COURT OF APPEAL FOR ONTARIO

CITATION: Williams v. Richard, 2018 ONCA 889

DATE: 20181107

DOCKET: C63999

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Grace
    Williams, Evan Williams, and Chloe Williams, minors under the age of 18 years by
    their Litigation Guardian, Cheryl Williams

Plaintiffs (Appellants)

and

John
    Kardux, David VanLagen, Ava Hillier, Litigation Administrator of the Estate
    of Mark Williams, deceased, Axa Insurance (Canada),
Jake Richard
and
Eileen
    Richard

Defendants (
Respondents
)

AND BETWEEN

Grace
    Williams, Evan Williams, and Chloe Williams, minors under the age
    of 18 years by their Litigation Guardian, Cheryl Williams, and Cheryl Williams,
    personally

Plaintiffs (Appellants)

and

John
    Kardux, David VanLagen, Axa Insurance (Canada),
Jake Richard
and
Eileen Richard

Defendants (
Respondents
)

Patrick Brown and William Harding, for the appellants

Brian Smith, for the respondents

Heard: October 5, 2018

On appeal from the judgments of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated June 9, 2017, with reasons reported at
    2017 ONSC 3590.

Hourigan J.A.:

A.

Introduction

[1]

Mark Williams and Jake Richard were colleagues and friends. They
    regularly got together to drink beer after work. On the evening in issue, Mr.
    Williams consumed approximately 15 cans of beer over the course of about three
    hours while visiting with Mr. Richard at the home of Mr. Richards mother,
    Eileen Richard. A short time after leaving Ms. Richards residence, Mr.
    Williams loaded his children into his car and drove their babysitter home. On
    the way back to his residence, Mr. Williams was involved in a serious accident.
    He was killed and his children are alleged to have been injured.

[2]

This series of events spawned two court actions. In the first, Mr.
    Williams children and their mother sue for personal injuries allegedly
    sustained by the children. In the second, the children and their mother claim
    damages pursuant to the
Family Law Act
, R.S.O. 1990, c. F.3. Both
    actions are premised on a claim that the respondents breached a duty of care as
    social hosts.

[3]

On a motion for summary judgment, the motion judge dismissed both claims,
    finding that the requisite duty of care had not been established and that even
    if it were established, such a duty of care would have ended once Mr. Williams
    arrived home to pick up his children and their babysitter. In so finding, she
    relied primarily on two cases:
Childs v. Desormeaux
, 2006 SCC 18,
    [2006] 1 S.C.R. 643 and
John v. Flynn
, 54 O.R. (3d) 774 (C.A.), leave
    to appeal to S.C.C. refused, [2001] S.C.C.A. No. 394. These reasons explain why
    I have concluded that the motion judges order cannot stand. In its place, I
    would order that the cases proceed to trial.

B.

Facts

[4]

The factual background to this appeal may be briefly described as
    follows.

[5]

Mr. Richard lived in his mothers home, which was located approximately
    500 meters from the home Mr. Williams shared with his wife and three children.

[6]

Mr. Williams and Mr. Richard worked together for approximately four
    years. They got together after work three to four times per week to drink beer
    at one or the others home.

[7]

On the day in issue, October 18, 2011, the men worked from 7 a.m. to 1
    p.m. Mr. Williams dropped Mr. Richard home after work. The pair had no plans to
    meet again later. However, Mr. Williams showed up at Ms. Richards home in his
    work van at approximately 4:30 p.m. that day.

[8]

Mr. Williams and Mr. Richard went to the garage and drank for about the
    next three hours. During that time, Mr. Williams is estimated to have consumed approximately
    15 cans of beer. There does not seem to be any debate that Mr. Williams was
    inebriated and that Mr. Richard knew Mr. Williams was in no condition to drive.

[9]

Mr. Richard became aware of Mr. Williams intention to drive the babysitter
    home in his personal vehicle and was aware that Mr. Williams would have his children
    in the car when he did so. The men had a pact that if either of them were going
    to drive while intoxicated and children were involved, the other would call the
    police. According to Mr. Richard, he threatened to call the police but he did
    not believe that Mr. Williams took that threat seriously. There is some evidence
    he received an assurance from Mr. Williams that he would not drive the
    babysitter home.

[10]

It
    is far from clear whether Mr. Richard was satisfied with Mr. Williams
    assurance. His evidence regarding whether he believed that Mr. Williams was
    going to drive the babysitter was internally inconsistent. There was also
    inconsistent evidence regarding what Mr. Richard told his mother. Mr. Richard
    testified that he advised his mother that Mr. Williams was going to drive the
    babysitter home with the children in the car. Ms. Richard testified that she
    understood from the conversation with her son that Mr. Williams would not be
    driving the babysitter home.

[11]

Beyond
    threatening to call the police, Mr. Richard did nothing further to stop Mr.
    Williams from driving while drunk. He did not call Mr. Williams wife or the babysitter
    to alert them to the situation. He did not ask his mother, who was not
    drinking, to drive the babysitter home. He did not walk to Mr. Williams home
    to see if his personal vehicle was in the driveway. It is also clear that Ms. Richard
    took no steps to prevent Mr. Williams from driving.

[12]

According
    to Mr. Richard, approximately ten minutes after Mr. Williams left, he accompanied
    his mother to a variety store in Otterville to buy cigarettes. He did so in
    part because he was worried that Mr. Williams might have driven the babysitter
    home. Mr. Richard admitted to being concerned about the situation before he
    left with his mother. His mothers evidence was that they did not leave the
    house to go to the store until approximately a half hour after Mr. Williams
    left.

[13]

While
    driving to the Otterville store, Mr. Richard noted that Mr. Williams personal
    vehicle was not in his driveway. He went in the store and found that it did not
    have his mothers brand of cigarettes. Upon leaving the store, Mr. Richard
    called the police from a payphone outside the store to alert them about a drunk
    driver. He and his mother then travelled to another store in Norwich to buy
    cigarettes.

[14]

On
    the way back from Norwich, Mr. Richard and his mother came upon the scene of
    Mr. Williams accident. He had driven into the rear of a stationary tractor
    towing a trailer. Mr. Williams was ejected from the vehicle and died as a
    result of his injuries.

[15]

These actions were commenced naming various
    defendants. The only remaining defendants are Mr. Richard and Ms. Richard.

[16]

The respondents brought a motion for summary judgment,
    asserting that they owed no duty of care to the appellants. The motion judge ruled
    in their favour.  She was of the view that the appellants had failed to
    establish the existence of any duty of care owed by Mr. Richard or Ms. Richard.
    In the alternative, she concluded, relying on
John
, that if a duty did
    exist, it was spent when Mr. Williams arrived safely home before departing
    again to drive the babysitter.

C.

Issues

[17]

This appeal raises the following issues:

(i)

Did the motion judge err in her duty of care analysis regarding
    foreseeability and/or proximity?

(ii)

Did the motion judge err in her reliance on
John
?

(iii)

Should this court consider the issues of whether any residual policy
    considerations suggest a duty of care should not exist and whether the
    respondents met the applicable standard of care? If so, how do those issues
    impact the result?

D.

Analysis

(1)

Duty of Care

(a)

Legal Principles from
Childs

[18]

Childs

is the
    leading case in Canada regarding social host liability. The Supreme Court
    applied the
Anns-Cooper-Odhavji
framework to conclude
that

the social
    hosts in that case did not owe a duty of care to the plaintiff, a public user
    of the highway who was injured by the hosts intoxicated guest: at paras. 11-15,
    citing
Anns v. Merton London Borough Council
(1977), [1978] A.C. 728 (H.L. Eng.);
Cooper
    v. Hobart
, 2001 SCC 79; [2001] 3
    S.C.R. 537;
Odhavji Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 537. The outcome of

Childs
hinged on two issues: foreseeability and
    proximity.

[19]

With respect to foreseeability, the Supreme
    Court noted the absence of a finding by the trial judge that the hosts in

Childs

knew
    or ought to have known that Mr. Desormeaux, the social guest, was too drunk to
    drive. Further, the court

held that foreseeability was not established
    by the fact that the hosts had knowledge of the guests past drinking and
    driving:
Childs
,
at paras. 28 - 29.

[20]

In
Childs
, as in the present case, the court was concerned not
    with an overt act by the social hosts but with their alleged failure to act. In
    other words, the claim was based on a failure to stop Mr. Desormeaux from
    driving while intoxicated. In these circumstances, the court found that the
    plaintiff had the onus of establishing
foreseeability of harm, and in addition, other aspects of the
    relationship between the plaintiff and the defendant that create a special
    link or proximity:
Childs
, at para. 34.

[21]

The Supreme Court articulated three
    situations that establish such a special link and that require legal
    strangers to take action. The court explicitly stated that these are not
    strict legal categories, but recognized, at paras. 35-37, features of a relationship
    that bring legal strangers into proximity:

(i)

Where a defendant intentionally attracts and
    invites third parties into an inherent and obvious risk that he or she has
    created or controls;

(ii)

Paternalistic relationships of supervision and control;
    and

(iii)
Where a defendant exercises a public function or
    engages in a commercial enterprise that includes implied responsibilities to
    the public at large.

[22]

Common to the above three situations is
    the defendants material implication in the creation of risk or his or her
    control of a risk to which others have been invited:
Childs
, at para. 38.

[23]

In
Childs

the court found that simply holding a house party where
    alcohol is served is not an invitation to participate in highly risky activity.
    More is required to establish a risk that requires positive action:
Childs
, at para. 44.

(b)

Legal Principles from post-
Childs
jurisprudence

[24]

The post-
Childs

jurisprudence
    on social host liability, discussed below, demonstrates that there is no clear
    formula for determining whether a duty of care is owed by social hosts to third
    parties or guests. Rather, the determination of whether such a duty of care
    exists usually hinges on fact specific determinations pertaining to two main
    issues. The first issue is the hosts knowledge of a guests intoxication or
    future plans to engage in a potentially dangerous activity that subsequently
    causes harm. This is a foreseeability analysis. The second determination asks
    if something more is present on the facts of the case to create a positive
    duty to act. The something more could be facts that suggests the host was
    inviting the guest to an inherently risky environment or facts that suggest a
    paternalistic relationship exists between the parties. This is a proximity analysis.

[25]

The foreseeability case law has focused
    heavily on a social hosts knowledge as to the relevant guests level of
    intoxication, whether there were signs that the guest was intoxicated, and thus
    whether it was reasonably foreseeable that the guest would engage in certain
    acts and behaviours that subsequently led to an accident: see
Sidhu
    (Litigation guardian of) v. Hiebert
, 2011
    BCSC 1364;
Wardak v. Froom
, 2017
    ONSC 1166, 38 C.C.L.T. (4th) 166;
Lutter v. Smithson
, 2013 BCSC 119, 18 C.C.L.I. (5th) 294;
Sabourin
    (Litigation guardian of) v. McKeddie
, 2016
    ONSC 2540;
Kim v. Thammavong
, 2007
    CanLII 52791 (Ont. Sup. Ct.), affirmed 2008 CanLII 63230 (Ont. Div. Ct.).

[26]

In the context of summary judgment
    motions, some of the jurisprudence has suggested that the presence of
    conflicting evidence about the level of a hosts knowledge of a guests
    intoxication is enough to render a full trial necessary: see
Sidh
u
at paras.
    40-41;
Wardak
, at paras. 58-61;
Lutter
, at paras. 26, 29-30. In particular, cases that offer
    conflicting evidence on a hosts knowledge of a guests intoxication via
    affidavits may be particularly unsatisfactory; there could be a significant
    risk of injustice if such issues were not further explored in a full trial:
Lutter
, at para. 30. However, this does not mean that any
    ambiguity in the evidence on a hosts knowledge of a guests intoxication will
    result in summary judgment being denied. For example, in
Sabourin
,
the motion
    judge found that even if the plaintiffs evidence was taken at its highest,
    there was a lack of evidence that the host knew there was excessive drinking or
    that any guest was showing obvious signs of intoxication: para. 38. As such, there
    was a lack of reasonable foreseeability and summary judgment was granted.

[27]

Much of the post-
Childs
jurisprudence regarding proximity has engaged in a
    factually specific evaluation of whether something more is present to suggest
    that a positive duty to act may exist. While there is no definitive list, the
    case law has looked at a variety of factors to determine what could qualify as
    something more that would make a social gathering an inherent and obvious
    risk, including: whether alcohol was served at the party or whether guests were
    invited to bring their own alcohol, the size and type of the party, and whether
    other risky behaviour was occurring at the party, such as underage drinking or
    drug use:

see generally

Childs
,

Sidhu
,
Wardak
,

Lutter
,
Sabourin
,
Kim
,

Allen v. Radej
, 2014 ABQB 171,
Oyagi v. Grossman
, 2007 CanLII 9234 (Ont. Sup. Ct);
Wenzel v. Desanti
,
2011 ABCA
    226, 510 A.R. 327, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 437.

[28]

There are many different factual
    permutations of what could transform a social gathering into an invitation to
    an inherent and obvious risk. It is helpful to think of these situations as
    being situated along a spectrum. At one end of the spectrum is

Childs
, which was a bring your own alcohol party where the
    hosts provided minimal alcohol. Similarly, private parties of a reasonable size
    are usually viewed by the courts as not inherently risky: see
Robinson
    v. Lewis
, 2015 ABQB 385, at paras. 72-77.
    Likewise, an invitation to a co-workers home to have dinner and after-work
    drinks outside is not inherently dangerous or risky: see
Allen
, at para. 78. Moving further down the spectrum, a
    young adult throwing a wild Halloween party and providing alcohol for around
    40 people, some of whom are using illegal drugs, may implicate a host in the
    creation of an inherent risk: see
Kim
, at paras. 9-10, 25. On the far end of the spectrum, a teenager throwing
    a house party at which over 100 people attend, most of whom are underage
    drinkers, while their parents are out of town, likely implicates the host in
    the creation of an inherent risk:

Oyagi
,

at paras. 6-7, and 12.

(c)

Motion Judges Duty of Care Analysis

[29]

With these principles in mind, I consider
    the analysis of duty of care in the present case. Normally, a duty of care
    analysis in the context of an allegation that a social host failed to act
    should consist of three elements. First, is the issue of whether the injury was
    reasonably foreseeable. Second, is the issue of whether there is sufficient
    proximity such that there is a duty to act. If these elements are satisfied, a
prima
    facie
duty of care has been established and
    the third issue is whether
this duty is negated by
    other, broader policy considerations: see
Childs
, at paras. 12 and 31.

[30]

The motion judges duty of
    care analysis, which is very brief, does not follow this structure. She indicated
    that the first issue was whether proximity had been established. However, she
    then proceeded to examine the issue of foreseeability as it related to Ms.
    Richard. At para. 48 she found, there is no evidence that Eileen Richard knew
    that Mark was about to drive while impaired. She concluded, therefore, that
    foreseeability had not been established. The motion judge then found at paras.
    49 and 51 that proximity had not been established in regard to Ms. Richard
    because none of the
features
    of a relationship that bring legal strangers into proximity, as cited by the
    Supreme Court in
Childs,

were present.

[31]

With respect to Mr. Richard,
    the motion judge never made an explicit finding regarding foreseeability but observed
    at para. 54, Jake obviously knew that Mark intended to drive the company van
    to his home approximately 5 minutes away. She then stated, the question
    becomes one of proximity. Specifically, the motion judge said at para. 56
    that the issue to be determined is, was Jake a social host, whom invited Mark
    into an inherently risky environment which he controlled or created. Her
    analysis of that issue began with a quote from para. 42 of
Childs
:

The first category concerns defendants who have created or
    invited others to participate in highly risky activities. Holding a house party
    where alcohol is served is not such an activity. Risks may ensue, to be sure,
    from what guests choose to do or not do at the party. But hosting a party is a
    far cry from inviting participation in a high-risk sport or taking people out
    on a boating party. A party where alcohol is served is a common occurrence, not
    one associated with unusual risks demanding special precautions. The second
    category of paternalistic relationships of supervision or control is equally
    inapplicable. Party hosts do not enjoy a paternalistic relationship with their
    guests, nor are their guests in a position of reduced autonomy that invites
    control. Finally, private social hosts are not acting in a public capacity and,
    hence, do not incur duties of a public nature.

[32]

Then at para. 58 she stated, accordingly,
    I must conclude that Jake neither created nor controlled an inherently and
    obviously risky environment. Proximity has not been established.

(d)

Duty of Care of Jake Richard

[33]

As mentioned above, it is unclear from
    the motion judges reasons whether she turned her mind to the issue of
    foreseeability as it applied to Mr. Richard. In my view, there is enough
    conflicting evidence to suggest there is a genuine issue requiring a trial
    regarding whether it was reasonably foreseeable that Mr. Williams would drive
    home and then drive his children and their babysitter, while under the
    influence of alcohol.

[34]

The next issue is the question of
    proximity as it applies to Mr. Richard. I am not satisfied that the motion
    judges analogy between the facts at hand and the facts of
Childs
is apt. The motion judge did not advert to or
    consider the obvious factual differences between the cases. This was not a
    large social gathering, rather it was two men drinking heavily in a garage.
    There was a developed pattern of this behaviour, enough so that the men had a pact
    as to what to do in the event one of them drove children while under the influence.
    Alcohol was provided or served, to a certain extent, as the garage refrigerator
    the men were accessing had 30 to 40 cans of beer in it. These facts distinguish
    the case at bar from
Childs
.
    Moreover, nowhere in her analysis did the motion judge consider the statement
    in
Childs
,
at para. 44
,
that it
might
    be argued that a host who continues to serve alcohol to a visibly inebriated
    person knowing that he or she will be driving home has become implicated in the
    creation or enhancement of a risk sufficient to give rise to a
prima
    facie

duty of care to third parties.

[35]

In my view, the facts of the case at bar raise
    a genuine issue requiring a trial regarding whether Mr. Richard, as a social
    host, may have invited Mr. Williams into an inherently risky environment that
    he controlled and created, thereby creating a positive duty of care.

(e)

Duty of Care of Eileen Richard

[36]

On the issue of foreseeability as it
    relates to Ms. Richard, the motion judge was incorrect when she concluded that
    there was no evidence Ms. Richard knew that Mr. Williams would be driving while
    intoxicated. As described above, there was in fact conflicting evidence on the
    point. That evidence raises a genuine issue requiring a trial.

[37]

With respect to the issue of proximity
    and Ms. Richard, t
he unique circumstances
    of this case, including her awareness of the general pact between Mr. Richard
    and Mr. Williams, Mr. Williams habitual heavy drinking on her property, and
    her knowledge of his alcohol consumption and intention to drive on that
    evening, could potentially implicate Ms. Richard in the creation or control of
    an obvious and inherent risk. There was conflicting evidence on these issues
    and I find that there is a genuine issue requiring a trial to determine the question
    of proximity as it relates to Ms. Richard.

(f)

Summary

[38]

In summary, the motion judges duty of
    care analysis was flawed and incomplete. There is conflicting evidence on many
    of the key issues. A trial is required to determine whether Mr. Richard and/or
    Ms. Richard owed a duty of care to Mr. Williams and/or his children

(2)

John v. Flynn
Analysis

[39]

After completing her duty of care analysis, the motion
    judge proffered an alternative reason for dismissing the claims. She stated
    that if she were incorrect on the issue of a duty of care, any such duty expired
    when Mr. Williams arrived safely at his home. In reaching that conclusion, she
    relied on a statement made by this court in
John
at para. 50
as follows:

There is no duty of care on the part of Eaton Yale to members
    of the driving public arising out of Flynn's participation in the EAP [a
    counselling program] and if there was such a duty, it did not extend beyond the
    point where Flynn left the company premises and drove safely to his home. Any
    suggestions as to how Eaton Yale could have controlled Flynn's activities
    beyond that point are hopelessly speculative.

[40]

The motion judge then stated at para. 64
    of her reasons, any suggestion that Eileen and Jake could have controlled
    Marks activities beyond the point he arrived at his home is similarly
    speculative. If Jake in fact, owed Mark a duty of care, that duty concluded
    once Mark arrived at his home.

[41]

The facts of
John
are very different than the facts in the case at bar.
    In that case, the individual defendant was an employee of the corporate defendant,
    working the overnight shift. The employee, who had previously sought assistance
    for his drinking problem through an employer supplied counseling program, drank
    steadily for eight hours before reporting for work, and consumed more alcohol
    during his breaks. The corporate defendant did not provide liquor to its
    employees, nor was it the host of a party or social occasion of any kind on the
    night in question.

[42]

The individual defendant concealed that
    he had been drinking. He completed his shift without incident, and his
    supervisor did not observe any signs of intoxication. He drank another beer in
    his truck and returned home. He then headed out again to visit a friend and was
    involved in an accident shortly thereafter. The individual defendant was
    intoxicated at the time of the accident.

At
    trial, the jury
apportioned liability 70
    per cent as against the individual defendant and 30 per cent as against the
    corporate defendant.

[43]

On appeal, this court held that the trial
    judge confused two unrelated duties: the duty of an employer to its employees
    to provide them with a safe work environment and the duty of a commercial host
    (and in specific circumstances, a social host) to its guests where the host has
    knowledge of the intoxication of the patrons or guests:
John
, at para. 19.

[44]

In
John
, the respondents argued that employers have a duty to
    provide employees with a safe work environment and that they should be held
    liable for harm caused by employees to themselves or to others they come in
    contact with, even when those employees are not working on company property.

That argument was rejected. The court held that
    the duty to provide a safe work environment for employees does not extend to
    members of the public who may come into contact with an employee outside the
    workplace:
John
, at paras. 48
    and 50. The court noted that the employer did not provide the employee with
    alcohol and was unaware that the employee was intoxicated. Further, the
    accident was not associated with the employer in any way besides the fact that it
    was caused by one of its employees:
John
, at para. 33.

[45]

It is clear from the reasons that the
    disposition of the appeal was based on a finding that no duty of care was
    extant in the circumstances of that case. The statement made, without analysis,
    that if such a duty existed it ended when the employee returned home was
obiter
    dicta
. In any event, I do not read the statement as standing for the
    proposition that in all circumstances a duty of care ends when a drunk driver
    returns safely home.

[46]

The motion judge seemed to accept that
    such a general rule was established in
John
. She seized upon the fact that Mr. Williams arrived
    home safely to find that any duty of care ended when Mr. Williams reached that point.
    That was an error in law. In a social host liability case, there is no
    automatic rule that the duty of care expires once the intoxicated driver
    arrives home safely. The
limits of the
    duty are determined by the facts of the case.
The motion judge was obliged to explain why the duty of care ended on Mr.
    Williams arrival home, especially since the evidence focussed not on whether
    Mr. Williams would drive home, but on whether he would drive the babysitter
    home.

[47]

In my view, the motion judge erred in
    concluding that any duty of care automatically expired when Mr. Williams
    arrived home. Assuming that such a duty existed, it is an issue for the jury to
    determine if and when the duty ended.

(3)

Other Issues

[48]

In the alternative, the respondents assert that if they owed a duty of
    care, this court should determine whether
it
is negated by other, broader policy
    considerations
and, if it is not, whether
    their actions met the standard of care. I would decline to consider these
    issues on appeal.

[49]

The issue of
whether
a
duty
    of care is negated by policy considerations
is best dealt with after the duty has been found to exist. That way any
    consideration of countervailing policy arguments can be undertaken with the benefit
    of an evidentiary record supporting the finding of a duty of care.

Similarly, an analysis of whether the duty of care has
    been met should be considered after the precise nature of the duty has been
    established.

E.

Disposition

[50]

I would: (i) allow the appeal and set aside the motion
    judges order; (ii) remit the cases to the Superior Court for trial; (iii) order
    the respondents to pay the appellants their costs of the appeal in the agreed
    upon, all-inclusive sum of $4,000; and (iv) remit the costs of the motion below
    to the trial judge.

Released: C.W.H. November 7, 2018

C.W. Hourigan J.A.

I agree. B.W. Miller J.A.

I agree. G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: York University v. Markicevic, 2018 ONCA 893

DATE: 20181108

DOCKET: C62351

Feldman, Pepall and Pardu JJ.A.

BETWEEN

York University

Plaintiff (Respondent)

and

Michael Markicevic
, Janet Fleming, Mima
    Veronica Markicevic, Aleeyah Apparel Inc., operating as A-Tech Construction and
    Design Inc., Alleyah Inc., AFC Inc. operating as Arsenal Facility Consulting
    Inc., Toronto Engineering Company, Gugas International, Canadian &
    American Concrete Renovation &
    Drain-Layer Ltd., Roman Ritacca, Luigi Lato, Phil Brown, Riaz Jadavji, Helen
    Saoulli Georgiou, Vasos Georgiou, George Saoulli, Georgia Saoulli, Guram
    Sekhniashvili, Gia Sekhniashvili, John Doe #1, John Doe #2, John Doe #3, Jane
    Doe #1, Jane Doe #2, Jane Doe #3

Defendants (
Appellant
)

Jamie Spotswood and Daniel
    Zacks, for the appellant

William C. McDowell, Brian
    Kolenda and Laurel Hogg, for the respondent

Heard: October 16, 2018

On appeal from the judgment of Justice Barbara A. Conway
    of the Superior Court of Justice, dated June 6, 2016, with reasons reported at 2016
    ONSC 3718, 33 C.C.E.L. (4th) 26.

Pardu J.A.:

A.

Background

[1]

The appellant, Michael Markicevic, misappropriated
    nearly a million dollars from York University (York). At the time, he was the
    Assistant Vice President of Campus Services and Building Operations.

[2]

Between 2007 and 2009, he devised a scheme to
    falsely invoice the university for work that was not actually done at the
    university. York paid $374,983.50 for these invoices and the appellant and his
    co-conspirators pocketed the cash.

[3]

In 2009 the appellant inflated a quote for drain
    repair. The excess was applied to personal home improvements for the appellant
    and cash was also distributed to the appellant and his co-conspirators. York
    lost $515,461 as a result of this scheme.

[4]

The appellant also had York employees perform
    work at his personal residences in 2008 and 2009. York paid these employees
    $23,000 for their time on these jobs.

[5]

Finally, the appellant charged York for $61,241
    worth of materials that he purchased for his own use.

[6]

On February 1, 2010, before York was aware of
    the extent of the appellants dishonesty, it terminated the appellants
    employment without cause and negotiated and finalized a severance agreement
    with him that contained mutual releases. During those negotiations, the
    appellant vehemently denied any wrongdoing. York agreed to pay him 36 months
    gross salary, amounting to $696,166. The appellants continued employment had
    become untenable because York had to conduct an investigation into the rumours
    circulating about his financial impropriety and because of the complaints concerning
    his bullying behavior.

[7]

As a result of the investigations undertaken
    after the appellants departure, York learned of the full extent of the
    appellants misconduct and sued to set aside the releases, recover the money
    stolen and for repayment of the severance package.

[8]

Following a 25-day trial, the trial judge found
    in favour of York and rescinded the severance agreement including the releases.
    She held that, as a fiduciary, the appellant had a positive obligation to
    disclose his fraudulent activity before he entered into the severance agreement.
    She also found that the releases and the severance agreement were obtained by
    fraudulent misrepresentation. The appellant had materially misrepresented his
    innocence to York and if York had known of the fraud, they would not have
    terminated him without cause, paid him, and given him a release. In addition,
    the trial judge made a factual finding that January 29, 2010 was the earliest
    date York could have discovered its potential claim and, accordingly, its claim
    was not barred by the provisions of the
Limitations Act, 2002
, S.O. 2002, c. 24, Schedule B.

B.

Arguments on appeal

[9]

The appellant argues that the trial judge erred
    in concluding that his misrepresentations of innocence induced York to enter
    into the severance agreement and to release the appellant from any claims York
    might have against him.

[10]

The appellant also argues that Yorks claim was
    barred by the
Limitations Act,

2002
.
    York issued the statement of claim on January 26, 2012. The appellant argues
    that York knew of the allegations of theft and fraud by the appellant as of
    January 19, 2010 and that, accordingly, the claim was issued after the expiry
    of the two-year limitations period.

C.

Trial judges findings

(1)

Fraudulent misrepresentation

[11]

The trial judge found at paras. 145-147 that the
    appellant had intentionally misled York when, just before the severance
    agreement was signed, he said he was innocent of any wrongdoing:

[W]hen one party has induced
    another party to enter into an agreement by making a material
    misrepresentation, the principal remedy is rescission. A misrepresentation, to
    be material, must relate to a matter that would be considered by a reasonable
    person to be relevant to the decision to enter the agreement in question. It is
    not necessary for a plaintiff to establish that the misrepresentation was the
    sole inducement for acting and it does not matter if the misrepresentation was
    only one of several factors contributing to the plaintiffs decision.

Mr. Markicevic made a material misrepresentation
    to both Mr. Brewer and Ms. Lewis when he denied any wrongdoing.  There is no
    question that if Mr. Brewer had known of any [of] Mr. Markicevics fraudulent
    activities, York would not have terminated him without cause, would not have
    paid him a large severance (or any severance at all), and would not have
    granted him the Release.

The Severance
    Agreement, including the Release, must therefore be set aside.

(2)

Limitations period

[12]

The trial judge addressed the limitations issue in
    her reasons at paras. 148-151:

Mr. Markicevic submits that Yorks action is
    barred pursuant to the
Limitations Act, 2002
,
    S.O. 2002, c. 24.  The action was commenced on January 26, 2012.  Mr.
    Markicevic argues that York cannot meet its burden of proving that it did not
    know, or could not have known with reasonable diligence, of the facts giving
    rise to the claim against Mr. Markicevic prior to January 26, 2010.

Mr. Markicevic relies on the notes of Noel
    Badiou, Yorks Director of Human Resources. Those notes reveal that by
    mid-December 2009, various York employees had approached Mr. Badiou to complain
    about Mr. Markicevics bullying management style.  Some of those complaints
    also included allegations of financial impropriety. However, none of the
    potential witnesses were willing to come forward and go on the record at that
    point. Mr. Badiou continued to speak to potential witnesses and gather
    information through the end of December and into the first three weeks of
    January.

It was not until January 29, 2010 that the
    Whistleblower went on the record, met with Ms. Lewis and brought some documents
    to support the allegations of financial impropriety.

In my view, that was
    the earliest date that York can be held to have discovered a potential claim
    against Mr. Markicevic, as defined in s. 5(1)(a) of the
Limitations
    Act
.  Accordingly, the claim is not statute barred.

D.

Analysis

(1)

Fraudulent
misrepresentation

[13]

By January 27, 2010 the appellant had heard of
    the circulation of rumours that he was having work done on his personal
    residences by York employees. He attributed these suggestions to animus on the
    part of the union for York tradespersons and in a letter copied to Brewer, his
    supervisor, described the allegations as unfounded, libelous, slanderous and
    completely in line with previous unfounded accusations emanating from the
    union. The appellant met with Brewer on January 27, 2010 and reacted with an attitude
    of absolute denial and almost outrage.

[14]

On January 28, 2010, the appellant wrote to
    Brewer, Yorks counsel and  Yorks President, responding vigorously to the rumours:

I will bring to your attention that it appears
    slander and libel seem to be common practice at York. General community
    sentiment is that the University is inclined to act upon such rumour and
    innuendo as it does not possess the courage to confront such issues in an open,
    objective and impartial manner.

While to date I do not share this view, I am
    left with being accused, my reputation and integrity questioned and my career
    jeopardized at all levels of both Yorks organizational structure and the
    community at large.

I would ask you to consider the organizational
    environment such unsubstantiated claims create and the negative impact they are
    having on myself on both a personal and occupational level.

As for the misallocation of University
    resources, I will remind you that one of my first management initiatives at
    York was to work with Procurement to vastly improve and tighten Procurement
    policy and procedures within CSBO.

The establishment of a separate and objective
    financial control process within CSBO has received numerous accolades from our
    Audit department.

My willingness to effectively steward and
    manage University resources in a consistent and prudent manner with the upmost
    of integrity, I suggest to you, is unquestionable.

While I
    understand, given the sense of entitlement that many members of the York community
    feel they may have relative to what they deem to be their rights, I am prepared
    to respectfully suggest to you that these rights do not include the systematic
    unsubstantiated assassination of both my character and livelihood.

[15]

The appellant does not argue that these were not
    fraudulent misrepresentations. Rather, he argues that York could not have
    reasonably relied on these to enter into the severance agreement.

[16]

The allegations came to light when several
    employees spoke to Badiou, Yorks Director of Human Rights
[1]
. This was a position akin to
    an ombudsman. There was an expectation that confidentiality would be preserved
    unless the individual speaking to him agreed to waive that confidentiality.

[17]

Badiou met with the President to discuss the allegations
    on December 17, 2009. He summarized them in his notes from that meeting:

Dec 17/09

Mtg w/ Pres re Internal/Informal investigation

-

Now
    met w/spoke to about dozen people

-

some union

-

some managers

-

some former employees

3) Allegation of Theft/Fraud

-

One
    person has indicated that Mike has had staff purchase security and other
    electronic equipment by the University to be installed at his house or other
    properties.

-

Another
    person has said that Mike has ordered pain [sic] and other supplies paid by the
    University that a staff member was sent to his home to paint entire house  the
    invoices were noted as work at Glendon.

-

Three
    people allege that in March 08 a bill was approved by Mike for rekeying of Ross
    Bldng  say this never done  one says was for work done in his home  another
    says company at the address is a Kitchen Cabinetry place. One person was not
    prepared to sign off as it was single source because emergency. All say not
    done and suspicious that either this is Mikes con company or it was for work
    done in his home.

-

Search
    reveals

1)

no registered company
    at that address.

2)

Physical address has a Kitchen Cabinet business and 411 reverse address
    lookup reveals owner as C Adam and V. Georgvou.

[18]

Badiou
    left the meeting with a plan to see if further information or details could be
    provided to better assess and determine  what might be going on. Badiou met again
    with Yorks President on January 17, 2010 and with both Yorks President and
    Brewer on January 19, 2010, but no additional details or additional
    substantiation were available by that time.

[19]

On
    January 29, 2010, Lewis, counsel for York, met with one of the individuals, the
    whistleblower who had made allegations against the appellant. The
    whistleblower was now prepared to come forward with a signed statement and also
    provided documents to support the allegations of financial misfeasance by the
    appellant. Lewis reviewed the allegations with the appellant and he angrily
    denied them.

[20]

On
    February 1, 2010, Brewer told the appellant he did not believe any of the
    allegations against him. He testified that as of February 1 he still firmly
    believed in the integrity of the appellant. He testified that he would not
    have approached the severance negotiations in the same way had he known of the
    dishonesty.

[21]

A
    contracting party who is induced to enter into a contract as a result of a
    fraudulent misrepresentation is entitled to rescission, and restoration of the
    benefits conferred on the other party to the contract: S.M.
Waddams,
The Law of Contracts
, 7th ed. (Toronto:
    Thomson Reuters, 2017), at para. 421.

The
    question of whether a contracting party did in fact rely on the
    misrepresentation, at least in part, to enter into the contract is a question
    of fact to be inferred from all the circumstances of the case and evidence at
    the trial:
G.H.L. Fridman,
The Law of Contract in
    Canada
, 6th ed. (Toronto: Carswell, 2011), at p. 291.

[22]

The
    trial judges finding that York was induced to enter into the severance
    agreement by the appellants fraudulent misrepresentation that he was innocent
    of any financial dishonesty is supported by the evidence and no palpable or
    overriding error has been shown. It is difficult to imagine circumstances in
    which an employer acting responsibly would pay three years severance pay to an
    employee it knew had misappropriated large sums of money from it.

(2)

Limitations period

[23]

Section
    5(1) of the
Limitations Act,

2002
provides:

A claim is discovered on the earlier
    of,

(a) the day on which the person with the
    claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by
    an act or omission,

(iii) that the act or omission was that of the person against whom the
    claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a
    proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which
    a reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

[24]

The
    appellant argues that the trial judge focused only on the date on which York
    knew that the loss had occurred, and that she did not consider that s. 5(1) required
    her to consider the earliest of two dates: the date York knew the loss had
    occurred, and the date on which a reasonable person with the abilities and in
    the circumstances of the person with the claim first ought to have known of
    the loss.

[25]

I
    do not agree. Consideration of both branches of this test is implicit in the
    trial judges articulation of the appellants argument at trial that York
    cannot meet its burden of proving that it did not know, or
could not have known with reasonable diligence
, of the
    facts giving rise to the claim (emphasis added).

[26]

The
    appellant further argues that York knew it had a claim against the appellant as
    early as December 17, 2009 when Badiou informed Yorks President of the
    allegations by several employees, and at the latest when Badiou went to the President
    on January 19, 2010 to report in general terms the allegations reported to him
    about financial misfeasance by the appellant. However at that stage, neither
    Badiou nor the President knew York had suffered a loss or that the appellant
    was the person responsible. It had only allegations by persons unwilling to
    come forward publicly, which were firmly denied by the appellant. These
    allegations, as noted by the trial judge, were limited to the use of door
    locks, hardwood flooring and paint in [the appellants] house, valued at $23,320.
    The other fraudulent schemes were separate frauds only uncovered much later.

[27]

The
    question of whether a claim was discovered and the limitations period triggered
    is a question of mixed fact and law entitled to deference absent palpable and
    overriding error:
Longo v. MacLaren Art Centre
, 2014 ONCA 526, 323 O.A.C.
    246, at para. 38. As indicated in
Longo
, at para. 44, certainty of a
    potential defendants responsibility for an act that caused the loss is not
    required. Rather, what is required are
prima facie
grounds to infer
    that the defendant did the act that caused the loss. I agree with the trial
    judge that York did not have those
prima facie
grounds before January 29,
    2010. The trial judges conclusion that the claim was not discovered before two
    years preceding the date the statement of claim was issued was reasonably
    available to her on the evidence and is not affected by palpable and overriding
    error.

(3)

Other arguments

[28]

Given that these two bases are sufficient to sustain the
    trial judges decision, it is not necessary to consider the appellants other
    argument that the trial judge erred in concluding that a fiduciary, like the
    appellant, was bound to look after Yorks interests while negotiating the
    severance agreement and secondly, his argument that the language of the release
    was broad enough to release the appellant from responsibility for the
    misappropriations. Here, even if the release was broad enough to bar any claim
    by York for recovery of the money misappropriated, the release was an integral
    part of the agreement induced by the misrepresentations as to his honesty.
    Once that agreement and release were rescinded, York was no longer barred from
    recovery. This result does not depend on whether or not the appellant was a
    fiduciary.

[29]

For
    these reasons I would dismiss the appeal.

E.

Costs

[30]

The
    trial judge awarded costs of the trial to York on a full indemnity basis. In
    light of the appellants dishonesty I would award costs of the appeal to York
    on the same basis. I would award costs of the appeal to York in the sum of
    $105,527.

Released: K.F. Nov 8 2018

G. Pardu J.A.

I agree.
K. Feldman J.A.

I agree. S.E. Pepall J.A.

[1]

The trial judge misdescribed the position as Director of Human
    Resources.


COURT OF APPEAL FOR ONTARIO

CITATION: 1583881 Ontario Limited v. Genesis Express and
    Logistics Inc., 2018 ONCA 994

DATE: 20181205

DOCKET: M49805 / M49826 / M49698

Lauwers J.A. (Motion Judge)

BETWEEN

1583881 Ontario Limited

Moving Party
    (Appellant by Appeal)

and

Genesis Express and
    Logistics Inc.

(Respondent
    by Appeal) Responding Party

Joel Laramie, for the moving party

Phillip S. Chandler, for the responding party

Heard: November 29, 2018

REASONS FOR DECISION

[1]

Joel Laramie is the sole shareholder of the appellant, 1583881 Ontario
    Limited, and moves for permission to represent the company. Mr. Chandler did
    not seriously contest this motion. I therefore grant leave to Mr. Laramie to
    represent 1583881 Ontario Limited in the appeal.

[2]

Because 1583881 Ontario Limited seeks to appeal from a decision of the
    Divisional Court, it must obtain leave from this court by a motion in writing.

[3]

Genesis Express moves for security for costs under r. 56.01(1)(d) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, on the basis that the
    appellant is a corporation or a nominal plaintiff or applicant, and there is
    good reason to believe that the plaintiff or applicant has insufficient assets
    in Ontario to pay the costs of the defendant or respondent. This rule feeds
    into r. 61.06, which permits an appellate court to order security for costs.

[4]

Genesis seeks security for costs in the amount of $1,500 in relation to
    the costs order for the small claims court action, $3,406.95 in relation to the
    appeal to the Divisional Court, and $2,000 towards preparation of responding
    materials on the motion for leave to appeal.

[5]

In my view, Genesis Express has established a reasonable basis for an
    order for security for costs and has made a modest request. I decline, however,
    to require 1583881 Ontario Limited to post security for costs for the argument
    of the appeal itself, since leave has not yet been granted.

[6]

Accordingly, 1583881 Ontario Limited will post security for costs with
    the court in the amount of $6,906.95 before the motion for leave to appeal is
    sent to a panel for disposition.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1652620 Ontario Inc. v. Cornerstone Builders Ltd.,
    2018 ONCA 973

DATE: 20181204

DOCKET: C65429

Feldman, van Rensburg and Nordheimer JJ.A.

BETWEEN

1652620 Ontario Inc.

Respondent (Plaintiff)

and

Cornerstone Builders Ltd.

Appellant (Defendant)

and

Cornerstone Builders Ltd.

Appellant (Plaintiff by Counterclaim)

and

1652620 Ontario Inc., Anthony Hanmer and Full
    Speed Builders Ltd.

Respondents (Plaintiff by Counterclaim)

Todd Storms and Charles Hammond, for the appellant,
    Cornerstone Builders Ltd.

R. Steven Baldwin, for the respondents, 1652620 Ontario Inc.,
    Anthony Hanmer and Full Speed Builders Ltd.

Heard and released
    orally: November 30, 2018

On appeal from the
    judgment of Justice Kershman, of the Superior Court of Justice, dated March 22,
    2018.

REASONS FOR DECISION

[1]

The defendant appeals from the partial summary judgment awarded by the motion
    judge that provided for payment of monies due under a promissory note in favour
    of the plaintiff and also struck out parts of the counterclaim.

[2]

Briefly stated, the respondent, 1652620 Ontario Inc. (165), was the
    personal corporation of Anthony Hanmer.  In 2006, 165 became a shareholder in
    the appellant and a shareholders agreement was signed.  That agreement
    provided that upon ceasing to be a shareholder, Mr. Hanmer would sign a
    non-competition agreement.  Mr. Hanmer had been employed by the appellant since
    1995.  In 2011, the appellant purchased the shares held by 165.  As part of the
    purchase, the appellant gave 165 a promissory note for $1,344,540.  The
    promissory note was to be paid in monthly installments of $10,000.  The
    promissory note did not bear interest and it was not a demand promissory note.

[3]

A falling out occurred between Mr. Hanmer and the owner of the
    appellant.  Mr. Hanmer left his employment and established his own business
    that is alleged to have competed with the appellant.  No non-competition
    agreement was signed.  Subsequently, the appellant ceased to make the monthly
    payments on the promissory note.  165 commenced this action seeking the payment
    of the remaining amount under the promissory note.  The appellant defended and
    counterclaimed.  The essence of the counterclaim is that Mr. Hanmer, through his
    new company, Full Speed, unfairly competed with the appellant in breach of an
    alleged non-competition agreement and in breach of Mr. Hanmers fiduciary duty.

[4]

165 brought a motion for summary judgment.  The motion judge granted the
    motion, finding there was no genuine issue for trial of the monies due under
    the promissory note.  However, since the promissory note was not a demand
    promissory note, and in the absence of any acceleration clause, the motion
    judge correctly concluded that he could only award judgment for the payments
    that were due but not paid, but not for the monthly payments that had yet to
    fall due.

[5]

The motion judge also struck out various allegations
    contained in the counterclaim that he concluded were untenable on the evidence
    before him.  Despite how the parties appear to have treated his decision in
    that regard, he did not grant summary judgment on these issues.  Rather, he
    struck out those portions of the appellants statement of defence and
    counterclaim, presumably either under r. 21.01 or r. 25.11 of the
Rules of
    Civil Procedure,
R.R.O. 1990, Reg. 194
.

[6]

The appellant takes issue with each
    of the decisions reached by the motion judge.  On the issue of the payments
    under the promissory note, the appellant says it claimed an equitable set-off
    for those amounts against the damages that it incurred as a result of the
    improper conduct of the defendants to the counterclaim.  The motion judge
    rejected the appellants position.  He found that equitable set-off was not
    available where a claim is made on a bill of exchange such as a promissory
    note.  In so concluding, the motion judge relied on the decision in
Iraco
    Ltd. et al. v. Staiman Steel Ltd.
(1986), 54 O.R. (2d) 488 (H.C.J.), affd
    (1987), 62 O.R. (2d) 129 (C.A.).

[7]

We do not see any error
    in the motion judges conclusion in this regard.

[8]

The appellant also
    complains that the motion judge did not stay execution on the judgment awarded
    pending prosecution of the counterclaim.  The motion judge did not give any
    reasons for his decision not to stay execution on the judgment, other than to
    make a general reference to the equities without more.  The failure to give
    reasons for his decision was an error in principle.

[9]

The conclusion regarding
    the defence of equitable set-off is not determinative of the issue whether a
    stay should be granted.  In this case, the two claims are interrelated.  They
    both arise out of the relationship between the parties, both as shareholder and
    employee.  It would seem in those circumstances that a stay ought to have been
    granted, as was done in
Jones Collombin Investment Counsel Inc.
    v. Fickel,
2016 ONSC 6536.

[10]

The appellant raises a
    further issue.  Because there was a question whether the appellant would make
    the future payments required by the promissory note, the motion judge acceded
    to the suggestion made by counsel for the respondents, that, after granting
    judgment for the amount owing to date, he adjourn the claim and the motion for
    summary judgment for a period of approximately six months to see if the future
    payments were being made.

[11]

We agree with the
    appellant that it was not open to the motion judge to proceed in this fashion.
    The summary judgment motion on the statement of claim to enforce the promissory
    note, as it was due at the time of the judgment, had been determined.  While he
    could manage the progress of the remaining parts of the proceeding, he did not
    have jurisdiction to keep alive a summary judgment motion that had been finally
    determined.

[12]

The appellant also
    challenges the order, that the motion judge made, striking out portions of the counterclaim.
    In our view, it was not open to the motion judge to strike out portions of the
    counterclaim on a motion for summary judgment in the absence of a motion to
    strike.  It is also not clear that some of the portions that the motion judge
    struck out cannot fairly be seen as particulars of the appellants breach of
    fiduciary duty claim that it would be entitled to explore on discovery.

[13]

At the hearing, the
    appellant only sought to have two of the allegations restored, that is, the
    derogatory comments and the telephone numbers.  Consequently, we allow the
    appeal to that extent.

[14]

The
appeal is allowed in part. The order
    below is set aside insofar as it has been amended by these reasons.  A stay of
    the judgment is also granted.  As agreed between the parties there will be no
    costs of the appeal.  As also agreed between the parties, the costs of the
    summary judgment motion that were awarded to the respondent are reduced to
    $5,000 inclusive of disbursements and HST.

K.
    Feldman J.A.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Braga v. Huang, 2018 ONCA 1000

DATE: 20181206

DOCKET: M49778

Lauwers J.A. (In Chambers)

BETWEEN

Ancieto M. Braga

Respondent

and

Shu He Huang by Her Litigation Guardian, the Public
    Guardian and Trustee

Applicant

Shu He Huang, in person

Michael Ditkofsky, for the respondent

Heard: November 28, 2018

REASONS FOR DECISION

[1]

Ms. Huang seeks an extension of time to file a motion for leave to
    appeal from the order of Swinton J., dated July 24, 2018.

[2]

By way of background, Ms. Huangs case is about a motor vehicle accident
    that occurred in 2004. It has been languishing for years. She believes that she
    was catastrophically injured and is entitled to concomitant compensation,
    without which she fears that she will not be able to live a decent life.

[3]

Archibald J. appointed the Public Guardian and Trustee (the PGT) to
    act as litigation guardian for Ms. Huang because he found her to be a person
    under a disability within the meaning of r. 1.03(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, and s. 6 of the
Substitute Decisions
    Act
, 1992
, S.O. 1992, c. 30. In his view, having observed her on
    several occasions, and having reviewed an expert report, she is unable to
    appreciate the reasonably foreseeable consequences of her actions and is
    therefore mentally incapable of representing herself in this case and requires
    legal representation appointed by the Court. Reasons are reported at 2016 ONSC
    6306, leave to appeal to Divisional Court refused, 2017 ONSC 3826, appeal
    quashed 2017 ONCA 268,

[4]

Ms. Huang sought leave to appeal Archibald J.s order. Kurke J. denied
    Ms. Huangs application for leave to appeal with reasons reported at 2017 ONSC
    3826.

[5]

Sitting in her capacity as a judge of the Divisional Court, Swinton J.
    dismissed Ms. Huangs application for judicial review of Kurke J.s order. She
    said:

The applicant seeks judicial
    review of the order of Kurke J. refusing leave to appeal an interlocutory
    order. No appeal lies from such an order. Judicial review is not available to
    challenge the refusal of leave by a Superior Court judge. The application is
    frivolous, vexatious and an abuse of process. Accordingly, it is dismissed
    pursuant to Rule 2.1.01.

[6]

The factors related to the extension of time are that the applicant must
    show that she had an intention to appeal within the relevant period, an explanation
    for the delay in failing to seek leave to appeal, any prejudice to the
    respondent, and the merits of the proposed appeal.

[7]

There is a real prejudice to the respondent in the undue delay in
    resolving this case. Further, the appeal has no merit. Although her reasons are
    sparse, Swinton J. was correct in her decision that judicial review does not
    lie against the decision of a Superior Court judge, and that the order of Kurke
    J. is not appealable: see
Denison Mines Ltd. v. Ontario Hydro
, (2001)
    56 O.R. (3d) 181 (C.A.), at para. 6. For the same reason, no appeal lies to
    this court.

[8]

Accordingly the motion for an extension of time to file a motion for
    leave to appeal is dismissed.

[9]

I understand Ms. Huangs deep concern about the merits of her case and
    what she sees as the failure of successive counsel over the years to agree with
    her self-assessment. She has the strong conviction that the order appointing
    the PGT as her litigation guardian against her wishes denies her human rights.
    However, the process has been fair, and the PGT was validly appointed. She must
    now work with counsel appointed by the PGT to resolve her case.

[10]

The
    responding party seeks costs in the amount of about $3,800 all-inclusive on a
    partial indemnity basis. I award costs in the amount of $1,000.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brahma Finance (BVI) Limited v. Datawind Inc., 2018
    ONCA 1003

DATE: 20181206

DOCKET: C65364

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Brahma Finance (BVI) Limited and Nicholas Eaton
    Crocker Barham

Applicants (Respondents)

and

Datawind Inc.

Respondent (Appellant)

Katrina Marciniak, for the appellant

Paul-Erik Veel and Madison Robins, for the respondents

Heard: December 3, 2018

On appeal from the order of Justice Heather McArthur of
    the Superior Court of Justice, dated April 5, 2018.

REASONS FOR DECISION

[1]

The appellant, Datawind Inc., appeals the order
    of the application judge registering the June 21, 2017 order (the Costs
    Order) of the United Kingdom High Court of Justice, Chancery Division (the
    Foreign Court) pursuant to the
Convention for the Reciprocal
    Recognition and Enforcement of Judgments in Civil and Commercial Matters
(the Convention) set out in the Schedule to the
Reciprocal
    Enforcement of Judgments (U.K.) Act
, R.S.O. 1990, c. R.6
    (the Act).

[2]

At the hearing of the appeal, we dismissed the
    appeal, with reasons to follow. These are those reasons.

[3]

In its factum, Datawind argues that for the purposes of
    the Convention the Foreign Court could not be regarded as having jurisdiction
    because Datawind was not a named plaintiff or defendant in the U.K. proceeding,
    it was merely a respondent to the third-party cost application brought against
    it by the respondents under rule 46.2 of the United Kingdom
Civil
    Procedure Rules
. However, at the hearing of the appeal
    Datawind clarified that its primary arguments were that the Costs Order could
    not be registered under the Convention as it is not for a definite amount and
    that Datawind had been denied natural justice in the third-party cost
    proceeding. Datawind is no longer questioning the jurisdiction of the Foreign
    Court.

[4]

That was an appropriate position for Datawind to
    take given the circumstances of this case: (i) the third-party cost proceeding is
    an available procedure under the U.K.
Civil Procedure Rules
; (ii)
    w
hen served with a notice of the respondents intention to
    seek costs against it, Datawind attorned to the jurisdiction of the Foreign
    Court, consenting to an order joining it to the proceedings for the purposes of
    costs; (iii) Datawind opposed the third-party cost application on the merits; (iv)
    a real and substantial connection existed between the Foreign Court and the
    action in which the third-party cost application arose because Datawind was the
    sole shareholder of the claimant, Tablet Investments (Guernsey) Limited, which
    had commenced the action in the Foreign Court; and (v) Datawind is a person against
    whom the judgment is enforceable under the law of the territory of the Foreign
    Court. Accordingly, the Foreign Court clearly had jurisdiction over Datawind
    for the purposes of the Convention: Arts. I(f) and V(1)(f)
[1]
; Janet Walker,
Canadian
    Conflict of Laws,
loose-leaf (2017), 6th ed. (Toronto:
    LexisNexis, 2005), at p. 14-116.

[5]

However, Datawind submits the application judge
    committed two errors in registering the Costs Order.

[6]

First, Datawind contends that the application
    judge erred by registering the Costs Order when it was not an order for a
    definite and ascertainable sum of money. Para. 1 of the Costs Order requires
    Datawind to pay the respondents costs incurred in this action to be the subject
    of detailed assessment on the standard basis if not agreed; Para. 3 requires
    Datawind to make an interim payment on account of the [respondents] said
    costs in the sum of £87,000 by 4 pm on 5 July 2017; and para. 4 orders Datawind
    to pay the respondents costs of the third-party cost application summarily
    assessed at £21,756 by 4 pm on 5 July 2017. Datawind submits that only the
    costs ordered by para. 4 constitute a final order for a definite sum that is
    registrable under the Convention.

[7]

We do not agree. Art. II(3) of the Convention
    states that its enforcement provisions apply only to a judgment whereby a sum
    of money is made payable. The interim payment on account of costs contained in
    para. 3 of the Costs Order constitutes such a judgment. Its payment was due by
    a specified date and payment of the amount was not made conditional upon the
    future conduct of an assessment. Moreover, in the third-party costs proceeding,
    the presiding officer noted that [i]t is accepted, on behalf of [Datawind], that
    it is appropriate to make a payment on account of costs: [2017] EWHC 3479
    (Ch), at para. 48. Finally, although para. 1 of the Costs Order contemplates a
    future assessment process to fix the amount of third party costs payable in
    addition to the interim payment on account, the respondents concede in para. 84
    of their factum that they have not commenced such an assessment procedure and
    are by now well out of time to do so.

[8]

Second, Datawind contends that the Costs Order
    should not be registered as it was obtained through a process that involved a
    denial of natural justice. Datawind argues that the absence of the ability to
    cross-examine the respondents on their third party cost materials in the
    Foreign Court denied it natural justice.

[9]

In advancing this argument, Datawind draws on
    the defence of lack of natural justice to a common law action to enforce a foreign
    judgment. In such actions, the enforcing court must be satisfied that minimum
    standards of fairness have been applied by the foreign court:
Beals
    v. Saldanha
, 2003 SCC 72, [2003] 3 S.C.R. 416, at para.
    60.

[10]

In
Society of Lloyds v. Saunders
(2001), 55 O.R. (3d) 688 (C.A.), this court was not prepared to
    decide whether a denial of natural justice not specifically referred to in
    Arts. IV(1) and (2) of the Convention is included within the ambit of Art.
    IV(1)(e), which provides that registration of a judgment shall be refused or
    set aside if the enforcement of the judgment would be contrary to public
    policy in the territory of the registering court: at para. 20. Instead, this
    court assumed, for the purpose of its analysis, that a denial of natural
    justice can be considered to be contrary to public policy and therefore within
    the public policy ground for refusal to register under Art. IV(1)(e) of the Convention.
    No denial of natural justice was found.

[11]

Adopting the same approach, we see no denial of
    natural justice to Datawind in the U.K. third-party cost proceedings. During
    its participation in those proceedings, Datawind raised no objection to the absence
    of cross-examination in the process.  Moreover, the procedure on the U.K.
    third-party cost application afforded Datawind a full opportunity to respond to
    the respondents materials and to make submissions  written and oral  on the
    application. The process under the U.K.
Civil Procedures Rules
more than met minimum standards of fairness, and we see no basis
    for an argument that enforcement of the Costs Order would be contrary to the
    public policy of Ontario.

[12]

For those reasons, we see no error by the application
    judge in registering the Costs Order pursuant to the Convention. The appeal is
    dismissed.

[13]

Based on the agreement of the parties, Datawind
    shall pay the respondents their costs of this appeal fixed in the amount of
    $9,300, inclusive of disbursements and applicable taxes.

R.G. Juriansz J.A.
David Brown J.A.
L.B. Roberts J.A.

[1]

Article I(f) states: In this Convention  judgment debtor
    means the person against whom the judgment was given and includes any person
    against whom the judgment is enforceable under the law of the territory of
    origin. Article V(1)(f) states: For the purposes of Article IV(1)(c) the
    original court shall be regarded as having jurisdiction if  (f) the
    jurisdiction of the original court is otherwise recognized by the registering
    court.


COURT OF APPEAL FOR ONTARIO

CITATION: Brunning v. Canada (Attorney General), 2018 ONCA
    1009

DATE: 20181210

DOCKET: M49477 (C64991)

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Fay Brunning

Requestor/Responding Party (Appellant)

and

Larry Philip Fontaine, et al.

Plaintiffs

and

The Attorney General of Canada, et al.

Defendants/Moving Party (Respondent)

Proceedings under the
Class
    Proceedings Act, 1992
, S.O. 1992, C.6

Catherine A. Coughlan and Brent Thompson, for the moving
    party, The Attorney General of Canada

Lawrence Greenspon, for the responding party, Fay
    Brunning

Heard: November 30, 2018

On appeal from the order of Justice Paul M. Perell of Superior
    Court of Justice, dated January 15, 2018, with reasons reported at 2018 ONSC
    357.

Doherty J.A.:

[1]

The respondent, the Attorney General of Canada, brought a motion to
    quash an appeal brought by Ms. Fay Brunning. At the end of oral argument, the
    court allowed the motion and quashed the appeal with reasons to follow. These
    are those reasons.

[2]

Ms. Brunning, a lawyer, represents persons involved in proceedings
    conducted under the auspices of the Indian Residential Schools Settlement
    Agreement, (the IRSSA).

[3]

On January 4, 2018, the Eastern Administrative Judge for the IRSSA
    released reasons addressing various issues raised in a Request for Directions
    brought by Ms. Brunning on behalf of her clients. The decision went largely,
    but not entirely, against Ms. Brunnings clients:
Fontaine v. Canada
    (Attorney General)
, 2018 ONSC 103.

[4]

Ms. Brunning sent several emails to court counsel on Thursday, January
    11 and Friday, January 12, 2018. In one of those emails she indicated that her
    client would not participate in the further scheduled proceedings before the Independent
    Assessment Process Adjudicator (the IAP Adjudicator) unless appropriate
    disclosure was made before the scheduled hearing date. Ms. Brunning was scheduled
    to make closing submissions on behalf of her client before the IAP Adjudicator
    a week later on January 19.

[5]

In her emails, Ms. Brunning also complained about the conduct of the
    Attorney General and failures in the adjudicative process, and she challenged the
    correctness of the Eastern Administrative Judges reasons that had been released
    on January 4. The emails revealed Ms. Brunnings frustration with the process and
    her disagreement with the January 4 decision.

[6]

On January 15, 2018, the Eastern Administrative Judge released a Direction
    (the January 15 Direction) in which he addressed the contents of the various
    emails sent by Ms. Brunning:
Fontaine v. Canada (Attorney General)
,
    2018 ONSC 357. The Eastern Administrative Judge issued the January 15 Direction
    on his own initiative and without requesting or receiving any input from
    counsel for any of the affected parties.

[7]

In the January 15 Direction, the Eastern Administrative Judge made it
    clear that Ms. Brunning and her client could not unilaterally decide that they
    would not appear as scheduled before the IAP Adjudicator. He said at paras. 3-5:

In her correspondence, Ms. Brunning also threatened to not
    attend at the resumption of [her clients] Independent Assessment Process
    (IAP) claim under the IRSSA. I regard that threat as disrespectful to IAP
    Adjudicators and to be a derogation of Ms. Brunnings duties to her client and
    as an officer of the court.

I direct Ms. Brunning to participate in the closing submissions
    of [her clients] hearing as directed by the IAP Adjudicator on Friday, January
    19, 2018.

[8]

Ms. Brunning and her client appeared before the IAP Adjudicator as
    scheduled and the matter proceeded to completion.

[9]

In the January 15 Direction, the Eastern Administrative Judge went
    beyond ordering Ms. Brunning to appear as required before the IAP Adjudicator. He
    commented at some length, and in a negative manner, about Ms. Brunnings conduct
    and statements she had made, both in her submissions in the proceeding that led
    to the January 4 decision and more particularly in her correspondence with court
    counsel on January 11 and 12.

[10]

Ms.
    Brunning, not her client, launched an appeal from the January 15 Direction. It
    is that appeal which the respondent Attorney General of Canada moved to quash.

[11]

In
    the Notice of Appeal, Ms. Brunning alleged that the Eastern Administrative
    Judge had exceeded his jurisdiction by failing to refer any complaint regarding
    the appellants conduct to the Independent Special Advisor. Ms. Brunning also
    alleged that the Eastern Administrative Judge had lost jurisdiction by failing
    to provide any procedural fairness and/or failing to apply or follow the rules
    of natural justice at any time prior to condemning the appellant in [the
    January 15 Direction].

[12]

On
    the motion to quash the appeal, the Attorney General of Canada does not
    challenge Ms. Brunnings standing to bring the appeal. Counsel does, however, argue
    that there is no order to appeal from, and that, if there is an order, it is
    interlocutory in nature and moot. Appeals from interlocutory orders made by
    Superior Court judges go to the Divisional Court. Leave to appeal is required:
Courts
    of Justice Act
, R.S.O. 1990 c. C.43, s. 19(1)(b).

[13]

The
    Attorney General of Canada submits that the Eastern Administrative Judges
    direction is an exercise of his case management powers and does not constitute
    an order as contemplated by s. 6(1)(b) of the
Courts of Justice Act
.

[14]

There
    is no formal order. However, the January 15 Direction contains an order requiring
    Ms. Brunning and her client to appear before the IAP Adjudicator.

[15]

I
    agree with counsel for Ms. Brunning that the January 15 Direction is an order.
    As counsel pointed out, the Eastern Administrative Judge identified his
    authority for issuing the January 15 Direction as coming in part from the order
    of Winkler R.S.J. dated December 15, 2006 to make such orders as are necessary
    to implement and enforce the provisions of the Agreement and this judgment:
    see
Fontaine
, 2018 ONSC 357, at paras. 6-8.

[16]

I
    accept that the January 15 Direction reflects an exercise of the Eastern
    Administrative Judges case management powers. However, that characterization
    does not make the January 15 Direction any less an order of the court. The
    terms of the January 15 Direction compelled Ms. Brunning and her client to
    attend before the IAP Adjudicator to complete the process. Ms. Brunning and her
    client were bound to comply with that order, subject, of course, to any
    superseding order of another court. The court could also enforce the command
    that Ms. Brunning and her client appear before the IAP Adjudicator using the
    means available for the enforcement of court orders. In my view, the January 15
    Direction clearly contained an order of the court directing Ms. Brunning and
    her client to appear as required before the IAP Adjudicator. That order is
    subject to appeal.

[17]

I
    do, however, accept the second argument advanced by the Attorney General of Canada.
    The January 15 Direction contained a single order. That order obliged Ms.
    Brunning and her client to appear before the IAP Adjudicator as scheduled on
    the following Friday.

[18]

The
    order was procedural and interlocutory. It did not determine any legal right in
    any proceeding involving Ms. Brunning or her client. Nor did it determine any
    substantive issue in any ongoing proceeding. I would note that, in any event, the
    clients legal rights are irrelevant. The client has not appealed.

[19]

The
    order made in the January 15 Direction is analogous to an order refusing an
    adjournment. When a court refuses an adjournment, it effectively orders the
    parties to appear as scheduled. I am not aware of any case that holds that the refusal
    of an adjournment, standing on its own, constitutes a final order for the
    purposes of the appeal. The order contained in the January 15 Direction,
    requiring the appellant and her client to attend before the IAP Adjudicator, is
    an interlocutory order.

[20]

It
    is clear from a review of the material filed on the appeal, that it is not the
    order made by the Eastern Administrative Judge that is the true target of this
    appeal. As pointed out above, the appellant and her client attended before the IAP
    Adjudicator and the matter has been decided. Any appeal from the January 15
    order is moot.

[21]

The
    appellants real concern arises out of the Eastern Administrative Judges
    comments about her conduct. She is understandably concerned that those
    comments, which are now part of the public record, could have a very negative
    impact on her professional reputation. The appellant takes the position that
    the comments are unwarranted, and that the Eastern Administrative Judge failed
    to comply with virtually every component of due process when he issued the
    January 15 Direction. She seeks a forum in which to challenge the process and
    the Eastern Administrative Judges comments.

[22]

As
    understandable as the appellants concerns may be, those concerns do not give
    rise to a right of appeal in this court. The Eastern Administrative Judges
    comments about counsel are not part of the order he made. The order consists of
    the direction that the appellant and her client appear as required before the IAP
    Adjudicator on January 19. The essence of the order is found at para. 35 of the
    January 15 Direction:

I, therefore, direct
    Ms. Brunning to appear and participate in the closing submissions as directed
    by the IAP Adjudicator on Friday, January 19, 2018. I direct her to advise
    Court Counsel whether she will comply or will refuse to comply with this
    direction by no later than Wednesday, January 17, 2018, 4:00 p.m.

[23]

An
    appeal lies only from the terms of an order and not from the reasons for
    judgment giving rise to the order:
Grand River Enterprises v. Burnham
(2005), 10 C.P.C. (6th) 136, at paras. 9-10 (Ont. C.A.).

[24]

The
    Eastern Administrative Judges comments about counsel are certainly part of the
    reasons. They are not, however, part of the order.

[25]

Fortunately
    from the appellants perspective, she will have an opportunity to challenge in
    this court the merits of the comments made by the Eastern Administrative Judge in
    his January 15 Direction. When the Eastern Administrative Judge released that direction,
    he had pending before him a motion for costs against the appellant personally
    in the proceedings that had led to the January 4 decision. The appellant
    brought a motion claiming that the Eastern Administrative Judge should recuse
    himself from the costs motion on the ground that his comments in the January 15
    Direction gave rise to a reasonable apprehension of bias against the appellant.
    The Eastern Administrative Judge dismissed that motion:
Fontaine v. Canada
    (Attorney General)
, 2018 ONSC 4182. The appellant has appealed to this
    court from that dismissal.

[26]

The
    Eastern Administrative Judge subsequently ordered costs payable by the
    appellant, personally, to the Attorney General of Canada in the amount of
    $25,000: see
Fontaine v. Canada (Attorney General)
, 2018 ONSC 4195.
    The appellant has filed an application for leave to appeal to this court from
    the costs order.

[27]

As
    counsel for the appellant acknowledged in oral argument, the comments made by
    the Eastern Administrative Judge about the appellants conduct in his January
    15 Direction will be front and centre on the appeal from the recusal motion.
    They will also figure in the costs appeal, if leave is granted. The appellant
    will have her opportunity to challenge in this court the fairness of the
    process leading to the January 15 Direction and the merits of the comments made
    by the Eastern Administrative Judge about the appellants conduct.

[28]

For
    the reasons set above, the order made in the January 15 Direction is
    interlocutory and not final. Assuming the appellant has standing to appeal that
    order, her appeal lies, with leave, to the Divisional Court and not to this
    court. The appeal is quashed:
Courts of Justice Act
, R.S.O.1990 c.
    C.43, s. 6(1)(b), s. 19(1)(b).

[29]

Counsel
    for the Attorney General of Canada did not seek costs, and the court made no
    order as to costs.

Released: DD DEC 10 2018

Doherty J.A.

I agree. B.W. Miller
    J.A.

I agree. Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bukshtynov v. McMaster University, 2018 ONCA 1006

DATE: 20181207

DOCKET: M49680 / M49816 (C65552)

Huscroft J.A. (Motions Judge)

BETWEEN

Vladislav Bukshtynov,
    Katerina Bukshtynova and Ksenia Bukshtynova, a minor under the age of 18 years,
    by her Litigation Guardian, the said Vladislav Bukshtynov

Responding Parties (Appellants)

and

McMaster University, Flying Angels Running Club,
    George Kerr, Hwang Lee and/or John Doe Runner

Moving Parties (Respondents)

Bonnie Roberts Jones, for the appellants (responding
    parties)

Alexander B. Paul and Kaleigh Sonshine, for the
    respondent (moving party), McMaster University

Bradley M. Remigis, for the respondents (moving
    parties), Flying Angels Running Club, George Kerr and Hwang Lee

Heard: December 6, 2018

REASONS FOR DECISION

[1]

The respondents bring motions for an order requiring the appellant
    Vladislav Bukshtynov to post security for costs incurred and expected to be
    incurred on the appeal.

[2]

The motion is granted for the reasons that follow.

Background

[3]

The appellant Vladislav Bukshtynov was injured while running on an
    indoor track at McMaster University. The appellant fell after coming into
    contact with a member of the Flying Angels Running Club and required emergency
    surgery to repair his shoulder. He sued the respondents, alleging negligence
    and breach of statutory duty.

[4]

Following a three-week trial, the jury returned a verdict that McMaster
    University and Hwang Lee were not liable. The Flying Angels Running Club and
    George Kerr were found 60% liable, while the appellant was found 40%
    contributorily negligent.

[5]

The appellant was awarded damages of $101,885. The appellant was
    required to pay McMaster Universitys costs of $95,000, and $69,156 for the
    costs of the Running Club. The Running Club was required to pay costs of
    $43,108 to the appellant.

Security for trial costs

[6]

McMaster University sought security for costs prior to the trial. The
    motion was settled on the basis that the appellant would purchase After the
    Event insurance covering $100,000 in costs.

[7]

Prior to trial, the insurance provider suspended the appellants
    insurance coverage when he refused to accept a settlement offer pursuant to r. 49
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. McMaster then
    brought a second motion for security for costs, and this was settled on the
    basis that the appellant agreed to post $86,161.37 as security.

The positions of the parties

[8]

McMaster University takes the position that the appeal is frivolous and
    vexatious within the meaning of r. 61.06(1)(a). In the alternative, it says
    that security for costs should be awarded under r. 61.06(1)(b), on the basis
    that the appellant is ordinarily resident outside of Ontario, in Florida; the
    appeal has no merit; and the appellant is not impecunious. The Running Club,
    George Kerr and Hwang Lee support McMaster Universitys position and emphasize
    that the appellant cannot demonstrate that his appeal has a good chance of
    success.

[9]

The appellant argues that his appeal cannot be said to be frivolous, in
    the sense that it is readily recognizable as devoid of merit with little
    prospect of success, or vexatious, in that it is brought for some other
    improper purpose. The appellant argues, further, that although he is ordinarily
    resident outside of Ontario, it would not be just to impose security for costs
    because his appeal has a good chance of success and it would be financially
    difficult or impossible for him to post security for costs. The appellant does
    not assert impecuniosity.

Discussion

[10]

I
    see no basis to grant security for costs under r. 61.06(1)(a). It cannot be
    said that the appeal is frivolous and vexatious. The fact that the jury
    returned a zero liability verdict in favour of McMaster and Hwang Lee does not
    demonstrate that the appeal is frivolous and vexatious. Nor do I regard the
    appellants conduct during the litigation  in particular, his unwillingness to
    accept what the trial judge considered to be reasonable settlement offers and
    his refusal to engage in any midtrial pretrial  as support for the conclusion
    that the appeal is frivolous and vexatious. Nothing in the material before me
    rises to the high standard required to establish that an appeal is frivolous
    and vexatious.

[11]

Turning
    to r. 61.06(1)(b), this court discussed the overarching approach to be taken in
Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827, 138 O.R. (3d) 1,
at paras. 24-25:

Courts in Ontario have attempted
    to articulate the factors to be considered in determining the justness of
    security for costs orders. They have identified such factors as the merits of
    the claim, delay in bringing the motion, the impact of actionable conduct by
    the defendants on the available assets of the plaintiffs, access to justice
    concerns, and the public importance of the litigation. See:
Hallum v.
    Canadian Memorial Chiropractic College
(1989), 70 O.R. (2d) 119 (H.C.);
Morton
    v. Canada (Attorney General)
(2005), 75 O.R. (3d) 63 (S.C.);
Cigar500.com
    Inc. v. Ashton Distributors Inc.
(2009), 99 O.R. (3d) 55 (S.C.);
Wang
    v. Li
, 2011 ONSC 4477 (S.C.); and
Brown v. Hudsons Bay Co.
, 2014
    ONSC 1065, 318 O.A.C. 12 (Div. Ct.).

While this case law is of some assistance,
    each case must be considered on its own facts. It is neither helpful nor just
    to compose a static list of factors to be used in all cases in determining the
    justness of a security for costs order. There is no utility in imposing rigid
    criteria on top of the criteria already provided for in the Rules. The correct
    approach is for the court to consider the justness of the order holistically,
    examining all the circumstances of the case and guided by the overriding
    interests of justice to determine whether it is just that the order be made.

[12]

In
    my view, having regard to the relevant circumstances, an order for security for
    costs is in the interests of justice in this case.

[13]

I
    begin with the fact that the appellant is not a resident of Ontario. He resides
    in Florida. That is not determinative, but it is significant.

[14]

Secondly,
    his appeal does not appear to be strong. It concerns evidentiary decisions made
    by the trial judge about the admission of hearsay evidence and the exclusion of
    correspondence from McMaster University to the Ministry of Labour, to which it
    was required to report Mr. Bukshtynovs accident. Those decisions are entitled
    to deference and are difficult to disturb on appeal.

[15]

The
    appellant also argues that the trial judge erred in instructing the jury, in
    particular concerning the
Occupiers Liability Act
, R.S.O. 1990, c. O.2,
and loss of future
    income. Although these arguments allege legal errors that are subject to review
    for correctness, they do not appear to me to be strong.

[16]

Thirdly,
    the appellant does not claim to be impecunious. On the scant evidence before
    me, I am not satisfied that costs of the appeal is a matter of financial
    hardship for the appellant. The appellant says that it will be financially
    difficult or impossible for him to raise the money required to post security
    for costs, yet he lists an annual joint income of just under USD$140,000, from
    which he manages to fund his daughters education at a cost of $57,000 annually.
    The appellant attests that he had to open four credit lines in order to fund
    the order for security for trial costs, but he has not provided anything close
    to a complete financial picture.

[17]

In
    my view, it is significant that the appellant agreed to post security for costs
    for the trial. His circumstances have not changed so as to require a different
    result for the appeal. Indeed, security sought for the appeal is much less than
    the amount the appellant posted for the trial.

[18]

I
    do not accept that it is appropriate to deny McMaster University security for
    costs simply because it is a large enterprise. The circumstances of this case
    have nothing in common with
Chevron
.

[19]

In
    all of the circumstances of this case, it is in the interests of justice to
    order security for costs. That said, in my view the amounts sought by the
    respondents  $25,000 each  are excessive. I would reduce the amounts to
    $15,000 on the McMaster University motion and $10,000 on the Running Club
    motion.

Disposition

[20]

The
    appellant is ordered to post security for costs of $15,000 on the McMaster
    University motion and $10,000 on the Running Club motion.

[21]

McMaster
    University is entitled to its costs on this motion in the agreed amount of
    $5,000 and the Running Club is entitled to costs in the agreed amount of
    $2,500, both amounts inclusive of taxes and disbursements.

Grant
    Huscroft J.A.