COURT OF APPEAL FOR ONTARIO

CITATION:
Enbridge
    Gas Distribution Inc. v. Marinaccio, 2012 ONCA 650

DATE: 20121001

DOCKET: C53671 & C53759

Laskin and Blair JJ.A. and Brown R.S.J. (
Ad
    Hoc
)

BETWEEN

Enbridge Gas Distribution Inc.

Plaintiff (Respondent)

and

Michael Marinaccio, also known as Mike
    Marinaccio, also known as Miguel Marinaccio, also known as Micahel Marinaccio, Maria
    Lettizia Marinaccio, also known as Maria Mariniccio, also known as Maria
    Messina,
Angelo Piro
, Angelica Piro,
Italo Tony Montaldi, also known as Tony Montaldi, also known as
    Italo Montaldi
, Nancy Nunziatina Montaldi also known as Nancy Montaldi, also
    known as Nunziatina Montaldi, 1639374 Ontario Ltd., 1316679 Ontario Limited,
    Maverick & Associates (1991) Limited, also known as Maverick & Associates,
    2132329 Ontario Ltd., 2132264 Ontario Ltd., Tera X Technologies Inc., Tarrco Construction,
    also known as Tarrco, Tek-Con, Mike Marinaccio Services, Tekka-Ent, Provac and
    2138337 Ontario Inc.

Defendants (
Appellants
)

Ross Morrison and Natalie Schernitzki, for the
    appellant, Italo Tony Montaldi

Bryan Fromstein, for the appellant, Angelo Piro

Reid Lester and Matthew Morden, for the respondent

Heard: February 15, 2012

On appeal from the judgments of Justice Frank J.C. Newbould
    of the Superior Court of Justice, dated April 14, 2011 and August 22, 2011,
    with reasons reported at 2011 ONSC 2313 and 2011 ONSC 4962, 206 A.C.W.S. (3d)
    685.

Laskin
    J.A.

A.

overview

[1]

Piro and Montaldi appeal the summary judgment granted to Enbridge.

[2]

Piro was a labourer.  Montaldi was an accountant.  The primary defendant,
    Marinaccio, was an operations supervisor for Enbridge.  Enbridge, a regulated
    utility, frequently had to repair property it had damaged during its regular
    maintenance.  In 2001, Marinaccio, Piro and Montaldi devised a scheme to do
    this repair work.

[3]

According to the appellants, the scheme was to operate as follows.  Piro
    alone would register business entities to do the work.  Marinaccios
    involvement would be concealed from his employer, Enbridge.  However, Marinaccio
    would hire contractors to do the work.  Montaldi would prepare the invoices to
    be given to Enbridge.  Marinaccio would approve the invoices.  Marinaccio, Piro
    and Montaldi would share the payments from Enbridge in predetermined
    percentages.

[4]

The appellants and Marinaccio carried out the venture for over six years.
    Enbridge paid out over $6.5 million.  Marinaccio has now admitted that the
    entire scheme was a fraud.  No work was ever done.  All the invoices were
    phoney.  Marinaccio also claims that Piro and Montaldi were aware of the
    fraud.  After the lawsuit began, Marinaccio settled Enbridges claim against
    him for $1.9 million.

[5]

Enbridge then moved for summary judgment against Piro and Montaldi.  The
    motion judge, Newbould J., found that Marinaccio owed a fiduciary duty to
    Enbridge and that he breached his fiduciary duty by secretly profiting at the
    expense of his employer.  The motion judge granted summary judgment against
    Piro and Montaldi on three separate bases: knowing assistance to Marinaccio in
    breaching his fiduciary duty; bribery; and unjust enrichment.

[6]

On Enbridges main claim for knowing assistance, the motion judge found
    Piro and Montaldi jointly and severally liable for $5,723,339.60, which was the
    entire amount received from Enbridge less the net settlement amount paid by
    Marinaccio (after deducting the costs of collection).

[7]

On their appeal, Piro and Montaldi make four main arguments:

(1)

Piro alone argues that the motion judge erred in finding that Marinaccio
    owed a fiduciary duty to Enbridge.

(2)

Even if Marinaccio owed a fiduciary duty to Enbridge and he breached
    that duty, the motion judge erred in finding Piro and Montaldi liable for
    knowing assistance.  They submit that to be liable for knowing assistance, they
    had to know that the scheme was a fraud.  They contend that whether they knew
    at the time it was a fraud raises a genuine issue for trial.

(3)

The motion judge erred in finding them liable for the tort of bribery
    because Enbridge did not plead bribery and did not prove the payment of a secret
    commission.

(4)

The motion judge erred in finding them liable for unjust enrichment.
    They submit that as they did some work and did not know the scheme was a fraud
    they are entitled to keep their share of the profits.

[8]

Montaldi argues two additional grounds of appeal:

(5)

The motion judge erred in his calculation of the amount of the judgment.

(6)

The motion judge erred in awarding compound interest.

[9]

For the reasons that follow, I would dismiss both appeals in their
    entirety.

B.

relevant factual background

[10]

Although
    the record before the motion judge was lengthy, the material facts are largely
    not disputed.  Piros and Montaldis discovery evidence was filed, but neither
    filed an affidavit in response to Enbridges motion.  I am satisfied that the
    motion judge was entitled to dispose of this case by a summary judgment.

[11]

The
    motion judge concisely summarized the factual background of this litigation.
    His summary is sufficient to put the issues on appeal in context.  I therefore
    simply reproduce his summary taken from paras. 2, 3 and 5-10 of his
    endorsement:

[2]      This action arises from a business arrangement made by
    Piro and Montaldi with the defendant Michael Marinaccio who at the time was an
    employee of Enbridge.  Marinaccio was an operations supervisor with Enbridge
    with authority to retain third party contractors on behalf of Enbridge and to
    approve payment of invoices. Piro was a labourer who worked for various
    companies that did business with Enbridge and he got to know Marinaccio.
    Montaldi is an accountant and financial planner and sole shareholder and
    principal of the defendant Maverick.

[3]
Enbridge often required repair work to
    be done on properties where Enbridge technicians had done the maintenance work
    such as repairing damaged landscaping.  The business engaged in by
    Marinaccio, Piro and Montaldi that has given rise to this action was a venture
    under which Enbridge paid approximately $6.7 million from 2001 to 2007 for work
    and equipment allegedly supplied to Enbridge by four entities set up by
    Piro.  Marinaccio and Piro each received at least 31.5% or 32.5% of this
    money, depending upon the year.  Maverick received either 5% or 7% of the
    money, depending upon the year.  There is a difference between the parties
    as to what happened to the remaining 30%.  Piro and Montaldi say that it
    was given in cash to Marinaccio to be used to pay subcontractors and suppliers
    who were to do the work for the four entities set up by Piro.  Marinaccio
    denies ever receiving the cash.

[5
]
    The four entities set up by Piro were unincorporated. The first was Tarrco,
    followed by Tek-Con, Tekka-Ent and Provac. Invoices were sent out by each
    entity at different times. Tarrco invoices were submitted to Enbridge for a
    period of about 18 months from July, 2001 to January, 2003.  Tek-Con submitted
    invoices from June, 2003 to January, 2004. Tekka-Ent submitted invoices from
    February to December, 2004. Provac submitted invoices from February, 2005 to
    October, 2007.

[
6
]    Piro and
    Montaldi were aware that Marinaccio worked at Enbridge.  Piros evidence
    is that the businesses were registered in his name alone without Marinaccios
    name appearing because he knew that Marinaccio had a conflict of interest
    because of his involvement with Enbridge and that Marinaccios name was not to
    appear anywhere on the record.  Montaldis evidence was that the business
    was to be in Piros and Marinaccios name but that Marinaccio told him that his
    name could not appear on the ownership of the company because it would be a
    conflict of interest with Enbridge.  Marinaccio made clear that he would
    ensure that Enbridge did not learn about his involvement in the venture.

[
7
]    Montaldi
    was the accountant for the Piro entities.  He also prepared all of the
    invoices to Enbridge from information supplied by Piro or Marinaccio.  The
    invoices gave Maverick as the address for the entity supplying the
    invoice.  These invoices were not sent to Enbridge.  Rather they were
    hand delivered to Marinaccio by either Montaldi or Piro. Both Piro and Montaldi
    knew that it was Marinaccio who approved these invoices on behalf of Enbridge.

[
8
]   The total paid
    by Enbridge was $6,665,853.51.  Montaldi received the Enbridge checks for
    the invoices either at the Maverick office or at a post box controlled by
    Montaldi, and these checks were deposited into the bank account for the entity
    that had invoiced Enbridge.  The bank accounts for the four Piro entities
    were controlled by Piro and Montaldi who had the signing authority for the
    accounts.

[
9
]     From
    these bank accounts, 5% and later 7% of the Enbridge payments were paid to
    Montaldi.  His evidence is that these payments were for his fees for
    providing accounting services.  That amounted to approximately $408,000.
    30% of the Enbridge payments was taken out in cash and according to Piro and Montaldi
    was paid to Marinaccio for the purpose of paying the sub-contractors who
    allegedly did the work.  Their evidence is that the cash was put in brown
    envelopes and given to Marinaccio from time to time along with the
    invoices.  Marinaccio denies ever receiving this cash.  The balance,
    being 63%, and later 61% after Montaldis percentage was increased from 5 to
    7%, was paid out equally to Marinaccio and Piro.

[
10
]
     Marinaccios evidence was that no work was done by the Piro entities that
    had invoiced Enbridge and that the work had been done by other contractors to
    Enbridge.  His evidence is that the invoices were phony to the knowledge
    of both Piro and Montaldi.  Piro and Montaldi both assert that they were
    told by Marinaccio that the work was being done by subcontractors arranged by
    Marinaccio and that the 30% of the Enbridge payments made in cash to Marinaccio
    was for the purpose of paying those subcontractors.  Their evidence is
    that they do not know who those subcontractors or persons were and it is admitted
    that Montaldi, purportedly the accountant for the Piro entities, kept no record
    of any of such subcontractors or persons or of amounts allegedly paid to them.

C.

analysis

(1)

Did the motion judge err in finding that Marinaccio
    owed a fiduciary duty to Enbridge?

[12]

Marinaccio began working for Enbridge in 1979.  He was promoted over
    the years.  By 2001 he was an operations supervisor.  He had authority to hire
    outside contractors to do work for Enbridge and to approve payment of their
    invoices.  At first, he could only approve invoices of up to $2,000, but by late
    2003 he could approve invoices of up to $5,000.  The motion judge found at
    para. 20, in this case there can be no question but that Marinaccio owed a
    fiduciary duty to Enbridge.

[13]

Montaldi does not challenge the motion judges finding.  However, Piro
    does.  He argues that Marinaccio was not a key Enbridge employee, but merely a
    mid-level manager with limited authority.  Like any employee, Marinaccio owed a
    duty of loyalty to his employer. However, his role within Enbridge did not make
    him a fiduciary.  At the very least, whether he owed a fiduciary duty is an
    issue that requires a trial.  Piro attempts to buttress his argument by
    pointing out that the motion judges finding of a fiduciary duty is unsupported
    by any analysis.

[14]

I would not give effect to Piros argument.  As a starting point, the
    motion judge cannot be faulted for his brief treatment of the question whether
    Marinaccio owed a fiduciary duty to Enbridge because that question did not
    appear to have been a live issue before him.  As the motion judge noted,
    Montaldi implicitly conceded that Marinaccio owed a fiduciary duty.  And Piro,
    who now alone challenges the motion judges finding, expressly conceded that Marinaccio
    owed a fiduciary duty.  That express concession is evident from para. 19 of
    Piros factum on the motion for summary judgment where he accepted that it is
    established that Marinaccio owed a fiduciary duty to Enbridge and that his
    action amounted to a breach of fiduciary duty vis-
à
-vis
    Enbridge.

[15]

Although
    we no doubt have authority to revisit an issue that was conceded before a
    motion judge, we should be reluctant to do so.  Moreover, even if we do revisit
    this issue, the question whether a person owes a fiduciary duty is largely a
    factual inquiry.  Accordingly, a trial judges or a motion judges finding of a
    fiduciary duty is entitled to significant deference from an appellate court:
    see
Hodgkinson v. Simms
, [1994] 3 S.C.R. 377, at pp. 425-426;
Shafron
    v. KRG Insurance Brokers (Western) Inc.,
2009 SCC 6, [2009] 1 S.C.R. 157,
    at para. 13;
GasTOPS Ltd. v. Forsyth
, 2012 ONCA 134, at para. 81.

[16]

In
    this case, the motion judges finding of a fiduciary duty deserves deference
    because there is evidence to support it.  A fiduciary relationship may exist
    where the fiduciary undertakes to act in the best interests of the beneficiary,
    the fiduciary has the power to affect the legal or substantial interests of the
    beneficiary, and, as a result, the beneficiary is vulnerable to the fiduciary: see
Galambos v. Perez
, 2009 SCC 48, [2009] 3 S.C.R. 247 at paras. 68-70;
Alberta
    v. Elder Advocates of Alberta Society
, 2011 SCC 24, [2011] 2 S.C.R. 261 at
    paras. 30-34. In the employment context, an employee may therefore be said to
    owe a fiduciary duty to his or her employer where the employee has
    discretionary power to affect adversely the employers interests and the
    employer is vulnerable to the exercise of that power.

[17]

Here, Marinaccio had discretionary power both to hire outside
    contractors for Enbridge and to approve the payment of invoices they
    submitted.  Enbridge was undoubtedly vulnerable to the exercise of that power
    because Marinaccio used his power to defraud his employer of over $6.5 million
    over the course of six and a half years.

[18]

I recognize the admonition of my colleague Gillese J.A. in
Hunt
    v. TD Securities Inc.
(2003)
, 66 O.R. (3d) 481, leave to
    appeal to S.C.C. refused, [2003] S.C.C.A. No. 473, at para. 46:

[O]ne cannot reason backwards from the fact that
    an individual is harmed by the unauthorized act of their broker, to the
    conclusion that they are vulnerable.  Rather, the individuals and the nature of
    the relationship must be examined.

[19]

Nonetheless, that Marinaccio had the authority, opportunity and ability
    to perpetrate such a large-scale fraud on his employer over such a prolonged
    period of time is some evidence that he possessed the hallmarks of a fiduciary
    duty: discretionary power over a correspondently vulnerable employer.

[20]

For these reasons, I would not interfere with the motion judges
    finding that during the period of the fraud, Marinaccio owed a fiduciary duty
    to Enbridge.  In upholding this finding I should not be taken to signify that
    many mid-level employees of large corporations will owe a fiduciary duty to
    their employer.  The finding in this case not only rests on its particulars
    facts but was largely uncontested.  If the question whether Marinaccio owed a
    fiduciary duty to Enbridge had been more vigorously challenged, the motion
    judge may have taken a different view.

(2)

Did the motion judge err in finding that Piro and
    Montaldi knowingly assisted Marinaccio in breaching his fiduciary duty?

[21]

If
    Marinaccio had a fiduciary duty to Enbridge, unquestionably he breached that
    duty.  He participated in an undisclosed scheme by which he induced Enbridge to
    unknowingly make payments to business entities in which he had an interest.  He
    personally profited from those payments.  These were acts of dishonesty, inconsistent
    with Marinaccios fiduciary duty.

[22]

If
    Marinaccio owed a fiduciary duty to Enbridge, neither Piro nor Montaldi contest
    that he breached this duty.  However, both dispute their liability for
    knowingly assisting in the breach.

[23]

In
    the recent case of
Harris v. Leikin Group Inc.
, 2011 ONCA 790, at
    para. 8, this court set out the components of a claim for knowingly assisting
    in a breach of a fiduciary duty:

There is no dispute concerning the constituent elements of the
    tort of knowing assistance in breach of fiduciary duty: (1) there must be a
    fiduciary duty; (2) the fiduciary must have breached that duty fraudulently and
    dishonestly;
(3) the stranger to the fiduciary relationship must have had
    actual knowledge of both the fiduciary relationship and the fiduciarys
    fraudulent and dishonest conduct
; and (4) the stranger must have
    participated in or assisted the fiduciarys fraudulent and dishonest conduct. The
    knowledge requirement for liability based on this tort is actual knowledge,
    which, as the Supreme Court confirmed in
Air Canada
[
Air Canada v.
    M & L Travel Ltd.,
1993] 3 S.C.R. 787], at para. 38, includes
    recklessness and wilful blindness.  As this court observed in
Keeton v. The
    Bank of Nova Scotia
, 2009 ONCA 662, 254 O.A.C. 251, at para. 82, to found
    liability [on knowing assistance in a breach of fiduciary duty], the stranger
    to the trust must have actual (as opposed to constructive) knowledge of the
    misconduct, or be wilfully blind to the breach or reckless in his failure to
    realize that there was a breach. [Emphasis added; internal citations omitted.]

[24]

This
    ground of appeal turns on the third component, the knowledge requirement.  Piro
    and Montaldi submit that to be liable for knowing assistance they had to know both
    that Marinaccios conduct was dishonest
and
that the scheme was a
    fraud.  And although the motion judge found that they both knew Marinaccio
    acted dishonestly, and indeed they participated in that dishonesty, they did
    not know at the time that the entire scheme was a fraud. They claim they
    believed work was being done, and that Marinaccio was hiring and paying
    sub-contractors out of the money received from Enbridge.

[25]

And
    yet Marinaccio says that they knew. And by the time of discovery, Piro
    acknowledged that the scheme was fraudulent.  However, he says that he did not
    know that it was fraudulent at the time.  Montaldi says that he never knew that
    the scheme was fraudulent.  In the face of this conflicting evidence I accept,
    and Enbridge has accepted, that whether Piro or Montaldi knew at the time that the
    scheme was a fraud raises a genuine issue requiring a trial.  Thus, if Enbridge
    were required to show the appellants knowledge of the fraud, it would not be entitled
    to summary judgment on the basis of knowing assistance.

[26]

Enbridge,
    however, submits that it is required to show only that Piro and Montaldi had
    knowledge of Marinaccios dishonesty. It is not necessary to prove they knew that
    a fraud was committed, Enbridge argues, so long as they were aware that
    Marinaccio was dishonestly breaching his fiduciary duty by participating in the
    scheme. The motion judge agreed with Enbridges position.  He wrote at paras.
    24-25 of his endorsement:

[24]    In this case both Piro and Montaldi
    knowingly assisted in the breach of Marinaccio's fiduciary obligations to
    Enbridge.  They were aware that Marinaccio had a conflict and assisted him
    in taking steps to hide Marinaccio's role in the venture.  They knew as
    well that Marinaccio was making sure that Enbridge was not aware of the
    venture.  Montaldi was far more than an accountant for the Piro
    entities.  He prepared the invoices, which he and Piro hand delivered to
    Marinaccio rather than sending them to Enbridge. The invoices directed payment
    to a Maverick address. He along with Piro opened bank accounts in which the
    Enbridge money was deposited and he arranged for wire transfers to Marinaccio
    as well, on his evidence, of taking cash and giving it to Marinaccio.

[
25
]    The fact that Piro
    and Montaldi assert that they were not aware that work was not being done for
    which invoices were sent does not assist them. It was a breach of Marinaccio's
    fiduciary obligations to Enbridge to be involved in a venture that resulted in
    him being the recipient of money, regardless of whether the work was
    done.  Piro and Montaldi were quite aware of that breach and took steps in
    furtherance of it.

[27]

I
    agree with the motion judge.  In the context of a claim for knowing assistance
    in the breach of a fiduciary duty, dishonest and fraudulent conduct signify a
    level of misconduct or impropriety that is morally reprehensible but does not
    necessarily amount to criminal behaviour.  The term fraudulent does not signify
    that an additional degree of corruption is necessary to make out the tort; it
    simply emphasizes the required dishonest quality of the fiduciarys act. As Buckley
    L.J. stated in
Belmont Finance Corp. v. Williams Furniture Ltd. (No. 1)
,
    [1979] 1 All E.R. 118, at p.130, cited with approval in
Air Canada
, at
    p. 815:

I do not myself see that any distinction is to be drawn
    between the words fraudulent and dishonest; I think they mean the same
    thing, and to use the two of them together does not add to the extent of
    dishonesty required.

In
Air Canada
, at p. 826, Iacobucci J.
    described the type of conduct captured by the two terms used together as the
    taking of a knowingly wrongful risk resulting in prejudice to the
    beneficiary.  By extension, liability for knowing assistance requires only
    that the assister knew of the dishonest nature of the fiduciarys conduct.

[28]

Here,
    both Piro and Montaldi knew that Marinaccio took a wrongful risk that prejudiced
    Enbridge.  They knew that Marinaccio worked for Enbridge.  Piro knew and the
    motion judge found that Montaldi knew that Marinaccio had authority to retain
    outside contractors and to approve invoices for payment by Enbridge.  Piro and
    Montaldi also knew that Marinaccio had a conflict of interest by participating
    in the scheme.  They knew that he wanted to conceal his involvement in the
    scheme from Enbridge and they assisted him in doing so.  And they knew that he
    secretly profited from the scheme at the expense of Enbridge.

[29]

In
    short, Piro and Montaldi knew that Marinaccios conduct was dishonest, and
    indeed morally reprehensible, and that his conduct harmed Enbridge. They cannot
    escape liability by their assertion that they did not know at the time that
    they were participating in a fraud.

[30]

I
    would not give effect to this ground of appeal.

[31]

Piro
    and Montaldi accept that if they are liable for knowing assistance then the
    motion judge was correct to hold them jointly and severally responsible for the
    full amount advanced by Enbridge.  As I would uphold the motion judges finding
    of liability for knowing assistance, strictly speaking, it is not necessary to
    deal with the two other bases of the appellants liability.  For completeness,
    however, I will address them briefly.

(3)

Did the motion judge err in finding Piro and
    Montaldi liable for bribery?

[32]

The
    motion judge found Piro and Montaldi liable for bribery because of the payments
    they made to Marinaccio out of the money received from Enbridge.

[33]

The
    civil tort of bribery is the payment of a secret commission.  In
Ruiter
    Engineering & Construction Ltd. v. 430216 Ontario Ltd.
(1989), 67 O.R.
    (2d) 587 (C.A.), at p. 591, Morden J.A. set out the three elements of a cause
    of action in bribery:

The term "bribe" has, for the purposes
    of the civil law, received a wide interpretation. In
Industries
    & General Mortgage Co. v. Lewis
,
[1949] 2 All E.R. 573 (K.B.D.), Slade J. said
    at p. 575:

For the purposes of the civil law a bribe
    means the payment of a secret commission, which only means (i) that the person
    making the payment makes it to the agent of the other person with whom he is
    dealing; (ii) that he makes it to that person knowing that that person is
    acting as the agent of the other person with whom he is dealing; and (iii) that
    he fails to disclose to the other person with whom he is dealing that he has
    made that payment to the person whom he knows to be the other person's agent.
    Those three are the only elements necessary to constitute the payment of a
    secret commission or bribe for civil purposes.

[34]

Once
    all the elements of bribery are established, the court will presume in favour
    of the principal and against the briber and the agent bribed, that the agent
    was influenced by the bribe.  The presumption is irrebuttable: see
Optech
    Inc. v. Sharma,
2011 ONSC 680, at para. 23.  Moreover, the motive of the person
    making the bribe is irrelevant: see
Ruiter Engineering,
at p. 591-592;
Barry v. Stoney Point Canning Co.,
[1917] 55 S.C.R. 51, at p. 74.

[35]

The
    motion judge found that Enbridge had established the three elements of bribery:

[31]    The three elements cited by Morden J.A.
    as constituting the only elements necessary to constitute the payment of a
    secret commission or bribe clearly are applicable to this case.  The
    dealings were clearly surreptitious and in the language of James L.J.
    constituted a fraud on Enbridge entitling Enbridge to adequate relief as the
    court may think right to give.

[32]    Piro and Montaldi controlled the bank
    accounts and they together arranged for payment to Marinaccio of approximately
    $2.086 million pursuant to his 32.5% interest in two of the entities and his
    31.5% interest in the other two entities.  They also say they acted in
    paying approximate $2 million in cash to Marinaccio, representing 30% of the
    proceeds received from Enbridge, although Marinaccio denies receiving this
    money or telling them that he was paying any subcontractors.  If in fact
    they paid this cash to Marinaccio, I find that none of this was paid by
    Marinaccio to any subcontractors. That was Marinaccio's evidence and neither
    Piro nor Montaldi have provided any evidence of any payments to any
    subcontractors or indeed of the existence of any subcontractors.  If they
    did not pay the cash to Marinaccio, they have retained it for their own
    purposes.

[33]    In the circumstances, the appropriate
    remedy under the claim for bribery is to require Piro and Montaldi to pay
    Enbridge the $2.086 million paid to Marinaccio and a further $2 million either
    paid to Marinaccio or kept by them.  Thus under this heading Piro and
    Montaldi are jointly and severally responsible to pay Enbridge $4.086 million.

[36]

Piro and Montaldi challenge the motion judges finding on three
    grounds.  First, they say that Enbridge did not plead a cause of action in
    bribery.  The motion judge, therefore, was wrong to grant judgment on a claim
    that was not pleaded.  Second, they say that bribery was not made out because
    the payments to Marinaccio were not made to him as an agent of Enbridge, but as
    a principal of the Piro entities.  Third, Piro says that the motion judge ought
    to have limited his damages award to $2 million, which was the amount of Piros
    profit.  I do not agree with any of these grounds advanced by the appellants.

[37]

On the first ground, although Enbridge did not use the word bribery
    in its amended claim, it did plead all of the material facts required to
    establish a cause of action in bribery.  More important, in its notice of
    motion, Enbridge expressly moved for summary judgment for bribery.  Its motion
    was served on the appellants 14 months before it was heard, and the issue of
    bribery was fully argued before the motion judge.  Therefore, neither Piro nor
    Montaldi can seriously claim that he was prejudiced by the omission of the word
    bribery from Enbridges pleading.

[38]

On the second ground, Piro and Montaldi admitted that they acted in
    concert to make secret payments to Marinaccio of approximately $2.086 million,
    which represented his percentage interest in the Piro entities.  They have also
    asserted that they acted in concert in paying Marinaccio in cash a further $2
    million, representing 30 per cent of the total proceeds of the fraud.

[39]

Accepting their admission and their assertion, Piro and Montaldi
    secretly paid to Marinaccio approximately $4.086 million from the amounts
    invoiced to Enbridge and paid by Enbridge to the Piro entities.  In other
    words, they paid bribes to Marinaccio amounting to $4.086 million and they kept
    these payments secret from Enbridge.  Their motive in making these payments is
    irrelevant.  Thus, Piro cannot escape liability by claiming that the payments
    were made to Marinaccio as a principal of the Piro entities and not as an agent
    of Enbridge.

[40]

And Montaldi cannot escape liability by claiming that he did not know
    of the fraud or deal directly with Enbridge. Neither his reasons for
    transferring funds to Marinaccio nor his awareness of the fraudulent nature of
    the scheme has any bearing on his liability. His knowledge that Marinaccio was
    acting as an employee of Enbridge and his failure to disclose the payments to
    Enbridge are sufficient. Further, he dealt with Enbridge extensively: he
    prepared all of the invoices addressed to Enbridge on behalf of the Piro
    entities; he received Enbridges checks at either the Maverick office or a post
    box he controlled; he deposited Enbridges checks into bank accounts he
    controlled. The tort of bribery does not require that dealing be direct.

[41]

In his article Remedies for the Victims of a Bribe (1999-2000) 22
    Advoc. Q. 198, at para. 198, Paul M. Perell describes the expansive nature of
    liability for bribery:

The payment may be made to induce the recipient to exercise his
    influence in a way that favours the briber, but the motive is not determinative
    and
the essential factor is the secrecy
; if the payment is secret then
    a corrupt motive and the success of the inducement will be assumed. The secret
    payment is a bribe
even if the person making the payment did not intend a
    bribe and believed or expected that the recipient would properly disclose the
    payment.
[Emphasis added; footnotes omitted.]

[42]

In my view, this passage is a complete response to
    Montaldis claim.

[43]

On the third ground, the measure of damages for bribery is generally
    the amount of the bribe or secret commission paid to the agent  in this case
    Marinaccio.  Both Piro and Montaldi said that they made secret payments to
    Marinaccio of $4.086 million.  Therefore, the motion judge did not err in
    awarding damages for this amount.  I would not give effect to this ground of
    appeal.

(4)

Did the motion judge err in finding Piro and
    Montaldi liable for unjust enrichment?

[44]

Liability for unjust enrichment has three components:

·

The defendant obtains an enrichment.

·

The plaintiff incurs a corresponding deprivation.

·

There is no juristic reason for the defendants enrichment:
Garland v. Consumers Gas Co.,
2004 SCC 25,

[2004] 1 S.C.R. 629,
    at para. 30.

[45]

The motion judge held that Enbridge had established these three
    components:

[35]    This cause of action has undoubtedly been
    established.  Piro and Montaldi were enriched by the amounts received by
    them and Enbridge is out the money.  Piro admits that there was a
    fraud.  Montaldi can point to no evidence that any work was done or
    equipment supplied by the four Piro entities.  In the circumstances I find
    that no work was done and that there was no juristic reason whatsoever for the
    payments made by Enbridge.

[46]

Piro and Montaldi submit that the motion judge erred in holding that
    the third component had been established because the Piro entities did some work
    and neither appellant knew at the time that the scheme was a fraud.  Retaining
    the money paid by Enbridge was, therefore, not unjust.  I do not accept this
    submission.

[47]

On the first branch of the argument, Piro essentially conceded when he
    acknowledged the scheme was a fraud that the four entities registered in his
    name never provided anything of value to Enbridge.  Therefore, all of the
    payments Enbridge made to the Piro entities represented a loss.  Although
    Montaldi claims that the Piro entities did some work, he has no direct evidence
    that they did. He also failed to make any further inquiries into which
    sub-contractors were doing the work he alleges was done, and whether they were
    in fact paid by Marinaccio out of the funds allegedly earmarked for that
    purpose. The motion judge, thus, reasonably held that the appellants could not credibly
    claim a juristic reason for their enrichment on the basis some work had been
    done.

[48]

On the second branch of the argument, the appellants contend that because
    they did not have knowledge of the fraud at the time, or at the very least
    whether they had knowledge raises a genuine issue for trial, they cannot by a
    summary judgment be required to disgorge the money they received from
    Enbridge.  I do not agree with this contention.

[49]

The entire scheme was a fraud, as Marinaccio claimed and Piro later
    admitted.  That neither Piro nor Montaldi may have known it rose to the level
    of fraud at the time does not make out a juristic reason for their enrichment
    at the expense of Enbridge.  Had either Piro or Montaldi been an innocent
    stranger to the scheme who could claim to have received the money from Enbridge
    lawfully, his position may have been different: see
Citadel General
    Assurance Co. v. Lloyds Bank Canada
, [1997] 3 S.C.R. 805, at
    para. 51.  But neither Piro nor Montaldi was an innocent stranger to the
    scheme.  Both fully participated and assisted Marinaccio in arranging what was
    shown to be a fraud on Enbridge.  In these circumstances, Piro and Montaldi can
    have no juristic reason to retain Enbridges money.  I would not give effect to
    this ground of appeal.

(5)

Did the motion judge err in calculating the amount of the judgment?

[50]

As I have said, each appellant acknowledges that if he is liable for
    knowingly assisting in Marinaccios breach of fiduciary duty then he is liable
    to account for the full amount paid by Enbridge and not just his share of the
    profit.  Montaldi, however, submits that the motion judge erred in calculating
    the amount of the judgment for knowing assistance.

[51]

In assessing Piros and Montaldis liability, the motion judge properly
    reduced the total loss incurred by Enbridge by the sum from the Marinaccio
    settlement. Instead of deducting the gross amount of the settlement, however,
    the motion judge took account of the fees and disbursements Enbridge incurred
    in collecting the settlement funds. Therefore, in fixing the amount of the
    judgment against Piro and Montaldi, he reduced the appellants liability by the
    amount of Enbridges
net
recovery from Marinaccio
    after legal costs.  Montaldi contends that the motion judge should have instead
    deducted the gross amount of the settlement.

[52]

Enbridge paid the four Piro entities $6,542,928.63. The Marinaccio
    settlement amounted to $1,948,727.  The cost of collecting the settlement
    amounted to $1,129,138.  Thus, the net recovery on the settlement was $819,589
    ($1,948,727 minus $1,129,138).  The motion judge granted judgment for
    $5,723,339.60 ($6,542,928.63 minus $819,589).  Montaldi submits that he ought
    to have granted judgment for $4,594,201.63 ($6,542,928.63 minus $1,948,727).

[53]

I do not agree with this submission.  The motion judge addressed this
    submission at para. 19 of his supplementary endorsement.  He held that Enbridge
    was entitled to be compensated for its loss.  Its loss had to take account of
    the costs of recovery on the settlement.  The motion judge wrote:

In my reasons for judgment I held that the
    plaintiff was entitled to its loss, being the amount paid by it to the four
    Piro entities, less the net recovery after the costs of collecting resulting
    from the Marinaccio settlement. The loss was $6,542,928.63.

The gross amount
    collected under the Marinaccio settlement was $1,948,727. The total fees and
    disbursements incurred by the plaintiff in collecting that amount was
    $1,129,138, leaving a net recovery under the settlement of $819,589. Mr.
    Morrison contends that the gross amount recovered from the Marinaccio
    settlement should be deducted from the loss rather than the net amount after
    costs as there is no breakdown or calculation of this amount in the evidence. I
    think if Mr. Morrison seriously contended that the amounts were not spent, he
    could have asked for more particulars, assuming they are not contained in the
    two inch thick bundle of invoices provided by the plaintiff. I am prepared to accept
    that the amount was spent. I ordered that the net recovery after costs under
    the Marinaccio settlement should be deducted from the plaintiff's loss in order
    that there not be double recovery. To deprive the plaintiff of the cost of the
    recovery under the Marinaccio settlement would deprive it of a portion of its
    loss. The net recovery of $819,589 is to be used with the result that the loss
    to be paid by Piro and Montaldi is $5,723,339.60. [Footnote omitted.]

[54]

I agree.  I would not give effect to this ground of appeal.

(6)

Did the motion judge err in awarding Enbridge compound interest?

[55]

For pre-judgment interest, the motion judge awarded Enbridge compound
    interest (at 4.3 per cent) compounded monthly.  Montaldi does not dispute the
    rate but submits that the motion judge erred in ordering compound interest.  He
    relies on s. 128(4)(b) of the
Courts of Justice Act
, R.S.O. 1990 c. C-43, which provides that pre-judgment interest shall
    not be awarded on interest accruing under this section. He also submits that unlike
    in
Bank of America v. Mutual Trust Co.,
2002 SCC
    43, [2002] 2 S.C.R. 601, a case the motion judge referenced in support of his
    discretion to award compound interest, there was no loan agreement specifically
    providing for compound interest between the parties.

[56]

At para. 17 of his supplementary endorsement, the motion judge
    explained why he awarded compound interest:

Courts of equity have always exercised the power
    to award compound interest whenever a wrongdoer deprives a company of money
    which it uses in its business. On general principles it should be presumed that
    had the business not been deprived of the money, it would have made the most
    beneficial use of it available to it. Alternatively, it should be presumed that
    the wrongdoer made the most beneficial use of it. [Internal citations omitted.]

[57]

I agree.  I would simply add that this court has consistently approved
    of the trial courts exercise of discretion to award compound interest for
    breach of fiduciary duty or breach of trust: see
Kooner v. Kooner
, 2006 CarswellOnt 5884 (C.A.), at para. 2;
Waxman v. Waxman
, 2008 ONCA 426, at para. 5; and
Brock v. Cole
(1983), 40 O.R. (2d) 97 (Ont. C.A.), at p. 103.

[58]

I would not give effect to this ground of appeal.

D.

conclusion

[59]

I would dismiss both Piros appeal and Montaldis appeal.  Enbridge is
    entitled to the costs of the appeal, which I would fix in the amount of
    $40,000, inclusive of disbursements and applicable taxes.

Released:
Oct. 1, 2012                                 John
    Laskin J.A.

JL                                                           I
    agree R.A. Blair J.A.

I
    agree M.F. Brown R.S.J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: Fairlie Insurance Agency Inc. v. Benesure
    Canada Inc., 2012 ONCA 677

DATE: 20121005

DOCKET: C55323

Laskin, Blair and Epstein JJ.A.

BETWEEN

Fairlie Insurance Agency Inc. and John Fairlie

Plaintiffs (Appellants)

and

Benesure Canada Inc. and John Lorriman

Defendants (Respondents)

Mark Wainberg, for the plaintiffs (appellants)

Paul Michell, for the defendants (respondents)

Heard: October 4, 2012

On appeal from the order of Justice Kenneth L. Campbell
    of the Superior Court of Justice, dated March 7, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Without deciding the issue, we are not able to say, given the decision
    of the British Columbia Court of Appeal in
Sun-Rype Products Ltd. v. Archer
    Daniels Midland Company
, 2008 BCCA 278 (CanLII), that it is plain and
    obvious a claim in equitable fraud cannot succeed. The appeal is therefore
    allowed, the order striking the plea of equitable fraud is set aside, and the
    defendants motion below is dismissed. The plaintiffs are entitled to amend
    their statement of claim if so advised.

[2]

The costs order below is varied by reducing the costs payable to the
    defendants to the sum of $3500 all inclusive. Costs of the appeal are fixed in
    the amount of $8000, in favour of the appellant, again inclusive of disbursements
    and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Farm
    Boy Inc. v. Mobius Corp., 2012 ONCA 692

DATE: 20121016

DOCKET: C53982

OConnor A.C.J.O and Goudge and Juriansz JJ.A.

BETWEEN

Farm Boy Inc.

Plaintiff (Appellant)

and

Mobius Corp. and 2030 10th Line Developments Inc.

Defendants (Respondents)

Benjamin Zarnett, Stephen Victor, Q.C., and Melanie
    Maia, for the appellant

Kenneth Prehogan, Hilary Book and Sandra L. McNeely, for the
    respondents

Heard: October 10, 2012

On appeal from the judgment of Justice J. Mackinnon of the
    Superior Court of Justice, dated June 7, 2011.

ENDORSEMENT

[1]

This is an appeal from the decision of the trial judge dismissing the
    appellants claim against the respondents. The appellant, a retail tenant in a
    shopping centre, claimed damages from the respondents, as landlord, for breach
    of contract by failing to provide an additional 12 parking spaces as required
    by the lease. The trial judge found the respondents breached the lease, but
    went on to conclude that the appellant had failed to show the respondents
    breach probably caused it to suffer a loss.

[2]

The trial judge properly set out the governing principles and reviewed
    the relevant evidence. The respondents were not obliged to provide the
    additional spaces in the section of the parking lot preferred by the
    appellant's customers.  The appellants evidence of customer complaints did not
    clearly relate to the entire parking lot as opposed to the preferred section.
    There was expert evidence that even at the peak periods observed, a large
    number of vacant parking spaces were available in the parking lot. In our view,
    it was open to the trial judge to find that the appellant had not shown that
    the breach caused it to suffer a loss and such a finding was consistent with a
    common sense approach to the evidence.

[3]

The appeal is dismissed.

[4]

The respondents cross appeal is dismissed as moot.

[5]

We grant leave to the appellant to appeal the costs order of the trial
    judge and allow that appeal. The trial judge concluded that the
    "considerable time spent at trial on the unsuccessful defence of the
    breach of contract issue" was offset by the weight of two offers to settle
    dated March 2009 and May 2010, neither of which was a Rule 49 offer. In our
    view, these offers do not support any such offset. The March 2009 offer was well
    before the picture at trial became clear and cannot play such a role. The May
    2010 offer contained no element of compromise and should not have been used to
    offset the trial time spent on the defence of the breach of contract issue. In
    these circumstances, we are of the view that the costs award should be set
    aside and it falls to us to determine an appropriate costs award for the trial.

[6]

We consider a fair and reasonable award of trial costs is in the amount
    of $200,000 in favour of the respondent, inclusive of disbursements and
    applicable taxes.

[7]

Considering the divided success in this court, we fix the costs of the
    appeal in favour of the respondents on a partial indemnity scale in the amount $30,000,
    inclusive of disbursements and applicable taxes.

D. OConnor A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
French
    v. Riley-French, 2012 ONCA 702

DATE: 20121019

DOCKET: C54859

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Todd Douglas French

Applicant (Appellant)

and

Christine Carol Riley-French

Respondent (Respondent in Appeal)

John F. Black, for the applicant (appellant)

Mark S. LaFrance, for the respondent

Heard and released orally:  October 11, 2012

On appeal from the orders of Justice Stanley Kershman of
    the Superior Court of Justice, dated December 14, 2011.

ENDORSEMENT

[1]

The trial judge granted the respondent custody of the three year old
    child of the marriage.  He granted the appellant access supervised by the
    Salvation Army.  The trial judge also made a five-year restraining order
    against the appellant concerning the respondent, the child and members of the
    respondents extended family.

[2]

The appellant, who was unrepresented at trial, argues that the trial
    judge erred in refusing to adjourn the trial to enable him to properly prepare,
    produce documents and obtain witnesses.  We see no error.

[3]

The trial judge gave careful consideration to the circumstances and to
    the submissions of the parties.  The underlying application had been commenced
    over 15 months before the trial date.  The trial date had been set two months
    earlier.  The best interests of the young child were at stake.  It was
    important to bring resolution to the ongoing disputes.  The trial judges
    decision to proceed was a proper exercise of his discretion.  This court should
    not interfere.

[4]

The appellant also argues that the trial judge erred in precluding him
    from calling his treating psychiatrist at trial.  The appellants request to
    call the doctor first arose after the trial had begun.  The trial judge
    correctly pointed out that the appellant had not complied with the requirements
    of the
Family Law Rules
for calling an expert witness.  Although he
    had given a copy of the doctors report to the respondent, he had not given a
    list of her qualifications or
curriculum vitae
.

[5]

That said, even if it would have been preferable for the trial judge to
    give the appellant some leeway in this regard, we are of the view that in the
    end the evidence of the doctor, which has been filed as fresh evidence on this
    appeal, would have made no difference to the trial judges orders.

[6]

The evidence that the respondent should have sole custody of the child
    was overwhelming.  The child had been in her custody since birth, had strong
    ties to her and virtually no emotional ties to the appellant.  Attempts at
    supervised access by the appellant had failed completely.

[7]

The trial judges decision to award the appellant supervised access was
    a wise one.  The Salvation Army reports describing visits since the trial
    indicate that the relationship between the appellant and the child were very
    strained at first, but have gradually strengthened over the course of time.

[8]

At some point it may be that an application to vary the access will be
    appropriate.  On such an application, a court can consider the childs best
    interests in light of the experiences of the access visits and the appellants
    current circumstances.

[9]

Finally, we note that in making the restraining order, the trial judge
    based his decision on the numerous occasions of domestic violence.  The
    evidence that the appellant had been violent to the respondent and her family
    in the past was clear and convincing.

[10]

In
    the result, the appeal is dismissed.  We fix costs in the amount of $10,000,
    inclusive of all disbursements and applicable taxes.

Dennis OConnor
    A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Georgian
    Bluffs (Township) v. Moyer, 2012 ONCA 700

DATE: 20121017

DOCKET: C53734

Sharpe, Gillese and Watt JJ.A.

BETWEEN

The Corporation of the Township of Georgian
    Bluffs

Plaintiff (Respondent)

and

James Moyer

Defendant (Appellant)

M. Paul Downs and Paula Downs, for the appellant

R. H. Thomson, for the respondent

Heard: October 5, 2012

On appeal from the judgment of Justice R.M. Thompson of
    the Superior Court of Justice, dated April, 19, 2011.

BY THE
    COURT:

[1]

The appellant owns a rural, 100-acre property located in the respondent
    Township. He inherited the property from his father, along with his fathers
    habit of storing a large volume of discarded vehicles, equipment, construction
    material and other items on the property. Some of this material was dispersed
    over a municipal road allowance adjacent to the appellants property.

[2]

The respondent Township decided to take action to eliminate what it
    regarded as a nuisance and eyesore. Its representatives entered onto the road
    allowance and a portion of the appellants property and removed chattels, including
    vehicles and other objects from the road allowance as well as some chattels,
    namely discarded wooden pallets, from the appellants property. The Township
    added to the appellants property tax bill the cost of removal and clean-up of
    the road allowance and commenced this action claiming,
inter alia
, an
    order requiring the appellant to remove all the wrecked, discarded and
    abandoned vehicles and other objects and debris from his property. The
    appellant defended that claim and counterclaimed for damages for trespass and
    conversion, punitive damages, and an order removing from his tax bill the cost
    of the removal and clean-up related to the road allowance.

[3]

The trial judge dismissed the Townships claim for an order requiring
    the appellant to clean up his entire property. He found that the appellant had
    established that his use of the property qualified as a legal non-conforming
    use with respect to the bylaw provisions relied on by the Township. The trial
    judge also found that the Township was not entitled to add the road allowance
    clean-up costs to the appellants property tax bill. The trial judge found that
    the Township had trespassed upon the appellants property and removed chattels
    belonging to the appellant but he rejected the claim in conversion on the
    ground that the appellant had failed to establish that the chattels removed had
    any value. The trial judge also rejected the appellants claim for punitive
    damages.

[4]

As a remedy for the trespass committed by the Township, the trial judge
    fashioned what he described as an equitable resolution. He ordered that the
    appellant be entitled to retrieve three vehicles that had been towed from the
    road allowance without any storage or towing charges and that he not be
    required to compensate the Township for the cost of its clean-up of the road
    allowance.

[5]

In a subsequent endorsement dealing with costs, the trial judge
    concluded that the litigation never should have occurred and that each party
    should bear its own costs of the action.

ISSUES

[6]

The appellant raises several grounds of appeal asking us to award
    damages for conversion, damages for trespass, and punitive damages, and to
    grant leave to appeal costs and award him costs of the action.

ANALYSIS

(1)

Conversion

[7]

The trial judge dismissed the claim for damages for conversion on the
    basis that the chattels that he found had been removed from the appellants
    property  namely, wooden pallets  were worthless.

[8]

In our view, there is no basis for us to interfere with the trial
    judges finding as to the value of the pallets. There was evidence to support
    that finding. The appellant had collected the pallets from factories as they
    were no longer usable and could not be repaired. He had paid nothing for the
    pallets and he made no effort to resell them.

[9]

While the appellant argues other items were removed from his property,
    there is no finding to support his contention that those items were removed
    from his property rather than the road allowance. Moreover, there was no
    credible evidence provided by the appellant as to the value of the chattels he
    says were removed from his property.

[10]

We
    do not agree that the circumstances of this case fall within the principle
    identified in
Lamb v. Kincaid
(1907), 38 S.C.R. 516, that a wrongdoer
    cannot escape or limit liability by destroying the evidence needed to ascertain
    the value of converted goods. The removal and destruction of the pallets by the
    Township did not preclude an assessment of their value as there was evidence
    from which the trial judge could fairly conclude that the converted property
    had no value.

[11]

However,
    the Township did remove and destroy property belonging to the appellant and we
    agree with the submission that although the property had no market value, the
    appellant is entitled to an award of nominal damages for the Townships
    wrongful act of conversion. Subject to what we say below with respect to costs,
    as a practical matter, we consider that nominal award to be subsumed in the
    set-off of damages against towing, storage and clean-up costs discussed under
    the next heading.

(2)

Trespass

[12]

The
    appellant argues that although the trial judge held that the Township
    trespassed upon his property and that he was entitled to damages on account of
    that trespass, the trial judge failed to award any damages.

[13]

We
    disagree. The trial judge found that the trespass was not minimal but on the
    other hand, not grossly intrusive and that the physical damage associated
    with it was negligible.

[14]

It
    is undisputed that the appellant was liable for the cost of removing objects
    and cleaning up the road allowance. In addition, the judgment allowed the
    appellant to retrieve vehicles the Township rightfully removed without towing
    or storage charges. In effect, the judgment set off the clean-up, towing and
    storage charges against the damages for trespass.

[15]

In
    our view, it was open to the trial judge to fashion a remedy along those lines.
    Although the Township had not claimed the clean-up costs in the action, those
    costs were clearly in issue at the trial as they related to to the dispute
    about adding the costs to the appellants property tax bill. We recognize that
    there may have been an issue as to whether the Townships action in adding the
    costs to the appellants tax bill protected the claim from being barred by the
    running of the limitation period. However, even if the appellant had a possible
    defence to the claim, there was on the record a legal obligation from which he
    was released. We are not persuaded that the trial judge erred in finding that
    the release of that claim, combined with the release from towing and storage
    charges for the three vehicles, was adequate compensation for the Townships
    infringement of the appellants property rights.

(3)

Punitive Damages

[16]

The
    findings of the trial judge do not justify an award for punitive damages. He
    expressly refused to find that the Townships conduct was malicious,
    high-handed, arbitrary, oppressive, deliberate or callous. On the contrary, he
    found that the trespass occurred through incompetence and a failure to
    understand the limits of the Townships authority. The trial judge concluded
    that although the trespass was not minimal neither was it grossly intrusive and
    the resulting physical damage was negligible.

[17]

These
    findings were open to the trial judge and we see no basis to interfere with his
    conclusion that the conduct of the Township did not rise to level warranting
    the sanction of punitive damages.

(4)

Costs

[18]

In
    his costs endorsement, the trial judge found:

This action should never have occurred. It was caused by an incompetent
    employee of the Township who simply did not know what his job was or the
    limitations to his legal powers, coupled with the stubbornness of a citizen who
    did not like government authority.

[19]

We
    see no reason to disagree with that assessment. However, we disagree with its
    implications with respect to costs.

[20]

The
    action that should have never occurred was an action brought by the Township.
    The appellant successfully defended himself against the most significant
    element of the claim advanced by the Township  namely, an order that he remove
    all objectionable items from his 100-acre property. The appellant also
    succeeded in having the clean-up costs struck from his property tax bill, in
    establishing that the Township had trespassed upon his property, and, as we
    have found, in establishing that the Township had converted chattels he owned.
    In other words, the appellant was successful on every substantive issue raised
    in the litigation and it was only his counter-claim for damages that met with
    limited success.

[21]

In
    the light of the overall success achieved by the appellant with respect to the
    illegality of the Townships actions, the trial judge erred in principle by
    denying him costs. In
Northwood Mortgage Ltd. v. Gensol Solutions Inc.
(2005), 3 B.L.R. (4th) 322 (Ont. C.A.), at para. 6, this court stated that an
    order depriving a successful party of costs is exceptional. This case does not
    present a compelling reason to depart from the usual rule.

[22]

The
    appellant submitted a bill of costs for the claim and counterclaim in the
    amount of $93,862.13 on a substantial indemnity basis and $72,413.63 on a
    partial indemnity basis and disbursements of $2312.77. Those amounts must be
    reduced to take into account the fact that substantial portions of the
    counterclaim were unsuccessful.

[23]

We
    do not agree that this is a case for substantial indemnity costs. While offers
    to settle were submitted by the appellant, it is not possible to say that the
    result he achieved was superior to the terms of those offers. Nor do we
    consider the conduct of the Township to be such as to call for a substantial
    indemnity award for reasons similar to those outlined above with respect to
    punitive damages.

[24]

In
    our view, taking all the circumstances to account, an award of $50,000 and $2312.77
    for disbursements, inclusive of taxes, is appropriate.

DISPOSITION

[25]

Leave
    to appeal costs is granted and the appellant is awarded his costs of the trial
    in the amount of $52,312.77, inclusive of taxes and disbursements.  The appeal
    is otherwise dismissed. The appellant is also entitled to costs of the appeal
    fixed in the amount of $15,000 plus $4047.73 for disbursements, both figures inclusive of taxes.

Robert J. Sharpe

E.E. Gillese J.A.

David Watt J.A.

Released:
October 17, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Hammond v. State
    Farm Automobile Insurance Company,

2012 ONCA 704

DATE: 20121019

DOCKET: C55047

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Kiera Hammond

Plaintiff/Appellant

and

State Farm Mutual Automobile Insurance Company

Defendant/Respondent

William G. Scott, for the plaintiff/appellant

Paul Pape, for the defendant/respondent

Heard and released orally: October 12, 2012

On appeal from the judgment of Justice A.C.R. Whitten of
    the Superior Court of Justice, dated January 23, 2012.

ENDORSEMENT

[1]

This matter arose on a summary judgment motion. The appellant does not
    dispute the respondent's assertion that the parties asked the motion judge to
    make the necessary findings of fact. We proceed on the basis that the appropriate
    standard of review is palpable and overriding error with respect to the motion
    judges findings of fact.

[2]

The motion judge dismissed the appellants claim on the basis that it
    was statute barred by a limitation period. The appellant commenced an action on
    August 17, 2007, claiming non-earner benefits under the Statutory Accident Benefits
    Schedule. The accident occurred on May 31, 1997. The motion judge found that
    the respondent insurer had denied the benefits on October 22, 2003.

[3]

Section 281.1 of the
Insurance Act
requires that a court
    proceeding be commenced within two years after the insurers refusal to pay the
    benefits claimed, and despite this within 90 days after the failure of
    mediation. Mediation in this case failed on June 29, 2004. The motion judge
    found the action was statute barred because the court proceeding was commenced
    some four years after the insurers refusal and some three years after the
    failure of mediation.

[4]

The appellant submits that the limitation period in s. 281.1(1) of the
Insurance
    Act
has not begun to run because the insurer has not complied with s. 49
    of the SABS which requires the insurer, when giving notice of its refusal to
    provide benefits, to inform the claimant of the procedure for resolving
    disputes relating to benefits. The information required to be included is set
    out in the OCF-9 form.

[5]

The motion judge found that the insurer's letter dated October 22, 2003,
    admittedly received by the appellant's lawyer, included the OCF-9 form. We
    agree with respondent's counsel that the motion judge did not accept the
    affidavit filed by the appellant's then lawyer, because it baldly denied
    receipt of the OCF 9 form, on the basis that it had not been scanned by the law
    firms' staff. The motion judge also relied on the appellant's application for
    mediation and the evidence filed by the insurer in concluding proper notice was
    given. While the motion judge did go on to misunderstand some correspondence
    between the parties, we are of the view it did not animate his decision.

[6]

The motion judges conclusion was well supported by the evidence. This
    ground of appeal fails.

[7]

The appellant accepts that notice to her lawyer constituted notice to the appellant.

[8]

In the result, the appeal is dismissed with costs to the respondent
    fixed in the amount of $6,000 all inclusive.

D. OConnor A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Husid v. Daviau, 2012
    ONCA 655

DATE: 20121002

DOCKET: C55015

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Uri Landman Husid

Applicant (Appellant)

and

Hélène Marie Thérèse Daviau

Respondent
    (Respondent on Appeal)

Jeffery Wilson and Joanna Harris, for the applicant
    (appellant)

Phyllis Brodkin and Serena Lein, for the respondent
    (respondent on appeal)

Heard: August 22-23, 2012

On appeal from the judgment of Justice Craig Perkins of
    the Superior Court of Justice, dated January 23, 2012.

Ducharme
    J.A.:

[1]

The sole issue on this appeal is whether the trial judge erred in
    permitting a claim for custody of a six-year-old girl to proceed in Ontario
    rather than ordering the childs return to Lima, Peru.
[1]

[2]

The mother wrongfully removed the child from Peru and the father sought
    an order for her return pursuant to Article 12 of the Hague

Convention on the Civil
    Aspects of International Child Abduction
, Can. T.S. 1983 No. 35 (the
    Convention). The trial judge relied on the grave risk exception to the
    return requirement set out in Article 13(b) to deny the fathers request.

[3]

The father appeals this decision.

[4]

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

Background

[5]

The child was born in Peru to a Peruvian father and a Canadian mother. The
    child was resident in Peru until the mother brought her to Ontario 16 months
    before the trial. The mother and father were involved in litigation in Peru relating to custody and access and the mother brought the child to Ontario under an order permitting
    her to travel to Canada for a visit. The order required the mother to return to
    Peru. Instead, she wrongfully remained in Canada with the child. The father
    brought an application under the Convention seeking the childs return.

[6]

At trial, the mother invoked Article 13(b) of the Convention to argue
    that the child should not be ordered to return to Peru since there is a grave
    risk that his or her return would expose the child to physical or psychological
    harm or otherwise place the child in an intolerable situation.

[7]

The father denied any such risk and further contended that the courts
    and authorities of Peru could adequately deal with any risk should it be found
    to exist.

[8]

The trial judge dismissed the fathers application for the childs
    return to Peru on the basis that the mother had met the burden under Article
    13(b).  It was further ordered that the mother could proceed in Ontario with her claim for custody and access.

[9]

The father raises five main grounds of appeal: he argues that the trial
    judge (i) misapprehended evidence, relied upon inadmissible evidence and made
    findings of fact unsupported by the evidence; (ii) erred in his application of
    the statutory test in Article 13(b) to the facts as found; (iii) erred in
    principle by conducting an assessment of another member states capacity to
    protect a child; (iv) erred in failing to invoke the protocol created to enable
    interstate dialogue that is intended to ensure and facilitate protection upon a
    childs return; and (v) erred in dismissing the arguments of estoppel and abuse
    of process.

FACTS

[10]

Both the
    father and the mother are in their forties. The father was born and raised in Lima, Peru, though some of his studies were done in the U.S. He holds a senior position in
    a family business that imports and sells automotive parts. The mother was born
    and raised in Canada and is a computer software specialist.

[11]

The
    parties met on vacation in Jamaica in 1999. They dated for some time, meeting
    in both Miami and Lima, and were married in 2003. The mother moved to Lima, acquired some proficiency in Spanish, and after some time began to resume her work.

[12]

The
    couples only child was born in 2006. The marriage was unhappy and, according
    to the mother, increasingly abusive. The couple separated in September 2008 and
    began court proceedings in Peru on the issues of custody and access. The mother
    continued to live in Lima with the daughter. The father had regular access
    until November 2009, when the mother moved with the child to Cuzco, Peru.

[13]

Two months
    later, the mother returned with the child to Lima under court order. In late
    January 2010, physical confrontations between the mother and father and between
    the mother and paternal grandmother occurred. The child witnessed both events
    and police were called on both occasions.

[14]

The mother
    obtained an order permitting her to travel with the child to visit family in Canada from September to November 2010. As the trial judge acknowledged at paras. 37 and
    41, the reasons the mother presented to the Peruvian court for wanting to travel
    with the child, did gild the lily or even misrepresent her intentions.  She
    and the child never returned and have been living in Toronto with the maternal
    grandparents ever since. The father has had a few supervised visits since the
    move.

[15]

The child
    is currently enrolled in school in Toronto and it is not disputed that she is
    doing well.

THE LAW

[16]

Both Canada and Peru are signatories to the Convention, which has been incorporated into Ontario domestic law as a schedule to s. 46 of the
Childrens Law Reform Act
,
R.S.O.
    1990, c. C.12.

[17]

The
    underlying purpose of the Convention, as set out in its preamble, is to protect
    children from the harmful effects of their wrongful removal or retention and to
    establish procedures to ensure their prompt return to the state of their
    habitual residence.

[18]

Once it
    has been determined that a child was wrongfully removed under the terms of the
    Convention, Article 12 mandates the return of the child forthwith:

Where a child has been wrongfully removed or retained
    in terms of Article 3 and, at the date of commencement of the proceedings
    before the judicial or administrative authority of the Contracting State where
    the child is, a period of less than one year has elapsed from the date of the
    wrongful removal or retention, the authority concerned shall order the return
    of the child forthwith.

[19]

Exceptions
    to this mandate are created by Articles 12, 13 and 20. It is the exception articulated
    in Article 13(b) that was invoked in this case by the mother and that was
    accepted by the trial judge:

Despite the provisions of the preceding Article, the
    judicial or administrative authority of the requested State is not bound to
    order the return of the child if the person, institution or other body which
    opposes its return establishes that:

(b) there is a grave risk that his or her return
    would expose the child to physical or psychological harm or otherwise place the
    child in an intolerable situation.

[20]

In this
    way, the onus is on the person opposing the return of the child to establish a grave
    risk of harm or exposure of the child to an intolerable situation. In
Thomson
    v. Thomson
, [1994] 3 S.C.R. 551, La Forest J., writing for the majority of
    the Supreme Court of Canada, interpreted Article 13(b) as follows, at p. 596:

[A]lthough the word
    "grave" modifies "risk" and not "harm", this must
    be read in conjunction with the clause "
or otherwise
place the
    child in an intolerable situation". The use of the word
    "otherwise" points inescapably to the conclusion that the physical or
    psychological harm contemplated by the first clause of Article 13(b) is harm to
    a degree that also amounts to an intolerable situation. [Emphasis in original.]

[21]

Justice La Forest went on to endorse the following approach set out by Nourse L.J. in
Re A
    (A Minor) (Abduction)
,
[1988] 1 F.L.R.
    365 (C.A.), at p. 372:

[T]he risk has to be more than an ordinary risk, or something
    greater than would normally be expected on taking a child away from one parent
    and passing him to another. I agree ... that not only must the risk be a weighty
    one, but that it must be one of substantial, and not trivial, psychological
    harm.

[22]

To this,
    the Supreme Court added that the risk contemplated by the Convention need not
    come from a cause related to the return of the child to the other parent, as
    opposed to merely from the removal of the child from his or her  present
    caregiver (at p. 597). In other words, from a child-centred perspective, harm
    is harm. If the harm meets the stringent test of the Convention, its source is
    irrelevant.

[23]

In
Pollastro
    v. Pollastro

(1999),
43 O.R. (3d) 485, at p. 496, this court developed upon the
    harm is harm direction to hold that Article 13(b) is available to resist a
    childs return when the reason for the childs removal is violence directed
    primarily at the parent who removed the child: returning a child to a violent
    environment places that child in an
inherently
intolerable situation, as well
    as exposing him or her to a serious risk of psychological and physical harm
    (emphasis in original).

DECISION BELOW

[24]

The trial
    judges reasons follow the interpretative framework for Article 13(b) set out
    by the Supreme Court of Canada in
Thomson
, and review in considerable
    detail the findings of fact to which that framework must be applied in this
    case.

[25]

The evidence
    at trial included oral testimony and documentary evidence. Some of the
    documentary evidence came from the proceedings in Peru, including some of the
    pleadings, evidence of the parties and other witnesses, expert psychological
    and medical reports, as well as some of the findings and orders of the Peruvian
    courts.

[26]

The
    mother, her sister-in-law, the childs nanny and the mothers Peruvian lawyer
    all testified on the mothers behalf. The father and his mother testified for
    him.

[27]

The trial
    judge found on the evidence that the family home before the separation was a
    place of unhappiness, oppression and abuse for the mother at the hands of the
    father for many months, with the child there to witness and experience it (at
    para. 52).

[28]

After
    reviewing the multiple proceedings in the Peruvian courts as well as the evidence
    presented before him at trial, the trial judge concluded, at para. 115, that
    the mother presented sufficient evidence that the childs return to Peru would expose her to a grave risk of being in an intolerable situation. The child would
    be in constant fear that the mother would be accosted, at grave risk of being
    wrongfully taken using physical force by the fathers family, and at grave risk
    of psychological harm from the continuation of the domestic conflict, some of which
    harm was already reported by the psychologists in the Peruvian justice system.

[29]

In
    addition, the trial judge found that the return of the child risked the
    mothers arrest in Peru, suddenly removing the child from the care of the
    person with whom she had been living for approximately two years (at para.
    116).

[30]

On the
    evidence as a whole, the trial judge concluded that Article 13(b) was engaged.
    After rejecting the fathers allegations of abuse of process and forum
    shopping, the trial judge dismissed the fathers application for an order
    requiring the return of the child to Peru, thus permitting the mothers custody
    claim to proceed in Ontario.

ANALYSIS

[31]

In my
    view, the trial judge identified and applied the correct legal test to invoke
    Article 13(b), namely, the test set out by the Supreme Court of Canada in
Thomson
.
    This is notwithstanding what was in my view an extraneous reference at para.
    103 of his reasons to a recent and more humane standard.

[32]

I also
    find no error in principle in the trial judges approach to assessing the
    evidence: there is no absolute requirement for interstate dialogue under the
    Convention, nor did the trial judge inappropriately or unfairly assess the
    Peruvian justice system in his analysis. The trial judge properly focused on
    the facts of this particular case, paid due respect to the laws of Peru, and honoured Canadas full commitment to the Convention.

[33]

A
    determination of whether Article 13(b) applies to any given case requires a
    global assessment of all the available evidence. As such, it should not be
    disturbed absent a palpable and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[34]

In this case, the trial judge carefully considered copious
    evidence, both oral and written. His decision is thus entitled to considerable
    deference.

[35]

The
    evidence in this case easily supports the findings of fact made by the trial
    judge, as well as his conclusion that the childs return would pose a grave
    risk of harm to her or otherwise place her in an intolerable situation.

[36]

Factual
    findings that support the trial judges conclusion include the following:

1.

In the context of altercations with the mother, the father on more than
    one occasion touched the pouch in which he regularly carried a handgun, while
    saying that Peru was a corrupt country and you never know what can happen,
    that the mother should watch her back, or that [i]f [the child] isnt with
    me, she wont be with anybody (at paras. 49, 69);

2.

The fathers cousin threatened the mother when she was out shopping,
    telling her she was going to die and that he had met people in jail who would
    do it and it would only take 20 soles (at para. 50);

3.

On an occasion when the mother went to pick up the child, the father
    used physical force on the mother, resulting in contusions on both of her upper
    limbs and a bandaged left arm in a sling, as reported in a legal medical
    certificate issued at the time (at para. 66);

4.

In a physical altercation between the paternal grandmother and the
    mother involving the child, the paternal grandmother bit the mother and the
    child (at para. 68);

5.

In an altercation revolving around the child and involving the mother,
    the grandmother and the father, the father tried to physically take the child
    from the mother despite police presence (at para. 69);

6.

The child was assessed by a court psychologist who found that she was
    affected by the violence in the family unit (at para. 73) and the father did
    not present any reports or assessments to the contrary (at para. 31).

[37]

These
    factual findings were available to the trial judge on the evidence before him
    and support his ultimate determination. While the father raised on appeal the
    possibility that the trial judge may not have precisely captured all the
    details of the events described, there is no suggestion that the substance of
    his findings was not supported by the evidence. These findings paint the
    picture of a violent family dynamic, a dynamic capable of supporting the trial
    judges conclusion that there is a grave risk the childs return would expose
    her to physical or psychological harm or otherwise place the child in an
    intolerable situation.

[38]

I see no
    reason to interfere with the trial judges conclusion that the onus under
    Article 13(b) is met such that the child should not be returned to Peru.

[39]

The father
    raised, but did not strongly press, two additional grounds of appeal, those
    based upon estoppel and abuse of process. I note them here only to dismiss them
    as entirely without merit. There is nothing in this record to indicate that
    either party induced or sought to induce the other party to act to his or her
    prejudice. Moreover, they joined issue on what the trial judge should decide,
    they consented to the form of the trial and they were both afforded the right
    to call all the evidence they sought to present to cast their position in the
    best possible light. In this case, there is nothing, nothing at all, to suggest
    that estoppel applied or that the trial was somehow an abuse of the courts
    process.

CoSts

[40]

The father
    submits on the basis of Article 26 of the Convention that the trial judge had
    no jurisdiction to award costs of the trial against him. I disagree. The
    limitation on imposing charges articulated in Article 26 applies to
Central Authorities and other public services of
    Contracting States. Subsection 46(4) of the
Childrens Law Reform
    Act
defines the Central Authority for Ontario
    as the Ministry of the Attorney General.  The
courts are not captured by this limitation
    and it was open to the trial judge to rely on subrule 24(1) of the
Family
    Law Rules
,

O. Reg. 114/99, which presumptively entitles the
    successful party to costs, where appropriate.  Furthermore, while sections
    59 and 60 of the
Childrens Law Reform Act
, which concern the
    disposition of property, are explicitly exempted from the list of cases and
    courts to which the rules apply in subrule 1(2) of the
Family Law Rules
,
    section 46, namely the section that incorporates the convention, is not.

[41]

Counsel
    agreed on the quantum of costs on the appeal. Costs of the appeal are to be
    paid by the appellant father in the all-inclusive amount of $15,000.

RELEASED:
October 2, 2012  KF

E.
    Ducharme J.A.

I
    agree K. Feldman J.A.

I
    agree Robert J. Sharpe J.A.

[1]
The trial judge in this case refers to Perkins J. of the
    Superior Court of Justice. This application was initially heard and dismissed
    at first instance by Brownstone J. of the Ontario Court of Justice on May 27,
    2011. However, Brownstone J.s decision was appealed to the Superior Court of
    Justice and the parties consented to that court allowing the appeal. The
    parties then further consented to a new hearing of the application before the
    Superior Court of Justice. Perkins J. of the Superior Court of Justice heard
    the application and dismissed it. This is the appeal from that order.


COURT OF APPEAL FOR ONTARIO

CITATION:
Kendrick v. Martin, 2012
    ONCA 711

DATE: 20121024

DOCKET: C54655

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Harold Winston Kendrick and Fran Van der Heide

Plaintiffs (Respondents)

and

Elvin B. Martin and Gail Veitch

Defendants (Appellants)

John D. Goudy, for the appellants

John Gilbert and Ross McLean, for the respondents

Heard: October 11, 2012

On appeal from the judgment of Justice A.D.K. MacKenzie
    of the Superior Court of Justice, dated October 24, 2011.

Goudge
    J.A.:

[1]

The appellants are the owners of a fifty-acre parcel of land in Bruce
    County that is near but does not abut Chesley Lake. The conveyance by which
    they acquired the property granted a registered right of way over lands owned
    in trust by the respondents. This easement ran from the appellants property
    across the respondents property to the edge of Chesley Lake.

[2]

The bed of Chesley Lake is Crown land and is controlled by the local
    Conservation Authority. After obtaining the necessary permit from the
    Conservation Authority, the appellants built a pole dock on the bed of Chesley
    Lake at the waters edge where the right of way ends. A set of retractable
    steps is attached to the inner end of the dock. It is not attached to the land
    but can be lowered to the shore to permit access from the right of way.

[3]

The respondents commenced this action against the appellants, raising a
    number of issues that divided the parties. By the time of trial, all but one
    had been settled. That issue was the scope of the right of way granted to the
    appellants in the instrument that conveyed the property to them, particularly
    as it relates to their use of the pole dock. The respondents took the position
    that this use was beyond the scope of the right of way.

[4]

The trial judge agreed with the respondents. He issued an order
    restraining the appellants from using the pole dock and a declaration that
    their use of the right of way did not include access from the shoreline to the
    pole dock, but was limited to the particular purpose of providing access to
    Chesley Lake for persons, animals and vehicles.

[5]

The trial judge found no facts to be relevant to his interpretation of
    the words in the conveyance by which the right of way was created. He found the
    words themselves to be determining: Together with a right of way for persons,
    animals and vehicles over the respondents lands.

[6]

First, the trial judge found that these words in their ordinary meaning
    created a right of way for a particular purpose, not a general right of way:

These words in their ordinary meaning intend the use of the
    right of way to be for a particular purpose, i.e. access to Chesley Lake for
    persons, animals and vehicles: i.e. in the broadest sense, a right of way for
    agricultural purposes.

The specifically or particularity of the purpose stipulate in
    the words of the grant prevents the right of way in the Easement from being
    interpreted as a general right of way: the words are unambiguous.

[7]

Second, the trial judge then concluded that the appellants use of the
    right of way to access the pole dock is ...an excessive and overburdening use
    by them of the right of way and easement. He found that the easement does not
    include access to the pole dock to the shoreline.

[8]

The appellants argue that the trial judge erred in reaching both these
    conclusions.

[9]

I agree.

[10]

The
    trial judge relies entirely on the wording of the grant of easement in
    determining its meaning. His conclusion that the words intended a particular
    use, namely for agricultural purposes in the broadest sense, thus is reviewable
    on a standard of correctness. See
The Plan Group v. Bell Canada
,
    [2009] 96 O.R. (3d) 81 (Ont. C.A.).

[11]

In
    my view, the words of the grant of easement are not confined to a particular
    use as the trial judge suggested. Indeed the respondents concede that the right
    of way is not confined to agricultural use. The grant is of a right of way that
    is unlimited by words confining the use that persons entitled to use it may make
    of it. The general use thus provided is made available to persons and animals
    and vehicles. The latter speaks not to the use, but to the users.

[12]

Moreover,
    I cannot agree that accessing the pole dock from the shoreline where the right
    of way ends constitutes an overburdening use of that right of way. What the
    user does immediately after leaving the right of way cannot be said to affect
    the use made of the right of way at all. Accessing the dock does not extend the
    right of way beyond the shoreline. This is so regardless of the proper
    interpretation of the use provided by the grant of right of way.

[13]

In
    the result, I would allow the appeal, set aside paragraphs one, two and three
    of the order below and substitute an order dismissing the respondents claims for
    this relief. While I would not alter the costs order at trial, I would allow
    the appellants partial indemnity costs of the appeal, fixed at $10,000 in
    total.

Released: October 24, 2012 (D.OC.)

S.T. Goudge J.A.

I agree. D. OConnor
    A.C.J.O.

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


COURT OF APPEAL FOR ONTARIO

CITATION:
Michaud v. Coreslab
    Structures (Ont) Inc., 2012 ONCA 663

DATE: 20121002

DOCKET: C55048

Laskin, Blair and Epstein JJ.A.

BETWEEN

Kenneth Michaud

Applicant (Respondent)

and

Coreslab Structures (Ont) Inc.

Respondent (Appellant)

Raong Phalavong, for the appellant

Bradley Chaplick, for the respondent

Heard: October 1, 2012

On appeal from the judgment of Justice Guy P. DiTomaso of
    the Superior Court of Justice, dated January 13, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The application judge exercised his discretion reasonably in denying an
    adjournment and deciding the application on the merits.  On the record before
    him, the application judge did not err in granting the declaration.  The costs
    award in favour of Mr. Michaud as trustee was proper.

[2]

Accordingly, the appeal is dismissed with costs fixed at $7,500,
    inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Mounted
    Police Association of Ontario v. Canada (Attorney General) 2012 ONCA 688

DATE: 20121012

DOCKET: C50475

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Mounted Police Association of Ontario/Association
    de la Police Montée de l´Ontario and B.C. Mounted Police Professional
    Association on their own behalf and on behalf of all Members of the Royal
    Canadian Mounted Police

Applicants
    (Respondents/

Appellants by way of cross-appeal)

and

The Attorney General of Canada

Respondent (Appellant/

Respondent by way of
    cross-appeal)

Kathryn Hucal and Susan Keenan, for the
    appellant/cross-respondent

Laura Young, for the respondents/cross-appellants

Ian Roland and Michael Fenrick, for the intervener the
    Canadian Police Association

Kelly Henriques and John Craig, for the intervener the
    Mounted Police Members´ Legal Fund

James R.K. Duggan, for the intervener
    L´Association des Membres de la Police Mont
é
e du Québec

Heard: November 22, 2011

On appeal from the judgment of Justice Ian A. MacDonnell
    of the Superior Court of Justice dated April 6, 2009, with reasons reported at
    (2009), 96 O.R. (3d) 20.

COSTS ENDORSEMENT

[1]

On June 1, 2012, the court rendered its decision in this appeal. The appellant
    was successful on all issues and the parties made written submissions on the
    costs of the application and the appeal.

[2]

The respondents submit that the court should use its discretion to
    depart from the usual costs rule on grounds that the respondents were public
    interest litigants. They argue that the proceedings involved issues of public
    importance that go beyond the interests of the parties. The respondents ask the
    court to maintain the application judge´s order granting them costs fixed at $300,000
    and to award them additional costs in the amount of $72,942.45 for the appeal.
    In the alternative, they submit that no costs award be made.

[3]

As the successful party, the appellant submits that we should apply the
    usual costs rule, namely that costs follow the event. The appellant argues that
    the respondents challenged various provisions of legislation all of which
    related specifically to the employment of RCMP officers. The appellant requests
    that costs
for the application and the appeal
be fixed in
    the amount of $408,785.75.

[4]

No doubt the context of the appeal involved the legislative framework
    regulating the employment of RCMP members and the respondents had a direct stake
    in the outcome of the litigation. However, the heart of the appeal related to the
    scope and application of s. 2(d) of the
Charter of Rights and Freedoms
. The appeal raised issues
of broad
    public interest that were not directly addressed in previous cases. Moreover,
    there was a significant development in the jurisprudence after the application
    was decided. The Supreme Court´s decision in
Ontario (Attorney General) v.
    Fraser
, 2011 SCC 20, [2011] 2 S.C.R. 3, was released while this appeal was
    pending. When the respondents commenced their application and responded to the
    appeal, their position would have appeared much stronger according to the existing
    jurisprudence. This is certainly not a case in which a cost award could be
    justified as a deterrent against bringing meritless claims.

[5]

On the other hand, there is no rationale for awarding costs in favour of
    unsuccessful public interest litigants. Accordingly, the application judge´s costs
    award is set aside and there will be no costs of the appeal.

D. Doherty J.A.

M. Rosenberg J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Oak
    Incentives Group Inc. v. Toronto-Dominion Bank,
2012 ONCA 726

DATE: 20121030

DOCKET: C53952

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Oak Incentives Group Inc.

Plaintiff/Respondent

and

The Toronto Dominion Bank

Defendant/Appellant

Martin Greenglass, for the appellant

Robert G. Tanner, for the respondent

Heard: October 24, 2012

On appeal from the judgment of Justice Susan E. Greer of
    the Superior Court of Justice, dated June 9, 2011.

ENDORSEMENT

[1]

We agree with the appellant that the trial judge made some factual
    errors. We are also of the view that some of her comments about the banking
    system may not have been supportable on the record. However, there was a clear
    basis for liability in this case based upon the agreed statement of facts and
    the evidence of Mr. Christie, which the trial judge accepted. This court will
    only order a new trial if errors have resulted in a substantial wrong or
    miscarriage of justice within the meaning of s. 134(6) of the
Courts of
    Justice Act
. In our view, there was no substantial wrong or miscarriage of
    justice.

[2]

This case turned on the particular facts: the information that Mr.
    Christie conveyed to the appellants employees and the answers that were given
    by the employees, especially Ms. Spencer, in light of the specific inquiry made
    by Mr. Christie. The trial judge recognized that ordinarily the relationship
    between a customer and its bank is one of debtor and creditor. She was entitled
    to find, in this case, however, that there was a special relationship that took
    the case out of the normal context of debtor and creditor and that the
    appellant owed the respondent a duty of care. Contrary to the appellants
    submissions, she did not base her findings of liability on a fiduciary
    relationship.

[3]

The appellant was aware that this was an unusual transaction for the
    respondent. The representative of the respondent made specific inquiries of the
    appellants employees. He was misled by the information provided by the
    employee into believing that it was safe for him to advance the funds to Sony.
    It was open to the trial judge to find that the employee breached the standard
    of care; that the employee did not act reasonably given the information she had
    been provided and the evident reliance the respondent placed on that
    information. Since this case did not turn on broad issues of banking practice
    but rather depended upon the particular and unusual factual matrix, expert
    evidence was not required.

[4]

While contributory negligence was pleaded it was not argued at trial. We
    would not permit the appellant to raise the issue for the first time on appeal.

[5]

The trial judge was entitled to order that post-judgment interest on the
    costs would run from the date of her decision. This holding accords with s. 129
    of the
Courts of Justice Act
and
United States v. Yemec
(2007), 85 O.R. (3d) 751 (Div. Ct.). The fact that the trial judge ordered the
    appellant to pay the costs within 30 days of the Order, did not preclude
    interest on the costs running from the date of the decision.

[6]

At trial, the appellant conceded that HST was payable throughout. For
    the first time on appeal, the appellant seeks to withdraw that admission. We
    would not permit the appellant to do so.

[7]

There is an admitted calculation error. The damages should be reduced by
    $730.92 and the pre-judgment interest reduced by $131.40.

[8]

Accordingly, subject to an amendment to the Judgment to reflect para. 7
    of this endorsement, the appeal is dismissed with costs fixed at $14,969.70 inclusive of disbursements and HST.

M. Rosenberg J.A.

E.E. Gillese J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ogunlesi v. Ogunlesi, 2012
    ONCA 723

DATE: 20121026

DOCKET: C55488

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Elizabeth Ogunlesi

Applicant (Respondent)

and

Anthony Ogunlesi

Respondent (Appellant)

Joan Manafa, for the appellant

Vivian Rerri, for the respondent

Heard: October 22, 2012

On appeal from the order of Justice George Czutrin of the
    Superior Court of Justice, dated April 17, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The respondent commenced family law and divorce proceedings in Ontario
    in April 2011. The appellant challenged the jurisdiction of the Ontario court
    to hear the case on the grounds that neither party was ordinarily resident in
    Ontario for at least one year prior to the commencement of the proceedings, as
    required by s. 3(1) of the
Divorce Act
, R.S.C. 1985, c. 3.

[2]

The motion judge set out the appropriate legal requirements for
    determining ordinary residence. He also thoroughly canvassed the relevant
    jurisprudence and the conflicting evidence given by the parties. He concluded
    that the respondent was ordinarily resident in Ontario for the purposes of
    the
Divorce Act
and took jurisdiction simpliciter. However, he went on
    to indicate that a trial would be necessary to determine which jurisdiction
    (Canada or Nigeria) is the appropriate forum in which the case would ultimately
    be heard.

[3]

In making the requisite finding of residency, the motion judge relied
    on, among other things, the following findings of fact:

(1)

both the appellant and the
    respondent had obtained Canadian permanent residence in July 2009;

(2)

the respondent obtained an Ontario
    drivers licence and health card in June 2010;

(3)

the respondent returned to Ontario
    from her various trips abroad;

(4)

the parties had at least one
    dependent child in school in Ontario during the relevant time periods; and

(5)

the parties owned a large number
    of properties in Ontario in the relevant time frame.

[4]

Deference is owed these findings of fact. There is no basis for
    appellate intervention. The appeal is dismissed.

[5]

The motion to admit fresh evidence is dismissed. The fresh evidence goes
    to the issue of the most appropriate forum, not jurisdiction simpliciter.

[6]

Costs to the respondent, fixed at $10,000 all inclusive.