COURT OF APPEAL FOR ONTARIO

CITATION: Rana v. Canadian Business
    College, 2013 ONCA 562

DATE: 20130913

DOCKET: C55839

Weiler, Epstein and Pepall JJ.A.

BETWEEN

Kris Rana

Appellant

and

Canadian Business College

Respondent

Kris Rana, in person

Jeffrey Nicholson, for the respondent

Heard: September 11, 2013

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated July 9, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The reasons of the judge at first instance were a careful, clear
    analysis of the issues now raised on appeal.  We see no error in her reasons or
    conclusion.  Accordingly, the appeal is dismissed.

[2]

Costs to the respondent are fixed at $2,500 inclusive of disbursements
    and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Sferruzzi v. Allan, 2013 ONCA
    570

DATE: 20130919

DOCKET: C57228

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Anthony Sferruzzi

Appellant

and

Jennifer Lorraine Allan

Respondent

Anthony Sferruzzi, in person

Jennifer Lorraine Allan, in person

Heard: July 16, 2013

On appeal from the judgment of Justice R.B. Reid of the
    Superior Court of Justice, dated June 14, 2013.

COSTS ENDORSEMENT

[1]

We have received and reviewed the parties submissions on costs of the
    appeal.  The appellant sought costs of $2,060.  Those costs are solely for the
    disbursements he incurred in bringing the appeal.  We have reviewed those
    disbursements and find them to be reasonable.

[2]

The courts usual practice is to award reasonable costs to the
    successful party.  We see no reason in this case to depart from our usual
    practice.

[3]

In light of the appellants success on this appeal, costs are ordered in
    his favour, fixed in the amount of $2,060, all inclusive.

John Laskin J.A.

E.E. Gillese J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Van
    Berlo v. Aim Underwriting Limited, 2013 ONCA 582

DATE: 20130926

DOCKET: C56098

Weiler, Goudge and Rouleau JJ.A.

BETWEEN

Petrus Van Berlo

Plaintiff

(Appellant in Appeal)

and

Aim Underwriting Limited and

Allianz Global Risks US Insurance Company

Defendants

(Respondents in
    Appeal)

Lisa N. Gunn, for the appellant

Timothy Tremblay, for the respondent

Heard and released orally: September 13, 2013

On appeal from the judgment of Justice K.A. Gorman of the
    Superior Court of Justice, dated September 19, 2013.

ENDORSEMENT

[1]

The overarching issue on this appeal is whether the trial judge erred in
    determining that the damage caused to his twin engine airplane was not an
    accident within the meaning of the insurance policy.

[2]

The trial judge concluded that when the appellant attempted to fly his
    twin engine plane even though he could only get one engine to engage before
    taking off, his subsequent crash was not an accident.

[3]

The appellant submits that the trial judges conclusion is undermined by
    her finding of fact that the appellant did not know that he was running a risk
    over and above the inherent dangers of flying. That finding suggests that the
    appellant did not assume a calculated risk and it was therefore not open to the
    trial judge to come to the conclusion she did.

[4]

Furthermore, paragraph 42 of the trial judges reasons are unclear as to
    whether the trial judge was saying the appellant was reckless and calling it
    negligence or whether she was saying he was simply negligent.

[5]

While the respondent submits that, read as a whole the trial judges reasons
    are clear, we do not agree that she applied the correct standard to come to her
    finding.

[6]

Accordingly, the appeal is allowed and a new trial is ordered.

[7]

Costs of the appeal are to the appellant and by agreement are fixed in
    the amount of $13,000 inclusive of disbursements and all applicable taxes.
    Costs of the trial are reserved to the judge hearing the new trial.

K. Weiler
    J.A.

S. Goudge
    J.A.

Paul Rouleau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Zhang v. Shanfield, 2013 ONCA 537

DATE: 20130903

DOCKET: C56677

Sharpe, Epstein and Lauwers JJ.A.

BETWEEN

Yuli Zhang and Changchun Xing

Plaintiffs (Appellants)

and

Stephen Shanfield

Defendant (Respondent)

Yuli Zhang and Changchun Xing in person

Mason Greenaway for the respondent

Heard: August 26, 2013

On appeal from the judgment of Justice Richard C. Gates
    of the Superior Court of Justice, dated January 25, 2013.

ENDORSEMENT

[1]

The appellants appeal the dismissal of their action in negligence
    against the respondent solicitor who represented them with respect to a
    personal injury claim arising out of a motor vehicle accident. The matter was
    heard by way of summary judgment over several days and the motion judge
    delivered detailed reasons for judgment in which he canvassed the evidence and
    explained why, in his view, the appellants claims had no prospect of success
    and that summary judgment was appropriate.

[2]

We are not persuaded that the motion judge erred.

Xings Claim

[3]

With respect to the appellant Xing, there is no evidence the respondent
    was instructed to pursue a tort claim on Xings behalf. The respondent did
    advance an FLA claim that was settled by the successor lawyer. There is no
    evidence that Xing had a SABs claim or that the respondent was instructed to
    pursue any such claim.

[4]

It follows that the motion judge did not err in dismissing the appeal
    with respect to Xings claim.

Zhangs Claim

[5]

The appellant Zhang asserts claims for damages with respect to both her
    tort claim and to her SABs claims.

(a) Tort

[6]

We see no merit in the contention that by naming Xing as a co-plaintiff,
    the respondent solicitor somehow compromised Zhangs tort recovery. There was
    clear liability on the part of the hit-and-run driver that would allow Zhang to
    recover her full damages from the driver (for which her own insurer would be
    liable), so that even if Xings negligence contributed to the accident, Zhangs
    tort recovery would not have been affected.

[7]

The appellants agreed to the settlement of Zhangs tort claim
    recommended by the successor lawyer.

[8]

We agree with the motion judges conclusion that there is no basis in
    fact to support a claim against the respondent with respect to Zhangs tort
    claim.

(b) SABs

[9]

While the respondents counsel conceded that there was no evidence in
    the record that the respondent had ever given Zhang a full briefing on her
    possible entitlement to SABs, we are not persuaded that the motion judge erred
    in concluding that Zhang had suffered no loss with respect to her SABs claims.
    The evidence of medical expenses incurred by Zhang in China well before the
    respondent was retained was insufficient to establish a claim against him with
    respect to any loss for medical SABs.

[10]

Nor
    did the evidence substantiate a claim against the respondent with respect to attendant
    care, housekeeping and home maintenance SABs. Zhang met with her insurers
    representatives almost two years before she retained the respondent and made no
    mention of requiring or intending to seek attendant care benefits. If there
    were any such expenses, they were incurred in China before she returned to
    Canada and before she met with and retained the respondent.

[11]

With
    respect to non-earner benefits (NEBs), the record indicates that Zhang applied
    for income replacement benefits (IRBs) prior to retaining the respondent and
    thereby certified that she was earning income from employment before the time
    of the accident. She also filed a medical certificate confirming her
    eligibility for IRBs but failed to file the required supporting documentation
    from her employers. The SAB regulation disallowed a claim for NEBs where the
    claimant is qualified for IRBs. Had she pursued her claim for IRBs, her tort
    recovery would have been reduced. We agree, accordingly, with the motion judges
    conclusion that the evidence failed to establish any compensable claim in
    relation to the negligence alleged against the respondent with respect to the
    manner in which he dealt with Zhangs SABs claims.

[12]

Finally
    we observe that the motion judge pointed out that, as there has never been a
    refusal by the insurer to pay IRBs or NEBs, the limitation period has not
    commenced to prevent her from claiming those benefits now.

[13]

We
    conclude, accordingly, that the motion judge did not err in finding that there
    was no evidence led by the appellants that was capable of supporting a claim in
    damages against the respondent for the manner in which he dealt with the SABs
    claims.

Disposition

[14]

For
    these reasons the appeal is dismissed. The respondent is entitled to costs, which
    we fix at $5000 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 861808 Ontario Inc. v. Canada
    (Revenue Agency), 2013 ONCA 604

DATE: 20131003

DOCKET: C56450

Feldman, MacPherson and Epstein JJ.A.

BETWEEN

861808 Ontario Inc.

Appellant

and

Canada (Revenue Agency)

Respondent

Jeffrey Radnoff, David Fenig and Kris Gurprasad, for the
    appellant

Shahana Kar and Angela Shen, for the respondent

Heard: September 30, 2013

On appeal from the order of Justice Robert F. Goldstein
    of the Superior Court of Justice, dated January 7, 2013.

By the Court:

[1]

The appellant 861808 Ontario Inc. appeals from the order of Goldstein
    J.  of the Superior Court of Justice dated January 7, 2013, striking paragraph
    2  of the appellants statement of claim that sought an injunction against the
    respondent Canada Revenue Agency (CRA) preventing it from collecting the
    appellants unpaid taxes, interest and penalties. The appellants primary claim
    in the action is that an agent of the CRA made an agreement with the appellant
    to accept $79,000 in full satisfaction of its tax debt, and that the CRA is in
    breach of that agreement.

[2]

CRA brought a motion seeking the striking of the relevant portion of the
    appellants statement of claim based on s. 18(1) of the
Federal Courts Act
,
    R.S.C. 1985, c. F-7 (
FCA
):

18(1) Subject to section 28, the Federal Court has
    exclusive original jurisdiction

(a) to issue an injunction, writ of
certiorari
,
    writ of prohibition, writ of
mandamus
or writ of
quo warranto
,
    or grant declaratory relief, against any federal board, commission or other
    tribunal;

[3]

The motion judge held that when exercising powers of tax collection the
    CRA is indisputably a federal board, commission, or other tribunal.  He also
    held that both the wording of s. 18(1) of the
FCA
and the relevant
    case authorities pointed to an obvious conclusion: the superior court has no
    jurisdiction to issue an injunction enjoining the CRA from collecting taxes,
    interest and penalties from the appellant.

[4]

In supplementary reasons dated May 23, 2013, the motion judge awarded
    CRA costs fixed at $40,150.25.  This award included substantial indemnity costs
    after July 21, 2010.

[5]

The appellant appeals these orders on four grounds.

[6]

First, and principally, the appellant contends that the motion judge
    erred by concluding that s. 18 of the
FCA
applies to interim orders,
    such as the interim injunction sought by the appellant. The appellant wants the
    superior court to enjoin the CRA, pending the determination of the appellants
    breach of contract claim against it, from continuing to garnish customer
    accounts of the appellant to collect taxes the CRA alleges are still owing,.

[7]

We do not accept this submission.  Section 18(1) of the
FCA
explicitly grants the Federal Court exclusive original jurisdiction to issue
    an injunction.  There is nothing ambiguous in this language; it applies to all
    injunctions, including interim, interlocutory and permanent.  Moreover, all of
    the relevant case authorities support the motion judges analysis and
    conclusion: see
Canada (Attorney General) v. TeleZone Inc.
, 2010 SCC
    62, at para. 52;
Puttkemery v. Air Canada
, [2003] O.J, No. 2686 (Div.
    Ct.), at paras. 5-6; and
Burkes v. Canada (Revenue Agency)
, 2010 ONSC
    3485, at paras. 9-15.

[8]

In
TeleZone
, Binnie J. dealt with this issue explicitly, at
    para. 52:

All of the remedies listed in s. 18(1)(a) are traditional
    administrative law remedies, including the four prerogative writs
certiorari
,
    prohibition,
mandamus
and
quo warranto
 and declaratory and
    injunctive relief in the administrative law context.  Section 18 does not
    include an award of damages.  If a claimant seeks compensation, he or she
    cannot get it on judicial review.  By the same token,
the plaintiff in a
    damages action is not entitled to add a supplementary claim for a declaration
    or injunction to prevent the government from acting on a decision said to be
    tainted by illegality.  That is the domain of the Federal Court
.
    [Emphasis added.]

[9]

This passage is conclusive against the appellants argument.

[10]

Second,
    the appellant submits that the motion judge erred by concluding that the CRA is
    a federal board, commission or other tribunal within the meaning of s. 18(1)(a)
    of the FCA.  The appellants action against the CRA is framed in contract and
    tort law, not administrative law and judicial review.

[11]

We
    disagree. As Belobaba J. stated in
Burkes
, at para. 11:

The respondent Canada Revenue Agency clearly exercises powers
    of tax collection as conferred by an Act of Parliament and is therefore a
    federal board, commission or tribunal for the purposes of s. 18.

[12]

Third,
    the appellant contends that the motion judge erred by permitting the return of
    the motion to strike in the face of Allen J.s order that CRA could request
    that the motion be brought back if circumstances warrant.

[13]

We
    disagree.  The circumstance that warranted bringing back the motion was the
    Divisional Courts refusal to grant leave to appeal in
Burkes v. Canada
    (Revenue Agency)
, 2010 ONSC 6059 (Div. Ct.).  With this decision of a
    higher court in play, the motion judge was justified in permitting the return
    of CRAs motion in this case.

[14]

Fourth,
    the appellant seeks leave to appeal the motion judges costs award.  The
    appellant contends that the substantial indemnity component of the award was
    made in error.

[15]

We
    would not grant leave to appeal.  CRA sought costs of just under $60,000.
    After careful review of the progress of the litigation, lawyers involved for
    CRA, hourly rates, dockets, and offers to settle, the motion judge fixed costs
    at just over $40,000.  Accordingly, even if the appellant were successful on
    its legal argument, we would not interfere with the costs award he made,

[16]

The
    appeal from the motion judges order dated January 7, 2013 is dismissed.  Leave
    to appeal the motion judges order dated May 23, 2013 is denied.

[17]

The
    respondent is entitled to its costs of the appeal fixed at $24,000, inclusive
    of disbursements and HST.

Released: October 3, 2013 (K.F.)

K. Feldman J.A.

J.C. MacPherson J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2189205 Ontario
    Inc. v. Springdale Pizza Depot Ltd., 2013 ONCA 626

DATE: 20131016

DOCKET: C56822 and C56833

MacPherson, Watt and Pepall JJ.A.

BETWEEN

2189205 Ontario Inc., Parminder Mutti and Navjot
    Kaur Chandi

Plaintiffs (Respondents)

and

Springdale Pizza Depot Ltd.,
    Ranjit Singh Mahil, Dilaware Singh Khakh
, 2147390 Ontario Inc. and
    Kulwinder Singh

Defendants (
Appellants
)

David S. Altshuller, for the appellants, Springdale
    Pizza Depot Ltd., and Dilaware Singh Khakh

Kristina A. Davies, for the appellant, Ranjit Singh
    Mahil

Allan D. J. Dick and Shane Murphy, for the respondents

Heard:  October 7, 2013

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated February 26, 2013 and from the order of Justice
    Sidney Lederman of the Superior Court of Justice, dated March 1, 2013.

ENDORSEMENT

[1]

The proceedings in this case arise out of the valid rescission of a
    franchise agreement. The appellants are the owners of the franchise chain. The
    respondents operated a franchise for a few months, then rescinded the agreement
    because the appellants had failed to provide proper disclosure under the
Arthur
    Wishart Act, 2000
, S.O. 2000, c. 3.

[2]

The respondent franchisees obtained partial summary judgment against the
    appellants. On a reference, the Master determined the amount of compensation to
    be paid by the appellants to the respondents under s. 6(6) of the
Wishart Act
.

[3]

On a separate motion before the Master under rule 26.01, the appellants
    sought leave to amend their statement of defence and cross-claim to add a
    defence of equitable set-off. The Master permitted them to do so.

[4]

Both aspects of the Masters decision were appealed. Lederman J.
    dismissed the appellants motion to oppose confirmation of the Masters Report
    on the Reference. Morgan J. allowed the respondents appeal and limited the
    equitable set-off amendment to the respondents claim under s. 7 of the
Wishart
    Act
.

[5]

The appellants contend that Morgan J. erred in concluding that the
    Master intended the set-off amendment order to apply only to the claims
    advanced by the respondents under s. 7 of the
Wishart Act
.  We
    disagree.

[6]

The motion to amend was heard about two years after the respondents had
    been granted partial summary judgment on the s. 6 claim and several months
    after the Master had made his report on the reference. If set-off were to be
    raised in connection with the s. 6 claims, it should have been raised when the
    claims were adjudicated. We see no error in Morgan J.s conclusion that the
    Master intended to limit the application of the set-off amendment to the then
    outstanding s. 7 claims of the respondent.

[7]

The appellants contend that the Master and Lederman J. erred in
    principle and misapprehended the evidence in reaching their conclusions about
    the respondents s. 6 claims.  Again, we disagree.

[8]

The Master was the primary finder of fact. Provided his findings of fact
    were reasonable and rooted in the available evidence, the reviewing judge, as
    Lederman J. recognized, was bound to accord those findings deference. The
    Master and reviewing judge were well aware of the deficiencies alleged in the
    respondents proof. The findings made are grounded in the evidence, untainted
    by any misapprehensions, errors in principle, or palpable and overriding
    errors.

[9]

We are also of the view that the Master and Lederman J. were correct in
    their interpretation and application of the subsections of s. 6 of the
Wishart
    Act
.

[10]

The
    appeals are dismissed. The respondents are entitled to their costs of these
    appeals which we fix, with the agreement of counsel, at $8,000.00, inclusive of
    disbursements and all applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Bennett Estate v. Iran (Islamic Republic of), 2013
    ONCA 623

DATE: 20131011

DOCKET: C57715

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

BETWEEN

Estate of Marla Bennett, Michael Bennett, Linda
    Bennett and Lisa Bennett

Plaintiffs (Respondents)

and

Islamic Republic of Iran and Iranian Ministry of
    Information and Security

Defendants

and

Attorney General of
    Canada

Intervener (Respondent)

and

Sherri Wise

Proposed Intervener (Appellant)

Mark J. Freiman and Domenico Magisano, proposed
    intervener (appellant)

John Adair, for the plaintiffs (respondents)

Heard:  October 10, 2013

On appeal from the order of Justice D.M. Brown of the Superior
    Court of Justice, dated September 30, 2013.

By the Court:

[1]

The appellant, Dr. Sherri Wise, appeals the motion judges dismissal of
    her motion pursuant to Rule 13.01(1)  for leave to intervene as an added party
    in an action to recognize a foreign judgment pursuant to s. 4(4) of the
Justice
    for Victims of Terrorism Act
, S.C. 201, c. 1, s. 2 (the
JVTA
).

The Background

[2]

The background, briefly, is as follows.

[3]

The appellant is a Canadian citizen and the victim of a 1997 terrorist
    bombing in Israel. In 2012, the
JVTA
was enacted, allowing victims of
    terrorism to sue perpetrators of terrorism and their supporters, and the
    appellant commenced an action in British Columbia against the Islamic Republic
    of Iran and the Iranian Ministry of Information and Security (MOIS) for the
    damages that she sustained in that terrorist bombing.

[4]

The respondents are American citizens and obtained a significant
    judgment in the United States in 2007 against Iran and MOIS under American
    legislation permitting its citizens to recover damages for state-sponsored
    terrorist attacks for damages suffered as a result of a different terrorist
    attack. The American legislation was enacted before the
JVTA
:  the
    respondents were in a position to secure a judgment before the appellant.

[5]

The appellant learned that the respondents were seeking to have their American
    judgment recognized in Canada pursuant to s. 4(5) of the
JVTA
. Neither
    Iran nor the MOIS defended the respondents action for recognition of their
    American judgment, and have been noted in default.  The Attorney General of
    Canada was, however, granted intervener status on consent.

[6]

The appellant fears that the American judgment is so significant that if
    recognized and enforced against Irans assets in  Canada no funds will remain
    to satisfy her judgment, or the judgments of other Canadians, and the
JVTA
will not provide what she submits is the intended, meaningful remedy for
    Canadian victims of terrorism sponsored by Iran. At the outset of the September
    30, 2013 hearing of the respondents motion to recognize their American
    judgment, she accordingly sought leave to intervene as a party on, and an
    adjournment of, the respondents motion.  She seeks to make an argument not
    advanced by the Attorney General, namely that, properly interpreted, the
JVTA
does not suspend the limitation period normally applicable to an action to
    recognize a foreign judgment and the respondents action to enforce their
    American judgment is accordingly statute-barred.

[7]

The motion judge dismissed her motion, with reasons to follow, and
    proceeded to hear the motion to recognize the American judgment. The motion
    judge ordered that the hearing of that motion continue on October 31, 2013 on
    two discrete issues, with the parties to file factums on those issues by
    October 25, 2013.

[8]

In his reasons for dismissing the appellants motion, released on
    October 1, 2013, he determined that the appellant had not met any of the three
    criteria enumerated in Rule 13.01(1). He wrote further, as follows:

Although I have directed that the motion continue on October
    31, 2013 to hear further submissions on two discrete issues, most issues raised
    by the motion already have been canvassed in the written and oral submissions.
    With the greatest respect to Dr. Wise and her counsel, I do not see what value
    added she could have brought to the hearing. Accordingly, her lack of any
    legal interest in the issues raised by the [American action], when coupled with
    the lack of assistance she could give to the Court, made any further delay of
    the hearing of this motion unacceptable.

The Parties Positions

[9]

The appellant argues that the motion judge erred in concluding that: the
    appellant had not met any of the criteria enumerated in Rule 13. 01(1);
    granting the appellant intervener status would result in further delay; and the
    appellant would not make a useful contribution to the hearing. If this appeal
    is allowed, the appellant would file a factum by the October 25, 2013 date
    applicable to the parties, addressing principally the limitation period issue,
    and not seek to alter the October 31, 2013 date set for the continuation of the
    motion, or supplement the record before the motion judge.

[10]

The
    respondents argue that the motion judge correctly concluded that the appellant
    did not satisfy any of the criteria in Rule 13.01(1), and that, in any event,
    his conclusion that the appellant would not make a useful contribution to the
    resolution of the motion is entitled to deference. Moreover, the respondents
    submit that the argument that the appellants seek to advance would inevitably
    require the respondents to file further evidence about the extent of Irans
    assets in Canada and lead to further delay.

Analysis and Conclusion

[11]

In
    our view, the motion judge mischaracterized the nature of the respondents
    interest, and as a result erred in concluding that the appellant did not
    satisfy any of the criteria in Rule 13. 01(1).

[12]

In
    concluding that the appellant had not demonstrated that she had an interest in
    the subject matter of the proceeding, within the meaning of s. 13.01(1)(a),
    the motion judge wrote:

Counsel was not able to take me to any case law in which a
    plaintiff who had not yet obtained judgment was considered to possess a
    sufficient interest to enable it to intervene in enforcement proceedings
    already underway by an existing judgment creditor of a debtor.

[13]

Similarly,
    in concluding that the appellant had not established that she may be adversely
    affected by a judgment in the proceeding, within the meaning of s.
    13.01(1)(b),  the motion judge commented that counsel had not taken him to any
    case law which would require an unsecured judgement creditor to put its
    enforcement proceedings in abeyance in order to allow a contingent claimant to
    catch up

[14]

With
    respect, until such time as the respondents succeed in having their American
    judgment recognized in Canada, they are not judgment creditors in Canada.
    Their interest is more akin to the contingent interest of the appellant.
    Moreover, the appellant does not seek a stay of the respondents action.

[15]

A
    person only needs to satisfy one of the criteria in Rule 13.01(1) in order to
    be able to move for leave to intervene.  In our view, the appellant satisfied
    two.  She both has a contingent interest in the subject matter of the
    proceeding (s. 13.01(1)(a)) and
may
be adversely affected by a judgment
    recognizing the American judgment (s. 13.01(1)(b)).   The appellant provided
    evidence from the Canadian government suggesting that Irans assets in Canada
    may not be sufficient to satisfy any judgment other than the respondents.

[16]

As
    the respondents argue, if one of the criteria in Rule 13.01(1) entitling a
    person who is not a party to a proceeding to intervene as an added party is
    made out, the motion judge then has the discretion to grant intervener status,
    and the motion judges decision to deny intervener status is entitled to
    deference. In
Peel (Regional Municipality) v. Great Atlantic & Pacific
    Co. of Canada Ltd.
74 O.R. (2d) 164 (C.A.), at para. 10, Dubin C.J.O.
    indicated that the nature of the case, the issues which arise and likelihood
    of the applicant being able to make a useful contribution to the resolution of
    the appeal without causing injustice to the immediate parties are
    considerations in determining whether intervener status should be granted.
    Respectfully, in this instance, deference is displaced because the motion judge
    mischaracterized the nature of the case as a private commercial one between a
    judgment creditor and a contingent creditor. In this case, important public
    issues are at play.

[17]

We
    do not agree that the respondents will not make a useful contribution to the
    resolution of the motion before the motion judge for recognition of the
    American judgment. The
JVTA
is new legislation, enacted with the
    important public objective of impairing the functioning of terrorist groups.
    Its interpretation is a matter of first instance. No other party seeks to make
    the arguments that the appellant advances, especially the limitation period
    argument. If the appellant is not granted intervener status, either those
    arguments will not be made, or, if considered and disposed of by the motion
    judge on his own initiative, there will be no avenue of appeal if the motion
    judge determination that the American judgment should be recognized.

[18]

We
    are not persuaded that the limitation or public policy arguments that the
    appellant seeks to advance will necessitate the filing of further evidence by
    the respondent and result in further delay.

[19]

Accordingly,
    this appeal is allowed. The appellant shall be entitled to file a factum, not
    exceeding 20 pages. Her factum shall be filed by October 25, 2013. The time
    allocated to counsel for the appellant for argument on October 30, 2013 shall
    be as determined by the motion judge.

[20]

If
    the parties are unable to agree on the issue of costs, they shall be entitled
    to make brief written submissions.

RELEASED: AH  OCT 11 2013

Alexandra Hoy
    A.C.J.O.

John Laskin J.A.

Michael Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beswick Properties Yonge Street
    Inc. v. Royal Bank of Canada, 2013 ONCA 612

DATE: 20131010

DOCKET: C56291

Goudge, Cronk and Gillese JJ.A.

BETWEEN

Beswick Properties Yonge
    Street Inc.

Applicant (Appellant)

and

Royal Bank of Canada

Respondent (Respondent)

Paul J. Pape and Andrea M. Boliero, for the appellant

Sharon Wong, for the respondent

Heard: October 2, 2013

On appeal from the judgment of Justice Michael K.
    McKelvey of the Superior Court of Justice, dated October 15, 2012.

ENDORSEMENT

[1]

The appellant/landlord appeals from the decision below that the
    respondent/tenant is not liable to it for the excess hard costs it incurred in constructing
    the building at 14785 Yonge Street in Aurora.

[2]

The appellants argument in this court is that the application judge
    erred in reading the binding Offer to Lease between the parties to require the
    respondents approval of the excess hard costs in order for the respondent to
    be liable for those costs.

[3]

It is acknowledged that no such approval was obtained by the appellant
    and no construction contracts have ever been submitted for approval to the
    respondent.

[4]

Central to the appeal is one paragraph in Article 7 of the Offer to
    Lease:

Upon substantial completion of the Landlords Work, the
    Landlord shall provide the Tenant with copies of all construction invoices to
    evidence the total hard costs for constructing the Premises.  In the event that
    the Landlords actual hard costs for constructing the Premises are more than
    $130.00 per square foot of Rentable Area of the Building, exclusive of Value
    Added Tax, the Tenant shall,
provided such excess costs are in accordance
    with the contract or contracts approved by the Tenant or have otherwise been
    approved in advance by the Tenant
, pay the difference to the Landlord
    within thirty (30) days after substantial completion of the Landlords Work.
    [Emphasis added.]

[5]

The appellants argument turns on the meaning, if any, to be given to
    the phrase in this paragraph: provided such excess costs are in accordance
    with the contract or contracts approved by the Tenant or have otherwise been
    approved in advance by the Tenant.

[6]

The appellant says that this phrase is a vestige of the original draft
    of the Offer to Lease, which required the appellant to put the construction
    contract out for bids, thereby giving commercial sense to the disputed phrase.
    When the Offer to Lease was finalized and became binding, the bid provision was
    removed, since the appellant was to do the construction in-house.  The disputed
    phrase however remained.  The appellant argues that the phrase is meaningless
    absent the bid provision.  It says commercial reality requires that conclusion,
    since the business essence of the contract always was that the respondent would
    be responsible for excess hard costs, provided they were reasonable.

[7]

We do not agree.  The disputed phrase remains a term of the contract.
    Its plain meaning requires respondent approval of the excess hard costs through
    approval of the construction contracts or otherwise in advance.  In our view,
    commercial reality does not require these words to be given no meaning as the
    appellant contends.  It would have been quite possible for the appellant to
    have obtained approval for the excess hard costs through approval of the
    construction contracts or advance approval otherwise.  This gives some control
    over excess hard costs to the respondent, rather than leaving that entirely to
    the appellant.

[8]

Moreover, to give this phrase no meaning is to effectively conclude that
    it was included in the Offer to Lease by mutual mistake.  However, there is
    simply no evidence to support this theory.  It is simply not open to us to read
    this phrase out of the Offer to Lease.

[9]

Nor do we view the disputed phrase to be ambiguous.  Indeed the
    appellant does not advance a meaning other than the plain meaning.  It simply
    says the phrase is meaningless, an argument we have dealt with.

[10]

The
    appellant does not advance the remaining arguments in its factum and we need
    not deal with them.

[11]

In
    the final analysis, while it may be that the result seems to be a hard
    commercial reality, we are compelled to it by the wording of the contract.

[12]

The
    appeal must be dismissed.

[13]

In
    light of the result of the appeal, the respondent withdrew its substantive
    cross-appeal.

[14]

The
    respondent, however, pursued its cross-appeal as to costs.  We see no error in
    principle in the disposition of costs by the application judge.  Nor is his
    award plainly wrong.  It was quite open, and indeed we think correct, to treat
    the appellant, who was the applicant, as the effective plaintiff for the
    purposes of Rule 49.  Moreover we agree with the application judge that the
    divided success on the applications deserved some consideration in the award of
    costs below.  In our view, there is no basis for this court to interfere with
    his discretion in that award.  We would therefore dismiss the cross-appeal as
    to costs.

[15]

In
    the result, success in this court has been mixed.  While the respondent was in
    the main successful, it was unsuccessful in its costs cross-appeal.  Taking
    that into account, and determining what is fair and reasonable in the
    circumstances, we would award the respondent $25,000 in total as the costs
    order resulting from the appeal and cross-appeal.

S.T.
    Goudge J.A.

E.A.
    Cronk J.A.

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bieberstein v. Kirchberger, 2013
    ONCA 629

DATE: 20131017

DOCKET: C56739

MacPherson, Watt and Pepall JJ.A.

BETWEEN

Harry Bieberstein

Respondent (Plaintiff)

and

Gabriel Kirchberger, Susanne Viktoria Schmidt,
    Nomen Fitness Inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying
    on business as G.K. York Management Service

Appellants (Defendants)

Jonathan L. Rosenstein, for the appellants

Julian N. Falconer, Elisabeth Widner and Frederick J.
    Shuh, for the respondent

Heard:  October 8, 2013

On appeal from the order of Justice H.J. Wilton-Siegel of
    the Superior Court of Justice, dated December 20, 2012.

ENDORSEMENT

Introduction

[1]

The appellants appeal the December 20, 2012 order of Wilton-Siegel J. in
    which he dismissed their motions for partial summary judgment.  He also ordered
    that the appellants acknowledgements, known as Submissions to Compulsory
    Enforcement (SCEs), were enforceable in Ontario and that the applicable
    limitation period was 30 years.

Facts

[2]

The appellant, Gabriel Kirchberger, formerly of Germany, guaranteed
    loans made to his real estate companies by German banks. The loans were made
    between 1992 and 2000.

[3]

The guarantees took the form of special German instruments called SCEs. While
    not issued by a court, under the
German Code of Civil Procedure
an SCE
    may be enforced in the same manner as a German judgment.

[4]

The respondent acquired the SCEs from the German banks in 2008 and 2009.

[5]

In January, 2010, the respondent commenced actions against the
    appellants in Ontario where Kirchberger resides, based on the SCEs.

[6]

The appellants moved for partial summary judgment on the basis that the
    limitation period to enforce the SCEs had expired, however, the motion
    proceeded under rule 21.01(1)(a) of the
Rules of Civil Procedure
for a
    determination of a question of law raised by the pleadings.

[7]

The parties agreed on the appropriate approach to be used by the motion
    judge:

(1)

characterization of the
    issue to identify the relevant choice of law rule;

(2)

identification of the
    connection factor by applying the choice of law rule; and

(3)

application of the governing
    law.

The parties agreed that once the SCEs had been
    characterized, Germany would be the appropriate governing law.

[8]

The motion judge decided that an SCE was not a foreign judgment and the
    respondents action was not barred by the
Limitations Act, 2002,
S.O. 2002, c.24, Sched. B

because a 30 year limitation period applied pursuant to
    German law.

Appeal

[9]

The appellants advance three grounds of appeal and also seek to admit
    fresh evidence.

[10]

Firstly,
    the appellants submit that the motion judge erred in concluding that the SCEs
    were not German judgments for the purpose of Ontario limitations law.  They
    argue that had he done so, as a foreign judgment, either a two-year or a six-year
    limitation would have applied. In our view, the motion judge was correct in
    concluding that the SCEs were not German judgments. We agree with the
    respondents submission that the fact that an SCE proceeds under the same
    provisions of the
German Civil Code
as a German judgment does not transform
    it into one.  It is neither a court order, an arbitral award, nor an instrument
    that has any of the accepted characteristics of a judgment.

[11]

We
    do not give effect to this ground of appeal.

[12]

Secondly,
    the appellants submit that the motion judge erred in basing his analysis on a
    claim which does not appear in the statements of claim.

[13]

On
    the motion, the respondent restricted his request for relief in the statement
    of claim to an order realizing the collateral security given by the appellants.
    This was pleaded in paragraphs 1(a)(i) and 16 of the statements of claim. The
    motion judge interpreted this as a request for an order that the respondent was
    entitled to enforce against the appellants assets in Ontario in the manner and
    to the extent as if he had obtained judgment against the respondent for
    payment.

[14]

In
    our view, the motion judge did not recast the appellants claim; rather, he was
    simply describing the nature of the SCEs. This was neither a new argument nor
    theory of the case.  We see no error in this regard.

[15]

Thirdly,
    the appellants submit that the motion judge misinterpreted and misapplied
    German limitations law.

[16]

The
    appellants submit that while the motion judge erred in not treating the SCEs as
    foreign judgments, having characterized them as agreements, a three-year
    limitation was applicable under German law.

[17]

Again,
    we are of the view that the motion judge reached the correct conclusion. The
    applicable substantive law was that of Germany. As mentioned, this was not
    contested. This principle is reflected in s. 23 of the
Limitations Act,
    2002
, which provides that for the purposes of applying the rules regarding
    conflicts of laws, limitation laws of Ontario or elsewhere are substantive law.
    See also
Tolofson v. Jensen
, [1994] 3 S.C.R. 1022.

[18]

Because
    German law applies a 30-year limitation period to enforce SCEs, the motion
    judge correctly treated 30 years as the applicable limitation period and
    dismissed the motion for partial summary judgment.

[19]

Given
    our conclusion, it is unnecessary to consider the fresh evidence.

[20]

The
    appeal and the motion to admit the fresh evidence are dismissed.

[21]

The
    appellants shall pay the respondents costs fixed in the amount of $40,000
    inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

David Watt
    J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Burton v. Assaf, 2013 ONCA 658

DATE: 20131030

DOCKET: C56828

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Bernard Burton

Applicant (Respondent)

and

William Assaf

Respondent (Appellant)

AND BETWEEN

The Savarin Limited and William Assaf, Estate
    Trustee of the Estate of Edward Assaf, Deceased, and William Assaf, a
    beneficiary of the Estate of Edward Assaf, Deceased

Plaintiffs (Appellants)

and

Mary Matthews, Bernard Burton, the Estate of
    Robert Bosada, Deceased, and James Archer-Shee

Defendants (Respondents)

William Assaf, appearing in person and as an officer of
    The Savarin Limited, and Daniel Barna as Estate Co-Trustee of the Estate of
    Edward Assaf

Bernard Burton, for the respondent Estate of Robert
    Bosada

Archie Joseph Rabinowitz, David Mathew Lobl and Rebecca
    Sabina Studin, for the respondent Bernard Burton

Trevor Spurr and R. Spurr, for the respondents Mary
    Matthews and James Archer-Shee

Heard: October 29, 2013

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated March 6, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellants Savarin Ltd. and William Assaf in various capacities
    appeal from the judgment of Morgan J. of the Superior Court of Justice dated
    April 12, 2013, dismissing the action commenced by the appellants and declaring
    Mr. Assaf a vexatious litigant within the meaning of s. 140 of the
Courts
    of Justice Act
.

[2]

With respect to both of these matters, we explicitly agree with the
    reasons and conclusions of Morgan J.

[3]

The appeal is dismissed.  The respondents are entitled to their costs of
    the appeal fixed as follows: Bernard Burton - $14,500; the estate of Robert
    Bosada - $6,000; and Mary Matthews and James Archer-Shee - $1,800; all
    inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:  Business
    Development Bank of Canada v. Nap Corp., 2013 ONCA 608

DATE: 20131003

DOCKET: C56560

Gillese, Juriansz and Strathy JJ.A.

BETWEEN

Business Development Bank of Canada

Plaintiff (Respondent)

and

Nap Corporation and Arie Tall

Defendants (Appellants)

Adam Jarvis, for the appellants

Rosemary A. Fisher, for the respondent

Heard: September 25, 2013

On appeal from the order of Justice K.A. Carpenter-Gunn of
    the Superior Court of Justice, dated January 2, 2013.

ENDORSEMENT

[1]

The appellants appeal summary judgment in favour of Business Development
    Bank of Canada (BDC) on its loan to NAP, guaranteed by Tall. The loan and
    guarantee are not in dispute. The outstanding balance is $130,091.63.

[2]

The initial hearing of the summary judgment motion, on October 4, 2012,
    was adjourned to permit BCD to obtain evidence from RBC, with whom it had
    entered into a subordination agreement, to show that NAP was in default to RBC,
    thereby triggering default on the BDC loan to NAP.

[3]

The appellants did not consent to RBC disclosing its records.  BDC was
    therefore forced to bring a motion, which was successful, to compel RBC to
    produce the documentation pertaining to its loan to NAP and NAPs default
    thereunder. These documents, including notices and emails confirming NAPs
    default to RBC, were appended to an affidavit of a solicitor in the office of
    counsel for BDC (the impugned affidavit).

[4]

On the continuation of the motion on January 2, 2013, the motion judge
    noted that default was the central issue. She found that the RBC documentation
    confirmed default by the appellant to RBC. There was also evidence from Talls
    cross-examination that appeared to acknowledge this default. She also found
    that Talls affidavit was self-serving and did not establish an issue for
    trial. The appellants had recently cross-examined a representative of RBC, but
    failed to adduce any evidence from that cross-examination on the continuation
    of the summary judgment motion.

[5]

The motion judge therefore found that NAP was in default to RBC and that
    this put NAP in default to BDC. There was no genuine issue for trial and BDC
    was entitled to summary judgment.

[6]

These conclusions were fully warranted on the record before the motion
    judge.

[7]

We reject the appellants submission that they did not have notice of
    the case they were required to meet on January 2, 2013, and that, having
    dismissed their motions to stay the summary judgment motion and to strike the
    impugned  affidavit, the motion judge should have granted an adjournment to
    permit them to file additional materials.

[8]

The issue of whether NAP was in default to RBC was the very reason for
    the adjournment on October 4, 2012, and the reason for BDCs motion for the
    production of the RBC records. The information necessary to respond to this
    issue was entirely within the control of the appellants. They were required to
    put their best foot forward, not litigate step-by-step.

[9]

The motion judge was entitled to discount their evidence as self-serving
    and to draw an adverse inference from their failure to adduce available
    evidence from the cross-examination of RBC. The appellants failed to refute BDCs
    evidence that there was no genuine issue for trial.

[10]

The
    motion judge was also entitled to receive the impugned affidavit.  The impugned
    affidavit attached the business records obtained from RBC, which spoke for
    themselves and appeared uncontroversial. It was open to the appellants to
    cross-examine the affiant, to file their own affidavit evidence or to file any
    relevant evidence they had obtained on cross-examination of RBC.

[11]

We
    also find that the motion judge made no error in dismissing the appellants
    cross-motion to stay the summary judgment motion. That cross-motion was filed
    after the initial hearing on October 4, 2012, and before the continued hearing
    on January 2, 2013. As this court noted in
Combined Air Mechanical Services
    Inc. v. Flesch
, 2011 ONCA 764, at para. 58, it may be appropriate for a
    responding party to move to stay a premature summary judgment motion to ensure
    that an appropriate evidentiary record is available after discovery. In this
    case, however, the appellants had filed evidence in response to the summary
    judgment motion and were prepared to contest it on the merits at the first
    hearing. The motion judge found that the appellants were aware of the case they
    were required to meet before the continued hearing. At the continued hearing, they
    chose not to file further evidence and the motion judge made no error in the
    exercise of her discretion in refusing a stay.

[12]

For
    these reasons, the appeal is dismissed, with costs in the agreed amount of
    $15,044.28, all inclusive.

E.E.
    Gillese J.A.

"R.G. Juriansz
    J.A."

"G.R. Strathy
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Buttar v. Buttar, 2013 ONCA 616

DATE: 20131016

DOCKET: C55491

Rosenberg, Goudge and Tulloch JJ.A.

BETWEEN

Doris Marion Buttar

Applicant (Respondent)

and

Bruce Edgar Buttar

Respondent (Appellant)

Aaron M. Franks and Michael Zalev, for the appellant

Donald R. Good, for the respondent

Heard: April 30, 2013

On appeal from the judgment of Justice Mary J. Hatton of
    the Superior Court of Justice, dated April 18, 2012 and the costs order dated
    September 19, 2012.

COSTS ENDORSEMENT

[1]

We have reviewed the cost submissions from counsel. In our view, success
    on the appeal was divided and the parties should bear their own costs of the
    appeal. We have not been persuaded that there is any basis for interfering with
    the reasonable cost award made at trial. In our view, the result of the appeal
    would have only a modest monetary impact on the trial decision.

M. Rosenberg J.A.

S.T. Goudge J.A.

M.H. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Central Sun Mining Inc. v. Vector
    Engineering Inc., 2013 ONCA 601

DATE: 20131002

DOCKET: C56498

Goudge, Gillese and Pepall JJ.A.

BETWEEN

Central Sun Mining Inc.

Plaintiff (Appellant)

and

Vector Engineering Inc., Vector Colorado LLC,
Vector Costa Rica, S.A., Vector Ingeniera Costa Rica, S.A.,
    Steffen Robertson Kirsten/SRK Consulting, Steffen Robertson Kirsten (U.S.)
    Inc., SRK Field Services LLC
, Golder Associates Inc., Golder Associates
    Ltd.,
Richard Frechette
, A.V. Chance, Brent
    Johnson, Don West,
Dave S. Hallman, Charles J. Khoury,
    Rob Dorey, Allan Breitenbach
, Michael Henderson,
Mark
    Smith, Marc Leduc
, Matt Fuller,
Sean Currie and
    XVEI Inc.

Defendants (Respondents)

David Hamer, William D. Black and Christopher M.
    Hubbard, for the appellant

Tim Alexander and Alva Orlando, for the respondents
    Steffen Robertson Kirsten/SRK Consulting, Steffen Robertson Kirsten (U.S.)
    Inc., SRK Field Services LLC., Richard Frechette, Dave S. Hallman, Charles J.
    Khoury, Rob Dorey and Allan Breitenbach

John Lloyd and Anthony Cole, for the respondents XVEI
    Inc., Vector Costa Rica, S.A., Vector Ingeniera Costa Rica, S.A., Mark Smith,
    Marc Leduc and Sean Currie

Heard: May 21, 2013

On appeal from the order of Justice David G. Stinson of
    the Superior Court of Justice, dated December 21, 2012, with reasons reported
    at 2012 ONSC 7331.

Goudge
    J.A.:

[1]

The appellant, Central Sun Mining Inc. (Central Sun), is an Ontario
    company with its head office in Toronto.

[2]

The respondents, Steffen Robertson Kirsten/SRK Consulting, Steffen
    Robertson Kirsten (U.S.) Inc., SRK Field Services LLC, Richard Frechette, Dave
    S. Hallman, Charles J. Khoury, Rob Dorey and Allan Breitenbach (collectively
    SRK) and Vector Costa Rica S.A., Vector Ingeniera Costa Rica, S.A., Mark
    Smith, Marc Leduc, Sean Currie and XVEI Inc. (collectively Vector) are
    American engineering consultants who work for the mining industry.

[3]

In this action, the appellant Central Sun is suing the respondents SRK
    and Vector for negligent misrepresentation, negligence and breach of contract
    in providing services to Central Sun.

[4]

The respondents moved for an order that the Ontario court should not
    assume jurisdiction over them.  The motion judge found that the action lacked a
    real and substantial connection with Ontario and that therefore the Ontario
    court has no jurisdiction over the respondents.  His order stayed or dismissed
    the action as against them.

[5]

For the reasons that follow, I conclude that the motion judge erred and
    that the Ontario court can assume jurisdiction.  I would therefore allow the
    appeal and refer the respondents motion back to the motions court for consideration
    of the further issue of whether the court should exercise its jurisdiction.

A.

The Facts

[6]

The appellant owns a gold mine in Costa Rica.  It was constructed and
    began operating in the mid-1990s.  Through the pre-feasibility, feasibility,
    construction and operations stages, the appellant retained the respondents to
    provide studies relating to the siting, design and operation of the mine.  These
    studies included an overall assessment of the stability of the proposed mine
    site and design.  The appellant says that it relied on these studies in
    building and operating the mine, and that the studies turned out to be badly
    flawed.

[7]

In 2007, a major landslide occurred at the mine.  It forced the mine to
    cease operating and to shut down.  The appellant lost its investment, and has
    since incurred substantial remediation costs.  It has commenced this action to
    recover its losses.

[8]

While the appellant is headquartered in Toronto, it has technical staff
    working in its Vancouver office.  However, its senior executives were located
    in Toronto, where the strategic decisions concerning the Costa Rica mine, the
    financial control of its mining operations, the negotiation of related
    contracts and the significant control over mining activities were all taken.

[9]

Both respondents are based in the United States.  The work for their
    studies was performed largely at the mine site in Costa Rica or at their
    American offices.  In the case of SRK, these studies were all sent to the
    appellants Vancouver office for the appellants technical people to review and
    then make recommendations to the head office in Toronto.  The appellant
    maintains that the studies were also sent on to Toronto for review by senior
    executives.  Vector followed the same practice, although some of their documentation
    was sent directly to the appellants head office.

B.

The Decision Appealed From

[10]

Based
    on these facts, SRK and Vector moved to challenge the jurisdiction of the
    Ontario court over the action against them.

[11]

In
    his analysis, the motion judge followed the framework provided by the Supreme
    Court of Canada in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17.

[12]

He
    began by considering whether the Ontario court has jurisdiction over the
    action.  This requires that there be a real and substantial connection between Ontario
    and the subject matter of the litigation.  He examined whether any of the
    presumptive connecting factors described for tort cases in
Van Breda
exists here so that a real and substantial connection with Ontario can be
    presumed.

[13]

The
    first of these is whether the action concerns a claim in respect of a tort
    committed in Ontario.  The motion judge found that the appellant had not shown
    Ontario as the
situs
of either its negligent misrepresentation claim
    or its negligence claim.

[14]

For
    the negligent misrepresentation claim, in his view the major factors were that
    the respondents work was all done in the United States and Costa Rica, that
    the studies were submitted by the respondents to the appellant in Vancouver
    (with the exception of some documentation from Vector that went directly to
    Toronto) and that the physical damage all occurred in Costa Rica.  He
    characterized the connection between the action against the respondents and
    Ontario to be relatively minor, when compared to the connections between the
    dispute and other jurisdictions.

[15]

The
    motion judge then considered whether, assuming the appellant established
    Ontario as the
situs
for the negligent misrepresentation it alleged,
    the respondents had rebutted the presumptive connection with Ontario.  His
    analysis, at para. 48 of his reasons, is as follows:

I would therefore hold that, assuming the
    plaintiff has established the existence of a tort in Ontario based on the
    reliance by its senior managers here on some aspects of the foreign-generated
    advice, given the relative weakness of the Ontario connection of the complaint
    against the moving defendants, they have successfully rebutted the presumption
    that Ontario has a real and substantial connection with this dispute.

[16]

Next, the motion judge addressed whether the appellant had established
    that the negligence it claimed was committed in Ontario.  For this connection,
    the appellant relied on the existence of damages suffered in Ontario, and the
    motion judge held that this was not sufficient.  Even assuming that it was
    sufficient, the respondents had successfully rebutted the presumption for the
    same reasons as they had rebutted the presumption with respect to negligent
    misrepresentation.

[17]

The appellant also argued three additional bases for the courts
    jurisdiction.  It said that its action concerned a claim against persons
    carrying on business in Ontario, that the claim is in respect of property in
    Ontario, and that it is also in respect of a breach of contract in Ontario, any
    of which would be sufficient to create a presumptive connection with Ontario.
    The motion judge disagreed with the appellant on all three.  While the
    appellant raises these again in its factum on appeal, none was pressed in oral
    argument.  Given that I would allow the appeal on the grounds set out below, I
    need not deal further with these arguments or with the motion judges reasons
    for dismissing them.

[18]

In the end, the motion judge concluded that the appellant advanced no
    presumptive factors to support the Ontario court having jurisdiction.  In the
    alternative, he found that the respondents had successfully rebutted any such
    connection.  Having so concluded, he found it unnecessary to go on to determine
    whether, if there were jurisdiction, Ontario is a convenient forum or whether
    there is a more appropriate forum to hear the action.

C.

The Arguments on Appeal

[19]

In this court, the primary issue was whether the motion judge correctly
    concluded that neither the appellants claims for negligent misrepresentation nor
    its claim for negligence was committed in Ontario.  The second issue was
    whether, in the alternative, the respondents have successfully rebutted the
    presumption.

[20]

On the first issue, the appellant argues that the
situs
of both torts is Ontario.  For negligent misrepresentation, the
    connection to Ontario flows from the appellants assertion that the
    respondents studies were sent on from Vancouver to Toronto where they were
    relied on by the appellant in making the business decisions about the mine.
    For negligence, the appellant relies on the fact that its damages were
    financial and were therefore predominantly suffered in Ontario.

[21]

For their part, the respondents point to the fact, that in most cases,
    they sent their studies to the appellants Vancouver office and that their
    representations did not therefore take place in Ontario.  They also say that
    most of the damage suffered by the appellant took place in Costa Rica, and, in
    any event, damages alone cannot provide a presumptive connection with Ontario.

[22]

On the second issue, the parties join issue on whether the motion judge
    correctly characterized the presumptive connecting factors as pointing only to
    a weak relationship between the dispute and Ontario, and, in doing so, whether
    he incorrectly engaged in a comparison of the relative strength of the
    connection of the action with Ontario and other possible forums.

D.

Analysis

[23]

It is helpful to begin with an outline of the guidance provided by
Van
    Breda
relevant to this case.

[24]

The Supreme Court of Canada, at para. 80, makes clear that if a
    challenge arises to the jurisdiction of the Ontario court, it is up to the
    plaintiff (in this case the appellant) to show a real and substantial
    connection between the dispute and Ontario.  The plaintiff must establish the
    existence of one or more of the factors described in
Van Breda
as presumptively connecting the action with Ontario.

[25]

Van
    Breda
also says, at para. 99, that where an action involves
    several claims, it is enough that one of those claims is presumptively
    connected with Ontario.  This gives the Ontario court jurisdiction over all the
    claims in the action, subject to a rebuttal of the presumption.  Anything else,
    the Supreme Court says, would be incompatible with fairness and efficiency.

[26]

The Supreme Court describes a number of factors, each of which is sufficient
    to presumptively connect a tort case with Ontario, so that the court has jurisdiction
    unless that presumption is rebutted.  The factor of particular relevance here
    is that the action includes a claim for a tort committed in Ontario.

[27]

Finally,
Van Breda
provides that the party
    challenging the presumption of jurisdiction bears the burden of rebutting that
    presumption (in this case the respondents).  At para. 96,
Van Breda
says this about the difficulty of discharging that burden in a tort
    case:

[O]n the other hand, where the presumptive
    connecting factor is the commission of a tort in the province, rebutting the
    presumption of jurisdiction would appear to be difficult, although it may be
    possible to do so in a case involving a multi-jurisdictional tort where only a
    relatively minor element of the tort has occurred in the province.

[28]

In light of these considerations, the first issue here is whether the
    appellant has established that one or other of the torts in its claim was
    committed in Ontario.  The motion judge found that the appellant had not established
    that the respondents had committed, either negligent misrepresentation or negligence
    in Ontario.

[29]

I do not agree.  I conclude that the negligent misrepresentation
    claimed took place in Ontario.  The appellant advances the argument that the
    misrepresentation consists of the studies provided by the respondents.

[30]

The core of the tort of negligent misrepresentation is that the
    misrepresentation is received and acted upon.  There is no dispute that the
    appellant did indeed receive these studies from the respondents and that the
    recommendations made by the appellants Vancouver office to the appellants
    Toronto office were based on those studies.  The motion judge did not address
    whether the respondents studies were forwarded from the appellants Vancouver
    office to the appellants Toronto office.  However, there is evidence that
    would support such a finding.  It is fair to conclude that the studies were
    therefore received by the appellant, not only in Vancouver but also in Toronto
    where they were relied on.

[31]

There can be no question that the appellant acted on these studies in
    Ontario.  That is where it relied on the studies to take the decisions about
    where to locate the mine and how to build and operate it.

[32]

The inevitable conclusion is that the misrepresentations were received
    and relied on in Ontario.  The respondents do not contest that if that were so,
    Ontario is the
situs
of the tort of negligent
    misrepresentation.  This constitutes a presumptive connection between the
    action against the respondents and Ontario.

[33]

I am inclined to think that even if the respondents studies had been received
    only in Vancouver and only the recommendations based on those studies were
    transmitted to Toronto, the negligent misrepresentation would still have been
    committed in Ontario.  The respondents foresaw that their studies would be
    received by the appellant and acted on in Toronto.  They should have expected
    to be called to account in Ontario.  In the modern world where corporations have
    various offices in various locations, corporate defendants should not escape
    liability simply because they send their studies to an office of the plaintiff
    outside Ontario with the clear understanding that it will be acted on in
    Ontario.

[34]

Indeed in
2249659 Ontario Ltd. v. Sparkasse Siegan
, 2013 ONCA 354, 115 O.R. (3d) 241, at para. 31, this court reflected
    such an approach by saying that the tort of negligent misrepresentation occurs
    where the misinformation is received or acted upon.

[35]

Having concluded that the negligent misrepresentation was committed in
    Ontario, it is unnecessary to consider whether the
situs
of the negligence claim is Ontario as well.  Given that the negligent
    misrepresentation was committed in Ontario, Ontario courts are required to take
    jurisdiction over the entire action, unless the respondents can rebut the presumptive
    connection with Ontario.

[36]

The second issue then, is whether the respondents have successfully
    rebutted that presumption.  The motion judge found that they had done so by
    showing the relative weakness of the Ontario connection.

[37]

If this finding suggests that jurisdiction depends on a comparison of
    the relative strength of the connection of the dispute with Ontario on the one
    hand, and other jurisdictions on the other, that is an erroneous approach in my
    view.  It is at the
forum conveniens
stage that
    comparison becomes important.  At the jurisdiction stage of the analysis the
    respondents task is to show no real relationship or at most, a weak
    relationship between the subject matter of the action and the forum.

[38]

However, my more important reason for differing with the motion judge
    on this issue draws on the proposition in
Van Breda
that where a tort is committed in Ontario, rebutting the presumption
    of jurisdiction would appear to be difficult but may be possible if only a
    relatively minor element of the tort has occurred in the province.  In this
    case, that simply cannot be shown.  As noted above, the core of the tort of
    negligent misrepresentation is that the misrepresentation is received and acted
    upon.  In this case, the misrepresentation was received and acted upon in
    Ontario.  It cannot be said that only a relatively minor element of the tort
    occurred in this province.  The respondents simply cannot show that only a
    relatively minor element of the tort occurred in the province, and they cannot therefore
    rebut the presumed jurisdiction of the Ontario court over this action.

[39]

I conclude that the appeal must be allowed and that the Ontario court
    can take jurisdiction over the respondents.  The respondents motion must be
    returned to the motion court for a determination of the
forum
    conveniens
issue.

[40]

Costs of the appeal to the appellant fixed at $25,000 in total, payable
    by the respondents jointly and severally.  Costs at first instance are to be
    determined by the motion judge hearing the
forum conveniens
issue.

Released: October 2, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree. E.E. Gillese J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Ontario (Attorney
    General), 2013 ONCA 615

DATE: 20131011

DOCKET: C56130

Laskin, Goudge and Feldman JJ.A.

BETWEEN

Amina Chaudhary

Appellant

and

Attorney General of Ontario

Respondent

Alan Young, for the appellant

Robert E. Charney and Frank Au, for the respondent

Heard: September 18, 2013

On appeal from the judgment of Justice M. Dambrot of the Superior
    Court of Justice, dated September 18, 2012.

By
    the Court:

[1]

The appellant was convicted of first degree murder in 1984. Her appeal
    to this court was dismissed on August 5, 1986 and leave to appeal to the
    Supreme Court of Canada was denied on December 7, 1987.

[2]

The appellant retained The Innocence Project in 1997. The Project has
    brought an application to the Minister under s. 696.1 of the
Criminal Code
for a ministerial review of her conviction on the ground of miscarriage of
    justice.

[3]

On April 19, 2010, the Project commenced an application seeking a broad declaration,
    which was ultimately framed by Dambrot J. as follows at para 1 :

it is a principle of fundamental justice under section 7 of
    the
Canadian Charter of Rights and Freedoms
that upon conviction for
    an indictable offence punishable by life imprisonment all evidence pertaining
    to the case that should have been disclosed under
R v. Stinchcombe,
[1991]
    3 S.C.R. 326, including any evidence and/or information in police investigative
    file [
sic
] that would be subject to disclosure under
Stinchcombe,
be
    preserved for the lifetime of the offender unless:

i.

The offender waives this requirement, or

ii.

A Court Order is obtained, upon notice to the accused, allowing for the
    destruction or other disposition of any or all of the evidence.

[4]

The appellants submissions relating to evidence preservation were
    grounded in specific concerns about lost photographs that could have potential
    relevance for the s.696.1 application. At trial, Dr. Charles Smith, the
    pathologist who conducted the autopsy on the victim, referred in his testimony to
    photographs of bruises on the victims body. Those photographs were not made
    exhibits, however, and now they cannot be found. No other evidence from the
    police file or elsewhere is referred to in the application record before the
    court.

[5]

In his reasons for decision, Dambrot J. explained that a
Charter
remedy under s. 24(1) could only be ordered if a
Charter
right of the
    appellant had been infringed or denied. He then went on to determine whether
    the inability of the Crown to locate the autopsy photographs infringed the
    appellants s. 7
Charter
rights. He concluded at para. 81 of his
    reasons:

In my view, whatever obligation to preserve evidence survives
    the exhaustion of appellate remedies, there is no violation of the
Charter
where the loss or destruction is satisfactorily explained, and no prejudice is
    occasioned to the appellant.

[6]

Dambrot J. noted that as no one on behalf of the appellant had asked to
    see photographs at all since the trial, it was not surprising that they were
    now unaccounted for. He observed that by todays standards, such a loss or
    destruction of evidence would be unacceptable, but that todays standards could
    not be imposed on past events and behaviour. He also concluded that the
    appellant had not demonstrated any prejudice by the loss of the photos, because
    on the evidence produced on the application, the photos would not be able to
    assist the appellant to prove her innocence. As a result, having found no
Charter
breach based on the loss or destruction of the autopsy photos, Dambrot J.
    concluded that no remedy under s. 24(1) could be ordered.

[7]

In his oral argument in this court, counsel for the appellant accepted
    the finding of Dambrot J. that his client had not suffered a
Charter
breach based on the loss of the photographs. His position is that because he
    seeks a declaration of a general duty on the Crown to preserve evidence post-trial
    and appeal, rather than any case-specific remedy, he does not need to rely on and
    therefore does not need to prove a specific
Charter
breach.

[8]

He acknowledged, however, that as a basis for seeking a declaration, he
    did need to demonstrate that there is an evidence file in this case that must
    be preserved for use in the s. 696.1 application and that there is a risk the
    file will be lost in the future. To that end, counsel referred to hair, soil
    and fabric evidence that was relied on at trial as part of the evidence against
    the appellant, which could now be tested with modern methods to try to
    establish the appellants innocence.

[9]

Without commenting on the procedural submissions set out above, a
    preliminary problem with the appellants position is that neither the notice of
    application nor the reasons of Dambrot J. refer in any way to any evidence
    other than the autopsy photographs. To the extent that there is any
    correspondence in the record that deals with the balance of the evidence from
    the investigation and the trial, the response from the Crown is that they have
    two boxes. There is no suggestion that that evidence will not be preserved for
    this ongoing matter.

[10]

Because
    the appellant does not challenge the findings made by Dambrot J. but now seeks
    the declaratory remedy on a basis that is not set out in the record and was not
    the subject of adjudication by Dambrot J., there is no basis for the court to
    entertain an appeal.

[11]

Before
    concluding his reasons, Dambrot J. made some thoughtful,
obiter
observations about the issue of postappeal preservation of evidence, which we
    endorse as well. He stated at paras 87-88:

Unlike preservation of
Stinchcombe
material
    before trial, preservation after appellate rights are exhausted does not give
    rise to a legal principle that can be identified with sufficient precision to
    yield a simple a [
sic
] standard. It would be preferable for there to
    be a carefully developed legislated scheme, which could then be reviewed by the
    Courts for
Charter
compliance

But if there is an obligation on the Crown arising from the
Charter
to preserve
Stinchcombe
material after appellate rights have been
    exhausted, and if the task of developing the response to this issue must fall
    to the Courts, the response should be developed in a nuanced and incremental
    manner. Unlike preservation of relevant material before trial, it requires
    consideration of the differing types of material covered by
Stinchcombe
,
    what subsequent use there may be for such material, questions of dangerousness
    and perishability, and questions of feasibility and cost. In any event, the
    narrow circumstances of this case do not present the occasion to examine these
    difficult questions.

[12]

The
    appeal is dismissed. Costs were not requested and no costs are ordered.

Released: JIL October 11, 2013

J.I. Laskin J.A.

S.T. Goudge J.A.

K.Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chiaramonte v. Chiaramonte, 2013
    ONCA 641

DATE: 20131023

DOCKET: C55971

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Anna Chiaramonte

Applicant (Respondent)

and

Rosario
    Anthony Chiaramonte,

R.A.
    Chiaramonte Dentistry Professional Corporation,

1298443
    Ontario Ltd., Moutchiara Investments Ltd.,

Trident
    Services LLC, Chiaro Company LLC, Legends H.H. 1 LLC

and Titan Services Ltd.

Respondents (Appellants)

Gary Joseph and Kristy Maurina, for the appellants

Lorne Wolfson and Adam Black, for the respondent

Heard: March 21, 2013

On appeal from the order of Justice Lorna-Lee Snowie of
    the Superior Court of Justice, dated August 2, 2012.

Tulloch J.A.:

A.

introduction

[1]

This is a dispute between a husband and wife, following a 19 year
    marriage. There are two children of the marriage. The appellant husband is a
    dentist who also invests extensively in rental real estate properties
    throughout Canada, the United States and Turks & Caicos. He provided
    financial support throughout the marriage. Apart from providing bookkeeping
    services for the appellants dental practice, the respondent wife has not
    worked outside the home for 20 years.

[2]

The parties have been separated since January 2010. Since the breakdown
    of the marriage, the relationship has been acrimonious. Vitriolic allegations
    have been levied by both sides. The wife believes that the husband was
    unfaithful to her during the marriage with one of their employees. The husband
    claims that the wife has a serious alcohol problem that contributed to the
    breakdown of the marriage.

[3]

Following the parties separation, the wife brought an application
    seeking financial relief. The main controversy that has plagued the application
    is the issue of financial disclosure to be provided by the husband. Prior to
    the motion that forms the basis of this appeal, the Superior Court had issued
    at least three orders containing terms relating to the husbands financial
    disclosure.

[4]

The motion judge found that the husband had provided token disclosure
    only, and that he was in wilful breach of the three previous orders. Among
    other orders, the motion judge struck the husbands pleadings pursuant to the
Family
    Law Rules
, O. Reg. 114/99, and ordered that the matter proceed by way of
    an uncontested trial.

[5]

The husband appeals. He submits that he substantially complied with the
    court orders. As for the disclosure obligations, the husband swore affidavits
    providing detailed explanations for any non-compliance. He argues that the
    motion judge made findings of fact that were not supported by the evidence, and
    failed to apply relevant legal principles to consider alternative, less extreme
    remedies. The husband now seeks to set aside those portions of the order
    striking his pleadings and allowing the matter to proceed to an uncontested
    trial.

[6]

The wife contends that there has been significant non-compliance with
    the prior court orders and disclosure requirements. She argues that the motion
    judges findings were supported by the record, that she properly exercised her
    discretion to strike the husbands pleadings pursuant to the
Family Law
    Rules
and that her order is entitled to deference on appeal.

[7]

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

B.

FACTS

Background

[8]

The parties were married on August 3, 1991, and separated on January 27,
    2010. There are two children of the marriage: a daughter, born June 20, 1994,
    and a son, born November 8, 1996. The children now reside with their mother in
    the former matrimonial home.

[9]

The husband maintains a successful dental practice and has compounded
    his wealth by investing in real property. He holds an interest in or is the
    sole shareholder of a number of companies that own dozens of real estate
    investment rental properties throughout Canada, the United States and the Turks
    and Caicos.

[10]

Throughout
    the marriage, the wife was the primary caregiver for the two children and also
    worked as the bookkeeper for the appellants dental practice.

[11]

Following
    the abrupt breakdown of the marriage, the situation between the parties quickly
    deteriorated, resulting in an untenable relationship. Each party has made
    scandalous and vitriolic accusations against the other.

[12]

On
    February 25, 2010, the wife brought an
ex parte
application seeking,
inter
    alia
, child support, spousal support, property vesting orders and
    non-depletion orders. The application was granted, resulting in the freezing of
    the husbands bank accounts and assets, as well as the husbands business and
    investment accounts. He subsequently retained counsel and returned the matter
    to court.

Orders Respecting Disclosure Obligations

[13]

Between
    April 2010 and March 2012, the parties attended on a number of interlocutory
    motions and consented to several orders, at least three of which imposed on the
    husband some form of financial disclosure obligations.

[14]

First,
    in April 2010, Eberhard J. ordered on consent that the husband provide
    financial disclosure in respect of his dental practice, including the
    production of financial statements and the preservation of bank statements and
    deposit books for inspection. Also pursuant to this order, the husband agreed
    to provide monthly accounting and bank statements for each account associated
    with his real estate investment properties. He also agreed to provide records
    for the use of certain funds and to produce certain credit card statements.

[15]

Second,
    in January 2011, Goodman J. ordered, again on consent, that the husband produce
    copies of his monthly statements for certain credit cards.

[16]

Finally,
    in March 2012, Thompson J. ordered that the husband complete and submit to the
    wife an expert valuation of the appellants dental practice and a preliminary
    analysis of the appellants income for at least the previous three years.

The Respondents Motion Below

[17]

This
    appeal arises out of the wifes motion, brought in February 2012, to strike the
    husbands pleadings for alleged breaches of the prior court orders and alleged
    bad faith conduct by the husband in attempting to prolong the litigation, increase
    the wifes costs and generally prevent her from pursuing her claim.

[18]

The
    husband denied these allegations and brought a cross-motion seeking an order
    that the wife comply with certain terms set out in the orders of Bielby and
    Belleghem JJ., dated October 1, 2010, and December 17, 2010, respectively.

[19]

Snowie
    J. heard the motion on August 2, 2012. She made specific findings of fact
    regarding the husbands financial disclosure and, in particular, found that the
    husband had wilfully breached the orders of Eberhard, Thompson and Goodman JJ.:

It is clear to this court the Father considers himself above
    the law and has repeatedly thumbed his nose at the outstanding court orders.
    It appears to be a game of power and control for the father. He has made
    little effort to comply with this courts order for the last 2 ½ years as
    witnessed by the outstanding disclosure (15 pages) attached to this endorsement
    as Schedule A.

I accept all the outstanding disclosure listed in schedule A.
    The disclosure made to date by the father has been token only. He has
    produced a handful of documents here and there in order to feign compliance.
    It is a game for him. He clearly believes that he is smarter than counsel and
    this court and can avoid disclosure. The disclosure he has made is of little
    value.

I find that the father is clearly and wilfully in breach of the
    orders of Justice Eberhard, paras. 8, 10, 11, 12, 13, 14, 17, 18, 19, 20; and
    Justice Thompson dated March 29, 2012, para. 13.

I further find that the father is in breach of Justice
    Goodmans order of January 18, 2011, para. 6. No monthly credit card statements
    have been provided by any of the Respondents as ordered.

[20]

The
    motion judge granted the wifes motion. Among other relief, the motion judge
    struck the husbands pleadings and ordered that the matter be set down for an
    uncontested trial. The motion judge also dismissed the husbands cross-motion
    in its entirety. The husband appeals those portions of the order striking his
    pleadings and setting the matter down for an uncontested trial. Leave to appeal
    the interlocutory aspects of the motion judges order was refused by van
    Rensburg J. on December 31, 2012.

C.

the parties POSITIONS

[21]

The
    crux of the parties dispute concerns the nature and amount of financial
    disclosure provided by the husband to the wife.

[22]

The
    husband submits that he has substantially complied with the disclosure
    obligations set out in the prior court orders. In support of his position, he
    offers a detailed list of bank statements, credit card statements, financial
    statements and records that have been provided to the wife. The husband claims
    that the motion judge simply ignored the evidence.

[23]

The
    husband submits that the wife has changed counsel on three occasions since
    commencing these proceedings and that these changes may have contributed to her
    inability to track the documentation that he provided.

[24]

The
    husband also claims that the wife made it difficult for him to access his
    computer and documents left in the matrimonial home. He points out that she had
    been his bookkeeper and was responsible for entering financial information into
    an accounting program. He alleges that she failed to enter this financial
    information for many months, which further impeded his ability to provide information
    as intended.

[25]

In
    addition, the husband submits that the wife was aware that he was involved in
    legal proceedings with his former accountants, and that the proceedings
    included a request for the return of his files. Eventually, on October 14,
    2011, the appellant moved to compel his former accountants to release his
    files. Thompson J. granted the appellants requests and extended the timeline
    in Seppi J.s order dated August 18, 2011, for the delivery of the husbands
    income tax returns and financial statements. According to the husband, the
    required materials were provided to the wife as they were completed.

[26]

The
    husband seeks to have the order striking his pleadings set aside and to
    participate in the trial of this matter. He argues that the motion judge departed
    from the established principle that pleadings should only be struck in
    exceptional circumstances, and that the motion judge erred in law by failing to
    consider alternative, less extreme remedies. The husband also argues that the
    motion judge made palpable and overriding factual errors in finding that he had
    provided token disclosure only, that only a handful of documents had been
    produced and that all of the allegedly outstanding disclosure was in fact
    outstanding.

[27]

The
    wife argues that the motion judges decision to strike the husbands pleadings,
    and to deny him participation in the trial of this matter, is entitled to
    deference on appeal. Those remedies were within the broad discretion of the
    court under the
Family Law Rules
to deal with a party who is in breach
    of court orders. The wife contends that the motion judge was entitled to prefer
    her evidence as to the sufficiency of the disclosure provided by the husband.
    The motion judges findings that the husband failed to disclose financial
    information, and that he wilfully breached multiple court orders, is supported
    by the record.

D.

Analysis

[28]

As
    a preliminary matter, the wife argues that this court should not entertain the
    appeal since an appellate court has the discretion to refuse to hear the appeal
    of a party who continues to be in wilful breach of an order:
Dickie v.
    Dickie
, 2007 SCC 8, [2007] 1 S.C.R. 346, at paras. 4-6.

[29]

It
    is true that the court has an inherent power to control abuse of its process
    and to refuse to entertain the appeal of a party who is in wilful breach of
    court orders. However, because one of the husbands primary arguments in this
    case is that the motion judge erred in finding that the husband wilfully
    breached court orders for disclosure, it is necessary to consider the merits of
    this appeal.  I note that the parties agreed, at the time of the hearing of the
    motion below, that the husband was up to date with his child and spousal
    support payments based on the imputed income attributed to him by Eberhard J.
    It is also acknowledged that, although the household and s. 7 expenses were not
    being paid, the entitlement to these expenses was in dispute.

The Family Law Rules

[30]

The
Family Law Rules
provide as follows, in relevant part:

1(8) The court may deal with a failure to follow
    these rules, or a failure to obey an order in the case or a related case, by
    making any order that it considers necessary for a just determination of the
    matter, on any conditions that the court considers appropriate, including:

(a) an order for costs;

(b) an order dismissing a claim made by a party
    who has wilfully failed to follow the rules or obey the order.

10(5) If a respondent does not serve and file an
    answer as this rule requires, or the answer is struck out by an order,

(a) the respondent is not entitled to any further
    notice of steps in the case (except as subrule 25 (13) (service of order)
    provides);

(b) the respondent is not entitled to participate
    in the case in any way;

(c) the court may deal with the case in the
    respondents absence; and

(d) the clerk may set a date for an uncontested
    trial.

14(23) A party who does not obey an order that was made
    on motion is not entitled to any further order from the court unless the court
    orders that this subrule does not apply, and the court may on motion, in
    addition to any other remedy allowed under these rules,

(a) dismiss the partys case or strike out the
    partys answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate,
    including an order for costs.

Striking a Partys Pleadings

[31]

In
    family law cases, pleadings should only be struck, and trial participation
    denied, in exceptional circumstances and where no other remedy would suffice:
Purcaru
    v. Purcaru
, 2010 ONCA 92, 75 R.F.L (6th) 33, at para. 47. The exceptional
    nature of this remedy is rooted in the significance of the adversarial system,
    as this court recognized in
Purcaru
, at para. 49:

The adversarial system, through cross-examination and argument,
    functions to safeguard against injustice. For this reason, the adversarial
    structure of a proceeding should be maintained whenever possible. Accordingly,
    the objective of a sanction ought not to be the elimination of the adversary,
    but rather one that will persuade the adversary to comply with the orders of
    the court.

[32]

Striking
    a partys pleadings is a drastic remedy that should only be applied in
    exceptional circumstances. The rules authorizing this remedy must be
    interpreted in light of the draconian effect of rule 10(5)(b). That rule
    provides that a respondent whose answer has been struck is not entitled to
    participate in the case in any way.  For example, in
Kim v. Kim
, 2001
    CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing
    was held on custody, support and property without further notice to the party
    whose pleadings had been struck. Similarly, in
Costabile v Costabile,
2004
    CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not
    entitled to notice of further proceedings nor was he entitled to participate in
    any way.

[33]

It
    is true that a motion judges decision to strike pleadings and deny
    participation at trial is entitled to deference if exercised on proper
    principles:
Purcaru
, at para. 50. Absent palpable and overriding
    factual error, appellate courts ought not to interfere with a motion judges
    properly exercised discretion to strike pleadings. However, given the
    exceptional nature and significant implications of denying a party
    participation at trial, it is essential that this remedy of last resort be
    granted only on a proper evidentiary basis.

Application to the Present Case

[34]

In
    the case at bar, the motion judge concluded that the husband was clearly and
    willfully in breach of three previous orders. In her reasons, the motion judge found
    that the husband had thumbed his nose at the outstanding court orders, and,
    in respect of the disclosure that he did make, that this was token disclosure
    only. She found that the husband had produced only a handful of documents
    here and there.

[35]

A
    review of the record indicates that these findings were erroneous.

[36]

There
    was evidence that the husband had provided a considerable amount of the
    disclosure specifically ordered by Eberhard, Thompson and Goodman JJ. in their
    respective orders. In addition to identifying allegedly outstanding disclosure,
    the wifes affidavit dated July 24, 2012, acknowledges the records that had
    already been produced. These included various personal and corporate bank
    statements, credit card statements, invoices, income tax returns, year-end
    financial statements and listing agreements, much of which addressed the terms
    of the prior court orders referred to by the motion judge.

[37]

In
    my view, the motion judge clearly mischaracterized the husbands disclosure.
    The efforts made by the husband to comply with the court orders were more than
    just token attempts at compliance. Keeping in mind that the husbands financial
    situation is considerably more complex than that of the average family law
    litigant, it is apparent from the record that the husband had been making
    serious efforts to comply with his disclosure obligations. The exhibits
    attached to the husbands affidavit of April 27, 2012, include a personal
    income tax return and year-end financial statements for two of the husbands
    corporations. The exhibits attached to the husbands affidavit of July 10,
    2012, many of which were also attached to an earlier affidavit, include
    personal and corporate bank statements for various accounts; a chart listing
    approximately 40 properties owned by the husband, including purchase price and
    mortgage information; a property appraisal; listing agreements for certain
    properties owned by the husband; and an invoice for valuation services. None of
    this evidence was referred to by the motion judge. It is not clear from her
    reasons that she even considered the affidavit evidence tendered by the husband.

[38]

I
    do not mean to suggest that the husbands disclosure has been perfect. However,
    in my view, the motion judge committed palpable and overriding errors in finding
    that the husband had willfully breached the existing court orders. Justice
    would be best served in this case by allowing the husband to participate at
    trial. The extent of the husbands disclosure may well lead a trial judge to
    conclude that his income or assets exceed the figures disclosed. That
    determination is best left to the trial judge, based on all the evidence,
    including such further evidence as the husband may provide to substantiate his
    position.

[39]

For
    these reasons, I would allow the appeal and set aside those portions of the
    motion judges order striking the husbands pleadings and allowing the matter
    to proceed by way of an uncontested trial.

[40]

The
    husband has been successful on this appeal and is entitled to costs of the
    appeal on a partial indemnity scale plus disbursements and HST.

[41]

The
    husband also asks this court to set aside the costs order of Snowie J. dated
    February 1, 2013, which ordered costs in favour of the wife on a full indemnity
    basis in the amount of $90,616.91 for fees and $10,724.89 for disbursements. The
    wife argues that this court cannot consider the costs order of Snowie J.
    without leave to appeal. However, the general principle is that, when an appeal
    is allowed, the order for costs below is set aside and the costs below and the
    costs of the appeal are awarded to the successful appellant:
St. Jean
    (Litigation Guardian) v. Cheung
, 2009 ONCA 9;
Hunt v. TD Securities
    Inc.
(2003), 43 C.P.C. (5th) 211 (Ont. C.A.). Leave to appeal is not
    required if the substantive disposition is different from that of the decision
    under appeal:
Dines v. Harvey A. Helliwell Investments Ltd.
, [1992]
    O.J. No. 2107 (Ont. C.A.). Accordingly, the motion judges costs order is set
    aside. However, given that the husband does not seek an order for costs below,
    and because the result of this appeal leaves the wife with partial success on
    the motion, no costs below are awarded to the husband.

[42]

As
    to costs of this appeal, if the parties cannot agree, they may make brief
    written submissions. The appellant shall make submissions within 15 days of the
    release of the decision; the respondent will have 15 days to respond.

Released: MHT October 23, 2013

M.H Tulloch J.A.

I agree. M.
    Rosenberg J.A.

I agree. P.D. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    D'Amato v. Kovachis, 2013 ONCA 603

DATE: 20131008

DOCKET: C56228

Laskin, Rosenberg and Pepall JJ.A.

BETWEEN

Carlo DAmato

Appellant

and

Carole Bertrand Kovachis

Respondent

Peter Chmiel, for the appellant

Julie Stanchieri, for the respondent

Heard and released orally: September 20, 2013

On appeal from the judgment of Justice Lorna-Lee Snowie
    of the Superior Court of Justice, dated October 10, 2012.

ENDORSEMENT

[1]

In our view the order sought to be appealed is interlocutory.
    Accordingly, the appeal is quashed for lack of jurisdiction. There shall be no
    order for costs.

J.I. Laskin J.A.

M. Rosenberg J.A.

S.E. Pepall J.A.