COURT OF APPEAL FOR ONTARIO

CITATION: Markowski v. Verhey, 2020 ONCA 472

DATE: 20200722

DOCKET: C67709

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

Beth Ann Markowski

Applicant (Appellant)

and

Dwayne David Verhey and Kathleen
    Anne Verhey

Respondents (Respondents)

Cara Valiquette, for the appellant Beth
    Ann Markowski

Amber Small and David Delagran, for the
    respondents Dwayne David Verhey and Kathleen Anne Verhey

Heard: in writing

On appeal from the order of Justice Thomas
    Wood of the Superior Court of Justice, dated November 6, 2019.

Thorburn J.A.
:

1.

OVERVIEW

[1]

The appellant, Beth Markowski, owns a cottage
    near Lake Waseosa. Her property is not directly on the waterfront but she has a
    right-of-way over a beach that leads to Lake Waseosa for all the usual
    purposes.

[2]

The respondents, Dwayne and Kathleen Verhey, own
    two adjoining lots, including the beach over which the appellant has a right-of-way.

[3]

The key issue on this appeal is whether the
    usual purposes entitles the appellant to bring boats across the right-of-way
    using a motor vehicle.

[4]

The appellant claims it does.

[5]

The respondents accept that the right-of-way
    allows the appellant to access Lake Waseosa for various activities such as
    swimming and boating but deny that she is allowed to bring boats to and from
    the shore using a motor vehicle. They take the position that the right to bring
    boats across is limited to small boats that can be portaged across the right-of-way.

[6]

In the originating proceedings, the appellant
    brought an application seeking a declaration about the extent of her rights pursuant
    to the right-of-way. The appellant claims she has a right to cross the beach as
    well as to use the beach for recreational purposes. She claims this includes
    the right to launch and retrieve watercraft using mechanical power as may be
    necessary. She challenges the portion of the application judges decision
    holding otherwise.

[7]

For the reasons that follow, the appeal is
    dismissed.

2.

THE PROPERTIES IN QUESTION

[8]

In 2016, the appellant bought a cottage lot
    described as Pt Lt 10 Con 12 Chaffey Part 2, RD999. Her lot is not on the waterfront.

[9]

In 1997, the respondents, Dwayne and Kathleen
    Verhey, bought two lots described as Pt Lt 10 Con 12 Chaffey, Parts 3 and 6,
    RD999. One of those lots, Part 6, is on the waterfront.

[10]

None of the parties to the appeal are parties to
    the original instruments that created the lots or the right-of-way in dispute.

[11]

Before 1969, Parts 2 through 6 formed part of a
    larger parcel of land that was acquired by Frederick Rhoads and used by members
    of the Rhoads family. The family built four cottages on the parcel and used the
    beach as a common recreational area.

[12]

In 1969, the parcel was formally subdivided into
    four cottage lots, an access road, and a beach lot over which the cottage lots
    had a right-of-way. Parts 2 and 3 are two of the cottage lots. Part 6 is the
    beach lot. The lots were conveyed to the Rhoads children in 1970; all but Dale
    Rhoads have since sold their lots.

[13]

All of the cottage lots, apart from Part 3, have
    a right-of-way over Part 6. The right-of-way was created in 1970 when the lots
    were conveyed to the Rhoads children. The deed to the appellants property contains
    a right-of-way for all the usual purposes, in, over, along and upon the waterfront
    property at Part 6.

[14]

The appellants lot (Part 2) and the
    respondents lots (Parts 3 and 6) are shown on the reference plan attached to
    these reasons as Appendix A.

3.

THE APPLICATION JUDGES DECISION

[15]

The application judge reviewed the meaning of
    the words the usual purposes in the right-of-way and the history of how the Rhoads
    family used what is now Part 6.

[16]

He noted that the historical uses of a right-of-way
    are informative, though not determinative, of the meaning to be attributed to the
    phrase the usual purposes. The application judge held that the phrase for
    all the usual purposes should be interpreted to refer to the purposes of the
    right of way not  the purposes to which Part 6 was being put at the time of
    the grant. Otherwise, the grant would confer an ownership interest in Part 6
    when what was conveyed was a right-of-way. He concluded that the uses must be
    those appurtenant to the easement, not the land itself. That is to say, the
    right to gain access to Lake Waseosa over Part 6.

[17]

The application judge then attempted to
    distinguish between the historic uses that would have required permission from the
    owner of the beach and those that were part of the right-of-way and therefore would
    not.

[18]

He found that launching and retrieving large
    boats was an activity that would have only been done with the express or
    implied permission of the owner of the beach and as family members, not as part
    of the right-of-way:

I  find that the daily use the owners of
    Parts 2, 4, and 5 made of their right to cross the beach included swimming, and
    its related activities such as building sand castles, and sunbathing and
    perhaps the use of canoes or kayaks. This was done without the express
    permission of Frederick when he was alive or Paul [Rhoads, who received title
    to Parts 3 and 6 after Fredericks death]. However other activities such as
    launching and retrieving large boats  would have been extended family
    activities or extraordinary ones that would have been done with the permission
    of the owner of the beach lot. It was in this context that the grants of
    easement over Part 6 were made.

[19]

He therefore held that the right-of-way included
    the following uses as part of the usual purposes:

A. Regular access to Lake Waseosa for the
    purpose of swimming or related aquatic activities,

B. Use of that part of the beach directly
    adjacent to the swimming area during such activities,

(i) for childrens recreational activity.

(ii) temporary storage of towels, clothing,
    beach chairs etc. while the users of such items are present on the beach, and

C. Launch and retrieval of small craft capable
    of being carried or dragged across the beach without resort to mechanical
    power, but not the storage of such craft.

4.

THE APPELLANTS GROUNDS OF APPEAL

[20]

The appellants notice of appeal claims the
    application judge made palpable and overriding errors in Part C of his order by
    restricting the appellants right to bring boats across the right-of-way on
    Part 6 in the following ways:

a)

He limited ingress and egress to launch and retrieval of small
    craft capable of being carried or dragged across the beach without resort to
    mechanical power;

b)

He found that historical uses such as launching and retrieving large
    boats would have been extended family activities or extraordinary ones that
    would have been done with the permission of the owner of the beach lot;

c)

He limited ingress and egress to what amounts to pedestrian travel
     with no evidence to suggest a limitation to pedestrian travel or to
    pedestrian travel with small crafts that can be dragged or carried; and

d)

He limited ingress and egress to pedestrian travel notwithstanding
    uncontradicted evidence that the right-of-way included the launching of boats
    as of right.

[21]

The appellant claims the order unduly limits her
    use of the right-of-way to pedestrian traffic thereby rendering the basic right
    of ingress and egress almost useless.

[22]

In her factum, the appellant claims the
    application judge also erred in Parts A and B of his order by limiting the
    right to use of land based on inadequate language, such as childrens recreation
    rather than general recreation. This issue was not raised in the notice of appeal.
    The only relief sought in the notice of appeal is that the restriction in Part
    C be set aside in whole or in part.

[23]

Rules 61.08(2) and (3)
    of the
Rules of Civil Procedure
,
R.R.O.
    1990, Reg. 194,
read as follows:

(2) No grounds other than those
    stated in the notice of appeal or cross-appeal or supplementary notice may be
    relied on at the hearing, except with leave of the court hearing the appeal.

(3) No relief other than that sought
    in the notice of appeal or cross-appeal or supplementary notice may be sought
    at the hearing, except with the leave of the court hearing the appeal.

See also
Eton Construction Co. v. R.
(1996), 28 O.R. (3d) 321 (C.A.).

[24]

The notice of appeal addresses only Part C and
    the issue concerning the transportation of boats by motor vehicle across the
    right-of-way. Even after the issue was raised by the respondents, no leave was
    sought to raise the issues in Part A or B of the order. In any event, there was
    ample evidence to support the application judges findings in respect of the
    use of the right-of-way being restricted to swimming and related aquatic
    activities and bringing items onto the beach to engage in those activities.

[25]

As a result, the appellant is restricted to seeking
    the relief in her notice of appeal in respect of Part C of the application
    judges order.

5.

ANALYSIS OF THE ISSUE

[26]

A right-of-way created by express grant is an easement that allows
    the grantee and their successors in title to cross the grantors land for a purpose
    related to the better enjoyment of the grantees land: Anne La Forest,
Anger & Honsberger Law of Real Property
, loose-leaf,
    3rd ed. (Carswell, 2006), at §17:20.30(a).

[27]

The nature and extent
    of a right-of-way depends on the proper construction of the language of the
    instrument creating it:
Canadian Pacific Ltd. v.
    Paul
, [1988] 2 S.C.R.
    654, at p. 671.

(1)

The Words in a Grant

[28]

The first step in determining the rights that form part of a right-of-way
    is to interpret the grant according to the intention of the parties based on the
    words themselves:
Fallowfield v. Bourgault

(2003), 68 O.R.
    (3d) 417 (C.A.),

at para. 10
;

Smith
    v. Morris
, [1935] 2 D.L.R. 780 (Ont. C.A.), at p. 782.

[29]

The grant of an express
    easement may also include ancillary rights provided they are reasonably
    necessary to use or enjoy the right-of-way. However, to imply a right ancillary
    to a right-of-way, the right must be necessary for the use or enjoyment of the
    easement, not just convenient or even reasonable:
Fallowfield
, at para. 11.

[30]

In
Boone v. Brindley
(
2003), 179 O.A.C. 50 (C.A.), at para. 2,
this court held that to determine what is reasonably necessary to
    the enjoyment of a right-of-way, one should also look at:

the language of the conveyance creating the
    easement, the purpose and circumstances surrounding the creation of the right
    of way, the history of its development and the circumstances of its use
.

[31]

The grant of a right-of-way in this case reads
    as follows:

TOGETHER WITH A RIGHT OF WAY, in common with
    all others entitled thereto,
for all the usual purposes
, in, over, along
    and upon ALL THOSE PARTS of Broken Lot 10 in Concession 12 of the said Township
    of Chaffey, designated Parts 1 and 6 on a plan of survey on deposit in the
    Registry Office for the Registry Division of the District of Muskoka as RD-999.
    [Emphasis added.]

(2)

Determining the Purpose of the Grant of the
    Right-of-Way by Examining the Historic
Use and
    Circumstances

[32]

Where the words in the
    grant of the right-of-way are unclear, the historic use and circumstances
    surrounding the use of the property subject to the easement are particularly
    important to understand the nature and extent of the rights conveyed:
Square-Boy Limited v. The City of Toronto
, 2017 ONSC 7178, at para. 33;
Laurie v. Winch
,
    [1953] 1 S.C.R. 49, at p. 56.

[33]

As in this case, the court in
Square-Boy Limited
was asked to
    interpret the meaning of the words
right-of-way in,
    over, along and upon the lands herein described  for all purposes.
Sanfilippo
    J. did a thoughtful and comprehensive analysis of the interpretation of the
    meaning and purpose of such a right-of-way.

[34]

In
Square-Boy
, the right-of-way covered a former parking lot Square-Boy sold to
    the City of Toronto that had previously been used to access Square-Boys
    premises.

[35]

Sanfilippo J., like the application judge in
    this case,
referred to the purposes of the right-of-way,
    not the purposes to which the property was being put at the time of the grant.
Sanfilippo J. held that:

The parties disagree about the meaning of the
    term
for all purposes
. The parties submit that the phrase
for
    all purposes
 can mean one of two things: (i) for
all the purposes
for which the City Property was used at the time the easement was granted in
    1971, as is submitted by Square-Boy; or (ii) for
all the purposes
related to a right-of-way which, in the Citys submission, does not include a
    right to park but rather includes only a right to pass over to gain access or
    egress, otherwise known as a right to pass and repass.

I do not accept Square-Boys submission on
    this point, as to do so would entitle Square-Boy to all the vestiges of
    ownership that it enjoyed over the Front Parking Lot before it became the City
    Property. This cannot be the case.
Even a robust right-of-way does not
    provide rights that are tantamount to ownership.

Rather, I accept the Citys submission to the
    extent that
for all purposes
 was intended to describe the Right-of-Way which always remains a
    right-of-way
. I find, however, that
the term
for all purposes
 means that the
    Right-of-Way is to be interpreted in a manner that includes all of the purposes
    for which it was agreed upon, created and granted to encompass which, in the
    context of this case, includes the right to permit parking to access commercial
    premises of the Property
. [Emphasis added.]

[36]

In this case, the
    appellant also brought an application seeking a ruling in respect of the
    meaning of the words for all the usual purposes in the right-of-way.

[37]

T
he parties agree that the application judge properly construed the phrase
    all the usual purposes in the right-of-way to permit access to Lake Waseosa
    for various activities such as swimming and boating.

[38]

The application judge accepted that Ernest
    Norton made an informal arrangement with his friend Frederick Rhoads under
    which Frederick Rhoads acquired the property without taking title. Frederick Rhoads
    and his children built four cottages on the parcel. These cottages are located
    on what are now Parts 2, 3, 4, and 5 in Appendix A.

[39]

After Ernest Norton died, his son William
    subdivided the lots and transferred the lots to Frederick Rhoads children in
    accordance with Frederick Rhoads wishes. The deeds to Parts 2, 4, and 5 all
    came with a right-of-way over Part 6.

[40]

In support of her
    application, the appellant included two affidavits from Dale Rhoads, the son of
    Frederick Rhoads and owner of Part 4, that described the historical uses of the
    beach on Part 6.

[41]

In his first affidavit,
    Dale Rhoads described the use of the beach by his family members as follows:

The beach was the gathering spot for all to
    recreate together. We swam, built sand castles, sunbathed, launched our boats,
had
bonfires, etc. The extended Rhoads
    family have many memories of the wonderful times we spent together at our
    family compound.

[42]

He went on to say that
    the beach was created for, and used by the entire family.

[43]

While Dale Rhoads referred
    to launching their family boats, he offered no description of the boats
    launched, or how they were launched.

He did not say whether family members
    required Frederick's permission to do so. Moreover, the appellant provided no
    evidence of the use of motor vehicles to cross the right-of-way to launch large
    boats at the time of the grant.

[44]

The respondents note that over time, the various
    lots surrounding Part 6, except for Part 4, were sold to third parties
    unrelated to the Rhoads family. The respondents purchased Parts 3 and 6 on
    March 5, 1997 from Frederick Rhoads youngest child, and the appellant
    purchased Part 2 on January 20, 2016 from a third party, with a right-of-way over
    Part 6.

[45]

The respondents produced a letter written
    on May 24, 1997, just after they purchased Parts 3 and 6. The letter was sent
    to the prior owner of the appellants lot advising that there was a chain
    across the right-of-way on Part 6 that was locked. In the letter, Dwayne Verhey
    said:

Dale Rhoads  advises that [the chain] is
    there to prevent the public from launching [and] retrieving boats from the
    beach. He explained that this has been a problem in the past, causing damage [and]
    erosion due to spinning tires in the sand by inadequate tow vehicles.

[46]

This letter is evidence that the
    restriction on vehicular access existed before the respondents purchased Parts
    3 and 6. Their only predecessor on title owned the property since 1970 when the
    right-of-way was granted until the respondents purchased the lots.

[47]

It appears that their predecessor
    on title exercised control over the beach to restrict vehicles from crossing by
    placing a chain and lock over the passage. This suggests that this restriction
    is not inconsistent with the right-of-way granted to him.

[48]

Neither the appellant nor her
    affiant Dale Rhoads disputed the existence of the lock and chain or the stated reasons
    for putting them across the road.

[49]

The statement in the letter that
    the former owners of Part 2 could be provided a key or cut the chain is
    evidence of permission in 1997, not a grant pursuant to the right-of-way.

[50]

I note that there is no
    such restriction discussed in respect of pedestrian traffic.

[51]

Accordingly, there was uncontradicted evidence
    upon which the application judge was entitled to rely, that there were
    restrictions on the right to bring motor vehicles across the right-of-way by
    the owner of the right-of-way at the time of the grant in 1970 but no such
    restriction preventing pedestrian traffic.

[52]

Thus, while some family members might have been
    involved in launching and retrieving large boats, the uncontradicted evidence
    in the letter suggests this would have been done with the permission of the
    owner of the beach lot not as a right flowing from the grant of the right-of-way.

(3)

Conclusion

[53]

The standard of review to
    be applied to the application judges findings of fact and mixed fact and law is
    one of
palpable and overriding
    error. Findings of fact and inferences from those facts should not be disturbed
    unless they are clearly wrong, unreasonable, or unsupported by the evidence:

Housen v. Nikolaisen
, 2002 SCC 33,

[2002] 2 S.C.R. 235,
    at paras. 23, 26, and 36.

[54]

An easement
    for all the usual purposes is not an ownership right. It is a right to use
    the property in the way agreed to by the grantor.
Any included ancillary rights must be reasonably
    necessary to use the right-of-way:
Fallowfield
,
at para. 11
.

(a)

Whether the Application Judges Reasons Preclude
    Meaningful Appellate Review

[55]

I do not
    accept the appellants submission that the application judges reasons preclude
    meaningful appellate review. The application judge correctly articulated the
    law in respect of rights-of-way. He then applied the law to the facts and
    considered the language of the conveyance creating the right-of-way and history
    of use, to determine the purpose of the grant of the right-of-way and intention
    of the grantor.

[56]

The application judge
    accepted that Frederick Rhoads intended to grant a right-of-way to provide
    regular access to Lake Waseosa to allow the owners of Part 2 to swim and engage
    in related aquatic activities. He also held that the right-of-way includes the
    right to transport small boats by foot over the property. However, he held that
    the right-of-way does not include allowing the owners of Part 2 to drive motor
    vehicles across Part 6 to tow their boats to and from the water.

(b)

Whether the Application Judge Made Palpable or
    Overriding Errors

[57]

Nor did the application
    judge make any palpable or overriding errors in his decision.

[58]

The appellant had the
    onus of proof but adduced no evidence to support her assertion that the
    easement includes a right to bring motorized vehicles across the right-of-way to
    transport boats.

[59]

Dale Rhoads affidavits
    in support of the appellants application does not state that the grantor
    intended to allow motor vehicles to cross the right-of-way to tow boats to
    water. The appellant acknowledges that [t]here is nothing specific about boat
    size or type in any evidence but states that the reasonable inference was that
    all types of boating should be permitted under the right-of-way. Contrary to
    the appellants assertion, the fact that the application judge may have been
    able to draw different inferences from the evidence does not show a palpable
    and overriding error in his decision.

[60]

Moreover, there was uncontradicted
    evidence before the application judge that a chain with a lock was put over the
    right-of-way by the owner who had owned the property from the time of the grant.
    No evidence was offered to respond to and/or refute that evidence or the
    assertion that this was done to restrict access over the right-of-way by
    motorized vehicles as there was a concern that they were causing damage to the beach.

[61]

The letter in which the
    former owners of the appellants property were told they could obtain a key to
    unlock the chain or take it down, is evidence of permission given to a party in
    1997, not a right intended to be bestowed by the grantor or a right flowing
    from the grant of the right-of-way.

[62]

While the application judge did not explicitly
    refer to the respondents 1997 letter, there was uncontradicted evidence in the
    letter to support his conclusion that there were restrictions on motor vehicles
    driving over the right-of-way on the beach at the time the first grantee owned
    the property.

[63]

Finally, I do not
    accept that the application judge erred by caus[ing] the right of way to be
    limited to pedestrian traffic only without any argument to that effect being
    raised by the parties. The application judge was not asked to, nor did he, rule
    broadly on the means by which the appellant may travel across the right-of-way.
    He properly restricted himself to the issue raised in the notice of application
     whether the right-of-way included the use of Part 6 as a beach for
    recreational purposes. He accepted that one of these recreational purposes was
    launching boats but restricted the right to launch large boats that needed to
    be towed using a motor vehicle.

[64]

Deference is owed to
    the decision of the application judge and there is evidence to support his
    conclusion that the easement was granted to enable the owners of Part 2 ingress
    and egress, to engage in swimming and other related activities, to transport
    boats by foot to and from the water, but not to bring motorized vehicles over
    the land to transport boats to and from the lake.

6.

DISPOSITION

[65]

For these
    reasons, the appeal is dismissed.

[66]

On the agreement of the respondents, the order
    is amended to correct a typographical error in the reference from the easement
    over
Part 2
Plan RD-999 to the easement over Part 6 Plan RD-999.

[67]

As the successful party
    on appeal, the respondents may serve and file brief costs submissions of no
    more than 5 pages within 10 days of this judgment being released. The appellant
    may serve and file her submissions within 10 days of receipt of the respondents
    submissions.

Released: July 22, 2020 (P.L)

J.A.
    Thorburn J.A.

I
    agree. P. Lauwers J.A.

I
    agree. Grant Huscroft J.A.

APPENDIX
    A


COURT OF APPEAL FOR ONTARIO

CITATION: Martin v. Mailhot, 2020 ONCA 480

DATE: 20200724

DOCKET: C67228

Tulloch,
Huscroft and Harvison Young JJ.A.

BETWEEN

Caroline
Martin and Joey Moskwa

Applicants (Respondents)

and

Danielle
Mailhot

Respondent (Appellant)

Benoit Richer, for the appellant

Patrick R. Simon, for the respondents

Heard: in writing

On appeal from judgment of Justice
Robert Pelletier of the Superior Court of Justice, dated June 20, 2019.

Tulloch
J.A.:

I.

BACKGROUND

[1]

On August 2, 2017, the respondents (tenants)
entered into a commercial lease agreement with the appellant (landlord) for the
purpose of operating a barber shop and tattoo parlour. The lease stipulated
that the monthly rent was comprised of a minimum rent of $2,600 and an
additional rent based on the respondents share of taxes, insurance, and
operating costs. The lease also contained a clause requiring the respondents to
maintain comprehensive general liability insurance and direct-damage insurance,
and to provide copies of all policies or certificates of insurance and
renewals to the appellant.

[2]

On September 4, 2017, the appellant sent an email
to the respondents, outlining the rent to be paid for September. The amount due
was $3,275, plus an unconfirmed amount for water (later determined to be $68.43),
for a total of $3,343.43. The appellant also noted in the email that she
intended to reimburse the respondents $50 for parking for September.

[3]

On September 19, 2017, legal counsel for the
appellant served notice on the respondents that they were in breach of the
lease for, among other things, failing to pay the required rent for the month
of September, and failing to provide the landlord copies of all policies or
certificates of insurance required by s. 4(n) of the Lease. The notice advised
that the lease would be terminated in the event that the various breaches were
not remedied. The notice did not include a demand for monetary compensation.

[4]

On September 27, 2017, the respondents paid
$3,300 to the appellant.

[5]

On October 3, 2017, the appellant served the
respondents with a notice of termination as a result of their failure to
provide copies of all policies and certificates of insurance. The appellant
subsequently re-entered the premises.

[6]

On October 23, 2017, the respondents brought an
application for a declaration that the appellant had breached the lease through
wrongful termination and illegal re-entry.

[7]

The application judge granted the application,
finding that the notice of breach was deficient as it was not in compliance
with s. 19(2) of the
Commercial Tenancies Act
, R.S.O. 1990, c. L.7,
which requires that a notice of re-entry include a demand for monetary
compensation. He found that the failure of the appellant to stipulate a precise
monetary remedy to any alleged breach [was] fatal to the notice. He also found
that [r]ent was paid. The appellants re-entry had thus been unlawful.

II.

Issues on appeal

[8]

The appellant raises two issues on appeal:

(1)

Whether the application judge erred by requiring
the appellant to provide a demand for monetary compensation in her notice to
the respondents; and

(2)

Whether the application judge erred by failing
to find that the respondents had not paid rent and, consequently, that the
appellant was justified in terminating the lease.

III.

ANALYSIS

(1)

Did the application judge err by requiring the appellant to provide
a demand for monetary compensation?

[9]

Section 19(2) of the
Commercial Tenancies Act
provides that:

A right of re-entry or forfeiture under any
proviso or stipulation in a lease for a breach of any covenant or condition in
the lease, other than a proviso in respect of the payment of rent, is not
enforceable by action, entry, or otherwise, unless the lessor serves on the
lessee a notice specifying the particular breach complained of, and, if the
breach is capable of remedy, requiring the lessee to remedy the breach,
and,
in any case, requiring the lessee to make compensation in money for the breach
,
and the lessee fails within a reasonable time thereafter to remedy the breach,
if it is capable of remedy, and to make reasonable compensation in money to the
satisfaction of the lessor for the breach. [Emphasis added.]

[10]

The purpose of the notice requirement in s.
19(2) is to warn the tenant that its leasehold interest is at risk and to give
the tenant an opportunity to preserve that interest by remedying the breaches
complained of and, where necessary, by compensating the landlord:
780046
Ontario Inc. v. Columbus Medical Arts Building Inc.
(1994), 20 O.R. (3d)
457 (C.A.), at p. 464. Courts have insisted on strict compliance with this
requirement:
Columbus
, at p. 464;
Jay-Pee Drycleaners Inc. v. 2321324
Ontario Inc.
, 2017 ONCA 798, at para. 19.

[11]

The issue in this appeal is the precise nature
of the requirement for compensation in money as outlined in s. 19(2).

[12]

This issue was addressed by this court in
Chick
N Treats Inc. v. Woodside Square Ltd.
(1990), 38 O.A.C. 138 (C.A.). In
that case, the tenant breached the lease by failing to maintain accurate
monthly statements of gross revenue and make them available to the landlord. On
appeal, the tenant argued that the landlords notice of breach was invalid as
it had not included a demand for monetary compensation. The court rejected this
argument at paras. 6 to 8 of its reasons:

In our opinion, the additional requirement
that the lessee make compensation for the breach
cannot be mandatory
,
because the resulting obligation on the lessee to make reasonable compensation
to the satisfaction of the lessor would be nonsense in situations, such as this
in the case on appeal, where the breach is not quantifiable.
We believe that
it is a requirement of the notice if the landlord requires compensation in
addition to remedying the breach, but it is one that can be waived.

It appears to us that in a situation where
the breach is capable of remedy and the landlord has suffered damage which is
compensable [in] money, then the landlord must assert both remedies in his notice
if he intends to insist on satisfaction with respect to both, failing which, he
will exercise his right of re-entry or forfeiture
.
[Emphasis added.]

[13]

A demand for monetary compensation is never
required for valid notice under s. 19(2). Rather, the requirement may be waived
at the discretion of the landlord. A demand for monetary compensation is only necessary
where, as a result of the breach, the landlord has suffered damages compensable
in money and intends to insist on recovery, failing which, they will exercise
their right of re-entry or forfeiture. In other words, where a landlord has
suffered damages compensable in money and they fail to include a demand for
monetary compensation in their notice of breach, they will be barred from
relying on a tenants failure to compensate them for those damages as a
justification for re-entry or forfeiture. In this way, a tenant will only be
required to provide monetary compensation to preserve their leasehold interest
where it is deemed necessary by the landlord in the notice of breach.

[14]

In this case, the appellant argues that,
pursuant to the decision in
Chick N Treats
, and contrary to the
findings of the application judge, the September 19, 2017 notice was valid, as
she was entitled to waive the requirement in s. 19(2) for a demand for monetary
compensation.

[15]

I agree. The September 19, 2017 notice warned
the respondents that their leasehold interest was at risk. It specified the
breaches complained of and requested that they be remedied. It was within the
purview of the appellant to decide to waive the requirement for a demand for
monetary compensation. Her decision to refrain from including such a demand did
not invalidate the notice. It merely foreclosed the option of insisting on
recovery for any damages that flowed from the breach as a necessary condition
for the preservation of the respondents leasehold interest. The notice was
valid and the application judge erred in finding otherwise.

(2)

Did the application judge err by failing to find that the
respondents had not paid rent and, if so, was the appellant justified in
terminating the lease?

[16]

As I would allow the appeal on the first ground,
there is no need to address this issue.

IV.

disposition

[17]

In all the circumstances, I would allow the
appeal and order that the notice was compliant with s. 19(2) of the
Commercial
Tenancies Act
.

[18]

With respect to the issue of costs, if the
parties are unable to agree, the parties are to submit brief written
submissions, not to exceed three pages in length, within 15 days of the release
of these reasons.

Released: M.T. July 24, 2020

M.
Tulloch J.A.

I
agree. Grant Huscroft J.A.

I
agree. A. Harvison Young J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION:
Metropolitan
    Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees
    of Metropolitan Toronto Condominium Corporation No. 590, 2020 ONCA 471

DATE:

20200721

DOCKET: C67385

Juriansz, Fairburn and
    Nordheimer JJ.A.

BETWEEN

Metropolitan
    Toronto Condominium Corporation No. 590

Applicant (Appellant)

and

The
    Registered Owners and Mortgagees of Metropolitan Toronto Condominium
    Corporation No. 590

Respondents (Respondents)

Eli S. Lederman and Kelly Hayden, for
    the appellant

Mark H. Arnold, for the respondents

Heard: July 2, 2020 by video
    conference

On appeal from the judgment of Justice Andrew
    A. Sanfilippo of the Superior Court of Justice dated July 25, 2019, with
    reasons reported at 2019 ONSC 4484, 8 R.P.R. (6th) 299.

Nordheimer J.A.:

A.

Overview

[1]

Metropolitan Toronto Condominium Corporation No.
    590 appeals, in part, from the judgment of the application judge dated July 25,
    2019. In that judgment, the application judge granted the appellants application
    to amend its declaration (the "Declaration"), to specify that the
    dedicated chimney flues, which exclusively service 22 residential units in the
    condominium, are exclusive use common elements. He dismissed the balance of the
    appellants application. The appeal is from the application judges refusal to
    grant an order amending ss. 22 and 23 of the Declaration under s. 109(3) of the
Condominium Act
, 1998
, S.O. 1998, c. 19 (the
Condominium Act
).
For the following reasons, I
    would allow the appeal, set aside paragraph two of the order below, and substitute
    an order granting an amendment to the Declaration.

B.

Background

[2]

This appeal arises out of a long-standing
    dispute among the unit owners in this condominium as to who should bear the
    costs of replacing the chimney flues that have passed the end of their useful
    life. There is no dispute that the chimney flues are currently unusable.

[3]

The appellant is the corporate entity
    responsible for operating the common elements of a high-rise condominium
    building located at 30 Wellington Street East in the City of Toronto, which was
    created on November 26, 1982 upon the Declarations registration. The building,
    which was constructed in the early 1980s, has 20 floors with 120 residential
    units.

[4]

Of the 120 residential units in the building, 23
    contain wood-burning fireplaces. The fireplaces were built at the time the building
    was constructed. Each of the units that have fireplaces are located on the top
    four floors of the building. Each fireplace is serviced by an individual flue
    and chimney which is dedicated to that fireplace. The chimney flues begin at
    the fireplace and extend through the building to the roof, where they are
    grouped in six clusters laterally supported by steel bracing and cabling.

[5]

In 2013, the appellants Board of Directors hired
    specialists to investigate the state of the fireplaces. The specialists
    determined that the chimney flues had deteriorated to the point that they were
    no longer serviceable, and needed to be replaced or removed from service. In
    order to mitigate the safety concerns, the Board advised the unit owners that
    the fireplaces should not be used, and arranged for the fireplace dampers to be
    sealed and tagged as unsafe for use.

[6]

Over the next few years, further investigations
    were undertaken to determine what could be done with respect to the chimney
    flues. It was estimated, in 2016, that it would cost approximately $1.5 million
    to remove and replace the chimney flues. It was also estimated that it would
    cost approximately $13,000 to cap and decommission all of the chimney flues.

[7]

The unit owners that have fireplaces want the
    appellant to bear the cost of removing and replacing the chimney flues. The
    appellant does not wish to incur that expense. It argues that the individual
    owners of units with fireplaces should bear the cost of removing and replacing
    the chimney flues or, alternatively, the costs of capping and decommissioning
    the chimney flues.

[8]

The appellant brought an application in which it
    sought, under s. 109(3) of the
Condominium Act
, to amend the
    Declaration in two main respects. First, it sought to amend the Declaration to
    add Schedule F that would specify that the chimney flue servicing each
    individual unit fireplace was an exclusive use common element. Second, it
    sought to amend ss. 22 and 23 of the Declaration to make it clear that the
    owners of units with fireplaces, and not the appellant, were responsible for
    the maintenance and repair of all exclusive use common elements.

[9]

In response, the respondents brought a separate
    application in which they sought, among other things, an order requiring the
    appellant to repair or replace, at its cost, the chimney flues. The hearing of
    the respondents application was ordered to await the determination of the
    appellants application. It remains outstanding.

C.

THE DECISION BELOW

[10]

The application judge granted the first remedy
    sought by the appellant but denied the second. The application judge determined
    that it was clear, from reading the Declaration as a whole, that there was an
    intention to distinguish between common elements enjoyed by all unit owners and
    those common elements that were enjoyed by only specific unit owners. He said,
    at para. 80:

I find that these nine references in the
    Declaration and By-Laws to exclusive use common elements show a recognition
    that certain of the common elements would be used permanently and exclusively
    by some unit owners but not all, and an intention that the Declaration would
    distinguish between the rights and duties attaching to all common elements as
    distinct from the rights and duties attaching to exclusive use common elements.
    I conclude, then, that the failure on the part of [
sic
] Declaration to
    specify any parts of the common elements that are used by the owners of one or
    more designated units and not by all the owners, as required by section
    3(1)(f) of the
1980 Condominium Act
, if there are such elements within
    the Building, would be an error or inconsistency in the Declaration.

[11]

The application judge refused to grant the
    relief respecting amendments to ss. 22 and 23 of the Declaration. On this
    issue, he found that there was no error or inconsistency in those sections that
    would give jurisdiction under the
Condominium Act
to amend the
    Declaration. Rather, the application judge concluded that these sections
    created a mutual obligation to maintain the exclusive use common elements as
    between the appellant and the unit owners. He rejected the appellants argument
    that a mutual obligation to maintain was inconsistent and contradictory. He
    said, in part, at para. 119:

When section 22(a) and section 23(a) are read
    together, they impose on the unit owner a duty to maintain the common elements
    of which the owner has exclusive use and a corresponding duty on the
    condominium corporation to maintain and repair after damage these common
    elements. There is no ambiguity. I acknowledge that this creates a mutual
    obligation to maintain, shared on the part of both the unit owner and the
    condominium corporation but do not see how this constitutes an "error or
    inconsistency". No case authority was provided that supports MTCC 590's
    submission that it is.

[12]

No appeal is taken from the first conclusion. It
    is the second conclusion that is in issue on this appeal.

D.

Analysis

(1)

Standard of review

[13]

The respondents contend that the application
    judges decision is a fact-based decision that should attract a high degree of
    deference. I disagree. The issue whether there is an error or inconsistency
    between the two sections of the Declaration, thus invoking the courts
    authority under s. 109(3) of the
Condominium Act
, is a question of
    law. Section 109(3) reads:

The court may make an order to amend the
    declaration or description if satisfied that the amendment is necessary or
    desirable to correct an error or inconsistency that appears in the declaration
    or description or that arises out of the carrying out of the intent and purpose
    of the declaration or description.

[14]

This is not a factually driven issue. To the
    contrary, the issue turns on the words used in these two sections of the
    Declaration, the proper interpretation of those words, and whether that proper
    interpretation demonstrates an error or inconsistency. These are questions of
    law. Questions of law attract a standard of review of correctness:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[15]

In reaching that conclusion, I am aware of the
    caution expressed in
Sattva Capital Corp. v. Creston Moly Corp.
, 2014
    SCC 53, [2014] 2 S.C.R. 633, at para. 54, against courts too readily finding
    extricable questions of law when engaged in contractual interpretation. Here, though,
    while a declaration under the
Condominium Act
could be characterized
    as a contract, is not the type of private contract negotiated between two
    parties, to which the comments in
Sattva
were directed. A declaration
    is a special form of contract, the structure of which is prescribed by statute.
    It must adhere to certain statutory requirements. Indeed, the
Condominium
    Act
provides, in s. 7(5), that, if there is any conflict between the
    statute and the declaration, the statute prevails.

(2)

There is an inconsistency in the Declaration

[16]

In my view, the application judge erred in his
    conclusion that there was no inconsistency between the two sections of the
    Declaration. Indeed, the application judges conclusion that the sections
    create a mutual obligation to maintain exclusive use common elements demonstrates
    that inconsistency. I begin by setting out the relevant parts of the two
    sections:

Section 22 - Maintenance and Repairs to Units

(a) Each owner shall maintain and repair his
    unit, including the maintenance and repair of the air conditioning and heating
    units from the shut off valve, and all ducts and services within the unit as
    well as maintaining any part of the common elements which he has exclusive use
    of, at his own expense.

Section 23 - Maintenance and Repairs to Common
    Elements

(a) The Corporation shall maintain and repair
    the common elements after damage. This duty to maintain and repair shall extend
    to all doors which provide access to the units, all windows (except maintenance
    to the interior surface thereof, the responsibility for which shall be left to
    the affected unit owner), and all exclusive use portions of the common elements.

[17]

Section 22 requires unit owners to maintain and
    repair their units including the air conditioning and heating units within
    their units, but only to maintain any part of the common elements which they
    have exclusive use of, at their own expense. Section 22 says nothing about
    repair with respect to those exclusive use common elements.

[18]

Section 23 requires the appellant to maintain
    and repair the common elements after damage. It then goes on to provide that
    this duty extends to all exclusive use portions of the common elements. This
    provision would, at first blush, appear to overlap with the requirements of s.
    22. However, the use of the words after damage suggest that the duty under s.
    23 is only triggered by the occurrence of an event that then leads to the need
    to repair. It does not appear to contemplate repairing common elements that
    have simply worn out or are otherwise inoperative simply through the passage of
    time. If that is so, and one looks only at the two sections, a gap then
    appears, because neither section addresses the duty to repair (as opposed to
    maintain) the exclusive use common elements in the normal course.

[19]

Two provisions of the
Condominium Act

reinforce my view of the two sections of the Declaration. Section 89(1)
    requires the corporation to repair the units and common elements after damage.
    Section 89(2) reads, in part:

The obligation to repair after damage includes
    the obligation to repair and replace after damage or failure

Section 90(1) says that the
    corporation shall maintain the common elements and each owner shall maintain
    the owners unit. It does not specifically address exclusive use common
    elements. Section 90(2) goes on to read:

The obligation to maintain includes the
    obligation to repair after normal wear and tear but does not include the
    obligation to repair after damage.

[20]

These sections create two separate repair obligations.
    Under s. 90(1), the corporation maintains common elements and the unit owner maintains
    their individual unit. In doing so, s. 90(2) defines the general duty to
    maintain, which includes the duty to repair after normal wear and tear.

[21]

Separate and apart from this general duty to
    maintain is the duty to repair after damage, which is necessary in situations where
    there is an unanticipated event that causes damage, for example, a severe storm.
    In that situation, s. 89 requires that the corporation repair the resulting
    damage, both to the common elements and to the units. A separate duty to repair
    after damage makes sense, since it will likely involve work that needs to be
    undertaken on an urgent basis. For the benefit of all unit owners, there should
    be no delay in undertaking the needed repair work.

[22]

One further aspect of the
Condominium Act
needs to be considered. The
Condominium

Act
allows for
    the Declaration to alter the obligations to maintain and to repair after damage
    and, in this regard, specific mention is made of exclusive use common elements.
    Section 91 states:

The declaration may alter the obligation to maintain
    or to repair after damage as set out in this Act by providing that,

(a)  subject to section 123, each owner shall
    repair the owners unit after damage;

(b)  the owners shall maintain the common
    elements or any part of them;

(c)  each owner shall maintain and repair
    after damage those parts of the common elements of which the owner has the
    exclusive use; and

(d)  the corporation shall maintain the units
    or any part of them.

[23]

The wording of s. 91 suggests that the
    legislature anticipated that a condominium might choose, in its declaration, to
    deal differently with the obligation to maintain and repair when it comes to common
    elements generally, or exclusive use common elements in particular, and, in the
    case of the latter, to impose that obligation on the unit owners who have that
    exclusive use.

[24]

In this case, there was no independent event
    that caused damage to the chimney flues. The chimney flues became inoperable as
    a result of the passage of time, in other words, through normal wear and tear
    as that term is used in s. 90.

[25]

On its face, s. 23 requires the appellant to
    maintain and repair the common elements after damage. Section 22 requires the
    unit owners to maintain the exclusive use common elements but it does not expressly
    require them to repair those elements, unless one reads the obligation to
    repair into the obligation to maintain. I accept that one could use s. 90(2) of
    the
Condominium

Act
to accomplish that reading-in. The
    resulting interpretation of s. 22 would be that the unit owners duty to
    maintain any part of the common elements which he has exclusive use of, at his
    own expense includes the duty to repair the chimney flues after normal wear
    and tear. However, such a reading-in does not result in the section, on its
    face, clearly delineating what the unit owners obligation is.

[26]

I return to the application judges conclusion that
    sections imposed a mutual obligation to maintain and repair the exclusive use
    common elements. That conclusion is not consistent with the language of the two
    sections, for the reasons that I have already pointed out. It is also an unsatisfactory
    result. Finding that there is a mutual obligation immediately raises the
    question as to which of the two parties has the positive duty to fulfill the
    obligation. Each side can point to the other as being the one that needs to
    take the first step. It also does not allow for either party to know what their
    respective financial responsibilities are, and to plan accordingly. There is
    also the practical reality that it may not be possible for the necessary work
    to be divided between the parties, or to permit different contractors to
    undertake different parts of it. The bottom line is that it is an unworkable
    result. It is also inconsistent with the clear demarcation made in the
Condominium

Act
,
as between condominium corporations and unit owners, when it
    comes to maintenance and repair responsibilities.

[27]

Whether confusion about maintenance and repair
    would constitute an inconsistency was addressed in one of the authorities that
    was provided to the application judge. In
Carleton Condominium Corp. No. 26
    v. Nicholson
, [2009] O.J. No. 1831, 2009 CarswellOnt 2640 (S.C.J.), affd 2010
    ONCA 80, Power J. concluded that apparent conflict or confusion regarding the
    obligations to maintain and repair as between the condominium corporation and
    the unit owners was an error or inconsistency as those terms are used in the
Condominium

Act
.

[28]

The purpose of the Declaration is to clearly delineate
    the responsibilities of the condominium corporation, on the one hand, and the
    unit owners, on the other. Here that purpose is not achieved. Sections 22 and
    23 are inconsistent, or at the very least unclear, in the obligations that they
    impose.

(3)

The appropriate amendments to the Declaration

[29]

The appellant suggested extensive amendments to
    both sections to correct the problem. Alternatively, the appellant suggested a narrower
    amendment to s. 23. In my view, the extensive amendments suggested are
    overbroad. They go beyond that which is necessary to fix the inconsistency. At
    the same time, I find that the narrower amendment does not address the problem
    as I see it. The narrower amendment was to add the words the duty to repair
    after damage into s. 23. However, that solution does not address the gap that
    I referred to above. It only makes clear what the appellants duty is regarding
    the maintenance and repair of exclusive use common elements after damage,
    something that I view as already being clear in s. 23. The narrower amendment
    does not deal with where the normal wear and tear obligation rests.

[30]

In the end result, the intention was clearly to
    place on the unit owners the duty to maintain and repair their unit, and to
    maintain and repair any part of the common elements over which they have
    exclusive use, after normal wear and tear or the effluxion of time, and to do
    so at their own expense. In reaching that conclusion, I stress the use of the words
    any part of the exclusive use common elements that are used in s. 22. Those
    words would clearly embrace the entirety of the chimney flues.

[31]

It is equally clear that the appellant was to
    bear the responsibility of maintaining and repairing all of the common elements,
    save and except for the common elements over which a unit owner had exclusive
    use. With respect to those, the appellants obligation was restricted to
    maintain and repair after damage only.

[32]

One way to achieve what was intended would be to
    amend s. 22 to read:

Each owner shall maintain and repair his unit,
    including the maintenance and repair of the air conditioning and heating units
    from the shut off valve, and all ducts and services within the unit as well as
    maintaining
and repairing
any part of the common elements which he has
    exclusive use of, at his own expense.
For greater certainty, this duty to
    maintain and repair includes the obligation to repair after normal wear and
    tear
.

[33]

This wording is different than what the
    appellant proposed. The respondents have not had an opportunity to make any
    submissions as to its efficacy. Consequently, I would allow the parties the
    opportunity to consider this, or any other wording, to address the problem. If
    the parties can agree on the wording, they can so advise the court, and it can
    be included in the courts order. If the parties cannot agree, then they can arrange
    for a case conference with me for the purpose of discussing what next steps
    ought to be taken.

[34]

Before concluding, I will address one other
    contention advanced by the respondents, which was that this issue ought to be
    determined with reference to the
Condominium

Act
,
R.S.O. 1980, c. 84 (the
1980

Act
). That was the
    statute in effect in 1982 when the condominium was created. In advancing their
    argument on this point, the respondents also reference certain amendments that
    have been made to the
Condominium

Act
but which have
    not, as yet, been proclaimed into force.

[35]

In my view, for the purpose of determining the
    issue raised, nothing turns on whether one applies the
1980 Act or the Condominium
    Act
. The issue here turns on the wording of the Declaration: on which
    party does it place the duty to replace the chimney flues? I note, in that
    regard, that both the
1980 Act
and the
Condominium

Act

contain a provision that permits the declaration to alter the obligation to
    maintain or to repair exclusive use common elements after damage that is set
    out in the statute. I have set out s. 91(c) of the
Condominium

Act
above. The
1980

Act
contains essentially the same
    language in s. 41(5)(d).

[36]

Therefore, regardless of which statute is
    applied, the issue returns to the wording of the Declaration for resolution. I
    will conclude on this point by saying that I am not prepared to rely on
    amendments that have not been proclaimed into force to assist in resolving this
    issue nor did I understand the respondents to be suggesting this.

E.

Conclusion

[37]

The appeal is allowed, the order below is set
    aside, and in its place, an order is granted amending the Declaration in a manner
    to be agreed upon by the parties, consistent with these reasons, or further
    order of this court.

[38]

The appellant is entitled to its costs of the
    appeal fixed in the agreed amount of $15
,000
inclusive of disbursements and HST.

Released: JUL 21, 2020 RGJ

I.V.B.
    Nordheimer J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nanda v. McEwan, 2020 ONCA 431

DATE: 20200702

DOCKET: C67816

Strathy C.J.O., Tulloch and
    Coroza JJ.A.

BETWEEN

Irwin Nanda

Plaintiff (Respondent)

and

Derrick McEwan, Avelino
    Carvalho, Angela Mason
and Satish Sharma

Defendants (Appellants)

Kevin J. Scullion, for the appellants

Ivanna Iwasykiw, for the respondent

Heard: In writing

Appeal from the order of Justice Leonard
    Ricchetti of the Superior Court of Justice, dated January 7, 2019, with reasons
    reported at 2019 ONSC 3357.

Strathy C.J.O.:

A.

Introduction

[1]

This is an appeal from an order made under s.
    137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
),
    dismissing an anti-SLAPP motion brought by the appellants.
[1]
The action is for defamation,
    based on statements made by the appellants in the midst of the respondents
    unsuccessful campaign for election as president of the Toronto Local of the
    Canadian Union of Postal Workers (CUPW).

[2]

The motion judge dismissed the appellants
    motion to dismiss the action, holding that they had not established that the
    statements at issue related to a matter of public interest, as required by s.
    137.1(3). Although it was not necessary to consider whether the respondents
    claim met the requirements of s. 137.1(4), the motion judge undertook the public
    interest balancing assessment in s. 137.1(4)(b) and found that the public
    interest did not weigh in favour of the protection of the statements. He therefore
    dismissed the appellants motion.

[3]

For the reasons that follow, I would dismiss the
    appeal. I reach this result through a different course of reasoning than the
    motion judge. In my respectful view, the motion judge erred in his analysis
    under s. 137.1(3). The proper application of that section, as explained in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161
[2]
,
    leads to a conclusion that the expressions relate to a matter of public
    interest.

[4]

However, conducting the additional analysis
    required by s. 137.1(4), I come to the same result as the motion judge: having
    regard to the merits of the proceeding and the harm likely to have been
    suffered by the respondent, the public interest in permitting the proceeding to
    continue outweighs the public interest in protecting the expressions at issue.

B.

Factual Background and Procedural History

[5]

The appellants are members of the Toronto Local
    of CUPW. The respondent had been involved in a leadership capacity in the Toronto
    Local of CUPW from 1990 to 2011, then as a member of the executive of the
    Ontario Federation of Labour from 2011 to 2016. In 2016, he resumed involvement
    in CUPW activities and ran in the 2017 election for President of the Toronto
    Local. The appellants opposed his candidacy.

[6]

The respondent alleged that during the election
    campaign, the appellants made defamatory statements about him in two invitation-only
    WhatsApp chat groups and in posters or flyers that were distributed to
    members of the local during the election. The first WhatsApp group had 183
    members and the second had 100, with some overlap in membership. The statements
    included allegations that the respondent:

·

was a racist, a bigot, a sexist, a bully and a
    thief;

·

was corrupt;

·

had rigged a union election;

·

had stolen from membership and had abused his
    position of trust;

·

had used union funds to buy votes; and

·

had engaged in a criminal conspiracy.

[7]

The respondent commenced an action in the Small
    Claims Court, a branch of the Superior Court of Justice. The appellants
    statement of defence did not dispute that the statements were made but argued
    that they were not defamatory and raised several defences, including
    justification, absolute and/or qualified privilege, fair comment, and public
    interest communication.

[8]

The appellants moved before a deputy judge of
    the Small Claims Court to dismiss the action on three grounds: first, that the
    proceeding was properly the subject of arbitration under the union
    constitution; second, that the respondent had failed to give notice under the
Libel
    and Slander Act
; R.S.O. 1990, c L.12; and third, that the action
    improperly limited public debate under s. 137.1 of the
CJA
. The deputy
    judge stayed the action as a result of the respondents failure to give notice
    of his claim. He did not consider it necessary to deal with the anti-SLAPP
    motion.

[9]

The respondent appealed that order to a single
    judge of the Divisional Court. The appellants cross-appealed on the arbitration
    and anti-SLAPP issues. The Divisional Court judge allowed the appeal,
    concluding that there was no evidence before the deputy judge to permit a
    conclusion that the WhatsApp statements constituted a broadcast under the
Libel
    and Slander Act
. He dismissed the cross-appeal with respect to the
    arbitration issue.

[10]

The appellants indicated that they wished to pursue the anti-SLAPP
    motion. Rather than remitting the motion to the deputy judge, the Divisional
    Court judge (hereinafter the motion judge) agreed to deal with the matter
    himself. The parties agreed that he could address the matter through written
    submissions.

[11]

The motion judge dismissed the anti-SLAPP motion. He concluded that
    the impugned expressions were not related to a matter of public interest, and
    even if they were, the public interest did not weigh in favour of protecting
    such expressions.

[12]

Subsequent to the motion judges decision, this court held in
Bruyea
    v. Canada (Veteran Affairs)
, 2019 ONCA 599, 147 O.R. (3d) 84, that a deputy
    judge of the Small Claims Court has no jurisdiction to make an order under s.
    137.1, as that jurisdiction rests with a judge, meaning a Superior Court
    judge.

[13]

The appellants filed a motion for leave to appeal to this court. The
    panel that heard the motion directed that leave is not required as an appeal
    lies to this court under s. 6(1)(d) of the
CJA
, which provides for an
    appeal as of right from an order under s. 137.1.

C.

The Motion Judges Reasons

[14]

The motion judge found that the appellants did not meet the
    threshold test under s. 137.1(3) of establishing that the expressions at issue related
    to the public interest. The purpose and context of the statements at issue were
    to make disparaging, inflammatory and allegedly defamatory comments about the
    Plaintiff to other local union members to get those other members not to vote
    for the Plaintiff. Although some 200 members of the local saw the WhatsApp messages,
    they were not members of the general public or a segment of it. Therefore,
    neither the public nor a segment of the public had an interest in the
    expression.

[15]

The motion judge found that the election of a local union official
    is not a matter of public interest. He reasoned that local union elections are
    private matters, unlike the election of public officials, such as municipal
    councillors. Elections that take place in private institutions, such as
    churches, private companies, community and charitable organizations, and law
    firms, are not of public interest, as they involve highly local, limited and
    private interests.

[16]

The motion judge suggested that the public interest may arise by
    virtue of: (a) the appointment/election of persons in public positions; and
    also (b) the appointment/election of those that engage in public interest
    issues, such as environment, planning, and the arts. However, he appears to
    have found neither category to be at play.

[17]

As his conclusion on the threshold test was dispositive of the
    motion, the motion judge did not consider the merits of the proceeding or the
    defences available under s. 137.1(4)(a). He did, however, comment on the public
    interest balancing under s. 137.1(4)(b). He found that the statements at issue
    were not worthy of protection because they did not encourage debate on public
    matters. They were vulgar and vitriolic statements meant to denigrate and
    defame the character of the Plaintiff to sway other voters not to vote for the
    Plaintiff, referring to
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d)
    442, at paras. 22-23, leave to appeal refused, [2019] S.C.C.A. No. 194.

D.

Issues

[18]

The appellants grounds of appeal can be summarized as follows:

1)

the motion judge erred in determining that the expression did not
    relate to the public interest under s. 137.1(3);

2)

the motion judge erred in opining on public interest balancing under
    s. 137.1(4)(b), as his determination under s. 137.1(3) was dispositive; and

3)

the motion judge erred in improperly determining the minimum
    threshold for protected political speech in his s. 137.1(4)(b) analysis,
    holding that political attack ads are never protected forms of speech.

E.

The Parties Submissions

(1)

Appellants

[19]

First, the appellants submit that the motion judge erred in finding
    that unions are private institutions and that the election of a local union
    President is a private matter and not a matter of public interest. He
    improperly focused on a small number of members of the local (approximately
    200) and should have considered whether the union has the ability to affect
    public policy through government lobbying and advocacy on behalf of workers. They
    submit that the government/non-government distinction conflicts with binding
    authority of this court:
United Soils Management Ltd. v. Mohammed
,
    2019 ONCA 128, 53 C.C.L.T. (4th) 1, leave to appeal refused, [2019] S.C.C.A.
    No. 153.

[20]

Second, the appellants submit that once the motion judge found that
    the expressions did not relate to a matter of public interest under s.
    137.1(3), he should have refrained from characterizing the expressions or
    determining whether they were deserving of protection under s. 137.1(4)(b). In
    proceeding to do so, he improperly interfered with the trial judges
    jurisdiction and impaired the appellants ability to raise defences on the
    merits.

[21]

Third, the appellants submit that the motion judge improperly
    determined the minimum threshold of protection for political speech, in essence
    holding that all political attack ads are not protected forms of speech.

(2)

Respondent

[22]

First, the respondent submits that the motion judge correctly
    determined that the purpose of an organization should be examined to determine
    whether its elections are matters of public importance. The motion judge did
    not treat the number of members as a determinative factor; he was simply noting
    that the number of interested parties was limited to the members of the
    collective bargaining unit.

[23]

Second, the respondent submits that the additional comments on
    public interest balancing under s. 137.1(4)(b) were merely
obiter dicta
and would not restrict the ability of the trial judge to decide the matter on
    the evidence.

[24]

Third, because the comments under s. 137.1(4)(b) were
obiter
    dicta
, they do not represent a determination of the minimum threshold for
    protected political speech. In the alternative, the respondent submits that the
    motion judge properly determined that bald attacks are not protected under the
    public interest balancing test.

F.

Analysis

(1)

Section 137.1 of the
CJA
 The Anti-SLAPP Provision

(a)

Purpose

[25]

Section 137.1 of the
CJA
is designed to prevent the legal
    process from being used as a weapon to limit debate on matters of public
    interest. Section 137.1(1) explains that its purpose is:

(a) to encourage individuals to express
    themselves on matters of public interest;

(b) to promote broad participation in debates
    on matters of public interest;

(c) to discourage the use of litigation as a
    means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by
    the public in debates on matters of public interest will be hampered by fear of
    legal action.

[26]

In
Pointes
, the seminal case on the interpretation of s.
    137.1, Doherty J.A. provided the following summary of the operation of the
    legislation, at para. 7:

s. 137.1 allows a defendant to move any time
    after a claim is commenced for an order dismissing the claim. The defendant
    must demonstrate that the litigation arises out of the defendants expression
    on a matter relating to the public interest. If the defendant meets that onus,
    the onus shifts to the plaintiff to demonstrate that its lawsuit clears the
    merits-based hurdle in s 137.1(4)(a) and the public interest hurdle in s.
    137.1(4)(b).

(b)

Section 137.1(3): The Threshold Requirement

[27]

Section 137.1(3) sets out what was described in
Pointes
as
    a threshold requirement:

On motion by a person against whom a
    proceeding is brought, a judge shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the judge that the
    proceeding arises from an expression made by the person that relates to a
    matter of public interest.

[28]

This provision requires the moving party to establish, on a balance
    of probabilities, that the expression relates to a matter of public interest.
    This term is to be given a broad reading and does not require that the
    expression actually further the public interest. It covers language that is
    intemperate, false, or even contrary to the public interest:
Pointes
,
    at para. 55.

(c)

Section 137.1(4): The Merits-Based and Public
    Interest Hurdles

[29]

If the defendant establishes that the expression relates to a matter
    of public interest, s. 137.1(4) comes into play and the onus shifts to the
    plaintiff. It provides:

A judge shall not dismiss a proceeding under
    subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the
    proceeding has substantial merit, and

(ii) the moving
    party has no valid defence in the proceeding; and

(b) the harm likely to be or have been
    suffered by the responding party as a result of the moving partys expression
    is sufficiently serious that the public interest in permitting the proceeding
    to continue outweighs the public interest in protecting that expression.

[30]

First, to satisfy s. 137.1(4)(a), the merits-based hurdle, the
    plaintiff must establish, on a balance of probabilities, that the proceeding
    has substantial merit and that the defendant has no valid defence.

[31]

Second, to surmount s. 137.1(4)(b), the public interest hurdle, the
    plaintiff must show that the harm suffered by the plaintiff as a result of the
    defendants expression is sufficiently serious that the public interest in
    permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[32]

I will discuss the application of s. 137.1 in more detail below.

(2)

Standard of Review

[33]

The standard of review for determinations under ss. 137.1(3) and
    137.1(4) is deference, absent legal error or palpable and overriding factual
    error: see
Pointes
, at paras. 66, 97.

(3)

Analysis

(a)

Section
    137.1(3): The Threshold Requirement

[34]

The motion judge correctly identified
Pointes
as the dispositive
    authority. In my respectful view, however, he mischaracterized the context of
    the expressions at issue, defined the segment of the community too narrowly,
    and drew an unwarranted distinction between expressions made in the context of
    private and public organizations.

[35]

Pointes
and subsequent decisions of
    this court have referred to
Grant v. Torstar Corp.
, 2009 SCC 61,
    [2009] 3 S.C.R. 640 for guidance in the analysis of the public interest
    requirement. The following considerations may be relevant:

·

the context of the expression, having regard to
    the communication as a whole:
Pointes
, at para. 60;

·

expressions that relate to private matters do
    not become matters relating to the public interest merely because the public is
    curious about them:
Pointes
, at para. 61;

·

[a]n expression can relate to a matter of
    public interest without engaging the interest of the entire community, or even
    a substantial part of the community. It is enough that some segment of the
    community would have a genuine interest in the subject matter of the
    expression:
Pointes
, at para. 62;

·

public interest does not turn on the size of the
    audience:
Pointes
, at para. 63; and

·

the concept of public interest is a broad one
    that does not take into account the merits or manner of expression, nor the
    motive of the author. It covers language that is intemperate, false, and even
    contrary to the public interest:
Pointes
, at paras. 55, 65.

[36]

In
Pointes
, at para. 54, Doherty J.A. suggested that the public
    interest can be determined by asking: what is the expression about, or what
    does it pertain to?

[37]

In identifying the purpose and context of the expressions as making disparaging,
    inflammatory and allegedly defamatory comments about the Plaintiff to other
    local union members to get those other members not to vote for the Plaintiff, the
    motion judge focused on the manner of expression and the motives of the
    appellants. This runs contrary to the observations of Doherty J.A. in
Pointes
,
    at para. 65, that the analysis does not consider the motives of the author or
    the merits of the expression. The motion judge made the error that this court
    identified in
Levant
, at para. 11.

[38]

The motion judge also defined the group interested in the
    expressions too narrowly. Specifically, he said that [t]he expression may be
    of interest to the approximately 200 members of the local union, but NOT the
    public generally or a segment of the public. First, as Doherty J.A. noted in
Pointes
,
    at para. 63, the public interest does not turn on the size of the audience. Second,
    the public interest extended well beyond those who were direct recipients of
    the texts and the posters. It would have included other members of CUPW, as
    well as the public sector more generally.

[39]

Finally, even if one were to accept that a local of a major Canadian
    public union is a private organization, the distinction between expressions
    made in the context of private and public organizations is not found in
Pointes
.

[40]

Had the motion judge properly addressed the question, what is the
    expression about?, he would have responded that it was about allegations of
    corruption and misconduct by a candidate for the office of President of the
    Toronto Local of the Canadian Union of Postal Workers.

[41]

In my view, expressions concerning racism, sexism, corruption, abuse
    of union funds, and misconduct by a candidate for President of the Toronto Local
    of a Canadian public sector union relate to a matter of public interest. In the
    words of McLachlin C.J.C. in
Torstar
, at para. 102, [i]t is enough
    that some segment of the community would have a genuine interest in receiving information
    on the subject: see also
Torstar
, at para. 105. Members of the
    Toronto Local, beyond the recipients of the posters and WhatsApp messages, would
    clearly have a genuine interest in the expressions in the context of an
    election campaign. But the scope of public interest would extend even further, to
    the broader community served by members of CUPW and the public sector.

[42]

It is of note that two of the decisions released contemporaneously
    with
Pointes
deal with expressions made in the context of elections.
    In
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA 689, 143 O.R. (3d)
    54, the plaintiff and one of the defendants, Nancy McSloy, were candidates for
    a position as city councillor in the municipal election in London, Ontario.
    During the campaign, Ms. McSloy made comments in a press release and on a talk
    radio broadcast, the gist of which were that Mr. Armstrong had used threats,
    intimidation, illegal acts, and bullying to get what he wanted from others. On
    the motion under s. 137.1, the motion judge held that the defendants had
    satisfied him that the subject matter of the claims related to a matter of
    public interest under s. 137.1(3). Doherty J.A. observed, [t]hat finding is
    not in dispute on the appeal. Nor should it be. Statements about a candidates
    fitness for office made in the course of an ongoing election campaign
    undoubtedly qualify as expression relating to a matter of public interest.

[43]

In
Able Translations Ltd. v. Express International Translations
    Inc.
, 2018 ONCA 690, 428 D.L.R. (4th) 568, the expressions at issue were
    made in the course of a federal election campaign and related to the
    suitability of a candidate to sit as a member of Parliament, given his prior
    senior management position with the plaintiff corporation. In affirming the
    motion judges conclusion that the communications related to a matter of public
    interest, Doherty J.A. observed, at para. 19, [n]o one disputes that
    communications directed at a persons suitability to hold elected office,
    particularly when made in the middle of an election campaign, are
    communications relating to a matter of public interest.

[44]

Subsequently, in
Labourers International Union of North
    America, Local 183 v. Castellano
, 2020 ONCA 71, 444 D.L.R. (4th) 183, this
    court affirmed a motion judges decision to dismiss an anti-SLAPP motion and to
    grant summary judgment in favour of the plaintiff for defamation. The
    defendant, a former member of the plaintiff local, had made internet posts in
    which he described the union as, among other things, terrible, corrupt,
    despicable, evil, no good degenerate scum, a vicious pit of snakes and
    as having a bad reputation for corrupt and deceitful behaviour. He described
    the unions counsel and other members and officers in similar terms.

[45]

Referring to
Pointes
, the motion judge in
Castellano
noted that the fact that the defendants posts contained derogatory, malicious,
    and false statements did not preclude a finding that the expressions related to
    a matter of public interest. Looking at the broader context of the expressions,
    other statements made by the defendant were concerned with the quality of
    representation he felt he was being provided by the union. The motion judge
    found this was a matter of public interest, at para. 40:

While the posts may be understood as the
    public airing of very personal grievances, they may also be construed as
    addressing the Unions governance and the suitability of some of the plaintiffs
    to act as union representatives I accept Mr. Castellanos submission that this
    characterization of the expression has significance for members of Local 183 as
    well as the community at large. This is sufficient to ground a finding that Mr.
    Castellano has met his onus under s. 137.1(3).

[46]

The motion judge went on to dismiss Mr. Castellanos anti-SLAPP
    motion, finding that the public interest in the expressions was low and that
    the harm suffered by the plaintiffs outweighed the public interest in
    protecting the defendants expression. This court dismissed an appeal from that
    portion of the judgment.

[47]

In summary, the motion judge erred in this case by focusing on the
    nature of the expressions and failing to consider their context, in defining the
    group interested in the expressions too narrowly, and in treating the private
    context as determinative. In my view, allegations of racism, sexism, corruption,
    and misconduct in the context of the election of the President of a major local
    of an important public sector union is a matter of public interest. The appellants
    motion passed the public interest threshold. This requires this court to
    conduct the additional analysis under s. 137.1(4).

(b)

Section 137.1(4)(a): The Merits-Based Hurdle

[48]

In
Platnick v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60
[3]
, one of the companion cases to
Pointes
, Doherty J.A. summarized the requirements of s. 137.1(4)(a),
    at para. 43:

s. 137.1(4)(a) puts the onus on the plaintiff
    (responding party) to establish on the balance of probabilities that there are
    reasonable grounds to believe both that the plaintiff's claim has substantial
    merit and that the defendant (moving party) has no valid defence. Broadly
    speaking, the section provides a mechanism whereby claims that have little
    apparent merit and that potentially undermine freedom of expression can be
    screened out of the litigation process at an early stage.

[49]

Applying that analysis, the question raised by s. 137.1(4)(a)
    becomes:

Could a reasonable trier conclude that [Mr.
    Nanda] had a real chance of establishing that he was libelled and could a
    reasonable trier conclude that [the defendants] had no valid defence to the
    allegation?

[50]

In the court below, the appellants made no submission on the merits
    of the respondents defamation claim, but they submitted that they were
    entitled to the defences of justification, fair comment, absolute and/or qualified
    privilege, and public interest communication. In this court, their submissions
    on s. 137.1(4) are primarily that the motion judge erred in making
obiter
statements that could bind a trial judge.

[51]

Only one of the appellants, Mr. Sharma, filed an affidavit on the
    motion. It contains nothing to support any defence to the most serious
    defamatory statements. It states that the respondent was regarded by some
    members as a polarizing figure in the CUPW Toronto Local, with members holding
    the opinion that he was acting in an obstructive, intimidating manner, skirting
    the Rules of Order and proposing motions which could have angered the
    membership. It attaches a photograph of a meeting of the Toronto Local,
    purporting to show that the respondent divided the membership on ethnic lines. It
    refers to another website containing allegations of corruption against the
    respondent. Nowhere do the appellants materials demonstrate defences to the
    defamatory statements concerning corruption, rigging elections, abuse of trust,
    and conspiracy.

[52]

In my view, the respondents claim survives the merits-based hurdle.
    The defamation claim is supported by the evidence adduced by the respondent and
    the appellants pleading, and the evidence does not reveal a defence to the
    respondents serious complaints. A conclusion such as this does not bind the
    trial judge, who will consider the merits and defences on a full record.

(c)

Section 137.1(4)(b): The Public Interest Hurdle

[53]

I turn to the second hurdle. Section 137.1(4)(b), set out above, calls
    for the balancing of the public interest in permitting a proceeding to continue
    against the public interest in the protection of expression on matters of
    public interest.

[54]

At this stage, the plaintiff has a burden to establish evidence of
    harm, which may be in the form of damage to monetary, reputational, and/or
    privacy interests:
Pointes
, at paras. 87-88. The plaintiff must demonstrate
    that there was a causal connection between the defendants expression and the
    harm suffered:
Pointes
, at paras. 90-92. The motion judge must also
    assess the public interest in protecting the actual expression that is the
    subject of the lawsuit.

[55]

In
Platnick
, at para. 98, Doherty J.A. suggested that,
    while acknowledging that s. 137.1 does not apply
only
to litigation that meets the criteria of a SLAPP, it may be appropriate to
    begin the s. 137.1(4)(b) analysis by asking, [d]oes this claim have the
    hallmarks of a classic SLAPP? These may include such matters as: a history of
    the plaintiff using litigation or the threat of litigation to silence critics; a
    financial or power imbalance that strongly favours the plaintiff; a punitive or
    retributory purpose animating the plaintiff bringing the claim; and minimal or
    nominal damages suffered by the plaintiff:
Platnick
, at para. 99.

[56]

This is hardly a classic SLAPP. None of the indicia identified by
    Doherty J.A. are present. While the respondent seeks damages of only $25,000,
    he has adduced some evidence of an income loss related to the loss of the election
    for the office of President, and the damages claimed are realistic.

[57]

I agree with the motion judges conclusion on this issue. Having
    regard to the expressions at issue, the merits of the respondents case, and
    giving due regard to the public interest in public debate and expression in the
    context of a union election, the public interest in permitting the action to
    proceed must prevail.

(d)

The Motion Judges Decision was Fact Specific

[58]

I reject the appellants submission that the motion judge erred by
    determining the minimum protection threshold for protected political speech
    and by holding that attack ads are not protected speech. The appellants focus
    on the motion judges observations, at paras. 46 and 47, where he observed, in
    relation to the statements at issue:

These types of Statements do not encourage
    debate on public matters but are allegedly defamatory statements made for the
    sole purpose of attacking and maligning the character of an individual without
    a meaningful connection with the alleged public interest or to encourage debate
    on matters of public interest.

Put another way, the statements by the
    Defendants in this case, appear to be vulgar and vitriolic statements meant to
    denigrate and defame the character of the Plaintiff to sway other voters not to
    vote for the Plaintiff. These statements were not intended to provide
    information or the exchange of opinion, assert facts into the public debate
    (even if it were a matter of public interest) or to engage in a discussion of a
    persons qualifications for office. A key example is the statement that the
    Plaintiff engaged in criminal conduct.

[59]

Shortly after making these statements, the motion judge quoted from
    this courts decision in
Levant
, at paras. 22-32, citing to
Pointes
,
    at para. 94, that deliberate falsehoods, gratuitous personal attacks or vulgar
    and offensive language may reduce the public interest in protecting that
    speech, compared to cases where the message is delivered without the lies,
    vitriol, and obscenities.

[60]

As the appellants note, the motion judges observations on this
    aspect of the issue were
obiter
. In my view, they are nothing more
    than an application of the particular facts of this case to the relevant legal
    test. Specifically, the motion judge was applying the guidance in
Pointes
that, in conducting the balancing exercise under s. 137.1(4)(b), the quality of
    the expressions and the motivation of the speaker are relevant to the measure
    of public interest in protecting the expression.

G.

Disposition

[61]

For the foregoing reasons, I would dismiss the appeal. There were no
    submissions as to costs. If no agreement is reached, the parties shall submit
    written submissions. The appellants shall deliver their submissions to the
    Registrar of the court within 30 days from the release of these reasons and the
    respondent shall have 15 days to respond. The submissions are limited to 10
    pages, exclusive of costs outlines.

Released: GRS   JUL 02 2020

George R. Strathy C.J.O.

I agree. M. Tulloch J.A.

I agree. S. Coroza J.A.

[1]
SLAPP means Strategic Litigation Against Public Participation.

[2]
leave to appeal granted and appeal heard and reserved November 12,
    2019, [2018] S.C.C.A. No. 467.

[3]
leave to appeal granted and appeal heard and reserved November 12,
    2019, [2018] S.C.C.A. No. 466.


COURT OF APPEAL FOR ONTARIO

CITATION: Pollard Windows Inc. v. 1736106
    Ontario Inc., 2020 ONCA 437

DATE: 20200702

DOCKET: M50796, M50797, M50798 & M50878

Pepall, Pardu and Paciocco JJ.A.

DOCKET: M50796

BETWEEN

Pollard Windows Inc.

Plaintiff/Respondent

(Responding Party)

and

1736106 Ontario Inc., Andrew
    Ferri, Niagara Home Builders Inc., carrying on business as Niagara Heritage
    Homes and Steveco Enterprises Inc.

Defendants/Appellant

DOCKET: M50797

AND BETWEEN

Pollard Windows Inc.

Plaintiff/Respondent

(Responding Party)

and

1736106 Ontario Inc., Andrew
    Ferri, Niagara Home Builders Inc., carrying on business as Niagara Heritage
    Homes and Steveco Enterprises Inc.

Defendants/Appellant

DOCKET: M50798

AND BETWEEN

Pollard Windows Inc.

Plaintiff/Respondent

(Responding Party)

and

1736106 Ontario Inc., Andrew
    Ferri, Niagara Home Builders Inc., carrying on business as Niagara Heritage
    Homes and Steveco Enterprises Inc.

Defendants/Appellant

DOCKET: M50898

AND BETWEEN

Pollard Windows Inc.

Plaintiff/Respondent

(Responding Party)

and

1736106 Ontario Inc., Andrew
    Ferri, Niagara Home Builders Inc., carrying on business as Niagara Heritage
    Homes and Steveco Enterprises Inc.

Defendants/Appellant

Kris Hutton, for the moving party, 1746878
    Ontario Inc.

Santiago H. Costa, for the responding
    party

Heard: In writing

COSTS ENDORSEMENT

[1]

By way of endorsements dated February 4, 2020,
    we dismissed the moving partys motions for leave to appeal in M50796, M50797,
    M50798 and M50878. In the endorsement pertaining to M50797, we stated that the
    responding party may make written submissions on its request for full indemnity
    costs for these four motions (M50796, M50797, M50798 and M50878). We further
    stated that the responding party was to file its costs submissions (not to
    exceed 10 pages) by February 28, 2020, and the moving party was to respond by
    March 20, 2020 (also not to exceed 10 pages).

[2]

By email letter to the parties from the Senior
    Legal Officer dated June 3, 2020, the deadline for the responding party to file
    its costs submissions was extended to June 15, 2020, in light of the challenges
    associated with the COVID-19 public health emergency. The letter advised that,
    if the responding party did not file its costs submissions by that time, it would
    be deemed to have abandoned its request for full indemnity costs.

[3]

The responding party did not file any
    submissions by June 15, 2020. Accordingly, its request for full indemnity costs
    is deemed abandoned.

[4]

We order partial indemnity costs of these four
    motions for leave to appeal, in the aggregate, to the responding party fixed at
    $1,500 inclusive.

[5]

The responding party is at liberty to seek
    payment of these costs out of the proceeds of sale of the property at issue,
    which are held in trust by the Superior Court of Justice, before a judge of
    that court.

S.E.
    Pepall J.A.

G.
    Pardu J.A.

David
    M. Paciocco J.A.