COURT OF APPEAL FOR ONTARIO

CITATION: Ledore Investments Limited (Ross Steel Fabricators
    & Contractors) v. Ellis-Don Construction Ltd., 2017 ONCA 518

DATE: 20170620

DOCKET: C63179

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

Ledore
    Investments Limited, carrying on business

as Ross
    Steel Fabricators & Contractors

Plaintiff (Appellant)

and

Ellis-Don Construction Ltd.

Defendant (Respondent)

W. Ross MacDougall and Robin E. Joffe, for the
    appellants

Angelo D'Ascanio, for the respondent

Heard: June 15, 2017

On appeal from the judgment of Justice J.N. Morissette of
    the Superior Court of Justice, dated August 29, 2016.

By the Court:

[1]

The appellant Ledore Investments Limited appeals from the judgment of
    Morrisette J. of the Superior Court of Justice setting aside a commercial
    arbitration award rendered by arbitrator Larry Banack.

[2]

In a major bridge construction project in southwest Ontario, the
    respondent Ellis-Don Construction Ltd. was the general contractor and the
    appellant was a subcontractor supplying steel to the project.

[3]

The underlying dispute arose out of the final subcontract accounting
    between the parties. There is no dispute that there were delays in the course
    of the project and that some money was owed by the respondent to the appellant,
    and
vice versa
. The respondent wrote to the appellant a number of
    times about the delay and ultimately withheld some funds.

[4]

In the crucial letter, the respondent said:

In addition to impacting the schedule, Ross Steel also forced
    Ellis-Don to expend substantial monies to accelerate the work in an effort to
    recover the schedule. We are currently assessing the financial impact that Ross
    Steels slippages have had on Ellis-Don and we intend to recover the costs from
    you.

[5]

The parties referred their dispute to a commercial arbitrator. Both
    parties relied on an article (Article 15) of the subcontract to say that the
    other party was estopped from raising certain delay costs claims. The
    arbitrator agreed with both parties assertions on the estoppel issue.

[6]

With respect to Ellis-Dons delay costs claim, the arbitrator said:

I find that while Ellis-Don may have contemplated a delay claim
    in January 1999 and may have discussed amongst its own representatives a
    possible strategy to assert a claim for delay costs in the amount of $400,000,
    there is no proof that it actually did so.
As stated earlier, the intention
    to claim is not the same as a claim
. Further, the failure to advance the
    delay claim in the August 4, 1999 meeting supports my view that Ellis-Don did
    not assert a delay claim in-writing before the final certificate of
    completion. [Emphasis added.]

[7]

With respect to Ross Steels delay costs claim, the arbitrator said:

For many of the same reasons above, Ross Steels claims for
    delay costs cannot be pursued.

[8]

Ross Steel accepted the arbitrators decision. Ellis-Don did not. It
    sought leave to appeal which Leach J. granted on this issue:

Ellis-Don is granted leave to appeal in relation to its
    contention that the arbitrator erred in law in finding that the letters sent by
    Ellis-Don to Ross Steel, (and the letter of January 18, 1999, in particular),
    did not constitute an unsettled claim made in writing, capable of satisfying
    the provisions of Article 15.1 of the parties agreement.

[9]

In relevant part, Article 15.1 of the subcontract provides:

15.1   As of the
    date of the final certificate for payment of the prime contract, the contractor
    expressly waives and releases the subcontractor from all claims against the
    subcontractor, including without limitation those that might arise from the
    negligence or breach of this agreement by the subcontractor, except one or more
    of the following:

(a)
those
    made in writing prior to the date of the final certificate for payment of the
    prime contract and still unsettled
; [Emphasis added.]

[10]

The
    appeal judge allowed Ellis Dons appeal from the arbitrators award. She held
    that the arbitrator did not apply what she called the general principles
    established in
Doyle Construction Co. v. OKeefe Breweries of Canada Ltd.
,
    [1988] 5 WWR 677 (BCCA) (
Doyle
) to determine whether or not the
    requirement of Article 15.1(a) had been satisfied. She continued:

Doyle, provides legal authority for the general proposition
    that provisions requiring claims to be made in writing should be treated as
    provisions requiring written notice of claims, contrary to the approach taken
    by the arbitrator.

In this courts view, the arbitrator erred in finding that
    claims made in writing should not be treated as provisions requiring written
    notice of a claim.

As indicated above, not only was there legal authority for that
    general proposition, but also authority suggesting an approach precisely the
    opposite to that taken by the arbitrator. In doing so, the arbitrator
    misapplied the general principles and considerations established in
Doyle
to reach his conclusion that Article 15.1(a) had been satisfied but instead
    fashioned and applied his own test in that regard, contrary to the applied
    legal principles established.

[11]

The
    appellant appeals this decision, essentially on two grounds.

[12]

First,
    the appellant asserts that the standard of review of a commercial arbitrators
    decision is reasonableness and that the appeal judge erroneously applied a
    correctness standard. The appellant points to the word erred in the passage
    from the appeal judges decision set out above.

[13]

The
    appellant is correct in the first of these two propositions. The standard of
    review on appeal from a commercial arbitration award will generally be
    reasonableness: see
Sattva Capital Corp. v. Creston Moly Corp
, 2014
    SCC 53 (
Sattva
), at para. 106.

[14]

In
    our view, the appellant is wrong in the second of its propositions on this
    issue. In her reasons, the appeal judge explicitly stated the issue in this
    fashion: The question therefore is whether there is a reasonable legal basis
    for the Arbitrators impugned decision/conclusion. It is true that in one
    place the appeal judge used the word erred in her description of the
    arbitrators decision. However, in light of her explicit framing of the legal
    issue in terms of reasonableness, and reading her reasons as a whole, we are
    satisfied that the appeal judge applied the proper test in her analysis.

[15]

Second,
    the appellant contends that the appeal judge erred by determining that the
    arbitrators decision was unreasonable. We agree.

[16]

We
    begin with two contextual points.

[17]

The
    first contextual point is recognition that there is an important link between
    the fact of a private consensual arbitration and the need for judicial
    deference to the result of the arbitration. As explained by Doherty J.A. in
Popack v. Lipszyc
, 2016 ONCA 135, at para. 26:

In addition to the generally applicable principles that urge
    deference in the review of all discretionary decisions, the nature of the
    specific order under appeal can also enhance the deference rationale. The
    application judge exercised her discretion in the context of a review of an
    award rendered in a private arbitration before a panel chosen by the parties to
    determine the dispute between them.
The parties selection of their forum
    implies both a preference for the outcome arrived at in that forum and a
    limited role for judicial oversight of the award made in the arbitral forum.
The
    application judges decision to not set aside the award is consistent with the
    well-established preference in favour of maintaining arbitral awards rendered
    in consensual private arbitrations.

[18]

See
    also:
Sattva
, at para. 104; and
Ottawa (City) v. Coliseum Inc
.,
    2016 ONCA 363, at paras. 31-34.

[19]

The
    second contextual point is recognition that the test for reasonableness, with
    respect to both tribunal and arbitral decisions, is a highly deferential one,
    encompassed in the formulation in the still leading case
, Dunsmuir v. New
    Brunswick
, 2008 SCC 9, at para. 47:

Reasonableness is a deferential standard animated by the
    principle that underlies the development of the two previous standards of
    reasonableness: certain questions that come before administrative tribunals do
    not lend themselves to one specific, particular result. Instead, they may give
    rise to a number of possible, reasonable conclusions. Tribunals have a margin
    of appreciation within the range of acceptable and rational solutions. A court
    conducting a review for reasonableness inquires into the qualities that make a
    decision reasonable, referring both to the process of articulating the reasons
    and to outcomes. In judicial review, reasonableness is concerned mostly with
    the existence of justification, transparency and intelligibility within the
    decision-making process. But it is also concerned with whether the decision
    falls within a range of possible, acceptable outcomes which are defensible in
    respect of the fact and law.

[20]

Against
    this backdrop, I turn to the arbitral award and the appeal judges review of
    that award.

[21]

The
    principal focus must be on the arbitrators decision. In our view, his
    interpretation of Article 15.1(a) of the subcontract at paragraphs 52-68 of the
    award is eminently reasonable. The question of whether Ellis-Don advanced a
    claim for delay in writing within the time permitted under the subcontract
    is, by its very nature, a question of mixed law and fact. The question required
    the arbitrator to not only interpret Article 15.1(a), but also to decide
    whether the language contained in Ellis Dons January 18, 1999 (or any other
    letters) was sufficient to constitute a claim. This is precisely what the
    arbitrator did.

[22]

The
    arbitrator was aware of the cases the respondent relies on in this appeal
    (Ellis-Don put them before him and relied on them in argument). In our view,
    the arbitrator did not ignore or misperceive them. Indeed, in terms of the
    principal case relied on by the respondent,
Doyle
, the arbitrators
    decision is not inconsistent with it; his dichotomy between intention to make
    a claim and an actual claim is similar to the distinction in
Doyle
,
    at para. 71, between grumbling display[ing] an intention to claim and an
    actual claim.

[23]

For
    these reasons, the appeal is allowed, the order of the appeal judge is set
    aside, and the arbitrators award is reinstated.

[24]

The
    appellant is entitled to its costs of the appeal fixed at $30,000, inclusive of
    disbursements and HST.

Released: JCM JUN 20 2017

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lesenko v. Guerette, 2017 ONCA 522

DATE: 20170622

DOCKET: C62993

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Pamela Lesenko

Plaintiff

(Respondent)

and

Victoria (Vickie) Guerette and Ralph MacEachran

Defendants

(Appellants)

Kyle A. MacLean, for the appellants

Suzy Johal, for the respondent

Heard: May 15, 2017

On appeal from the judgment of Justice Pamela L. Hebner of
    the Superior Court of Justice, dated October 27, 2016.

Rouleau J.A.:

[1]

The respondent brought a claim for unjust enrichment to recover money she
    paid to acquire and renovate a house registered in the appellants names. On a
    motion for summary judgment, the motion judge accepted the respondents
    evidence and rejected the version of events advanced by the appellants. The
    motion judge concluded that the respondent was entitled to the return of the
    $221,914.11 that the respondent alleges was invested by her to acquire and
    renovate the property.

[2]

On appeal, the appellants argue that this was not an appropriate case
    for summary judgment in that, at a minimum, some form of an oral hearing was
    required in order to make the required credibility findings. Further, the
    appellants submit that the motion judges reasons are insufficient and provide
    no analysis of or basis for the finding of unjust enrichment and for fixing
    $221,914.11 as the measure of the unjust enrichment.

[3]

In my view, the appeal must be allowed and the order set aside.

Facts

[4]

The appellants Victoria Guerette and Ralph MacEachern
[1]
are husband and wife and the respondent Pamela Lesenko is Ms. Guerettes sister.
    In 2009, the parties agreed to sell their homes and purchase a home together. That
    year the respondent sold her house for a net amount of $260,676.66. A portion
    of the proceeds then were used to purchase the subject property at 7710 Clayton
    Street in Port Franks, Ontario (the Property). The appellants and the
    respondent had agreed that they would jointly occupy the Property. Although the
    appellants were identified in the agreement of purchase and sale as buyers of
    the Property, the whole of the purchase price of $189,900, as well as the land
    transfer tax and the solicitors fees and disbursements, were paid out of the
    proceeds of sale of the respondents property. The respondents name did not
    appear in the agreement of purchase and sale nor on title.

[5]

The respondent moved into the Property in September of 2009 and in July
    of 2010, the appellants sold their home and also moved into the Property.

[6]

The Property was in need of renovations and according to the respondent,
    she paid a total of $34,240.76 towards these renovations between September 2009
    and 2012. The appellants dispute the amount allegedly spent and, in addition, stated
    that of the amount allegedly paid by the respondent, $10,000 was in repayment
    of a past loan they had made to the respondent.

[7]

For their part, the appellants claim that they paid $198,203.25 for
    materials and labour for the renovations and carried out work themselves that
    they value at $50,000. The appellants also maintain that, from the date of
    purchase, they paid all of the utilities, municipal taxes and insurance for the
    Property.

[8]

In April 2012, the respondent moved out of the Property claiming that
    the appellants had made it impossible for her to remain. After moving out, the
    respondent brought the present claim alleging unjust enrichment and seeking a
    return of the money she had invested in the Property. She claimed that the
    funds were advanced pursuant to an oral agreement she had with the appellants. That
    agreement provided that each of the three parties would have a one-third
    ownership interest in the Property. Although the respondent had paid the full
    purchase price, the agreement was that two-thirds of this amount was a loan to
    the appellants. The respondent claimed that despite several requests for
    repayment, the appellants have yet to repay that loan.

[9]

The appellants presented a totally different picture. They maintain that
    their agreement was to the effect that the respondent would pay for the
    purchase of the Property in exchange for the entitlement to live on the
    Property for the rest of her life. This arrangement was on the further
    understanding that the appellants would pay for the bulk of the renovations to
    the Property and all future ownership costs. If the appellants died before the
    respondent, the respondent would be entitled to continue living on the Property
    for her lifetime. If the respondent moved out after both the appellants died,
    the respondent would be entitled to one-third of the net proceeds from the sale
    of the Property.

[10]

Ms. Guerettes affidavit also set out that she and her husband had
    revised their wills to incorporate the grant to the respondent of the life
    interest in the Property. She appended an unsigned version of those wills to her
    affidavit.

[11]

In the course of preparing the materials responding to the motion for
    summary judgment, the appellants obtained an appraisal of the Property. Despite
    it having been purchased for in excess of $188,000, and $230,000 to $280,000 spent
    on renovations and labour, the appraised value had only risen to $252,000. This,
    the appellants submit, shows that both the appellants and the respondent have
    suffered a loss of part of their investment in the Property.

[12]

The motion was brought before any discoveries had been held and neither
    party cross-examined on the affidavits filed. The appellants explained that
    once they obtained the appraisal, it became apparent that they would have to
    amend their pleadings. Specifically, in their defence, the appellants had
    pleaded that the respondent should receive a reimbursement of $191,914.77, less
    a reasonable and equitable contribution for living on the Property. This
    figure, however, was based on their expectation at the time that the value of
    the Property was substantially in excess of the recently obtained appraisal of
    $252,000.

Judgment Below

[13]

Relying heavily on the fact that the respondent had been left destitute
    after making the investment in the Property, the motion judge reasoned that the
    respondent would not have agreed to pay the whole of the purchase price on the
    terms alleged by the appellants. The motion judge therefore accepted the
    respondents version that, although she paid the whole of the purchase price, this
    was pursuant to an agreement whereby she was to acquire a one-third interest in
    the property, and two-thirds of the payment was a loan to the appellants.

[14]

The motion judge rejected the appellants version and found that the
    appellants had orchestrated the purchase of the Property in their name using
    the respondents funds. The appellants were therefore enriched to the detriment
    of the respondent. The motion judge saw no reason why a trial was required and,
    despite the appellants request, determined that she did not require
viva
    voce
evidence to make credibility findings.

[15]

The motion judge then referred to the case law establishing that when a
    person purchases a property in the name of another without consideration, it is
    presumed that the recipient holds the property in trust for the transferor. Although
    that presumption can be rebutted with evidence of the purchasers actual
    intention, the appellants had not succeeded in doing so. The motion judge
    therefore found that the respondent had an interest in the Property and
    determined the amount of that interest to be in the amount of $221,914.11. The
    appellant had therefore been unjustly enriched by the same amount.

[16]

The $221,914.11 figure was arrived at by adding the purchase price of
    $191,914.11 (made up of the purchase price and costs related to the acquisition
    of the property) and $30,000, which is the amount the motion judge found was contributed
    by the respondent for renovations to the Property.

Analysis

[17]

The appeal must be allowed. In my view, the motion judges reasons do
    not adequately explain how she resolved the conflicts in the evidence, nor do
    they support the conclusion that she reached.

[18]

The motion judge was presented with two very different versions of what
    the parties had agreed to. Faced with this conflict in the evidence, the judge
    determined that the respondents version of events should be preferred over the
    version advanced by the appellants. There is little explanation as to why she
    rejected the appellants version other than her finding that, because of the
    respondents limited means, it made little sense for her to have invested all
    of her money in the Property.

[19]

There was, however, substantial affidavit evidence supporting the
    appellants version of events, including their evidence that their wills were
    amended to give effect to the respondents life interest and the fact that they
    paid all of the Propertys expenses from the outset. The motion judges reasons
    do not explain why this evidence was rejected nor does the motion judge make
    and explain credibility findings. Given the important issues which turn on
    credibility in this case, the failure to make such findings was an error. If
    credibility cannot be assessed on a written record, that should indicate that
    oral evidence or a trial is required:
Trotter Estate
, 2014 ONCA 841, 122
    O.R. (3d) 625, at para. 55. Care must be taken to ensure that decontextualized
    affidavit and transcript evidence does not become the means by which
    substantial unfairness enters:
Baywood Homes Partnership v. Haditaghi
,
    2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[20]

Further, having accepted the respondents version of events to the
    effect that the parties had agreed that the money advanced by the respondent was
    to acquire a one-third interest in the Property and that the balance was a
    loan, the motion judge does not explain why she did not give effect to that agreement.
    According to the respondent, she should have a one-third interest in the
    Property and be owed two-thirds of the $191,914.11 paid to acquire the Property.

[21]

A possible explanation is that, because there does not appear to be any
    documentation confirming the agreement, the
Statute of Frauds
, R.S.O.
    1990, c. S.19 operates to prevent enforcement of an oral agreement respecting
    land. This, however, is simply speculation as there is no indication either in
    the pleadings or the reasons of the motion judge that the
Statute of Frauds
was considered.

[22]

In apparent contradiction to her acceptance of the respondents evidence
    as to the terms of the agreement regarding the purchase of the Property, the
    motion judge found that the appellants held the whole of the Property in trust
    for the respondent. She did so in reliance on the presumption of resulting
    trust, as set out in
Pecore v. Pecore
, 2007 SCC 17, [2007] 1 S.C.R.
    795. Under that case, where a property is purchased in the name of another
    without consideration, it is presumed, as a general rule, that the property is
    held in trust for the person who advanced the funds. Despite the motion judges
    finding that the funds were advanced pursuant to the oral agreement alleged by
    the respondent, the motion judge nonetheless ruled that the presumption of resulting
    trust had not been rebutted with evidence of the [respondents] actual
    intention at the time of the purchase. This inconsistency is not explained.

[23]

Having thus determined that the appellants held the Property in trust
    for the respondent, the motion judge decided, again without explanation, that
    the appropriate remedy was not to transfer the Property to the respondent but
    rather to return to the respondent her investment in the Property on the basis
    that the appellants were unjustly enriched. The investment to be returned was
    determined to be the $191,914.11 paid to acquire the Property as well as the
    $30,000 the respondent alleges she spent on renovations.

[24]

The difficulty with this conclusion is that the motion judge carried out
    no analysis of the equities and specifically, made no findings as to the
    parties understanding regarding all of the monies invested by them in
    renovating a property the motion judge concluded was owned by the respondent. Why,
    for example, would the appellants invest close to $200,000 in expenditures and
    $50,000 in labour to renovate someone elses property?

[25]

The understanding of the parties as to those renovation costs may well
    have an impact on the decision as to who should bear the apparent loss in the
    investments made to buy and renovate the Property. As set out earlier, the
    value of the Property is now substantially less than the sum of the purchase
    price and renovation costs.

[26]

There is also no explanation as to why the motion judge accepted that the
    respondent is entitled to repayment of $30,000 in alleged renovations. I can
    only assume that the motion judge rejected the appellants statement that
    $10,000 of this sum was in repayment of a loan they had advanced to the
    respondent. The finding and the basis for the rejection of the evidence are,
    however, absent.

[27]

In the end, the motion judge determined the motion on the basis of unjust
    enrichment. Where a remedy is granted for unjust enrichment, courts must take
    into account the mutual exchange of benefits between the parties:
Kerr v.
    Baranow
, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 109-111. For example,
    the amount awarded may be reduced to reflect reciprocal benefits. As explained
    in
Kerr
, the mutual conferral of benefits should be considered at the
    defence and/or remedy stages of the analysis and may, in certain cases, also
    provide evidence of a juristic reason for the enrichment.

[28]

In this case, considering the mutual conferral of benefits would include
    determining the understanding of the parties when they entered into the
    arrangement, as well as calculating the amounts advanced by both parties to
    purchase the Property and to renovate and maintain the Property. It would also
    be important to understand whether the renovations were for the benefit and at
    the request of one or other or both of the parties. Finally, the court should
    take into account the usage made by the parties of the Property over the course
    of three years of joint occupation as well as the value of the renovated
    property. The necessary findings were not made by the motion judge and it is
    not possible for this court to make them on the record before us.

[29]

Let me add two further notes. In the course of submissions, the
    appellants appear to have conceded that the respondent was entitled to recover
    $112,021.63 of the amounts she invested. According to the appellants
    calculations, this would be the equitable result if each party absorbed its
    share of the loss of the money invested in the Property. I have considered
    making an order that the respondent be granted partial summary judgment in that
    amount and that the issue as to whether the respondent was entitled to receive
    additional sums proceed to trial. To make such an order, however, I would have to
    make the findings necessary to support the payment of that amount. In other
    words, this court would have to decide whether the $112,021.63 payment is ordered
    pursuant to the parties agreement (and outline the terms of the agreement), or
    ordered as an equitable remedy, or on some other basis. The record does not
    allow me to make the necessary credibility and other findings, and doing so would
    limit the discretion of the judge ultimately charged with deciding the case. I
    therefore concluded that it is best to leave it to the parties to address the
    possibility of such a payment in the course of the litigation.

[30]

Used appropriately, summary judgment motions are an important tool for
    enhancing access to justice and achieving proportionate, timely and
    cost-effective adjudication:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87. In my view, this motion for summary judgment was premature and
    should not have been brought until the positions of the parties and the issues
    were well defined. It was unclear from the pleadings and submissions whether
    the respondents claim sounded in contract or unjust enrichment. Further, as
    noted earlier, the appellants had indicated that their pleading required
    amendment with respect to the payment they were prepared to make. Moreover, the
    legal basis for the payment remains unclear. Faced with such a motion, where
    the record is clearly inadequate, a judge should be reluctant to attempt to
    resolve the case. Substantial costs are thereby incurred, and further delay
    caused, with little being achieved. As stated in
Baywood
, at para. 45,
    sometimes  it will simply not be possible to salvage something dispositive
    from an expensive and time-consuming, but eventually abortive, summary judgment
    process.

Conclusion

[31]

For these reasons, I would allow the appeal and set aside the judgment. I
    would also award the appellants their costs in this court and for the motion in
    the agreed upon amounts. The parties agreed that the successful party should be
    awarded $9,000 inclusive of disbursements and applicable taxes and, if the
    appeal were allowed, the appellants would be entitled to their costs of the
    original motion fixed in the amount of $7,276.07 inclusive of disbursements and
    applicable taxes.

Paul Rouleau J.A.

I agree G.T. Trotter
    J.A.

I agree David M.
    Paciocco J.A.

Released: June 22, 2017

[1]

This appears to be the correct spelling of Mr. MacEacherns
    name, which was misspelled in the order and judgment under appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Letestu Estate v. Ritlyn Investments Limited, 2017
    ONCA 442

DATE: 20170601

DOCKET: C62806

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

The Estate of Armand
    Letestu, deceased,

by its Litigation
    Guardian, Christopher Letestu

Plaintiff (Appellant)

and

Ritlyn Investments Limited

Defendant (Respondent)

Barry A. Percival Q.C., Daniel Zacks and Joel P. McCoy,
    for the appellant

Kenneth J. Raddatz and Kieran C. Dickson, for the
    respondent

Heard: May 18, 2017

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated October 19, 2016, with reasons reported at
    2016 ONSC 6540.

By the Court:

OVERVIEW

[1]

In December 2011 the appellant estate commenced an action for damages
    for injuries the deceased suffered when he allegedly slipped and fell over a
    damaged carpet in his residential rental unit. The action claims $500,000 in
    damages from the respondent, the owner and manager of the apartment building.
    It was commenced 23 months after the alleged slip and fall.

[2]

The respondent, on the eve of trial, moved under rule 21 of the
Rules
    of Civil Procedure
to strike the claim on the basis the Superior Court had
    no jurisdiction to hear it.

[3]

The motion judge dismissed the estates action, after concluding the
    claim fell within the exclusive jurisdiction of the Landlord and Tenant Board
    (the Board) over the subject matter, and was outside the one-year limitation
    period prescribed under s. 29(2) of the
Residential Tenancies Act
,
    2006, S.O. 2006, c. 17 (the Act). The estate appeals.

[4]

For the reasons that follow, we conclude
    the motion judge erred in law in his determination that the Superior Court
    lacks jurisdiction over the claim because it was commenced after the one-year
    limitation period under the Act had expired. As we explain, a plain reading of
    the relevant statutory provisions leads to the contrary conclusion.

ANALYSIS

(1)

The Superior Court Has Jurisdiction over the Claim

[5]

A plain reading of the four relevant provisions of the Act demonstrates the
    Act does not grant the Board exclusive jurisdiction over all claims of
    non-repair against a landlord. In this case, the Superior Court has
    jurisdiction.

[6]

Section 29(1) of the Act provides for a
    tenant or former tenant of a rental unit to apply to the Board for a variety of
    orders, including that the landlord breached an obligation under s. 20(1) (the
    landlords duty to repair).

[7]

Section 168(2) provides that the Board
    has exclusive jurisdiction to determine all applications under the Act and
    with respect to all matters in which jurisdiction is conferred on it by this
    Act.

[8]

Section 207(1) provides that the Board
    may, where it otherwise has the jurisdiction, order the payment to any given
    person of an amount of money up to the greater of $10,000 and the monetary
    jurisdiction of the Small Claims Court.
[1]

[9]

Section 207(2) of the Act, provides that
    a person entitled to apply under the Act but whose claim exceeds the Boards
    monetary jurisdiction may commence a proceeding in [court] for an order
    requiring payment of that sum andthe court may exercise any power that the
    Board could have exercised if the proceeding had been before the Board and
    within its monetary jurisdiction.

[10]

Thus, the Act does not grant the Board exclusive jurisdiction over all
    claims of non-repair against a landlord. Rather, the Board has jurisdiction
    over a tenants or former tenants claim for damages (as well as other claims
    within the Boards authority) where the essential character of the claim is
    for non-repair and within its monetary jurisdiction:
Mackie v. Toronto
    (City) and Toronto Community Housing Corporation
, 2010 ONSC 3801, [2010]
    O.J. No. 2852. The Boards jurisdiction, however, is not exclusive by virtue of
    s. 207(2):
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para.
    15.

[11]

B
ecause the estate claimed damages
    exceeding the monetary jurisdiction of the Small Claims Court, and therefore
    exceeded the jurisdiction of the Board, there was no question that the
    appellants were entitled to commence their proceeding in the Superior
    Court.  And, through the operation of s. 207(2), the court would be able
    to make any order the Board could have made in addition to any relief it could
    grant in a court proceeding.

[12]

It is unnecessary for the purpose of this
    appeal to decide whether other factors would have taken the claim outside the
    jurisdiction of the Board had the damages claimed been less than the monetary
    limit for the Small Claims Court  including (i) the fact that the action
    asserted claims under the
Occupiers Liability Act
,
R.S.O. 1990, c. O.2
and (ii) the status of the appellant as the estate of a deceased tenant.
    See, for example, the discussion in
Mackie

at paras. 43-44, as to the effect of claims under
    other legislation on the essential character of the claim, which in each case
    is determined based on the factual context.

(2)

The Limitation Period for Applications to the Board Does Not
    Apply

[13]

The motion judge concluded that, although
    the estates claim exceeded the monetary jurisdiction of the Board, the action
    had to be commenced within the one-year limitation period for applications to
    the Board under the Act (s. 29(2)) before the court could assume jurisdiction.

[14]

In arriving at this conclusion, the motion judge followed
Efrach v.
    Cherishome Living
, 2015 ONSC 472,
[2015]
    O.J. No. 293
(Div. Ct.), a decision of a single judge of the Divisional
    Court upholding an appeal from the Small Claims Court. The appeal judge in
Efrach
agreed with the Deputy Judges characterization of the claim as one of
    non-repair
[2]
and held that the Board had exclusive jurisdiction. In the part of her decision
    that is relevant here, she refused leave to amend the claim to permit damages
    exceeding the monetary jurisdiction of the Board, and to transfer the action to
    the Superior Court. She reasoned that, after the expiry of the one year
    limitation period for making a claim to the Board, the claim could not be
    transferred to the Superior Court since that court can only exercise powers
    that the Board could have exercised if the proceeding had been before the
    Board: at para. 21.

[15]

While we express no opinion on the result
    in
Efrach
,
we disagree with the
    conclusion that the one year limitation period for applications to the Board applies
    to actions before the Superior Court for non-repair. The motion judge here
    erred in following the reasoning in
Efrach
and concluding that the court lacked jurisdiction
    over the action.

[16]

There is simply no basis for importing
    the limitation period prescribed by the Act for applications to the Board into
    an action of this kind. The limitation of actions is governed by the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sch. B. and,
    pursuant to s. 19, the limitation periods listed in the schedule to that Act (including
    s. 38(3) of the
Trustee Act
,
    R.S.O. 1990, c. T.23 which requires a tort action by an estate to be commenced
    within two years of the deceaseds death). As the action was commenced within
    two years of the deceaseds death (and indeed within two years of the alleged
    slip and fall), there is no question of the expiry of any limitation period to
    bar the action.

[17]

Accordingly, the Superior Court has
    jurisdiction over the action and the claims are not statute-barred.

CONCLUSION

[18]

The appeal is allowed. Costs of the appeal to the appellant fixed at
    $10,000, inclusive of HST, plus disbursements in the amount of $3,987.76. Given
    the result, the appellant is awarded its costs of the motion below in the
    all-inclusive amount of $7,500.

Released: HSL JUN 1 2017

H.S. LaForme J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.

[1]

The monetary jurisdiction of the Small Claims Court is $25,000

[2]
The claim was for damages resulting from a break-in of the appellants rental
    unit, allegedly by entry through an unoccupied and unlocked neighbouring unit.


COURT OF APPEAL FOR ONTARIO

CITATION: Levesque v. Crampton Estate, 2017
    ONCA 455

DATE: 20170605

DOCKET: C62912

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Raymond Levesque, Jr.,
Dianne Gagnon and Derek Levesque

Plaintiffs

and

The Estate of Father Dale
    Crampton
and
The Roman Catholic Corporation of the
Episcopal Archdiocese of Ottawa

Defendants (
Appellant
)

(
Respondent
)

Matthew Sammon, for the appellant

Heather Williams, for the respondent

Heard: April 21, 2017

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated October 31, 2016, with reasons reported at
    2016 ONSC 6809.

Strathy C.J.O.:

[1]

This appeal requires the court to determine the
    limitation period applicable to a crossclaim brought by one joint tortfeasor
    against the estate of the other.

[2]

Section 38(3) of the
Trustee Act
,
    R.S.O. 1990, c. T.23 contains a two-year limitation period, running from the
    date of death of the wrongdoer, for an action against an executor or
    administrator for a wrong committed by the deceased.

[3]

Section 18 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, addresses the commencement of the limitation period
    applicable to a claim for contribution and indemnity between joint tortfeasors.
    It provides that a claim for contribution and indemnity is discovered and,
    therefore, the limitation period begins to run, on the day on which the
    wrongdoer seeking indemnity is served with the plaintiffs claim.

[4]

When one joint tortfeasor has died and the other
    makes a crossclaim for indemnity against his or her estate, which limitation
    period applies? If, as in this case, the crossclaim is made more than two years
    after the death of the first tortfeasor, is the second tortfeasors claim for
    contribution and indemnity barred by the
Trustee Act
, even though it
    is made within two years of being served with the plaintiffs claim? Can the
    claim for indemnity against the estate be time-barred even before the surviving
    tortfeasor is sued?

[5]

The motion judge found that s. 18 of the
Limitations
    Act, 2002
applied and dismissed a summary judgment motion asserting that
    the crossclaim was time-barred by virtue of s. 38(3) of the
Trustee Act
.

[6]

For the reasons that follow, I would allow the
    estates appeal. The limitation period under s. 38(3) of the
Trustee Act
applies.
    The limitation period applicable to the crossclaim expires two years after the
    date of death of the tortfeasor from whom contribution or indemnity is sought.

A.

Facts

[7]

The plaintiff, Raymond Levesque, Jr., alleges he
    was sexually assaulted by a priest, Father Dale Crampton (Father Crampton),
    in 1976. Mr. Levesque was 12 years old at the time. Father Crampton pleaded
    guilty to indecent assault and, on appeal to this court, was sentenced to eight
    months imprisonment:
R. v. D.C.
(1987), 22 O.A.C. 47 (C.A.).

[8]

Father Crampton died in 2010. In 2013, Mr.
    Levesque and his family brought this action against Father Cramptons estate
    and the Roman Catholic Episcopal Corporation of Ottawa (RCECO), claiming that
    RCECO was vicariously liable for the priests conduct and breached independent
    duties owed to Mr. Levesque.

[9]

In 2014, RCECO issued a statement of defence and
    crossclaim against Father Cramptons estate, relying on the allegations of
    wrongdoing against Father Crampton in the statement of claim.

[10]

In 2015, the plaintiffs consented to an order
    dismissing their claim against the estate because it was barred by the two-year
    limitation period in s. 38(3) of the
Trustee Act
.

[11]

The estate brought a motion to dismiss the
    crossclaim, relying on s. 38(3) of the
Trustee Act
. For reasons I will
    summarize below, the motion judge dismissed the motion. First, however, I will
    set out the relevant legislation.

B.

Legislation

[12]

This appeal involves the intersection of three statutes
     the
Negligence Act
, R.S.O. 1990, c. N.1, the
Limitations Act,
    2002
and the
Trustee Act
. A more detailed examination of the
    statutory provisions and their purposes is a necessary starting place for what
    follows.

(1)

The
Negligence Act

[13]

Section 1 of the
Negligence Act
creates
    joint and several liability and a right of contribution and indemnity between
    joint tortfeasors. A claim for contribution and indemnity is typically asserted
    by way of crossclaim. However, the right to contribution and indemnity exists
    whether or not the plaintiff has sued the other tortfeasor(s). Section 2
    contains a mechanism for asserting the right. Section 1 provides:

Where damages have been caused or
    contributed to by the fault or neglect of two or more persons, the court shall
    determine the degree in which each of such persons is at fault or negligent,
    and, where two or more persons are found at fault or negligent, they are
    jointly and severally liable to the person suffering loss or damage for such
    fault or negligence, but as between themselves, in the absence of any contract
    express or implied, each is liable to make contribution and indemnify each
    other in the degree in which they are respectively found to be at fault or
    negligent.

[14]

As Feldman J.A. observed in
Waterloo Region
    District School Board v. CRD Construction Ltd.
, 2010 ONCA 838, 103 O.R.
    (3d) 81,

at para. 10, the purpose of contribution and indemnity

is to provide a mechanism to ensure that all
    those who caused or contributed to the plaintiffs loss or damage should share
    the financial responsibility for that loss. Therefore, the basis of the claim
    is that each person who is held liable to the plaintiff for all or part of the
    loss is also liable to contribute or is entitled to receive contribution
    proportionally to or from the other tortfeasors.

[15]

In this case, RCECO asserted its claim for
    contribution and indemnity against the estate of Father Crampton by way of
    crossclaim.

(2)

The
Limitations Act, 2002

[16]

Section 4 of the
Limitations Act, 2002
,

establishes a basic two-year limitation period, running from the day on
    which the claim is discovered. Section 5 sets out rules for determining when a
    claim is discovered. Section 18, which is particularly germane to this case,
    deals with claims for contribution and indemnity:

18(1) For the purposes of subsection
    5 (2) and section 15, in the case of a claim by one alleged wrongdoer against
    another for contribution and indemnity, the day on which the first alleged
    wrongdoer was served with the claim in respect of which contribution and
    indemnity is sought shall be deemed to be the day the act or omission on which
    that alleged wrongdoers claim is based took place.

(2) Subsection (1) applies whether the
    right to contribution and indemnity arises in respect of a tort or otherwise.

[17]

Thus, the general two-year limitation period
    runs from the date that the party claiming contribution and indemnity is served
    with the claim in respect of which contribution is sought.

[18]

In
Canaccord Capital Corp. v. Roscoe
,
    2013 ONCA 378, 115 O.R. (3d) 641, at para. 17, Sharpe J.A. observed that s. 18
    was part of a fundamental and comprehensive reform of the law of limitations in
    Ontario aimed at creating a clear and cohesive scheme for addressing limitation
    issues, one that balances the plaintiffs right to sue with the defendants
    need for certainty and finality.

[19]

Section 19(1) of the
Limitations Act, 2002
provides that a limitation period set out in or under another Act that applies
    to a claim to which the
Limitations Act, 2002
applies is of no effect
    unless the provision establishing it is set out in the Schedule to the
Limitations,
    Act 2002
. Subsection 19(4) provides that if there is a conflict between a
    provision in the other statute and the limitation period established by the
Limitations
    Act, 2002
, the limitation period established by the other statute
    prevails.

[20]

Section 38(3) of the
Trustee Act
is set
    out in the Schedule to the
Limitations Act, 2002.
It, therefore,
    prevails over a limitation period set out in the
Limitations Act, 2002
,
    in the event of a conflict.

(3)

The
Trustee Act

[21]

Section 38 of the
Trustee Act
provides:

(1) Except in cases of libel and
    slander, the executor or administrator of any deceased person may maintain an
    action for all torts or injuries to the person or to the property of the
    deceased in the same manner and with the same rights and remedies as the
    deceased would, if living, have been entitled to do, and the damages when
    recovered shall form part of the personal estate of the deceased; but, if death
    results from such injuries, no damages shall be allowed for the death or for
    the loss of the expectation of life, but this proviso is not in derogation of
    any rights conferred by Part V of the
Family Law Act
.

(2) Except in cases of libel and
    slander,
if a deceased person
committed or
is by law liable for a
    wrong to another
in respect of his or her person or to
    another persons property,
the person wronged may
    maintain an action against the executor or administrator of the person who
    committed or is by law liable for the wrong
. [Emphasis
    added.]

(3) An action under this section
    shall not be brought after the expiration of two years from the death of the
    deceased.

[22]

Section 38 of the
Trustee Act
alters the
    common law. The common law rule was that no action in negligence could be
    brought on behalf of or against a deceased person: see
Waschkowski v.
    Hopkinson Estate
(2000), 47 O.R. (3d) 370 (C.A.), at para. 2. This rule
    was amended by statute in many jurisdictions, including Ontario, which did so
    in 1886. Section 38 is the successor to that legislation.

[23]

In
Waschkowski
, the purpose of the
    legislation was described as follows, at paras. 8-9:

In s. 38(3) of the
Trustee Act
, the limitation period runs from a death. Unlike cases where the
    wording of the limitation period permits the time to run, for example, from when
    the damage was sustained (
Peixeiro
) or when
    the cause of action arose (
Kamloops
), there is
    no temporal elasticity possible when the pivotal event is the date of a death.
    Regardless of when the injuries occurred or matured into an actionable wrong,
    s. 38(3) of the
Trustee Act
prevents their
    transformation into a legal claim unless that claim is brought within two years
    of the death of the wrongdoer or the person wronged.

The underlying policy considerations of this
    clear time limit are not difficult to understand. The draconian legal impact of
    the common law was that death terminated any possible redress for negligent
    conduct. On the other hand, there was a benefit to disposing of estate matters
    with finality. The legislative compromise in s. 38 of the
Trustee
    Act
was to open a two-year window, making access to a
    remedy available for a limited time without creating indefinite fiscal
    vulnerability for an estate.

C.

The motion judges decision

[24]

In the court below, the Crampton estate contended
    that the crossclaim failed for the same reason the plaintiffs action against
    the estate was dismissed  the operation of s. 38(3) of the
Trustee Act.
RCECO, on the other hand, argued that the applicable limitation period was s.
    18 of the
Limitations Act, 2002
, which applies to crossclaims. It
    argued that any other result would lead to an injustice because the right to
    make a crossclaim could expire even before the defendant had been sued.

[25]

The motion judge noted that he was faced with
    two competing policy objectives, but held that he was bound by the decision of
    this court in
Waterloo
. In that case, a five-member panel of this
    court held that defendants could bring a claim for contribution and indemnity
    against another defendant in circumstances in which the plaintiffs right of
    action against that defendant was time-barred.

[26]

The motion judge found there was no conflict
    between the two limitation provisions, but if there was, he preferred the
    analysis of this court in
Waterloo
and in
Canaccord
.

[27]

The motion judge concluded that s. 18 of the
Limitations
    Act, 2002
trumped the
Trustee Act
, and the fact that s. 38(3) of
    the
Trustee Act
is included in the Schedule to the
Limitations
    Act, 2002
did not affect this conclusion.

D.

Issue

[28]

Although the parties express it differently, the
    issue on this appeal is whether the motion judge correctly found that the respondents
    crossclaim against the Crampton estate was not time-barred by s. 38(3) of the
Trustee
    Act.

E.

The parties submissions

[29]

The appellants submission is that RCECOs
    crossclaim is an action, pursuant to rule 1.03(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 and that it is barred by s. 38(3) of the
Trustee
    Act.
Since the provision is mentioned in the Schedule to the
Limitations
    Act, 2002
, it prevails over the two-year limitation period in s. 18(1) of
    the
Limitations Act, 2002
.

[30]

The appellant submits that this is consistent
    with the policy goal of the legislation and its interpretation. The policy goal
    of s. 38(3) is finality in respect of claims against estates. The decision in
    this case would expose executors and administrators to open-ended claims,
    impeding their ability to wind up an estate, and undermine the purpose of the
    legislation.

[31]

The appellant also submits that as a matter of
    statutory interpretation, s. 18(1) of the
Limitations Act, 2002
is
    inapplicable because the claim is not by one wrongdoer against another, but
    rather a claim by one wrongdoer against the estate of the other. The estate is
    not a wrongdoer.

[32]

The appellant did not pursue its submission that
    the crossclaim is a derivative claim and is statute-barred because the main
    claim is time-barred as against the estate. This court rejected a similar
    proposition in
Waterloo
.

[33]

The respondent, on the other hand, says that the
    applicable limitation period is found in the
Limitations Act, 2002
. It says that s. 38(2) of the
Trustee Act
does not apply,
    because it contemplates that the person wronged  i.e., the plaintiff  can
    bring an action against the estate. It does not address a crossclaim.

F.

Analysis

(1)

The application of the statutes

[34]

I turn to the question of whether only one statutory
    limitation period applies or whether both apply, creating a conflict. In the
    latter event, it becomes necessary to resolve the conflict.

a)

The
Trustee Act

[35]

I will first consider whether the
Trustee
    Act
applies to the crossclaim against the estate of Father Crampton, as
    the appellant asserts.

[36]

I agree with the appellants submission that a
    crossclaim is an action and, therefore, falls within s. 38 of the
Trustee
    Act.
As the appellant notes, a crossclaim is defined as an action by rule
    1.03(1) of the
Rules of Civil Procedure
. Absent the
Trustee Act
,
    there would be no mechanism for a claim for contribution and indemnity to be
    brought against an estate. Treating a crossclaim as an action promotes the
    purpose of the legislation, namely to amend the common law rule that a cause of
    action died with the tortfeasor.

[37]

The respondent argues that s. 38(3) of the
Trustee
    Act
has no application to a claim for contribution and indemnity against
    the estate of a deceased person. It relies on the wording of s. 38(2), which
    provides, in summary, that if a deceased person has committed a wrong to
    another person, the person wronged may maintain an action against the
    executor or administrator of the deceased person. The respondent says that the
    person wronged refers to the plaintiff in the action, not to one joint
    tortfeasor who seeks contribution and indemnity from another. Contribution and
    indemnity, it says, is a right conferred by the
Negligence Act,
with
    its own limitation period under s. 18(1) of the
Limitations Act, 2002
.

[38]

In my view, this submission fails for the reason
    set out earlier. There was no right at common law to sue the estate of a
    deceased person. That right is conferred by the
Trustee Act
. A claim for contribution and indemnity against a deceased person
    can only be made pursuant to the
Trustee Act
.
    Since the purpose of s. 38 of the
Trustee Act
is to enable claims to
    be brought against estates, it is reasonable to treat a person seeking
    contribution and indemnity as a person wronged. The wrong suffered is having
    been required to pay more than the share of damages proportionate to the
    persons fault. Thus, I reject the respondents submission that the
Trustee
    Act
limitation period has no application.

b)

The
Limitations Act, 2002

[39]

In my view, the limitation period in the
Limitations
    Act, 2002
is also plainly applicable to the crossclaim, by the combined
    operation of ss. 4, 5 and 18(1). By virtue of ss. 5 and 18(1), the claim for
    contribution and indemnity is discovered on the day the first alleged wrongdoer
    is served with the claim in respect of which contribution and indemnity is
    sought. Section 4 sets out the basic two-year limitation period from the date
    of discovery. There is no merit to the appellants submission that s. 18(1)
    applies to claims against a joint tortfeasor, but not to claims against the
    joint tortfeasors estate. The estate stands in the place of the deceased.

(2)

Resolving the conflict  does the
Trustee Act
trump the
Limitations
    Act, 2002
?

[40]

As both limitation periods apply, it is necessary
    to resolve the conflict.

[41]

Relying on
Waterloo
and
Canaccord
,
    the motion judge found that s. 18(1) of the
Limitations Act, 2002
trumps
    other limitation periods that arguably apply.

[42]

In my respectful view, the motion judge erred in
    concluding that this courts decision in
Waterloo
was dispositive. In
Waterloo
, a severe storm blew down the walls of a new school gymnasium. The
    plaintiff sued various parties involved in the construction of the gymnasium,
    including the architects, construction company and engineering firm. Several of
    the defendants brought crossclaims seeking indemnification from the engineering
    firm. The plaintiffs claim against the engineering firm was statute-barred.

[43]

This court rejected the argument that because a plaintiffs
    claim against a defendant is statute-barred, the crossclaims of the other
    defendants against that defendant are also statute-barred. To that extent,
Waterloo
supports the motion judges decision.

[44]

But in
Waterloo
, unlike this case, the
    limitation period applicable to the crossclaim was the basic two-year
    limitation period, subject to the deemed discovery rule in s. 18 of the
Limitations
    Act, 2002.
There was no potential conflict between that limitation period
    and another one, such as s. 38(3) of the
Trustee Act.
This
    distinguishes
Waterloo.

[45]

It also distinguishes
Canaccord.
Canaccord

involved an indemnification agreement in an employment
    contract. This agreement required the employee to indemnify Canaccord for any
    claims made against Canaccord arising out of the employees acts or omissions.
    Canaccord settled a claim against it and the employee. Canaccord then requested
    indemnification pursuant to the employment agreement, but the employee resisted
    the claim for indemnification. Nearly three years after the delivery of the
    statement of claim, Canaccord brought an action against the employee claiming
    damages for breach of contract. The issue before the court was whether the limitation
    period in s. 18 applied to this type of claim. This court concluded that it
    did.

[46]

Neither case is authority for the proposition
    that s. 18 trumps other limitation periods. In
Waterloo
and
Canaccord
, there was no
    conflicting limitation period that applied to the claims for contribution and
    indemnity. Such a conflict exists here.

[47]

By the terms of s. 19(4) of the
Limitations
    Act, 2002
, limitations provisions set out in the Schedule prevail over the
    provisions of the
Limitations Act, 2002
. As s. 38(3) of the
Trustee
    Act
is set out in the Schedule, it must prevail if it applies.

[48]

This court reached the same conclusion in
Bikur
    Cholim Jewish Volunteer Services v. Penna Estate
, 2009
    ONCA 196, 94 O.R. (3d) 401, at para. 26:

In these circumstances, s. 19(4) is clear. If there is a
    conflict between a limitation period established by a provision referred to in
    s. 19(1), such as s. 38(3), and a limitation period established by any other
    provision of the
Limitations Act, 2002
, the limitation period
    established by a provision such as s. 38(3) prevails.

[49]

The
    motion judge distinguished
Bikur Cholim
on the basis that it did not
    involve a claim for contribution and indemnity. While this is true, nothing
    about the courts holding depended on whether the claim was for contribution
    and indemnity or something else. The question was the interaction between a
    limitation period established by a provision of the
Limitations Act, 2002
(which would include s. 18) and a limitation period set out in the Schedule to
    the
Limitations Act, 2002
.

[50]

Further,
    the result reached in
Bikur Cholim

is consistent with
    the nature, purpose and history of the
Trustee Act
provision.

[51]

The
Limitations Act, 2002
is based on
    discoverability. Section 18(1) deems the claim to be discovered on the date the
    claim is served on the person who seeks contribution or indemnity. In contrast,
    s. 38(3) of the
Trustee Act
is a hard or absolute limitation period.
    It is triggered by a fixed and known event  the death of the party against
    whom a claim is made.

[52]

The purpose of the
Trustee Act
limitation
    period is clear. It is to provide a remedy for a limited time, without
    indefinite fiscal vulnerability to the estate:
Waschkowski
, at para.
    9.

[53]

As this court observed in
Independence Plaza
    1 Associates, L.L.C. v. Figliolini
, 2017 ONCA 44, limitations statutes
    reflect public policy about efficiency and fairness in the justice system. See
Manitoba
    Metis Federation Inc. v. Canada (Attorney General)
, 2013
    SCC 14, [2013] 1 S.C.R. 623, at paras. 231-34 (
per
Rothstein J. in dissent, but not on this point). They have several
    goals. They promote
finality and
    certainty in legal affairs by ensuring that potential defendants are not
    exposed to indefinite liability for past acts. They reflect a policy that,
    after a reasonable time, people should be entitled to put their pasts behind
    them and should not be troubled by the possibility of stale claims emerging
    from the woodwork. They ensure the reliability of evidence. And they promote
    diligence, because they encourage litigants to pursue claims with reasonable
    dispatch.

[54]

As Sharpe J.A. noted in
Canaccord
,

at
    para. 24, the purpose of the
Limitations Act, 2002
is to balance the
    plaintiffs right to sue with the defendants need for certainty and finality.

[55]

The legislative history of the
Limitations
    Act, 2002
, dating back to 1969, reflects a concern about the
Trustee
    Act
limitation period and no less than five recommendations or legislative
    initiatives to abolish it.
[1]
The fact that it was expressly retained in the Schedule

reflects
    a clear policy choice in favour of certainty and finality in estate matters
    after a fixed period of two years.

[56]

As this court noted in
Bikur Cholim
, at
    para. 25, the result of the application of the strict rule in the
Trustee
    Act
can sometimes be harsh. In this case, its application results in a
    claim being time-barred before it is discovered. In
Bikur Cholim
,
    the court noted

that the statutes harshness may, in
    some circumstances, be mitigated by common law rules. That was the case, for
    example, in
Giroux Estate v. Trillium Health Centre
(2005), 74 O.R.
    (3d) 341 (C.A.), where the common law doctrine of fraudulent concealment
    applied. No such remedy is available here.

G.

Disposition

[57]

For these reasons, I would allow the appeal with
    costs to the appellant fixed at $6,000, inclusive of disbursements and all
    applicable taxes. If the parties are unable to resolve the disposition of costs
    in the court below, they may make written submissions within 60 days of the
    release of these reasons.

Released: G.R.S. June 5, 2017

G.R. Strathy C.J.O.

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

I agree. G. Pardu
    J.A.

[1]
Ontario Law Reform
    Commission,
Report on Limitation of
    Actions
(Toronto: Department of the Attorney General, 1969); Ontario,
Discussion Paper on Proposed Limitations Act
(Toronto:
    Ministry of the Attorney General, 1977); Bill 160,
An Act to revise the Limitations Act
, 3rd
    Sess., 32nd Leg., Ontario, 1983; Consultation Group on the Limitations Act,
A Consultation Draft of the General Limitations
    Act
(Toronto: Ministry of the Attorney General, 1991); and Bill 99,
An Act to revise the Limitations Act
, 2nd
    Sess., 35th Leg., Ontario, 1992.


COURT OF APPEAL FOR ONTARIO

CITATION: Mayers v. Khan, 2017 ONCA 524

DATE: 20170622

DOCKET: C63331

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Victola Mayers

Plaintiff (Appellant)

and

Ammar Khan and Brinks Canada Ltd.

Defendants (Respondents)

Bryan Fromstein and A. Fabio Longo, for the appellant

Gordon McKee and Daniel Styler, for the respondents

Heard and released orally: June 20, 2017

On appeal from the order of Justice Benjamin T. Glustein
    of the Superior Court of Justice, dated January 13, 2017, with reasons reported
    at 2017 ONSC 200.

REASONS FOR DECISION

[1]

The

a
pp
e
l
l
a
nt,

Vi
c
to
l
a

M
a
y
e
rs,

a
p
p
ea
ls

the

mo
t
ion

jud
g
e
s

o
r
d
e
r

dis
m
is
s
ing

th
i
s

mo
t
or
    v
e
hicle

n
e
g
l
i
g
e
n
c
e

c
laim

on

a

sum
m
a
r
y
    ju
d
g
me
n
t

mo
t
ion.

The

mo
t
ion

jud
g
e

a
c
ce
pted

e
vide
n
c
e,
    including that of an independent witness, that

Ms. Mayers made

a le
f
t
-
h
a
nd

turn,

f
a
c
i
n
g

a

y
e
l
l
o
w

l
i
g
ht,

in

f
r
ont
o
f

an

on
c
om
i
n
g
truck, owned by the respondent,
B
rink

s
    C
a
n
a
da

L
td.,

and driven by

the

r
e
s
p
ond
e
nt,

Ammar

Kh
a
n.
    The motion judge also accepted evidence that Mr.

Kh
a
n

did

not
g
o

thro
u
g
h

a
r
e
d

l
i
g
ht

a
s

Ms.
    Mayers
a
l
le
g
e
d

i
n

h
e
r

c
laim.
The motion judge further
f
o
und

that

the
r
e
w
a
s

no
e
viden
c
e

that

Mr.

Kh
a
n

ou
g
ht

to

h
a
ve

a
nt
i
c
ipat
e
d

that

Ms. Mayers would turn

in

f
r
ont

of

him

or
    that

he

c
ould

h
a
ve

a
voi
d
e
d

the

acc
ident.

[2]

On the basis of these findings the mo
t
ion

jud
g
e

c
on
c
l
u
d
e
d

that

the
r
e

w
a
s

no
g
e
nui
n
e

is
s
ue
re
quiri
n
g
    a

trial that M
r
. Kh
a
n w
a
s in any way
responsible
f
o
r the

a
cc
ident.

[3]

Ms. Mayers a
r
g
u
e
s
    that

the mot
i
on

jud
g
e
re
v
e
rs
e
d
    the
e
videntia
r
y

bur
d
e
n
    on the mot
i
on,
a
nd

e
r
r
e
d

in

g
r
a
nt
i
ng

s
u
m
m
a
r
y
    ju
d
g
ment.

She

a
lso

a
r
g
u
e
s

that

the

mo
t
i
on

jud
g
e

should
    h
a
ve

o
rd
e
r
e
d

a

m
i
n
i
-
trial

ins
t
ea
d

o
f

g
r
a
nt
i
ng

sum
m
a
r
y
    ju
d
g
m
e
nt

a
n
d

made

p
a
lpable

a
nd ov
e
r
r
id
i
n
g
factual
e
r
ro
r
s.

[4]

I
n our view, the

mo
t
ion

judge

c
o
r
r
e
c
t
l
y

identified and applied the b
u
rd
e
n

o
f

p
roof

a
ppl
ic
a
ble
    on

a

sum
m
a
r
y ju
d
g
m
e
nt

mo
t
ion. The motion judge stated the shifting
    onus on motions for summary judgment, at para. 20:

The moving party bears the evidentiary burden of demonstrating
    that there is no genuine issue requiring a trial. Only after the moving party
    has discharged its evidentiary burden of proving that there is no genuine issue
    requiring a trial for its resolution does the burden shift to the responding
    party to prove that its claim has a real chance of success (
Sanzone v.
    Schechter
, 2016 ONCA 566 (Ont. C.A.), at para. 30).

[5]

The motion judge rejected Ms.
    Mayers' initial theory for why a trial was necessary  that she was turning on
    an "advance green light" and that Mr. Khan ran a red light. This
    conclusion was not appealed. Ms. Mayers advanced a secondary theory that a
    trial was necessary to determine whether Mr. Khan was contributorily negligent
    for failing to take reasonable precautions to avoid the accident.
Ms. Mayers submits that the onus was on the
    respondents to lead expert evidence that Mr. Khan could have done nothing to
    avoid the accident.

[6]

We disagree. Having concluded that
    the respondents had demonstrated that there was no genuine issue requiring a
    trial, Ms. Mayers was obliged to lead evidence to satisfy the burden that had
    shifted to her to demonstrate that Mr. Khan contributed to the accident such as
    by not driving more slowly, given the conditions. This she did not do. It
    follows that the motion judge did not err in the identification or application
    of the burden of proof. Rather, Ms. Mayers did not meet the onus that shifted
    to her, in the circumstances of this case.

[7]

As to the remaining arguments, we are
    satisfied that the mo
t
ion

jud
g
e
s

c
o
n
c
lus
i
ons

a
re

foun
de
d

u
p
on

his

c
onsid
e
r
a
t
i
on
a
nd w
e
i
g
hi
n
g

of

the

e
vide
n
c
e

p
r
ovid
e
d

b
y

the

th
r
e
e

witness
e
s

to

the

acc
i
d
e
n
t

a
nd

upon

a n
u
mber of findin
g
s

of

f
ac
t

a
nd

m
i
x
e
d

f
a
c
t

a
nd

la
w
.
    Ms. Mayers

h
a
s

not

d
e
monstr
a
ted

a
n
y

e
r
r
o
r

in

p
r
inciple,

or

a
n
y p
a
lpa
b
le

or

ov
e
r
r
id
i
n
g

e
r
ro
r
,
    that

would

provide

a

b
a
sis

for

r
e
je
c
t
i
n
g
    the
motion judges appreciation of the
    evidence and his
fin
d
in
g
s of fact based on that evidence
.

[8]

The motion
    judges
re
a
soning r
e
v
ea
ls no
r
e
v
e
rsible
e
r
r
o
r. The appeal is therefore dismissed.

[9]

Costs are awarded to the
    respondents in the amount of $10,000, plus applicable HST, as agreed upon by
    the parties.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mroue v. Mroue, 2017 ONCA 517

DATE: 20170616

DOCKET: C62254

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

Hussein Mroue and Imad Mroue

Appellants (Plaintiffs)

and

Issam Mroue

Respondent (Defendant)

Ernest G. Tannis, for the appellants

Christopher Spiteri and John E. MacDonnell, for the
    respondent

Heard: June 16, 2017

On appeal from the judgment of Justice Colin D.A.
    McKinnon of the Superior Court of Justice, dated May 9, 2016.

REASONS FOR DECISION

[1]

The trial judge determined that the documentation placed before the
    arbitrator clearly indicated that the appellant meant to be bound by the
    arbitrators judgment and in particular the documents he admitted signing
    clearly and unambiguously establish that he sought out a process whereby his
    dispute with his brother would be determined according to Sharia Law and that
    he was prepared to accept the judgment of the arbitrator as binding upon him.
    As the trial judge noted, the appellants signature on the document is
    immediately followed by the words who accepts the Sharia based judgement and
    there was no dispute about the English translation of the document.

[2]

The trial judge found that all four conditions for a binding ruling
    according to Sharia Law had been met:

1.
The parties agreed to proceed by way of
    arbitration;

2.
The arbitrator was qualified;

3.
The arbitrator had jurisdiction to rule on
    property disputes deriving from the payment of money;

4.
The parties agreed on the question to be put
    to the arbitrator.

[3]

He concluded the parties sought a decision in accordance with Sharia Law
    and received one. It was not open to one of the parties, dissatisfied with the
    result, to complain now.

[4]

Further, he concluded on the evidence that the judgment was final in
    nature, the parties in the arbitration and before the court were the same and
    there was no reason why the appellant should not be estopped from asserting the
    same issues in the Ontario action that had been determined by the arbitrator in
    Iran.

[5]

The trial judge concluded that the
International Commercial
    Arbitration Act
, R.S.O. 1990, c.
    I.9 (
ICAA
), did not and could not apply because the
    appellants invocation of that statute was out of time. The Ontario pleadings
    make no reference to the
ICAA
. However, even if it had applied, and it were open to the appellant to
    apply to set aside the award, this would not be an appropriate case to do so as
    there was no unfairness in the arbitral proceeding.

[6]

These conclusions were all open
    to the trial judge on the evidence before him. In this court the appellant
    simply seeks a different result. We are not persuaded that the trial judge made
    any error; his findings were clearly based on the evidentiary record before him.
    Where the evidence conflicted, he preferred the evidence of the respondent and
    his expert  this is the role of a trial judge and deference is owed to his
    factual findings in this court.

[7]

Although the appellant sought
    leave to appeal the trial judges costs disposition, in view of the foregoing,
    while leave is granted the appeal as to costs is dismissed.

[8]

Appeal is dismissed. Costs to the
    respondent fixed in the sum of $15,000 inclusive of HST and disbursements.

J.C. MacPherson
    J.A.

R.A. Blair J.A.

J. MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nagribianko v. Select Wine Merchants Ltd., 2017
    ONCA 540

DATE: 20170627

DOCKET: C62592

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Alexander Connell Nagribianko

Plaintiff (Appellant)

and

Select Wine Merchants Ltd.

Defendant (Respondent)

Howard Markowitz, for the appellant

Gavin MacKenzie and Brooke MacKenzie, for the respondent

Heard: June 26, 2017

On appeal from the judgment of Justice Mary A. Sanderson
    of the Superior Court of Justice (Division Court), dated January 25, 2016, with
    reasons reported at 2016 ONSC 490, allowing an appeal from a decision of Deputy
    Judge Richardson, dated May 20, 2015.

REASONS FOR DECISION

[1]

The appellant,
Alexander Connell Nagribianko (the
    appellant), appeals the decision of the Divisional Court, reversing the Small
    Claims Court decision that had held that Select Wine Merchants Ltd. (the
    respondent), had wrongfully terminated the appellant shortly before he had
    completed six months of work with them.

[2]

The respondent agreed that it did not have just
    cause to terminate the appellant. The respondents position is that it
    terminated the appellant as a probationary employee, having judged in good
    faith that he was unsuitable for the job, primarily because a key customer of
    the respondent refused to deal with appellant.

[3]

In finding that the termination was wrongful in the
    absence of just cause, the trial judge held that the respondent was not entitled
    to rely on the clause in the employment contract stating, Probation Six
    months. The trial judge found that the probationary terms had not been spelled
    out as a result of the failure of the respondent to deliver a copy of the
    Employee Handbook that contained the terms the respondent intended to include.

[4]

The trial judge found that the appellant understood the
    term probation to mean no more than that he would be kept on as an employee if
    he performed well, and that he would not have taken the job had he known that
    he could be terminated without just cause and with only one weeks pay in lieu
    of notice.

[5]

The trial judge awarded the appellant damages
    equivalent to four months of salary and benefits in lieu of notice, based
    largely on his finding that the respondent had induced the appellant to leave a
    stable job, to pursue an opportunity for advancement and a greater degree of
    responsibility.

[6]

The trial judges decision to treat the term Probation
    Six months as having no meaning was wrong. The parties agreed to a
    probationary contract of employment, and the term probation was not
    ambiguous. The status of a probationary employee has acquired a clear meaning
    at common law. Unless the employment contract specifies otherwise, probationary
    status enables an employee to be terminated without notice during the
    probationary period if the employer makes a good faith determination that the
    employee is unsuitable for permanent employment, and provided the probationary
    employee was given a fair and reasonable opportunity to demonstrate their
    suitability:
Mison v. Bank of Nova Scotia
(1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), at para. 43.

[7]

It is true that there is a presumption that an
    indefinite employment contract is terminable only on reasonable notice, however
    that presumption is overcome if the parties agree to a probationary period of employment:
Machtinger v. HOJ Industries Ltd
., [1992] 1
    S.C.R. 986, at p. 999;
Jadot v. Concert Industries Ltd.

(1997), 44 B.C.L.R. (3d) 327 (C.A.), at para. 29;
Ly v. British
    Columbia (Interior Health Authority)
,

2017 BCSC
    42, [2017] B.C.J. No. 43, at para. 42.

[8]

Since it is not possible to contract out of the
    minimum notice standards provided for in the
Employment Standards
    Act, 2000
, S.O. 2000, c. 41 (the
ESA
)
,
    probationary employees are entitled to receive statutory notice, or pay in lieu
    of that notice. In this case, the required period of notice is one week, which
    the appellant received:
ESA
, ss. 54, 61.

[9]

This is not a case such as
Machtinger
, or
Garreton v. Complete Innovations Inc.
,

2016 ONSC 1178, [2016] O.J. No. 869, where the termination clauses
    in employment contracts were rendered null and void because they expressly provide
    for notice periods shorter than the statutory minimum, contrary to employment
    standards legislation. There is nothing in the appellants employment contract
    purporting to oust the statutory notice requirements under the
ESA
.

[10]

The Divisional Court was therefore correct in
    holding that the trial judge erred in failing to give effect to the
    probationary term of the contract, and in treating the appellant, for dismissal
    purposes, as though he was a permanent employee.

[11]

The Divisional Court was also correct in finding
    the trial judge erred by interpreting the term Probation Six months
    according to the subjective understanding of the appellant, when contractual
    terms are to be interpreted based on an objective assessment of the intention
    of the parties
:
Salah v Timothy's Coffees of the World Inc.
,
    2010 ONCA 673, 2010 O.A.C. 279, at para. 16.

[12]

Since there are no specific terms in the appellants
    employment contract to the contrary, the contractual term Probation Six
    months carries the common law meaning described in para. 6 of this decision.
    The Divisional Court was correct to so find.

[13]

The appeal is dismissed. The respondent is awarded costs of the appeal
    in the amount of $5,000 inclusive of disbursements and HST.

H.S. LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: New Solutions Financial Corporation (Re), 2017 ONCA
    553

DATE: 20170629

DOCKET: M4
7
7
6
1

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

In the Matter of the
Companies Creditors
    Arrangements Act
, R.S.C. 1985, c. C-36, as amended

and in the matter of a Plan of Compromise or
    Arrangement of New Solutions Financial Corporation, New Solutions Financial
    (II) Corporation, New Solutions, New Solutions (III) Corporation, New Solutions
    (IV) Corporation and 2055596 Ontario Limited

Applicants

(R
e
s
pon
d
en
ts

in

A
pp
e
a
l)

Catherine Francis, for the appellants, Feldstein&
    Associates LLP and Warren Feldstein

Neil S. Rabinovitch, for the respondents

Heard: in writing

REASONS FOR DECISION

[1]

The responding parties sought and obtained protection under the
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c. C-36

(CCAA). Their
    assets have been monetized and there is no intention to proceed with a
    restructuring plan. The main remaining asset is a claim for professional
    negligence against Feldstein & Associates LLP, and Warren Feldstein
    (Feldstein), the principal applicants former auditor.

[2]

Feldstein seeks leave to appeal the order of the CCAA judge: (1)
    extending the stay period from March 30, 2017 to June 30, 2017; (2) approving
    the Monitors 23rd report; (3) declaring the litigation trustee, appointed by
    the court to pursue the litigation against the moving parties, is not in a
    conflict of interest; and (4) staying the litigation against Feldstein until
    June 30, 2017.

[3]

Feldstein raises a number of proposed grounds of appeal:

1.

that
    the pursuit of a lawsuit by an insolvent company on behalf of its secured
    creditors does not fall within the purpose and scheme of the CCAA;

2.

that
    the CCAA judge ignored evidence of bad faith by the responding parties and
    others involved in the proceeding;

3.

that
    it was inappropriate to make a declaratory order with respect to the role of
    the litigation trustee
.

[4]

It is well-established that leave is granted sparingly in CCAA
    proceedings. The considerations on a leave application are whether:

1.

the
    proposed appeal is
prima facie
meritorious or frivolous;

2.

the
    points on the proposed appeal are of significance to the practice;

3.

the
    points on the proposed appeal are of significance to the action; and

4.

the
    proposed appeal will unduly hinder the progress of the action.

[5]

In our view, the proposed appeal fails to meet the test for leave to
    appeal and leave to appeal must be denied.

[6]

The CCAA judge carefully considered all of the submissions made by
    Feldstein and provided cogent reasons for the order he made.

[7]

There is authority for the proposition that a CCAA stay may be extended
    purposes other than effecting a restructuring and, in our view, the CCAA judge
    did not err in granting a three-month extension of the stay in the
    circumstances of this case.  In any event, the stay expires on June 30, 2017
    and so by the time an appeal could be heard on this issue it would be moot.

[8]

Feldstein raised objections to the conduct of the litigation trustee in
    response to the request for an extension of the stay and cannot complain that
    the CCAA judge ruled on that point.

[9]

The findings of the CCAA judge, including that the responding parties
    have acted in good faith and with due diligence and that the litigation trustee
    is acting in an appropriate manner, are essentially factual in nature and
    attract deference on appeal. Moreover, those findings do not have sufficient
    significance to the practice to warrant granting leave.

[10]

Leave to appeal dismissed is with costs to the responding parties fixed
    at $2,500 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

P. Lauwers J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paccar Leasing Company Limited v. Sevco
    Corporation,

2017 ONCA 503

DATE: 20170615

DOCKET: C62271

Simmons, Lauwers and Hourigan JJ.A.

BETWEEN

Paccar Leasing Company Limited

Respondent

and

Sevco
    Corporation, Kardel Inc., Elize Blouin aka Elizabeth Blouin,

Susan Blouin, Susan
    Hebert, Gregory Blouin and Gregory Hebert

Appellants

Glenn P. Bogue, for the appellants

Sally Lee, for the respondent

Heard: February 10, 2017

On appeal from the order of Justice D.A. Wilson of the
    Superior Court of Justice, dated June 8, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis on which to interfere with the motion judges decision
    to strike the appellants statement of defence.

[2]

The motion to strike was adjourned to June 7, 2016 to permit the
    appellants to pay a long outstanding costs award or file evidence to support
    their claim of impecuniosity.  The appellants did neither.

[3]

Although the appellants do have a pending motion to strike them as
    defendants, there was no evidence before the motion judge to support their
    assertions.  Nor is there any such evidence before us.

[4]

Costs of the appeal to the responding parties fixed in the agreed upon
    amount of $4,000.00 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Paradigm Quest Inc. v. McInroy,
    2017 ONCA 547

DATE: 20170629

DOCKET: C63182

Watt, Benotto and Roberts J.A.

BETWEEN

Paradigm Quest Inc.

Plaintiff (Appellant)

and

Louise McInroy and Timothy Paul McInroy

Defendants (Respondents)

James M. Butson and Cristina Internicola, for the
    appellant

Timothy Paul McInroy, acting in person

Heard and released orally: June 26, 2017

On appeal from the judgment of Justice Wolfram Tausendfreund of
    the Superior Court of Justice, dated December 6, 2016.

REASONS FOR
    DECISION

[1]

Paradigm Quest moved for summary
    judgment for default under a mortgage. The mortgagors acknowledged that they
    were in default and had no defence to the claim.

[2]

The motion judge granted summary
    judgment for the full amount claimed by Paradigm but he ordered that the
    judgment be held in abeyance until September 15, 2017, provided that the
    mortgagors made certain payments on account of arrears and ongoing mortgage
    obligations. Default on any of the payment obligations triggers issuance of the
    judgment and entitles Paradigm to an order for possession.

[3]

Paradigm appeals. It contends that
    the motion judge lacked jurisdiction to order that the judgment be held in
    abeyance and to impose terms. The mortgagors appear but are not represented and
    have filed no responding materials.

[4]

For all practical purposes, the part of the motion judges order of
    which Paradigm complains amounts to a stay of that order subject to certain
    conditions. An order granting or refusing a stay of execution of a judgment is
    an interlocutory order from which there is no right of appeal to this court:
Sun
    Life Assurance Co. v. York Ridge Developments Ltd.
(1998), 116 O.A.C. 103,
    at para. 13. This is not a case in which the formal order contains both a final
    order and an interlocutory order granted as alternative forms of relief, in
    which case we have held that we have jurisdiction over the entire order:
Burtch v. Barnes Estate
(2006), 80 O.R. (3d) 365 (C.A.). Here the final and
    interlocutory aspects of the order are
not
alternative forms of relief.

[5]

In the result, we are satisfied that jurisdiction
    over this appeal properly lies with the Divisional Court with leave under s.
    19(1)(b) of the
Courts of Justice Act
. The appellant may speak with the
    Deputy Registrar of this court to obtain directions about getting this appeal
    before the proper forum. There is no order as to costs.

David Watt J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Parsaei v. Toronto (Police Services Board), 2017
    ONCA 512

DATE: 20170619

DOCKET: C61940

Blair, MacFarland and Hourigan JJ.A.

BETWEEN

Rafat Parsaei

Plaintiff

(Appellant)

and

Toronto Police Services Board and Andrew MacPhail

Defendants

(Respondents)

James C. Morton, for the Appellant

Rebecca L. Bush and Kathryn Shani, for the Respondents

Heard: June 15, 2017

On appeal from the order of Justice E.M. Stewart of the Superior
    Court of Justice, dated March 24, 2016, with reasons reported at 2016 ONSC 1013.

By the Court:

[1]

Ms. Parsaei appeals from the summary judgement granted by Justice
    Stewart dismissing her action against the Toronto Police Services Board and
    Detective Constable Andrew MacPhail for wrongful arrest and negligent
    investigation of criminal charges of which she was ultimately acquitted.

Background

[2]

The appellant and two other women  Linda Pitney and Carole Tovell
    were charged criminally in connection with (i) a series of threatening letters
    that were posted around, and mailed to residents who lived in, the area of
    Perth Avenue Public School in Toronto, (ii) a series of related hostile and harassing
    phone calls made to staff and the principal of the school and to members of the
    Toronto District School Board, and (iii) an harassing letter sent to a member
    of the Board.

[3]

All of this appears to have been prompted by the appellants complaints about
    the way in which her son was being treated by school staff and by an
    overreaction on the part of the three women regarding who won, or should have
    won, a spelling bee at the school (the student who was declared the winner, or
    the appellants son).  Ms. Pitney was apparently retained to act as the
    appellants family advocate in respect of these concerns.  It is not clear
    what the purpose of Ms. Tovells involvement was.

[4]

Detective Constable MacPhail was the member of the Toronto Police
    Services assigned to investigate the threats.  Following the investigation, all
    three women were charged with a number of related offences.  Ms. Pitney was
    charged with criminal harassment.  Ms. Tovell was charged with criminal
    harassment, threatening death, and intimidation.  The appellant was charged
    with threatening death and intimidation.

[5]

After several attempts to resolve the charges through out-of-court
    interventions, the matters came on for trial before Justice Cavion of the
    Ontario Court of Justice, in May 2010.  For reasons involving her health, the
    charges against Ms. Tovell were severed and were to be dealt with at a later
    date.
[1]
The trial of Ms. Pitney and the appellant proceeded.  Ms. Pitney was
    convicted, although not on all counts.  The appellant was acquitted but
    required to enter into a Peace Bond.

[6]

Thereafter, each of the appellant, Ms. Pitney and Ms. Tovell launched
    civil actions against the Toronto Police Services Board, Detective Constable
    MacPhail and others.
[2]
This led to the defendants motions for summary judgment that resulted in the
    judgment under appeal.
[3]

[7]

The motion judge held that she was able to grant summary judgment
    because there was no genuine issue for trial.  The absence of reasonable and
    probable grounds is an essential element of the torts of wrongful arrest and
    negligent investigation.  Based on the evidence before her, she was able to
    find that Det. Cst. MacPhail had reasonable and probable grounds to believe
    that the appellant had committed the offences with which she was charged.  Accordingly,
    the appellants claim could not succeed.

Discussion

[8]

The appellant argues that the motion judge erred (a) in finding there
    was no genuine issue for trial because the case was at an early stage and
    contested facts [had] not . been subjected to cross examination; and (b) in
    finding that the police had reasonable and probable grounds to lay the charges
    in the first place.

[9]

Neither of these submissions is persuasive in our view.

[10]

The first submission overlooks the direction provided by the Supreme
    Court of Canada in
Hryniak v. Mauldin
, [2014] S.C.J. No. 7 (S.C.C.),
    at paras. 49 and 66, that summary judgment is to be granted where the record
    enables to motion judge to reach a fair and just determination on the merits
    and to do so in a timely, more affordable and proportionate manner.  Mr. Morton
    did not pursue this submission in oral argument, but left us to consider the
    arguments pertaining to as set out in the appellants factum.

[11]

The motion judge was satisfied that she could reach a fair and just
    determination, given the extensive record she had before her and that record
    supports her decision.  On a motion for summary judgment each party is obliged
    to put its best case forward.  It is no answer for the appellant to say that
    contested facts had not been subject to cross-examination; she had ample time
    to cross-examine Det. Cst. MacPhail on his affidavit, but did not do so.

[12]

The appellants second submission is equally flawed.  There was ample
    evidence to support the motion judges finding that the police had reasonable
    and probable grounds to arrest the appellant and to lay the charges.  That
    evidence included (i) the exhaustive affidavit of Det. Cst. MacPhail setting
    out in detail the particulars of the investigation and the documentation
    obtained, together with a lengthy summary of the facts supporting his belief
    that reasonable and probable grounds existed; (ii) the transcripts of the
    preliminary hearing and the trial; (iii) the information that Det. Cst.
    MacPhail had consulted two Crown attorneys prior to laying the charges and had
    been advised that there was ample evidence to support his doing so; and (iv)
    the reasons of Justice Cavion following the trial.

[13]

Indeed, the findings of Justice Cavion alone, even in acquitting the
    appellant  while not binding  would support a determination that reasonable
    and probable grounds existing.  In concluding his analysis of the evidence, he
    said:

I am not for a moment saying the two women are innocent.  In
    Scotland they have three verdicts, guilty, not guilty and not proven.
To me
    this is a case of just not proven.  I am deeply suspicious but I am simply not convinced
    beyond a reasonable doubt
, so on these charges they are acquitted.
    [Emphasis added]

[14]

Mere suspicion is not enough to constitute reasonable and probable
    grounds, but Mr. Morton concedes that reasonable suspicion has been found to
    do so.  We read Justice Cavions analogy with the Scottish situation and his
    deeply suspicious comment as signalling that he was of the view that the
    basis for the Crowns case went well beyond mere suspicion, although it was
    insufficient to establish guilt beyond a reasonable doubt.

[15]

The motion judge summarized the evidence that in her view established
    why the police had reasonable and probable grounds to arrest and charge the
    appellant in the 13-point summary set out at para. 36 of her reasons.  They
    support he findings.  Particularly telling, in our view  as the nexus linking
    the appellant to the other circumstances  are the inculpatory documents seized
    at her residence and the fact that a copy of her sons school calendar,
    admittedly containing her handwritten check marks, was found among a pile of
    copies of one of the groups of threatening letters distributed around the
    school.

[16]

Demonstrating reasonable and probable grounds in support of an arrest
    and the laying of charges is not the same thing as the Crown having to prove
    the factual and mental elements of an offence necessary to establish guilt
    beyond a reasonable doubt.  The mistake in conflating the issues pertaining to
    criminal responsibility and those pertaining to the civil liability of police
    is well-summarized by the British Columbia Court of Appeal in
Richardson v.
    Vancouver (City)
, 2006 BCCA 36  a case involving an allegedly wrongful
    arrest on a charge of obstructing justice  at para. 20:

The plaintiff runs together his criminal liability with the
    officers civil liability (and the Citys vicarious liability) for the tort of
    wrongful arrest.  They each have a different set of legal rules and procedures;
    they must be treated separately to avoid the kind of confused thinking manifest
    in the plaintiffs argument.  Many lawful arrests may ultimately result in an
    acquittal.  If an acquittal were to create exposure to tort liability, the
    power of arrest would be radically curtailed.  There is no logical relationship
    between the criminal and civil determinations; they are each aimed a different
    questions: Did the accused obstruct? is not the same as Did the officer have
    reasonable and probable grounds to believe he did?

[17]

Those comments apply with equal validity in this case.

Disposition

[18]

The appeal is dismissed.  In arriving at this disposition we rely more
    fully on the reasons of the motion judge, with which we fully agree.

Released:

RAB                                                            R.A.
    Blair J.A.

JUN 19 2017                                     J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

[1]
After the trials of the appellant and Ms. Pitney were concluded, the Crown
    withdrew the charges against Ms. Tovell.

[2]
The other defendants are no longer involved in the proceedings.

[3]
Justice Stewart granted summary judgment dismissing the Pitney and Tovell
    actions as well.  Those orders are separately under appeal to this Court.


COURT OF APPEAL FOR ONTARIO

CITATION: Parsaei v. Toronto (Police Services Board), 2017
    ONCA 523

DATE: 20170623

DOCKET: C61940

Blair, MacFarland and Hourigan JJ.A.

BETWEEN

Rafat Parsaei

Plaintiff

(Appellant)

and

Toronto Police Services Board and Andrew
    MacPhail

Defendants

(Respondents)

James C. Morton, for the Appellant

Rebecca L. Bush and Kathryn Shani, for the Respondents

Heard: June 15, 2017

On appeal from the order of Justice E.M. Stewart of the Superior
    Court of Justice, dated March 24, 2016, with reasons reported at 2016 ONSC 1013.

COSTS ENDORSEMENT

[1]

In accordance with the agreement of counsel, the respondents are
    entitled to their costs of the appeal, fixed in the amount of $10,000, all
    inclusive.

R.A. Blair J.A.

J. MacFarland
    J.A.

C.W. Hourigan J.A.