WARNING

The President of the panel hearing this appeal directs that the following
    should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1),
    (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.
    These sections of the
Criminal Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210,
    211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection
    146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse
    with a female between 14 and 16) or section 151 (seduction of a female between
    16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or
    bestiality), 157 (gross indecency), 166 (parent or guardian procuring
    defilement) or 167 (householder permitting defilement) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)      on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Sliwka, 2017 ONCA 426

DATE: 20170525

DOCKET: C61954

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Stanislaw Sliwka

Respondent

Karen Shai, for the appellant

Dirk Derstine, for the respondent

Heard:  May 9, 2017

On appeal from the acquittals entered by Justice Susanne
    R. Goodman of the Superior Court of Justice on March 11, 2016.

By the Court:

I

[1]

The respondent was charged with several very serious assaults.  On the
    evidence of the complainant, A.C., the respondent repeatedly, viciously
    physically and sexually assaulted her over many months when A.C. lived with the
    respondent.  The respondent testified and denied all of the assaults.  There
    was a nine-day trial before a judge, sitting without a jury.  The trial judge
    acquitted the respondent on all charges.

[2]

The Crown appeals, claiming that the trial judge gave no reasons for the
    acquittals and that her failure to give reasons constitutes reversible error in
    law.  We agree.

II

[3]

On the evening of March 1, 2014, A.C., who is Polish and speaks very
    little English, called 9-1-1 from the respondents apartment.  She was in
    obvious distress.  For reasons beyond their control, the officers took about 50
    minutes to get to the apartment.  One of the officers spoke Polish.  They
    knocked on the door for 10 to 15 minutes before anyone answered.  The officers
    could hear two people inside speaking Polish.

[4]

A.C. eventually opened the door.  She was wearing sunglasses and a hood
    over her head.  The Polish speaking officer convinced her to step outside and
    remove her sunglasses.  He was horrified by what he saw.  A.C. had obviously
    been badly beaten and needed immediate medical assistance.

[5]

The respondent followed A.C. into the hallway.  He told her to be quiet
    and then tried to follow A.C. and the police into the elevator.  The officers
    would not let the respondent into the elevator.  Once A.C. was in the elevator
    with the police, she told them the respondent had beaten her.

[6]

A.C. was taken to the hospital and treated for extensive injuries,
    including severe bruising, swelling, numerous cuts and bleeding to her face and
    head.

[7]

The police laid eight charges against the respondent.  Counts one to
    three related to the respondents alleged attack on A.C. shortly before the 9-1-1
    call on March 1, 2014.  The other five charges alleged physical and sexual assaults
    in 2013 or early 2014.

[8]

The trial proceeded in February 2016.  A.C. described the abusive nature
    of the relationship she had with the respondent.  She described numerous
    assaults, including two with a knife.

[9]

A.C. testified that, on March 1, 2014, the respondent arrived home from
    work around 4:00 p.m.  A.C. was in bed.  They argued and eventually the
    respondent attacked her as he had many times in the past.  A.C. testified that
    the respondent punched her in the face several times and struck her repeatedly in
    various parts of her body with a mop stick.  He called her names as he beat
    her.  A.C. indicated that she was covered in blood and the respondent put her
    in the bathtub to clean her up.  He then took her into the bedroom and forced
    her to have sexual intercourse with him.  The bed sheets were covered in
    blood.  The respondent put the sheets in a tub full of water.  Eventually, A.C.
    worked up the courage to call 9-1-1.  The police arrived some time later.

[10]

In his evidence, the respondent denied ever assaulting A.C.  He
    indicated that he had known her for some time, but denied that they lived
    together.  He referred to A.C. as an alcoholic who sometimes fell and hurt
    herself when she was drunk.

[11]

The respondent testified that A.C. showed up at his apartment about three
    days before March 1, 2014.  He described her as falling down drunk.  On one
    occasion, she hit her head and was bleeding from the forehead.  The respondent
    wiped the blood away and told her she could stay for the night.

[12]

The respondent testified that when he arrived home the next day, now
    about two days before March 1, he found his apartment in disarray and
    apparently ransacked.  A.C. was asleep in the bedroom.  The respondent did not
    check on A.C., but instead slept on the floor.  The next day he noticed that
    A.C. was covered in blood and bruises.  She told him she had tripped.  The
    respondent offered to take A.C. to the doctor, but she declined.

[13]

The respondent testified that on March 1, the day of the 9-1-1 call, the
    respondent arrived home to find A.C. asleep.  He noticed that the bed sheets
    were wet.  The respondent tried to wake A.C. so that he could change the wet bed
    sheets.  She begged for a drink.  The respondent cleaned her up and they fell
    asleep together in the bed.  They awoke to the sound of the police knocking on
    the door.

[14]

The respondent testified that, about two days before the 9-1-1 call, he
    noticed that A.C. had very significant injuries.  The respondent believed,
    based upon A.C.s injuries and the ransacking of his apartment, that some
    unknown intruder had broken into the apartment, tore it apart and attacked
    A.C.  The respondent indicated that it did not occur to him to call the police
    or do anything else about the apparent home invasion and assault of A.C.

[15]

The respondent contradicted significant parts of the evidence given by
    the police officers who attended at the apartment in response to the 9-1-1
    call.  For example, he testified that A.C. was not wearing sunglasses or a hood
    when she answered the door.  He said he was wearing pants during the
    interaction with the police; two of the officers said he was wearing Speedo
    shorts.  Contrary to Officer Chahals testimony, the respondent denied blowing
    kisses to A.C. in the hallway.

III

[16]

The evidence and arguments were completed on March 1, 2016.  The trial
    judge adjourned to March 11, 2016 for judgment.

[17]

On March 11, 2016, the trial judge acquitted the respondent on all
    charges.  After briefly outlining the charges and the events of March 1, 2014,
    and noting that she had adjourned the matter to consider the evidence and the
    submissions, the trial judge said:

I have now had full opportunity to carefully consider the
    matter and to arrive at a decision on all of the counts.  My detailed written
    reasons will be released on Monday, March 14
th
, 2016.

[18]

The trial judge further stated that her acquittals should not be taken
    as an acceptance of the respondents version of events, or an outright
    rejection of the complainants version.  She said:

I certainly do not accept all of [the accuseds] evidence as
    true, but in the context of all of the other evidence before me, including but
    not limited to that of [the complainant], I am not satisfied beyond a
    reasonable doubt that he is guilty of any of the charges.

[19]

The Crown commenced an appeal from the acquittals.  The trial judge did
    not release detailed written reasons on March 14, 2016.  Between April and
    September 2016, Crown counsel made repeated inquiries through the trial judges
    assistant.  Presumably acting on instructions from the trial judge, her
    assistant repeatedly advised the Crown that comprehensive reasons would be
    available on the date specified by the assistant.  Each of those dates came and
    went.  No reasons appeared.

[20]

Finally, in September 2016, Crown counsel wrote directly to the trial
    judge, summarizing the efforts to obtain the reasons.  Crown counsel advised the
    trial judge that, as no reasons had been produced, the Crown would argue that
    the appeal should proceed on the basis that no further reasons for judgment
    existed.  In taking that position, the Crown no doubt had in mind the
    principles in
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267.

[21]

The trial judge did not respond to Crown counsels letter.  As of the
    argument of the appeal on May 9, 2017, no further reasons for judgment had been
    produced by the trial judge.

IV

[22]

The Crown submits that there are no reasons for judgment in this case
    and that the failure to provide reasons for the acquittals amounts to an error
    in law, requiring the quashing of the acquittals and the order of a new trial
    on all counts.  Crown counsel contends that the brief comments by the trial
    judge on March 11, 2016, reveal her decision, but do not constitute reasons for
    that decision.  Crown counsel maintains that the trial judges promise of detailed
    reasons is an acknowledgment, on her part, that her brief comments on March 11,
    2016, were never intended as an adequate explanation of her acquittal of the
    respondent on all counts.

[23]

Counsel for the respondent submits that the trial judges comments on
    March 11, 2016, while brief and arguably less than can reasonably be expected
    from a trial judge, adequately explained the trial judges reasons for acquitting
    the respondent.  Counsel argues that the reasons can be properly subject to
    meaningful appeal by the Crown.  Alternatively, counsel submits that, even if
    the reasons are deficient, a review of the trial record adequately reveals the
    basis upon which the trial judge acquitted.  Counsel refers in some detail to
    the evidence and what he submits are significant inadequacies and deficiencies
    in the evidence of A.C.  On this argument, the basis for the trial judges
    reasonable doubt is evident from a perusal of A.C.s evidence.

V

[24]

Trial judges must give reasons for their verdicts.  Reasons that explain
    to the parties and the public the result arrived at by the trial judge are crucial
    to maintaining the proper level of transparency and accountability essential to
    the maintenance of the integrity of the trial process and public confidence in
    that process.  Reasons for judgment allow the parties to know that their claims
    have been heard, understood and adjudicated upon in an objective and reasonable
    fashion that accords with the applicable legal principles:  see
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 22, 24.

[25]

On an appeal based on the trial judges failure to give reasons, the
    appellate court measures the adequacy of the reasons against the requirement
    that the reasons permit meaningful appellate review of the trial decision.  If
    the reasons serve that function, any shortcomings from a due administration of
    justice perspective, do not justify appellate intervention.  However, reasons
    that frustrate meaningful appellate review constitute an error in law.  That
    error requires the quashing of the verdict unless the trial record as a whole
    permits effective appellate review of the verdict:  see
Sheppard
, at
    paras. 25-33, 46.

[26]

R. v. Walker
, [2008] 2 S.C.R. 245, at paras. 2, 19, makes the
    point that the trial judges duty to give reasons applies to both convictions
    and acquittals:  see also
R. v. Kendall
, [2005] O.J. No. 2457, leave
    to appeal refused, [2005] S.C.C.A. No. 387.
Walker
also holds that a
    functional inquiry is necessary when assessing the adequacy of a trial judges reasons.
    That inquiry is driven in part by the scope of the appeal permitted and the
    nature of the decision under appeal.

[27]

Reasons that may adequately explain why a judge had a reasonable doubt,
    may be inadequate to explain why a judge was satisfied beyond a reasonable
    doubt.  Similarly, reasons may be adequate if an appeal from those reasons is limited
    to a question of law, as in the case of Crown appeals from acquittals, but may
    be inadequate if the appeal extends to questions of fact, as in the case of
    appeals from convictions:
R. v. Walker
, at paras. 21-22.

[28]

This appeal comes down to whether the trial judges
comments on March 11, 2016 provide a meaningful
    basis for appellate review of the acquittals.  In those comments, the trial
    judge demonstrated a proper appreciation of the
burden of proof and
    the reasonable doubt standard.  She made it clear that the acquittals flowed
    from an application of the reasonable doubt standard to the totality of the
    evidence.  She also indicated that she neither accepted, nor rejected, the
    entirety of the evidence of A.C. or the respondent.

[29]

The trial judges comments on March 11, 2016 do not analyze any part of
    the evidence.  The trial judge does not address the serious contradictions
    between A.C.s evidence and the respondents evidence.  Nor does she examine
    the conflicts between the police officers evidence and the respondents
    evidence.  The trial judge does not identify any specific part or parts of A.C.s
    evidence that troubled her and adversely affected A.C.s credibility.  Nor does
    the trial judge refer to any specific part of the respondents evidence in her
    brief comments.  Specifically, she says nothing about the respondents
    intruder explanation for the serious beating A.C. received some time shortly
    before the police saw her.  Absent any analysis or explanation by the trial
    judge, it is difficult to understand how the intruder explanation had any
    credibility.

[30]

We agree with Crown counsel that the March 11 comments are the bottom line
    or decision of the trial judge.  They are not reasons that in any way explain
    that decision or expose it to proper appellate review:  see
R. v. Frost
,
    2010 ONCA 494, at para. 1.

[31]

Counsel for the respondent relies on
Walker
in support of the
    submission that the trial judges comments did provide adequate reasons.  However,
    unlike the trial judge in
Walker
, this trial judge did not identify
    any specific part of the evidence, or gap in the evidence upon which she based
    her conclusion that the Crown had failed to prove any of the counts beyond a
    reasonable doubt:  see
Walker
, at paras. 24-26.

[32]

The trial judge did not address each of the eight counts separately.
    The absence of any explanation for the acquittals on counts one to three,
    relating to the alleged attack on March 1, 2014, is particularly troubling.  In
    her brief comments, the trial judge acknowledged that A.C. had been assaulted
    and wounded on, or within a few days before, March 1.  The identity of her
    assailant was the only issue.  On the unchallenged evidence, that assault
    occurred in the respondents apartment.

[33]

The trial judge also indicated in her brief comments on March 11 that
    she found the police officers to be honest witnesses.  On their evidence, A.C.
    was terrified and had been badly beaten when she appeared at the door of the
    respondents apartment.  She attempted to hide her injuries from the police and
    obviously did not want to speak to the police.  She only told the police what
    had happened after they managed to move her away from the respondent and get
    her into the elevator.  On the officers evidence, the respondent attempted to
    interfere with the police officers conversation with A.C.

[34]

The officers evidence offered significant support for A.C.s
    allegations, at least as they related to the March 1 alleged assaults.
    Unfortunately, we have no idea what the trial judge did with the police
    officers evidence.

[35]

The police officers evidence was important in a second respect.  Their
    evidence was inconsistent with the respondents testimony in several ways.  The
    silence of the trial judge about these inconsistencies begs the question  given
    that the trial judge found the officers to be honest witnesses, what did she
    make of the flat-out contradictory evidence given by the respondent?

[36]

There is no way of knowing how the trial judge arrived at her verdicts.
    Without any semblance of a road map to those verdicts, the Crowns right of
    appeal from the acquittals is rendered illusory.

[37]

This is not a case in which the trial record as a whole reveals the
    basis upon which the acquittals were entered and allows for a meaningful appeal.
    Counsel for the respondent has gone through A.C.s evidence very carefully.  There
    are clearly problems with parts of her evidence.  Counsels submissions go only
    so far as to demonstrate the need for careful reasons in this case.  Unfortunately,
    the trial judge gave none.

VI

[38]

The appeal is allowed, the acquittals are quashed, and a new trial is
    ordered on all counts.

postscript

[39]

Our order directing a new trial is a terrible result for everyone
    involved in this proceeding.  The trial judges failure to give reasons,
    despite her repeated promises to do so, has frustrated the proper
    administration of justice.  Nor is this the first time that this trial judges
    failure to provide reasons has required this court to order a new trial.  It
    must be the last time.

Released: DD  MAY 25
    2017

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sohal, 2017 ONCA 425

DATE: 20170525

DOCKET: C61936

Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Airdamanjeet Sohal

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Andrew Hotke, for the respondent

Heard: May 17, 2017

On appeal from the order of Justice Irving André of the
    Superior Court of Justice, dated March 22, 2016, sitting as a summary
    conviction appeal court, dismissing the appeal from the sentence imposed on
    October 15, 2014 by Justice Paul Currie of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

Mr. Sohal was convicted of assaulting his girlfriend, contrary to s. 265
    of the
Criminal Code
. He received a suspended sentence. He appealed
    his conviction and sentence to the Summary Conviction Appeal Court. Both
    appeals were dismissed. Mr. Sohal now seeks leave to appeal his sentence.

The Circumstances of the Offence and the Offender

[2]

The case arose from an incident that occurred on a sidewalk in Brampton.
    Several motorists witnessed the applicant and the complainant (his girlfriend)
    in an altercation. The witnesses saw the applicant grab the complainants arm
    and then strike her. Some of them pulled over to assist the complainant.

[3]

The applicant was 22 years old at the time of sentencing. He had no
    prior criminal record. The applicant came to Canada from India in 2012 on a
    student visa. As a result of the
Immigration and Refugee Protection Act
,
    S.C. 2001, c. 27, his conviction makes him inadmissible based on criminality. We
    are advised that the applicant will be deported on May 31, 2017.

[4]

The sentencing judge was aware of the applicants immigration status. He
    was not persuaded that a discharge, which would avoid the immigration problems
    accompanying a conviction, was a fit sentence for this incident of domestic
    violence. He entered a conviction and imposed a suspended sentence with nine
    months of probation. The Summary Conviction Appeal Court Judge (SCACJ) agreed
    and dismissed the appeal against sentence.

Analysis

[5]

The applicant argues that leave to appeal should be granted because the
    SCACJ erred in: (1) relying on aggravating factors that were not relied upon by
    the sentencing judge; and (2) misapplying the law as it relates to the
    immigration consequences faced by the appellant. Applying the principles in
R.
    v. R.R.

(2008), 90 O.R. (3d) 641, we would not grant leave to
    appeal on either ground.

(1)

Aggravating Factors

[6]

In his reasons for dismissing the appeal, the SCACJ mentioned that the
    offence occurred in a public space and ceased only after the intervention of a
    few Good Samaritans. The SCACJ also mentioned that one of the witnesses said
    that, in the aftermath of the assault, the applicant attempted to justify his
    actions on the basis of his own cultural beliefs. He considered this to be an
    additional aggravating factor.

[7]

In referring to the Good Samaritans, the language used by the SCACJ may
    have been imprecise. The trial judge did not find that the assault stopped
    because others physically intervened or restrained the applicant. However, it
    is clear that those who responded to what they saw did so with the purpose of
    assisting the complainant and preventing further problems.

[8]

We agree that the SCACJ erred in relying upon an imputed cultural
    justification as an aggravating factor. The Crown did not rely upon it as an
    aggravating factor. The trial judge did not find that the applicant said these
    words. He did not consider this factor in sentencing the applicant.

[9]

In all of the circumstances, these references in the reasons of the
    SCACJ were inconsequential. They had no tangible impact on his review of the
    fitness of the sentence that was imposed. The trial judges reasons for sentence
    show that he applied the proper principles and the sentence imposed is owed
    deference. There was simply no basis for the SCACJ to intervene, nor is there
    any basis for this court to interfere. Consequently, leave is denied on this
    ground.

(2)

Immigration Consequences

[10]

The applicant argues that the SCACJ misapplied the law relating to the
    impact of the applicants immigration status on the fitness of the sentence. We
    disagree.

[11]

Although the SCACJ failed to mention
R. v. Pham
, 2013 SCC 15,
    [2013] 1 S.C.R. 739, which had been referred to during submissions, he
    considered a number of earlier cases that addressed this issue. One of the
    authorities he relied on was
R. v. Hamilton
(2004), 71 O.R. (3d) 1 (C.A.).
    The reasoning in that case that was expressly adopted by the Supreme Court in
Pham
,
    at para. 19.

[12]

The failure to cite
Pham
was inconsequential. The SCACJ was
    satisfied that the sentencing judge gave appropriate consideration to the
    applicants immigration status. The applicants immigration consequences were
    given serious consideration by both judges: see
R. v. McKenzie
, 2017
    ONCA 128, 35 C.R. (7th) 216, para. 35. Neither judge was persuaded that it
    ought to have resulted in a more lenient disposition. We see no basis to intervene.

Disposition

[13]

Leave to appeal is denied.

Paul Rouleau J.A.

G.T. Trotter J.A.

David
    Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Srikanthan, 2017 ONCA 435

DATE: 20170530

DOCKET: C59866

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nishanth Srikanthan

Appellant

Breana Vandebeek, for the appellant

Amy Alyea, for the respondent

Heard and released orally: May 18, 2017

On appeal from the conviction entered on March 11, 2014 by
    Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of failing to stop at the scene of an
    accident, impaired operation of a motor vehicle causing bodily harm, operation
    of a motor vehicle while over 80 causing bodily harm and dangerous driving
    causing bodily harm.  The sole issue at trial was whether the appellant was the
    driver of the vehicle when it collided with an oncoming car.  The vehicle then
    fled from that accident and ran into a tree.

[2]

The appellant raises two grounds of appeal.  First, he argues that the
    trial judge erred in his instructions to the jury with respect to the in-dock
    identification made by the Barone sisters who testified as eyewitnesses.

[3]

We disagree.

[4]

In our view, the trial judges jury charge reveals no error.  Although
    in his summary of the evidence, the trial judge recited testimony of one of the
    Barone sisters to the effect that she was confident in her identification, this
    statement came shortly after cautioning the jury about the frailties of
    eyewitness evidence including the instruction that an apparently convincing
    witness can be mistaken.

[5]

Although the judge could have added to this caution, in our view, on the
    particular facts of this case, it was not necessary.  The evidence was not
    objected to when it was given and the appellants counsel agreed to the portion
    of the trial judges instruction that dealt with this point.

[6]

In addition, the trial judge thoroughly reviewed the frailties with
    respect to that identification evidence.

[7]

Finally, the identification evidence was only one part of an otherwise
    substantial Crown case.

[8]

We also see no error in the trial judge having included in his jury
    charge a review of the Barone sisters identification of Ms. Kugan, the
    passenger in the car driven by the appellant.  This was simply one part of the trial
    judges review of the totality of the Barone sisters evidence.  It could not
    possibly have led the jury to find the Barone sisters identification of the
    appellant more reliable.  The evidence of their identification of Ms. Kugan was
    general, vague and did not occupy a significant part of the charge.

[9]

The second ground of appeal is that the trial judge erred in noting as
    part of his charge that Ms. Kugan may have an interest in the outcome of the
    case because she was a good friend of the appellant.  We do not consider this
    to be an error.  It was reasonable to alert the jury to the possibility that
    Ms. Kugan was covering up for the appellant.  In any event, even if the trial
    judge erred by leaving the jury with that one sentence, his error could not
    reasonably have affected the verdict in the face of a significant and
    substantial Crown case.

[10]

For these reasons, the appeal is dismissed.

Paul Rouleau J.A.

G.T. Trotter J.A.

David
    Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA
    443

DATE: 20170530

DOCKET: C61700, C61701,

C62315, C62316

Sharpe, Pepall and Hourigan JJ.A.

BETWEEN

Remicorp Industries Inc.

Applicant (Respondent)

and

Metrolinx
,
    Canadian National Railway Company,

City of
    Toronto, GB Landco Ltd. and 2046079 Ontario Inc.

Respondents (
Appellant
)

AND BETWEEN

Metrolinx

Applicant (Appellant)

and

Remicorp Industries 78Inc.

Respondent

(Respondent in Appeal)

Wendy J. Earle, for the appellant

David Cherepacha and Kyle Gossen, for the respondent

Heard: November 30, 2016

On appeal from the judgments of Justice Grant R. Dow of
    the Superior Court of Justice, dated January 12, 2016, with reasons reported at
    2016 ONSC 10.

Pepall J.A.:

A.

Introduction

[1]

These appeals involve competing claims for relief relating to an easement.
    The easement is located on land situated north of railway tracks that currently
    service GO Trains and the newly-established Union Pearson Express. The
    contested easement leads to another, uncontested easement that runs along a
    rail corridor. Together, the easements provide access for maintenance of the
    railway tracks.

[2]

The appellant, Metrolinx, sought a declaration that the contested
    easement was valid and an injunction requiring the respondent, Remicorp
    Industries Inc., to remove certain encroachments on it. Remicorp, who owns the
    lands on which the easement is situate, sought a declaration that the easement
    had been abandoned or extinguished or, in the alternative, that it be
    relocated.

[3]

The applications judge accepted Remicorps position. He dismissed
    Metrolinxs application and found that the easement had been abandoned. Although
    Remicorp had sought relocation as alternative relief, the applications judge ordered
    that the easement be relocated. Metrolinx now appeals on the basis that the applications
    judge erred in concluding that the easement had been abandoned, and in ordering
    it to be relocated.

[4]

For the reasons that follow, I would allow Metrolinxs appeals.

B.

facts

The Property

[5]

The Canadian National Railway Company (CN) owned the Mimico railway
    station in the west of Toronto. The station property consisted of a small
    building surrounded by a parking lot and vegetation (the Property). The
    Property lies west of Royal York Road and borders on Judson Street to the north
    with railway lands and tracks to the south. On a survey dated November 26,
    2002, the Property is divided into nine parts. The significant parts for the
    purposes of this appeal are Parts 1, 2, 3, and 5, highlighted below:

[6]

The easement under dispute in these appeals is shown on Part 5. Part 5 is
    a curved, uphill, unpaved laneway running from Judson Street to the parking lot
    providing access to the station and to the uncontested easement. This laneway is
    described by the parties as the Access Easement. It is approximately 6.1 to
    11 metres wide and about 45 metres long.

[7]

The uncontested easement is shown on Parts 2 and 3, and is described as
    the Maintenance Easement. Part 3 is a strip of land, 3 metres wide and 70 metres
    long, running west to east immediately north of the rail corridor. At its
    eastern end, Part 3 is met by the Access Easement. At its western end, it meets
    Part 2, a small quartile of land that is met by Part 1 on the survey.

[8]

Part 1 is on the western side of the Property. It is a strip of land,
    6.1 metres wide and 60 metres long, that runs from Judson Street in the north
    to Part 2 in the south.

The Easements

[9]

In 2002, CN sold its Property to Remicorp, a concrete manufacturing company.
    Remicorp intended to build a concrete factory on the Property.

[10]

CN
conveyed the Property to Remicorp, reserving
    the Access and Maintenance Easements to itself. Remicorp also agreed to build a
    6-foot fence and gates acceptable to CN along the southern boundary of the
    Property that would abut the railway lands that CN continued to own.

[11]

Both
    the Access Easement and the Maintenance Easement reserved to CN, its successors
    and assigns an exclusive, free, uninterrupted and unobstructed right and
    easement in the nature of a right-of-way that extended to use by vehicles and
    equipment. The sale transaction closed and the deed was registered on December
    11, 2002. The deed included the Part 5 Access Easement and the Parts 2 and 3
    Maintenance Easement in favour of CN. The Access Easement was for the purpose
    of accessing CNs adjacent and abutting lands and the lands on which the
    Maintenance Easement was situate. The Maintenance Easement was for the purpose
    of maintenance of CNs railway tracks and other related railway operations.
    Both easements were for the benefit of CN and its successors and assigns. The relevant
    portion of the deed is attached as an appendix to these reasons.

[12]

Sometime
    in 2002 or 2003, Renato Silva, the owner of Remicorp, contacted Ernie Longo,
    CNs Manager of Business Development and Real Estate, about relocating the Access
    Easement from the eastern side of the Property along Part 5 to the western side
    of the Property along Part 1. The possibility of moving the Access Easement had
    been discussed at the time of the sale of the Property but nothing had been
    documented. No direct evidence from Longo or evidence of his authority to bind
    Metrolinx was tendered, but Silva deposed that Longo liked the relocation
    because it was in a straight line and fairly flat.

[13]

In
    June of 2003, Remicorp moved the Judson Street entrance to the Property from Part
    5 in the east, where the Access Easement is located, to Part 1 in the west.

[14]

On
    September 19, 2003, Remicorp and CN entered into an Easement Agreement in the
    nature of an option agreement in favour of CN. CN and Remicorp agreed that
upon the written request of CN
, Remicorp was to: (i) apply
    for and use its best efforts to obtain consent to the Part 1 easement from the
    City of Toronto Committee of Adjustment, (ii) grant the Part 1 easement to CN,
    and (iii) register the Part 1 easement on title.

[15]

The
    parties to the Easement Agreement expressly acknowledged the Access Easement on
    Part 5 and described it as the Original Access Easement. The Easement Agreement
    provided that on the registration of the Part 1 easement (described as the Permanent
    Easement) in accordance with the terms of the Agreement, on Remicorps written
    request, CN was to release the Original Access Easement. The Easement Agreement
    was registered on title on November 6, 2003.

[16]

CN
    never made any written request of Remicorp and hence never exercised its
    option; the Part 1 easement was never registered on title; and there is no
    evidence of the Committee of Adjustments consent or a release of the Access
    Easement from CN.

[17]

Nonetheless,
    Remicorp used Part 1 for ingress and egress to and from the Property. It also
    erected certain structures in the path of the Access Easement including a sheet
    metal wall, a garage/shed, and concrete troughs. In 2014, it erected a 6.5-metre
    high acoustical barrier that encroaches on the Maintenance Easement. Remicorp
    erected some of the structures without obtaining the necessary permits.

[18]

For
    its part, after entering into the sale transaction in 2002, CN did not use either
    the Access Easement or the unrealized Part 1 easement.

Sale to Metrolinx

[19]

In April 2010, CN transferred its interest in the rail corridor
    lands to Metrolinx,
an agency of the Ontario Government. Metrolinxs
    mission, among other things, is to develop and implement an integrated
    transportation system for the Greater Toronto Area. It operates the GO Train
    network that facilitates passenger movement by rail to and from the Greater
    Toronto Area and beyond. It is also responsible for the new Union Pearson
    Express.

[20]

The
    transfer from CN to Metrolinx included CNs rights to the Access Easement and
    the Maintenance Easement. Despite its transfer to Metrolinx, CN retained
    responsibility for the planning, design, and installation of the signal system
    for the rail corridor. In 2012, it erected a signal bridge, part of which sits
    on the south side of the Maintenance Easement. Using the Maintenance Easement,
    Metrolinx is able to drive its usual maintenance vehicle past the signal bridge
    on the south with about 10 centimetres to spare on the north.

[21]

Metrolinx
    has never exercised any rights it may have to the Access Easement or the
    prospective easement on Part 1.

[22]

The
    only repair and maintenance facility for the entire GO Train network,
    Willowbrook, sits to the southwest of the Property. The future needs of
    Metrolinx appear to be increasing. Over the years, Willowbrook has been
    expanded and two additional tracks have been installed on the northern edge of
    Metrolinxs property. Metrolinx can gain access to Willowbrook using the
    Maintenance Easement and from the south and west of its railway lands.

[23]

In
    2014, Remicorp obtained an Environmental Compliance Approval which permitted it
    to make intense use of Part 1 for ingress and egress to and from its Property. Remicorp
    is now allowed to operate 16 trucks per hour between the hours of 7:00 a.m. and
    7:00 p.m. using Part 1.

[24]

Remicorp and Metrolinx have had unsuccessful discussions about
    the sale of the Property to Metrolinx. The applications judge noted that the
    outcome of the parties court proceedings will likely have an impact on the
    value of the Property
.

Court Proceedings

[25]

This brings me to the particulars of the court proceedings commenced
    by each of the
parties.

[26]

Remicorp
    sought a declaration that the Access Easement over Part 5 was abandoned,
    obsolete, redundant and/or extinguished, or, in the alternative, asked for an
    order that it be relocated to Part 1.

[27]

Metrolinx
    sought a declaration that the Part 5 Access Easement is valid, in force, and
    binding on Remicorp. It also sought injunctive relief requiring Remicorp to stop
    obstructing the Access Easement and to remove certain encroachments. Metrolinx argued
    that use of the area attendant to the rail corridor has intensified in recent
    years. Absent use of the Access Easement, track protection for the safety of
    trains and workers would result in tracks being taken out of service, delays,
    and additional costs.

[28]

The
    other parties to the applications, and in particular, CN, have taken no
    position in either of the two proceedings.

Reasons of the
    Applications Judge

[29]

The applications judge dismissed Metrolinxs application and
    granted Remicorps.

[30]

The
    applications judge focused on whether Metrolinx had abandoned the Access
    Easement. He explained that abandonment can occur through express release,
    implied release, or by operation of law:
Lywood v. Hunt

(2009),
    97 O.R. (3d) 520 (S.C.), affd 2011 ONCA 229.

[31]

The
    applications judge noted that Remicorp did not argue there was an express
    release.

[32]

He
    went on to hold that while the legal documents did not support an implied
    release of the Access Easement by Metrolinx, its non-use of the easement did.

[33]

In
    his view, the key factors supporting the implied release were: (1) the
    existence and description of Part 1 on the survey; (2) the non-use of the Part
    5 Access Easement; (3) Silvas evidence of Longos acquiescence to moving the Part
    5 Access Easement; (4) the drafting and registration on title of the September 2003
    Easement Agreement; (5) and a December 2014 Metrolinx photograph of 12 large
    concrete blocks that blocked the south end of Part 1. The applications judge
    held that these blocks undermined Metrolinxs submission on the importance and
    need for any easement.

[34]

That
    said, he noted that neither party was suggesting that the easement be taken
    away; Remicorp was only proposing that it be moved. He rejected Metrolinxs
    submission that the Part 5 Access Easement was preferable to an easement over
    Part 1.

[35]

The
    applications judge concluded, at para. 21: In all of the circumstances, if
    necessary, I would conclude there is sufficient evidence of an implied release.
    However, I also conclude the operation of law is the basis on which Remicorp
    should succeed.

[36]

Relying
    on
Weidelich v. De Koning
,
2014 ONCA 736, 122 O.R. (3d) 545, he stated that the holder of an easement
    does not own the right of way but only enjoys the reasonable use of that
    property for its granted purpose. In the applications judges view, the
    purpose here was to pass over for access to the tracks when or if required, not
    to place or build anything permanent on that land: at para. 21. Metrolinx was
    entitled to its Access Easement, but the facts and circumstances of the case
    required that it be moved to Part 1.

[37]

The
    applications judge went on to hold that Remicorp was required to give
    reasonable priority to Metrolinx over its own 16-truck hourly allocation over
    Part 1.

[38]

The
    applications judge stated, at para. 24:

Under subsection 61(1) of the
Conveyancing and Law of
    Property Act
, R.S.O. 1990, c. C.34 [CLPA], the Access Easement is moved to
    [Part 1]. Similarly, if there is a distinction, subsection 119(5) of the
Land
    Titles Act
, R.S.O. 1990, c. L.5 [LTA] applies. I conclude the
    modification is beneficial to the parties interested and the existing easement
    is to be discharged while the alternate Access Easement registered on title.

[39]

Although
    the reasons were silent on extinguishment, the judgment allowing Remicorps
    application provides that the Part 5 Access Easement is extinguished by
    operation of law and by abandonment, and that pursuant to subsection 61(1) of
    the CLPA and subsection 119(5) of the LTA, the Part 5 Access Easement is
    relocated to Part 1. The applications judge also dismissed Metrolinxs request
    for injunctive relief to remove certain structures on the Access Easement and
    encroachments on Metrolinxs lands.

C.

Issues

[40]

Metrolinx appeals from the judgments. Its appeals raise the
    following
issues:

(i)
Did the applications judge err in
    concluding that the Part 5 Access Easement had been abandoned by implied
    release?

(ii)   Did the applications judge err in
    concluding that the Part 5 Access Easement was extinguished by operation of law?

(iii)  Did he also err in concluding that the Part
    5 Access Easement could be moved to Part 1?

(iv) Is Metrolinx entitled to a remedy for
    Remicorps encroachments on the Access Easement and Metrolinxs lands?

[41]

Metrolinx also argues that the applications
    judge erred in ordering that Metrolinx was to have reasonable priority over
    Remicorps use of Part 1.  However, as I have found in Metrolinxs favour on
    the other issues, it is unnecessary to address this submission.

D.

discussion

Issue 1: Abandonment
    by Implied Release

(a)

Parties
    Positions

[42]

Metrolinx
submits that the applications judge made three
    errors in finding that the Part 5 Access Easement had been abandoned by implied
    release: (i) he failed to recognize that the three registrations on title
    between 2002 and 2010 contradicted any suggestion of abandonment; (ii) he
    failed to apply established case law on the need to demonstrate an intention to
    abandon in the face of an express grant of easement; and (iii) he improperly
    considered extraneous issues in considering whether there was an implied
    release of the Access Easement.

[43]

Remicorp
    disputes these submissions and states that the applications judge considered
    the three registrations on title but found that they were outweighed by the
    factors that demonstrated an implied intention to abandon. Furthermore,
    Remicorp argues that although the applications judge did not make express reference
    to intention, his reasons clearly imply that he found an intention to abandon.
    In any event, argues Remicorp, the weighing of the factors in the applications judges
    analysis of abandonment is discretionary and his decision is entitled to
    deference. Lastly, he did not improperly consider any extraneous issues.

(b)

Analysis

[44]

The
    applications judge was dealing with an express grant of easement. CN asserted
    its rights to the Access Easement in the 2002 deed from CN to Remicorp, in the 2003
    Easement Agreement between CN and Remicorp, and in the 2010 deed from CN to
    Metrolinx. All were registered on title.

[45]

Subsection 15(1) of the
CLPA
provides that,
    absent an exception, a conveyance includes all easements. Here, the Access
    Easement and the Maintenance Easement were expressly included, and not excepted,
    in both the conveyance from CN to Remicorp and the conveyance from CN to
    Metrolinx. Put differently, CN maintained its rights to use and transfer the
    easements. There is no question that paper title to the enjoyment of the Part 5
    Access Easement remained with CN and was then transferred to Metrolinx.

[46]

One must therefore then consider whether there
    was any derogation from Metrolinxs right to the Access Easement by implied
    release.

Abandonment
    by Release: General Principles

[47]

An easement may be abandoned by release which may
    be express or implied. The onus of proof is on the party asserting a release:
Liscombe
    v. Maughan
(1927), 62 O.L.R. 328 (C.A.), at p. 335. In
Gale
    on Easements
,
20th ed.
    (London: Thomson Reuters (Professional) UK Limited, 2017), the authors warn, at
    para. 12-26: Unless the easement is granted for a term of years, the rights
    conferred by an easement are perpetual and, accordingly, are actually or
    potentially valuable rights. Therefore it is not lightly to be inferred that
    the owner of such a right should give it up for no consideration.

[48]

An easement can be expressly released by the
    dominant owner, that is, the party who has received the grant of easement  in
    this case CN and then Metrolinx. As noted by the applications judge, there was
    no express release. This was undisputed.

[49]

An easement can also be released impliedly. Non-use
    coupled with an intention to abandon the easement may demonstrate implied
    release. On its own, non-use is insufficient. As this court explained in
Liscombe
,
at p. 335, non-use may
    arise because an owner of an easement had for the time no occasion to use it as
    another more convenient means of employing the land was available. However,
    this lack of use did not prove that the owner of the easement intended to
    abandon it. See also
Ward v. Ward
(1852)
, 155 E.R. 1189, and
Crossley
    and Sons Limited v. Lightowler
(1867), L.R. 3 Eq. 279. Indeed
    in
Liscombe
at p. 335, this court cited
Seaman
    v. Vawdrey
(1810), 33 E.R. 1032, where, despite non-use
    for over 100 years, an intention to abandon was not established. To reiterate,
    intention to abandon must be proven.

[50]

Intention to abandon will be found where the
    person entitled to it has demonstrated a fixed intention never at any time
    thereafter to assert the right himself or to attempt to transmit it to anyone
    else:
Shklar v. Kwiecien
(1972), 3 O.R. 245
    (H.C.J.), at p. 247, citing
Tehidy Minerals Ltd. v. Norman
,

[
1971] 2 All E.R.
    475, at p. 492. See also
Almel Inc. v. Halton Condominium Corp. No.
    77
(1997), 98 O.A.C. 72 (C.A.), at para. 7. To establish
    intention to abandon, the surrounding circumstances may be examined:
Liscombe
,
at para. 28.

[51]

Inclusion of an easement in a conveyance
    supports the absence of an intention to abandon:
Liscombe
,
at p. 335. As stated
    in
Halsburys Laws
of Canada
, Real Property, (Toronto: LexisNexis Canada Inc., 2016 Reissue), at
    HRP 316: Where title has been perfected an extinguishment will usually require
    either an express release or circumstances so cogent as to preclude a
    quasi-releasor from denying the release; an intention to release will be less
    readily presumed where the title to the easement has been perfected than where
    the title still remains inchoate.: citing
Baker v. Harris
(1929), 64 O.L.R. 513 (C.A.), at p. 516. Suspension of the exercise
    of a right is insufficient. An intention not to exercise a right may differ
    from an intention to abandon it. See
Re Kileel and Kingswood Realty
    Ltd.
(1979), 108 D.L.R. (3d) 562 (N.B.C.A.), at p. 567.

Application to
    this Case

[52]

In my view, the applications judge erred in
    finding an implied release. There are several reasons why.

[53]

First, in considering whether the applications judges
    conclusion that the Access Easement had been impliedly released may be
    sustained, three registrations on title are relevant. The Access Easement and
    the Maintenance Easement were in the 2002 grant from CN to Remicorp. The Access
    Easement was then expressly addressed in considerable detail in the Easement Agreement
    of September 2003 between CN and Remicorp. Lastly, both easements were included
    in CNs transfer to Metrolinx in 2010.

[54]

While the applications judge was aware of these
    three documents in that he states that the legal documents do not support the
    position of Remicorp, I agree with Metrolinx that he failed to consider that
    the registrations on title represented evidence of the absence of an intention
    to abandon the Part 5 Access Easement by CN. In fact, the evidence to the
    contrary was both strong and unequivocal. The parties deliberately turned their
    minds to the treatment of the easement rights held by CN. The Easement
    Agreement contemplated an option by CN that was never exercised. CNs
    subsequent transfer of its easement rights to Metrolinx is consistent with the
    absence of any such exercise. There is no evidence that any of the steps
    contemplated by the Easement Agreement to effect a release of the Part 5 Access
    Easement ever took place. For instance, there is no evidence of CN making a written
    request, no evidence of Remicorp having applied for or using its best efforts
    to get the Committee of Adjustment to consent to the Part 1 easement, and no
    evidence that the Part 1 easement was ever registered on title as an easement. Had
    the applications judge considered this evidence, he would not have concluded
    that the requisite elements in support of an implied release were present.

[55]

Secondly, as mentioned, easement rights may have
    value. There was no evidence as to why CN, or indeed Metrolinx, would have
    intended to abandon such rights and there was no evidence of any consideration
    that flowed from Remicorp to CN in exchange for any release. The applications judge
    failed to consider this as a factor that supported the absence of any such
    intention.

[56]

Thirdly, the Access Easement was an express
    grant that was registered on title. As Aitken J. stated in
2108133 Ontario
    Inc. v. Kabcan Foods Ltd.
(2009), 80 R.P.R. (4th) 194 (Ont. S.C.), at
    para. 8, the intent to abandon means that the person entitled to the easement
    has knowingly, and with full appreciation of his rights, determined to abandon
    it. The applications judge made no finding in this regard. Indeed, although the
    onus of proof was on Remicorp, the applications judge was silent on the absence
    of any evidence being elicited from CN.

[57]

Fourthly, the applications judge concluded that
    Metrolinx was entitled to its easement but the facts and circumstances of this
    case require the easement to be moved to  Part 1. The easement was not being
    taken away but was being moved. His finding that Metrolinx was entitled to an
    easement is inconsistent with his finding that Metrolinx impliedly abandoned the
    Access Easement.

[58]

Lastly, Metrolinx also submits that the
    applications judge erred in considering certain extraneous factors. It submits
    that he erred by justifying his conclusion in part on the basis that the Access
    Easement was not used and that an alternative route was available, and by
    inferring that CN had acquiesced in moving the Access Easement.

[59]

Lack of use, alternative access, and acquiescence
    are factors to consider in assessing the cogency of the circumstances. However,
    as mentioned, non-use on its own is insufficient. Further, as will be addressed
    below in my discussion of extinguishment by operation of law, alternative
    access becoming available is on its own insufficient to establish abandonment. Finally,
    any potential acquiescence by CN was overtaken by the express terms of the Easement
    Agreement that addressed the very subject matter of the Access Easement in
    clear and unambiguous language and which the applications judge failed to meaningfully
    address.

[60]

In light of these errors, to the extent the applications
    judge rested his decision on a finding of implied release, his decision cannot
    be sustained.

[61]

Having addressed abandonment by implied release,
    I will now turn to the applications judges reliance on operation of law.

Issue Two: Operation of Law

(a)

Parties
    Positions

[62]

On appeal, the submissions of the parties
    conflated abandonment by implied release and extinguishment by operation of
    law. In that regard, their arguments on operation of law were subsumed in their
    discussion of abandonment by implied release. However, for the purposes of
    analytical clarity and consistent with the terms of the judgment allowing
    Remicorps application, it is helpful to address the concepts separately.

(b)

Analysis

Extinguishment
    by Operation of Law: General Principles

[63]

As I have explained, in addition to holding that
    the Access Easement had been abandoned by implied release, the applications judge
    also rested his decision on operation of law. And while the applications judge
    did not declare that the Access Easement was extinguished in his reasons, he
    did so in his judgment. This raises the knotty question of nomenclature in this
    area of law, and the components of extinguishment by operation of law.

[64]

Anne Warner La Forest, in
Anger and
    Honsberger, Law of Real Property
,

loose-leaf, 3rd
    ed., vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2016) states at para. 17:20.60,
    that an easement may be extinguished by express release, implied release, or
    operation of law. She treats abandonment as a form of implied release. Certain cases
    have used a comparable classification. For example, see
Roop v.
    Hofmeyr
, 2016 BCCA 310, 88 B.C.L.R. (5th) 233, at paras.
    30, 41;
[1]

Lywood et al. v. Hunt
(2009), 97 O.R. (3d) 520
    (S.C.), at para. 27, affd 2011 ONCA 229, 2 R.P.R. (5th) 15; and
Phinny
    v. Macaulay
, (2008), 75 R.P.R. (4th) 66 (Ont. S.C.), at
    para. 119.

[65]

Anger and Honsberger

states, at para.
    17:20:60(a), that at common law, an easement will be extinguished by operation
    of law where:

(a)   the purpose for which it was created has
    come to an end;

(b)   the period for which the easement was
    created terminates;

(c)   the right is abused; or

(d)   the same person comes to own the
    dominant and servient lands in fee simple.

[66]

In contrast, at pp. 29-007 to 29-016 of
Megarry
    and Wade, The Law of Real Property
, 8
th
ed.
    (London: Sweet & Maxwell, 2012), the authors describe the mechanisms for
    extinguishment as being by statute, express or implied release, and by unity of
    ownership and possession of both the dominant and servient tenements.

[67]

The authors of
Gale on Easements
describe extinguishment as falling into three categories: by
    operation of law, statute, and release. Operation of law is stated to encompass
    unity of ownership, merger of interests, expiration of a time- limited easement,
    and disappearance of the purpose of an easement.

[68]

Yet another classification is found in
Halsburys
at HRP 315-322. It classifies the methods of
    extinguishment as being by statute, express or implied release, unity of
    ownership, or destruction of either tenement.
Halsburys

states, at HRP 319, that an easement will be extinguished if it was
    granted with a time limit, or for a purpose, that has expired or come to an end.
    However, the authors include extinguishment resulting from expiry of time or
    end of purpose as a subset of extinguishment by release.

[69]

What is to be drawn from all of these
    descriptions?

[70]

A reasonable conclusion is that an easement may
    be extinguished by operation of law in two ways. First, it may be extinguished
    by statute. A good example is found in British Columbias
Property
    Law Act
, R.S.B.C. 1996, ch. 377, s. 35(2), which allows
    the court to modify or cancel an easement where there is,
inter alia
, a material change in the character of the land such that the
    easement is obsolete. Ontarios legislation does not mirror that of British Columbia.
    In extinguishing an easement by statute, some caution may be required. As the
    authors of
Gale on Easements

note at para.
    12-12: An Act should not, however, be construed so as to interfere with
    somebodys property rights without compensation unless the court is obliged so
    to construe it citing
Jones v. Cleanthi
,
[2007] 1 W.L.R. 1604,
    at para. 82.

[71]

Secondly, an easement may be extinguished by
    operation of the common law. Examples include unity of ownership and possession
    of the dominant and servient lands or destruction of either the dominant or
    servient lands. As seen from
Anger and Honsberger
,
Gale on Easements
, and
Halsburys
, extinguishment by operation of law also includes expiry of a time-limited
    easement and disappearance or expiry of the purpose for which the easement was
    created. It seems to me that the former would more properly be the subject
    matter of an express or implied release. If an easement is granted for a
    limited time, it follows that it must have been the subject of an express grant
    that expressly or impliedly provided for a release on the expiration of the
    time limit.

[72]

As for expiry of the purpose for which the
    easement was granted, an easement is not typically extinguished by temporary
    events that impact its use. Some permanence must exist. In Easement Caselaw
    Update, (paper presented to the Ontario Bar Association, Continuing Legal
    Education Program, Easements for Real Estate and Municipal Lawyers: Level II,
    October 6, 2016), Craig Carter writes that: An easement can be extinguished as
    a matter of law when some event occurs that makes the easement unusable or
    unnecessary. Some permanence must exist. A flood that washes over an easement
    is not extinguishment. But global warming causing a sea to cover a right of way
    will be.

[73]

A further example is found in
National
    Guaranteed Manure Co. (Ltd.) v. Donald
(1859), 157 E.R. 737, where the
    court held that an easement to take water to fill a canal ceased when the canal
    no longer existed and was converted to a railway.

Application
    to This Case

[74]

The applications judge stated, at para. 21 of
    his reasons: I also conclude that operation of law is the basis upon which
    Remicorp should succeed. His analysis on this point was limited. Moreover, as
    mentioned, at para. 23, he spoke of abandonment by operation of law, not
    extinguishment. His analysis seemed to focus on whether the reasonable use of
    the Access Easement for its granted purpose persisted. He noted the description
    of the Access Easement as being exclusive, free, uninterrupted and unobstructed
    and that the purpose was to pass over for access to the tracks when or if
    required, not to place or build anything permanent on that land. He concluded
    that Metrolinx was entitled to its easement, but it was to be moved to Part 1.

[75]

Read as a whole, the applications judges
    reasons suggest that he found abandonment based on operation of law due to
    evidence of lack of use by CN and Metrolinx and his perception that Metrolinx was
    not in immediate need of any easement because the Part 1 pathway had been
    blocked by 12 large concrete blocks. In this regard, he analogized the case to
Bost
    Properties Inc. v. Highland West Developments Inc.
, (2002)
    48 R.P.R. (3d) 83 (Ont. S.C.).

[76]

With respect, lack of use and lack of need do
    not amount to extinguishment by operation of law. To the extent that lack of
    need reflects a lack of purpose, the applications judges substitution of the
    Part 1 easement is wholly inconsistent with a lack of purpose. Moreover, it
    runs counter to the express terms of the Easement Agreement. In addition, the applications
    judges reliance on
Bost

Properties
was misplaced. That case
    involved property in the City of Kitchener that had once been rural but later
    became urbanized. The right-of-way at issue was created by deed in 1954 to
    serve as a laneway to provide access to farm property. The farmhouse no longer
    existed and the farm had ceased operations many years before. What was once an
    area of agricultural use was now dormant land awaiting urban development. The
    trial judge decided that the easement in that case was for a limited purpose
    that had disappeared.

[77]

Assuming, without deciding, that the analysis in
Bost Properties
was correct, here the purpose
    associated with the Access Easement  access to the railway lands  cannot be
    said to have disappeared. Indeed, the applications judge acknowledged as much
    by granting an access easement to Metrolinx over Part 1.

[78]

This case is more akin to
Fyfe v.
    James
(2006), 42 R.P.R. (4th) 221 (Ont. S.C.), where the
    court held that an access easement was not extinguished after a new, alternate
    access road was built. The court distinguished the facts in
Bost
    Properties
, and rejected the respondents argument that,
    because the new road provided full ingress and egress to the relevant
    properties, the right-of-way was no longer necessary and therefore
    extinguished. The grant did not provide for the easement to be extinguished by
    alternative access, nor did it stipulate a time limit.

[79]

Here, as in
Fyfe
, nothing in the three instruments registered on title suggest a
    time limit on the Access Easement. While relocation of the Access Easement is
    contemplated in the Easement Agreement, this relocation is solely at the option
    of CN. As the option was not exercised, the Access Easement was not
    extinguished.

[80]

The conclusion that the Access Easement had been
    abandoned or extinguished by operation of law was in error.

Issue Three: Relocation of
    Access Easement to Part 1

(a)

Parties
    Positions

[81]

Metrolinx also appeals the applications judges
    decision relocating the Access Easement from Part 5 to Part 1. It submits that
    the applications judge made three errors in exercising his discretion to move
    the Access Easement: (i) the decision ignored Metrolinxs registered contractual
    right; (ii) having found that the Access Easement had been abandoned, the applications
    judge lacked jurisdiction to modify the Access Easement under s. 61(1) of
    the CLPA or s. 119(5) of the LTA; and (iii) he failed to apply the proper legal
    test and failed to adhere to established legal principles.

[82]

Remicorp submits that the applications judge
    properly interpreted the grant of the Access Easement and determined that the
    rationale for the original location and configuration no longer existed. Moreover,
    the parties to the Easement Agreement knew at the time it was registered that
    the Access Easement had already been relocated.

[83]

Remicorp submits that the applications judge did
    not relocate an abandoned easement. Rather, he found that it had been relocated
    by operation of law and by statute and that there was sufficient evidence of an
    implied release, as well. It asserts that the easement was properly relocated
    under the CLPA and the LTA and the applications judge made no error in
    principle.

(b)

Analysis

[84]

First, I agree with Metrolinx that while the applications
    judge recognized the validity and effect of the Easement Agreement at paras. 5
    and 15 of his reasons, his decision effectively deprived the Easement Agreement
    of any force or effect. In essence, the applications judge appropriated from
    Metrolinx the benefit of the Easement Agreement in the absence of evidence of any
    consideration including   any allowance for compensation.

[85]

Secondly, I also agree with Metrolinx that s.
    61(1) of the CLPA and s. 119(5) of the LTA require that a valid covenant
    exist over which the court can exercise its jurisdiction. Subsection 61(1) of
    the CLPA states:

Where there is annexed to land a condition or
    covenant that the land or a specified part of it is not to be built on or is to
    be or not to be used in a particular manner, or any other condition or covenant
    running with or capable of being legally annexed to land, any such condition or
    covenant may be modified or discharged by order of the Superior Court of
    Justice.

[86]

Subsection 119(5) of the LTA states:

The first owner and every transferee and every
    other person deriving title from the first owner, shall be deemed to be
    affected with notice of such condition or covenant, but any such condition or
    covenant may be modified or discharged by order of the court on proof to the
    satisfaction of the court that the modification will be beneficial to the
    persons principally interested in the enforcement of the condition or covenant.

[87]

According to the applications judge, the Access
    Easement had been abandoned. He therefore erred in finding that there was a
    covenant over which the court could exercise its jurisdiction.

[88]

In any event, the applications judge did not
    apply the correct legal principles in concluding that the Access Easement
    should be relocated.

[89]

Subsection 61(1) of the CLPA does not indicate
    how a courts discretion is to be exercised. Subsection 119(5) of the LTA
    requires proof that the modification will be beneficial to the persons principally
    interested in the enforcement of the condition or covenant.

[90]

In
Re George

(1926),
    59 O.L.R. 574 (C.A.), this court considered whether a modification would be beneficial
    to the persons principally concerned, a phrase previously contained in the CLPA
    and which is nearly identical to that found in the LTA. Middleton J.A. stated,
    at pp. 577-578:

The provisions of the statute (12 & 13
    Geo. V. ch. 53) are not easy to interpret. A Judge is empowered to modify or
    discharge building restrictions on proof to his satisfaction that the
    modification will be beneficial to the persons principally concerned. If this means
    beneficial to the applicant the provision is senseless, for the relief would
    not be sought unless the applicant deemed it a benefit. If it means beneficial
    to the respondents it is again meaningless, for the respondents would
    undoubtedly release any right they may have if for their benefit. The meaning
    that has been given to the expression in practice is that the Judge must
    satisfy himself that the balance of convenience is in favour of granting the
    application, having regard to the rights and interests of both parties, and I
    think it may safely be said that the order should not be made unless the
    benefit to the applicant greatly exceeds any possible detriment to the
    respondents:
Re Button
(1925), 57 O.L.R. 161.

[91]

In
Re

Ontario Lime Co. Ltd.
(1926), 59 O.L.R. 646 (C.A.),
in discussing the CLPA, this court stated, at p. 651:

It has been more than once pointed out that
    under this statute there is no power to make compensation to a landowner who is
    prejudicially affected, and the jurisdiction is one to be exercised with the
    greatest caution, and an order should seldom, if ever be made which will in
    truth operate to the prejudice of the adjacent landowner who has any real
    rights. The true function of the statute is to enable the Court to get rid of a
    condition or restriction which is spent and so unsuitable as to be of no value
    and under circumstances when its assertion would be clearly vexatious.

[92]

The applications judge did not apply these
    principles. Moreover, he ignored the warning given by this court in
Ontario
    Lime
that the jurisdiction be
    exercised with caution and that an order be seldom granted if prejudicial to
    the adjacent landowner
. It is also difficult to
    see how the applications judge could conclude that the modification was
    beneficial to the interested parties. The relocation deprived Metrolinx of its
    rights under the Easement Agreement and results in significant traffic flow at
    the site of the alternative easement on Part 1. With the exception of making
    certain adjustments such as the removal of structures erected without building
    permits, the benefits to Remicorp of relocating the Access Easement are not
    obvious. Indeed, they do not appear to have been considered or identified by
    the applications judge.

[93]

For these reasons, the applications judge erred
    in relocating the Access Easement to Part 1.

Issue Four: Remedy

[94]

Based on my conclusions relating to the first
    and second issues, Metrolinx continues to have an easement over Part 5 of the
    Property. It follows that any encroachment on the Access Easement should be
    removed.

[95]

In addition, as acknowledged at para. 2 of the
    parties Agreed Statement of Facts dated December 3, 2015, portions of a metal
    plate fence and a portion of a metal clad building and its canopy are
    encroaching on Metrolinxs lands to the south. The applications judge failed to
    address Metrolinxs request that these encroachments be removed and I see no
    basis on which they should not be. These encroachments should therefore also be
    removed. Metrolinx has suggested a six-month time frame for removal, which
    appears reasonable under the circumstances.

E.

DISPOSITION

[96]

For these reasons, I would allow Metrolinxs
    appeals, set aside the judgments of the applications judge and substitute
    paragraphs 1, 2, 4, and 5 of the form of draft order found at Tab D of
    Metrolinxs factum.

[97]

As agreed by the parties, Remicorp is to pay
    Metrolinxs costs of the applications and the appeal fixed in the amounts of $35,000
    and $20,000, respectively, inclusive of disbursements and applicable taxes.

Released:

RJS                                       Sarah E.
    Pepall J.A.

MAY 30 2017                          I agree Robert
    Sharpe J.A.

I agree
    C.W. Hourigan J.A.

APPENDIX

The 2002 conveyance from CN to Remicorp describes the Access
    Easement and Maintenance Easement in this case as follows:

Reserving unto the Transferor for itself, its successors and
    assigns, agents, employees, tenants and licensees, an exclusive, free,
    uninterrupted and unobstructed right and easement in the nature of a
    right-of-way for access and/or egress by the Transferor, its agents, employees,
    tenants, licensees, guests, servants and visitors and their respective vehicles
    and equipment over, across, along and upon the lands described as Part of Lot
    20, Block C, Registered Plan 339 or 389, City of Toronto, designated as Part 5
    on Reference Plan 66R-20057 (the Access Lands) for the purpose of accessing
    the adjacent and abutting lands of the Transferor and the Maintenance Lands (as
    hereinafter defined) and for all purposes necessary for or incidental to the
    exercise and enjoyment of the rights therein reserved (the Access Easement);
    and

Reserving unto the Transferor for itself, its successors and
    assigns, agents, employees and licensees, an exclusive, free, uninterrupted and
    unobstructed right and easement in the nature of a right-of-way by the
    Transferor, its agents, employees and licensees and their respective vehicles
    and equipment over, across, along and upon the lands described as Part of Lots
    19 and 20, Block C, Registered Plan 339 or 389, City of Toronto, designated as
    Parts 2 and 3 on Reference Plan 66R-20057 (the Maintenance Lands) (the Access
    Lands and the Maintenance Lands hereinafter referred to as the Burdened
    Lands) for the purpose of maintenance of the Transferors railway tracks and
    other related railway operations and for all purposes necessary for or
    incidental to the exercise and enjoyment of the rights therein reserved (the
    Maintenance Easement) (the Access Easement and the Maintenance Easement
    hereinafter referred to as the Easements).

The benefit of the Easements shall be appurtenant to and run
    with each part of the abutting and adjacent lands of the Transferor as
    described below (the Benefited Lands) and shall be for the benefit of the
    Transferor and its successors, assigns, agents, employees, tenants, licensees,
    from time to time of the Benefited Lands and others claiming under them. The
    burden of the Easement shall bind the Transferee and its successors and assigns
    and others claiming through it and shall be annexed to and run with every part
    of the Burdened Lands.

[1]

Although that case relies on
Megarry and Wade, The
    Law of Real Property
, 7
th
ed. (London: Sweet
    & Maxwell, 2008), which does not actually use that classification.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal & Sun Alliance Insurance Company of
    Canada v. Intact Insurance Company, 2017 ONCA 381

DATE: 20170510

DOCKET: C62842

Juriansz, Brown and Miller JJ.A.

BETWEEN

Royal & Sun Alliance Insurance Company of
    Canada

Applicant (Appellant)

and

Intact Insurance Company
,
Diane Wilson, Rita MacLeod and Cathy MacLeod

Respondents (
Respondent
)

Christopher P. Klinowski, for the appellant

Jason P. Mangano and Jennifer A. ODell, for the
    respondent

Heard: March 2, 2017

On appeal from the order of Justice Harrison S. Arrell

of the Superior Court of Justice, dated September 20, 2016.

Juriansz J.A.:

A.

Overview

[1]

The main question in this appeal is whether an endorsement of an
    automobile insurance policy that excludes coverage for a named driver is valid
    even though its form is not that pre-approved by the Superintendent of Financial
    Services, as required by s.
227(1) of the
Insurance Act
,
    R.S.O. 1990, c. 1.8
.

[2]

For the reasons that follow, I conclude that the use of an
    unapproved form, as is alleged here, does not necessarily invalidate an
    agreement between the parties about exclusion from insurance coverage. I also
    reject the appellants other arguments, and would dismiss the appeal.

B.

Background

[3]

Diane Wilson and her husband met with her insurance broker on February
    29, 2012 because her drivers licence had been suspended for unpaid fines and
    the insurance on the 2004 Impala she owned was being cancelled. She wished to
    maintain insurance coverage on the car so her husband could drive it. Insurance
    was arranged with the respondent, Intact Insurance Company, on the basis that Wilson
    would be an excluded driver. Wilson executed an Excluded Driver Endorsement.

[4]

The trial judge found that when Wilson completed the form the broker
    explained to her and she clearly understood that, even if the licence were to
    be reinstated, Intact still would not insure her and the Excluded Driver Endorsement
    would continue to apply.

[5]

Wilsons licence was reinstated, she drove the vehicle, and had an
    accident in which Rita and Cathy MacLeod were injured. The MacLeods commenced a
    personal injury action against Wilson.

[6]

The MacLeods uninsured motor vehicle carrier, Royal & Sun Alliance Insurance
    Company of Canada, is the appellant. Royal brought an application for a
    declaration Wilson was fully insured by Intact. Intact, relying on the Excluded
    Driver Endorsement, took the position there was no coverage and Wilson was
    uninsured.

[7]

The application judge found the Excluded Driver Endorsement was in full
    force and effect at the time of the accident and that Intact had no duty to
    defend or indemnify Wilson in respect of the accident. Royal appeals from that
    decision.

C.

Analysis

(1)

The use of an unapproved form does not necessarily invalidate an
    excluded driver endorsement

[8]

Royals main argument on appeal is that the Excluded Driver Endorsement
    that Wilson executed is not in the form pre-approved by the Superintendent and
    is void because it did not strictly comply with s. 227(1) of the
Insurance
    Act
.

[9]

Section 227(1) provides:

227.(1) An insurer
shall not
    use a form
of any of the following documents in respect of automobile
    insurance unless the form has been approved by the Superintendent:

1. An application for insurance.

2. A policy,
endorsement
or renewal.

3. A claims form.

4. A continuation certificate. [Emphasis added.]

[10]

FSCOs Bulletin No. A-03/05 circulated FSCO pre-approved standard forms.
    Paragraph 2 of the pre-approved Excluded Driver Endorsement form and the boxes
    that follow it are reproduced below:

[11]

On the form that Wilson executed these boxes were not filled out. Rather, the words "See your Certificate of Automobile Insurance for which automobile(s) this change applies to." are written in across these boxes. The Certificate of Insurance set out these identifying details of the vehicle.

[12]

Assuming for the sake of argument that the Excluded Driver Endorsement
    was not in the pre-approved form, the question is whether s. 227(1) renders
    void an unapproved form. The section, itself, is silent on the effect of using
    a form that has not been pre-approved. The question is one this court has never
    squarely addressed.

[13]

It is necessary to interpret s. 227 in the context of the Act, its
    purposes and the regulatory scheme as a whole to determine the legislative
    intent. Doing so leads
me to conclude the legislature
    intended that a lack of compliance with s. 227(1) is a matter for the
    Superintendent. It is not the role of the courts, while applying the law of
    contract, to read into s. 227 that a non-compliant form is necessarily void as
    a matter of contract law.

(a)

The objectives of the regulatory automobile insurance regime

[14]

No doubt one of the main objectives of the regulatory automobile
    insurance regime in Ontario is consumer protection and guaranteed compensation
    of victims:
Smith v. Co-Operators General Insurance Co.
, 2002 SCC 30,
    [2002] 2 S.C.R. 129, at para. 11;
Peixeiro v. Haberman
, [1997] 3 S.C.R.
    549, at paras. 22-24. This court in
Abarca v. Vargas
, 2015 ONCA 4, 123
    O.R. (3d) 561, at paras. 36-37, recognized that automobile insurance policies
    are more than commercial contracts and form part of an integral social safety
    net.

[15]

Only the consumer protection objective is at play in this case. The
    question is whether Wilson, as a consumer of insurance, should be protected
    from her insurers use of an unapproved form. The victims requiring
    compensation in this case are the MacLeods. No matter the outcome of the case,
    they can claim compensation from one of the two insurers involved in the
    dispute.

[16]

The
Smith
case provides additional guidance. It involved the
    validity of an insurers notice under s. 71 of the
Statutory Accident
    Benefits Schedule
advising the insured of the termination of her statutory benefits.
    After noting the important consumer protection purpose of the insurance scheme,
    the court went on to caution, at para. 14,

that it is not the role of this Court to set out the specific
    content of insurance refusal forms. This task is better left to the
    legislature. However, it is appropriate for this Court to interpret in general
    terms what the legislature intended the insurer to convey under s. 71.

Thus, in furthering the consumer purpose of the Act,
    courts should limit their role to implementing the insurance regime as designed
    by the legislature.

(b)

The statutory setting of s. 227 of the
Insurance Act

[17]

Section 239(1) of the
Insurance Act
provides that every contract
    evidenced by an owners policy insures the person named therein. Section 240
    creates an excluded driver exception as follows:

If a contract evidenced by a motor vehicle liability policy
    names an excluded driver, the insurer is not liable to any person under the
    contract
or under this
    Act or the regulations
for any loss or damage that occurs while
    the excluded driver is driving an automobile insured under the contract, except
    as provided by the
Statutory Accident Benefits Schedule.

[18]

An excluded driver is defined at s. 224(1) of the Act as a person named
    as an excluded driver in an endorsement under section 249. Section 249
    provides that an insured may stipulate by endorsement to a contract evidenced
    by a motor vehicle liability policy that any person named in the endorsement is
    an excluded driver under the contract. In this context, s. 227(1) provides
    that an insurer shall not use a form for an endorsement unless the form is
    approved by the Superintendent.

[19]

I note all of these provisions refer to the contract between the
    insured and the insurer.

(c)

The Superintendents regulatory powers

[20]

The Superintendent appointed under the
Financial
    Services Commission of Ontario Act, 1997
, S.O. 1997, c. 28, has the general function of
administering and
    enforcing the
Insurance Act
.

[21]

Especially pertinent is the Superintendents powers in relation to
    unfair acts and deceptive practices.
Section 439
    of the Act provides that [n]o person shall engage in any unfair or deceptive
    act or practice.
Unfair or deceptive
    acts or practices are prescribed by
O. Reg. 7/00. Item 12 of
O. Reg. 7/00 prescribes as an unfair or deceptive act or
    practice [t]he use of a document in place of a form approved for use by the
    Superintendent,
unless none of the deviations in
    the document from the approved form affects the substance or is calculated to
    mislead
 (emphasis added).

[22]

Ultimately, s. 441(2) of the Act gives the Superintendent the power to
    order a person to cease or refrain from an unfair or deceptive act, to perform
    acts to remedy the situation, and even to cease engaging in the business of
    insurance or any aspect of the business of insurance.

[23]

The regulatory scheme focuses directly on the use of a document in
    place of a form approved for use by the Superintendent and gives the
    Superintendent the power to deal with the consequences of a deviation. I draw
    from reading s. 227(1) in this context that the legislature did not intend for
    the courts, while engaged in adjudicating a contractual dispute, to consider a
    contractual provision void merely because its form fails to strictly comply
    with s. 227(1) of the
Insurance Act
. The courts function is to
    determine the contractual dispute, and any alleged breach of s. 227(1) is a
    matter for the Superintendent. In fulfilling its function, the court may well consider
    an alleged deviation from a pre-approved form to the extent that is relevant to
    its enforceability in contract.

[24]

In my view, s. 126 of the Act seems to confirm that this is the correct
    approach. Section 126 and its applicability was not put before the court by
    either counsel. However, on its own, it may be dispositive. Section 126(1)
    forbids an insurer from making a contract of insurance inconsistent with the
    Act. Significantly, s. 126(2) then provides that a contract is not void or
    voidable as against an insured, or a beneficiary or other person to whom
    insurance money is payable under the contract,
by reason
    of a failure of the insurer to comply with a provision of this Act
 (emphasis
    added). This seems to me to indicate that the role of the courts is to determine
    the validity of contracts of insurance as a matter of contract law and the
    consequence of a failure to comply with a provision of the Act is to be
    determined as specifically set out by the Act and its regulations.

[25]

I reject Royals argument that the court, in determining whether there
    was coverage in this case, must consider the Excluded Driver Endorsement
    necessarily voided by s. 227(1) because of its alleged deviation from the
    pre-approved form.

(2)

Other arguments on appeal

[26]

Royal pointed out that Intact bore the onus of proof that an exclusion
    applied and submitted that Intact could not meet that onus without explaining
    why it initially provided coverage to Wilson and only later took the position
    she was an excluded driver. In my view, Intacts subsequent coverage decisions
    have no bearing on the contractual validity of the Excluded Driver Endorsement
    when it was executed and the application judge did not err in failing to
    comment on them.

[27]

There is no merit to Royal's additional arguments attacking the application
    judge's factual findings. Nor is there merit in Royal's argument that the
    conflicting evidence required a trial. There was little conflict as to the
    material facts and there was no good reason to order a trial. The application
    judges findings that Wilson executed the Excluded Driver Endorsement, that it
    was unambiguous, that Wilson was given a pink slip certificate that clearly
    identified the vehicle, and that Wilson understood, at the time, that she was
    excluded from driving the vehicle even if her licence were to be reinstated,
    were all supported by the record.

[28]

The application judge was correct in finding that the Excluded Driver
    Endorsement on the Intact policy insuring Wilsons vehicle was in full force
    and effect on June 6, 2012 when Wilson was involved in an accident with the MacLeods.

D.

Disposition

[29]

I would dismiss the appeal.

[30]

Intact is entitled to costs of the appeal fixed at $15,000, inclusive of
    taxes and disbursements, as agreed by counsel.

Released: May 10, 2017 (RGJ)

Russell Juriansz J.A.

I agree. David Brown J.A.

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