett for the amount required to fund
    the deficit that arose on the wind-up of the Plan; and that,

(ii)

Sobeys and Tibbett had reached
    an agreement pursuant to which Sobeys agreed to be responsible for directly funding
    the Plan deficit.

[10]

Sobeys does not contest that it is obliged to reimburse Tibbett for the
reasonable
costs incurred in funding the Plan deficit. It submits, however, that this
    obligation does not render it liable to reimburse Tibbett for the entirety of
    the present Plan deficit (this ties in with an argument that Tibbett is
    responsible for some contributory fault in contract).

[11]

The application judge found the reimbursement obligation to arise by virtue
    of the termination provisions in the WTA which called for the parties to settle
    their financial obligations within 30 days of termination, including the
    settlement of Employee Termination Payments which embraced as well the
    pension obligations relating to the terminated Surelink (Tibbett) employees at
    the two warehouses. Section 9.12(c)(i) of the WTA addressed the settlement of
    those payments:

[Sobeys] shall reimburse Surelink for all other reasonable
    costs and expenses suffered or incurred by Surelink in connection with the
    expiration or termination of this agreement, including without limitation all
    Employee Termination Payments.

[12]

Employee Termination Payments were defined in Schedule A to the WTA to
    include pension benefits:

Employee Termination Payments shall include any and all
    reasonable payments required to be made by Surelink to any pension or other
    employment benefit plans  in respect of Surelink Employees or former Surelink
    Employees

[13]

The application judge found that his interpretation of the foregoing
    provisions, holding Sobeys responsible to reimburse Tibbett for the amounts
    required to fund the Plan deficit, was supported by the business context in
    which the asset sale and the WTA arrangements had been made and by the
    post-contractual conduct of the parties. As noted above, Sobeys does not
    contest its obligation to reimburse under the WTA but does contest the extent
    of that obligation.

[14]

Sobeys vigorously attacks the application judges finding that it agreed
    to assume responsibility for directly funding the Plan deficit, however.

Discussion

[15]

On the appeal, Ms. McAleer advanced four primary arguments. In her
    submission, the application judge erred in finding or holding that:

(i)

the parties had entered into a
    new agreement in or around August, 2001, whereby Sobeys would assume
    responsibility for the administration of the Plan and for directly funding the
    Plan deficit;

(ii)

Sobeys contractual obligation
    to fund the reasonable costs of employee termination rendered it responsible
    for the entirety of the present Plan deficit;

(iii)

the doctrine of contributory
    fault in contract did not apply; and in any event, that,

(iv)

Tibbetts claim, either under
    the WTA or pursuant to any new agreement, was not statute barred under the
Limitations
    Act, 2002
, S.O. 2002, c. 24 Sch. B.

[16]

We reject these submissions, essentially for the thorough and careful
    reasons provided by the application judge, with which we agree.

[17]

During the application the parties acknowledged that the documentary and
    evidentiary foundation for the application did not fully tell the story. It is
    accepted that there may have been documents created during the termination and
    post-termination period that could not be located. Entities had changed at
    Sobeys and Tibbett/Surelink, and at Aon, and personnel had come and gone. The
    parties gathered and put forth the evidence they could and the application
    judge was required to make his findings and draw inferences of fact on the
    basis of the record before him.

[18]

In doing so, he conducted a comprehensive review of both the available
    documentary evidence and affidavit testimony, and he based his analysis and
    conclusions regarding the issues on the application on the results of that
    exercise.

[19]

As noted above, his interpretation of the provisions of the WTA
    grounding Sobeys liability to reimburse Tibbett for the costs of funding the
    Plan deficit were buttressed by his appraisal of the business context in which
    the asset sale and the WTA  and the termination of these agreements  took
    place, and on his consideration of the post-termination conduct of the parties.
    His interpretation of the WTA and his finding that Sobeys and Tibbett had
    entered into a new agreement with respect to the funding of the Plan in
    conjunction with the settlement of their financial affairs after termination,
    were based on a detailed examination of the record before him, including the
    foregoing.

[20]

We see no palpable and overriding error in his findings of fact or of
    mixed fact and law. They were all open to him on the record.

The New Agreement and
    the Requirement for Written Amendments

[21]

We do not agree that the application judge erred in finding the parties
    entered into a further agreement  following the performance of their
    obligations upon termination of the WTA  that pertained to the ongoing
    administration of the Plan, including the wind-up of the Plan and the Plan
    deficit. This finding is consistent with his earlier determination that there
    had been a financial closing of all matters pertaining to the termination of
    the WTA in or about August, 2001, and that this closing incorporated matters
    relating to the funding of the Plan and the Plan deficit as at that time.

[22]

This analysis is supported, as the application judge found, by
    documentation created at the time of the financial closing, most notably: (a)
    the July 2001 Reconciliation setting out the balance sheet treatment of the
    closing out of the financial relations (which contained an entry CO [Company]
    Portion of pension clearing: $547,449.22); (b) a Credit Note from Surelink to
    Sobeys (reflecting the transfer of that amount from Surelink to Sobeys; and (c)
    an internal Sobeys email exchange confirming the transfer. The application
    judge concluded that the $547,449.22 represented the return to Sobeys of money
    paid to Surelink for which Surelink accrued, but did not pay, a liability and
    that the crediting of those amounts to Sobeys was associated with a
    quantification of the Plans funding requirements and the expenses of the Plan
    wind-up as at that time.

[23]

This finding was amply supported on the record, not only by the
    foregoing documentation but also by the fact that Sobeys thereafter accrued a
    liability on its books for the pension deficit, until it decided  without
    communicating that decision to anyone apparently  that it was not responsible
    to fund the deficit directly and reversed the entry in February 2009. In
    addition, the application judge found validation for his finding in business
    logic (it was to Sobeys advantage to take direct responsibility and thereby be
    able to control the outcome, particularly since a number of the warehouse
    employees had returned to Sobeys); in the fact that Sobeys exercised all
    control over the Plan investments post-2001; and in the fact that Aon accepted
    and acted upon Sobeys instructions only thereafter, with no subsequent
    correspondence or conduct between Aon and Tibbett/Surelink or between Sobeys
    and Tibbett/Surelink on the subject.

[24]

All of this provided the basis for the application judges determination
    that the parties had finalised all matters relating to the WTA, including
    matters pertaining to the wind-up expenses and the funding of the Plan deficit
    to that point in time as of August, 2001, and had terminated that agreement and
    entered into a further one respecting the ongoing administration of the Plan
    and the finalization of the wind-up and the deficit.

[25]

It follows from this as well that the application judge did not err in
    determining that the provision in the WTA requiring any modification or
    amendment of the WTA to be by an agreement in writing was not engaged.  There
    was no modification or amendment of the WTA. The parties entered into a new
    agreement.

[26]

While it may be that the application judges statement in the
    penultimate paragraph of his reasons  that Tibbett is entitled to a
    declaration under section 9.12 of the WTA  is confusing, it is clear from the
    wording of his order itself that the declaratory relief granted is based both
    on s. 9.12 and the new agreement.  The Order provides for a declaration that
    Sobeys is to pay the Plan deficit to the Plan. The Order does not provide for
    Sobeys to reimburse Tibbett for the amount of the deficit, which is what would
    have been consistent with the language of section 9.12(c)(i) itself.

The Limitation Period
    Argument

[27]

Sobeys submits that Tibbetts claim is barred by the two-year limitation
    period provided for in the
Limitations Act
.

[28]

The argument is based on the submission that Tibbett knew or ought
    reasonably to have known that the Plan deficit had not been funded nor the
    wind-up completed within the requisite five-year period, namely by March 5,
    2005 and accordingly that the limitation period began to run at that point. This,
    in turn, is founded on the argument that Tibbett retains the statutory
    obligation to fund and to wind-up the Plan under the PBA, that Tibbett was
    therefore responsible for knowing that the wind-up and funding were not
    completed by March 2005, and that accordingly Tibbett must reasonably have
    known that these matters were still outstanding because Sobeys had not
    performed its contractual obligations and had disavowed them at least as early
    as 2009.

[29]

There are a number of difficulties with this position, as the application
    judge noted.

[30]

First, Tibbetts statutory obligations with respect to the Plan under
    the PBA were not the issue on the application (the application judge found, and
    Tibbett does not contest, that it remains subject to those obligations). What
    was at issue was the nature of the contractual obligations as between Sobeys
    and Tibbett whereby Sobeys undertook to fulfill those obligations. In the
    absence of some indication to the contrary, Tibbett was entitled to assume that
    Sobeys was doing so and we see no error in the application judges conclusion
    that, in these circumstances, Sobeys was not entitled in law to convert
    Tibbetts statutory obligation into a
de facto
contractual duty to
    Sobeys to ensure that Sobeys complied with its contractual obligations,
    particularly in the absence of any notice to Tibbett that something was amiss.

[31]

Secondly, there was no such notice. Sobeys concedes that it did not
    advise Tibbett, or Aon, or FSCO, that the Sobeys Pension Committee had
    determined at a meeting in February 2009 that Sobeys was not responsible for
    the Plan and that Sobeys shortly thereafter reversed its balance sheet
    liability for the Plan deficit. Aon became concerned about the growing size of
    the deficit in 2010, but there was no communication between Sobeys or Aon and
    Tibbett until Aon advised Tibbett in a letter dated April 17, 2013 that there
    remained outstanding issues pertaining to the Plan. The application judge
    accepted this evidence, as he was entitled to do.

[32]

Finally, in a finding relating also to Sobeys contributory fault
    argument, the application judge determined that Tibbett had not failed to act
    with due diligence in connection with its wind-up and deficit-funding
    obligations. That finding was open to him on the record.

[33]

Based on the foregoing, as more fully canvassed in his reasons, the
    application judge found that the limitation period did not begin to run until
    April 17, 2013.  Tibbetts application was therefore timely.

Reasonable Costs and
    Contributory Fault

[34]

Although Sobeys accepts that it is liable to reimburse Tibbett for the reasonable
    costs and expenses in relation to the wind-up and Plan deficit, it submits
    that this responsibility does not extend to reimbursement of the entire amount
    of the present Plan deficit. There appear to be two components to this
    position.

[35]

Sobeys submits, first, that Tibbett/Surelink acted unreasonably and
    without the requisite due diligence in its approach to winding up the Plan and
    dealing with the Plan investments. As a result, the amount sought by Tibbett
    either on a reimbursement or direct funding basis  does not constitute a
    reasonable payment as required under section 9.12(c)(i) of the WTA. Secondly,
    Sobeys submits that the application judge should have found Tibbett/Surelink
    responsible for contributory fault in contract.

[36]

Both of these submissions are essentially factually-based, however, and
    the application judge made a finding, for reasons explained in his decision,
    that Tibbett had acted with due diligence. He was entitled to make this
    determination on the record and we see no basis for interfering with it. The
    reasonable payment and contributory fault ground of appeal cannot succeed.

Disposition

[37]

The appeal is dismissed.

[38]

The respondent is entitled to its costs of the appeal fixed in the
    amount of $22,000 inclusive of disbursements and all applicable taxes.

[39]

We understand that one issue remains to be determined by the application
    judge in terms of the costs of the application, namely whether it is entitled
    to its costs on a full indemnity basis under the WTA. Nothing in this order is
    intended to affect the resolution of that outstanding issue.

R.A. Blair J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: VanEvery v. VanEvery-Albert, 2016 ONCA 817

DATE: 20161103

DOCKET: C61743

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Wayne Clare VanEvery

Appellant/Plaintiff

and

Caroline
    Mary VanEvery-Albert and Seth
    James LeFort

Respondents/Defendants

Mark D. Staats and Brenna Staats, for the appellant

P. Alan R. Giles, for the respondents

Heard and released orally: October 31, 2016

On appeal from the judgment of Justice R. John Harper of
    the Superior Court of Justice, dated July 6, 2015.

ENDORSEMENT

[1]

This appeal centres around the trial judges award of general damages in
    the amount of $100,000 and punitive damages in the amount of $75,000 awarded to
    the respondents in circumstances arising out of the sale of a farm property on
    the Six Nations of the Grand River reserve.  We are all of the view that both
    awards must be set aside.

[2]

The award of punitive damages cannot stand because punitive damages were
    neither pleaded nor sought by respondents counsel in argument at trial and on
    appeal, Mr. Giles fairly acknowledged there was little he could say with
    respect to the punitive damage claim.

[3]

In any event, the trial judges reasons reveal no analysis as to how and
    on what basis he arrived at an amount of $75,000, an amount that, in the
    circumstances, we consider could not be justified.

[4]

It would appear from the trial judges reasons that he awarded general
    damages for harassment and mental distress.  Respectfully, however, he
    mischaracterized the basis for the respondents claim.  No claim for damages
    for harassment or mental distress is pleaded, although in support of their
    claim for an order restraining the appellant from harassing them, the respondents
    relied on allegations that they experienced anxiety and stressors.  The
    respondents gave evidence of experiencing these factors but no expert medical
    evidence was led to support a link between their experiences and the effects
    they claimed.  The trial judge was clearly upset about the appellants conduct
    towards the respondents as he saw it and his damage award appears to reflect
    that view.  Here, respondents counsel sought to support the general damage
    award on the basis of the value of the chattels removed from the farm by the
    appellant.  However, there is no claim for damages for conversion of the
    chattels and, as noted, the trial judges award is based on the appellants
    alleged harassing conduct, not the removal of chattels.  The only pleaded claim
    that might apply is a claim for damages for loss of use and enjoyment of the
    lands and premises in the amount of $40,000, considerably less than the damages
    awarded, but the conduct alleged does not pertain to that type of claim which
    relates to a proprietary interest in title.

[5]

At the end of the day, respectfully, we accept the appellants
    submission that the trial judges reasons do not permit us to conduct an
    effective appellate review in relation to the damage claim.  We do not know how
    or why he arrived at his unfavourable credibility findings against the
    appellant (to the extent that he did) or how and why he arrived at his
    calculation of the amount of damages.

[6]

Accordingly, an order will go setting aside the award of general damages
    and the award of punitive damages.

[7]

The respondents nonetheless achieved considerable success at trial.
    Without accepting the trial judges analysis with respect to costs, we do not
    think that the costs he awarded were unreasonable given the nature and
    complexity of this five day trial.  Accordingly, we do not interfere with his
    order as to costs.

[8]

The appellant is entitled to his costs of the appeal fixed in the amount
    of $10,000 inclusive of disbursements and all applicable taxes.

R.A.
    Blair J.A.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Walchuk v. Houghton, 2016 ONCA 839

DATE: 20161108

DOCKET: C60317

Feldman, Simmons and
    Lauwers JJ.A.

BETWEEN

Mary Walchuk,

Estate trustee for Walter
    Walchuk, deceased

Plaintiff (Respondent in Appeal)

and

Walter Houghton also
    known as Wilfred Houghton

also known as Wilfred
    W. Houghton

also known as Wilfred
    P. Houghton

Defendant

(Appellant)

Michael Jaeger, for the appellant

Andrew Sheremeta, for the respondent

Heard: August 22, 2016

On appeal from the judgment of
    Justice R. John Harper of the Superior Court of Justice, dated March 9, 2015
    with reasons reported at 2015 ONSC 1291.

COSTS ENDORSEMENT

[1]

For the reasons reported at 2016 ONCA 643, this court allowed the appeal
    by the defendant from a procedural ruling by Harper J. , with reasons reported
    at 2015 ONSC 1291, regarding a contempt motion brought by the plaintiff,
    Walchuk. This court ruled the defendants failure to bring documents ordered by
    the motion judge to be brought to the examination could not support a finding
    of contempt, because an examination in aid of execution was a proceeding
    intended to be stayed by operation of s. 69.3 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3. This court ordered $11,500 to the
    appellant which, as a result of previous costs orders, netted to the amount of
    $10,000, all-inclusive to be paid by the respondent to the appellant.

[2]

However, the parties neglected to address the court on the costs of the
    proceeding before the motion judge. The appellant asks the court to deal with
    those, even though the motion judge has not yet made a costs award. The usual,
    though not invariable, practice in this court is to reverse the costs order in
    the court whose decision was successfully appealed.

[3]

The appellant seeks costs in the amount of $20,000 all-inclusive against
    a full indemnity bill including taxes and disbursements totalling about
    $28,000, all related to post-bankruptcy litigation. The appellant also states
    that in June, 2016, he offered to settle all costs below at $35,000 but the
    respondent did not accept the offer.

[4]

We do not agree with the respondent that the motion judge should be
    requested to set costs, since this would only add time and expense. The
    respondent argues that the appellant should not receive any costs, but if costs
    are awarded in relation to the contempt motion, then it should certainly be a
    lot less than the $10,000 he has already been awarded in costs for the entire
    appeal proceeding.

[5]

There is no reason that costs should not follow the event, as in the
    normal course. Given the comparative reasonable time requirements of the
    original motion and the appeal, we set costs of the motion before Harper J. at
    $15,000 all-inclusive, payable by the respondent to the appellant.

K. Feldman
    J.A.

Janet
    Simmons J.A.

P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wilson v. Ontario (Criminal Injuries Compensation
    Board),

2016 ONCA 886

DATE: 20161122

DOCKET: C61977

Strathy C.J.O.; Pardu and Brown JJ.A.

BETWEEN

Lori Wilson

Appellant

and

Criminal Injuries Compensation Board

Respondent

Sonal Gandhi, for the intervener

Heard: November 8, 2016

On appeal from the order of the Divisional Court
    (Justices Sachs, Henderson and Tausendfreund), dated December 21, 2015.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed as abandoned.


COURT OF APPEAL FOR ONTARIO

CITATION: 1615540 Ontario Inc. (Healing Hands Massage
    Therapy) v. Simon, 2016 ONCA 966

DATE: 20161221

DOCKET: C61955

Feldman, Lauwers and Miller JJ.A.

BETWEEN

1615540 Ontario Inc., carrying on business as Healing
    Hands Massage Therapy Clinic

Plaintiff (Appellant)

and

Joy Nicole Simon
and
    Alen M. Katic

Defendants (
Respondent)

AND BETWEEN

Joy Nicole Simon

Plaintiff by counterclaim (Respondent)

and

Healing Hands Massage
    Therapy Clinic
and Asher Mahmood

Defendants by counterclaim (Appellant)

Jeffrey Radnoff and Charles Haworth, for the appellant

Joy Nicole Simon, acting in person

Heard: November 16, 2016

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated March 7 2016, with reasons reported at
    2016 ONSC 1623.

Lauwers J.A.:

[1]

This case is about a bitterly fought business disengagement between the
    respondent, chiropractor Dr. Joy Nicole Simon, and the appellant, 1615540 Ontario
    Inc., carrying on business as Healing Hands Massage Therapy Clinic (Healing
    Hands), the clinic at which the respondent practised as a chiropractor from
    September 2010 until April 19, 2013. In the judgment under appeal, the motion
    judge dismissed Healing Hands action and allowed Dr. Simons counterclaim in
    part, granting her  summary judgment against Healing Hands in the amount of
    $45,664.75 inclusive of costs and interest.

[2]

I would allow the appeal for the following reasons.

A.

The Factual and Procedural Context

[3]

After Dr. Simon abruptly removed her chiropractic practise overnight on
    April 19, 2013, Healing Hands sued her on May 3, 2013, and brought a motion for
    an interlocutory injunction which was heard by the same motion judge who heard
    the summary judgment motions, requiring her to return patient files and
    records, and certain other property she took from the clinic (injunction decision).
    The motion judge made the requested order on May 22, 2013 in accordance with
    the
Personal Health Information Protection Act 2004
, S.O. 2004, c. 3,
    subject to certain terms, for reasons reported at 2013 ONSC 2986.

[4]

The action carried on. Dr. Simon issued a statement of defence and
    counterclaim on September 6, 2013. Following an exchange of affidavits, Dr. Simon
    was cross-examined but the principal of the clinic, Mr. Asher Mahmood, was not.
    Healing Hands moved for summary judgment on its claim and Dr. Simon moved for
    summary judgment on the counterclaim.

B.

The Motion Judges Decision

[5]

In dismissing Healing Hands summary judgment motion and allowing Dr. Simons
    summary judgment motion in part, the motion judge stated, at para. 21:

I am satisfied from the evidence filed on this summary judgment
    motion that the Clinic breached its business arrangement with Dr. Simon and
    because of the breakdown of their relationship, she departed the practice.

[6]

However, the motion judge did not identify what he considered to be
the
actual breach committed by Healing Hands.

[7]

The motion judge awarded damages on the basis noted, at para. 21:

I am satisfied from the evidence that the manner of her
    departure had an adverse impact on her ability to earn an income and that her
    gross billings decreased despite her efforts to sustain her practice.

[8]

The motion judge set out his reasoning on the quantum of damages, at
    paras. 16-20, and 24. However, he did not identify the legal basis on which he
    found Healing Hands liable for damages.

C.

The Issues

[9]

Did the motion judge err in:

(1)

Exercising his authority to decide the motions under r. 20 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194 in the face of conflicting evidence with respect to the business
    arrangement between Healing Hands and Dr. Simon?

(2)

Awarding damages, and in his calculation of the quantum?

(3)

Failing to address Healing Hands motion for summary judgment?

(4)

His award of costs?

I need only to address the first and second issues.

D.

Analysis

[10]

The motion judge gave brief reasons for his findings granting summary
    judgement on the cross-motion and dismissing summary judgment by the appellant.

(1)

What Was the Business Arrangement?

[11]

As noted above, the entirety of the motion judges reasoning about
    Healing Hands breach of its business arrangement with Dr. Simon is set out, at
    para. 21:

I am satisfied from the evidence filed on this summary judgment
    motion that the Clinic breached its business arrangement with Dr. Simon and
    because of the breakdown of their relationship, she departed the practice.

[12]

I infer that the breach relates to Mr. Mahmoods decision to increase
    the clinics share of Dr. Simons billings from 20% to 35%, which the motion
    judge recounted in the injunction decision, at paras. 19-21.

[13]

However, the evidence on this issue was strongly disputed.

Mr. Mahmoods Evidence

[14]

Mr. Mahmood states in his affidavit, on which he was not cross-examined,
    that the arrangement progressed from the rental of space for $80.00 a day paid by
    Dr. Simon to an arrangement under which 20% of her billings would be paid to
    the clinic, with the balance going to her. This arrangement started in the
    spring of 2012. Mr. Mahmood states that given that we were friends, I agreed
    that she could start by paying 20% to the clinic, however, eventually, this
    would have to change to 35%.

[15]

By January of 2013, Mr. Mahmood deposes, the chiropractic practice was
    busier. He had a meeting with Dr. Simon, and advised her she would now have to
    pay 35% of her revenues to the clinic. Mr. Mahmood swears Simon agreed with
    the relationship. Healing Hands implemented the arrangement in January 2013.

[16]

In mid-April 2013, Dr. Simon called Mr. Mahmood in a very agitated
    state complaining about a discrepancy in one of her paycheques. She questioned
    the 35% figure. Mr. Mahmood says: I reminded her that she had agreed to pay
    35%. She then calmed down. Dr. Simon decamped shortly thereafter.

Dr. Simons Evidence

[17]

Dr. Simons evidence is quite different. In her affidavit she takes the
    position that she was to pay 25% of billings to Healing Hands. She admits that
    in January 2013 Mr. Mahmood told her the amount would have to increase from 25%
    to 35%. She says that, I expressly told Mr. Mahmood that I did not agree to
    this increase and no agreement was reached.

[18]

When she picked up her cheque on April 17, 2013, she noticed that the
    amount was lower than expected. She states:

I telephoned Mr. Mahmood to discuss this, at which time he
    advised me that he had deducted 35%, rather than the agreed 25%, from my
    practices gross billings. Moreover, he informed me that he had been deducting
    amounts at the increased rates since January 2013.

[19]

This led Dr. Simon to make her departure from the clinic with patient
    records and clinic property.

[20]

The evidence in the record establishes a clear conflict on the facts
    that required resolution.

Discussion

[21]

The current summary judgment regime was established by the Supreme Court
    in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 and its
    companion decision,
Bruno Appliance and Furniture, Inc. v. Hryniak
,
    2014 SCC 8, [2014] 1 S.C.R. 126. In
Bruno Appliance and Furniture
, Karakatsanis
    J. described, at para. 22, the two-step assessment process. The first step is
    to ask whether the matter can be resolved in a fair and just manner on a
    summary judgment motion.

[22]

Where, on the record, there appears to be a genuine issue requiring a
    trial, then the second step is to consider whether the need for a trial can be
    avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). The
    motion judges decision to exercise these powers is discretionary and attracts
    appellate deference, provided that their use is not against the interest of
    justice:
see also
Trotter Estate
, 2014 ONCA 841,

122
    O.R. (3d) 625, at paras. 72 and 75, and
Baywood Homes Partnership v.
    Haditaghi,
2014 ONCA 450, at paras. 33-35.

[23]

There is no doubt that a genuine factual issue existed between the
    parties on the evidence.

[24]

The motion judge did not state how the clear differences in the evidence
    of Dr. Simon and of Mr. Mahmood ought to be resolved, the resolution of

which would necessarily have depended largely
    on findings of credibility. The outcome leads to the inference that he simply preferred
    the evidence of Dr. Simon over the evidence of Mr. Mahmood (which was
    untested by cross-examination).

[25]

In my view, where the evidence in the record establishes a clear
    conflict, it is incumbent on a summary judgment motion judge to consider
    expressly whether the powers provided under rr. 20.04 (2.1) and 20.04 (2.2) are
    to be deployed in resolving the conflict. Anything less risks substantive
    injustice.

(2)

Damages and Quantum

[26]

The motion judge described Dr. Simons claim for damages, at para. 20:

She deposed that her gross income between 2008 and 2011 was
    $39,029.10 per annum. In 2013, the year of her departure from the Clinic, she
    deposed that she was on track for a gross income of around $45,000. In 2014,
    the year after her departure, her gross income had fallen to approximately
    $11,000. She thus deposed that her average loss of income since her departure
    from the Clinic was $29,485.69. She thus claims for the loss of income for the
    2.25 years since her departure for a total loss of income claim of $66,342.80.

[27]

The motion judge addressed Dr. Simons damages claim, at para. 24:

In my opinion, she has proven a loss of income claim. However,
    she overstates the claim because she has not taken into account the expenses
    that she would have incurred to earn the gross income. Doing the best I can
    from the material filed on the summary judgment motion, which included patient
    lists and Dr. Simon's income tax statements, I conclude that her damages are
    $28,000 for loss of income, $1,664.75 for unpaid fees, and $16,000 for costs
    for a total award of $45,664.75, all inclusive.

Discussion

[28]

The motion judge found that Healing Hands was liable for Dr. Simons loss
    of income for 2.25 years after she left the clinic. He did not, however, root
    the legal basis for this finding either in the business arrangement or in
    Healing Hands undertaking to pay damages (which it had given on the
    interlocutory injunction motion).

[29]

It also appears that the motion judge misapprehended the position of
    Healing Hands on liability. He noted, at para. 14:

At the summary judgment motion, the Clinic and Dr. Mahmood's
    position was that the Clinic was abandoning its claim against Dr. Simon and for
    the counterclaim they were prepared to pay Dr. Simon $1,593.31 but without
    costs, given her alleged failure to act reasonably to end the business
    relationship and having regard to rejected offers made over the year to resolve
    the dispute in a commercially reasonable fashion.

[30]

Healing Hands asserts that the difference between the amount that
    Dr. Simon would have received assuming their agreement was for a 25% proportion
    of her billing (the amount that she was prepared to pay), and the amount that
    she received (the amount calculated at a 35% proportion of her billing) was only
    about $1,600. Her income at the time was relatively low because she was on a
    virtual sabbatical as a result of the birth of her child, and was in the course
    of attempting to maintain or revive the practice with the assistance of a new
    associate she hired. Healing Hands was prepared only to pay the difference,
    because it was minimal, but it did not concede that it had breached its business
    arrangement with her.

[31]

Healing Hands also asserts that the motion judge made palpable and
    overriding errors in his assessment of the quantum of damages, on the basis
    that Dr. Simons income actually increased after she left the clinic. The
    motion judge did not address this factual point.

E.

Disposition

[32]

Given the conflicting evidence before the motion judge, he was obliged
    to explain the basis for his finding of liability, and for granting summary
    judgment in favour of the respondent, as well his determination of the amount
    of the damages.

[33]

I would set aside the judgment on the claim and the counterclaim, and
    leave the parties free to pursue their claims including, if so advised, other
    motions for summary judgment, without being bound by any of the determinations made
    in the decision under appeal.

[34]

The motion judge did not address what was to be done with the
    interlocutory injunction, which gave custody of patient records to Healing
    Hands. The issue of custody remains a live issue under the
Personal Health
    Information Protection Act 2004
and requires judicial determination,
    perhaps assisted by a consent order agreed to by the parties, which I would
    encourage them to pursue.

[35]

I would fix costs payable by Dr. Simon to Healing Hands in the amount of
    $4,530 inclusive of disbursements and taxes. I would refer the costs of the
    summary judgment motion to the judge who determines this case.

Released: December 21, 2016

P. Lauwers J.A.

I agree K. Feldman
    J.A.

I agree B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951

DATE: 20161216

DOCKET: C62035

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

2363523 Ontario Inc.

Plaintiff (Respondent)

and

Stephen Nowack
,
    Melissa Frishling,
John Doe 1 to 10, Jane Doe 1 to 10, and
Doe Corporations 1 to 10

Defendants (
Appellant
)

J. Thomas Curry and Laura E. Robinson, for the appellant

Norman Groot, for the respondent

Heard: October 14, 2016

On appeal from the orders of Justice Sean F. Dunphy of
    the Superior Court of Justice, dated January 8, 2016 and April 18, 2016, with
    reasons reported at 2016 ONSC 2518.

van Rensburg J.A.:

A.

Overview

[1]

The appellant, Steven Nowack, appeals an order
    dated January 8, 2016, finding him in contempt and an order dated April 18,
    2016, finding he had not purged his contempt and sentencing him to 30 days in
    prison. The contempt proceedings arose out of the efforts of the respondent,
    2363523 Ontario Inc. (236), to enforce a default judgment. Mr. Nowack
    contends that the motion judge:  failed to direct himself as to the required
    test for contempt and the associated burden of proof; erred in how he dealt
    with Mr. Nowacks documents that had been included in the Crown brief in his
    criminal proceedings (referred to here as the
Wagg
issue); and failed to provide Mr. Nowack with certain procedural
    safeguards.

[2]

For the reasons that follow, I would dismiss the
    appeal. As I will explain, the motion judge did not err in principle or law in
    finding Mr. Nowack in contempt. The elements of contempt were clearly made out
    on the evidence beyond a reasonable doubt. The motion judge did not err in
    dealing with the
Wagg
issue, which did not
    excuse Mr. Nowacks failure to produce documents and to perform the accounting
    required by the orders. Finally, there was no procedural unfairness: indeed,
    the procedure the motion judge adopted permitted Mr. Nowack, after 236 had
    made out a
prima facie
case of contempt, the
    full opportunity to explain himself. The motion judge also afforded Mr. Nowack
    the opportunity to purge his contempt before he was sentenced.

B.

Facts and decisions below

[3]

236 obtained default judgment against Mr. Nowack on September 16, 2015
    in an action for fraud, conversion, and breach of fiduciary duty (the
    Judgment). The Judgment, which was obtained in Mr. Nowacks presence, ordered
    him to pay 236 $3,000,000 in damages and $22,000 in costs. Paragraph 6 also required
    Mr. Nowack, within 30 days, to provide 236 with an accounting:

of any and all financial transactions completed by him using or
    in any way relating to [236s] funds, including producing bank statements, FXCM
    statements, and transaction documents including copies of wire transfers,
    cheques or other forms of transaction, from any of his accounts into and from
    which [236s] funds were deposited.

[4]

Mr. Nowack brought a motion to set aside the Judgment and was examined
    further to that motion on October 9, 2015. He ultimately abandoned the motion,
    but gave a number of undertakings during his examination.

[5]

In early November 2015, 236 brought a motion for contempt. 236 argued
    that Mr. Nowack had failed to comply with para. 6 of the Judgment and failed to
    answer the undertakings given at his examination. On November 26, 2015, when the
    contempt motion was initially returned before the motion judge, he ordered Mr. Nowack
    to attend at a judgment debtor examination on December 1, 2015, to bring with
    him the documents listed at para. 6 of the Judgment as described in 236s
    notice of examination, and to comply with the undertakings given at his October
    9 examination in advance of the December examination. This order was made on Mr.
    Nowacks consent, and the motion judge seized himself of any further motions
    arising from his order.

[6]

Mr. Nowack was late for his examination on December 1, 2015, and he did
    not bring any documents with him or answer any of his undertakings.

[7]

On January 8, 2016, 236s contempt motion was returned before the motion
    judge based on Mr. Nowacks failure to comply with para. 6 of the Judgment and the
    requirements of the motion judges order of November 26, 2015.

[8]

Mr. Nowack attended the hearing with his criminal counsel, Anthony Moustacalis,
    who explained that Mr. Nowack was due in another courtroom that day in respect
    of his criminal charges. He referred briefly to Mr. Nowacks position that
    certain documents he was required to produce may be part of the Crowns brief
    and subject to a deemed undertaking not to be produced. He then withdrew.

[9]

Mr. Nowack then brought in civil counsel, David Sloan, and the contempt
    hearing proceeded. 236 relied on affidavit evidence attaching the orders in
    question and stating that Mr. Nowack had failed to comply. Mr. Nowack gave
    evidence under oath, led by Mr. Sloan. He stated that he was the accused in a
    criminal prosecution for fraud arising from the same facts giving rise to the
    civil proceeding commenced by 236. He stated that the only financial documents
    he had in his possession were those that had been seized by the police as part
    of the prosecution and returned to him as part of the Crowns disclosure. He
    claimed that his criminal counsel (not Mr. Moustacalis) told him he was not
    permitted to produce such documents to third parties. This was his excuse for
    failing to produce documents to 236 in compliance with the underlying orders. He
    stated that he had provided authorizations to the plaintiffs in other judgment enforcement
    proceedings (the Greenberg Litigation), allowing them to seek transaction
    records from the relevant financial institutions. He then provided those
    authorizations to counsel for 236 during the hearing, stating that he did not
    have the money to obtain the records himself.

[10]

Mr. Nowack also provided the motion judge with a document purporting to
    be his answers to undertakings from the October 9 examination. In each case,
    the answer provided was a short refusal claiming that the question was not
    relevant.

[11]

The motion judge found Mr. Nowack in contempt and gave brief oral
    reasons. He rejected Mr. Nowacks claim that he could not produce the financial
    documentation that he was ordered to produce because it had formed part of the
    Crown disclosure for his criminal prosecution. The motion judge stated that the
    procedure Mr. Nowack should have taken to comply with the underlying orders was
    to collect the documents within his power, possession, or control and to supply
    them to the court under seal if necessary to get a ruling. The motion judge
    observed that Mr. Nowack was not prevented from using the information he had to
    provide an accounting even if it referenced documents he was unable to produce.
    The motion judge went on to find that Mr. Nowack failed to produce any of the documents
    he was ordered to produce, including income tax returns, bank books, statements
    of assets and liabilities, and statements of employment and other sources of
    income, in a timely way. The motion judge concluded that the orders were fairly
    straightforward and explicit. He found they had not been complied with, that excuses
    and promises of future compliance were not good enough, and that the contempt
    alleged had been made out on the evidence.

[12]

The motion judge scheduled a sentencing hearing for February 8, 2016 to
    give Mr. Nowack time to purge his contempt. The day before, on February 7, Mr. Nowack
    delivered to 236 an electronic disc containing extensive financial information
    (which had been in his possession for several months and had already been
    provided to counsel in the Greenberg Litigation). He also provided a sworn
    declaration of his assets and income to show that he owned nothing and had no
    income of any kind. The sentencing hearing was adjourned to permit 236 to
    review the information Mr. Nowack supplied.

[13]

236 examined Mr. Nowack again on March 23 and April 7, 2016. He gave a
    number of refusals at these examinations.

[14]

The sentencing hearing was returned before the motion judge on April 11,
    2016. The motion judge assessed whether Mr. Nowack had made a
bona fide
effort to purge his contempt. After hearing submissions from counsel for 236
    and Mr. Nowack, who was self-represented, the motion judge adjourned the
    proceeding until April 18, at which point he delivered written reasons finding Mr. Nowack
    had not purged his contempt and sentencing him to 30 days in prison. His
    reasons expanded upon the oral reasons for finding Mr. Nowack in contempt and
    provided reasons for his sentence.

[15]

While it was agreed that Mr. Nowack had purged his contempt regarding
    the undertakings given at his October 9, 2015 examination, the motion judge
    found that he had only partially complied with the orders requiring him to
    produce relevant financial information and to provide an accounting. The motion
    judge concluded that his efforts had been belated and half-hearted: at para.
    46. The motion judge found that, while providing account authorizations to 236
    was a mitigating factor regarding sentencing, Mr. Nowack had been ordered to
    perform an accounting himself. This obligation was therefore not discharged by
    telling 236 to complete an accounting instead. Moreover, the accounting Mr. Nowack
    claimed to have provided was utterly inadequate: at para. 59.

[16]

The motion judge concluded that incarceration was the only remedy that
    would adequately meet the sentencing objectives for civil contempt, namely
    coercion and punishment. A fine would have no impact on Mr. Nowack given his
    failure to pay outstanding judgments and costs awards. As he claimed to have no
    assets or income, a fine would be the equivalent of imposing no penalty at all.

[17]

Mr. Nowack had already served a 15-day sentence for contempt pursuant to
    an order of Morgan J. in the Greenberg Litigation. Nevertheless, Mr. Nowack had
    continued to resist disclosing his financial affairs. A sentence greater than
    15 days was therefore required to compel Mr. Nowack to perform his obligations.
    In all of the circumstances, the motion judge concluded that a custodial sentence
    of 30 days was appropriate. He further ordered that, within 45 days of Mr. Nowacks
    release, he was to perform an accounting and to produce all documents received
    through Crown disclosure in his criminal proceedings. Finally, the motion judge
    ordered Mr. Nowack to attend an examination and answer questions based on the
    financial records he produced.

[18]

The motion judge declined to stay the sentence to permit Mr. Nowack to
    appeal to this court. He was immediately incarcerated and served ten days of
    his sentence between April 18 and April 28, 2016. On April 28, this court
    stayed the warrant of committal pending this appeal.

C.

Issues

[19]

Mr. Nowack asserts that the motion judge erred in:

1.

Failing to direct himself as to the elements of the legal test and the
    reasonable doubt standard of proof for civil contempt, and failing to properly
    apply these elements;

2.

Requiring Mr. Nowack to produce documents that were included in the
    Crowns brief in his criminal proceedings; and

3.

Conducting the contempt proceeding in a manner that violated the
    principles of fundamental justice.

(1)

Did the Motion Judge Properly Consider and Apply the Test for Civil
    Contempt?

[20]

A party seeking to establish civil contempt must prove that: (a) the
    order alleged to have been breached states clearly and unequivocally what
    should and should not have been done; (b) the party alleged to have breached
    the order had actual knowledge of it; and (c) the party allegedly in breach
    intentionally did the act the order prohibits or intentionally failed to do the
    act the order compels:
Carey v. Laiken
, 2015 SCC 17, [2015] 2 S.C.R.
    79, at paras. 33-35. A judge retains an overriding discretion to decline to
    make a contempt finding where the foregoing factors are met where it would be
    unjust to do so, such as where the alleged contemnor has acted in good faith to
    take reasonable steps to comply with the relevant court order:
Carey v.
    Laiken
, at para. 37. The burden on a party seeking a contempt order is to
    establish the above elements by proof beyond a reasonable doubt:
Carey v.
    Laiken
, at para. 32;
Bell ExpressVu Limited Partnership v. Torroni
,
    2009 ONCA 85, 94 O.R. (3d) 614, at para. 29;
Chiang (Re)
, 2009 ONCA 3,
    93 O.R. (3d) 483, at paras. 11 and 50.

[21]

Mr. Nowack contends that the motion judge erred in failing to
    specifically articulate this three-part test in his brief oral reasons. He says
    that, because of the serious consequences flowing from a finding of contempt
    and the onus of proof beyond a reasonable doubt, it was necessary for the motion
    judge to specifically advert to the test and the burden of proof in his reasons.

[22]

Further, Mr. Nowack says that the motion judge erred by failing
    to make the necessary findings on each of the three elements. In that regard, he
    relies on a passage in the transcript of the contempt hearing where
the motion judge, after hearing submissions from the
    moving party, stated:

THE COURT: Okay. So this is your contempt motion.

MR. GROOT: Yes.

THE COURT: Were just  were pointing to the three aspects of
    the order that said do X, Y and Z.

MR. GROOT: Yes.

THE COURT: And youre saying that he hasnt done them.

MR. GROOT: Yes.

THE COURT: So, as far as thats concerned, thats your case.

MR. GROOT: That is my case.

THE COURT: So, do we need more?

MR. GROOT: No.

THE COURT: So lets hear why he hasnt done them and what hes
    proposing to do about it.

Mr. Nowack says that this excerpt demonstrates that
    the motion judge believed it was only necessary to find that he had violated
    the orders, and that the motion judge did not turn his mind to the first two elements
    of the test.

[23]

I would not give effect to these submissions. As Mr. Nowacks counsel
    acknowledged in argument on appeal, there was no real issue as to the first two
    elements of the test  that the orders in question were clear and unambiguous
    and that Mr. Nowack had notice of what he was required to do.

[24]

Thus, what the motion judge had to decide was whether Mr. Nowack
    intentionally failed to do what the orders compelled. This requirement is
    distinct from proving whether an alleged contemnor intended to disobey the
    order in question. Contumacy, or lack thereof, is not an element of civil
    contempt:
Carey v. Laiken
, at para. 38. Additionally, it was for the
    motion judge to determine if it was appropriate to exercise his discretion to
    decline to make a contempt order in the circumstances:
Carey v. Laiken
,
    at para. 37.

[25]

In
Torroni
, this court held that the reasons for a contempt
    order need not analyze the application of the three-part test to the facts of
    the case in great detail, but that the judge must at a minimum turn his or her
    mind to the test and apply the elements of the test properly: at para. 23. This
    court set aside a finding of contempt because the motion judge had failed to
    consider whether the terms of the underlying order were clear and unequivocal
    and whether the record established a finding of contempt beyond a reasonable
    doubt: at paras. 27-29. The motion judges consideration of whether the alleged
    contemnor deliberately and wilfully disobeyed the order was not sufficient to
    ground a finding of contempt in the absence of considering the other elements
    of the test for civil contempt: at para. 30.

[26]

Mr. Nowack says that
Torroni
mandates that a judge deciding a
    contempt motion must explicitly set out the three elements for contempt as well
    as the burden of proof. I disagree. While a judge deciding a contempt motion must
    turn his or her mind to the test for contempt and apply the elements correctly,
Torroni
does not require the judge to set out the test expressly in
    his or her reasons. In
Torroni
, the orders at issue were not clear.
    They permitted the plaintiff to enter the premises of the defendant to access
    computer files. The parties engaged in an email debate as to what specific
    premises the orders referred to and where the computer access should take
    place: at para. 25. In the motion judges reasons finding contempt, there was
    no indication that he dealt with this ambiguity, or considered the part of the
    test for contempt requiring the order to be clear.

[27]

By contrast, in this case, there was no dispute about the clarity of the
    orders and what they required. Nor was there any dispute that their terms had
    come to Mr. Nowacks attention. The only issue was whether Mr. Nowack had
    intentionally failed to perform the acts the orders compelled, or whether he
    had a reasonable explanation for his non-compliance. His counsel acknowledged
    that Mr. Nowack had no explanation or excuse for his failure to answer
    undertakings. As for the balance of what he was required to do, Mr. Nowack had
    the opportunity to explain his non-compliance and offered only the excuse (that
    he had made without success in the Greenberg Litigation) that he was unable to
    produce or use documents that had been seized and were part of the Crown
    disclosure in his criminal proceedings.

[28]

Reasons must be understood in context:
R. v. R.E.M.
, 2008 SCC
    51,

[2008] 3 S.C.R. 3. The motion judge gave brief oral reasons at the
    conclusion of the contempt hearing, as Mr. Nowack was due in another courtroom
    to deal with his criminal case. A reading of the oral reasons and the record of
    the contempt hearing demonstrates that the motion judge understood the test for
    contempt and that he applied the test correctly. Indeed, in his oral reasons, the
    motion judge stated: I have a motion for contempt alleging non-compliance with
    some fairly straightforward and explicit orders. At the contempt hearing, the
    motion judge also stated: [Mr. Nowack] was ordered to [do] a number of not
    vague and general things, but very specific things. Shortly thereafter, he
    stated: Convicted means that I am being asked to find that [Mr. Nowack] was ordered
    to do X, Y and Z, knowing that he was ordered to do it, he didnt do it, and so
    thats the issue before me today.

[29]

Further, the motion judge expanded upon his brief oral reasons for
    finding Mr. Nowack in contempt in his sentencing reasons. In paras. 18 and 21 he
    stated:

Mr. Nowacks breaches of the two orderswere clear. He had
    fully understood his obligationsThere was no serious question of the
    non-compliance being inadvertent or due to a misunderstanding. I concluded [at
    the contempt hearing] that Mr. Nowack had knowingly and deliberately breached
    both orders and was in contempt.

Later in his sentencing reasons, at para. 90, the
    motion judge stated: A finding of guilt requires that the thing required to be
    done was clear and the breach was both knowing and deliberate beyond a
    reasonable doubt. In finding Mr. Nowack guilty, I have found all of that to be
    true.

[30]

These additional reasons supplemented the brief oral reasons the motion
    judge initially provided and leave no doubt that he understood and correctly
    applied the test for contempt.

[31]

Mr. Nowacks counsel also argued that the motion judge failed to
    consider Mr. Nowacks partial compliance with the requirements of the orders in
    determining whether the third element  that Mr. Nowack had failed to comply
    was met. There is no merit to this argument. At the time the contempt was
    found, Mr. Nowack had not complied with the specific paragraphs relied upon by
    236 from the Judgment and the motion judges order of November 26, 2015. There
    was no question that Mr. Nowack had failed to answer undertakings, that no
    excuse was offered, and that his only explanation for failing to comply with
    the balance was his
Wagg
excuse. In these circumstances, there was
    nothing by way of partial compliance for the motion judge to assess. At the
    sentencing hearing, it was acknowledged that Mr. Nowack complied with some
    terms of the orders, and had therefore purged certain aspects of his contempt.
    This was taken into consideration in his sentence.

(2)

Did the Motion Judge Err in Requiring Mr. Nowack to Produce Documents
    from the Crown Brief?

[32]

In his appeal, Mr. Nowack reiterates the argument made at his contempt
    hearing that he was unable to comply with the orders because the documents were
    part of the Crowns brief in his criminal proceedings. He says that documents
    he had received through Crown disclosure, even if they were his own documents
    that had been seized from him, ought not to have been ordered to be produced. He
    relies on this courts decision in
P.(D.) v. Wagg
(2004), 71 O.R. (3d)
    229 (C.A.), at para. 17, which outlines a three-step procedure to be followed
    before a litigant produces documents in his possession or control that form
    part of a Crown disclosure brief.

[33]

Mr. Nowack contends that the motion judges finding of contempt
    based on his failure to produce documents contained in a Crown brief was
    premised on a misapprehension of the obligations imposed on Mr. Nowack as a
    recipient of Crown disclosure. He says the motion judge erred in stating, in
    response to his
Wagg
concerns, that he ought to have produced the
    documents to the court under seal. Instead, he says it was incumbent on 236 to
    bring a motion to obtain the Crowns consent to have the documents produced.

[34]

In argument on appeal, Mr. Nowacks counsel acknowledged that it was
    possible for Mr. Nowack to have brought any
Wagg
motion that was
    required. He argued, however, that it was
sufficient
for Nowack to
    signal to 236 that he had documents that were part of the Crown brief.

[35]

I would not give effect to any of these arguments. The motion judge did
    not accept the
bona fides
of Mr. Nowacks excuse for failing to comply
    with his obligations. He referred to the fact that Mr. Nowack had raised the
    same arguments in the Greenberg Litigation without success. The motion judge
    was correct to note that Mr. Nowack had been ordered to produce documents and
    to use documents to prepare an accounting, irrespective of their source. Mr.
    Nowack was not a litigant involved in a discovery process, but a judgment
    debtor who had been ordered to produce documents that were in his possession
    and to use the documents to prepare an accounting. As the motion judge noted,
    if Mr. Nowack had concerns, he could have provided the documents to the court
    under seal. In other words, it was incumbent on Mr. Nowack to do something
    himself to address the concern, assuming it was legitimate, rather than to
    simply raise the argument as an excuse for his non-compliance. Indeed, as Mr.
    Nowack notes in his factum, after he was found in contempt and sentenced, he
    promptly sought and obtained the Crowns consent to release documents.

[36]

There was no error in the motion judges treatment of the
Wagg
issue,
    and I therefore would not give effect to this ground of appeal.

(3)

Were the Contempt Proceedings Consistent with the Principles of
    Fundamental Justice?

[37]

Section 7 of the
Charter of Rights and Freedoms
applies to
    civil contempt proceedings because they are penal in nature:
R. v. Cohn
(1984), 48 O.R. (2d) 63 (C.A.), at p. 76, leave to appeal refused, [1985] 1
    S.C.R. vii. Contempt proceedings must therefore afford an alleged contemnor
    all necessary safeguards:
Toronto Transit Commission v. Ryan
(1998),
    37 O.R. (3d) 266 (Ct. J. (Gen. Div.)), at p. 270;
Torroni
, at
    para. 20. The proceeding must preserve the principles of fundamental justice by
    safeguarding the right to be presumed innocent and the right to make full
    answer and defence:
R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas
(1987), 59 O.R. (2d) 145 (C.A.), at p. 150.

[38]

Mr. Nowack says that the contempt proceedings were inconsistent with
    these principles because he was denied the presumption of innocence.

[39]

Mr. Nowack points to the transcript of the hearing, just before he stepped
    into the witness box, and says that the circumstances were less than ideal
    because the motion judge communicated an expectation he would testify. Mr. Nowack
    says that he was denied the right to remain silent.

[40]

By the time Mr. Nowack entered the witness box, the evidence 236 had put
    forward was sufficient to meet all three prongs of the test for contempt: there
    was compelling evidence of Mr. Nowacks failure to comply with the orders that
    were clear and known to him. The motion judge was simply stating the obvious
    when he observed lets hear why he hasnt done [these things] and what hes
    proposing to do about it. While Mr. Nowack had the right to remain silent, as
    a practical matter some explanation was required if he had any chance of
    raising a doubt on the question of his contempt. Mr. Nowack had legal counsel.
    He was not forced to testify, nor did he indicate any unwillingness to do so.
    Rather, he used the available opportunity, in response to his counsels
    questions, to attempt to explain his conduct.

[41]

Mr. Nowack also asserts that the motion judge had already determined Mr.
    Nowacks non-compliance with the underlying orders in advance of the contempt
    proceeding. He points to the motion judges endorsement on November 26, 2015, adjourning
    the proceeding to January 8, 2015, in which he stated that Mr. Nowack had been
    unable to provide any evidence of his compliance with the underlying orders or
    any valid excuse for failing to attend a judgment debtor examination. To
    reinforce this conclusion, the motion judge made other comments at the January
    8 hearing to the effect that Mr. Nowack had to purge the contempt that he
    already committed.

[42]

There was no prejudging of the issue of contempt in this case. Contempt
    proceedings not infrequently involve multiple attendances, as their purpose is
    to secure compliance with an order. While a motion judge must tread carefully
    when expressing views regarding a partys contempt prior to having the benefit
    of evidence in a contempt hearing, the November 26 endorsement accurately
    reflected the absence of any evidence of Mr. Nowacks compliance before the
    judge at that time. Indeed, the adjournment provided Mr. Nowack further time to
    demonstrate his compliance. The motion judge clearly began the contempt hearing
    with the premise that he had to be satisfied of Mr. Nowacks contempt beyond a
    reasonable doubt, and he afforded him the full opportunity to explain his
    conduct.

[43]

Mr. Nowack also contends that the motion judge did not properly assess
    the relevance of the evidence that he attempted to adduce at his sentencing
    hearing. He argues that the contempt proceedings denied him the right to make
    full answer and defence. This right includes the right to submit or call
    evidence:
GM Textiles Inc. v. Sidhu
, 2016 ONSC 667, at para. 81. Mr. Nowack
    attempted to introduce emails exchanged between counsel for 236 and counsel for
    the plaintiffs in a related proceeding, and Mr. Nowack attempted to call the
    latter as a witness. He now argues that the motion judge erred in rejecting the
    relevance of this evidence based only on Mr. Nowacks submissions and without the
    motion judges own analysis as to admissibility after reviewing the emails and
    the proposed witnesss testimony.

[44]

I disagree. Mr. Nowack, even with the motion judges probing, was unable
    to explain how the emails or witness would be relevant to sentencing and
    whether he had purged his contempt. The motion judge concluded that the evidence
    Mr. Nowack sought to advance pertained to 236s alleged motives, which was not
    relevant to the purpose of the hearing. On appeal, Mr. Nowack did not attempt
    to put forward any other explanation of how the excluded evidence might have been
    relevant to the sentencing hearing.

[45]

Finally, I note that counsel for Mr. Nowack on appeal took issue with
    the motion judge sitting on a motion for contempt of his own order. He said
    that, as a general rule, a judge should not be permitted to hear a motion for
    contempt of his or her own order, as there could be a reasonable apprehension
    of bias. He relied on
Central Capital Corp. v. 819187 Ontario Ltd.
, 1993
    CarswellOnt 4447 (C.A.). I do not propose to address this argument in any
    detail except to say that I am not aware of any principled basis to adopt such a
    general rule.

[46]

In
Central Capital
a judge, in her reasons for summary
    judgment, expressed the view that the appellant was in contempt of an order of
    Eberle J.  This court held that the same judge ought not to have heard a
    subsequent motion for contempt of the order of Eberle J. There was a reasonable
    apprehension of bias in the circumstances, as a reasonable person might think
    that the judge had prejudged the issue of contempt. The conclusion was based on
    the particular facts of the case.

[47]

Central Capital
did not involve a judge sitting on a contempt
    motion from her own order, and the court did not articulate a general rule that
    a judge should never sit on a contempt motion from his or her own order. In my
    view, such a rule would be both impractical and inconsistent with the overall
    objective of contempt motions in securing compliance with orders. And the
    procedure adopted here, as well as in the Greenberg Litigation, where a judge
    seized himself with contempt proceedings, and then made a series of orders that
    gave Mr. Nowack the opportunity to avoid a finding of contempt could only serve
    to enhance the fairness of the process and did not in itself give rise to a
    reasonable apprehension of bias.

D.

Disposition

[48]

For these reasons, I would dismiss the appeal. I would
    extend the stay of the warrant of committal until December 27, 2016. I would
    award costs of the appeal to 236 on a partial indemnity basis. If the parties
    are unable to agree on costs, they may make written submissions to this court. 236
    shall have ten days from the date of release of these reasons to serve and file
    its submissions, and Mr. Nowack shall have ten days from receipt of such
    submissions to serve and file responding submissions. There shall be no reply
    submissions. Written submissions are to be limited to three pages in length,
    not including a bill of costs.

Released: K.M.v.R. December 16, 2016

K. van Rensburg
    J.A.

I agree G.R. Strathy
    C.J.O.

I agree H.S. LaForme
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abi-Mansour v. Ontario College of Teachers, 2016
    ONCA 928

DATE: 20161208

DOCKET: M46824 (M46021)

Sharpe, Pepall and Hourigan JJ.A.

BETWEEN

Paul Abi-Mansour

Appellant (Moving Party)

and

Ontario College of Teachers

Respondent (Responding Party)

Paul Abi-Mansour, in person

Christine Lalonde, for the responding party

Heard and released orally: December 2, 2016

ENDORSEMENT

[1]

The appellant moves before this panel to review the order of Gillese
    J.A. refusing to restore his motion to review an order of Feldman J.A. refusing
    to extend the time for a motion for leave to appeal from the Divisional Court.

[2]

The appellants motion to review the order of Feldman J.A was dismissed
    by the Registrar when the appellant failed to file the required material on
    time in compliance with the rules.

[3]

There is no merit to this motion. It is the latest in a series of
    frivolous and meritless interlocutory motions. The appellant has provided no
    reasonable explanation for his lengthy delays at various stages of this
    proceeding and there is no merit to his underlying request for leave to appeal
    from the decision of the Divisional Court.

[4]

The motion is dismissed.

[5]

Costs to the respondent in the amount of $1500, inclusive of
    disbursements and applicable taxes.

Robert J. Sharpe
    J.A.

S.E. Pepall J.A.

C.W. Hourigan
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Almeida (Re), 2016 ONCA 929

DATE: 20161209

DOCKET: M47230 (C61860)

Watt, van Rensburg and Huscroft JJ.A.

IN THE MATTER OF:  Stanley Almeida

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stanley A. Almeida, acting in person

Andrea Baiasu, for the Crown

Barbara Walker-Renshaw, for Ontario Shores Centre for
    Mental Health Sciences

Howard L. Krongold, appearing as
amicus curiae
via teleconference

Heard: December 2, 2016

On a motion to review the order of a single judge refusing
    the request to adjourn the hearing of the appeal scheduled for December 19,
    2016.

By the Court:

[1]

Stanley Almeida is a self-represented appellant. As a result of a
    finding of NCRMD made nearly two decades ago, he is subject to the jurisdiction
    of the Ontario Review Board. To be more specific, he is bound by the terms of a
    disposition made by a panel of that Board on October 9, 2015.

[2]

Mr. Almeida has filed an appeal to this court which has been scheduled
    for hearing on December 19, 2016. He does not quarrel with the disposition made
    by the Board on October 9, 2015, rather he challenges a ruling released by the
    Board on February 26, 2016 rejecting a claim for
Charter
relief he had
    advanced before the Board.

The Motion

[3]

By this motion, Mr. Almeida asks this panel to review and set aside an
    order made by a single judge dismissing his request to adjourn the hearing of
    the appeal until February, 2017 and confirming the hearing date of December 19,
    2016.

[4]

The respondents on the appeal, Ontario Shores Centre for Mental Health
    Sciences (Ontario Shores) and the Attorney General of Ontario, take different
    positions on this motion. Ontario Shores takes no position. The Attorney General
    opposes the request. Mr. Howard Krongold, who has been appointed
amicus
,
    appeared on the motion by teleconference. Like Ontario Shores, he took no
    position in response to the motion.

The
    Evidentiary Basis for the Motion

[5]

In support of his motion, Mr. Almeida says that the decision of the
    single judge refusing his request for an adjournment of the hearing of his
    appeal is grounded on a misapprehension of fact and a consideration of an
    irrelevant factor. The single judge mistakenly said that Mr. Almeida had sought
    and been granted an adjournment of the hearing of his appeal on a prior
    occasion. Not so, Mr. Almeida says. Further, the single judge took into account
    the pendency of Mr. Almeidas next annual Review Board hearing and the effect
    the adjournment would have on the timing of that annual review. This, Mr.
    Almeida contends, is irrelevant.

[6]

Mr. Almeida also argues that he was given erroneous advice about the
    procedure to be followed to review the order of a single judge. This caused
    unnecessary confusion and added to his level of stress.

[7]

The final point Mr. Almeida advances concerns his ability to prepare
    written materials  more specifically a factum  in advance of the scheduled
    hearing date. He is unable to do so, he says, because the respondent, Ontario
    Shores, has been injecting poisonous gas into his condominium depriving him of
    the concentration necessary to complete his factum on the important
Charter
issue that is the central focus of his appeal. To make matters worse, Mr.
    Almeida continues,
amicus
has filed a false factum challenging the
    disposition of the Board, a decision with which Mr. Almeida has no quarrel, and
    fails to advance any argument about the
Charter
issue. Mr. Almeida
    asks us to disregard the factum of
amicus
in its entirety.

Discussion

[8]

We see no basis upon which to interfere with the decision of the single
    judge. We have reached this conclusion for several reasons.

[9]

First, even if the single judge were mistaken in her reference to a
    prior adjournment of a scheduled hearing at Mr. Almeidas request, we are not
    persuaded that this formed the centerpiece of her reasoning for refusing the
    adjournment request. She considered, as she was required to do, all the
    circumstances in reaching her conclusion.

[10]

Second,
    we are satisfied that the pendency of Mr. Almeidas annual review and the
    desirability of it being held in a timely way  unlike on prior occasions  was
    a relevant factor for the single judge to consider. After all, there have been
    occasions when an appeal of a disposition to this court has been dismissed as
    moot in light of a subsequent disposition made at an annual hearing before the
    appeal is heard.

[11]

Third,
    the advice Mr. Almeida was provided when he expressed dissatisfaction with the
    order of the single judge  that he could apply to the list judge or bring a
    motion to a panel of the court to review the order of the single judge  was
    accurate. This advice was provided
after
the decision of the single
    judge and can afford no basis upon which to set that decision aside.

[12]

Fourth,
    as a self-represented litigant, Mr. Almeida is under no obligation to file a
    factum for use of the court on the hearing of his appeal. While facta from
    self-represented appellants are always welcome and frequently helpful, they are
    not required.

[13]

Fifth,
    Mr. Krongold as
amicus
, has made it clear to Mr. Almeida that he
    welcomes the opportunity to discuss any arguments Mr. Almeida wishes to be
    advanced and will put those arguments before the court, in accordance with his
    professional obligations, on the hearing of the appeal, together with his
    submissions as
amicus
.

[14]

Sixth,
    Mr. Almeida has the opportunity to make oral submissions himself to the panel
    hearing the appeal. In other words, the absence of a factum does not deprive
    him of or dilute in any way his right and opportunity to make submissions in
    support of his claims.

[15]

Further,
    this court is under a statutory obligation, put in place by s. 672.72(3) of the
Criminal Code
, to hear appeals from dispositions in or out of the
    regular sittings of the court as soon as practicable after the day on which the
    notice of appeal is given. In addition, we must be mindful of the fact that
    delays in appellate hearings often result in delays of subsequent annual
    reviews, a consequence often deleterious to the interests of all parties,
    particularly the detainee.

Conclusion

[16]

For
    these reasons, the motion to review the order of the single judge refusing to
    adjourn the hearing of the appeal is dismissed. The appeal will be heard on
    December 19, 2016, in accordance with the Registrars notice of September 30,
    2016.

Released: December 9, 2016 (DW)

David Watt J.A.

K.M. van Rensburg
    J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Almeida (Re), 2016 ONCA 994

DATE: 20161229

DOCKET: C61860

Jurisansz, Watt and Roberts JJ.A.

IN THE MATTER OF:  Stanley Almeida

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stanley Almeida, appearing in person

Howard Krongold,
amicus curiae

Andrea Baiasu, for the Attorney General of Ontario

Barbara Walker-Renshaw, for Ontario Shores Centre for
    Mental Health Sciences

Heard: December 19, 2016

On appeal against the disposition of the Ontario Review
    Board dated October 9, 2015 and Charter ruling dated February 26, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandons his appeal of the disposition of the ORB and
    proceeds only with the appeal of the ORBs dismissal of his
Charter
application. Furthermore, he does not want the court to deal with any
    additional issues raised by
amicus
.

[2]

The appellant states he was promised a full day for the hearing of his
Charter
application and spent a lot of time and money preparing for it.  He complains
    that his
Charter
application was summarily dismissed. The ORB
    dismissed the
Charter
application on three grounds: 1) the subject-matter
    of his
Charter

application had been dealt with at a previous sitting
    of the board, and was thus

res judicata
; 2) no
Charter

breach was established; and 3) the ORB had no jurisdiction to award the
    monetary remedy the appellant sought.

[3]

We find it necessary to deal with only the third ground on which the ORB
    dismissed his
Charter
application  that of the ORBs jurisdiction to
    grant the remedy sought.

[4]

The appellants
Charter
application does not relate to the
    exercise of the ORBs jurisdiction to decide the appropriate disposition under
    s. 672.54.  In his
Charter
application, the appellant seeks to have
    the ORB recommend that the Justice Minister award him damages in the amount of
    $35 million.  This court, in
Re Starz,
2015 ONCA 318
, has decided that the ORB
    cannot grant a remedy in damages.  The appellant asks that we overrule
Re
    Starz
.  We are not persuaded to do so.  The ORB has no more power to
    recommend damages that it does to award them. The ORB correctly decided it had
    no jurisdiction to award the remedy the appellant sought in his
Charter

application.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Armitage v. The Salvation Army, 2016 ONCA 971

DATE: 20161222

DOCKET: C62019

Sharpe, Pepall and Hourigan JJ.A.

BETWEEN

Sharon Armitage

Applicant (Respondent)

and

The Salvation Army

Respondent (Appellant)

Anthony J. Frost, for the appellant

Anya-Deane Best, for the respondent

Heard: November 30, 2016

On appeal from the judgment of Justice Timothy D. Ray of
    the Superior Court of Justice, dated March 23, 2016, with reasons reported at
    2016 ONSC 2043.

Hourigan J.A.:

[1]

The respondent was the attorney for property for Morley George Wiltse,
    and the executor of his estate upon his death. The appellant is the sole
    beneficiary under Mr. Wiltses will.

[2]

The respondent brought applications to pass her accounts as attorney for
    property and as estate trustee. The appellant filed notices of objection in
    both proceedings.

[3]

The application judge granted the passing of accounts for both attorney
    for property and estate trustee, and approved the amount claimed by the
    respondent as compensation in its entirety.

[4]

On appeal, the appellant advances the same arguments raised below.
    Specifically, it says that the claim for compensation as attorney for property
    is statute-barred, and that the quantum of compensation claimed is excessive
    and unreasonable.

[5]

For the reasons that follow, I would dismiss the appeal.

Background Facts

[6]

The respondent was appointed Mr. Wiltses attorney for property and
    personal care in 1990, 2001, and 2007. In 2007, the respondent, who is a
    realtor, discussed with Mr. Wiltse the possibility of selling his home. He
    provided his signed agreement and she listed the residence. She received a
    commission of $7,500 on the sale of the property. $10,000 was paid to have the
    house emptied of its contents and to distribute the items to family members of
    Mr. Wiltse, for which she was reimbursed out of the proceeds of the sale.

[7]

Mr. Wiltse died on February 5, 2013. On September 5, 2013 the respondent
    submitted her claim for attorney compensation, and on January 30, 2015 she
    issued a notice of application for the passing of accounts. She filed a further
    application for the passing of the estate accounts on January 30, 2015.

[8]

Before the application judge, the respondent sought compensation totalling
    $34,034.29 for her services as attorney for property, and $11,679 for her
    services as estate trustee.

[9]

The appellant disputed the respondents entitlement to compensation as attorney
    for property on the basis that the claim was not made within the general two-year
    limitation period under the
Limitations Act, 2002,
S.O. 2002, c. 24,
    Sch. B. It also objected to the compensation for that work, in part, because
    many of the receipts and disbursements occurred through automatic transfers.

[10]

Regarding the estate trustees accounts, the appellants primary
    objections were that the compensation sought was excessive given the relatively
    modest size of the estate, and that the respondent had already been compensated
    as attorney for property.

Decision of the Application
    Judge

[11]

On the issue of the limitations defence, the appellant relied on s.
    40(1) of the
Substitute Decisions Act, 1992,
S.O. 2002, c. 30 (the
SDA
)
,
which provides that an attorney for property may take annual
    compensation. The application judge rejected the appellants submission that
    this provision means that the end of each year of service triggers the
    beginning of a two-year limitation period for an attorney to claim
    compensation. He noted that if the legislature wished to create a limitation
    period that is triggered annually, it would have been very simple to use
    language to say so clearly.

[12]

The application judge held that the date of the deceaseds death, which
    terminates the continuing power of attorney, triggers the limitation period. In
    this case, the respondent had two years from February 5, 2013 to bring an
    application to pass her accounts and to seek her compensation. The application
    judge found that she had met that deadline.

[13]

The application judge also rejected the submission that the respondent
    was required to produce evidence of her services to Mr. Wiltses prior to his
    death for his authorization or comment. He held that the attorney for propertys
    only obligation is to maintain accounts, and that the
SDA
set out a
    process to review the attorney for propertys services and expenditures,
    independent of Mr. Wiltses views.

[14]

Having determined that the respondents claim for compensation as attorney
    for property was not statute-barred, the application judge approved the
    requested compensation of $34,034.29. In doing so, the application judge considered
    and dismissed the appellants objections. In particular, he held that although
    there were a number of recurring payments requiring little in the way of
    services, the 3% rate provided for in O. Reg 26/95, s.1, which was passed under
    the
SDA
, is an average, contemplating that there are more onerous
    tasks and less onerous tasks.

[15]

The application judge also held that the respondents commission on the
    sale of the deceaseds home and the $10,000 cost to empty the house prior to
    selling it were appropriate. He noted that the law permits a realtor acting as
    attorney to charge for services separate and apart from the attorney services,
    and that the respondents calculation for compensation was based on the net
    proceeds of the home, so she was not double-dipping.

[16]

The application judge then considered the respondents accounts as
    executor. He rejected the appellants argument that the compensation should be
    reduced because the respondent carried out most of the work while she was
    attorney for property, prior to assuming the role of executor. The application
    judge concluded that the estate was modest and required modest services,
    resulting in modest compensation. He fixed the executors compensation at the
    requested amount of $11,679.

Issues

[17]

This appeal raises the following issues:

(i) Should the respondent be denied compensation as power of
    attorney on the basis that she is statute-barred?

(ii) If the answer to issue (i) is no, was the compensation
    awarded for services as attorney for property and/or executor unreasonable in
    the circumstances?

Analysis

(a)

Limitations Defence

[18]

As noted above, the application judge was of the view that the running
    of the general two-year limitation period under the
Limitations Act, 2002
was triggered on the death of Mr. Wiltse. As the respondent brought the
    application to pass her accounts within two years of the death of Mr. Wiltse,
    her claim was not time barred.

[19]

While I agree with the result reached by the application judge, I
    disagree with his conclusion that the
Limitations Act, 2002
had any application in the circumstances of this
    case.
As I will discuss below, in my view, the
Limitations Act,
    2002
does not apply because compensation for an attorney for property
    through the passing of accounts process does not constitute a claim within
    the meaning of the
Limitations Act, 2002.

[20]

It is useful to briefly consider the nature of compensation for
    attorneys for property and how the passing of accounts process works. An
    attorney for property is a fiduciary and has an obligation under s. 32(6) and
    38(1) of the
SDA
to, among other things, keep accounts of all
    transactions involving the property.

[21]

The attorney for property may bring an application to the Superior Court
    to have his or her accounts approved. Through that process, the attorney for
    property may also seek court approval of compensation for his or her services.
    The responding parties to the application have an opportunity to file a notice
    of objection to the accounts, and to object to the compensation that the
    attorney for property proposes to take or has taken.

[22]

Where the attorney for property has not commenced an application for the
    passing of accounts, an interested party may bring an application under s.
    42(1) of the
SDA
to compel the passing of accounts.

[23]

As noted by Matthew Furrow and Daniel Zacks in their very recent article

The Limitation of Applications to Pass
    Accounts (2016) 46 Adv. Q. 2,
historically in Ontario there was no
    statutory limitation period for the passing of accounts. The only bars were the
    equitable defences of laches and acquiescence. The question becomes whether the
    enactment of the
Limitations Act, 2002
changed the law and imposed the
    general two-year limitation period on claims for compensation for attorney for
    property.

[24]

At first blush it would appear that such claims might be captured by the
    general limitation period. The
Limitations Act, 2002
was designed to
    comprehensively deal with all manner of civil claims, whether grounded in
    equity, law, or statute. There are specific carve outs in the legislation for
    claims that are not subject to the Act. It is arguable, therefore, that if
    compensation for attorneys for property was intended to be exempted from the
    general limitation period it would have been specifically exempted under the
Limitations
    Act, 2002.

[25]

The difficulty with that argument is that the
Limitations Act, 2002
applies
    only to the assertion of a claim, and a claim is defined in the Act as
    follows: a claim to remedy an injury, loss or damage that occurred as a result
    of an act or omission.

[26]

The appellant submits that the right under the
SDA
to seek
    compensation is a new statutory right and, as with all rights, where there is a
    right there must be a remedy. Further, the appellant argues that the
    respondents claim for compensation fits within the statutory definition of a
    claim. Counsel for the appellant submits that in seeking compensation at this
    time the respondent has suffered a loss because she chose not to seek self-help
    and take her compensation earlier. He goes on to argue that this loss is the
    result of the respondents omission in failing to claim compensation earlier.

[27]

I am unable to accede to this rather circular argument. The fact is that
    in seeking court approval of the passing of accounts, an attorney for property
    is not seeking redress for any loss, injury, or damage. Rather, he or she is
    seeking approval from the court of his or her actions in managing the property,
    including approval for compensation previously taken or now sought. A passing
    of accounts application is the opposite of remedial; it is a process that seeks
    a court order that no remedy is necessary with respect to the accounts: see
    Furrow and Zacks, at pp. 9-10. Thus, the passing of accounts does not fit
    within the first part of the
Limitations Act, 2002
definition of
    claim.

[28]

An application for the passing of accounts also does not fit within the
    second part of the statutory definition of claim. Where the definition speaks
    of an act or omission, it must surely refer to an action taken or not taken by
    a third party that has the effect of causing loss, injury, or damage. It would
    be a strange result if a limitation period could not be triggered until the
    party asserting the claim took an action or omitted to do something.

[29]

The result, in my view, is that a passing of accounts under the
SDA
is not subject to the two-year general limitation period found in the
Limitations
    Act,

2002
.
[1]
The common law in that regard was not changed with the enactment of that
    legislation. Consequently, the only defences available are the equitable
    defences of laches and acquiescence, neither of which were asserted in the
    present case.

(b)

Reasonableness of Compensation

[30]

Under the
SDA
, an attorney for property is entitled to claim
    compensation as part of the passing of accounts process. That compensation is
    fixed under the regulations passed pursuant to that statute. However, the court
    has the authority under s. 42(8)(a) to adjust the attorneys compensation in
    accordance with the value of the services performed.

[31]

The appellant concedes that as part of the passing of accounts it is
    within the discretion of an application judge to adjust the compensation
    claimed. It is well established that this court will not lightly interfere with
    the exercise of discretion by a court below. Interference is only justified
    where the judge has made an error in principle or has acted unreasonably in
    weighing the relevant principles:
R v
.
Savoury
(2005), 200
    C.C.C. (3d) 94 (Ont. C.A.), at para. 26.

[32]

The very same objections raised before the application judge are
    asserted in this court. Nowhere does the appellant specify where the
    application judge erred in principle or unreasonably exercised his discretion.
    The appellants reassertion of its objections amounts to nothing more than an
    invitation to this court to redo the very thorough analysis of the application
    judge. That is obviously not the function of this court and I would decline
    that invitation, especially given that I see no error in the application
    judges analysis of the appellants objections.

Disposition

[33]

I would dismiss the appeal.

[34]

The respondent as the successful party is entitled to her costs of the
    appeal. She seeks $10,000 all-in on a partial indemnity basis. The appellant
    takes no objection to that figure. Accordingly, I would order that the
    Salvation Army pay the respondent costs of the appeal in the amount of $10,000,
    inclusive of fees, disbursements, and taxes.

W. Hourigan J.A.

I agree Robert J.
    Sharpe J.A.

I agree S.E. Pepall
    J.A.

Released: December 22, 2016

RJS

[1]

I do not mean to categorically provide that the
Limitations
    Act, 2002
has no applicability to the passing of accounts process under the
SDA
. In particular, it may be that the filing by a beneficiary of a
    notice of objection after an attorney has sought a passing of accounts is a
    claim within the meaning of the
Limitations Act, 2002
. However, I leave
    this determination to another case where it arises directly on the facts.