COURT OF APPEAL FOR ONTARIO

CITATION: Bielanski v. Mundenchira, 2020 ONCA 811

DATE: 20201215

DOCKET: C66706

van Rensburg, Hourigan and Brown JJ.A.

BETWEEN

Helena Bielanski and Edward Bielanski

Plaintiffs

and

Jocie Varghese Mundenchira, Sisily
    Mundenchira, Amitha Jocie

Mundenchira, Babitha Mundenchira,
    Anthony Vadakkanchery,

Suma Devassy, Bogdan Kaminsky and Suvendu
    Goswami

Defendants

AND BETWEEN

Jocie Varghese Mundenchira, Sisily
    Mundenchira, Amitha Jocie

Mundenchira, Babitha Mundenchira

Plaintiffs by Crossclaim

(Appellants)

and

Suvendu Goswami

Defendant by Crossclaim

(Respondent)

Harry S. Mann, for the appellants

James R.G. Cook and Scott K. Gfeller, for the respondent

Heard: November 20, 2020 by video conference

On appeal from the order of Justice William M. LeMay of
    the Superior Court of Justice, dated February 19, 2019, with reasons reported
    at 2019 ONSC 1162.

REASONS FOR DECISION

[1]

We dismissed this appeal with reasons to follow. These are our reasons.

[2]

The appellants are Jocie Mundenchira, who is a real estate agent and
    investor, and his wife and two adult daughters. They appealed the order of the
    trial judge awarding damages of only $5,000 and dismissing the balance of their
    crossclaim against the respondent, their former lawyer.

[3]

The trial judge concluded that the respondent breached his duty
    of care in acting for the appellants in the purchase of their home (the
    Bluestream property) in 2005. Through oversight in the legal description of
    the property in the deed, instead of receiving a conveyance of one severed 50-foot
    wide lot from the vendors (the Bielanskis), the appellants became the
    registered owners of an unsevered lot that was 100 feet wide, which included the
    property where the Bielanskis continued to live. The error was cured in 2012,
    after
the respondent obtained a consent to sever and after
the
    Bielanskis started an application to have their property transferred back to
    them.
The appellants settled the proceeding with the
    Bielanskis by transferring the severed lot and receiving payment from them for the
    property taxes the appellants had paid between 2005 and 2012 on the Bielanskis
    property.

[4]

The central issue at trial was whether the respondents breach of the
    duty of care caused any damage or loss to the appellants and, if so, the amount
    of damages. The trial judge awarded $5,000 in damages, which represented the
    refund of a retainer the appellants paid to the respondent in respect of the litigation
    with the Bielanskis.

[5]

In June 2009 the appellants listed the Bluestream property for
    sale at a price of $1.125 million, in anticipation of their move to a new
    custom home. The appellants eventually sold the Bluestream property to their
    friends in 2011.
In their crossclaim against the respondent
    the appellants claimed damages which included: (a) $235,000 for the reduction
    in the value of the Bluestream property due to the title defect; (b) $66,784 in
    carrying costs for the Bluestream property from the original listing date until
    it was sold; (c) $390,000 in business losses as a result of the equity of the
    Bluestream property being tied up between 2009 and 2012 and the lost
    opportunity to use the money to invest in condominiums; (d) interest on the
    property taxes they had recovered from the Bielanskis; (e) fees paid to the
    respondent and costs paid by the appellants to the new purchasers of the
    Bluestream property; and (f) damages for aggravation and mental distress in the
    sum of $200,000.

[6]

We are not persuaded that there was any palpable
    and overriding error in the trial judges conclusion that the damages claimed
    by the appellant (other than the $5,000 that was awarded) were not reasonably
    foreseeable, supported by the evidence, or caused by the respondent lawyers
    error.

[7]

First, there was no palpable and overriding
    error in the trial judges conclusion that the reason for the appellants delay
    in selling the Bluestream property was the fact that the propertys listing
    price was too high, and that there was no evidence linking the delay and any
    reduction in value to the title defect. As the trial judge noted, there was no
    reliable evidence on the record that potential purchasers were not making
    offers to purchase the Bluestream property because the property taxes were too
    high. Rather, he concluded that the reason the property did not sell in 2009
    was because Mr. Mundenchira had an unreasonable view of the value of the house:
    at para. 108. The trial judge explained why he was not persuaded by the
    appellants evidence (a package of listings of other custom-built homes with
    list prices ranging from $870,000 to $1.149 million), where it was impossible
    on the record before him to compare the relative features of the different
    houses to the Bluestream property: at para. 109. The trial judges findings of
    fact based on his assessment of the evidence and its weight is entitled to
    deference, absent a palpable and overriding error: see
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras.
    10, 11, 25. We see no such error in the trial judges conclusion on this point.

[8]

Second, the trial judge found that the
    appellants knew as early as 2005, but at the latest by 2009 when this discrepancy
    was noted on the June 2009 appraisal they obtained before listing the Bluestream
    property for sale, that they had received a conveyance of both halves of the unsevered
    lot rather than a single severed lot, yet they did nothing to rectify the
    problem until October 2010. This conclusion was open to the trial judge on a
    consideration of the evidence, including Mr. Mundenchiras email to MPAC in
    September 2009, stating, I have represented this since we bought the property
    in 2005 (
and referring to the records showing his property as being 100
    feet wide whereas his belief was that his property was only 50 feet wide),
as well as the trial judges rejection of Mr. Mundenchiras evidence
    on this point, which he found to be lacking in credibility.

[9]

Third, the trial judge did not err in refusing
    to accept, as expert evidence, the opinion of a business valuator purporting to
    calculate the appellants business losses that were alleged to have occurred as
    a result of the delay in the sale of the Bluestream property. The trial judge
    did not err in his identification of the test for admission of expert evidence
    or in its application. The trial judge observed that the proffered expert
    evidence was simply a mathematical calculation that flowed from assumptions by
    Mr. Mundenchira and his counsel and that there was no verification of inputs.
    Moreover, the appellants had refused to produce banking records and other
    financial information on discovery. In any event, the experts testimony was
    irrelevant once the trial judge had concluded that the alleged business losses
    were not caused by the title defect.

[10]

Finally, the appellants demonstrated no error in
    the trial judges conclusion that the respondent was not liable for the
    interest on the property taxes they were reimbursed by the Bielanskis, which
    they ought to have recovered from the Bielanskis, and that the claim for
    damages for aggravation and mental distress failed for lack of evidence.

[11]

For these reasons the appeal was dismissed. The respondent is
    entitled to his costs in the agreed amount of $15,000, inclusive of
    disbursements and HST.

K. van Rensburg J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bowles v. Al Mulla Group, 2020 ONCA 761

DATE: 20201202

DOCKET: C68342

Fairburn A.C.J.O., Pepall and Roberts JJ.A.

BETWEEN

Samih Mouris Toudrous Bowles

Plaintiff (Appellant)

and

Al Mulla Group and
    Anwar Abdulla Al Mulla and Ahli
United Bank K.S.C.P.

Defendants (Respondents)

Menreet Salama and Peter Karam, for the appellant

George J. Karayannides and Mark C. Mandelker, for the respondents

Heard: November 13, 2020 by videoconference

On appeal from the order of
    Justice David E. Harris of the Superior Court of Justice, dated April 21, 2020,
    with reasons at 2020 ONSC 2453.

REASONS FOR
    DECISION

[1]

Following a motion brought by the respondents, the appellants action
    was stayed for want of jurisdiction on the basis that it has no real and
    substantial connection to Ontario.

[2]

In his action initiated on May 14, 2018, the appellant seeks substantial
    damages against the respondents, including $150 million in general damages and
    $100,000 in punitive damages. The respondents are all resident in Kuwait with
    no assets or presence in either Ontario or Canada.

[3]

Beginning in May 2006, the appellant was employed by a subsidiary of
    Bader Al Mulla, one of the respondents, as a used car appraiser. By January
    2009, his employment was terminated. He alleges that he was asked by his employer
    to falsify documents that would be used by his employer to construct a defence
    to an action relating to vehicles sold to a Kuwaiti individual. The appellant refused
    to participate in this alleged fraudulent scheme.

[4]

As a result of his refusal, the appellant claims that between January
    2009 and August 2017, through a conspiracy carried out by the respondents, the
    police, and the Royal Family of Kuwait, he was arrested, beaten, and tortured
    in Kuwait, thereby suffering severe, permanent, and life-altering injuries. He
    says that in August 2017, he fled Kuwait with his family and was granted
    refugee status in Canada. He further claims he cannot return to Kuwait out of
    fear for his life because of the respondents who have allegedly made threats
    through a Twitter account and sent threatening text messages to the appellant
    in Canada.

The Forum of Necessity Doctrine

[5]

While the appellant concedes that his action has no real and substantial
    connection to Ontario, he submits the motion judge erred by failing to assume
    jurisdiction in accordance with the forum of necessity doctrine, which is also
    known as the forum of last resort:
Van Breda v. Village Resorts Limited
,
    2010 ONCA 84, 316 D.L.R. (4th) 201, at paras. 54, 100, affd on other grounds
    2012 SCC 17, [2012] 1 S.C.R. 572. The appellant says that the motion judge erred
    by failing to consider his refugee status and the threat to his safety if he
    were to pursue his claim in Kuwait.

[6]

We do not accept these submissions. The motion judge correctly
    considered and applied the forum of necessity doctrine to the evidentiary
    record before him and declined to exercise his discretion to assume
    jurisdiction. Absent a misdirection, a lack of weight given to relevant
    considerations, or a decision so clearly wrong amounting to an injustice, the
    motion judges discretionary decision is entitled to deference on appeal:
Ibrahim
    v. Robinson
, 2015 ONCA 21, 380 D.L.R. (4th) 306, at para. 12, citing
Penner
    v. Niagara (Regional Police Services Board)
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27;
Arsenault v. Nunavut
, 2016 ONCA 207, at para. 4.

[7]

As the motion judge correctly noted, the forum of necessity
    doctrine operates as an exception to the real and substantial connection test
    in extraordinary circumstances where there is no other forum in which the
    plaintiff can reasonably seek relief:
Van Breda
, at para. 100;
West
    Van Inc. v. Daisley
, 2014 ONCA 232, 372 D.L.R. (4th) 613, at paras. 20,
    40, leave to appeal refused, [2014] S.C.C.A. No. 236;
Forsythe v. Westfall
,
    2015 ONCA 810, 393 D.L.R. (4th) 141, at paras. 53, 55, leave to appeal refused,
    [2015] S.C.C.A. No. 460. It allows courts a residual discretion to assume
    jurisdiction where, despite the absence of a real and substantial connection,
    there is the need to ensure access to justice:
Van Breda
, at para. 100.
    It is well established that this doctrine is very stringently construed and reserved
    for exceptional cases, and therefore typically unavailable because of its high
    bar:
West Van Inc.
, at para. 40;
Forsythe
, at para. 55.

The Alleged Physical Threat to the Appellants Safety

[8]

The onus was squarely on the appellant to establish through cogent
    evidence that his was an exceptional case justifying the courts rare assumption
    of jurisdiction on the basis of the forum of necessity doctrine:
West Van
    Inc.
, at para. 39. As he was entitled to do, the motion judge simply did
    not accept the adequacy of the appellants evidence in support of his assertion
    that the forum of necessity doctrine applied.

[9]

First, the motion judge determined that there was no cogent corroborating
    evidence of the appellants alleged atrocious injuries or of his assertions of
    harm caused by the respondents, which one would expect given the nature of the alleged
    harm. Second, the motion judge could not find any credible evidence that the threats
    via Twitter and the threatening text messages emanated directly or indirectly from
    the respondents and therefore gave them no weight. Third, he also observed that
    the appellant had achieved partial success in the proceedings that he had instigated
    in Kuwait before his departure for Canada, including for loss of his employment.

[10]

As
    a result, the motion judge was not persuaded that the forum of necessity doctrine
    should be invoked to assume jurisdiction over the appellants claims. We see no
    reason to interfere with his conclusion.

The Appellants Refugee Status

[11]

We
    are not persuaded by the appellants submission that the motion judge erred in
    failing to take into account his refugee status in Canada. The motion judge
    expressly referenced the fact that the appellant came to Canada as a refugee.
    However, the appellants refugee status was not determinative of whether the
    motion judge should exercise his discretion and assume jurisdiction in
    accordance with the forum of necessity doctrine. It was only one factor among
    several in the analysis of all the relevant circumstances that the motion judge
    considered.

[12]

Moreover, before the motion judge, other than his own evidence,
    the appellant produced no documentation that revealed the basis for his refugee
    status.
Self-serving affidavits with nothing more are
    insufficient to invoke the application of such an extraordinary order: see
Guarantee
    Co. of North America v. Gordon Capital Corp.
, [1999] 3
    S.C.R. 423, at para. 31.
In answer to his undertaking given on cross-examination
    dated January 10, 2020, the appellant apparently produced some documentation
    concerning his refugee status on November 9, 2020; however, this was long after
    the motion had been argued and disposed of. The appellant did not seek to submit
    the documentation as fresh evidence on his appeal.

[13]

Lastly,
    we note that while the appellants passport was in fact returned to him in
    2009, he did not leave Kuwait for Canada until August 2017 and until the
    conclusion of his various legal proceedings in Kuwait in which he was seeking
    compensation and was represented by counsel.

[14]

We
    see no error in the motion judges decision warranting appellate intervention.

Disposition

[15]

Accordingly,
    the appeal is dismissed.

[16]

The
    respondents are entitled to their partial indemnity costs in the amount of $12,000,
    inclusive of disbursements and applicable tax.

Fairburn A.C.J.O.

S.E. Pepall J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Federation of Students v.
    Ontario (Colleges and Universities), 2020 ONCA 842

DATE: 20201223

DOCKET: M52004, M52008, M52013, M52021, M52034
    & M52035 (C68262)

Fairburn A.C.J.O. (Motion Judge)

BETWEEN

The Canadian Federation of
    Students and the York Federation of Students

Applicants (Respondents)

and

Ontario (Minister of Colleges
    and Universities)

Respondent (Appellant)

Sunil S. Mathai, Kisha Chatterjee, Ananthan
    Sinnadurai and Brent Kettles, for the appellant

Mark Wright, Louis Century and Geetha
    Philipupillai, for the respondents the Canadian Federation of Students and the
    York Federation of Students

David Elmaleh and Aaron Rosenberg, for
    the proposed intervener Bnai Brith of Canada League for Human Rights

Ewa Krajewska, Teagan Markin and Mannu
    Chowdhury, for the proposed intervener University of Toronto Graduate Students'
    Union

Pam Hrick and Dragana Rakic, for the
    proposed interveners Start Proud and Guelph Queer Equality

M. Philip Tunley and Jennifer P.
    Saville, for the proposed interveners Canadian Journalists for Free Expression,
    Centre for Free Expression, Canadian Association of Journalists, PEN Canada,
    World Press Freedom Canada and Canadian Association of University Teachers

Robert A. Centa and Lauren Pearce, for
    the proposed interveners the University of Ottawa, Queens University at
    Kingston, the Governing Council of the University of Toronto, the University of
    Waterloo, and the University of Western Ontario

Danny Kastner and Vinidhra
    Vaitheeswaran, for the proposed intervener the Association for Canadian
    Clinical Legal Education

Heard: in writing

REASONS FOR DECISION

[1]

Pursuant to Rule 13.02 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, six moving parties seek leave to
    intervene as friends of the court in a pending appeal from the Divisional
    Courts decision in
Canadian Federation of Students v. Ontario
, 2019
    ONSC 6658. The appeal is scheduled to be heard on March 23 and 24, 2021.

[2]

In December 2018, the Ontario Cabinet required the
    Minister of Training, Colleges and Universities to direct publicly-funded colleges
    and universities to allow students to opt out of ancillary fees related to
    student associations, products and special services. In March 2019, the
    Minister issued the Student Choice Initiative, which was incorporated in
    policy directives for colleges and guidelines for universities. The Initiative
    categorized student fees into either essential mandatory fees or non-essential
    optional fees. At its core, the Initiative allows students to opt out of many
    fees relating to student associations, products and special services.

[3]

The respondents on appeal brought an application
    for judicial review to the Divisional Court seeking to quash the directives
    underlying the Initiative. The Court granted the application and quashed the directives
    on the basis that they are inconsistent with the statutory scheme respecting
    the governance of universities and colleges.

[4]

Ontario has been granted leave to appeal that
    decision. The issues on appeal are whether the Divisional Court erred in law by
    concluding:

i.

that the various university statutes occupy the
    field such that they displace or limit the Crowns spending power; and

ii.

that s. 7 of the
Ontario Colleges of Applied
    Arts and Technology Act
, 2002, S.O. 2002, c. 8, prohibited the Minister from
    issuing the directive concerning colleges.

[5]

The motions to intervene are brought by:

i.

Bnai Brith of Canada League for Human Rights
    (Bnai Brith);

ii.

University of Toronto Graduate Students Union
    (UTGSU);

iii.

Start Proud and Guelph Queer Equality
    (collectively, the LGBTQ+ Coalition);

iv.

the University of Ottawa, Queens University,
    the Governing Council of the University of Toronto, the University of Waterloo,
    and the University of Western Ontario (collectively, the Universities);

v.

the Association for Canadian Clinical Legal
    Education (ACCLE); and

vi.

the Canadian Journalists for Free Expression,
    the Centre for Free Expression, the Canadian Association of Journalists, PEN
    Canada, World Press Freedom Canada, and the Canadian Association of University
    Teachers (collectively, the Coalition).

[6]

The appellant, Ontario, consents to the motions
    for leave to intervene brought by Bnai Brith and UTGSU. Ontario takes no
    position respecting the proposed interventions by the LGBTQ+ Coalition, the
    Universities and ACCLE. Ontario opposes the proposed intervention by the
    Coalition. It does so on the basis that the Coalition seeks to raise what
    Ontario describes as a new issue on appeal.

[7]

The respondents, Canadian Federation of Students
    and the York Federation of Students (Student Federations), do not oppose any
    of the motions to intervene.

[8]

I will now explain why I have decided that
    intervener status should be granted to each of the proposed interveners.

[9]

Bnai Brith and UTGSU intervened as friends of
    the court before the Divisional Court. In light of their prior contributions to
    this case and the parties positions, I would grant Bnai Brith and UTGSU
    intervener status as friends of the court in accordance with the terms set out
    at the end of these reasons.

[10]

Turning to the balance of the proposed
    interventions, multiple criteria are considered when deciding whether to grant
    leave to intervene as a friend of the court. These considerations include the
    general nature of the case, the issues that arise in the case, and the
    contribution that the intervener can make to those issues without doing an
    injustice to the parties:
Jones v. Tsige
(2011), 106 O.R. (3d) 721 (C.A.),
    at para. 22. As Dubin C.J.O. put it in
Peel (Regional Municipality) v.
    Great Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164
    (C.A.), at p. 167:

Although much has been written as to the
    proper matters to be considered in determining whether an application for
    intervention should be granted, in the end, in my opinion, the matters to be
    considered are the nature of the case, the issues which arise and the
    likelihood of the applicant being able to make a useful contribution to the
    resolution of the appeal without causing injustice to the immediate parties.

[11]

In my view, this appeal raises issues that have
    a far-reaching impact on all publicly-funded universities and colleges in
    Ontario, as well as the student organizations within those institutions and the
    student body that attends them. Therefore, the resolution of this appeal will affect
    a wide array of interests, extending beyond the parties involved.

[12]

Additionally, each proposed intervener has an
    interest that is engaged in the pending appeal: (a) the LGBTQ+ Coalition and
    the ACCLE claim they have already experienced a serious reduction in funding as
    a result of the Initiative; (b) the Universities claim an impact on their
    autonomy arising from governmental interference; and (c) the part of the Coalitions
    membership, including 72,000 post-secondary personnel, has a mandate that
    includes improving the quality of post-secondary education in Canada, something
    that they say could be seriously adversely impacted by the Initiative.

[13]

I am satisfied that each of the proposed
    interveners have useful and important contributions to make on appeal and will
    provide perspectives that will not be offered by the parties. Regarding the
    proposed interveners in relation to which Ontario does not take a position,
    they have the following important perspectives to offer:

i.

The LGBTQ+ Coalition is well-positioned to
    provide the court with the perspective of LGBTQ+ students and how the
    Initiative impacts their student organizations.

ii.

The Universities can provide insight into the
    relationship between institutional autonomy, government accountability and
    academic freedom within the specific legislative context at issue on appeal.

iii.

The ACCLE will bring the perspective of student
    legal clinics and the impact of reduced funding on the sustainability of these
    services and the detrimental effects on students that could arise from the
    decrease in these services.

[14]

In my view, each of these proposed interveners
    is well-positioned to make an important contribution to the resolution of the
    issues on appeal. As reflected in the parties positions respecting the
    proposed interventions of the LGBTQ+ Coalition, Universities and ACCLE, no
    injustice to the parties will result from the motions being granted. Each
    proposed intervener has undertaken to not raise any new issues or adduce new
    evidence on appeal. Accordingly, I would grant each of them leave to intervene
    as a friend of the court on the terms set out at the end of these reasons.

[15]

This leaves the motion to intervene brought by the
    Coalition. Ontario opposes this motion while the respondents do not oppose it.

[16]

The Coalition contends that it has a distinct
    perspective to bring to the appeal. The Coalition wishes to ask this court to
    use s. 2(b) of the
Charter of Rights and Freedoms
, and the values
    underlying this provision, as an interpretative aid in resolving the issues of
    statutory interpretation that are engaged by this appeal. The Coalition would
    argue that, when viewed through the lens of the free expression values and
    purposes that underlie Ontarios legislative scheme for the governance of
    universities and colleges, the Divisional Courts interpretation of the
    applicable legislation is correct and should be upheld. In advancing this
    argument, the Coalition recognizes that it may not add new legal issues beyond
    those in relation to which this court granted leave to appeal. Accordingly, the
    Coalition acknowledges that it may not raise an issue as to whether the rights
    and freedoms protected by s. 2(b) of the
Charter
are directly infringed
    by the Initiative.

[17]

Ontario argues that the Coalitions motion to
    intervene should be dismissed because the Divisional Court did not characterize
    the governing legislation as ambiguous, nor did it use s. 2(b) of the
Charter
as an interpretative aid. Ontario emphasizes that
Charter
values may
    only be used as an interpretive aid where there is a genuine ambiguity in the
    legislation:
Wilson v. British Columbia (Superintendent of Motor Vehicles)
,
    2015 SCC 47, [2015] 3 S.C.R. 300, at paras. 20-25. As the Divisional Court did
    not find ambiguity in the legislation, and neither party has argued that an
    ambiguity exists, the Coalitions s. 2(b) argument reflects a new issue on
    appeal. Permitting the Coalition to raise this argument at this late stage
    will, according to Ontario, work an unfairness to the parties.

[18]

I do not agree. The appeal squarely raises the
    issue of the proper interpretation of legislation affecting the governance of
    universities and colleges. The appropriateness of using s. 2(b) as an
    interpretive tool is not a new legal issue, but rather is a new argument being
    introduced to support the Divisional Courts interpretation of the applicable
    legislative provisions.

[19]

This court may conclude that the relevant
    provisions are ambiguous even though the Divisional Court did not, and even
    though the parties are not arguing that the legislation is ambiguous. Were the
    court to reach this conclusion, it is not beyond the realm of possibility that
    s. 2(b) of the
Charter
could be considered as an interpretative tool
    to resolve the ambiguity. While the Coalitions argument that the legislation
    is ambiguous may not ultimately be found persuasive, in my view, the
    Coalitions submissions may be of assistance to the court in conducting the interpretative
    exercise demanded by this appeal. Moreover, since the parties will have an
    opportunity to respond to the Coalitions arguments, no prejudice will result
    from its participation as a friend of the court.

[20]

Accordingly, each of the proposed interveners is
    granted intervener status as a friend of the court on the following terms:

i.

Each of the interveners may file a factum of no
    more than 15 pages in length.

ii.

The interveners shall not raise new issues or
    adduce new evidence.

iii.

There shall be no costs awarded for or against
    any of the interveners on these motions or the appeal.

iv.

The intervener factums are to be served and
    filed no later than January 22, 2021.

v.

The appellant and respondents may file a factum responding
    to the interveners arguments of no more than 25 pages in length. This is an
    increase from the order previously made, that the parties could file responding
    factums of 15 pages length.

vi.

The parties responding factums must be served
    and filed no later than February 19, 2021.

vii.

Oral argument for the interveners, if any, will
    be determined after their factums have been filed and considered.

Fairburn
    A.C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Comfort Capital Inc. v. Yeretsian, 2020 ONCA 846

DATE: 20201230

DOCKET: C67460

Feldman, Simmons and Harvison Young JJ.A.

In the Matter
    of Section 243(1) of the
Bankruptcy and

Insolvency
    Act,
R.S.C. 1985, c. b-3, as amended and section 101

of the
Courts of Justice Act,
R.S.O.
    1990 c. c.43, as amended

BETWEEN

Comfort
    Capital Inc., The Bank of Nova Scotia Trust Company, E. Manson Investments
    Ltd., Fenfam Holdings Inc., 593651 Ontario Ltd., 1031436 Ontario Inc., Alrae
    Investments Inc., Barry Spiegel, Sharon Nightingale, David Sugar, Phyllis Sugar,
    National Tire Ltd., 1119778 Ontario Limited, 1415976 Ontario Limited, Alrae
    Investments Inc., Bamburgh Holdings Ltd., Beverley Gordon, Diane Grafstein,
    Richard Gruneir, B. & M. Handelman Investments Ltd., Ridgeway Occupational Consultants
    Inc., Yerusha Investments Inc., Mihal Tylman, A. Eliezer Kirshblum, 593651
    Ontario Limited, The Bank of Nova Scotia Trust Company in Trust for Bailey
    Levenson, The Bank of Nova Scotia Trust Company in Trust for Rosemonde Kelly, Anne
    Handelman, Yerusha Investments Inc., Celmar Investments Corp., Beverley Gordon,
    Philgor Investments Ltd., Brilliant Investcorp Inc., Maxoren Investments, 2227046
    Ontario Limited, Dast Properties Limited, Tova Markovzki, Joseph Suckonic and
    B. & M. Handelman Investments Limited

Applicants

and

Annie Yeretsian,
    Terry Wilson, 2457674 Ontario Inc., 2399029 Ontario Inc., and Moss Development
    Ltd.

Respondents

James Zibarras, for the appellant Canada Investment
    Corporation

Doug Bourassa, for the respondents Stanbarr Services Limited,
    Janodee Investments Ltd., Meadowshire Investments Ltd., Regard Investments
    Ltd., 1563503 Ontario Limited, Beaver Pond Investments Ltd., The Canada Trust
    Company, Rita Rosenberg and 527540 Ontario Limited

Eric Golden and Elsir Tawfik, for Rosen Goldberg Inc.,
    in its capacity as court-appointed receiver in the within proceeding

Heard: November 2, 2020, by videoconference

On appeal from the
    order of Justice Michael A. Penny of the Superior Court of Justice, dated September
    13, 2019, with reasons reported at 2019 ONSC 5303, 73 C.B.R. (6th) 294.

REASONS FOR DECISION

[1]

Canada Investment Corporation (CIC) appeals from an order of the
    Commercial List motion judge made in the context of a court-ordered claims
    process in the receivership of a debtor of CIC. The order directs that surplus
    proceeds held for CIC arising out of a receivership sale of one of the debtors
    properties be paid to particular creditors of CIC (Stanbarr Services Limited
    and eight other parties, collectively the Stanbarr claimants), as recommended
    by the Receiver in its Tenth Report to the court.

[2]

The receivership order was made on February 28, 2018 under s. 243(1) of
    the
Bankruptcy and Insolvency Act
,
R.S.C., 1985, c. B-3 and s.
    101 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Properties
    under receivership were sold and proceeds recovered. The applicants held first
    mortgages against six properties owned by the debtors. Various related
    corporations, including CIC, held subsequent mortgages on various of the six
    properties.

[3]

Around the time of the receivership, a principal of CIC and the related
    corporations holding subsequent mortgages was charged with fraud. Resulting
    publicity led to
Mareva
-like claims being advanced in the receivership
    to freeze surplus proceeds arising from the sale of any of the six properties.

[4]

As a result of these claims, a claims process was established on consent
    by orders dated August 3, 2018 and January 25, 2019 under which claimants could
    prove a direct claim against one of the subsequent mortgagee corporations on a
    balance of probabilities, entitling the claimant to a pro rata unsecured claim
    against surplus proceeds to which the particular mortgagee corporation was
    entitled.

[5]

CIC held a second mortgage on one of the six properties (the Caldwell
    property). The receivership sale of the Caldwell property yielded surplus
    proceeds totaling $784,843 to which CIC was entitled.

[6]

In June 2018, the Stanbarr claimants moved in the receivership for an
    order requiring the Receiver to pay the surplus proceeds from the Caldwell sale
    to which CIC was entitled into court, to meet its claim against CIC arising out
    of an action they were pursuing against CIC (the Scollard action).

[7]

The Scollard action arose out of a sale under power of sale conducted by
    CIC in June 2014, which yielded proceeds of sale of $5,875,000. CIC held the
    first mortgage on the Scollard Street property forming the subject of the
    action and the Stanbarr claimants held 11 subsequent mortgages. Following the
    sale of the Scollard property, CIC failed to account to the Stanbarr claimants
    for the proceeds of the sale.

[8]

At a hybrid trial in that action, the Stanbarr claimants successfully
    challenged the validity of the notice of sale on two bases: first, the notice
    of sale was not served on them; second, the $2,988,966.14 amount claimed in the
    notice of sale was improperly inflated by more than $1.1 million in expenses
    plus interest CIC claimed it had incurred prior to obtaining an assignment of
    the first mortgage. The trial judge, Matheson J., did not, however, determine
    the final amount owing on the mortgage as of the date of closing, which CIC had
    claimed was $6,010,856.32, holding that the propriety of post-acquisition
    expenses CIC claimed remained to be determined. As a result, the Stanbarr
    claimants did not obtain a money judgment against CIC arising out of this trial.

[9]

In the context of the Receivership proceedings, by July 27, 2018, CIC and
    the Stanbarr claimants agreed that the funds that would otherwise have been
    paid by the Receiver to CIC from the sale of the Caldwell property, would be
    paid to the Accountant of the Superior Court of Justice to the credit of the
    Scollard Action, obviating the need for a
Mareva
injunction.

[10]

In
    its Tenth Report to the court, relying on Matheson J.s findings in the Scollard
    action, the Receiver determined that at most, CIC could have been entitled to
    $4,848,383.54 from the Scollard Street proceeds, leaving a minimum balance
    owing to the Stanbarr claimants of $920,449.12. In those circumstances, the Receiver
    recommended that, subject to various costs deductions, the Caldwell surplus
    proceeds of $784,843 belonging to CIC, which had already been paid into court
    on consent, should be paid to the Stanbarr claimants.

[11]

The
    motion judge accepted this recommendation.

Analysis of Issues

[12]

The
    issues CIC raises on appeal are the same issues raised before the motion judge
    and addressed by him. Therefore, on the appeal, the issue before the court is
    whether the motion judge made a reviewable error.

[13]

First,
    CIC argues that the motion judge erred by making an order in Stanbarrs favour for
    payment when it never submitted a claim by way of statement of claim. All it
    did was move for a
Mareva
injunction. It was therefore entitled to no
    more than that remedy.

[14]

The
    motion judge rejected that argument. He referred to the rules of the claims process
    established by the order of Chiappetta J. that a party making a claim to
    surplus proceeds would have to prove on a balance of probabilities that it had
    a direct claim against CIC. Both Stanbarr and CIC chose to rely on affidavits from
    the earlier
Mareva
stage of the proceedings. The
Mareva
issue
    had been resolved by the payment into court. The only issue left was
    determination of the claims. The process was a consent process in which all
    parties participated. There was no confusion that Stanbarrs participation was
    based on its claim to the surplus of the sale of the Caldwell property.

[15]

We
    see no error in the motion judges analysis. The consent procedure was followed.
    There was no requirement for a statement of claim.

[16]

Second,
    CIC submits that the motion judge erred by holding that it bore an onus to
    demonstrate why the Receivers recommendation should not be followed when the
    claims procedure clearly required the Stanbarr claimants to prove their claim
    on a balance of probabilities.

[17]

The
    motion judge held that the onus was on the party disputing the Receivers recommendation,
    relying on two cases,
Coast Capital Savings Credit Union v. Symphony
    Development Corp.
, 2011 BCSC 333, 75 C.B.R. (5th) 221, and
DBDC
    Spadina Ltd. v. Walton
,
2015 ONSC 5608, 30 C.B.R. (6th) 308. The
    onus of proof on the claimant, provided for in the claims process rules, was
    for the purpose of the Receivers report and recommendation. On the review, the
    onus shifts to the party disputing that recommendation to show sufficient
    reason why it should not be followed.
In
DBDC Spadina
, Newbould J. stated the rule at para. 3:

On an appeal from a disallowance of a claim, the
    court should only intervene in the case of an error of law or a palpable and
    overriding error of fact. See Houlden, Morawetz and Sarra,
2015
Annotated
    Bankruptcy and Insolvency Act
, (Thomson Reuters Canada Limited)
    at §G109(1).

[18]

We
    agree with the motion judge. He applied the correct onus on the review.

[19]

Third, CIC argues that the motion judge erred in accepting the Receivers
    recommendation that a finding in the Scollard trial judges reasons was
    dispositive of the Stanbarr claim when the final amount owing under the CIC
    mortgage in the Scollard action was left as an outstanding issue yet to be
    determined in a further proceeding in the Scollard action.

[20]

In the Scollard action between the Stanbarr group and CIC over the sale
    proceeds from a mortgaged property on Scollard (not part of the receivership), at
    the outset of the trial the parties agreed that the following issue would be
    determined by the trial judge, Matheson J.:

Is the amount of the [CIC] mortgage set
    out in the Notice of Sale dated November 28, 2013, overstated by the inclusion
    of those expenses set out in exhibits A and B of the Supplemental Affidavit of
    George Safarion sworn August 10, 2014, excluding those expenses incurred after
    August 2013?

[21]

The expenses referred to are the expenses alleged to have been incurred
    before the assignment of the first mortgage to CIC on August 9, 2013 for
    $779,720.86, which Matheson J. found was full value, not discounted. She found
    that the pre-assignment expenses claimed in the amount of more than $1.1
    million were invalid. However, she left the final determination of the amount
    to which CIC was entitled to a future hearing because the validity of the post
    assignment expenses had not yet been adjudicated. Matheson J. also found that
    the Notice of Sale of the Scollard property was not valid. An appeal was taken
    from the latter finding, but although the original notice of appeal also challenged
    the finding of invalidity of the pre-assignment expenses, the appellant, CIC,
    abandoned that portion of the appeal.

[22]

The Receiver used the figures found by Matheson J. quantifying the disallowance
    of the pre-assignment expenses to find that CIC received an amount from the
    Scollard sale that should have gone to the Stanbarr claimants on their second
    mortgage. The amount owed to the Stanbarr claimants was greater than the
    proceeds of the Caldwell sale being held for CIC in the receivership. As a
    result, the Receiver concluded that the Caldwell proceeds should be paid to the
    Stanbarr claimants on their claim against CIC.

[23]

CIC argued before the motion judge, as it does on the appeal, that the
    issue of the quantification of the pre-assignment expenses was not finalized by
    Matheson J. but left for a future further hearing. Therefore, the Caldwell
    proceeds paid into court to the credit of CIC cannot be paid out to the
    Stanbarr claimants in the claims process, but must await the further hearing in
    the Scollard action.

[24]

The motion judge rejected this argument. Using the findings from the
    Scollard trial, the Receiver was able to calculate precisely the amount of the invalid
    pre-assignment expenses, which CIC did not challenge in the claims process. As
    there was no appeal from the decision of Matheson J. on the issue of the
    pre-assignment expenses, the quantification based on her findings was
res
    judicata
. More precisely, the doctrine of issue estoppel applies. Issue
    estoppel precludes the re-litigation of issues previously decided in court in
    another proceeding:
Lilydale Cooperative Limited v. Meyn Canada Inc.
,
    2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 22. The validity of the
    pre-assignment expenses was squarely before Matheson J. and CIC attempted to
    justify its pre-assignment expenses during that proceeding. Matheson J.
    considered and rejected CICs arguments. The only matter left for a future
    hearing was the quantification of any post-assignment expenses, and using both
    quantifications, the determination of the final amount owing to CIC on its Scollard
    mortgage.

[25]

We agree with the motion judge. There is no basis to interfere with his
    findings on the effect of the hearing before and the reasons of Matheson J. in
    the Scollard action, which was to partially quantify the amount owing to the
    Stanbarr claimants by CIC from the proceeds of the Scollard property sale. He therefore
    made no error by accepting the recommendation of the Receiver that the surplus
    funds from the Caldwell sale be paid out to the Stanbarr claimants in respect
    of their claim against CIC in the Scollard case.

Post Hearing Issue

[26]

After reserving its decision, the court sought written submissions from
    all parties on the following issue: Because this claims process only included claimants
    who had sought a
Mareva
injunction against CIC in order to freeze the
    funds held by the Receiver that were payable to CIC, is there prejudice to the
    rights of any creditors of CIC who were not part of the process, including any
    judgment creditors who may have filed a writ of execution with the sheriff?

[27]

This was an unusual process implemented to expeditiously adjudicate the
    entitlement to funds that were collected in the context of a receivership but
    were not the funds of the debtor. The issue of whether this process should include
    other potential creditors of CIC who did not seek a
Mareva
injunction
    to preserve funds collected by the Receiver of a debtor of CIC was not
    addressed. The claims of any such creditors are not barred by this process. The
    only effect is that they have no access to CICs Caldwell funds.

[28]

In its written submissions, CIC advises that it currently has solvency
    issues. In order to protect the rights of any judgment creditor of CIC that has
    filed a writ of execution with the sheriff, the Receiver shall pay the funds
    out of court to the Stanbarr claimants after conducting a bankruptcy search and
    determining that there are no writs of execution filed against CIC. If there
    are any writs filed, then the Receiver may return the issue of entitlement or
    priority to the motion judge.

Conclusion

[29]

The appeal is dismissed with costs payable by CIC to the respondent
    Stanbarr, fixed in the agreed amount of $10,000 inclusive of disbursements and
    HST.

K. Feldman J.A.

Janet Simmons J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Cosentino, 2020 ONCA
    775

DATE: 20201208

DOCKET: C68125

MacPherson, Zarnett and Jamal JJ.A.

BETWEEN

Karina
    Cosentino

Applicant (Respondent)

and

Benito Cosentino

Respondent (Appellant)

Gordon S. Campbell, for the appellant

Hugh M. Evans, for the respondent

Heard: November 25, 2020 by video conference

On
    appeal from the order of Justice J. Scott McLeod of the Superior Court of
    Justice, dated February 3, 2020, with reasons at 2020 ONSC 233.

REASONS FOR DECISION

[1]

The appellant Benito Cosentino appeals from the
    final order of McLeod J. of the Superior Court of Justice dated February 3,
    2020. In that order, McLeod J. dismissed the appellants motion to vary the
    final orders of Douglas J. of the Superior Court of Justice dated June 16 and
    September 26, 2016 relating to spousal and child support.

[2]

The appellant was born in Italy and came to
    Canada when he was 17. He is now 64 years old.

[3]

The respondent was born in Ecuador and came to
    live in Canada after she married the appellant in Ecuador at age 27. She is 46
    years old.

[4]

There are two children of the marriage, aged 17
    and 15.

[5]

The marriage lasted about 11 years. The
    respondent commenced divorce proceedings in 2013.

[6]

Unfortunately, the divorce proceedings were very
    contentious. After a trial in 2015-16, Douglas J. made child and spousal
    support orders in June and September 2016. In those orders, Douglas J. fixed
    child support at $1,652 monthly (two children) and spousal support at $1,121
    monthly.

[7]

The appellant appealed these orders to this
    court. On October 25, 2016, Lauwers J.A. made an order that, pending the
    disposition of the appeal, the appellant pay a reduced sum of $1,412 for
    combined child support and spousal support. He also directed that the appeal be
    expedited and heard in March 2017.

[8]

On July 7, 2017, this court dismissed the
    appellants appeal because of his failure to pay the interim child and spousal
    support ordered by Lauwers J.A. and for not pursuing and perfecting his appeal
    on a timely basis:
Cosentino v. Cosentino
, 2017 ONCA 593. In reaching
    this decision, the Court noted, at paras. 5 and 8-10:

On October 25, 2016, Lauwers J.A. heard a
    motion by the wife for partial payment of the equalization payment. At the
    return of the motion, however, the parties instead requested that interim
    child and spousal support payments be set, together with an expedited appeal.
    The husbands counsel proposed $1,412.00 per month and the wifes counsel
    agreed. Lauwers J.A. made the order and neither party has sought to review it.

This court has consistently refused to hear
    from a party or entertain an appeal where the record shows continuing
    disobedience with court orders.

Here, it was the husbands counsel who  in
    order to avoid an order for partial payment of the equalization payment
    proposed the amount of interim support, which the husband has since not paid.

The husbands actions in failing to pay the
    interim child and spousal support and in not pursuing or perfecting the appeal
    on a timely basis disentitle him from continuing with this appeal. [Citations
    omitted.]

[9]

A mere four days later, on July 11, 2017, the
    appellant brought a motion to change Douglas J.s 2016 order. He sought,
inter
    alia
, a decrease in the amount of child support and termination of spousal
    support on the basis of a material change in circumstances since Douglas J.s 2016
    order. The change in circumstances consisted of an alleged inability to
    continue to work in his long-time employment as an insurance broker and a sharp
    deterioration in his health. In support of these changes, the appellant
    submitted numerous handwritten physicians notes, letters from physicians,
    psychotherapists and psychiatrists, clinical notes and records from hospitals,
    and a psychological report. The only witness to testify about the appellants
    physical and psychological condition was a co-author of the psychological
    report.

[10]

Although a significant amount of this evidence
    related to the appellants condition prior to the hearing before Douglas J. in
    2016, the appellant had not led this evidence at that hearing. This was a
    crucial omission in the eyes of the motion judge, leading him to say:

I would adopt the same reasoning as was set
    out in
Gray
at paragraph 36. This court should have great difficulty
    in conceiving that evidence not available on the previous hearing could
    include emotional and physical restrictions which were not available because
    of the partys deliberate failure to disclose this evidence. [Mr. Cosentino]
    was experiencing emotional and physical limitations prior to the trial before
    Justice Douglas. The limitations affected his ability to work. [Mr. Cosentino] chose
    to withhold this relevant evidence from Justice Douglas. [Mr. Cosentino] testified
    that he chose not to give the court this evidence because he did not want to
    appear as a cry baby. No further explanation was provided to this court as to
    why [Mr. Cosentino] would not lead such important evidence. In short, he
    adopted a rather strange trial strategy.

As noted earlier, if the matter which is
    relied on as constituting a change was known at the relevant time, it cannot be
    relied on as the basis for variation. [Citations omitted.]

[11]

Flowing from this analysis, the motion judge
    determined that although the appellants income had decreased significantly
    since Douglas J.s order in 2016, the decrease was caused entirely by his own
    initiative in becoming intentionally underemployed and not because of the
    alleged deterioration in his health. The motion judges ultimate conclusion
    was: The underemployment of [Mr. Cosentino] is a direct result of the
    decisions he made which I find were made intentionally to avoid or reduce the
    payments of child and spousal support.

[12]

The appellant appeals the motion judges
    decision on two bases.

[13]

First, the appellant contends that the motion
    judge misconstrued the law on change of circumstances, especially as it relates
    to the significant deterioration of his health after Douglas J.s order in
    2016. The appellant says that on the Motion to Change he filed extensive,
    diverse and uncontested medical evidence that clearly established both that he
    suffered from serious debilitating health issues and that he was, therefore,
    incapable of continuing in his previous employment.

[14]

We do not accept the submission that the motion
    judge misconstrued the law.

[15]

In
Willick v. Willick
, [1994] 3 S.C.R.
    670, Sopinka J. said, at p. 688:

[A] material change of circumstances means a
    change, such that, if known at the time, would likely have resulted in
    different terms. The corollary to this is that if the matter which is relied on
    as constituting a change was known at the relevant time it cannot be relied on
    as the basis for variation.

[16]

In his reasons, the motion judge pointed out
    that the appellants health was not an issue at the hearing before Douglas J.,
    even though there was medical evidence that he was suffering from health
    problems for several years before that hearing. The motion judge was aware that
    the medical evidence was obtained after the trial but was not satisfied that it
    indicated a change in circumstances. Rather, the motion judge found that the
    same evidence could have been proffered at trial  the appellants decision not
    to lead the evidence at trial was part of his trial strategy.

[17]

With respect to the motor vehicle accident that
    occurred in October 2017, after Douglas J.s order, the motion judge noted that
    the evidence was limited and based on self-reporting. It is not the role of
    this court to reweigh the appellants evidence.

[18]

The motion judge also observed that the
    appellant commenced this motion to change four days after his appeal of the
    Douglas J. order was dismissed by this court in July 2017 and only after his
    other attempts to reduce spousal support were unsuccessful.

[19]

Bearing in mind that
Willick
instructs,
    at p. 687, that orders in family law matters should not be departed from
    lightly and will only be varied where the conditions for doing so are
    satisfied, we cannot say that the motion judges conclusions that no variation
    was warranted and that the appellants changed financial situation post-Douglas
    J.s order was the direct result of his own decision to be underemployed so as
    to avoid spousal and child support payments should be rejected.

[20]

Second, the appellant submits that the motion
    judge did not take sufficient account of his age and retirement in reaching his
    decision. When the motion judge made his decision, the appellant was 63 years
    old. Faced with the loss of his long-time employment as an insurance broker,
    new similar employment or retraining for possible alternative employment was
    simply unrealistic.

[21]

We disagree. Again, the chronology is important
    here. There is no record of the appellant having problems in his long-time job
    until
after
Douglas J.s decision. In that decision, Douglas J. dealt
    at length with the appellants income from his insurance brokerage business.
    There is not a word in the judgment, or in the record the appellant prepared
    for the hearing, about an imminent retirement even though, at that time, the
    appellant would have been in his early 60s. Nor was this issue raised by the
    appellant in his appeal to this court. Accordingly, we see no basis for
    interfering with the motion judges conclusions that the appellant is
    intentionally underemployed and that his underemployment is a direct result
    of the decisions he made which I find were made intentionally to avoid or
    reduce the payments of child and spousal support.

[22]

The appeal is dismissed. The respondent is
    entitled to her costs of the appeal fixed, with the agreement of counsel, at
    $12,500, inclusive of disbursements and HST.

J.C. MacPherson J.A.

B. Zarnett J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dhatt v. Beer, 2020 ONCA 799

DATE:  20201211

DOCKET: M51990 & M52026

(C68375 & C68539)

Brown J.A.
    (Motion Judge)

BETWEEN

Mandeep
    Dhatt and Kulwinder Dhatt

Plaintiffs

(Respondents/Moving
    Parties)

and

Derek
    Beer and Indira Beer

Defendants

(Appellants/Responding
    Parties)

and

Jay
    Brijpaul and Re/Max West Realty Inc., Brokerage

Third
    Parties

(Respondents/Responding
    Parties)

Arnie
    Herschorn, for the
for the moving parties,
Mandeep Dhatt and Kulwinder Dhatt

David P. Lees
    and Zachary Silverberg, for the responding parties, Derek Beer and Indira Beer

Serena L. Rosenberg,
    for the responding parties, Jay Brijpaul and Re/Max West Realty Inc., Brokerage

Ethan
    Rogers, for the moving intervenor, Rogers & Company Professional
    Corporation

Melvin
    Rotman, for the execution creditors, Mahadi Singh and Chait Singh

Heard: December 9, 2020 by video conference

REASONS
    FOR DECISION

OVERVIEW

[1]

There are two motions before me on these appeals
    from orders granting specific performance of an agreement of purchase and sale
    (the Agreement) for a residential property in Brampton (the Property).

[2]

The successful purchasers, the respondents Mandeep
    Dhatt and Kulwinder Dhatt (the Purchasers), move for orders expediting the
    appeals, requiring the appellant vendors
Derek Beer and
    Indira Beer (the Vendors) to post security for costs, and lifting the stay of
    the trial judges cost order. The Vendors oppose the motion.

[3]

A non-party, the former lawyers for the Vendors,
    Rogers & Company Professional Corporation (Rogers), move for leave to
    intervene as an added party on the Purchasers motion and request a delay of
    that motion until the disposition of a proceeding initiated by Rogers in the
    Superior Court of Justice (SCJ).

THE TRIAL AND APPEALS

[4]

A bit of background is required to put the
    motions into context.

[5]

These appeals are from two orders made by the
    trial judge, C. Brown J.

[6]

The trial was held in March 2020. After failing
    to obtain an adjournment, the
Vendors did not
    participate in the balance of the trial. By judgment dated May 1, 2020 (the
    Trial Judgment), the trial judge: (i)
granted the Purchasers
    specific performance of the 2016 Agreement for the Property; (ii) dismissed the
    Vendors third party claim against their real estate broker,
Jay Brijpaul and Re/Max West Realty Inc. (the Broker); and (iii) awarded
    costs to the Purchasers ($112,347.63) and Broker ($88,178.52): 2020 ONSC 2729.
    Paragraph 3 of the Trial Judgment ordered that of the Agreements purchase
    price of $835,000, (a) the [Purchasers] are entitled to withhold the sum of
    $112,347.63 in payment of their substantial indemnity costs of the action (b)
    the [Purchasers] pay to the [Broker] the sum of $88,178.52 for the [Brokers]
    substantial indemnity costs in the third party action.

[7]

The second order was made by the trial judge on
    July 30, 2020, establishing a process for the transfer of the Property to the
    Purchasers (the Transaction Order). As part of that order, the trial judge
    ordered the Vendors to deliver up to the Purchasers vacant possession of the
    Property and appointed Robert Aaron as the transaction lawyer for the Vendors
    to complete the sale of the Property to the Purchasers.

[8]

The Vendors moved before Zarnett J.A. for a stay
    of the Trial Judgment and Transaction Order. Upon the undertaking of the
    Purchasers not to deal with the Property pending the disposition of the
    appeals, Zarnett J.A. denied the stay: 2020 ONCA 545, 449 D.L.R. (4th) 263. In
    the course of his reasons, Zarnett J.A. stated that the cost components of the
    Trial Judgment were subject to the automatic stay provisions of the
Rules
    of Civil Procedure
.

[9]

All appeal materials have been filed; the
    appeals are ready to be heard.

THE EVENTS LEADING UP TO THESE MOTIONS

[10]

The Purchasers took possession of the Property
    on September 2, 2020. They do not intend to sell their previous home until the
    disposition of the appeals.

[11]

The sale of the Property has not closed.

[12]

Mr. Aaron prepared a September 16, 2020
    statement of estimated proceeds of sale from the Property based on the
    Agreements $835,000 purchase price. The statement is attached to these
    reasons. He calculated that the encumbrances in respect of the Property
    amount to approximately $1 million, leaving a shortfall of about $178,000. The
    encumbrances fall into six categories: (i) first and second mortgages; (ii) the
    cost orders in the Trial Judgment made in favour of the Purchasers and Broker;
    (iii) real estate commission, taxes, HVAC; (iv) an execution registered by
    Mahadi Singh; (v) an execution registered by Chait Singh; and (vi) executions
    registered by Rogers.

[13]

Mr. Aaron proposed that Mahadi Singh accept less
    than the face value of his claim and that Chait Singh and Rogers lift their
    executions voluntarily to enable the sale to close.

[14]

Chait Singh and Rogers are not prepared to do
    so. They take the position that all the unsecured creditors, including claims
    for costs by the Purchasers and Broker pursuant to the Trial Judgment, should
    be treated equally on a
pro rata
basis.

[15]

No agreement has been reached on that issue,
    which has led to the Purchasers motion seeking, in part, to lift the stay of
    the cost orders.

[16]

On its part, Rogers has moved in the SCJ seeking
    to vary the Trial Judgments grant of specific performance and award of costs
    to the Purchasers and Broker. The economic rationale for that motion can be
    found in a December 7, 2020 appraisal of the Property that Rogers has filed in
    its intervention record. The appraisal puts the current fair market value of
    the Property at $1,437,000. The appraisal has not been tested but it highlights
    the concern expressed by the execution creditors. They contend that if the
    Property were sold for fair market value, all creditors would be paid in full.
    However, the ordered sale at $835,000, when coupled with the cost order, will
    see the Purchaser and Broker fully reimbursed for their trial cost claims while
    requiring the execution creditors to take a haircut or receive nothing. This result,
    the execution creditors contend, is manifestly unfair, especially when they
    were not given notice of the cost order the trial judge intended to make.

[17]

A case conference for Rogers motion is
    scheduled to be held by a judge of the SCJ Toronto Region Civil List on
    December 17, 2020. It is anticipated that a date for the Rogers motion will be
    set at that time.

ANALYSIS

The Purchasers motion

[18]

The principle guiding my disposition of the
    motions is a simple one: this court will determine the appeals from the Trial
    Judgment and Transaction Order; the SCJ is the proper forum to deal with the
    priorities dispute amongst the Purchasers, Broker, and execution creditors.

[19]

Applying that principle, the Vendors have
    offered no persuasive reason to oppose setting an early date for the hearing of
    the appeals. Accordingly, I order that the appeals shall be heard on February
    10, 2021, for two hours.

[20]

Purchasers counsel advised that in light of
    that appeal date, his clients were not pursuing their further requests for security
    for costs or lifting the stay of the cost awards.

[21]

That disposes of the Purchasers motion.

Rogers motion

[22]

Rogers seeks leave to intervene as an added
    party on the Purchasers motion and an order delaying the hearing of that
    motion pending the outcome of Rogers SCJ motion. The materials filed by Rogers
    on its motion certainly helped me to understand the big picture in this
    dispute, and they helped me formulate the guiding principle that I set out in
    para. 18. However, consistent with that principle, I am not persuaded that
    Rogers should be granted leave to intervene in this court. The proper forum for
    its submissions on the priorities dispute is the SCJ.

[23]

Nor, as can be seen, am I persuaded that the
    Purchasers motion should be delayed. Quite the contrary. By setting an early
    hearing date for the appeals, I am attempting to fix a timeframe in which the
    parties should resolve their priorities dispute in the SCJ. The longer that
    priorities dispute is allowed to fester, the more disproportionate the legal
    costs will become to the amount truly in dispute.

[24]

Rational economic actors can easily resolve the
    priorities dispute. If the priorities dispute is resolved, it may well be that
    the appeals also resolve.

[25]

In any event, I am sending a copy of these reasons
    to Myers J., the co-Team Leader of the SCJ Toronto Region Civil List, with my
    respectful request that he make the appropriate arrangements for the most
    effective use of the parties time and resources in the matter now pending in
    that court.

[26]

Accordingly, while the Rogers materials have
    been helpful, I formally dismiss their motion to intervene and delay the
    Purchasers motion.

DISPOSITION

[27]

By way of summary, I grant the Purchasers
    motion for an early appeal hearing and set February 10, 2021 as the date for a
    two-hour hearing of the appeals. The Purchasers withdraw the balance of their
    motion. I dismiss the Rogers motion.

[28]

As to the costs of the Purchasers motion, each
    party seeks costs of $5,000 from the other. That is an unreasonable ask for a
    simple procedural motion in this court. I fix the costs of the Purchasers
    motion at $1,500, payable to either the Purchasers or Vendors in the cause of
    the appeals.

[29]

Rogers seeks costs of its motion in the amount
    of $5,000 against the Purchasers. Although I have dismissed the Rogers motion,
    its materials were quite helpful. Consequently, I award Rogers costs of its
    unsuccessful motion in the amount of $500, payable in equal
pro rata
shares by the Purchasers and Vendors within 30 days of the release of these reasons.

[30]

I thank counsel for their assistance in dealing
    with these motions in an efficient, cost-effective manner.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: GIAO Consultants Ltd. v. 7779534
    Canada Inc., 2020 ONCA 778

DATE:  20201209

DOCKET: C68457

MacPherson,
    Zarnett and Jamal JJ.A.

BETWEEN

GIAO
    Consultants Ltd.

Plaintiff
    (Respondent)

and

7779534
    Canada Inc.
, CIV Carbon Credit Ltd., Maxime
    Lemieux, McMillan S.E.N.C.R.L., Osvaldo Minchella,
Adriana Shaw also known
    as Adriana Rios Garcia
,
Martin Nicoletti
and
David Grondin

Defendants
    (
Appellants
)

Shannon Bennett, for the appellants

Alexander G. Munera and Brent Mendiola,
    for the respondent

Heard: November 26, 2020 by video conference

On appeal from the order of Justice Jill C.
    Cameron of the Superior Court of Justice, dated July 8, 2020, with reasons at
    2020 ONSC 3686

REASONS
    FOR DECISION

[1]

The appellants 7779534 Canada Inc. (777),
    Adriana Shaw, Martin Nicoletti and David Grondin appeal from the order of
    Justice Jill C. Cameron of the Superior Court of Justice dated July 8, 2020. In
    that order, supported by reasons for decision dated June 12, 2020, the motion
    judge held that the Superior Court has jurisdiction over the action brought by
    the respondent GIAO Consultants Ltd. (GIAO) against the appellants and other
    parties who are not participants in this appeal. The motion judge also held
    that the Superior Court was
forum conveniens
for the action.

[2]

The appellants appeal both the jurisdiction and
forum
    conveniens
components of the motion judges decision.

[3]

GIAO issued a statement
    of claim on January 21, 2020 claiming against the appellants and others for
    breach of contract, negligence, intentional misrepresentation, breach of trust
    and/or fiduciary duty, and civil conspiracy.

[4]

Two of the
    defendants in the action, Maxime Lemieux and McMillan S.E.N.C.R.L., have
    already filed their statement of defence, thereby submitting to the
    jurisdiction of Ontario courts. Two other defendants, CIV Carbon Credit Ltd. and
    Osvaldo Minchella, are residents of Ontario.

[5]

The remaining
    four defendants  777, Shaw, Nicoletti and Grondin  did not submit to the
    jurisdiction of Ontario courts. They brought a motion to challenge the
    jurisdiction of the Ontario courts or, in the alternative, to seek a
    declaration that Ontario was
forum non conveniens
to determine the proceeding.

[6]

The motion judge
    rejected both components of the appellants claim. She found that Ontario
    courts had jurisdiction
simpliciter
to hear and determine the claim and that
    Ontario courts were not
forum non conveniens
for the appellants claim.

Jurisdiction

[7]

The appellants concede that the motion judge was
    correct to consider the presumptive connecting factors from
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17, at para. 91, to determine whether an
    Ontario court is entitled to assume jurisdiction  (1) the defendant is domiciled
    or resident in Ontario; (2) the defendant carries on business in Ontario; (3)
    the commission of a tort in Ontario; or (4) a contract connected with the
    dispute was made in Ontario.

[8]

The motion judge found that three of these
    presumptive connecting factors were present  the appellants (moving parties) were
    conducting business in Ontario, a tort was committed in Ontario, and the
    contract connected with the dispute was made in Ontario.

[9]

The appellants contest this component of the
    motion judges decision on two bases.

[10]

First, the appellants point to a single laconic
    sentence (The defendants have not filed a Statement of Defence.) in the
    motion judges decision to ground a submission that she improperly drew an
    adverse inference against them and that this constitutes an error of law.

[11]

We do not accept this submission. In our view,
    the motion judge made this statement in the context of her analysis of whether
    a tort was committed in Ontario  a necessary step when assessing the
Van
    Breda
factors. The motion judge did nothing more than acknowledge the
    limits of what was available to her and upon which she was required to make her
    determination based on the
Van Breda
factors. The fact that there was
    no statement of defence available did not lead to an adverse inference.

[12]

Second, the appellants contend that the motion
    judge erred by making findings relating to the merits of the claim in the
    underlying action and that these findings will improperly flow through and bind
    the trial judge:
Young v. Tyco International of Canada Ltd.
, 2008
    ONCA, at para. 31.

[13]

We are not persuaded by this submission. Once
    again, the motion judges findings were made within the context of applying the
Van Breda
factors. These findings will not flow through and be
    determinative of the issues at trial; rather, they are based only upon the evidence
    available at the time of the motion for the purpose of assessing the
    presumptive connecting factors relating to the issue of jurisdiction. The
    motion judge was required to make some findings for the purpose of providing a
    decision on the motion and was permitted to rely on the respondents evidence
    for this purpose:
Young
, at paras. 33-34;
Van Breda,
at para
    72.

Forum non conveniens

[14]

The plaintiff entered into a contract with CIV
    Carbon Credit Ltd. and 777 titled Amended Share Purchase Agreement. Clause 5.7
    of this document provides:

Governing Law

This Agreement shall be construed, interpreted
    and enforced in accordance with, and the respective rights and obligations of
    the parties shall be governed by,
the laws of the Province
    of Quebec
and the federal laws of Canada applicable in such province,
    and each party irrevocably and unconditionally submits to the non-exclusive
    jurisdiction of the courts of such Province and all courts competent to hear
    appeals therefrom. [Emphasis added.]

[15]

The appellants submit that the motion judge erred
    in holding that Ontario courts were not
forum non conveniens
. The
    central claim grounding this submission is that the motion judge erred by
    concluding that expert evidence is not required to prove Quebec law in Ontario
    courts. The appellants point to this passage in the motion judges reasons:

The defendants submit that in order for the
    matter to proceed in Ontario, given the clause in the agreement related to
    governing laws, it would be necessary for them to hire experts in Quebec law.
    Lawyers and judges are trained and experienced in reading, understanding and
    interpreting the law. Should this clause govern the proceedings, I fail to see how
    it would be necessary to hire an expert to interpret Quebec law. If that were
    necessary, I doubt, in the overall cost of litigation this would be of such an
    amount that would render a proceeding in Ontario unfair and is not a factor
    that makes Ontario
forum non conveniens
. Further, if, as I have found,
    the contract was formed in Ontario, and the tort(s) were committed in Ontario
    the most that can be said at this stage is that the laws of Quebec
may
apply. [Emphasis in original.]

[16]

The appellants assert that the motion judge made
    two errors in this passage.

[17]

First, the appellants contend that the motion
    judge erred by concluding that expert evidence would not be required to prove
    Quebec law to the Ontario courts.

[18]

We do not accept this submission. We begin with
    the contextual point that a motion judges decision on a
forum non conveniens
issue is a discretionary one; an appellate court should intervene only if the
    motion judge erred in principle, misapprehended or failed to take account of
    material evidence, or reached an unreasonable decision:
Haaretz.com v.
    Goldhar
, 2018 SCC 28, at para. 49.

[19]

Against this backdrop, we observe that the trial
    judge did not state, in absolute terms, that hiring an expert to interpret
    Quebec law would not be necessary. She specifically saw the possibility that an
    expert would be required (If that were necessary) and then said that the cost
    of an expert would not render the proceedings in Ontario unfair. Moreover, it
    needs to be said that the respondents fundamental contract claim in its statement
    of claim is a simple one  CIV and 777 did not pay the $165,000 they accepted
    as the price of shares they purchased.

[20]

The appellants second assertion on the
forum
    non conveniens
issue is that the motion judge erred in saying that the
    most that can be said at this stage is that the laws of Quebec
may
apply.

[21]

We are not persuaded by this submission. To
    start, it appears to be inconsistent with the argument the appellants made on
    the jurisdiction issue. On that issue, the appellants say that the motion judge
    erred by making findings relating to the merits of the claim in the underlying
    action and that those findings would improperly flow through and bind the trial
    judge. Now, on the
forum non conveniens
issue, the appellants
    criticize the motion judges tentative language (may apply) on the basis that
    it completely disregards the express wording of the contract and the agreement
    of the parties that the contract is governed by the laws of Quebec (Factum,
    para. 35).

[22]

In addition, we observe that in the Governing
    Law clause of the contract, although the wording is explicit on governing law
    (the Province of Quebec), the clause also refers to the non-exclusive
    jurisdiction of the courts of such Province. Moreover, it is important to note
    that there are both contract and tort claims in the statement of claim and this
    may raise difficult questions of the applicable law.

Disposition

[23]

In conclusion, in our view, there is no good
    reason to overturn the motion judges decision on the issues of jurisdiction or
forum non conveniens
in this case. Ontario, easily, has jurisdiction
    to hear the case, and there is no basis to interfere with the motion judges
    discretionary decision that Ontario is a proper forum in which to hear the
    case.

[24]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal fixed at $18,700, inclusive of disbursements
    and HST.

J.C
    MacPherson J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.