COURT OF APPEAL FOR ONTARIO

CITATION: Intact
    Insurance Company of Canada v. Lombard General Insurance Company of Canada,
    2015 ONCA 764

DATE: 20151112

DOCKET: C58290 and C59127

Hoy A.C.J.O., van Rensburg and Benotto JJ.A.

BETWEEN

Intact Insurance Company of Canada

Applicant
    (Respondent)

and

Lombard General Insurance Company of Canada

Respondent
    (Appellant)

AND BETWEEN

Zurich Insurance Company

Respondent (Respondent)

and

TD General Insurance Company

Applicant (Appellant)

Greg Bailey, for the appellant, Lombard General
    Insurance Company of Canada

Joseph Lin and Matthew Stepura, for the respondent,
    Intact Insurance Company of Canada

William G. Woodward and I. Caley Ross, for the appellant,
    TD General Insurance Company

Eric K. Grossman, for the respondent, Zurich Insurance
    Company

Heard: June 22, 2015

On appeal from the order of Justice Victoria R.
    Chiappetta of the Superior Court of Justice dated September 30, 2013, with
    reasons reported at 2013 ONSC 5878, and on appeal from the order of Justice Sidney
    N. Lederman of the Superior Court of Justice dated May 27, 2014, with reasons
    reported at 2014 ONSC 3191.

Hoy A.C.J.O.:

I

OVERVIEW

[1]

On these appeals, we are asked to determine whether the equitable
    doctrine of laches can defeat loss-transfer claims made under s. 275 of the
Insurance
    Act
, R.S.O. 1990, c. I.8 (the Act), and, if so, whether that doctrine
    should defeat the loss-transfer claims in the two instances before us.

[2]

Under s. 268 of the Act, an insurer  a first party insurer  must pay
    statutory accident benefits to its insured when the insured is injured in a
    motor vehicle accident, regardless of fault. The legislature recognized that
    this scheme would result in first party insurers of lighter vehicles bearing a high
    share of the cost of statutory accident benefits, as their drivers are more
    likely to suffer serious personal injuries than the drivers of heavier
    vehicles.
[1]
Section 275 provides a means to shift those costs from the first party insurer
    to another insurer. It permits a first party insurer of a vehicle other than a
    heavy commercial vehicle to claim indemnification for statutory accident
    benefits from the insurer of a heavy commercial vehicle involved in the
    accident  the "second party insurer.
[2]
Indemnification or loss-transfer with respect to this limited class of accidents
    is to be made based on the respective degree of fault of each insurers insured
    as determined under the
Fault Determination Rules
, R.R.O. 1990, Reg.
    668
.
If the insurers are unable to agree with respect to
    indemnification, the dispute is to be resolved by arbitration.

[3]

This court determined that a first party insurer discovers its claim
    under the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B the day
    after the first party insurer makes a request to the second party insurer for
    indemnification under s. 275:
Markel Insurance Co. of Canada v. ING
    Insurance Co. of Canada
,

2012 ONCA 218, 109 O.R. (3d) 652, at paras. 26-27. Thus, the first party
    insurer must initiate arbitration within two years and a day of requesting
    indemnification.
[3]

[4]

The Act imposes strict deadlines on insurers, including a 90-day notice
    period for disputes between insurers as to which insurer is required to respond
    to an accident benefits claim:
Disputes Between Insurers
, O. Reg.
    283/95, s. 3. However, s. 275 does not specify when a first party insurer must
    make its indemnification request. It provides that the first party insurers
    entitlement to indemnification is subject to such terms, conditions,
    provisions, exclusions and limits as may be prescribed, but as of yet no
    condition as to when the first party insurer must make an indemnification
    request has been prescribed. And while the Financial Services Commission of
    Ontario, the licensing and regulating body for insurers in Ontario, issued F.S.C.O.
    Bulletin No. A-11/94, which sets out that the first party insurer should notify
    the second insurer promptly, its bulletin does not create a condition of
    indemnification.

[5]

In the two instances before us, the first party insurers requested
    indemnification  and thereby triggered the running of the two-year limitation
    period  a number of years after the underlying accident occurred. Arbitration
    ensued. As a preliminary issue, each arbitrator determined whether the first
    party insurers delay in making its loss-transfer claim precluded recovery.
    Each losing insurer appealed, and the Superior Court judges hearing the appeals
    arrived at conflicting results. One held that the doctrine of laches can have
    no application to a loss-transfer claim under s. 275 of the
Insurance Act:
    Intact Insurance Co. of Canada v. Lombard General Insurance Co. of Canada
,

2013 ONSC 5878, 26 C.C.L.I. (5th) 158. The other held both that it could,
    and that it defeated the first party insurers claim for loss-transfer:
Zurich
    Insurance Co. v. TD General Insurance Co.
, 2014 ONSC 3191, 120 O.R. (3d)
    278.

[6]

I conclude that the doctrine of laches is not available to a second
    party insurer in defence of a claim under s. 275 of the Act and that, even if
    it were, it would not have defeated the first party insurers claims for
    indemnification in the instances before the court.

[7]

Below, I outline the doctrine of laches, the reasons below and the first
    and second party insurers arguments as to the availability of the doctrine of
    laches as a defence to a loss-transfer claim. I then provide my analysis of
    that question and explain why, even if the doctrine were available, the second
    party insurers could not have successfully relied on it in the two instances
    before the court.

II

THE EQUITABLE DEFENCE OF LACHES

[8]

Historically, statutes of limitations did not apply to equitable claims:
M.(K.) v. M.(H.)
,
[1992] 3 S.C.R. 6, at p. 76. As a result, the
    courts of equity developed their own limitation defences to delayed equitable
    claims, the most important of which was the defence of laches.

[9]

In
M.(K.)
,
the Supreme Court discussed the equitable doctrine
    of laches in defence to a claim in equity. At pp. 77-78, the court stated that
    mere delay is insufficient to trigger laches. To trigger a laches defence, the
    defendant must establish one of two things. The delay of the plaintiff must [constitute]
    acquiescence or [result] in circumstances that make the prosecution of the action
    unreasonable.

[10]

In
Manitoba Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14,
[2013] 1 S.C.R. 623, at
    paras. 145-46, McLachlin C.J.C. and Karakatsanis J., writing for the majority,
    citing
M.(K.)
,
summarized the doctrine as follows:

The equitable doctrine of laches requires a claimant in equity
    to prosecute his claim without undue delay. It does not fix a specific limit,
    but considers the circumstances of each case. In determining whether there has
    been delay amounting to laches, the main considerations are (1) acquiescence on
    the claimants part; and (2) any change of position that has occurred on the
    defendants part that arose from reasonable reliance on the claimants
    acceptance of the
status quo
.

As La Forest J. put it in
M.(K.)
, at pp. 76-77, citing
Lindsay Petroleum Co. v. Hurd
(1874), L.R. 5 P.C. 221, at pp. 239-40:

Two circumstances, always important in such cases, are, the
    length of the delay and the nature of the acts done during the interval, which
    might affect either party and cause a balance of justice or injustice in taking
    the one course or the other, so far as relates to the remedy.

[11]

This court in
Perry, Farley &
    Onyschuk v. Outerbridge Management Ltd.
(2001)
, 54 O.R. (3d) 131 (C.A.)  a decision central to the second
    party insurers arguments on this appeal  described, at para. 36, the second
    branch of
M.(K.)
: A party relying on the defence must show a combination
    of delay and prejudice.

[12]

In
Perry
, the limitations act, to the extent it applied at all, did not
    bar the creditors claim under the
Fraudulent Conveyances Act
, R.S.O.
    1990, c. F.29. The court agreed with the motions judge that the doctrine of
    laches could apply to an action brought by a creditor pursuant to the
Fraudulent
    Conveyances Act

to attack the conveyance of assets as void. The
    doctrine was not unavailable merely because the claim arose under a statute. Sharpe
    J.A., writing for the court, explained at para. 35:

The elements of a claim to set aside a fraudulent conveyance have
    a distinctively equitable flavour and the argument is inconsistent with the
    modern approach to the significance of the intersection between law and equity.

III

THE DECISIONS BELOW

The Lombard Appeal

[13]

In
    the first matter under appeal, Intact Insurance Company of Canada sought
    indemnity from Lombard General Insurance Company of Canada approximately four
    years and seven months after a multi-vehicle accident involving a pickup truck
    insured by Intact and a tractor trailer insured by Lombard.

[14]

When
    the matter proceeded to arbitration, Lombard raised the defence of laches as a
    preliminary matter. The arbitrator, Bruce R. Robinson, concluded, based on
Perry
,
that the doctrine of laches could be applied to loss-transfer claims under s.
    275. He then determined that Intacts failure to make a request for
    indemnification for four years and three months after it was aware of its
    ability to seek loss-transfer from Lombard amounted to acquiescence. Further,
    he concluded that Intacts unexplained delay gave rise to a presumption of
    prejudice; the onus was on Intact to explain that prejudice and it had not done
    so. Therefore, Intact was precluded from proceeding with its loss-transfer
    claim.

[15]

On
    Intacts appeal of Arbitrator Robinsons award to the Superior Court of
    Justice, Chiappetta J. concluded that the laches doctrine does not apply to
    loss-transfer claims under s. 275. She reasoned, at para. 7, that the right to
    loss-transfer indemnity is purely statutory and that, unlike the statutory
    provision considered in

Perry
, it does not have a
    distinctively equitable flavour. She wrote, at para. 10, that [i]t is  not
    appropriate to purposely re-characterize the equitable doctrine of laches in an
    effort to fill a perceived legislative omission, or to augment a statutory
    limitation period.

[16]

She
    further concluded that, even if the doctrine of laches could apply, Arbitrator
    Robinson had erred in concluding that it was made out in this case. At para.
    18, she held that acquiescence requires a plaintiff to fail to react to the
    defendants conduct. Here, there was no evidence that Lombard attempted to deny
    Intact any of its rights: Intact cannot acquiesce to conduct that never
    occurred. And, she wrote at para. 24, a presumption of prejudice arising out
    of delay has no place in the context of a positive laches defence. Lombard was
    required to demonstrate actual prejudice and did not.

[17]

Lombard
    appeals the order of Chiappetta J. setting aside the decision of Arbitrator
    Robinson.

The TD Appeal

[18]

In
    the second matter under appeal, TD General Insurance Company sought indemnity
    from Zurich Insurance Company approximately 11 years after an accident
    involving a heavy commercial vehicle insured by Zurich and an automobile
    insured by TD. Over the decade that followed, TD paid statutory accident
    benefits to its insured. Ten years after the accident, a global mediation was
    held to settle TDs insureds tort claim. TDs insureds accident benefits
    claim settled approximately one week later. TD requested indemnification seven
    months later. TD paid the majority of the amounts for which it sought
    indemnification following the settlement.

[19]

Zurich
    moved before Arbitrator Kenneth J. Bialkowski to have TDs claim dismissed on
    the basis of laches.

[20]

Arbitrator
    Bialkowski declared himself bound by the decision of Chiappetta J. in
Intact
,
    and dismissed Zurichs motion. However, he expressed his disagreement with her
    conclusion that laches should never apply:

I am of the view that there may well be circumstances where laches
    ought [to] apply. If crucial documentation, information or witnesses are no
    longer available by reason of the passage of an inordinate amount of time to
    the prejudice of the second party insurer then laches should be available to
    preclude a loss transfer claim.

[21]

He
    concluded that, even if the doctrine of laches could apply in certain cases, it
    would not apply in this instance. Zurich was required to prove presumed
    prejudice or actual prejudice and it had failed to do so. He wrote that Zurich
    had knowledge of the accident and the personal injury claims resulting from the
    accident. It had defended the tort claim brought by TDs insured and would have
    completed a thorough liability investigation to defend that claim. There was no
    indication that their liability investigation documents were no longer in
    existence or that a crucial witness was no longer available.

[22]

Lederman
    J. allowed Zurichs appeal to the Superior Court. He considered
Perry

and found, at para. 22:

[T]hat Ontarios loss transfer regime possesses an equitable
    flavour because it is designed to address unfairness between participants in
    the provinces insurance industry, and that is a sufficient basis to permit the
    application of the doctrine of laches. Alternatively, I find that the fusion of
    law and equity, which has evolved in order to achieve fairness and justice,
    requires a finding that laches can apply in this case.

[23]

He
    also reasoned that, as the doctrine of laches developed because limitation
    periods did not apply to equitable claims and, as post-
Markel
, there
    is no limitation period governing when a first party insurer must request
    indemnification, applying the doctrine of laches in this situation is
    consistent with the purpose of the doctrine.

[24]

Lederman
    J. held, at para. 28, that Arbitrator Bialkowski had not erred in finding that
    Zurich did not suffer prejudice:

There was evidence that Zurich had knowledge of both the
    accident and the personal injury claims brought by TDs insured; there was no
    suggestion that Zurichs liability documentation was no longer available; nor
    that any crucial witness was no longer available. In the circumstances, his
    conclusion as to prejudice was reasonable and the Court should give deference
    to it.

[25]

However,
    the Arbitrator failed to consider whether there was acquiescence in this case.
    Lederman J. reasoned, at para. 45, that
Manitoba Metis
at least
    implied that in some cases, delay might be interpreted as a clear act by the
    plaintiff amounting to acquiescence. At para. 47, he concluded that, in the
    unique circumstances of this case, TDs delay in requesting loss transfer gave
    rise to an inference that it had abandoned or waived its rights to the claim.

[26]

TD
    appeals Lederman J.s order setting aside Arbitrator Bialkowskis award.

IV

THE POSITIONS OF THE PARTIES: CAN LACHES DEFEAT A CLAIM OF A FIRST PARTY
    INSURER UNDER S. 275?

[27]

The
    second party insurers argue that Ontarios loss-transfer regime has an equitable
    flavour and that, in any event, the fusion of law and equity should permit the
    application of laches to prevent injustice.

[28]

They
    submit that

Perry
and Lederman J.s conclusion find further
    support in
N.A.P.E. v. Memorial University of Newfoundland
(1998), 167
    Nfld. & P.E.I.R. 72 (N.L.C.A.) and
ING Halifax v. Royal &
    SunAlliance Insurance Co. of Canada
(2004),
12 C.C.L.I. (4th) 272 (Ont. S.C.).

[29]

Between
    1986 and 1995, no legislative provision in Newfoundland and Labrador stipulated
    the time within which an application to set aside an arbitration award had to
    be brought. At paras. 84 and 85, the court in
N.A.P.E.
, relying on
Lindsay
    Petroleum
,
concluded that laches could be used to fill the
    limitation gap:
Lindsay Petroleum
speaks generally of utilizing principles
    substantially equitable to fill a limitation gap.

[30]

In
ING
, a first party insurer paid statutory accident benefits to its
    insured then sought and obtained indemnification from the second party insurer
    under s. 275. The insurers subsequently learned that the accident occurred
    while the insured was in the course of employment and therefore was not
    entitled to statutory accident benefits. The second party insurer sought
    reimbursement from the first party insurer, asserting that the first party
    insurer was similarly entitled to reimbursement. E. MacDonald J. held that the
    second party insurer was entitled to rely on the equitable principle of
    restitution to seek repayment of amounts paid to the first party insurer under
    s. 275. This was a claim in equity as opposed to a claim under s. 275.
    Nevertheless, the second party insurers rely on this case as authority for the
    proposition that equity is not foreign to loss-transfer disputes.

[31]

The
    first party insurers, on the other hand, say laches cannot apply to a claim
    under s. 275 of the Act.

[32]

They
    say a loss-transfer claim is a purely statutory claim and does not have the
    distinctively equitable flavour of the action under the
Fraudulent
    Conveyances Act
considered in
Perry
. Moreover, they argue, laches
    does not apply when  as in these cases  a claim is subject to and made within
    a statutory limitation period:
Paul v. 1433295 Ontario Ltd.
, 2013 ONSC
    7002, 120 O.R. (3d) 339, at para. 43; G. Mew,
The Law of Limitations
, 2nd
    ed. (Markham: LexisNexis, 2004), at p. 38.

V

ANALYSIS: CAN LACHES DEFEAT A CLAIM OF A FIRST PARTY INSURER UNDER S.
    275?

[33]

I
    agree with Chiappetta J. that the defence of laches cannot be invoked in
    response to a loss-transfer claim under s. 275. Such a claim is a claim for
    legal relief. In my view, given the historic restriction of laches to claims
    for equitable relief, the removal of the provision preserving the use of
    equitable defences from the
Limitations Act, 2002
and the
    comprehensive nature of the new Ontario limitations scheme, the defence of
    laches cannot be raised to defeat claims for legal relief that are subject to
    the unexpired basic limitation period under the
Limitations Act, 2002
,
even those with an equitable flavour. Accordingly, even if a second party
    insurers right to indemnity under s. 275 might be argued to have an equitable
    flavour because its objective is to re-allocate the cost of statutory accident
    benefits in a more equitable fashion, a second party insurer cannot invoke the
    doctrine of laches as a defence.

Loss Transfer is Not an Equitable Claim or a Claim for
    Equitable Relief

[34]

The
    remedy of indemnification is a direct right to reimbursement:
Addison
    & Leyen Ltd. v. Fraser Milner Casgrain LLP
, 2014 ABCA 230, 577 A.R. 99,
    at para. 22. A party may have a legal claim for indemnity that arises as a
    result of a contract or statute. In the absence of a legal right to indemnity,
    a party may, in a narrow set of circumstances, be able to seek equitable
    indemnification (also referred to as implied indemnity). In
R. v. Imperial
    Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 147, the
    Supreme Court of Canada recently explained:

Equitable indemnity is a narrow doctrine, confined to situations
    of an express or implied understanding that a principal will indemnify its
    agent for acting on the directions given. As stated in
Parmley v. Parmley
,
    [1945] S.C.R. 635, claims of equitable indemnity proceed upon the notion of a
    request which one person makes under circumstances from which the law implies
    that both parties understand that the person who acts upon the request is to be
    indemnified if he does so. [Citations omitted.]

[35]

A
    loss-transfer claim is clearly a statutorily-provided legal right to indemnity
    and not an equitable claim or a claim for equitable relief: see
Markel
,
    at paras. 20 and 26.

Historic Restriction of Laches to Claims for Equitable
    Relief where Limitations Statute Did not Apply

[36]

Historically,
    the doctrine of laches was restricted to claims for equitable relief that were
    not subject to a statutory limitation period. Several of the authorities relied
    on by the second party insurers in this case were decided when the Ontario limitations
    statute did not apply to the equitable claims at issue. Accordingly, these
    cases do not assist in determining whether laches can defeat a legal claim for
    indemnity that is subject to the basic limitation period prescribed under the
Limitations
    Act, 2002
.

[37]

As
    the Supreme Court explained in
M.(K.)
, the courts of equity developed
    their own limitation defences to delayed equitable claims because historically
    statutes of limitations did not apply to equitable claims. In that case, the
    court concluded that the defendant could raise the defence of laches to defeat
    the plaintiffs claim for breach of fiduciary duty.
[4]
At the time, the old
Limitations Act
, R.S.O. 1990, c. L.15 was in
    effect. This act applied only to specified causes of action and not to civil
    actions in general. No relevant limitation period under that Act would have
    applied to the fiduciary duty claim.
The
    limitation periods prescribed under the
Limitations Act, 2002
,
however, apply to all claims  whether
    legal or equitable, arising under statute or common law  unless they are
    specifically exempted from its application. It is undisputed that the
Limitations
    Act, 2002

and the basic limitation period prescribed thereunder apply
    to a claim for indemnification under s. 275 of the Act.

[38]

In
N.A.P.E.
,
there was
    similarly no applicable statutory limitation period. The Newfoundland Court of
    Appeal held that laches could fill a legislative gap.

ING
, the other case relied on by the second party
    insurers,
involved a claim for restitution  an equitable remedy
    and simply recognized that such a claim could be advanced. There was no
    question of delay or the application of the equitable defence of laches.

Absence of a Laches-Saving Provision in the Limitations
    Act, 2002

[39]

Unlike
    the
Limitations Act, 2002
, s. 2 of the old
Limitations Act
specifically
    preserved entitlement to equitable relief. It provided that nothing in that act
    interfered with any rule of equity in refusing relief on the ground of
    acquiescence, or otherwise, to any person whose right to bring an action is not
    barred by virtue of this Act. (For convenience only, I refer in the following
    paragraphs to this section as the laches-saving provision.) The court in
M.(K.)
,
    at p. 70, commented with respect to that section:

This section makes clear that the Act does not exhaust the
    defences available to a defendant because of the passage of time. Thus, certain
    actions expressly made subject to the
Limitations Act
may not yet be
    out of time under the terms of that statute, but may be precluded by equitable
    defences that apply notwithstanding the terms of the Act. The section also
    gives rise to the inference that there is a category of equitable claims not
    subject to the Act at all, and that the equitable defences survive in those
    cases.

[40]

While
    s. 2 was contained in Part I of the old
Limitations Act
, which dealt with
    limitation periods in respect of real property claims, the Supreme Court
    interpreted it as applying generally to all claims under that act. See also:
Susin v. Genstar Development Co.

(2001), 14 C.L.R. (3d) 292 (Ont. S.C.), affd
    (2003), 27 C.L.R. (3d) 161 (Ont. C.A.), at paras. 21-23.

[41]

In
Perry
, which is the cornerstone of the second party insurers
    arguments, the old
Limitations Act
 with its broad laches-saving
    provision in s. 2  was applicable. Nolan J. noted in
Paul
, at para.
    44, that the decision not to include the saving provision from the old
Limitations
    Act
in the
Limitations Act, 2002
could be interpreted as an
    implication by the legislature that, where limitations legislation is
    applicable to claims in equity, equitable remedies are not to be used.

[42]

While
    I refrain from commenting on the availability of equitable remedies generally,
    I agree with the view that the absence of a laches-saving provision from the
Limitations
    Act, 2002
suggests that the equitable defence of laches is not available to
    bar a claim that is brought within the basic limitation period prescribed under
    the
Limitations Act, 2002
. While the mere fact that the laches-saving
    provision was left out of the new Act may not necessarily give rise to a
    presumption that the legislature intended to change the law, the removal takes
    on additional significance when viewed in context. A number of factors support
    the conclusion that the removal of the laches-saving provision in this case was
    intentional.

(a) Consideration of the
    Impact of a New Limitations Scheme on Laches

[43]

The
    need to consider the impact of any legislative changes on the doctrine of laches
    was highlighted in the review of limitations law that preceded the enactment of
    the
Limitations Act, 2002
. However, the laches-saving provision from
    the 1990
Limitations Act

was not included in the
Limitations
    Act, 2002
in the face of decades of consideration.

[44]

In its seminal 1969 report entitled Report on Limitation of Actions
    (the 1969 Report), the Ontario Law Reform Commission recommended the adoption
    of a catch-all provision that would make all claims subject to the new Ontario
    limitations scheme. The Commission cautioned, at p. 22, that when reform of
    limitation laws is being undertaken, careful consideration should be given to
    the role that  laches should play and the consequences that changes would have
    on [this] equitable [defence].

[45]

The
    Commission distinguished between the defence of acquiescence (which it
    described as conduct by which a person has shown himself indifferent to the
    violation of his rights and as something which may arise without delay) and
    laches, which may exist even without any element of acquiescence being present.
    The Commission noted that it seems that acquiescence will always be a defence
    and it makes no difference whether the Act expressly governs the matter or
    not. Laches, on the other hand, could operate as a limitation period by
    analogy, when no statutory limitation period applies. The Commission contemplated
    that the scope of laches would be narrowed once the new act governed all claims
    and would not be applicable to equitable claims generally. It wrote, at pp. 22-23:

Where the Act expressly applies to an equitable claim, delay
    short of the full period is clearly irrelevant.

Once all actions are expressly governed, there will be no need
    for the operation of the doctrine of laches except insofar as the granting of
    certain equitable remedies in aid of legal rights is concerned. Claims for specific
    performance or rescission of a contract, for example, should remain subject to
    the defence of laches. Acquiescence, on the other hand, should continue to be a
    valid defence to the full extent that it now is.

[46]

In
    a 1977 discussion paper, the Ministry of the Attorney General proposed draft
    legislation reflecting this recommendation: it contained a catch-all provision,
    capturing any residual claims not covered by a specified limitation period, and
    preserved the doctrine of laches only in the case of equitable relief claimed
    in aid of a legal right: Ministry of the Attorney General,
Discussion Paper
    on Proposed Limitations Act
(Toronto: Ministry of the Attorney General,
    1977), at pp. 6 and 8.

[47]

In
    1983, the Ontario legislature introduced Bill 160,
An Act to revise the
    Limitations Act
, 3rd Sess, 32nd Leg, Ontario, which would apply generally
    to all claims. Subsection 2(1) of the Bill contained a broader laches-saving
    provision than that recommended by the 1969 Report and 1977 discussion paper,
    explicitly preserving the use of equitable defences to defeat a claim on the
    grounds of acquiescence or undue delay.

[48]

In
    December 1989, the Ministry of the Attorney General established a Limitations
    Act Consultation Group to conduct a comprehensive review of the Ontario
    limitations regime and make recommendations for reform. While it did not
    specifically mention equitable doctrines or the role they should play in the
    new limitations scheme in its subsequent report (the March 1991 Report), the Consultation
    Group referred to the 1969 Report, the 1977 draft legislation and Bill 160 in
    discussing the ongoing attempts to modernize Ontarios limitations scheme and
    endorsed many of the recommendations contained therein: Limitations Act
    Consultation Group,
Recommendations for a New Limitations Act
(Toronto: Ministry of the Attorney General, 1991), at p. 1. The 1969 Report, the
    1977 draft legislation and Bill 160 continued to remain at the forefront as new
    legislation was considered. Despite over three decades of considering the role
    of laches in Ontarios limitations regime, the legislature ultimately did not
    include a laches-saving provision in the
Limitations Act, 2002
.

(b) Laches-Saving
    Provision in the Real Property Limitations Act

[49]

While
    the legislature did not include a laches-saving provision in the
Limitations
    Act, 2002
, it preserved s. 2 of the old
Limitations Act
in the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15.

[50]

In
    its March 1991 Report, the Consultation Group had recommended further review of
    Part I of the old
Limitations Act
 the provisions in respect of
    actions affecting real property (primarily to recover land or rent or relating
    to charges on land). It also expressed concern that such further review not
    delay the implementation of the balance of the proposed reforms. The
    legislature acted on that recommendation. In 2002, it repealed Parts II and III
    of the old
Limitations Act
,
leaving only the definitions and
    Part I. To reflect this narrowed scope, the old
Limitations Act
was
    renamed the
Real Property Limitations Act
and the
Limitations Act,
    2002
,
which came into effect on January 1, 2004, was enacted to
    deal with limitation periods other than those affecting real property. The fact
    that the legislature extricated Part I of the old
Limitations Act

    including the laches-saving provision in s. 2  and enacted it as
the
Real Property Limitations Act
without
    adding a general laches-saving provision to the
Limitations Act, 2002
might
    suggest that it had always intended that the laches-saving provision apply only
    to real property claims.

(c) Other Common Law
    Provinces Retained a Laches-Saving Provision

[51]

Ontario
    was one of the last provinces to adopt a limitations statute that applies to
    civil actions generally. At the time the
Limitations Act, 2002

was
    enacted, every other common law province where the limitations legislation
    governed all civil actions contained a laches-saving provision, expressly
    preserving the application of equitable doctrines, notwithstanding that the
    applicable limitation period had not expired.
[5]
The drafters of the
Limitations Act, 2002

would have been
    familiar with this legislation and the widespread retention of a laches-saving
    provision in the context of generally applicable limitations statutes. A number
    of these provinces have recently amended their limitations legislation to adopt
    a uniform limitation period applying to all claims, similar to the
Limitations
    Act, 2002
. With the exception of Nova Scotia, these amended acts continue
    to retain a laches-saving provision.
[6]
The absence of such a provision in Ontario is therefore noteworthy.

[52]

The
    legislatures removal of the laches-saving provision overrules any suggestion
    in
Perry
that laches might bar the commencement of a proceeding to
    pursue an unexpired legal claim to which the basic limitation period prescribed
    by the
Limitations Act, 2002
applies. Indeed, even in the presence of
    such a provision, this court has held that [s]o long as the action was
    instituted within the limitation period, the question of laches does not arise:
F.(L.) v. F.(J.R.)
(2001),
144 O.A.C. 372 (C.A.), at para. 6.

Comprehensive Nature of the Limitations Act, 2002

[53]

The
    deletion of the laches-saving provision from the
Limitations Act, 2002

coincided with a major reform of the existing limitations law in Ontario
    and a shift toward a more comprehensive scheme that aims to provide certainty
    and clarity to litigants.

[54]

As
    I note above, the old
Limitations Act
applied only to a closed list of
    enumerated causes of action and not to civil actions in general. Equitable
    causes of action, with few exceptions, were outside of its scope. The
Limitations
    Act, 2002
represents a revised, comprehensive approach to the limitation
    of actions:
Joseph v. Paramount Canadas Wonderland
, 2008 ONCA 469
, 90 O.R. (3d) 401, at para.
    8. In
Joseph
, this court concluded that the common law doctrine of
    special circumstances had no application under the new, comprehensive
Limitations
    Act, 2002
. That doctrine had allowed a court to add or substitute a party
    or to add a cause of action after the expiry of a limitation period where
    special circumstances existed, unless the change would cause prejudice that
    could not be compensated for with either costs or an adjournment. Permitting a
    defendant to invoke the equitable doctrine of laches because a legal claim has
    an equitable flavour would be inconsistent with the comprehensive approach to
    the limitation of actions represented by the
Limitations Act, 2002
.

[55]

Permitting
    a defendant to rely on the defence of laches where the claim is a legal claim
    and subject to and within the basic limitation period prescribed under the
Limitations
    Act, 2002
would also be counter to the purpose of that Act of promoting
    certainty and clarity in the law of limitation periods:
msi Spergel Inc. v.
    I.F. Propco Holdings (Ontario) 36 Ltd.
,
2013 ONCA 550, 117 O.R.
    (3d) 81, at para. 61.

[56]

Given
    the comprehensive approach of, and absence of a laches-saving provision in, the
Limitations Act, 2002
, together with the historic restriction of
    laches to claims for equitable relief, I am satisfied that a second party
    insurer cannot invoke the doctrine of laches as a defence to a first party
    insurers legal claim for indemnity.

Scope of Decision and Impact on Equitable Defences

Generally

[57]

I
    wish to make clear that this decision does not address the availability of
    equitable defences (such as waiver, estoppel and acquiescence) to the extent not
    founded solely on a plaintiffs delay in initiating its claim. Nor do I suggest
    that delay in seeking equitable relief such as an injunction could not be a
    relevant factor in deciding whether such equitable relief should be granted.
    This decision considers whether a defendant seeking legal relief within the
    basic limitation period prescribed under the
Limitations Act, 2002
can
    rely on the delay-based defence of laches.

[58]

In
    coming to my conclusion, I am mindful of the fact that the arbitrators in the
    loss-transfer disputes (
Federation Insurance Co. of Canada v. Kingsway
    General Insurance Co.
,
2010
    CarswellOnt 17903 (Ins. Arb.) (S. Densem), at p. 16, and
ING Insurance Co.
    of Canada v. Markel Insurance Co. of Canada
(4 April 2011), Toronto (Ins. Arb.)
    (L. Samis), at p. 10) that led to this courts decision in
Markel
,
    either assumed or contemplated that the doctrine of laches could be available
    to a second party insurer where the first party insurer had been exceptionally
    dilatory in seeking indemnification.

[59]

However,
    I am not persuaded that the inability to invoke the doctrine of laches is as
    significant an issue for second party insurers as they argue. First, it is in a
    first party insurers best interests to request indemnification under s. 275
    promptly. It will only obtain payment from the second party insurer if it
    requests payment. Presumably, therefore, any instances of exceptional delay
    would be the result of inadvertence and would not be commonplace. Second, the
    Act and the regulations under the Act are the subject of frequent amendment. What
    the second party insurers characterize as a legislative gap could seemingly
    be filled by the enactment of regulations. Finally, given the requirements of
    the doctrine of laches, the situations in which a second party insurer could
    have successfully invoked the doctrine would have been very limited. As I
    discuss below, neither Lombard nor Zurich would have been able to rely on
    laches in the cases under consideration.

VI

COULD THE SECOND PARTY INSURERS HAVE RELIED ON LACHES IN THESE CASES?

[60]

To
    rely on the doctrine of laches a defendant must establish that in all the
    circumstances the delay was unreasonable and either that:

(1)

the
    delay by the claimant constituted acquiescence of the defendants conduct; or

(2)

the claimants
    delay resulted in
actual
prejudice to the defendant that would make the
    action unreasonable or unjust.

Manitoba Metis
, at paras.
    145-46;
M.(K.)
, at pp. 76-78;
Perry
, at para. 36;
Lindsay
    Petroleum
, at pp. 239-240,
N.A.P.E. v. Memorial University of
    Newfoundland

(1995), 132 Nfld. & P.E.I.R. 205 (N.L. T.D.),
    affd (1998), 167 Nfld. & P.E.I.R. 72 (N.L. C.A.), at paras. 42, 44, 49-50,
    52-55.

[61]

At
    p. 78 of
M.(K.)
, the Supreme Court explained what acquiescence means
    in the context of laches: after the deprivation of her rights and in the full
    knowledge of their existence, the plaintiff delays. This leads to an inference
    that her rights have been waived.

[62]

Contrary
    to the second party insurers submissions, the notion of a presumption of
    prejudice arising from the passage of time which surfaces in other contexts
    has no place in this equitable doctrine. This is clear from
Perry
and
Manitoba
    Metis
. In
Perry
,
the court indicated that the defendant must show  prejudice and set aside
    the summary judgment below because the motion judge had not specified the
    nature of the prejudice suffered by the defendants that would justify barring
    the claim.
Manitoba Metis
directed, at para. 145, that under the
    second branch of the test in
M.(K.)
the court must consider whether
    there was any change of position that has occurred on the defendants part
    that arose from reasonable reliance on the claimants acceptance of the
status
    quo
.

[63]

The
    party seeking to rely on the defence of laches must show actual prejudice.

[64]

Accordingly,
    in the context of a claim under s. 275 of the Act, a second party insurer
    seeking to rely on the second branch of the test would have to establish that
    the first party insurers delay resulted in
actual
prejudice to the
    second party insurer that would make a determination of the loss-transfer,
    based on the Fault Determination Rules, unreasonable or unjust.

[65]

Neither Lombard nor Zurich could have successfully invoked
    the doctrine of laches in these cases.

The Lombard Appeal

[66]

I
    agree with Chiappetta J. that the defence of laches, if applicable, was not
    made out.

[67]

Lombard
    did not establish acquiescence. As Chiappetta J. wrote, at para. 18, there was
    no evidence that Lombard attempted to deprive Intact of any of its rights.
    Indeed, it is difficult to envisage a situation where a second party insurer
    could successfully invoke laches in response to a first party insurers claim
    for indemnification under s. 275 based on acquiescence.

[68]

And,
    as Chiappetta J. wrote, at para. 25, Lombard was required to demonstrate actual
    prejudice and did not.

The TD Appeal

[69]

I disagree with Lederman J. that acquiescence was made out simply
    because of TDs delay. While delay

after a plaintiff has been deprived
    of her rights

can give rise to an inference that her rights have been
    waived, Zurich had not deprived TD of any rights. TDs delay in making a loss-transfer
    claim therefore could not constitute acquiescence in the context of laches.

[70]

Manitoba
    Metis
was central to Lederman J.s reasoning. With respect,
Manitoba
    Metis
does not permit a finding of acquiescence where  as here  the
    claimant has not been denied any rights.

[71]

In
Manitoba Metis
, the majority concluded that the doctrine of laches did
    not bar a claim by Métis claimants that the Crown failed to implement its
    land-grant obligations to the Métis people enshrined in the
Manitoba Act,
    1870
,
S.C. 1870, c. 3, in a manner consistent with the honour of
    the Crown.

[72]

In
    addressing the issue of acquiescence, the majority focussed on, among other
    things, the imbalance in power between the Métis people and Crown. At para.
    147, the majority concluded that, in the context of that case, the delay of
    more than 100 years could not by itself be interpreted as some clear act by
    the claimants which amounts to acquiescence or waiver.

[73]

Lederman J. interpreted this passage as implying that, in some cases,
    delay alone might be interpreted as giving rise to an inference that a claimant
    had abandoned its rights and that the claimant need not have been deprived of
    any rights. However, the majority found that the Métis people had been deprived
    of rights: the federal Crown had failed to implement the land grant provisions
    set out in the
Manitoba Act
in accordance with the honour of the
    Crown. The statement on which Lederman J. relied was made in that context and
    must in my view be interpreted in that light.

[74]

As
    to prejudice, Arbitrator Bialkowski determined that Zurich had failed to prove
    prejudice, and Lederman J. held that the Arbitrators conclusion was
    reasonable. I agree with Lederman J.s analysis and conclusion on this issue.

VII

DISPOSITION

[75]

I
    would dismiss the Lombard appeal and allow the TD appeal. In accordance with
    the agreement of the parties, I make no order as to costs of these appeals.

Released: AH  NOV 12 2015

Alexandra Hoy
    A.C.J.O.

I agree K. van
    Rensburg J.A.

I agree M.L. Benotto
    J.A.

[1]

Jevco Insurance Co. v. Wawanesa Insurance Co.
(1998), 42 O.R. (3d) 276 (Gen. Div.), at p. 286
.
    See also
Royal Insurance Co. v. Wawanesa Mutual Insurance Co.
, [2004]
    O.J. No. 2924 (S.C.), at para. 3, affd, (2005), 25 C.C.L.I. (4th) 120 (Ont.
    C.A.).

[2]
Loss transfer also benefits insurers of motorcycles and motorized snow
    vehicles. An insurer of a motorcycle or motorized snow vehicle may claim
    indemnification for statutory accident benefits from the insurer of another
    vehicle involved in the accident, as long as that other vehicle is not a
    motorcycle, motorized snow vehicle or off-road vehicle.

[3]
The provisions of the
Limitations Act, 2002
apply to an arbitration as
    if the arbitration were an action and a claim made in the arbitration were a
    cause of action:
Arbitration Act
,
1991
, S.O. 1991, c. 17, s.
    52(1).

[4]
It concluded, however, that the defence was not made out in the circumstances.

[5]

Limitations Act
, R.S.A. 2000, c. L-12, ss. 3 and 10;
Limitation
    Act
, R.S.B.C. 1996, c. 266, ss. 3(5) and 2, as repealed by S.B.C. 2012, c.
    13, s. 31;
The Limitation of Actions Act
, C.C.S.M. c. L150, ss.
    2(1)(n) and 59;
Limitation of Actions Act
, R.S.N.B. 1973, c. L-8, ss.
    9 and 65, as repealed by 2009, c. L-8.5, ss. 34(3) and 34(17);
Limitations
    Act
, S.N.L. 1995, c. L-16.1, ss. 9 and 3;
Limitation of Actions Act
,
    R.S.N.W.T. 1988, c. L-8, ss. 2(1)(j) and 49;
Limitation of Actions Act
,
    R.S.N.W.T. 1988, c. L-8, ss. 2(1)(j) and 49, as amended by S.Nu. 2013, c.20, s.
    23;
Statute of Limitations
, R.S.P.E.I. 1988, c. S-7, ss. 2(1)(g) and
    51;
The Limitation of Actions Act
, R.S.S. 1978, c. L-15, ss. 3(1)(j)
    and 51, as repealed by
The Limitations Act,
S.S. 2004, c. L-16.1, s. 28;
Limitation of Actions Act
, R.S.Y. 2002, c. 139, ss. 2(1)(j) and 50.

[6]

Limitation Act,
S.B.C. 2012, c. 13, s. 5;
Limitation of Actions Act
,

S.N.B. 2009, c. L-8.5;
The Limitations Act
, S.S. 2004, c. L-16.1.


COURT OF APPEAL FOR ONTARIO

CITATION:  James Bay Resources Limited v. Mak Mera Nigeria
    Limited, 2015 ONCA 781

DATE: 20151117

DOCKET: C60321

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

James Bay Resources Limited

Plaintiff

(Respondent)

and

Mak Mera
    Nigeria Limited a.k.a. Mak Mera Limited and

Adewale
    Olorunsola a.k.a. Wale Sola

Defendants

(Appellants)

Mark Crane and Niklas Holmberg, for the appellants

Hilary Book and Nadia Chiesa, for the respondent

Heard:  November 5, 2015

On appeal from the order of Justice P. M. Perell of the Superior
    Court of Justice, dated March 9, 2015, with reasons reported at 2015 ONSC 1538.

MacFarland J.A.:

[1]

This is an appeal from the motions judges order dismissing the
    appellants motion to stay the within action on the grounds that the Ontario
    courts lacked jurisdiction simpliciter and Ontario was not the convenient forum
    for the determination of the dispute between the parties.

[2]

The factual background is fully detailed in the motion judges reasons
    at paras. 3-23. In short, the respondent entered into a Memorandum of
    Understanding (MOU) with the appellant Wale Sola dated March 3, 2011. The MOU was
    negotiated and signed in Ontario. It sets out an arrangement between the
    parties with respect to the acquisition of Nigerian oil and gas assets.

[3]

On February 12, 2012, the respondent and the appellant Mak Mera Limited
    entered into a Letter Agreement (LA) which replaced the earlier MOU. The LA  is
    far more detailed than the MOU. Wale Sola signed both the MOU and the LA.

[4]

A dispute arose between the parties in respect of their contractual
    arrangements and that dispute was fuelled by a letter sent by Mak Mera and Mak
    Mera Nigeria Limited to Royal Dutch Shell PLL on July 2, 2014. The letter was
    copied to the respondent as well as many others, including the Nigerian
    Ambassador to Canada and a number of officials of the Nigerian government.
    Absent truth, the statements made in the letter are quite clearly defamatory of
    the respondent.

[5]

By Statement of Claim issued September 4, 2014, the respondent commenced
    proceedings against Mak Mera Nigeria Limited and Wale Sola in Ontario.

[6]

On September 16, 2014 Mak Mera Nigeria Limited, Wale Sola and Solas
    father-in-law (a Nigerian resident and chairman of Mak Mera) commenced an
    action in Nigeria against numerous parties including the respondent and its
    CEO, Stephen Shafsky. Some of the claims in the Nigerian action are similar to
    those in the Ontario action.

[7]

The respondent moved in The Federal High Court of Nigeria to strike the
    Nigerian action on grounds that the Nigerian court lacked jurisdiction and was
    unsuccessful. The respondent is appealing that order.

[8]

On March 2, 2015, the appellants moved to strike or permanently stay the
    Ontario action. In his reasons the motion judge concluded that Ontario had
    jurisdiction simpliciter and identified several presumptive factors that would
    apply, including that Wale Sola is an Ontario resident and both the MOU and the
    LA were negotiated and signed in Ontario. He observed that the latter provides
    that it is governed by Ontario law and contains a choice of forum clause that
    names Ontario as the jurisdiction where any disputes would be resolved.

[9]

In para. 28 of his reasons he noted:

Neither Mak Mera nor Mr. Sola has advanced any cogent argument
    that there is a rebuttal of the contractual connection as a presumptive factor.
    Their arguments may be relevant to the issue of forum conveniens, but
    jurisdiction simpliciter is not rebutted.

[10]

In
    this court the appellants made no oral submissions on this issue but relied on
    their factum. I would echo the observation of the motion judge in relation to
    those submissions. The arguments raised go to the merits of the claims and the
    interpretive exercise that awaits the trial judge. Whether the agreements
    contemplated the payment of success fees on the achievement of certain
    milestones or merely payments on account for services rendered go to the
    merits of the issues that will be litigated. They do not displace or challenge
    the fact that both agreements were negotiated and signed in Ontario and that Mr. Sola
    is resident in Ontario - both strong, presumptive factors.

[11]

The
    appellants argue that the motion judge erred in law in failing to specifically
    consider comity in his analysis, relying on the 1993 decision of the Supreme
    Court of Canada in
Amchem Products Inc. v. British Columbia (Workers
    Compensation Board)
. That case dealt with anti-suit injunctions and is
    factually dissimilar to this case. Since
Amchem
the Supreme Court of
    Canada has released its decision in
Van Breda v. Village Resorts
, [2012]
    1 S.C.R. 572 which has over-taken the prior jurisprudence dealing with
    jurisdiction and forum conveniens issues. At para. 74 of
Van Breda
the
    court had this to say in relation to comity:

The goal of the modern conflicts system is to facilitate
    exchanges and communications between people in different  jurisdictions that
    have different legal systems. In this sense it rests on the principle of
    comity. But comity itself is a very flexible concept. It cannot be understood
    as a set of well-defined rules, but rather as an attitude of respect for and
    deference to other states and, in the Canadian context, respect for and
    deference to other provinces and their courts (citations omitted) Comity
    cannot  subsist in private international law without order, which requires a
    degree of stability and predictability in the development and application of
    the rules governing international or interprovincial relationships. Fairness
    and justice are necessary characteristics of a legal system, but they cannot be
    divorced from the requirements of predictability and stability which assure
    order in the conflicts system. In the words of La Forest J. in Morguard, what
    must underlie a modern system of private international law are principles of
    order and fairness, principles that ensure security of transactions with
    justice

[12]

Comity
    is not a stand-alone factor. It is part and parcel of the
forum non
    conveniens
assessment in a given case. In
Teck Cominco Metals Ltd. v.
    Lloyds Underwriters et al
., [2009] 1 S.C.R. 321 (which decision is quoted
    in
Van Breda
) the Chief Justice says at para 21:

The first argument is that s.11 of the
[Court
    Jurisdiction and Proceedings Transfer Act

(CJPTA)] does not apply
    where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA
    creates a comprehensive regime that applies to all cases where stay of
    proceedings is sought on the grounds that the action should be pursued in a
    different jurisdiction (
forum non conveniens
). It requires that in
    every case, including cases where a foreign judge has asserted jurisdiction in
    parallel proceedings, all relevant factors listed in s. 11 be considered in
    order to determine if a stay of proceedings is warranted. This includes  the
    desirability of avoiding a multiplicity of legal proceedings. But the prior
    assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.

And further at para 23:

Teck submits that the usual multi-factored test under s. 11
    of the CJPTA must give way to a comity- Based test when a foreign court
    positively asserts jurisdiction. To the extent this argument implies  that the
    usual test does not give due comity to foreign courts, it must be rejected.
    Section 11 is itself a comity-based approach.

[13]

While
    the court in
Teck
was dealing with a British Columbia case and in that
    province a statute  the
CJTPA
 is intended to codify the
    determination of jurisdictional issues, a review of s.11 of the
CJPTA
reveals
    that it is very much  a codification of the factors set out by LeBel J. in
Van
    Breda
that a court should take into consideration when it considers the
    issue of forum  non-conveniens. All this to say, I would reject the submission
    that the  motion  judge failed to consider comity in his analysis. He did so
    implicitly when he outlined and considered all of the relevant factors in
    coming to his conclusion that Nigeria was not the more convenient forum.

[14]

In
    paras. 31 through 33 of his reasons, the motion judge reviews the law that
    applies and then considers the factual matrix of the specific matter before
    him.

[15]

The
    motion judge was aware of the Nigerian litigation begun after this action had
    been started in Canada. He was aware that the respondent had filed a statement
    of defence in that action, had brought an unsuccessful  motion to strike the
    Nigerian action on the basis the Nigerian court lacked jurisdiction, and was
    appealing the dismissal of his motion to strike. The appellants argue that by
    filing a statement of defence the respondent has attorned to the jurisdiction
    of the Nigerian court. The appellants make this argument in the absence of any
    evidence as to what the Nigerian law is on this point. Mr. Shafsky is his
    affidavit (para. 36) deposes that he did not understand that by filing a
    defence he was attorning to the jurisdiction. His statement is borne out by the
    fact that the respondent brought its motion to strike before the Nigerian
    Court. I would not give effect to this argument.

[16]

I
    turn next to the proposed fresh evidence. The appellants sought at the
    hearing of the appeal, for the first time, to file the reasons of the Federal
    High Court of Nigeria for dismissing the respondents motion to strike. Although
    the reasons were released February 2, 2015 and the motion before Perell J. was heard
    March 2, 2015, the reasons were not before the motion judge. The appellants did
    not bring a motion to admit fresh evidence; counsel simply sought to file the
    reasons and rely on them. The appellants argue that the motion judge erred in
    failing to consider these reasons, although they were not before him. The
    unfairness to the motion judge in proceeding this way is self-evident. In any
    event, the appellants could not, in view of the availability of these reasons
    before the hearing of the motion, meet the
Palmer
test.  I would
    decline to consider the fresh evidence.

[17]

In conclusion, I agree with the motion judges conclusion that
    Balancing all factors, Nigeria is not clearly the appropriate forum for the
    dispute, and Ontario is not
forum non conveniens
.

The motion judge did not err in dismissing the
    appellants motion to stay this action.

[18]

I
    would dismiss this appeal. I would award costs to the respondent fixed in the
    sum of $7,500 inclusive of disbursements and HST.

Released:  November 17, 2015 AH

J.
    MacFarland J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Labelle (Re), 2015 ONCA 736

DATE: 20151102

DOCKET: C60106

Hoy A.C.J.O., Laskin and Pardu JJ.A.

IN THE MATTER OF: DANIEL LABELLE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anna Cooper, for the appellant

Dena Bonnet, for the respondent Crown

Janice Blackburn, for the Person in Charge, Waypoint
    Centre for Mental Health Care

Heard and released orally:  October 27, 2015

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

ENDORSEMENT

[1]

The appellant appeals the December 18, 2014 disposition of the Ontario
    Review Board ordering that he continue his detention at the Waypoint Centre for
    Mental Health Care.  The appellant had requested a transfer to either the
    Brockville Mental Health Centre or the Providence Villa in Kingston  less
    secure facilities than Waypoint.  The appellant argues that the Board erred in
    law because it failed to issue the least onerous and restrictive disposition in
    the circumstances.  We reject this submission.

[2]

The Board applied the correct test.  The appellant has a history of
    severe violence.  In the course of the prior year, the appellant violently
    attacked a co-patient, was involved in other altercations with co-patients, and
    had numerous angry, verbal outbursts in response to interactions with staff and
    co-workers.  The appellants medication had been changed only five weeks before
    the appellants hearing before the Board.  The Board considered the evidence of
    Dr. McGavin that the appellants illness required that he be detained in a
    secure hospital until his condition stabilized.  The Board concluded that it
    was necessary for the protection of the public that he continue at Waypoint.
    The Boards decision that continued detention was necessary and appropriate was
    reasonable and fully supported by the evidence.

[3]

This appeal is accordingly dismissed.

Alexandra Hoy A.C.J.O.

John I. Laskin J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laurentian Bank of Canada v. Deslandes, 2015 ONCA
    742

DATE: 20151104

DOCKET: C59794

Blair, Hourigan and Brown JJ.A.

BETWEEN

Laurentian Bank of Canada

Plaintiff (Respondent)

and

Danna Deslandes

Appellant

Danna Deslandes, acting in person

James M. Butson, for the respondent

Heard orally:  October 28, 2015

On appeal from the judgment of Justice G. Miller of the Superior
    Court of Justice, dated December 10, 2014.

ENDORSEMENT

[1]

Ms. Deslandes seeks to
    set aside the summary judgment granted by G. Miller J. on December 10,
    2014 based on her default under a mortgage in favour of the Plaintiff Bank on
    condominium property she owns in Cambridge Ontario. She has not made any
    payments on account of principal and interest since May 2014 and stopped paying
    common element fees in November 2013.

[2]

The judgment ordered
    Ms. Deslandes to pay to the Bank the sum of $124,409.99 in arrears of principal
    (the Bank had paid the common element fee and charged them against the
    mortgage, as it was entitled to do) plus post-judgment interest and costs.  It
    also granted possession to the Bank.

[3]

In her defence, Ms.
    Deslandes raised a number of issues, including the submission that her name had
    been expropriated for use in connection with the property, that she was a
    tenant and not an owner and that she believed the Bank was acting on her behalf
    for investment purposes and she had not received any dividends.

[4]

None of these arguments
    is born out on the record and none provides a defence to the default under the
    mortgage.

[5]

While we are empathetic
    to Ms. Deslandes personal situation, there is no genuine issue requiring a
    trial on the default under the Charge, and summary judgment was properly
    granted.

[6]

The appeal is therefore
    dismissed.

[7]

Costs to the respondent
    fixed in the amount of $2,500.00 all inclusive.

R.
    A. Blair J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Le Feuvre (Re), 2015 ONCA 796

DATE: 20151120

DOCKET: C60156

Doherty, Laskin and Tulloch JJ.A.

In the Matter of: Geoffrey Le Feuvre

An Appeal under Part XX.1 of the
Code

Geoffrey Le Feuvre, appearing in person

Ken Berger, for the appellant

Greg Skerkowski, for the respondent Crown

Kathryn Hunt, for the Person in Charge of the Centre for
    Mental Health and Addiction

Heard and released orally: November 13, 2015

On appeal against the disposition of the Ontario Review
    Board dated, January 30, 2015.

ENDORSEMENT

[1]

Geoffrey Le Feuvre appeals an order of the Ontario Review Board dated
    January 30, 2015 transferring him from the general forensic unit of CAMH to the
    secure forensic unit. He submits that the Boards decision was unreasonable and
    was largely based on the appellants repeated violation of the Hospitals
    anti-smoking policy  a violation that had nothing to do with his risk to
    public safety. He asks that we reinstate his detention on the general forensic
    unit.

[2]

The background to this appeal is as follows. The appellant was found NCR
    by reason of mental disorder in 2007 for a series of attacks on strangers and
    related damage to property. He has been diagnosed as suffering from bipolar
    disorder, anti-personality traits and substance dependence. He is now 63 years
    old. He accepts that he continues to pose a significant threat to the safety of
    the public and therefore his continued detention is justified. The focus of
    this appeal is on the conditions of his detention.

[3]

Since coming under the jurisdiction of the Board in 2007, and up until
    his last hearing this past January, the appellant had been detained on the
    general forensic unit of the Hospital with privileges that included indirectly
    supervised passes and the possibility of living in the community in
    accommodation approved by the Hospital. At his last hearing however, the
    Hospital recommended that the appellant be transferred to the secure unit. Its
    recommendation was supported by the evidence of Dr. Iosef.

[4]

The basis of the Hospitals recommendation was that because the appellant
    repeatedly breached the Hospitals anti-smoking policy and because he had
    smoked crack cocaine on the unit in August 2014, he can no longer be trusted
    with indirectly supervised passes. His use of those passes was thus suspended.
    Without indirectly supervised passes his detention on the general unit had
    become restrictive. He could use passes only when staff were available and the
    Hospital has limited staff on the general unit. His detention on the general
    unit therefore prevented him from continuously attending off-unit programs,
    especially the substance relapse prevention program, which he acknowledges he
    needs, indeed has requested, and has benefitted from.

[5]

By contrast, on the secure unit more staff is available and the
    appellant would be better able to attend off-unit programs. Also, he would be
    able to attend on-site substance relapse prevention programs, which are not
    available on the general forensic unit.

[6]

The Board accepted the Hospitals recommendation but made what is known
    as a hybrid order, that is the appellant was ordered to be transferred to the
    secure unit, but the Hospital was given discretion to transfer him back to the
    general unit if warranted by his clinical condition. In ordering the
    appellants transfer to the secure unit, the Board accepted that the appellant
    did not pose an increased risk to public safety. The essence of why it ordered
    the transfer is contained in the following paragraph of its reasons:

And yet the reality is that Mr. Le Feuvre remains on the
    general forensic unit not being given any indirectly supervised passes for the
    foreseeable future. As a result, he is unable to engage in ongoing substance
    abuse programming which he needs due to staffing issues. Mr. Le Feuvre has
    spent seven years on the general forensic unit without the ability to move
    forward, due to his behaviour. The present situation is not conducive to his
    rehabilitation and reintegration into the community, which are factors for our
    consideration as set out in s. 672.54.

[7]

In determining a condition of an accuseds detention under s. 672.54(c)
    of the
Criminal Code
, the Board must make a disposition that is
    necessary and appropriate, and that takes into account the reintegration of the
    accused into society. In our view, the Boards disposition met these requirements
    and therefore is reasonable. The Board found that, in reality, despite the
    units names, the appellants detention on the secure unit would be less
    onerous and less restrictive and would enhance his rehabilitation and
    reintegration into society. It would better enable him to access the
    therapeutic programming and counselling that he needs.

[8]

As we defer to the Boards disposition, the appeal is dismissed.

Doherty
    J.A.

John
    Laskin J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Martin-Vandenhende
    v. Myslik, 2015 ONCA 806

DATE: 20151124

DOCKET: C58650

MacPherson, Epstein and Roberts JJ.A.

BETWEEN

Janice Martin-Vandenhende

Plaintiff (Appellant)

and

Peter Myslik and Edward Myslik

Defendants (Respondents)

Nicolas M. Rouleau, for the appellant

David M. Miller, for the respondents

Heard: June 9, 2015

On appeal from the judgment of Justice Terrence L.J.
    Patterson of the Superior Court of Justice, dated March 19, 2014.

Epstein J.A.:

OVERVIEW

[1]

Late in the afternoon on New Years Eve 2001, the
    appellant, Janice Martin-Vandenhende, left her place of work and drove her Toyota
    Camry south on Erie Street, a two-lane roadway in the town of Ridgetown.  The
    respondents, Peter Myslik and his father, Edward Myslik, were behind her in a GM
    pickup truck.  Peter Myslik was driving.  His father was in the passenger seat.

[2]

Ms. Martin-Vandenhende realized she had left something
    behind.  She decided to turn left into a private driveway to turn around and go
    back to work to retrieve the item.  As she started the turn, the Myslik vehicle
    came up from behind and collided with the left side of the back of her car.

[3]

Ms. Martin-Vandenhende was injured and taken to
    hospital.  No charges were laid.

[4]

The amount of damages has been settled.
    Liability remains in issue.

[5]

During the 14 years since the accident, two
    trials have taken place to determine responsibility for the collision.  The
    first trial judge, Thomas J., held that Peter Myslik was 100 percent at fault. The
    Mysliks appealed.  The appeal was allowed and a new trial ordered. The second
    trial judge, Patterson J., apportioned 50 percent liability to both parties.

[6]

Ms. Martin-Vandenhende appeals.  She asks this
    court to overturn the trial judges finding of contributory negligence against
    her on the grounds that she neither breached the standard of care nor caused
    the accident.   Alternatively, Ms. Martin-Vandenhende seeks to reduce her
    degree of responsibility to between five to ten percent.

[7]

Based on the following analysis, I would allow
    the appeal.  I would set aside the judgment and hold Peter Myslik 90 percent
    responsible for the collision and Ms. Martin-Vandenhende 10 percent responsible.

THE CIRCUMSTANCES SURROUNDING THE COLLISION

[8]

The posted speed limit on Erie Street where the
    accident took place was 60 k.p.h.  Each of the two paved lanes was just over 11
    feet wide. There was evidence that at the location where the collision took
    place, the gravel shoulder was approximately two to three feet wide and sloped
    sharply away from the road. The centre line was a single solid yellow line.

[9]

Driving conditions were not good. It was snowing
    heavily on the day of the accident.  The roads were slippery. Snow was blowing,
    impairing visibility. The centre line could not be seen, although the shoulder
    remained discernible.

[10]

The evidence differed as to the circumstances
    surrounding the collision.

[11]

Ms. Martin-Vandenhendes evidence was that due
    to the weather and road conditions, she was traveling below the speed limit. Since
    she could not see the centre line, she was driving on the right side of the lane
    so she could use the shoulder to help her determine her position on the road.

[12]

Ms. Martin-Vandenhende described her actions after
    identifying the driveway where she could turn around, as follows.

[13]

She applied her brakes, reduced her speed to
    approximately 20 to 30 k.p.h., and activated her left-turn signal approximately
    75 feet before the accident site.  She then started to make a gradual left turn.
    Ms. Martin-Vandenhende testified that she could not recall whether, before the
    impact, she looked in her mirrors or checked her blind spot to determine whether
    there was any traffic approaching from behind.  Her evidence was that because
    of the weather conditions, she was focusing on the driveway and what was ahead.

[14]

According to Ms. Martin-Vandenhende, as she
    angled her car left toward the centre line, the back of her car was hit by
    another vehicle.  When the accident took place, the front of her car was near,
    but not over, the centre line of Erie Street. The impact of the collision was
    severe.

[15]

Peter Myslik testified that as he was driving
    southbound on Erie Street, he saw a Camry about 200 to 300 yards ahead.  He was
    driving about 50 to 60 k.p.h. and was catching up to it.

[16]

According to the Mysliks, when the two vehicles were
    about 100 yards apart, the driver of the Camry signaled right and moved to the right
    shoulder. The Camry slowed down to the point of almost stopping.

[17]

Peter Myslik testified that based on the
    movement of the Camry, he concluded that the driver intended to let him pass.
    He therefore decided to go out and around the car, to the left. However, when he
    was about 60 to 90 feet behind the Camry, and while the right turn signal of
    the car remained activated, the driver of the Camry turned left, directly into
    his path.

[18]

Peter Myslik braked hard and attempted to steer the
    pickup truck toward the right but was unable to avoid a collision. The front left
    corner of the pickup hit the back left corner of the Camry. The Camry spun
    around and landed in the ditch on the east side of the roadway.

[19]

Peter Myslik agreed that he did nothing to warn the
    driver ahead that he intended to pass, such as honk his horn or activate his
    left-turn signal.

[20]

Both Peter and Edward Myslik testified that before the collision,
    the farthest left the pickup truck traveled in the southbound lane was that its
    left wheels were somewhere close to the centre line.

REASONS FOR JUDGMENT

[21]

In his brief reasons, the trial judge first reviewed
    the parties evidence concerning the circumstances leading up to the collision.

[22]

He acknowledged the testimony of accident
    reconstruction and perception reaction time experts, but found, at para. 21,
    that they could not assist in determining how the accident took place having
    regard to the conflicting evidence of the parties.

[23]

The trial judge then relied on
Beaumont v.
    Ruddy
, [1932] O.R. 441 (C.A.), in which this court observed that
    generally, in a rear-end collision, the rear driver is at fault and must prove
    that his or her negligence did not cause the collision.

[24]

The trial judge also noted two sections of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8 (the
HTA
): s. 158.1, which
    makes it an offence to follow another vehicle too closely, and s. 142(1), which
    provides that:

The driver or operator of a vehicle upon a highway before
    turning to the left or right at any intersection or into a private road or
    driveway or from one lane for traffic to another lane for traffic or to leave
    the roadway shall first see that the movement can be made in safety, and if the
    operation of any other vehicle may be affected by the movement shall give a
    signal plainly visible to the driver or operator of the other vehicle of the
    intention to make the movement.

[25]

In the following four paragraphs, the trial
    judge made the findings he considered relevant and determined that Peter Myslik
    and Ms. Martin-Vandenhende were each 50 percent responsible for the collision:

[25] I am not sure whether [Ms. Martin-Vandenhende] signaled to
    turn right but if I accept that she signaled to turn left, in my opinion she
    did so too late, having regard to the weather conditions to turn left safely.
    This is especially so because she did not check to see if anyone was
    approaching from the rear.

[26] I acknowledge that there are two competing issues. Peter
    [Myslik] is required to explain that he was not negligent when he ran into the
    rear of [Ms. Martin-Vandenhende] and [Ms. Martin-Vandenhende] is required to
    explain that she made a left turn safely.

[27] In my opinion both parties are equally responsible for the
    accident with 50 percent liability on each party. Peter Myslik should have been
    in control of his vehicle and because of the snow conditions should have been
    driving less than the speed limit. Further he should have been more cautious
    approaching a vehicle going more slowly than he on the road ahead. As a result
    he is 50 percent negligent regarding the accident.

[28] In regard to Ms. Martin-Vandenhende she slowed up
    significantly below what was less than highway speed on a snowy day, signaled
    too late to make a left turn and did not check in her rear-view mirror before
    she made a left turn to see that she could do so safely. As a result she is 50
    percent negligent regarding the accident.

ISSUES

[26]

The Mysliks have not cross-appealed the trial
    judges finding that Peter Myslik was 50 percent responsible for the accident.
    The issues in this appeal are therefore as follows:

1.

Did the trial judge err in finding Ms. Martin-Vandenhende negligent?

2.

If Ms. Martin-Vandenhende was negligent, did the trial judge err in concluding
    that her negligence was causally connected to the accident and in assigning 50
    percent of the responsibility to her?

3.

If the trial judge erred in concluding that Ms. Martin-Vandenhendes
    negligence was causally connected to the accident and in assigning 50 percent
    of the responsibility to her, what is the appropriate remedy?

ANALYSIS

1.

Did the trial judge err in finding Ms.
    Martin-Vandenhende negligent?

[27]

At trial, the Mysliks relied on two arguments in
    support of their position that Ms. Martin-Vandenhende was negligent and bore
    some of the responsibility for the collision.

The Primary Argument  Improper Lane Change

[28]

According to the Mysliks, the evidence
    demonstrated that before starting her turn, Ms. Martin-Vandenhende veered right
    and pulled onto the right shoulder. Their primary argument was that by jumping
    back into the southbound lane, Ms. Martin-Vandenhende made an unsafe lane
    change.

[29]

I agree with Ms. Martin-Vandenhende that the
    trial judge did not hold her negligent based on this argument.  This argument
    depended on the trial judges finding that when Ms. Martin-Vandenhende veered
    to the right, she moved out of the southbound lane and onto the shoulder.  The
    trial judge made no such finding.

The Secondary Argument  Failure to Ensure the Left Turn Could
    be Made Safely

[30]

The Mysliks secondary argument was that the
    evidence supported a finding that Ms. Martin-Vandenhende did not check her
    mirrors or blind spot and did not activate her left-turn signal before she
    started to turn left.  By failing to determine that she could safely turn and to
    signal her intention to turn, Ms. Martin-Vandenhende breached s. 142(1) of the
HTA
and fell below the standard of care.

[31]

Paragraph 28 of the reasons, set out above, shows
    that this was the basis for the trial judges conclusion that that Ms.
    Martin-Vandenhende was negligent.

[32]

Ms. Martin-Vandenhendes position is that the
    trial judge erred in finding her liable based on a breach of s. 142(1) of the
HTA
because, in the circumstances, the section does not apply.

[33]

She argues that, based on the wording of the
    provision, s. 142(1) of the
HTA
makes it an offence for a driver to
    fail to check to see if he or she can turn in safety and signal an intention to
    turn, only in circumstances where the turn involves a lane change.  Here, says
    Ms. Martin-Vandenhende, the trial judge found there was no lane change.  She
    submits that the trial judge made this finding in para. 8 of his reasons, where
    he describes where she was hit, saying that [Ms. Martin-Vandenhende] was still
    in her lane but with her front drivers side tire at or about the centre line
    of the road.

[34]

In support of her position that s. 142(1) does
    not apply in these circumstances, Ms. Martin-Vandenhende relies on the decision
    in
Ottawa Brick v. Terra Cotta Co. Ltd. v. Marsh
, [1940] S.C.R. 392, a
    case in which the Supreme Court found a rear driver entirely responsible for negligently
    passing the car ahead  for failing to ensure that he could safely pass the car
    ahead.

[35]

Ms. Martin-Vandenhende points to one of several
    concurring opinions in
Ottawa Brick
, in which Hudson J. says, at p.
    405:

I do not think that the argument based on [the improper left
    turn provision of] the
Highway Traffic Act
applies to the facts here.
    The defendant [the car making the left turn] had not yet started to make the
    turn contemplated by the statute.
[1]

[36]

Ms. Martin-Vandenhende submits that this passage
    supports her argument that the requirements set out in s. 142(1) of the
HTA
only impose an obligation on drivers to check and to signal once they start a
    turn in which they actually change lanes.

[37]

For the following reasons, I do not agree.

[38]

I begin with the findings of fact upon which
    this argument depends.

[39]

The first is whether Ms. Martin-Vandenhende looked
    in her mirrors or checked her blind spot to see if her intended turn might
    interfere with another vehicle.

[40]

In my view, the trial judge erred when, at para.
    19, he said that Ms. Martin-Vandenhende testi[fied] that she did not check her
    rear-view mirror or side mirrors or her blind spot to see if there was any
    traffic coming from the rear prior to her making her left turn. The transcript
    indicates that Ms. Martin-Vandenhendes evidence was that she could not recall
    if she checked her mirrors before the impact.

[41]

That said, I am of the view that the record
    supports a finding that Ms.  Martin-Vandenhende did not check to see if she
    could turn left safely before initiating her turn.  If she had, she would have
    seen the Myslik vehicle, a sizable truck, a short distance behind.

[42]

The second requirement of s. 142(1) of the
HTA
is that a driver, before turning, should signal his or her intention if
    another driver may be affected by the movement. There was a conflict in the
    evidence as to whether Ms. Martin-Vandenhende activated her left-turn signal. She
    testified that she did; the Mysliks evidence was that they saw no such
    signal.  The trial judge made a finding on this issue.  As can be seen from
    para. 28, he found that she did signal but that she signaled too late to make
    a left turn.

[43]

It is clear that Ms. Martin-Vandenhende did not comply
    with the requirements of s. 142(1) of the
HTA
as before turning she
    did not check that she could turn safely.  But did the requirements of the
    section apply to her given that she remained in the southbound lane at all
    times?

[44]

In my view, they did.  In my view, s. 142(1)
    means what it says.  Before turning, a driver must check to see if the turn can
    be done in safety and signal the turn if another vehicle may be affected by the
    movement. I see nothing in the wording of the section that supports the
    limitation Ms. Martin-Vandenhende suggests  that the section only applies in
    cases where the offending driver actually changes lanes.

[45]

I do not read the
Ottawa Brick
decision
    as standing for the proposition advanced by Ms. Martin-Vandenhende. The facts
    in that case were very different.  Among other things, the defendant (the
    driver of the car making the left turn) clearly signaled his intention to
    turn.  Significantly, in the passage set out above upon which Ms.
    Martin-Vandenhende relies, Hudson J. found that the comparable section of the
Highway
    Traffic Act
, R.S.O. 1937, c. 288, did not apply, not on the basis of a
    limited application of the provision, but on the basis of a finding that the
    defendant
had not yet started to make the turn
contemplated
    by the statute (emphasis added).

[46]

Here, there was a finding that Ms.
    Martin-Vandenhende had started her left turn when the accident took place.  I
    refer to para. 15, where the trial judge held that Peter Myslik braked hard
    [w]hen [he] became aware that [Ms. Martin-Vandenhende] was turning left in
    front of him.  He concluded, at para. 28, that Ms. Martin-Vandenhende did not
    check in her rear view mirror before she made a left turn to see that she could
    do so safely.

[47]

The evidence, including evidence from Ms.
    Martin-Vandenhende herself, supported this finding.  When asked to describe the
    position of her car at the time the accident took place, she responded as
    follows:

Q.      And in terms of your left turn, what, your turn to go
    left into the driveway, what stage were you at in making your left turn?

A.      I was just doing a gradual turn so like an  you mean
    on an angle?

Q.      Yeah.

A.      What angle, probably 30-40.

[48]

In cross-examination, she stated that [she] was
    getting prepared to turn. [She] had not turned at all yet. She further
    clarified:

Q.      All right, so I thought you said you were making a
    gradual turn?

A.      Thats what I meant by preparing to turn. I was making
    a gradual turn.

[49]

The record supports the findings that Ms. Martin-Vandenhende
    had started her turn to the left when the accident took place and that she did
    not check her mirrors or blind spot before turning.  It follows that she violated
    s. 142(1) of the
HTA
.  Ms. Martin-Vandenhende failed to ensure that
    she could turn safely before initiating her turn.  Her conduct fell below the
    standard of care.

[50]

I would therefore not give effect to Ms. Martin-Vandenhendes
    argument that the trial judge erred in finding her negligent based on her
    failure to comply with s. 142(1) of the
HTA
.

2.

If Ms. Martin-Vandenhende was negligent, did the trial judge err in
    concluding that her negligence was causally connected to the accident and in
    assigning 50 percent of the responsibility to her?

[51]

I now turn to the issue of causation.

The Causal Connection Requirement

[52]

The Mysliks bear the burden of proving the
    defence of contributory negligence on a balance of probabilities:
Nance v.
    British Columbia Electric Railway
, [1951] 2 All E.R. 448 (J.C.P.C.). The
    contributory negligence complained of must be causally related to the
    plaintiffs loss:
Koeppel v. Colonial Coach Lines Ltd.
, [1933] S.C.R.
    529; see also
Zsoldos

v. Canadian Pacific Railway
, 2009 ONCA
    55, 93 O.R. (3d) 321, at para. 56, leave to appeal refused, 400 N.R. 384.

[53]

Ms. Martin-Vandenhende submits that the trial
    judge erred in failing to evaluate whether her negligence caused or contributed
    to her loss. She argues that, on this basis alone, the finding that she is
    partially responsible for the accident must be set aside.

The Standard of Review

[54]

Appellate courts rarely interfere with a trial
    judges apportionment of liability since the test is an exacting one:
Ault
    v. Canada (Attorney General
), 2011 ONCA 147, 274 O.A.C. 200, at para. 56.
    As held by the Supreme Court in
Ingles v. Tutkaluk Construction Ltd
.,
    2000 SCC 12, [2000] 1 S.C.R. 298, at para. 57, the trial judges apportionment
    should not be interfered with unless there is demonstrable error in the trial
    judges appreciation of the facts or applicable legal principles (citations
    omitted).

The Trial Judges Failure to Consider
    Causation

[55]

I agree with Ms. Martin-Vandenhende that there
    is no indication that the trial judge considered whether there was any causal
    connection between her negligence and the collision. It was a demonstrable
    legal error to find Ms. Martin-Vandenhende contributorily negligent without considering
    the critical issue of causation.

[56]

It follows that the trial judges apportionment of
    liability is not entitled to the deference it would normally attract.

3.

If the trial judge erred in concluding that Ms. Martin-Vandenhendes
    negligence was causally connected to the accident and in assigning 50 percent
    of the responsibility to her, what is the appropriate remedy?

[57]

In the circumstances of this case, a new trial should
    be avoided if possible. The accident took place almost 14 years ago. Memories
    will be stale. And, the parties deserve to be protected from yet more cost,
    financial and otherwise.  Simply put, a new trial would clearly not be in the
    interests of justice.

[58]

In my view, on this record, yet another trial
    can be avoided. The record is sufficient to allow for a determination of
    causation and, if necessary, apportionment of liability.

[59]

There is a heavy onus on the driver of a vehicle
    attempting to pass another from the rear to excuse himself from liability for a
    collision with the car ahead:
Ottawa Brick
,
per
Hudson J.,
    at p. 405. The Court of Appeal for British Columbia clarified in
Samograd
    v. Collison
(1995), 17 B.C.L.R. (3d) 51, at para. 68, that this heavy onus
    is due to the passing vehicles greater opportunity to see the potential for a collision
    rather than due to a legal duty, statutory or otherwise.

[60]

It is clear that on the facts of this case, Peter
    Myslik must be held primarily responsible for the collision.  He was 16 years
    old at the time. The road was slippery and snow-covered.  Visibility was
    limited.  He was driving faster than he should have been given those
    conditions.

[61]

It was in these circumstances that Peter Myslik,
    an inexperienced driver, assumed that by veering slightly to the right and by
    slowing down, Ms. Martin-Vandenhende was inviting him to pass.

[62]

Peter Myslik was in the best position to judge
    the situation.  He misjudged it.  He played a major role in causing the
    accident.

[63]

That said, I have also concluded that Ms.
    Martin-Vandenhende was negligent in failing to check to see that she could turn
    left safely before doing so, and in failing to give Peter Myslik adequate warning
    of her intention to turn left.

[64]

But what are the consequences of her negligence?
    Did her negligence cause the collision?  If so, to what extent?

Did Ms. Martin-Vandenhendes Negligence Cause the Collision?

[65]

The basic test for determining causation is the
    but for test:
Clements v. (Litigation Guardian of) Clements
, 2012
    SCC 32, [2012] 2 S.C.R. 181, at para. 8.  The plaintiff must show that
    but for the defendants negligent act, the injury would not have occurred.

Only if special circumstances make it
    impossible to prove but for causation and if applying the test would offend
    basic notions of fairness and justice will the material contribution test
    apply:
Hanke v. Resurfice Corp.
, 2007 SCC 7, [2007] 1 S.C.R. 333, at
    paras. 24-25;
Clements
, at paras. 27-28.

[66]

Since there is no suggestion that the but for
    test could not be applied in this case, I will consider the issue whether Ms. Martin-Vandenhendes
    negligence caused the accident using a robust and common sense approach to this
    test repeatedly sanctioned by the Supreme Court in
Clements
, at paras.
    9, 28 and
    49.

[67]

My review of the evidence of the parties, the
    investigating officer, and the accident reconstruction experts, supports a
    conclusion that Ms. Martin-Vandenhendes failure to check her mirrors or her blind
    spot and her failure to give timely warning of her intention to turn had a
    causal connection to the accident.

[68]

Ms.  Martin-Vandenhende testified that she was
    not aware that the Myslik vehicle was following her.  When she left work and
    turned onto Erie Street, she did not see any oncoming vehicles. She was focused
    on what was ahead.  Significantly, she testified that when she began to angle
    her car to the left to turn into the driveway, she maintained her focus on what
    was ahead.  She did not consider what may be happening behind her.

[69]

Ms. Martin-Vandenhende admitted that if she had
    checked her mirrors, she would have seen the Myslik vehicle. But Ms.
    Martin-Vandenhende did not look.  She did not see the Myslik vehicle behind
    her.  She proceeded to turn left.  She signaled a left turn but did so too
    late.

[70]

Peter Myslik concluded that Ms.
    Martin-Vandenhende was inviting him to pass her. He saw that the Camry was
    turning left.  He saw the car veer to the left. Too late he saw the left-turn
    signal. Peter Myslik was committed to a course of action.  A collision was
    inevitable.  All he could do was try to limit the impact by turning sharply to
    the right.

[71]

These are the circumstances that caused the
    pickup truck to hit the left side of the back of the Camry.

[72]

The record supports the following conclusions. If
    Ms. Martin-Vandenhende had complied with her duty to check her mirrors before
    turning left, she may not have turned. If Ms. Martin-Vandenhende had activated
    her left-turn signal earlier, Peter Myslik may not have misread Ms.
    Martin-Vandenhendes actions. If Ms. Martin-Vandenhende had complied with her statutory
    obligations, the events of the late afternoon of December 31, 2001 may have
    been different.

[73]

I conclude that, by not checking her mirrors and
    not signaling in time to warn Peter Myslik of her intention to turn left until
    it was too late, Ms. Martin-Vandenhende was negligent, and her negligence
    contributed to her loss.

If Ms. Martin Vandenhendes Negligence Caused the Collision,
    what is her Degree of Responsibility?

[74]

The final issue is the apportionment of
    liability.

[75]

Apportionment of liability under s. 3 of the
Negligence
    Act
, R.S.O. 1990, c. N.1, is based on the degree to which each party
    departed from the standard of care and not the degree to which each partys
    fault caused the plaintiffs loss.

[76]

In all the circumstances, I find that Peter
    Myslik should be held 90 percent responsible for the accident and Ms.
    Martin-Vandenhende 10 percent responsible.

[77]

This apportionment is not the product of precise
    calculation.  It comes from a common sense consideration of the facts, including
    the fact that Peter Myslik was driving too fast for the road and weather
    conditions, that he decided to try to pass Ms. Martin-Vandenhende despite, at a
    minimum, being uncertain about her intentions, and that the collision occurred
    entirely within the southbound lane.  For Ms. Martin-Vandenhendes part, she
    contributed to her loss by failing to conduct herself in accordance with the
    requirements of s. 142(1) of the
HTA
, thereby depriving both drivers
    of the opportunity to alter their course.

[78]

In coming to the conclusion that these
    circumstances support an apportionment of liability that Peter Myslik is 90
    percent responsible for the accident and Ms. Martin-Vandenhende 10 percent
    responsible, I have employed the pragmatism endorsed by the Supreme Court in
Clements
.
    In my view, this practical approach is particularly warranted in this case, having
    regard to the resources the parties have expended as they turned to the courts for
    assistance in resolving the issue of liability.

DISPOSITION

[79]

For these
reasons, I would allow the appeal,
    set aside the judgment below, and replace it with a judgment in accordance with
    these reasons.

[80]

I would award Ms. Martin-Vandenhende her costs
    of the appeal, fixed in the amount of $20,000, including disbursements and all
    applicable taxes.

Released: November 24, 2015 (JM)

Gloria
    Epstein J.A.

I
    agree J.C. MacPherson J.A.

I
    agree L.B. Roberts J.A.

[1]
There is no material difference in the provision referred to by Hudson J. and
    what is now s. 142(1) of the
HTA
.


COURT OF APPEAL FOR ONTARIO

CITATION: McDowell v. St. Lawrence Parks Commission, 2015
    ONCA 755

DATE: 20151109

DOCKET: C59778

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Alice McDowell, Ronald McDowell, Johnathon
    Norman

McDowell, Michael Allen McDowell and
    Caroline

Marguerite McDowell

Plaintiffs

and

St. Lawrence Parks Commission

Defendant (Appellant)

and

Ontario Principals' Council
and
Jessup
    Food & Heritage Ltd.

Third Party (
Respondent
)

Jaan E. Lilles, for the appellant

Pasquale Santini, for the respondent

Heard: October 27, 2015

On appeal from the judgment of Justice Joseph M. W.
    Donohue of the Superior Court of Justice, dated November 26, 2014.

ENDORSEMENT

[1]

The appellant was the defendant in a personal injury action. The
    respondent was the third party. The main claim settled. This is an appeal from
    the finding by the trial judge that the appellant did not prove its claim for
    indemnity or negligence against the third party.

[2]

The appellant operates Fort Henry. The third party runs a food services
    facility, the Garrison Restaurant, at Fort Henry. The plaintiff attended an
    off-hours banquet held at the Garrison Restaurant. After dinner, she left the
    banquet and went to the washroom. When she left the washroom, she did not
    return to the banquet but turned toward the moat adjacent to the washroom and
    fell into it, injuring herself.

[3]

The appellant had a service agreement with the third party that, in
    part, set out the third partys obligations at Fort Henry. The third partys
    primary obligations related to operation of the Garrison Restaurant, both
    during Fort Henrys regular operating hours and for off-hours banquets and
    special events. Article 4.12(d) of the agreement required the third party to
    promote a safe working environment and assure that health and safety needs of
    staff and customers are met following relative guidelines, policies &
    procedures at all times.

[4]

The appellants agreement with the third party included an indemnity
    provision, which provided as follows:

The Concessionaire hereby agrees to indemnify and hold harmless
    the Indemnified Parties from and against any and all liability, loss, costs,
    damages and expenses (including legal, expert and consultant fees), causes of
    action, actions, claims, demands, lawsuits or other proceedings, (collectively,
    Claims), by whomever made, sustained, incurred, brought or prosecuted,
    including for third party bodily injury (including death), personal injury and
    property damage, in any way based upon, occasioned by or attributable to
    anything done or omitted to be done by the Concessionaire, its subcontractors
    or their respective directors, officers, agents, employees, partners,
    affiliates, volunteers or independent contractors
in the course of performance of the
    Concessionaires obligations under, or otherwise in connection with, the
    Contract
.
The Concessionaire further agrees to indemnify and
    hold harmless the Indemnified Parties for any incidental, indirect, special or
    consequential damages, or any loss of use, revenue or profit, by any person,
    entity or organisation, including, without limitation, the Commission, claimed
    or resulting from such Claims. The obligations contained in this paragraph
    shall survive the termination or expiry of the Contract. [Emphasis added.]

[5]

The appellants theory of the case was that the third party breached the
    indemnity provision by failing to escort the plaintiff to the bus at the end of
    the banquet or that it was negligent in failing to do so.

[6]

The trial judge found that regardless of whether the respondent had a
    duty to escort patrons to the bus following a private banquet when the Fort was
    closed to the public, the appellant had not proved that the plaintiffs mishap
    happened at the same time as the departure of other guests from the restaurant
    rooms. He further found as follows: I cannot find that the allegation of the
    third partys failure to get the patrons safely to the bus is in any way
    connected to what happened to the plaintiff. I am not satisfied that departures
    to the bus happened simultaneously with the plaintiffs mishap.

[7]

We see no error in his finding or in his analysis. The only indication
    of the timing of when the plaintiff went to the washroom was the respondents
    pleading that she went after dinner. As the trial judge pointed out during
    closing submissions, there was no actual evidence in the record of a witness
    who last saw her at the party or at the washroom. The only witness at trial who
    saw the plaintiff that night was the third partys former restaurant manager,
    who only saw the plaintiff after she had already fallen when he found her in
    the moat. The trial judge was entitled to find that that did not satisfy the
    appellants onus of proof.

[8]

Nor, based on the record, do we accept the submission that the trial
    judge cut off any cross-examination on the issue.

[9]

Finally, on the issue of whether the trial judge erred in his
    discretionary decision that allowed the third party to withdraw its jury notice
    or struck that jury notice, we are not satisfied that there is evidence upon
    which a jury properly instructed and acting reasonably could come to a
    different conclusion than that reached by the trial judge:
Kempf v. Nguyen
,
    2015 ONCA 114, 124 O.R. (3d) 241, at para. 73. As such, we need not address in
    full the issues raised regarding the striking (or withdrawal) of the jury
    notice.

[10]

The
    appeal is dismissed with costs in the agreed amount of $15,000 inclusive of
    disbursements and HST.

K. Feldman J.A.

P. Lauwers J.A.

M.L. Benotto J.A.