COURT OF APPEAL FOR ONTARIO

CITATION: Afzal v. National Bank of
    Canada, 2014 ONCA 26

DATE: 20140114

DOCKET: C55842

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Mohammed Haseeb Afzal

Plaintiff (Appellant)

and

National Bank of Canada and National Bank Life
    Insurance Company

Defendants (Respondents)

Todd J. McCarthy, for the appellant

Christine Carter, for the respondents

Heard: January 8, 2014

On appeal from the judgment of Justice of Justice John
    A.B. MacDonald of the Superior Court of Justice, dated July 4, 2012.

ENDORSEMENT

[1]

The appellant Mohammed Afzal appeals from the judgment of John MacDonald
    J. of the Superior Court of Justice dated July 4, 2012, dismissing his action
    for damages pursuant to a policy for critical illness insurance purchased in
    connection with a mortgage loan from the respondents.

[2]

The respondent National Bank Life Insurance Company cross-appeals from
    the trial judges decision that there should be no costs of the action.  The
    respondent National Bank of Canada abandoned its identical cross-appeal.

A.

The
    appeal

[3]

The appellant made a Consumer Loan Application for life insurance and
    critical illness insurance in connection with a mortgage loan application on
    June 26, 2006.  On that day, he received a Certificate of Insurance.

[4]

On June 4, 2007, the appellant felt discomfort in his chest, shoulders
    and jaw.  He had a severe pain in his right arm.  He did not go to a medical
    doctor or hospital even though his wife, who had been a medical doctor in
    Pakistan, told him that it looked like he was having a heart attack and should
    go to the hospital.

[5]

On June 18, 2007, the appellant experienced similar symptoms and
    attended the William Osler Health Centre in Brampton.  He was discharged the
    same day.  He was seen by a cardiologist, Dr. Milan Gupta, who recorded in a
    Final Summary Report:

This 32-year-old man is being discharged home following an
    admission for chest discomfort.

His lab work was unremarkable with normal troponins.  His ECG
    and clinical examination were consistent with an old silent apical infarction.

[6]

The appellants critical illness insurance policy defined critical
    illness as including heart attack.  The policy defined heart attack
    (myocardial infarction) as:

A diagnosis by a cardiologist or internist authorized to
    practise or practising medicine in a Canadian province, of the death of part of
    the heart muscle resulting from inadequate blood supply to the appropriate area.

The diagnosis must be based on the simultaneous presence of the
    following two points: changes on the electrocardiogram (ECG) indicating a
    myocardial infarction
and
an elevated level of cardiac enzymes
or
any other marker above acceptable levels.                                                                              [Emphasis
    added.]

[7]

The policy also provided this exclusion:

Concerning
    Critical Illness Insurance only:

No benefits shall be paid for a Critical Illness:

·

Heart Attack: resulting from the findings on an electrocardiogram
    (ECG) indicating a previous infarction.

[8]

On the coverage issue, the trial judge held that the appellant had
    established the first point on the diagnosis of heart attack  there were
    changes on the ECG indicating a myocardial infarction.  However, the appellant
    had not established either of the two alternative components of the second
    point of the diagnosis  there was not an elevated level of cardiac enzymes and
    there was no other marker above acceptable levels.  On the exclusion issue, the
    trial judge held that it did not apply.

[9]

The appellant does not challenge the trial judges finding on the
    elevated level of cardiac enzymes point.  The respondent does not
    cross-appeal on either the changes on the ECG indicating a myocardial
    infarction point or the trial judges interpretation of the exclusion clause.

[10]

Accordingly,
    the appeal relates to the trial judges interpretation of the any other marker
    above acceptable levels component of the second point in the diagnosis of
    heart attack.

[11]

The
    appellant contends that the trial judge erred in his interpretation of both the
    any other marker and above acceptable levels language in the policy.

[12]

The
    appellant submits that the trial judge erred by concluding that any other
    marker could include consideration, for a second time, of the ECG results.
    The trial judge found, correctly says the appellant, that the changes in the
    ECG indicated a myocardial infarction (the first point in the definition of a
    heart attack diagnosis).  He should have been willing to consider a second
    aspect of the ECG results, namely, the elevated ST wave, and should have found
    that it was any other marker.

[13]

We
    do not accept this submission.  In our view, the trial judge was correct in
    this reasoning:

The plaintiff submits that the results of his ECGs are any
    other marker.  However, the definition under consideration is clear in stating
    that the diagnosis of heart attack must be based on two points, which are
    present simultaneously.  One of these points is changes on the ECG indicating
    a myocardial infarction.  Clearly, then, for there to be two points present
    simultaneously on which the diagnosis is based, there must be something in
    addition to changes on the ECG indicating a myocardial infarction.

[14]

We
    agree with this analysis and with his observation that this interpretation is
    also the more usual and ordinary meaning of the words under consideration.
    This is especially so in light of the fact that the evidence established that
    there were several other significant diagnostic processes and results that
    could be used as any other markers, including echocardiograms, nuclear
    perfusion studies, and blood markers.

[15]

The
    appellant contends that the trial judge erred by not finding that the results
    of his echocardiogram and nuclear perfusion study were above normal acceptable
    levels.  In making this submission, he asserts that, in the context of this
    insurance policy, the word above does not mean only higher; rather, it also
    means different than.

[16]

We
    disagree.  We endorse the trial judges analysis:

This language is also clear and unambiguous.  The certificate
    of insurance does not say, different from normal acceptable levels, which
    would mean that results above or below normal acceptable levels would comply
    with this coverage term.  In my opinion, since the language must be looked at
    as a whole, this requirement modifies and narrows the broad sweep of the phrase
    any other marker.  This coverage term, I find, refers to any cardiac test or
    study in which results consistent with a heart attack are above, not below,
    normal acceptable levels.

[17]

We
    also observe that in addition to interpreting the actual wording of the policy
    provision, the trial judge reviewed the medical evidence relating to the
    readings from diagnostic steps other than the ECG and concluded that they did
    not establish anything higher than normal acceptable levels.  We see no basis
    for interfering with this conclusion.

[18]

For
    these reasons, the appeal is dismissed.

B.

The
    cross-appeal

[19]

In
    a very brief submission, both orally and in its factum, the respondent National
    Bank Life Insurance Company, but not the respondent National Bank of Canada,
    asserts that the trial judge erred by departing from the usual practice that
    costs follow the event and ordering that there be no costs of this action.

[20]

We
    see no basis for interfering with the trial judges exercise of discretion in
    awarding no costs.

[21]

The
    cross-appeal is dismissed.

[22]

There
    will be no costs of the appeal and cross-appeal.

M.
    Rosenberg J.A.

J.C.
    MacPherson J.A.

H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Benedict v. Ohwistha Capital Corporation, 2014 ONCA
    80

DATE: 20140129

DOCKET: C53282

Feldman, MacFarland and Strathy JJ.A.

BETWEEN

Lloyd Benedict

Respondent

and

Ohwistha Capital Corporation

Appellant

Charlene Desrochers, for the appellant

Graeme A. Hamilton and Donald R. Fiske, for the
    respondent

Heard: June 5, 2013

On appeal from the judgment dated January 6, 2011 by
    Justice Charles T. Hackland of the Superior Court of Justice, reported at 2011
    ONSC 18.

Feldman J.A.:

[1]

Section 89(1) of the
Indian Act,
R.S.C. 1985, c. I-5 prohibits
    an Indian (as defined in the Act) from granting security on any of his or her
    real or personal property on the reserve except to another Indian. Section
    89(2), however, allows a person who has sold a chattel to an Indian but
    retained title or the right to possession, to exercise his rights against the
    chattel even if the chattel is on the reserve.

[2]

In this case, the appellant, Ohwistha Capital Corporation (OCC), an Aboriginal
    Capital Corporation but not an Indian as defined in the Act, loaned the
    respondent, Mr. Benedict, an Indian on reserve, $125,000 for the purpose of his
    fish hatchery business. In order to provide OCC with security for the loan on
    some chattels that belonged to Mr. Benedict, the parties attempted to structure
    their arrangement in such a way as to comply with s. 89(2) of the Act in order
    to avoid the effect of s. 89(1).

[3]

The issue on the appeal is whether they were successful.

[4]

Sections 89(1) and (2) of the Act provide:

89. (1) Subject to this Act, the real and personal property of
    an Indian or a band situated on a reserve is not subject to charge, pledge,
    mortgage, attachment, levy, seizure, distress or execution in favour or at the
    instance of any person other than an Indian.

(2)     A person who sells to a band or a member of a band a
    chattel under an agreement whereby the right of property or right of possession
    thereto remains wholly or in part in the seller may exercise his rights under
    the agreement notwithstanding that the chattel is situate on a reserve.

The Facts

[5]

The action proceeded based on an Agreed Statement of Facts together with
    the filing of the relevant documents. As did the trial judge, I reproduce below
    the relevant paragraphs from the agreed statement:

2. The Plaintiff, Lloyd Benedict (Benedict), who resides on
    Akwesasne Reserve No. 59 in Ontario, is an Indian in accordance with the
    definition set out in the Indian Act.

3. The Defendant, Ohwistha Capital Corporation (Ohwistha),
    was incorporated as a non-profit corporation by Federal letters patent of July,
    1991. Its head office is located on the Mohawk territory of Akwesasne. Ohwistha
    offers access to capital and provides developmental lending to Aboriginal owned
    enterprises through its various services. Ohwistha is not a status Indian under
    the definition of the Indian Act.

4. The Defendant, Wally Oakes (Oakes), who is an Indian and
    member of the Mohawk Community of Akwesasne, was a member of the Board of
    Ohwistha. At all material times, Mr. Oakes was an employee, agent or servant of
    the Defendant, Ohwistha.

5. On or about February 19, 2002, Benedict submitted an
    Application for Financing to Ohwistha. The application was to obtain financing
    for Benedicts business, Ekohawk Yellow Perch Hatchery, which was located on
    the Mohawk Territory of Akwesasne.

6. On or about May 27, 2002, Ohwistha approved the loan
    application submitted by Benedict.

7. Benedict received and accepted on June 7, 2002 an Offer to
    Finance delivered by Ohwistha, dated May 27, 2002, in the amount of
    $125,000.00. It was for a term of 5 years; it began with a 6 month interest
    only period. The interest rate of the financing was 10% compounded
    semi-annually not in advance from the date of disbursement.

8. Payments of the loan were to be applied first toward
    outstanding interest and secondly to the reduction of principal. Regular
    payments were to begin one month following disbursement. Late payment charges
    and insufficient fund charges were applicable.

9. The loan documents consist of: the Offer to Finance; a Bill
    of Sale, dated June 6, 2002; a Promissory Note, executed by Benedict on June 7,
    2002; a Conditional Sales Contract, dated June 7, 2002; and a Personal
    Guarantee executed by Benedict, dated June 7, 2002.

10. The loan transaction was structured in the following
    manner. A Bill of Sale was executed by Oakes as purchaser and Benedict as
    seller that notionally transferred title to certain equipment from Benedict to
    Oakes. In exchange Benedict received a notional payment of $125,000.00. As both
    the purchaser and seller were status Indians, sales tax was not payable. If
    Ohwistha was identified as the purchaser, sales tax would have been payable.

11. A conditional sales contract (the Benedict CSC) was
    executed by Benedict as purchaser and Oakes as seller, in which Benedict
    notionally bought back the same equipment. The equipment was identified as
    collateral in an attached Schedule A.

12. The Benedict CSC contemplated a future assignment to
    Ohwistha of the rights accruing to Oakes thereunder but neither Oakes nor
    Ohwistha has produced a document evidencing the assignment, and Benedict was
    never given notice of an assignment. It has been acknowledged that an
    assignment never occurred.

13. $125,000.00 was advanced via cheque from Ohwistha to
    Benedict on or about June 7, 2002.

14. Ohwistha registered a Financing Change Statement as a
    secured creditor on July 7, 2003. A Financing Statement was never registered.

[6]

Essentially, Mr. Benedict sought a business loan of $125,000 from OCC.
    OCC is an Aboriginal Capital Corporation (ACC) established with the support of  the
    federal government in order to make loans to aboriginal-owned businesses. It is
    an aboriginal owned company. It lends to aboriginal owned enterprises by way
    of small business loans and other financial vehicles. (Reasons para. 5). In
    this case, Wallace Oakes, an on-reserve Indian, was initially the president of
    OCC and later, its general manager.

[7]

The loan was structured as a conditional sale of chattels. The chattels
    belonged to Mr. Benedict. He sold them to OCC (through Wally Oakes as agent to
    avoid sales tax), then Mr. Oakes on behalf of OCC sold them back to Mr.
    Benedict by conditional sale. Under the fiction of paying for those chattels, OCC
    loaned Mr. Benedict the $125,000 he was seeking to borrow for his fish hatchery
    business.

[8]

The chattels are listed in schedule A to the Bill of Sale and the
    Conditional Sale Contract and consist of old, used farm equipment. While there is
    no indication of the value of the used equipment, the Bill of Sale states that
    the sale price is $125,000. The Conditional Sale Contract between Mr. Benedict
    as buyer and Mr. Oakes as seller provides that Mr. Oakes is selling the
    schedule A chattels to Mr. Benedict for $125,000, financed by the seller at
    10% per annum. Although the contract is titled Conditional Sale Contract,
    there is no specific reservation of title in the conditions. However, the
    conditions include the right on default of payment to take possession of the
    property, although the contract does not refer to the fact that the chattels
    are situated on a reserve.

[9]

In effect, OCC obtained some on-reserve chattels from Mr. Benedict
    without paying for them, then secured its business loan on those on-reserve
    chattels.

[10]

Following
    the transaction, Mr. Benedict made four interest installments on the loan then
    stopped making payments. He subsequently went bankrupt. Following his discharge
    from bankruptcy, OCC seized the schedule A chattels from Mr. Benedict on the
    reserve. Mr. Benedict denied OCCs right to do so, relying on s. 89(1) of the
Indian
    Act
, and sued for damages.

[11]

The
    trial judge found OCC liable for conversion. He held that OCCs seizure of the
    chattels on the reserve contravened s. 89(1) and was not allowed under s.
    89(2). His key findings at paras. 22 and 23 are:

[22] I am of the opinion that this transaction does not fall
    within the wording or the intent of s. 89(2) of the
Indian Act
.
    Ohwistha is not a seller of goods or chattels wherein a right of property or
    right of possession remains in the seller. This transaction was a cash loan
    by a commercial lender. As Benedicts counsel points out, Ohwistha is in the
    same legal position as a bank, finance company or other commercial lender with
    the result that if this transaction falls within s. 89(2), any of these non-Indian
    lenders can seize chattels on Indian lands pledged as security for loans by
    structuring their transactions in this manner. Such a practice would defeat the
    purposes of s. 89(1) of the
Act
which is designed to protect Indians
    on reserves from seizure of their chattels by non-Indians. I agree with the
    plaintiffs submission that enforcement of this agreement would serve to avoid
    s. 89(1) of the
Indian Act
insofar as it pertains to security
    agreements and would open the door to any financier, conducting business on a
    reserve or with individuals residing on a reserve, to use a two step avoidance
    transaction: whereby the debtor sells collateral to the lender and then
    buys it back in order to avoid the protections afforded to Indians in s.
    89(1).

[23] In the courts opinion, it does not assist Ohwistha that
    it, through its agent Oakes, purported to purchase the equipment and hold it
    then sell it back but retain title as security for their loan. This aspect of
    the transaction was a pure fiction. The equipment never left Benedicts
    possession on the reserve. A transaction structured in this fashion does not
    constitute Ohwistha as a seller of chattels within the intent of s. 89[(2)] and
    for that reason the general bar to seizing an Indians property on Indian lands
    in s. 89(1) of the
Indian Act
applies.

Issues

[12]

There
    are two issues on the appeal: 1) Is it a contravention of s. 89(1) of the
Indian
    Act
to structure a transaction which effectively grants security over
    existing chattels that are on the reserve, so that the transaction complies
    with s. 89(2)? If not, does this transaction comply with s. 89(2)?

Discussion

[13]

Section
    89 of the Act was enacted in the 1951 revision of the original
Indian Act
.
    The original Act contained a similar provision, s. 66, which read as follows:

66. No person shall take any security or otherwise obtain any
    lien or charge, whether by mortgage, judgment or otherwise, upon real or
    personal property of any Indian or non-treaty Indian within Canada, except on
    real or personal property subject to taxation under section sixty-four of this
    Act: Provided always, that any person selling any article to an Indian or
    non-treaty Indian may, notwithstanding this section, take security on such
    article for any price thereof which may be unpaid.

[14]

While the purpose of s. 89(1) was to protect all real and
    personal property on reserve from being used as collateral or security for a
    loan made by anyone other than an Indian, s. 89(2) allows aboriginals on
    reserve to purchase goods from sellers off the reserve and to do so on credit. This
    provision gives the seller the ability to repossess any goods sold to an Indian
    on reserve on default of payment.

[15]

In
Mitchell v. Peguis Indian Band et al,
[1990] 2 S.C.R. 85, at paras.
    87-88 La Forest J. explained that the purpose of ss. 87-89 of the Act was to
    protect Indians from losing their land or their chattels on the reserve to
    non-Indians:

the Crown has always acknowledged that it is honour-bound to
    shield Indians from any efforts by non-natives to dispossess Indians of the
    property which they hold
qua
Indians, i.e., their land base and the
    chattels on that land base.An examination of the decisions bearing on these
    sections confirms that Indians who acquire and deal in property outside lands
    reserved for their use deal with it on the same basis as all other Canadians. [paras.
    87-88]

[16]

The Supreme Court again discussed the protective purpose of
    a number of provisions of the
Indian Act
as well as some of the
    consequences of those provisions in
McDiarmid Lumber v. Gods Lake first
    Nation,
2006 SCC 58, [2006] 2 S.C.R. 846.

[17]

McLachlin C.J. explained how the paternalistic attitude of
    the federal government toward aboriginals in the 19
th
century was
    reflected in the protective policy of the Act, which placed restrictions on
    aboriginal economic activity with non-aboriginals that affected aboriginal
    lands and property. She stated at para. 50: The 19
th
century
    exemption provisions were born of a fear that Indians and their lands and
    property were subject to exploitation by others. However, by the 1930s and
    1940s, self-determination and self-government had emerged as an aspiration, if
    not a reality, and bands were beginning to embark on projects to improve their
    economic situation (para. 51).

[18]

Nevertheless, as McLachlin C.J. stated at para. 55, the
    tension between the old and the new approaches continued to exist. This tension
    was reflected in the new
Indian Act
enacted in 1951, which continued
    to include provisions for the protection of aboriginals from exploitation by
    others. One such provision is s. 89(1).

[19]

In
Gods Lake
, the focus was not on s. 89 but on s.
    90 of the Act, another protective section. In deciding that s. 90 should be
    given a narrow meaning, the court referred to the finding of the
Royal
    Commission on Aboriginal Peoples
in its 1996 report (
RCAP
report),
    which stated that s. 90 (as well as other sections including s. 89(1)) limits
    the ability of aboriginal peoples to access credit because it restricts the
    ability of lenders to secure loans using reserve lands or chattels located on
    reserve lands. The Royal Commission concluded that the Acts restrictive provisions
    were a significant deterrent to financing business activity on-reserve.

[20]

The court in
Gods Lake
referred to the Royal Commissions
    recommendations regarding overcoming the restrictions created by the Act, which
    included abolishing them. McLachlin C.J. observed that although the court could
    not abolish any provisions of the Act, it could give some provisions a narrow
    reading in order to help meet the concern about limited access to credit by
    aboriginals on reserve resulting from these restrictions (para. 42).

[21]

One of the steps that the federal government took to make
    funds available for aboriginal enterprise was the establishment of ACCs across
    the country in 1989. The ACCs were funded by the federal government, but were
    expected to become self-sufficient in terms of administration and operating
    costs from interest earned on loans; this, however, proved to be very difficult
    (
RCAP
report, vol. 2 at p.916-917). The Royal Commission made a number
    of recommendations to improve the financial viability of the ACCs, such as having
    the federal government provide a continuing operating subsidy (
RCAP
report, vol. 2 at p.917).

[22]

In its discussion of possible amendments to the
Indian
    Act
, the Royal Commission also raised the possibility of allowing
    Aboriginal financial institutions to seize Aboriginal lands or property but
    without the right to sell them outside the community (
RCAP
report,
    vol. 2 at p.927).

[23]

From this history emerges the backdrop to the issues that
    have arisen for decision in this case. To date, the
Indian Act
has not
    been repealed or amended to remove the restriction on using on-reserve chattels
    to secure new loans that is created by s. 89(1). This provision, intended to
    protect aboriginals from being exploited by non-aboriginals and losing their
    on-reserve property, is viewed on the one hand as paternalistic, but on the
    other hand as still possibly beneficial as a protective measure.

[24]

In the present case, the respondent, Ohwistha, an ACC with
    the mandate to lend funds to aboriginals for their business ventures, wanted to
    lend money to Mr. Benedict and sought to take some security in the event of
    default. In order to try to avoid the restriction in s. 89(1), Ohwistha
    attempted to structure the loan as a conditional sale of chattels that belonged
    to Mr. Benedict but which he first transferred to Ohwistha (through Mr. Oakes),
    in order to comply with and come within s. 89(2).

[25]

The debate before this court was whether the court should
    apply the approach of the Supreme Court in
Gods Lake
to ease
    restrictions on the ability of aboriginals to obtain credit by interpreting s. 89(2)
    in a way that allows loans to be made using on-reserve chattels as security, by
    the device of a two-step conditional sale transaction. Or, whether the court
    should ensure that the purpose of s. 89(1) is not undermined by transactions
    that are structured so as to circumvent it.

Disposition

[26]

The
    agreed facts state in para. 10 that Mr. Benedict as seller
notionally
transferred title to certain equipment from Benedict to Oakes, and that in
    exchange, Mr. Benedict received a
notional
payment of $125,000. And in
    paragraph 11, the agreed facts state that Benedict
notionally
bought
    back the same equipment. [Emphasis added]

[27]

I
    agree with the parties that the transaction they purported to enter into was merely
    notional because the payment was notional. The transaction purported to be a
    sale and repurchase of Benedicts equipment as well as a loan to him using the
    same $125,000. Because the two sales were merely notional, they were accurately
    described by the trial judge as a pure fiction.

[28]

The
    Royal Commission identified the significant discriminatory effect of s. 89(1)
    on the ability of aboriginal peoples to access credit. Were it possible to
    interpret s. 89(2) so as to mitigate this effect, and to facilitate access to
    credit, it might be appropriate to do so. It cannot, however, be done where the
    transaction under scrutiny cannot come within s. 89(2) because it is effectively
    a sham. That could give rise to the very abuses the legislation is designed to
    prevent. It would also conflict with the purpose of s. 89(1)  to protect from
    seizure personal property on reserve.

[29]

Parliament
    may decide that it is desirable to give ACCs the flexibility to employ lending
    practices that would facilitate access to credit by aboriginals on reserve,
    such as by adding ACCs to the exemption in s. 89(1). That decision, however,
    and the manner in which to implement it, is for Parliament.

Conclusion

[30]

I
    would dismiss the appeal with costs fixed at $20,000 inclusive of disbursements
    and HST.

Released:

JAN 29 2014                                    K.
    Feldman J.A.

KF                                                   I
    agree J. MacFarland J.A.

I
    agree G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bilich v. Toronto Police Services Board, 2014 ONCA
    13

DATE: 20140110

DOCKET: M42652

(C56883)

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Robert Bilich

Moving Party

and

Toronto Police Services Board, William Blair,
    Mark Pugash, Reuben Stroble, Blake Shreve, Suzanne Pinto, Stephen Ruffino, Ian
    Sapsford, Candy Graham, Victoria Balice and Wendy Drummond

Respondents

Robert Bilich, appearing in person

Kathryn E. Kirkpatrick, for the respondents

Heard: January 6, 2014

On application for an order to review the order of
    Justice Russell Juriansz dated June 25, 2013.

ENDORSEMENT

[1]

The moving party applies to review the decision of Juriansz J.A.
    refusing to extend the time to perfect the appeal. The motion judge based his
    decision on there being no merit to the proposed appeal. We have reviewed his
    decision, the extensive reasons of Frank J. and the other material in the
    extensive record. We agree with the motion judge that there is no merit to the
    appeal and on that ground alone the motion to extend time to perfect was
    properly dismissed.

[2]

There are other problems with his application. The moving party has
    provided a lengthy affidavit including many exhibits. In this affidavit, the
    moving party has set out his version of the chronology of events that led to
    his bringing the civil action and the treatment of the action in the Superior Court
    of Justice. But, despite this enormous amount of information and allegations,
    the moving party still has not provided any reasonable explanation for the
    delay. He says that he needs the audio recording of a proceeding before Khawly
    J. before he can perfect the appeal. However, he has a transcript of the
    hearing and the audio recording was not necessary for him to perfect his
    appeal. Further, as counsel for the responding party has pointed out, the
    moving party never provided any information as to when he would perfect the
    appeal.

[3]

Finally, there is no basis for granting the other relief sought by the
    moving party, namely a full and complete forensic audit of the billing
    practices of the responding parties counsel and an injunction.

[4]

Accordingly, the application for review is dismissed with costs fixed at
    $1,000 inclusive of HST and disbursements.

M. Rosenberg J.A.

J.C. MacPherson J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bollman v. Soenen, 2014 ONCA 36

DATE: 20140117

DOCKET: C56478

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Barbara Jane Bollman, Naomi Lynne Bollman and Nicholas
    Donald Bollman

Plaintiffs (Respondents)

and

Dr. Gary Maynard Soenen

Defendant (Appellant)

Ronald G. Slaght Q.C. and Lindsay N. Beck, for the
    appellant

André I.G. Michael and Jill S. McCartney, for the
    respondents

Heard: December 11, 2013

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated December 13, 2012, with reasons reported
    at 2012 ONSC 7090.

Benotto J.A.
:

OVERVIEW

[1]

The appellant, Dr. Gary Maynard Soenen, is a general surgeon who
    performed a hysterectomy on the respondent, Ms. Barbara Jane Bollman.  During
    the course of the operation, the respondents ureter was transected. The damage
    to the ureter was not diagnosed for three weeks. The trial judge found that the
    appellant met the standard of care in the performance of the operation, but
    that he operated on the respondent without her informed consent and was
    negligent in not diagnosing the damage to the ureter sooner.

[2]

For the reasons that follow, the appeal is allowed and a new trial is
    ordered.

FACTS

[3]

The appellant practices in Simcoe, Ontario. In May 2007, the respondents
    family doctor referred her to the appellant for a consultation about prolonged
    and heavy menstrual periods.  In September 2007, the appellant treated the respondents
    condition by performing endometrial ablation, a procedure that burns tissue
    inside the uterus.  This procedure was not particularly effective and the respondent
    remained in a lot of pain with her periods.  The appellant thought it likely
    that the respondent would have to undergo a laparoscopic assisted vaginal
    hysterectomy (LAVH).  After meeting with the respondent, he reported to the
    family physician that he had reviewed the procedure and the possible
    complications with Ms. Bollman and that she understood and wanted to proceed.
    At trial, though the appellant had no notes or specific recollection of his
    discussion with the respondent, he testified that his usual practice was to
    tell the patient of risks including bleeding; infection; and injury to the
    bowel, bladder, and ureter.  The respondent testified that she did not recall
    what was discussed beyond bleeding and infection.

[4]

The appellant performed the surgery on June 23, 2008, at Norfolk General
    Hospital in Simcoe, Ontario, and the respondent was discharged the following
    day. Unbeknownst to the appellant, the respondents ureter had been transected
    during surgery.

[5]

On June 28, the respondent went to the emergency room of the hospital,
    complaining of a rash and redness in the incision.  The emergency room
    physician and the appellant diagnosed her with abdominal wall cellulitis.  She
    was admitted to the hospital and placed on IV antibiotics.  It was agreed by
    the experts who testified that this was a reasonable diagnosis and treatment

[6]

The respondent was discharged on June 30. She returned to the emergency
    room on July 3 with complaints of abdominal pain and urinary retention.  A
    catheter was inserted to drain her bladder, and she was discharged.

[7]

She returned again to the hospital on July 5 with urinary retention.
    Again, her bladder was drained.  The emergency room physician who saw her
    prepared a request for a CT scan.  The request stated URGENTMONDAY PLEASE
    (July 7/08), noted that she was experiencing urinary retention and had been
    diagnosed with abdominal wall cellulitis, and indicated that the purpose of the
    scan was to rule out an abscess.  The respondent was sent home the same day.

[8]

The requested CT scan was not done on July 7.  The appellant assessed
    the respondent that day at the hospital and he diagnosed a pelvic hematoma. In
    his view, the CT scan was not necessary. An ultrasound performed that day
    showed a large cystic mass behind the bladder.  There was no gross free fluid
    in the pelvis or the abdomen that might indicate a damaged ureter. The
    radiologist who read the ultrasound suggested that a CT pelvic scan may give
    more information, but once again, a CT scan was not performed. The respondent
    was sent home.

[9]

The respondent returned to the appellants office at her pre-arranged
    appointment on July 9.  There was fluid draining from her vagina, which, in the
    appellants view, was consistent with a hematoma.

[10]

On
    July 11, the respondent returned to the hospital with abdominal pain.   Her abdominal
    X-rays were normal, and she was discharged.  The next day, she was admitted to
    the hospital because of worsening pain and pelvic spasms.  The next day, July
    13, the appellant performed a laparoscopy, intending to drain what he believed
    to be an infected hematoma. However, the laparoscopy revealed that there was no
    hematoma.  As a result, the appellant consulted a urologist, who suggested a CT
    scan with a dye contrast to examine the ureter.  This was performed on July 14,
    at which point the injury to the left ureter near the bladder was revealed.

[11]

If
    an injury to the ureter is diagnosed within a week of the injury, the repair
    can be done right away and the results are usually good. By July 14 it was too
    late.  The injury to the bladder could not be immediately repaired. The tissue
    surrounding the injured ureter had to be left alone to heal for a period of 3
    to 6 months before reparatory surgery could be performed.  A tube was inserted
    into her abdomen to drain the urine into a plastic bag so that the surrounding
    tissue could heal.  In October 2008, the reparatory surgery was eventually
    done.

FINDINGS OF THE TRIAL JUDGE

[12]

The
    trial judge found as a fact that the appellant, although a general surgeon, was
    qualified to perform the LAVH and that, in doing so, he met the standard of
    care.  In other words, the appellant was not negligent in performing the
    surgery that damaged the ureter.

[13]

However,
    the trial judge found that the appellant did not tell the respondent about the
    possibility of damage to the ureter and thus operated on her without her
    informed consent.   Under a section of the reasons entitled Battery, the
    trial judge stated that although the respondent was eager to end her symptoms,

I do not think that she was determined to have a hysterectomy
    without regard to the risks. I believe her when she says that if she had been
    offered a referral to a gynaecologist, she would have taken it, and got a
    second opinion.  I infer that if anyone had told her that the result could be
    achieved otherwise, she would have chosen the less invasive medical option, particularly
    if she had been informed of the risk of damage to her ureters.

[14]

The
    trial judge also found that the appellant was negligent in his management of
    the respondents condition after the operation.  He accepted the evidence of
    the respondents experts that the appellant should have followed through with
    the CT scan on or shortly after July 7, 2008.  On this basis, the trial judge
    found that the delay in diagnosing the damage to the ureter caused the respondent
    to suffer more pain for a longer time and increased the physical damage done by
    the original injury.  The trial judge found the appellant negligent for not
    conducting a CT scan on July 7.

[15]

Damages
    were assessed for pain and suffering and loss of past and future income.

ISSUES

[16]

There
    are three issues on appeal:

1. Did the trial judge err in his
    analysis of informed consent?

2. Did the trial judge err in finding
    that the appellant was negligent with respect to his delayed diagnosis of the injury
    to the ureter?

3. Did the trial judge err in his assessment of damages?

ANALYSIS

[17]

The
    trial judge erred in law in his analysis of informed consent and in his failure
    to address causation in his determination of the appellants liability for negligence
    with respect to the delayed diagnosis. It is therefore unnecessary to address
    the question of damages.

(1)

Informed Consent

[18]

The
    trial judges determination of liability on informed consent was based on a
    misapprehension of the law.  In the context of medical treatment, battery
    arises when there is no consent at all.   An example would be when the wrong
    operation or procedure was conducted.  When there is an allegation of a deficiency
    in the explanation of risks, the issue is that of informed consent.

[19]

This
    distinction was clarified by the Supreme Court of Canada in
Reibl v. Hughes
,
    [1980] 2 S.C.R. 880.   At pp. 890-92, Chief Justice Laskin said:

In my opinion, actions of battery in respect of surgical or
    other medical treatment should be confined to cases where surgery or treatment
    has been performed or given to which there has been no consent at all or where,
    emergency situations aside, surgery or treatment has been performed or given
    beyond that to which there was consent.

in my view, unless there has been misrepresentation or fraud
    to secure consent to the treatment, a failure to disclose the attendant risks,
    however serious, should go to negligence rather than to battery.

[20]

Although
    the trial judge headed the discussion of informed consent Battery, his
    analysis makes it clear he was speaking of a failure to disclose the risks of
    surgery. The proper issue is therefore informed consent.
Reibl v. Hughes
sets out a two-part test for informed consent.  The first is subjective; the
    second is objective.

[21]

The
    subjective test is based on what the particular patient would have agreed to if
    the risks were known.  It will of necessity vary from patient to patient and
    take into account factors unique to the individual.  The objective test is
    based on what a reasonable person in the respondents position would have
    done.  Both the subjective and the objective criteria must be established for the
    respondent to prove on balance of probabilities that she is entitled to damages
    for the lack of informed consent.

[22]

The
    subjective test alone cannot be relied upon, for it imports an element of
    hindsight reasoning.  A patient could be inclined to say that he or she would
    not have undergone the procedure if the risks that in fact materialized and that
    form the basis of the action had been known.  As stated in
Reibl v. Hughes
,
    at p. 898:

[T]o apply a subjective test to causation would, correlatively,
    put a premium on hindsight, even more of a premium than would be put on medical
    evidence in assessing causation by an objective standard.

[23]

The
    objective test is based on reasonableness, as stated in
Reibl v. Hughes
,
    at p. 900 :

In short, although account must be taken of a patients
    particular position, a position which will vary with the patient, it must be
    objectively assessed in terms of reasonableness.

[24]

Here,
    the trial judge dealt only partially with the subjective test and not at all
    with the objective test.

[25]

To
    meet the subjective test, the respondent must establish that the material risks
    or treatment alternatives were not adequately disclosed and that had they been
    disclosed, consent would not have been given.  The evidence here was that there
    was a 2% risk of damage to the ureter.  The appellant testified that his
    standard risk conversation includes a discussion of possible injuries to the
    surrounding organs, including the ureter, as well as bleeding and infection.
    The respondents evidence was that she did not recall a discussion of risks
    beyond that of bleeding and infection.  On this basis, the trial judge held as
    follows:

I believe her when she says that the defendant informed her of
    the general risks, but not the risk of damage to her ureters.

[26]

Whether
    this is a reasonable finding on the evidence or not, it only addressed part of
    the subjective test.  There could be no finding as to what she would have done
    because she was not asked what she would have done had she been told there was
    a 2% chance of damage to the ureter.

[27]

The
    trial judge inferred that the respondent would have chosen the less invasive
    medical option had anyone had told her that the result could be achieved
    otherwise than by the surgery.  There is no evidence to support this finding
    since she was never asked about medical options or less invasive treatments and
    there was no expert evidence that a medical option would have been beneficial.
    On the contrary, the evidence was that a hysterectomy was a reasonable
    treatment for her condition.  Thus, there was no evidentiary basis for the
    trial judge to conclude that the subjective aspect of lack of informed consent
    was established.

[28]

The
    trial judge did not consider the objective aspect of the test at all. The respondent
    was suffering from prolonged fatigue, she was past child bearing age, and she
    had tried other treatments without success. Had he considered the objective
    test the trial judge may well have concluded that a reasonable person in the
    respondents position would have consented to the surgery.

[29]

The
    trial judges finding that there was not informed consent cannot stand.

(2)

Delayed Diagnosis

[30]

The
    basis for the finding of negligence in connection with the post-surgery
    treatment is the appellants failure to conduct the CT scan on July 7, 2008.
    There is no evidence that a CT scan should have been conducted before July 7 or
    that the ureter damage should have been diagnosed before that date.

[31]

The
    trial judge found that the negligence of the appellant was based on his failure
    to conduct the CT scan on July 7, as requested by the emergency room physician
    and subsequently suggested by the radiologist.  This finding presumes that the
    CT scan that was ordered would have revealed the damage to the ureter and that
    the repair could have been done sooner.  Those two assumptions were not
    supported by the evidence.

[32]

There
    was no evidence that the damage to the ureter would have been discovered as a
    result of the CT scan.  None of the experts were asked if the CT scan that had
    been ordered would have revealed the injury.  In fact, the respondents own
    expert, Dr. Radomski, stated that a CT scan with contrast would have been
    required to identify the ureters.  Dr. Radomski was referred to the emergency
    room physicians request for a CT scan:

Q.      The, in the middle of the page under history and
    clinical information youll see that its written, r/o abscess, rule out abscess?

A.      Yes.

Q.      And youll agree with me theres no mention in this
    record that a CT should be done to rule out a ureteric injury?

A.      Correct.

Q.      And Ive learned that if you want to specifically do
    that with a CT scan, youve got to request a certain type of CT scan.

A.      Yes.

Q.      Okay.  One with contrast?

A.      Correct.

[33]

Thus,
    it was not established that the CT scan contemplated by the emergency room
    physician would have revealed the damaged ureter.  More importantly, even if
    the damage to the ureter had been diagnosed on July 7, it was already too late
    to perform an immediate repair.  Dr. Radomski testified that if a ureter is
    injured during surgery and the injury is noticed at that time, the success rate
    for the repair is fairly good. However, after about a week, the tissue becomes swollen,
    fragile, and difficult to repair.  After this point, the typical approach is to
    repair the injury 3 to 6 months later so that the tissue can heal.

[34]

The
    one-week mark after the respondents surgery would have been June 30, 2008.
    There was no evidence that the injury to the ureter should have been discovered
    by that day.  The trial judge concluded that the appellant should have known
    something was wrong from the start based on the respondents symptoms and
    based on her elevated blood urea nitrogen levels on July 7, which, according to
    the trial judge, indicated a kidney problem.  However, this was a factual
    error.  First, no expert said that the symptoms with which she presented during
    the one-week window for immediate repair were indicative of damage to the
    ureter.   Dr. Radomski did not dispute the appellants diagnosis of abdominal
    wall cellulitis on June 28.  Second, contrary to the trial judges assertion,
    the respondents blood urea nitrogen levels were within the normal range on July
    7.  The evidence did not support the conclusion that the appellant ought to
    have been aware of the injury to the ureter before July 7, let alone within the
    one-week window during which an early repair would have been possible.

[35]

Based
    on the trial judges finding that the CT scan should have been done on July 7,
    and even assuming that it would have revealed the damaged ureter, the evidence
    is that the respondent would still have had to wait 3 to 6 months for the
    repair.  At its highest, a diagnosis on July 7 would have caused the respondent
    to avoid the July 13 laparoscopy and the pain between July 7 and the diagnosis
    on July 14.

[36]

The
    trial judges assessment of damages for pain and suffering, loss of past and
    future income, and the OHIP subrogated claim was based on his flawed analysis
    of the lack of informed consent and the delayed diagnosis of the ureter
    damage.  Because I have concluded that his findings on these two issues cannot
    stand and would order a new trial on that basis, it is not necessary to address
    the appeal with respect to damages.

DISPOSITION

[37]

The
    appeal is allowed and a new trial is ordered. The appellants costs are fixed
    in the amount of $20,000.00 as agreed by counsel.

M.L. Benotto J.A.

I agree R.G. Juriansz
    J.A.

I agree W. Hourigan
    J.A.

Released: January 17, 2014


COURT OF APPEAL FOR ONTARIO

CITATION: Bombardier Inc. v. AS Estonian
    Air, 2014 ONCA 41

DATE: 20140117

DOCKET: C57268

Weiler, Rouleau and Strathy JJ.A.

BETWEEN:

Bombardier Inc.

Plaintiff (Appellant)

And

AS Estonian Air and
the Republic of Estonia through
    Its Ministry of Economic Affairs and Communications

Defendants (
Respondent
)

Douglas F. Harrison and Vanessa Voakes, for the
    appellant

Jonathan Lisus and James Renihan, for the respondents

Heard: January 13, 2014

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated May 24, 2013, with reasons reported at
    2013 ONSC 3039.

ENDORSEMENT

[1]

The essence of the appellants claim is that the Republic of Estonia
    (the Republic), through its alleged involvement in the economic
    decision-making process of AS Estonian Air (the Airline), engaged in activity
    that brought it within the commercial activity exception in s. 5 of the
State
    Immunity Act
, R.S.C. 1985, c. S-18 (the Act).

[2]

Section 3(1) of the Act creates a presumption that a foreign state is
    immune from the jurisdiction of Canadian courts. A court is obliged to give
    effect to that immunity, even where it has not been raised by the state.

[3]

The commercial activity exception provides that a foreign state is not
    immune from jurisdiction in any proceedings that relate to any commercial
    activity of the foreign state. Commercial activity is defined as any
    particular transaction, act or conduct or any regular course of conduct that by
    reason of its nature is of a commercial character.

[4]

In its statement of claim, the appellant alleges that the Republic induced
    the Airline to breach its contract with the appellant and intentionally
    interfered with the appellants economic relations.

[5]

A party seeking to bring a foreign state before the court, by invoking
    the commercial activity exception, cannot simply plead facts constituting a
    cause of action and then plead that those facts are commercial activity,
    thereby grounding jurisdiction: see
Schreiber v. Canada (Attorney General)
,
    2002 SCC 62, [2002] 3 S.C.R. 269. It must do more. It must provide an
    evidentiary record to enable a court to perform the necessary contextual
    analysis to determine that the state has engaged in commercial activity and
    that the proceedings relate to that activity: see
Kuwait Airways Corp. v.
    Iraq
, 2010 SCC 40, [2010] 2 S.C.R. 571, at paras. 30-33.

[6]

Although that analysis does not require a determination of the
    underlying merit of the cause of action, it is a merits-based analysis of the
    evidence supporting or refuting the assertion that the court has jurisdiction
    based on the exception: see
Schreiber
, at para. 18.

[7]

Moreover, it is an analysis in which the party seeking to overcome the
    presumption of sovereign immunity bears the burden of proof:
Kuwait Airways
at para. 22. In this regard, we do not accept the appellants submission
    that the motion judge should have deferred the motion until a later stage, such
    as after discoveries, so the issue could be determined on a full record. As
    Doherty J.A. noted in this courts decision in
Schreiber,
(2001), 52
    O.R. (3d) 577 (C.A.), at para. 16, the action cannot proceed until the issue of
    sovereign immunity has been decided.

[8]

The Republic owns over 90 percent of the shares of the Airline. The
    parties agree that the Republic is not engaged in commercial activity simply
    because of this interest. More is required.

[9]

Here, the motion judge considered the record and found the appellant
    failed to meet the onus of establishing that the actions of the Republic
    intruded into the management sphere of the operation of the Airline. He held
    that the Republics activities were restricted to oversight as shareholder and to
    the furtherance of governmental objectives. He also found, at para. 83, that
    with one insignificant exception, all of the evidence before him demonstrated
    that there was no involvement by the government and no political interference
    with [the Airlines] management in reaching its decision to cease negotiations
    with the appellant and to buy aircraft from a competitor.

[10]

These
    findings were squarely based on the evidence before the motion judge, which
    included affidavits from both the Chief Financial Officer of the Airline and a
    senior officer of the Ministry of Economic Affairs and Communications. This
    evidence satisfied the motion judge that the Republic had no involvement in the
    management, governance or commercial activities of the Airline and that the
    decision to end negotiations with the appellant was made by the Airline and not
    by the Republic.

[11]

We
    are not persuaded that any of the evidence identified by the appellant was
    individually or collectively sufficient to refute this evidence and to discharge
    the appellants burden. Other than a second-hand report contained in a tabloid,
    the appellants evidence does little more than show that the Republic responded
    to requests that it guarantee loans to the Airline, something it consistently
    refused to do, and may have urged the Airline to carry out a comparative
    analysis of competing bids from aircraft suppliers. This falls short of demonstrating
    the type of commercial activity envisaged by the Act and carries little weight
    in the face of the denials in the affidavits of the representatives of the
    Airline and the Republic, on which they were not cross-examined.

[12]

We
    do not agree with the appellants submission that the motion became a
    determination of the underlying merits of the action. Both parties put forward
    an evidentiary record to provide the necessary contextual basis to determine
    whether the appellant had met the onus of showing that the conduct at issue
    fell within the statutory exception.

[13]

In
    essence, the motion judge found, on the evidence, that the Republics
    activities were sovereign in both purpose and nature and did not cross the line
    into the management sphere. His conclusions are entitled to deference and are
    fully supported by the evidence. We would therefore dismiss the appeal, with
    costs fixed at $20,000, inclusive of all applicable taxes and disbursements, as
    agreed by the parties.

K.M. Weiler J.A.

Paul Rouleau J.A.

G.R.
    Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Caton v. Devecseri Estate, 2014 ONCA 52

DATE: 20140123

DOCKET: C55789

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

BETWEEN

Jeremy Caton

Plaintiff (Respondent)

and

Dale Orlando, Litigation Administrator of the
    Estate of Steven Devecseri,
Jeffrey Bradfield
,
    Paul Latanski and Kingsway General Insurance Company

Defendants (Appellant/Respondents)

and

Royal & Sunalliance
    Insurance Company of Canada added pursuant to Section 258(14) of the
Insurance
    Act
, R.S.O., 1990, c.I.8

Statutory Third Party (Respondent)

Todd J. McCarthy and Michael W. Chadwick, for the
    appellant Jeffrey Bradfield

Brigette A. Morrison, for the respondent Kingsway
    General Insurance Company

Raymond A.D. Watt, for the respondent Jeremy Caton

John J. Aikins, for the respondent Royal &
    Sunalliance Insurance Company of Canada

Heard:  January 16, 2014

On appeal from the judgment of Justice B.G. MacDougall of
    the Superior Court of Justice, sitting with a jury, dated June 20, 2012, as
    amended on July 16, 2012.

ENDORSEMENT

[1]

The appellant and the late Steven Devecseri were riding their
    motorcycles together. Devecseri collided, head-on, with the respondent Jeremy
    Catons car. The appellant did not hit Catons car. The trial judge charged the
    jury as to the appellants potential liability as both a joint and a concurrent
    tortfeasor. The jury found the appellant 10% at fault and Devecseri 90% at
    fault for the accident.

[2]

The appellant advances four grounds of appeal:  (1) the trial judge
    erred by telling the jury that his instruction on the but for test of
    causation did not apply to the appellants potential liability as a joint tortfeasor;
    (2)  on the evidence, the trial judge erred by charging the jury on joint
    tortfeasors;  (3)  the trial judges charge was not balanced, and was unfair;
    and (4) the trial judge erred by dismissing, post-verdict,  the appellants
    attempted renewal of his Rule 21.01 motion, which the trial judge had declined
    to deal with on the eve of trial, for a determination whether or not Devecseris
    insurance coverage with the respondent insurer, Royal & Sunalliance
    Insurance Company of Canada (Royal), responded in the circumstances.

[3]

In disposing of this appeal, it is unnecessary for us to address the
    first two grounds of appeal. In our view, based on the answers to the questions
    put to the jury, it is clear that the jury found the appellant liable as a
    concurrent tortfeasor, as well as a joint tortfeasor. The trial judge charged
    the jury on the but for causation test in relation to the appellants
    potential liability as a concurrent tortfeasor,  and the evidence at trial
    supported a charge to the jury on the basis of concurrent liability.  Accordingly,
    the first two alleged errors are of no moment.

[4]

As to the appellants third ground of appeal, in our view, read as a
    whole, the charge was not unbalanced or unfair to the appellant. The trial
    judge carefully summarized the appellants evidence and his position on the
    question of liability. The appellants counsel, like other counsel, was
    actively involved in reviewing and commenting upon the trial judges draft
    charge. The appellants counsel did not object to the trail judges instruction
    on concurrent liability or object on the basis of the overall fairness of the
    charge. This strongly suggests that this experienced counsel saw no overall
    imbalance or unfairness in the charge on the basis now urged before this court.
     At the end of the day, we are satisfied that this jury would have understood
    that it was free to accept or reject any of the liability theories advanced by
    the respondents against the appellant.

[5]

As to his final ground, the appellant does not argue that the trial
    judge erred in refusing to grant him leave to initiate his Rule 21.01 motion on
    the eve of trial; rather, he takes issue with the trial judges dismissal of
    his motion after the trial was completed.  We see no error in the trial judges
    having done so.

[6]

The order adding Royal  Devecseris insurer  as a statutory third
    party to the action provided that the insurance coverage issue would be
    disposed of in a separate action, brought after trial, or as directed by the
    trial judge.

[7]

Rule 21.01 permits a party to move, before a judge, (a) for
the
    determination, before trial
, of a question of law raised by a pleading in
    an action where the determination of the question may dispose of all or part of
    the action, substantially shorten the trial or result in a substantial saving
    of costs (emphasis added). The trial had been completed.  Furthermore, because
    the motion was brought under Rule 21.01, no evidence was admissible on the
    motion without leave of the judge. The trial judge was of the view that the
    motion could not be determined without evidence. In these circumstances, it was
    open to the trial judge to dismiss the appellants Rule 21.01 motion and
    require the coverage issue to be determined in a separate action, as
    contemplated by the order adding Royal as a statutory third party to the
    action.

[8]

We accordingly dismiss this appeal. The respondents Jeremy Caton and
    Kingsway General Insurance Company are entitled to their costs of the appeal in
    the amount of $15,000 each, inclusive of disbursements and HST. The respondent
    Royal is entitled to its costs of the appeal, inclusive of disbursements and
    HST, in the amount of $10,000.

Alexandra
    Hoy A.C.J.O.

E.A.
    Cronk J.A.

Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Coffee Cultures Systems
    Inc. v. Krukowski, 2014 ONCA 61

DATE: 20140123

DOCKET: C56914

Watt, Epstein and Lauwers JJ.A.

BETWEEN

Coffee Cultures Systems Inc.

Plaintiff (Appellant)

and

Henry E. Krukowski

Defendant (Respondent)

Michael G. Tweedie, for the appellant

Rosemary A. Fisher, for the respondent

Heard:  January 22, 2014

On appeal from the order of Justice Antonio Skarica of
    the Superior Court of Justice, dated March 14, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed for the reasons given by the motion judge.  We
    are bound by the decision of this court in
Streamline Foods Limited vs.
    Jantz Canada Corporation
, 2012 ONCA 174.  In accordance with the
    respondents concession, the appellant is permitted to amend the name Coffee
    Culture Systems Inc. to Co Culture Inc., formerly Coffee Culture Systems
    Inc.

[2]

Costs of $7,735.81, inclusive of all applicable taxes and disbursements,
    payable by the appellant to the respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: Cowan v. Hydro One Networks
    Inc., 2014 ONCA 6

DATE: 20140107

DOCKET: C54676

Doherty, Sharpe and MacFarland JJ.A.

BETWEEN

Ronald Cowan, Helen Cowan and Shannon Cowan

Plaintiffs (Appellants)

and

Hydro One Networks Inc.

Defendant (Respondent)

Peter J. Cronyn, John P. Lundrigan, Ashley Deathe,
    Leanne Storms, for the appellants

Reeva Finkel and Ivan Y. Lavrence, for the respondent,
    Hydro One

Heard and released orally: December 20, 2013

On appeal from the judgment of Justice Robbie D. Gordon
    of the Superior Court of Justice, dated October 31, 2011.

ENDORSEMENT

[1]

The trial judge concluded on the law, that the appellants could not
    meet the but for test for causation and that, in the circumstances, he would
    apply the material contribution test.  In view of the Supreme Court of
    Canadas decision in
Clements
(which decision was not available to the
    trial judge when he rendered his decision), this was an error and the material
    contribution test does not apply here.  However, we are of the view that the
    material contribution test is a more lenient test and if the trial judge
    applied it, he still found the appellants did not meet that test and failed to
    prove their case on a balance of probabilities.  In spite of what the trial
    judge said about his application of that test, a fair reading of his reasons
    would suggest that his very thorough analysis looks very much like the application
    of the
but for
test.  He
    concluded that while a number of factors could have caused the problems
    experienced by the appellants. The only one proved on a balance of
    probabilities was inadequate labour.

[2]

The trial judge found that tingle voltage was present in the barn
    regularly in amounts exceeding 1.0 v and on occasion between 2.0 v and 3.0 v.
    No appeal is taken from this finding.  Based on the evidence before him
    however, he concluded at para. 325 of his reasons and I quote:

On the whole I am not satisfied on a balance of probabilities
    that tingle voltage was a contributing factor to the production issues
    experienced on the Cowan farm. That it would have had a negative effect on
    production is belied by 1) the positive production levels for the farm in 95/96;
    2) the acceptable somatic cell counts recorded for most of the time the farm
    operated; and 3) the lack of health issues on the farm that ought to have been
    apparent had tingle voltage been causing significant stress to the cows.

[3]

The appellants take issue with this finding and that is the heart of
    this appeal. In essence, the appellants argue that the trial judge ought to
    have accepted the evidence of their experts and concluded in fact, that tingle
    voltage present in the barn caused the damages of which they complain, which is
    essentially the loss of their dairy farm.  We do not agree.

[4]

While the trial judge accepted the evidence of the appellants experts
    that tingle voltage can cause the type of harm which the appellants allege
    caused their loss, the reduced milk production, it did not on the facts before
    him do so in this case.

[5]

The trial judge considered the whole of the evidence and importantly
    found that if tingle voltage had been the cause of the reduced milk production
    from 1997 forward, there would have been overt signs on the herd.  He concluded
    that the evidence did not demonstrate such signs and accordingly the appellants
    had not established that the herd was being affected by tingle voltage.  In his
    view, milk production had been relatively good in 1995 and 1996 and declined
    thereafter and there was no change in the hydro system that could account for
    the changes after 1997.

[6]

The evidence of the appellants experts was contrary to the evidence of
    the expert called by Hydro. The preponderance of scientific evidence suggested
    that the tingle voltage at the levels found at the appellants farm would not
    cause the problems experience with this herd.

[7]

While the appellants experts testified to the contrary, this was a
    matter for the trial judge and he preferred the evidence of the respondent for
    the reasons he gave.  We would not interfere with this finding.

[8]

The trial judge gave very lengthy reasons when he carefully and
    thoughtfully considered and weighed the evidence before him. The factual
    findings are entitled to deference in this court and absent palpable and
    overriding error we would not interfere.

[9]

We see no error in his conclusion that causation has not been proved.

[10]

While
    the trial judge did find that the respondent had breached the standard of care
    in failing to adequately warn dairy farmers of the possible harm tingle voltage
    could have on cattle, in our view, his finding in this regard was unnecessary
    and of no consequence. Without causation, the question of standard of care does
    not arise.

[11]

The
    appeal in relation to the assessment of damages was not pursued.  For these
    reasons the appeal is dismissed and in view of this result, the cross-appeal is
    also dismissed.

[12]

Costs
    to the respondent fixed in the sum of $45,000 inclusive of disbursements and
    all applicable taxes.

Doherty
    J.A.

Robert J.
    Sharpe J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Heydary Hamilton
    PC v. Muhammad, 2014 ONCA 84

DATE: 20140130

DOCKET: C57545

Juriansz, Pepall and Pardu JJ.A.

BETWEEN

Heydary Hamilton PC

Appellant

and

Dil Muhammad, Pharm Canada Inc., 7302401 Canada
    Corp. and Alfred S. Schorr

Respondent

Heydary Hamilton PC, no one appearing

William S. Chalmers and Gail L. Willoughby for the
    respondent

Heard and released orally: January 27, 2014

On appeal from the judgment of Justice
Edward
    M. Morgan of the Superior Court of Justice
, dated July 25, 2013.

ENDORSEMENT

[1]

No one appeared for the appellant. Counsel for the appellant was removed
    from the record on January 24, 2014, as he was unable to get instructions.

[2]

In our view Rule 15.04 does not remove any jurisdiction this court has
    under the
Courts of Justice Act
on a properly scheduled appeal before
    it. Rule 15.04 gives the court additional jurisdiction to dismiss an appeal
    before the hearing date for procedural failure when a party delays the
    processing of an appeal by not retaining new counsel.

[3]

The appellant has known the appeal would come on for hearing today since
    November 22, 2013, when the appeal was scheduled. The appellant had notice of
    its counsels intention to be removed from the record. If the appellant wished
    to proceed with this appeal, it could have attended today to request an
    adjournment. It did not.

[4]

In the exceptional circumstances of this case, we dismiss the appeal as
    abandoned. Costs will be fixed on a partial indemnity basis in the amount of
    $8,000 all inclusive.

R.
    G. Juriansz J.A.

S.
    E. Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jamal v. Ontario (Community and Social
    Services), 2014 ONCA 47

DATE:  20140121

DOCKET: C56956

Weiler, Rouleau and Strathy JJ.A.

BETWEEN

Naseem Jamal

Appellant

and

Her
    Majesty the Queen in Right of Ontario, as represented

by the
    Ministry of Community and Social Services (HMQ)

Respondent

Naseem Jamal, acting in person

Kevin Dorgan, for the respondent

Heard and released orally: January 15, 2014

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated March 19, 2013, with reasons reported at
    2013 ONSC 1290.

ENDORSEMENT

[1]

Notwithstanding a settlement agreement, the appellant has been engaged
    in litigation with the respondent, her former employer, over employment-related
    matters for over 10 years. Various proceedings she has commenced have been
    dismissed, some after unsuccessful attempts to appeal to this court and to the
    Supreme Court of Canada.

[2]

In this proceeding, the appellant made further claims related to her
    employment. The motion judge dismissed her action, holding that: (a) the claims
    were barred by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.;
    (b) the claims disclosed no reasonable cause of action; (c) the claims were an
    abuse of process, vexatious, or frivolous; and (d) the claims were outside the
    jurisdiction of the court and within the exclusive jurisdiction of the
    Grievance Settlement Board. Any one of these grounds would have been sufficient
    to dismiss the action.

[3]

At its core, this action is an attempt to re-litigate issues that were
    or ought to have been raised in the many prior proceedings launched by the
    appellant in the courts and other tribunals. The appellant has already received
    a full hearing with respect to all these issues. The doctrine of issue estoppel
    applies: see
Danyluk v. Ainsworth Technologies Inc
., 2001 SCC 44, [2001]
    2 S.C.R. 460. While this court has discretion to decline to apply the doctrine,
    we would not do so in this case, because we agree with the motion judge that
    this action is an abuse of process.

[4]

We therefore dismiss the appeal. We add that we consider the appellants
    allegations concerning counsel for the respondent to be entirely unfounded.

[5]

Costs to the respondent fixed at $1,500, inclusive of all applicable
    taxes and disbursements. The amount is modest in light of the appellants
    circumstances and is no reflection on the thorough and very helpful factum
    prepared by counsel for the respondent.

Karen
    Weiler J.A.

Paul
    Rouleau J.A.

G.R.
    Strathy J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Kandolo c. Kabelu, 2014
    ONCA 8

DATE : 20140109

DOSSIER : C56099

Les Juges Sharpe, Rouleau et van
    Rensburg

ENTRE

Benoit Kandolo, Rachel
    Sita-Menga, Sophie Olangi, Viviane Leseya et La Fondation Olangi Wosho

Requérants / Intimés dans lAppel

et

Jean Venance Kabelu et Deborah-Etshoko
    Kabelu

Intimés / Appelants

ENTRE

Kabe Jean Venance Kabelu, Deborah-Etshoko Kabelu, Faith Chantal
    Fuamba, Sylvie Betu Kabamba, Pierre Kamba, Aloki Mbolongo Coco, Dr. Yves Fuamba
    et La Fondation Olangi Wosho

Requérants / Appelants

et

Benoit Kandolo Kekumba, Rachel Sita-Menga, Sophie Olangi et Viviane
    Leseya

Intimés / Intimés
    dans lAppel

François Kabemba, pour les appelants

Ronald F. Caza et Marcia A. Green, pour
    les intimés

Date de laudience et de la
    décision rendue séance tenante :
le 7 novembre 2013
En appel de la décision du juge Robert J. Smith
    de la Cour supérieure de justice de lOntario datée du 7 septembre 2012.
INSCRIPTION
[1]

À la fin de laudience, notre cour a rejeté le
    pourvoi pour les motifs suivants.
[2]

La question centrale dans cet appel est la
    validité des démissions du conseil dadministration de La Fondation canadienne
    soumises par les appelants Jean Venance et Deborah-Etshoko Kabelu. Les Kabelu
    maintiennent que leurs lettres de démission sont le produit dune influence
    indue de la part de Maître Kilongozi et un élément dun complot formulé par les
    intimés ayant comme objectif la prise de contrôle de La Fondation. Les Kabelu prétendent
    que le juge des requêtes a commis une erreur en concluant que les lettres de
    démission étaient valides.
[3]

Nous rejetons cette prétention. Le juge des
    requêtes était saisi de tous les faits pertinents. Il était clair que dans les
    mois qui ont précédé les démissions, il y avait des tensions entre les Kabelu
    et les intimés. Tel que noté par le juge, les Kabelu étaient au courant au
    cours de lété 2011 que le couple fondateur de la Fondation congolaise voulait
    leur départ et la vente de limmeuble appartenant à La Fondation canadienne.
    Une entente en vue de la vente de cet édifice a été conclue et ce nest que par
    la suite que les Kabelu ont présenté leur démission. Leur démission a fait
    suite à leur décision dintenter une poursuite contre La Fondation pour
    récupérer des fonds qui leur sont dus par celle-ci.
[4]

En ce qui a trait à lallégation que lavocat de
    La Fondation, Maître Kilongozi, aurait participé à un complot pour induire les
    Kabelu à démissionner, le juge des requêtes a traité cette suggestion dans ses
    motifs. Le juge a noté que les Kabelu ont reconnu que Maître Kilongozi leur avait
    conseillé de consulter un avocat indépendant. De fait, les Kabelu ont par la
    suite, consulté Maître Kabemba qui a rédigé les démissions. De plus, une lettre
    de couverture envoyée à La Fondation a expliqué les raisons de cette démission.
    Le juge a carrément rejeté la suggestion que ces démissions étaient le résultat
    dune influence indue.
[5]

Nous reconnaissons que le dossier contient de la
    documentation et des affidavits qui soulèvent des questions troublantes
    concernant la conduite des intimés. Par contre, ces faits ont tous été
    présentés au juge des requêtes qui les a soupesés avant den arriver à sa
    décision. Ces questions ne sont que marginalement pertinentes à la question de
    la validité des démissions. À notre avis les appelants nont pas démontré que
    le juge des requêtes a commis une erreur manifeste et dominante qui nous
    permettrait de renverser sa détermination factuelle que les démissions étaient
    valides. Le juge a rendu une décision bien motivée et pour arriver à ces conclusions,
    il a appliqué correctement le droit pertinent.
[6]

Pour ces motifs lappel est rejeté.
[7]

À notre avis lautorisation dinterjeter appel
    de lordonnance de dépens doit aussi être rejetée. Les motifs du juge des
    requêtes expliquent bien pourquoi il a conclu que le montant de dépens alloué
    était raisonnable. Nous devons une grande déférence au juge des requêtes pour
    des questions de dépens.
[8]

En ce qui a trait aux dépens de lappel, les
    intimés y ont droit. Ils sont fixés, sur la base dune indemnité partielle, au
    montant de 30,000 $ y compris débours et taxes. En ce qui concerne la
    motion entendue par téléconférence du 31 octobre 2012, il ny a aucuns dépens
    payables.
« Robert J. Sharpe
    j.c.a. »
Paul
    Rouleau j.c.a.
« K. van Rensburg
    j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: Lu v. Zhao, 2014 ONCA 12

DATE: 20140109

DOCKET: C56132

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Jin Lu

Appellant

and

Hang Zhao

Respondent

Jin Lu, acting in person

Jeff Li, for the respondent

Heard and released
    orally: December 13, 2013

On appeal from the order of
    Justice Kevin W. Whitaker of the Superior Court of Justice, dated September 21,
    2012.

ENDORSEMENT

[1]

This appeal raises several issues. They fall into two categories: the
    appellantâs claim for a sale and division of property in China and the quantum
    of child support.

[2]

For the following reasons, the appeal is dismissed.

Property in China

[3]

The
Family Law Act
, R.S.O. 1990, c. F.3, contemplates a
    division of net family property, not a sale and division of all individual
    properties, particularly property in another jurisdiction. The parties each had
    net family property of zero therefore, there was no equalization payment. Even
    if the trial judge had jurisdiction to deal with the property in China, there
    was no evidence presented at trial that could support a claim in equity or
    otherwise.

[4]

The appellant claims that the property in China is a matrimonial home.
    The property in China is not a matrimonial home, as the parties were not
    ordinarily residing in it at the date of separation.

Quantum of child support

[5]

The trial judge was entitled to impute income to the appellant with
    reference to his income tax returns for the years 2009 to 2011 and the undeclared
    cash income for the years he was winding up his import/export business. The
    attribution of $30,000 for 2007 and $20,000 for 2008 is substantiated on the
    record. The extraordinary expenses for tutoring, dental work and violin lessons
    are appropriate.

[6]

The fresh evidence referred to by the appellant regarding so-called
    forged documents is not relevant to this appeal. The trial judge did not rely
    on any written agreement between the parties in imputing income to the
    appellant. After the trial judgment, the trial judge made an endorsement in the
    continuing record on December 17, 2012. The endorsement fixed the arrears owing
    to the wife at $13,451.24 and added that âthe amount already paid should be
    deducted from this totalâ. Before us, the parties disputed âthe amount already
    paidâ. The parties are referred back to the trial judge to settle what that amount
    is.

[7]

The appeal is dismissed. Costs are fixed in favour of the respondent in
    the amount of $3,000 all inclusive.

"R.G. Juriansz J.A."

"W. Hourigan J.A."

"M.L. Benotto J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: MacDonald Estate v. Highland Fuels
    Dundalk Ltd., 2014 ONCA 67

DATE:  20140124

DOCKET: C57422

Rosenberg, Cronk and Tulloch JJ.A.

BETWEEN

Scott Richardson
    and Gerry Richardson

Plaintiffs

The Estate of Bonnie Irene MacDonald

by her Estate Trustee Collene MacDonald, Leif Smith

Defendants

Plaintiffs by
    Cross-claim

(Appellants)

and

Highland Fuels Dundalk Ltd.

Defendant

Defendant by
    Cross-claim

(Respondent)

Daniel Zacks, for the appellants

David A. Zuber and James Tausendfreund, for the
    respondent

Heard: January 22, 2014

On appeal from the order of Justice D.L. Edwards of the
    Superior Court of Justice, dated August 12, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellants central contention on this appeal is that, by consenting
    to a June 2012 order requiring the appellants to set the action down for trial
    by a set date, the respondent implicitly represented that it was ready for
    trial.  We reject this contention.

[2]

By consenting to the order at issue, the respondent did no more than
    agree to a scheduling requirement that the appellants, who had delayed for
    years in advancing the progress of their claim against the respondent, set the
    matter down for trial by a particular date, failing which the respondent could
    move to dismiss the claim for delay.  In so doing, the respondent made no
    representation regarding its own trial readiness or with respect to the
    potential for a fair trial, given the appellants considerable delay.  Indeed,
    the order at issue is not an order setting the matter down for trial.  Nor was
    the appellants claim against the respondent ever, in fact, set down for trial
    by any of the parties, let alone being placed on the trial list.

[3]

In these circumstances, we agree with the respondent that those aspects
    of Rule 48 of the
Rules of Civil Procedure
relied upon by the
    appellants were simply not engaged.

[4]

We also agree with the motion judge that, by consenting to the June 2012
    scheduling order, the respondent did not waive its right to later complain of
    prejudice occasioned by the appellants delay prior to the date of the order.
    The order does not say so.  Nor is there any evidence that the parties so
    agreed as a condition of the order.  Indeed, on its face, the order
    contemplated, without limitation, that if the appellants failed to set the
    action down for trial by November 30, 2012, the respondent would be entitled to
    move to dismiss the action for delay.  Nothing in the language of the order,
    expressly or by implication, narrowed the scope of the prejudice by reason of
    delay argument that might then be advanced by the respondent in these
    circumstances.

[5]

We note that the appellants involved counsel (not counsel on this
    appeal) effectively acknowledged as much on his cross-examination by conceding
    that the respondent did not waive its right to complain of the appellants
    pre-June 2012 delay by reason of consenting to the June 2012 order.

[6]

For the reasons given, the appeal is dismissed.  The respondent is
    entitled to its costs of the appeal, fixed, as agreed by the parties, in the
    total amount of $7,500, inclusive of disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Taylor, 2015 ONCA 35

DATE: 20150121

DOCKET: C54181

Laskin, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renardo Desmond Taylor

Appellant

Chelsea Moore, for the appellant

Michelle Campbell, for the respondent

Heard: January 16, 2015

On appeal from the conviction entered on April 13, 2011
    by Justice
Francesco Valente
of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant challenges his conviction for aggravated assault on the
    ground the trial judge failed to make a finding of causation  in other words,
    he did not make a finding on whether the appellants wounds were caused during
    the swarming in the parking lot or by the flying glass.

[2]

Although the trial judge did not make this specific finding the
    inescapable inference from his reasons is that the appellant was wounded in the
    parking lot assault. That was the Crown's theory and the trial judge accepted
    the Crowns theory. Moreover, the complainant testified that he was not wounded
    by the flying glass and the trial judge accepted his evidence.

[3]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR
    ONTARIO

CITATION: Mann v. Saini, 2014 ONCA 27

DATE: 20140114

DOCKET: C55761

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Gurdev Singh Mann

Appellant (Plaintiff)

and

Gurpal Singh Saini, Joseph Stanford and Karl
    Stanford

Respondents (Defendants)

Joseph Markin, for the appellant

James S.G. MacDonald, for the respondent Gurpal Saini

E. Anthony Ross Q.C., for the respondents Joseph and
    Karl Stanford

Heard: January 6, 2014

On appeal from the judgment of Justice Carole J. Brown of
    the Superior Court of Justice, dated June 13, 2012.

ENDORSEMENT

[1]

At trial, the appellant made numerous claims regarding deals with the
    respondents involving two businesses, CCSI and CASI. The appellant first
    acquired a 35% interest in both businesses from the respondents sometime in
    2003 or early 2004. The appellant also became the President and CEO of both
    companies. The respondents Saini and Karl Stanford each maintained equal 32.5%
    interests in the companies (Karl Stanford held the 32.5% interest in trust for
    his father Joseph), and Joseph Stanford became the head of Customer Service.

[2]

A Shareholders Agreement was signed in February of 2004. That agreement
    contained a detailed process for the purchase and sale of the interests held by
    the appellant, Saini, and Karl Stanford.

[3]

In July of 2004, Joseph Stanford resigned as an employee. His son Karl
    did not relinquish his shares in the companies. However, the appellant and
    Saini treated their interests in the companies as 50% each. They did not seek
    any legal advice regarding the effect of Joseph Stanfords resignation on the ownership
    of the business.

[4]

Soon after, it was agreed that the appellant would purchase Sainis shares
    in the companies for $100,000. A preamble in the share purchase agreement between
    them states that each of the appellant and Saini owned 50% of the shares, even
    though  Karl Stanford continued to hold a 32.5% interest in the companies as
    trustee for his father Joseph. Neither Karl nor Joseph Stanford was a party to
    the share purchase agreement between the appellant and Saini. By the time of
    trial, the appellant had paid only $50,000 of the money due to Saini pursuant
    to this share purchase agreement.

[5]

Thereafter, the appellant continued to operate both companies. By
    December 2004, however, CCSI was having financial difficulties. CASI continued
    to operate successfully and provided income to the appellant until 2009, when
    CASI was dissolved. At that time, the appellant took all the remaining capital,
    which he estimated at $250,000.

[6]

The appellant sued the respondents for alleged misrepresentations made
    to him when he initially purchased an interest in the companies. Saini
    counterclaimed for the outstanding balance of $50,000 on the share purchase
    agreement he concluded with the appellant. The Stanfords alleged that they were
    wrongfully deprived of their interests in the businesses and counterclaimed for
    extensive relief, including damages for lost profits, harassment, emotional
    distress, and punitive damages.

[7]

The trial judge made findings of fact based on her assessment of the
    parties credibility. She dismissed the appellants action and allowed the
    counterclaims in part. She awarded Saini the outstanding funds of $50,000, and
    awarded Karl Stanford $50,000 flowing from his interest in CASI.

[8]

The appellant appeals the dismissal of his action based on the alleged misrepresentations
    and also appeals the judgment on the counterclaims.

Appellants Claim for Misrepresentation

[9]

The appellant contests most of the factual findings made by the trial
    judge. The appellant argues that this court should not show deference to the
    findings of the trial judge and that numerous factual errors rendered the trial
    judges reasons inadequate. The appellant, however, has been unable to point to
    any error in the trial judges reasons. All of the trial judges findings are
    well supported in the record. This case was largely based on credibility. The
    trial judge correctly identified and applied the relevant legal principles
    relating to credibility assessments. She appropriately considered the evidence
    in assessing credibility and identified the contradictions in the appellants
    evidence. Her finding that the appellants evidence was inconsistent,
    contradictory, improbable, and evasive was well supported in the evidence. The
    trial judges credibility findings are entitled to deference, and we see no
    basis to interfere.

Counterclaim of Saini

[10]

The
    appellant argues that there was no basis for the trial judge to award Saini the
    remainder of the money owed pursuant to the share purchase agreement between
    them. He argues that Saini represented to him that Saini was selling 50% of the
    companies, which would make the appellant an owner of 100% of the shares. The
    appellant argues that because the trial judge determined that Karl Stanford
    still owned 32.5% of the companies, Saini was purporting to sell something he
    did not own and was therefore in breach of the share purchase agreement.

[11]

We
    would not give effect to this submission. The trial judge noted the recital in
    the share purchase document indicating that each of the appellant and Saini were
    owners of 50% of the company. She preferred and accepted Sainis evidence regarding
    the share purchase agreement and that he was advised by the appellant that they
    each owned 50% of the businesses after Stanfords resignation. Saini simply
    accepted the appellants advice in that regard and proceeded to sell his shares
    to the appellant. There was no misrepresentation by Saini. Both parties
    understood that Saini was selling his interest in the companies to the
    appellant. This is what the appellant received.

Counterclaim of Stanford

[12]

The
    appellant argues that it was an error for the trial judge  to award Karl
    Stanford $50,000. He argues that the award is a forced purchase of Karl Stanfords
    shares. In the appellants submission, the reasons of the trial judge make it
    plain that she dismissed all of the claims that were advanced in the Stanfords
    counterclaim. Moreover, as the statement of defence and counterclaim of the
    Stanfords did not seek to compel the appellant to purchase Karl Stanfords
    interest in the companies, it stands to reason that the trial judge could not
    make the award she did.

[13]

We
    disagree. Joseph Stanford has never been paid for his interest in the
    businesses nor did he receive any dividends or return of capital before CASI
    was dissolved. She found that Karl Stanford maintained his interests in the
    companies after his father Josephs resignation in 2004. The trial judge also
    found that the appellant operated CASI profitably until 2009 without any
    consideration of the Stanfords ownership interest. The appellant then
    dissolved CASI in 2009, withdrawing about $250,000 in capital. Although the
    trial judge rejected the Stanfords claim for $434,702 in lost profits as
    lacking in detail and supporting documents, she did not dismiss all of the Stanfords
    claims.

[14]

The
    Stanfords defence and counterclaim does not seek a forced purchase of Karl
    Stanfords shares in CASI by the appellant. However, it contains a broad claim
    for relief and damages. The Stanfords allege that the appellant falsely
    represented that Joseph Stanford had abandoned his interests in CASI, and that
    the effect of the appellants actions was to illegally deprive the Stanfords
    of their financial and equitable interests in the businesses in issue.

[15]

Based
    on the trial judges findings that Karl Stanford maintained an interest in CASI
    after his fathers resignation, and that the appellant operated CASI profitably
    and provided no accounting to the Stanfords upon dissolving the company in
    2009, it was open to the trial judge to make an award to Karl Stanford flowing
    from his ownership interest.  In our view, the trial judge did not, as the
    appellant suggests, order a buyout of Karl Stanfords shares. She simply used
    the value ascribed to Sainis interest in CASI at the time of the share
    purchase agreement between the appellant and Saini as a guide in arriving at
    the $50,000 award to Karl Stanford.

[16]

It
    was within her discretion to make the award she did.

Summary

[17]

For
    these reasons, the appeal is dismissed.  Costs are fixed at $7,000 inclusive of
    disbursements and applicable taxes payable by the appellant to each of the respondents
    for a total of $14,000.

Paul Rouleau J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.