COURT OF APPEAL FOR ONTARIO

CITATION: 2651171 Ontario Inc. v. Brey, 2022
    ONCA 205

DATE: 20220309

DOCKET: C69185

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

2651171 Ontario Inc.

Plaintiff
(Appellant)

and

Patrick Brey and Grapevine Realty Inc.

Defendants
(Respondents)

J.F. Lalonde and Lauren Benoit, for the
    appellant

Miriam Vale Peters and Matthew
    Miklaucic, for the respondent, Patrick Brey

Michael Swindley, for the respondent, Grapevine
    Realty Inc.

Heard: January 7, 2022 by
    video conference

On appeal
    from the judgment of Justice Sally A. Gomery of the Superior Court of Justice
    dated March 1, 2021, with reasons reported at 2021 ONSC 1492.

COSTS ENDORSEMENT

[1]

On February 17, 2022, this
    court allowed the appellants appeal, set aside the motion judges judgment,
    allowed the appellants claim for damages arising out of its failed real estate
    purchase in the amount of $4,632.10, and ordered the return of its $25,000
    deposit held by the listing agent, the respondent, Grapevine Realty Inc.
    Grapevine took no position on the appeal and accordingly makes no claim for
    costs.

[2]

The appellant was also
    awarded its costs of the appeal in the all-inclusive amount of $15,000 and its costs
    of the motions for summary judgment and the action in an amount to be
    determined and subject to any offers to settle. The parties were unable to
    agree on the latter amount and have provided written submissions that we have
    reviewed.

[3]

The appellant requests costs
    of the motions for summary judgment and the action on a substantial indemnity
    scale in the amount of $
40,572.04
. It bases its
    entitlement to an elevated scale of costs on its offer to settle dated October
    17, 2019, made under r. 49.10(1) of the
Rules of Civil Procedure
[1]
,
which it served with its statement of claim. The appellant offered to settle
    the action in exchange for the return of the appellants $25,000 deposit plus
    costs. The offer provided that if it were accepted on or before November 1, 2019,
    the respondent, Patrick Brey, would pay the appellant its partial indemnity costs;
    if accepted thereafter, the respondent Brey would pay the appellant its costs
    on a partial indemnity basis up to the date of service, and its costs on a
    substantial indemnity basis following that date and up to the date of the
    acceptance of the offer. The offer remained open until one minute after the
    commencement of the trial.

[4]

The respondent Brey raises a
    number of objections to the appellants costs submissions and argues that the
    costs should be reduced. First, he submits that the docketed fees of
    appellants counsel between January 22 and 29, 2021, related to the leave
    motion that was settled by the parties on a no costs basis on January 29, 2021,
    must be deducted from the appellants claimed amount. Second, he says that the amount
    claimed by the appellant is grossly disproportionate to the result ultimately
    achieved by the appellant on appeal. Finally, the appellants unproven
    suggestions of fraud that it made in its reply factum and its oral submissions
    on the motions against the respondent Brey should be taken into account. The
    respondent Brey raises no objection to the appellants claimed disbursements.

[5]

We shall consider these submissions
    in turn.

[6]

First, there is no question
    that the appellants offer was made more than seven days before the hearing of
    the motions, not accepted by the respondent Brey, had not expired, and the
    result obtained by the appellant as a result of this appeal is more favourable
    than its offer to settle. As a result, the appellant is
prima facie
entitled to its costs on a partial indemnity basis to the date the offer was
    served and substantial indemnity costs from that date, unless the court orders
    otherwise: r. 49.10(1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194.

[7]

While a court retains the
    discretion to order otherwise under r. 49.10(1), this discretion has been
    very narrowly construed. As this court cautioned in
Niagara Structural
    Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd.

(1987),
58 O.R. (2d) 773 (C.A.), at para. 12
,

resort should only be had to the exception
    where, after giving proper weight to the policy of the general rule, and the
    importance of reasonable predictability and the even application of the rule,
    the interests of justice require a departure.

We do not see any
    circumstances here that would justify a departure from the general cost
    consequences stipulated under r. 49.10(1). Accordingly, the appellant is
    entitled to costs on a substantial indemnity basis.

[8]

With respect to the quantum
    of the appellants costs, we are not persuaded that the appellant has claimed
    any costs related to the settled leave motion. It is not clear from the dockets
    what time was expended on just the settled leave motion between January 22 and
    29, 2021. We are therefore unable to conclude that the appellants claimed
    costs include any amounts related to the settled leave motion and decline to
    make any deduction.

[9]

Further, we do not accept
    the respondent Breys submission that the amount of costs claimed by the
    appellant is grossly disproportionate. The overarching consideration is whether
    the costs claimed are reasonable, fair, and proportionate in all the circumstances
    of the case, having regard to the factors set out in r. 57.01 and the
    reasonable expectations of the losing party:
Boucher v. Public Accountants
    Council for the Province of Ontario
(2004), 71 O.R. (3d) 291 (C.A.). The
    result achieved in the action is only one of the factors to be considered.

[10]

In our view, the appellants
    costs are reasonable, fair, and proportionate. They were incurred in relation
    to the appellants claim, the respondent Breys counterclaim and the two
    motions for judgment, which included cross-examination on affidavits. As the
    respondent Brey acknowledged in his written cost submissions before the motion
    judge, this was a moderately complex proceeding and not a routine breach of
    contract. The appellants claimed costs are comparable with (indeed less than)
    the respondent Breys costs and the $50,000 in costs that the motion judge
    awarded, and thus within his reasonable contemplation if he lost the appeal and
    had to pay the appellants costs of the motions and the action.

[11]

Finally, we address the
    respondent Breys submission that the appellants costs should be reduced
    because of the appellants alternative submission on the motions that the
    respondent Brey fraudulently misrepresented that the property could be used as
    a fourplex. We agree there should be a reduction.

[12]

Regardless at what stage in
    the proceedings they are raised, unfounded allegations of fraud may attract
    serious cost consequences as a form of chastisement and a mark of the courts disapproval
    because of their extraordinarily serious nature that go directly to the heart
    of a persons very integrity:
Bargman v. Rooney
(1998), 30 C.P.C. (4th)
    259 (Ont. Gen. Div.), at paras. 18-19.

[13]

In the present case, the
    appellant did not plead fraudulent misrepresentation. Rather, the issue of
    fraudulent misrepresentation was raised as an alternative argument to its main
    contention of negligent misrepresentation. The motion judge declined to
    determine this issue because it was not advanced in its statement of claim. She
    also stated that had the claim been properly advanced, she would have dismissed
    it in the absence of any credible evidence that [the respondent] Brey
    intentionally misled [the appellant] and other potential purchasers about the
    lawful use of the Property or potential exposure as a result of the renovation
    of the Property forty-five years earlier.

[14]

The appellants allegations
    of fraudulent misrepresentation occupied a small part of the proceedings and
    did not form the basis for the motion judges decision. Nevertheless, based on
    the motion judges reasons, they appear to have been proffered without regard
    for the rule that fraud must be strictly pleaded and strictly proved:
Toronto
    Dominion Bank v. Leigh Instruments Ltd. (Trustee of)
, [1998] O.J. No. 4221
    (Gen. Div.), at para. 17. Moreover, while not all unsuccessful allegations of
    fraud and dishonesty lead inexorably to cost consequences, where, as here, a
    party makes such allegations unsuccessfully with access to information
    sufficient to conclude that the other party was merely negligent and neither
    dishonest nor fraudulent, costs sanctions may be appropriate:
Hamilton v.
    Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26.

[15]

As a result, we are of the
    view that a reduction of the appellants costs is appropriate as a reminder
    that allegations of fraud and dishonesty are simply not to be made unless
    there is every reasonable likelihood that they can be proved:
Bargman
,
    at para. 19.

[16]

Accordingly, we order that
    the respondent Brey shall pay to the appellant its costs of the motions and the
    action in the amount of $35,000, inclusive of disbursements and all applicable
    taxes.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B. Roberts
    J.A.

[1]

As
    provided for under r. 49.02(2), r. 49.10(1) also applies to motions, with
    necessary modifications.


COURT OF APPEAL FOR ONTARIO

CITATION:

Ahmed v.
    DePaulis, 2022 ONCA 206

DATE: 20220310

DOCKET: C68321

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Nisar Ahmed and 1492480 Ontario Inc.

Plaintiffs (Respondents)

and

Albina
    DePaulis also known as Albina De Paulis,
Claudio DePaulis also known as Claudio De Paulis
and Washmax (Weston) Ltd.

Defendants (
Appellants
)

No one appearing for the appellants

Eric Blau, former counsel for the appellants

S. Michael Citak and Dara Hirbod, for
    the respondents

Heard: March 8, 2022 by video
    conference

On
    appeal from the judgment of Justice Lorne Sossin of the Superior Court of
    Justice, dated April 2, 2020, with reasons reported at 2020 ONSC 2550.

REASONS FOR DECISION

[1]

The appellants appeal from
    the trial judgment that awarded the respondents damages for, among other
    things, illegal distress, conversion, and defamation. At the hearing, we
    dismissed the appeal with reasons to follow. We now provide our reasons.

[2]

The appeal was
    scheduled to be heard on March 8, 2022. On March 4, 2022, the appellants
    former counsel obtained an order from Pardu J.A. removing them as the lawyers
    of record for the appellants. They had previously obtained an order removing
    them as lawyers of record from the Superior Court of Justice on February 23,
    2022. The appellants had notice of and did not respond to the motions to remove
    their counsel.

[3]

We were advised that
    both orders were served on the appellants. The order of Pardu J.A. was sent by
    email, as she directed, and also by registered mail.
We
    were also advised that the appellants former lawyers had previously advised
    the appellants of the hearing date of March 8 and then subsequently provided
    them with the link to the virtual hearing.
At the hearing on March 8, neither of the appellants
    appeared nor did they communicate in any way with the court. The appellants also
    did not communicate with their former lawyers.

[4]

The respondents
    obtained their judgment almost two years ago. The appellants have not
    demonstrated any interest in proceeding with their appeal. In particular, knowing
    that their counsel was seeking removal from the record and had obtained orders
    in this regard, they did not appear to ask for an adjournment of the hearing or
    otherwise address the status of their appeal. In those circumstances, we
    determined that the appeal should be dismissed.

[5]

The respondents are entitled to their costs of
    the appeal which we fix in the amount requested, that is, $17,561.90, inclusive
    of disbursements and H.S.T.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Johnston (Re), 2022 ONCA 207

DATE: 20220314

DOCKET: C69623

Rouleau, Nordheimer and George JJ.A.

IN THE MATTER OF:  Kelvin Johnston

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Tanner Blomme, for
    the appellant

Andrew Hotke, for the respondent, Attorney
    General of Ontario

Kate Deakon, for the respondent, Person
    in Charge of Royal Ottawa Mental Health Centre

Heard: March 4, 2022 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated June 4, 2021, with reasons dated July 2, 2021.

REASONS FOR DECISION

[1]

Mr. Johnston appeals from the disposition of the
    Ontario Review Board that continued the detention order against him. The appellant
    submits that the Board erred in continuing the detention order. In particular,
    he submits that the Board erred in finding that the appellant continues to pose
    a significant risk to the safety of the public. He asks that the detention
    order be set aside and that an absolute discharge be granted. Alternatively,
    the appellant asks for conditional discharge or a new hearing. For the
    following reasons, we dismiss the appeal.

[2]

The appellant has been under the auspices of the
    Board since February 2016 arising out of charges of uttering death threats,
    mischief and breach of probation. He was also under the auspices of the Board
    in 2008 arising out of charges of mischief, failure to comply and possession of
    drugs but he was absolutely discharged in 2010. His current detention arises
    out of the second NCR finding in 2016.

[3]

The Board found that the appellant continues to
    pose a significant risk to the safety of the public. The Board accepted the
    evidence of the attending psychiatrist, Dr. Gojer, that if left to his own
    devices, the appellant would resort to drugs and alcohol which would lead to a
    decompensation of his condition with an increasing risk of violence. The
    Board was entitled to accept and rely on that opinion:
K.S. (Re)
, 2022
    ONCA 170, at para. 7. The Board also noted that this is exactly what happened
    when the appellant stopped taking one of his medications in 2020.

[4]

The appellant submits that the Board
    misunderstood Dr. Gojers evidence in coming to its conclusion that a serious risk
    to public safety was established. We do not agree. Dr. Gojers evidence was
    clear that the appellant would likely decompensate, if he was discharged,
    because he would stop taking his medication. Dr. Gojer also said that, if that
    occurred, the appellant would likely become violent, as he has in the past. We
    note that only Dr. Gojer testified before the Board on this issue.

[5]

The appellant quarrels with the Boards finding
    that these consequences amount to a serious risk to public safety. The
    appellant says that, not only has his condition been stable for the past year, but
    there was insufficient evidence that he would commit a serious criminal offence
    if he did decompensate. We do not accept this contention. While the appellants
    condition has been stable for the past year, that results largely from the fact
    that he is under the control of the hospital and his compliance with his
    medications can be monitored. With respect to the requirement that there be
    evidence that a person will commit a serious criminal offence, this has to be
    understood in the context of what serious means. Serious in this context is
    described as going beyond the merely trivial or annoying:
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 62.

[6]

Reasonable people might differ over which
    criminal offences are serious and which are not. Regardless, in our view, the
    appellants threats to kill people satisfies the seriousness requirement. Further,
    the evidence is that the appellant resorts to violence, if his condition
    deteriorates. While the appellant may consider that his prior assaultive
    behaviour did not involve serious physical attacks, others might take a
    different view. It is certainly clear that the appellant has the physical
    capability of inflicting serious harm. On that point, we reiterate that it is
    the potential harm that must be serious, not the actual harm caused. The fact
    that the appellant has not inflicted physical harm on any individual in the
    past is no assurance that he would not in the future. The purpose of the risk
    analysis is to identify and guard against significant risks to public safety,
    not to wait for the worst to occur.

[7]

It was open to the Board, on the evidence, to
    conclude that the appellant posed a significant risk to public safety. The
    appellant has failed to demonstrate that the Boards conclusion is
    unreasonable. In our view, this case mirrors the situation described in
R.
    v. Starson
(2004), 183 C.C.C. (3d) 538 (Ont. C.A.) where Rosenberg J.A.
    said, at para. 24:

Thus, the fact that, to date, the appellant
    has never physically harmed anyone does not render the Board's decision
    unreasonable. There was a body of evidence to support a finding that the
    appellant continued to represent a real risk of serious psychological harm to
    members of the public by his threatening behaviour, which in the past has
    included threats of death.

[8]

Finally, we also do not accept that the Board
    failed to consider the alternative of granting a conditional discharge. The
    Board accepted the evidence of the attending psychiatrist that the appellant
    would deteriorate fairly quickly if he relapsed. That rapid deterioration
    made control and management of the appellant on a conditional discharge
    problematic. Quick reaction was required if a relapse occurred. A detention
    order provides the ability to immediately respond. Again, that was a reasonable
    conclusion for the Board to reach.

[9]

The appeal is dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Khorramshahi v. Iranpour, 2022
    ONCA 210

DATE: 20220311

DOCKET: M53255

Roberts J.A. (Motions Judge)

BETWEEN

Farid Khorramshahi

Moving Party

and

Shadab Iranpour

Responding Party

Farid Khorramshahi, acting in person

Shadab Iranpour, acting in person

Heard: March 8, 2022 by video
    conference

REASONS FOR DECISION

[1]

Mr. Khorramshahi seeks an
    order extending the time to file his notice of appeal from the order of the
    motion judge Dennison J. dated December 8, 2021. The motion judge dismissed Mr.
    Khorramshahis motion to compel Ms. Iranpour, his former spouse, to attend to
    have a religious divorce signed and schedule a contempt hearing on a priority
    basis. She ordered him to pay $2,200 in costs to Ms. Iranpour.

[2]

Under r. 61.04(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990 Reg. 194, an appeal to an appellate court
    shall be commenced by serving a notice of appeal and the required certificate
    within 30 days after the order appealed from was made. This means that Mr.
    Khorramshahis deadline to serve a notice of appeal on Ms. Iranpour was
    January 7, 2022.

[3]

Mr. Khorramshahi served Ms.
    Iranpour by email with his notice of appeal and certificate of evidence at 7:57
    p.m. on January 7, 2022. In his notice of appeal, he mistakenly noted the date
    of the order under appeal as October 8, 2021. The court office rejected his
    filing without an order extending the time to file the notice of appeal. On
    February 25, 2022, at 4:23 p.m., Mr. Khorramshahi served Ms. Iranpour by
    email with his present motion to extend the time for filing.

[4]

Ms. Iranpour opposes the
    requested extension.

[5]

The overarching
    consideration on this motion is whether the justice of the case warrants the
    requested extension. Included in this consideration are the following
    well-established criteria: the length of and explanation for the delay; a
bona
    fide
intention to appeal formed within the 30-day appeal deadline under r. 61.04(1)
    of the
Rules of Civil Procedure
; any prejudice caused by the delay;
    and the merits of the proposed appeal: see
Enbridge Gas Distribution Inc.
    v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[6]

Mr. Khorramshahis affidavit
    in support of his motion is very brief. While he explained in his affidavit why
    his materials were rejected by the court office, he failed to provide any
    explanation for his delay in serving them past the January 7, 2022 deadline.
    Service by email after 4:00 p.m. is deemed under r. 16.01(4)(b)(iv) to be
    service on the next day; the next day in this case being a Saturday, service is
    deemed under r. 3.01(1)(d) to have taken place on Monday, January 10, 2022.
[1]
Similarly, there is no evidence that Mr. Khorramshahi formed an intention to
    appeal within the 30-day appeal period. I am not prepared to infer that Mr.
    Khorramshahi formed the requisite intention to appeal given that the notice of
    appeal and certificate of evidence were served out of time. There is also no
    explanation provided in Mr. Khorramshahis supporting affidavit for the delay
    in bringing this motion almost two months after his filing was rejected by the
    court office. While the delay in the commencement of the appeal is short, the
    delay in bringing this motion is not, especially in the context of family law
    litigation where finality is essential to allow families to move on with their
    lives.

[7]

The fact that Mr.
    Khorramshahi is self-represented on this motion does not excuse the delay or
    the absence of explanations for his delay. Mr. Khorramshahi was represented by
    counsel before the motion judge and he advised that he had assistance in
    preparing his appeal materials and on this motion.

[8]

I turn to the merits of the
    proposed appeal. Mr. Khorramshahi has only provided the reasons of the motion
    judge and his proposed notice of appeal. I do not have a copy of the motion
    judges formal order, nor do I have a copy of the appeal book or factum
    proposed to be filed, although Mr. Khorramshahi advised that they were
    prepared. The only reference to the merits of the appeal in Mr. Khorramshahis
    supporting affidavit is his statement that: Without this extension, the
    appellant would lose the opportunity to appeal a decision which has
    fundamentally ignored the evidences [sic] which was open with the Superior
    Court of Justice on Dec. 2021.

[9]

As indicated in his
    materials and submissions on this motion, his principal ground of appeal is
    that the motion judge erred in failing to accept the expert evidence proffered
    by his expert with respect to Iranian law. He also argues that the motion judge
    erred in preferring the expert evidence given by Ms. Iranpours expert that Ms.
    Iranpour could not release her Iranian dowry (Mahrieh) and that Iranian
    courts had jurisdiction over this matter.

[10]

Based on the materials
    provided, this ground has no prospect of success. It was open to the motion
    judge to prefer the evidence of Ms. Iranpours expert over the evidence of Mr.
    Khorramshahis expert. This evidence supported the motion judges determination
    that she had no jurisdiction to grant the order sought by Mr. Khorramshahi.
    Mr. Khorramshahi has not pointed to any arguable error apparent in her reasons
    or decision.

[11]

Finally, I consider whether
    there is any prejudice to Ms. Iranpour because of Mr. Khorramshahis delay. In
    my view, again in the context of family law litigation, it would be prejudicial
    to subject Ms. Iranpour to further costs in responding to an unmeritorious
    appeal: see
Bobel v. Humecka
, 2021 ONCA 757, at para. 6.

[12]

Mr. Khorramshahi has not met
    his onus on this motion. I am not persuaded that the justice of the case
    warrants an extension of time to appeal. Rather, the justice of the case warrants
    the refusal of the requested extension.

[13]

Accordingly, the motion is
    dismissed. Although self-represented on this motion, Ms. Iranpour consulted
    with her lawyer about Mr. Khorramshahis motion. She is therefore entitled to
    costs of this motion in the amount of $500 payable forthwith by Mr.
    Khorramshahi.

L.B. Roberts J.A.

[1]

This
    is because, r. 3.01(1)(d) specifies that service of a document made after 4
    p.m. or at any time on a holiday shall be deemed to have been made on the next
    day that is not a holiday. Under r. 1.03(1), holiday is defined as including
    any Saturday or Sunday.


COURT OF APPEAL FOR ONTARIO

CITATION: Leonard v. Zychowicz, 2022 ONCA
    212

DATE: 20220315

DOCKET: C68222

Strathy C.J.O., Roberts and
    Sossin JJ.A.

BETWEEN

Cheryl
    Leonard

Moving Party (Appellant)

and

Zara Zychowicz

Respondent (Respondent)

Marc A. Munro, for the appellant

Andrew L. Keesmaat and Simone A.
    Bilato, for the respondent

Heard: February 15, 2022 by video conference

On appeal from the order of Justice Paul
    R. Sweeny of the Superior Court of Justice, dated February 21, 2020, with
    reasons reported at 2020 ONSC 662, 56 E.T.R. (4th) 81, and from the costs
    order, dated March 23, 2020, with reasons at 2020 ONSC 1713.

REASONS FOR DECISION

[1]

This appeal involves a dispute between two
    cousins concerning the will of their late aunt, Helene Polomock (the
    Testatrix), who died on April 4, 2011. The central issue on the application
    was whether the Testatrix had testamentary capacity when she executed a will on
    October 23, 2007 (the Will), approximately four years prior to her death.

[2]

The Will named the respondent, Zara Zychowicz,
    as estate trustee and sole beneficiary. The appellant, Cheryl Leonard, had been
    named as the estate trustee and sole beneficiary in an earlier will, made in
    2002 (the earlier Will).

[3]

The appellant brought an application to declare
    the Will invalid and to require the respondent to surrender her appointment as
    estate trustee. She asserted that there were suspicious circumstances
    surrounding the execution of the Will, that the Testatrix lacked testamentary capacity
    as well as knowledge and approval of the Wills contents, and that the
    Testatrix had been subjected to undue influence around the time she signed the
    Will.

Decision Below

[4]

The application judge dismissed the application.
    After setting out the factual background and the issues, the application judge
    identified the relevant principles, summarized by Cullity J. in
Scott v.
    Cousins
(2001), 37 E.T.R. (2d) 113 (Ont. S.C.), and extrapolated from the
    authorities, including
Vout v. Hay
, [1995] 2 S.C.R. 876. The appellant
    does not assert that the application judge erred in his statement of the
    applicable principles or that he erred in the application of those principles.
    As we explain below, the appellants submission is that the application judge
    made a finding of testamentary capacity in the absence of evidence.

[5]

The application judge acknowledged that the
    Testatrix had longstanding mental health issues and had been diagnosed with
    bipolar disorder. He found that the Will had been executed with the requisite
    formalities and concluded that it could be presumed that the Testatrix knew and
    approved of its contents. He also found there were no suspicious circumstances
    raised concerning the preparation of the Will, nor was there evidence of undue
    influence. However, he was prepared to accept that there was some evidence
    raised by the appellant of suspicious circumstances concerning the capacity of
    the Testatrix, so as to put an onus on the respondent to prove testamentary
    capacity.

[6]

Having considered the evidence on capacity,
    including the expert evidence, the application judge found that the respondent
    had discharged her onus and the Will was valid. In coming to that conclusion,
    he largely rejected the evidence of the appellants expert, Dr. Shulman. He
    found that Dr. Shulmans evidence had been tainted by a summary of facts
    prepared by appellants counsel  a summary that had been admittedly created
    with advocacy in mind.

[7]

The application judge preferred instead the
    evidence of the respondents expert on capacity, Dr. Pachet, which he accepted.
    Dr. Pachet opined that there was no substantive or conclusive evidence that the
    Testatrix did not meet the test in
Banks v. Goodfellow
(1870), L.R. 5
    Q.B. 549, at p. 565, when she executed the Will. There was no evidence to
    suggest that she did not know the nature and effect of a will, her natural
    beneficiaries, or the extent of her assets. There was no evidence that she was
    delusional when she executed the Will. In sum, in Dr. Pachets words, [h]er
    cognitive impairment and degree of executive dysfunction would not have been
    viewed as a significant threat to her testamentary capacity. The application
    judge found that Dr. Pachets evidence was consistent with other evidence,
    including medical evidence, which indicated that the Testatrix had been
    functioning well and was not subject to delusions when she executed the Will.

[8]

The application judge dismissed the application
    and awarded costs to the respondent in the amount of $75,175.

Submissions on Appeal

[9]

First, the appellant submits that the
    application judge found that there were suspicious circumstances concerning the
    capacity of the Testatrix. He submits, however, that the application judge erred
    in relying on the presumption of capacity to make a determination of capacity
    in the absence of material evidence. The appellant submits that this was an
    error of law, and the standard of review is therefore correctness. She points
    to the fact that the solicitor had no notes or recollection as to the
    testamentary capacity of the Testatrix, and no contemporaneous record of her
    knowledge and approval of the Will.

[10]

Second, the appellant seeks leave to appeal the
    costs award. She notes that the appellants counsel did not render any
    accounts, did not keep dockets, and simply filed a bill of costs, which her
    counsel describes as fabricated guestimates.

[11]

We do not accept these submissions.

Testamentary Capacity

[12]

We begin with the standard of review. The
    appellant submits the standard of review is correctness and that we are free to
    substitute our opinion on capacity for the application judges. We do not agree.

[13]

The determination of testamentary capacity
    involves the application of a legal standard  the test in
Banks v.
    Goodfellow
 to a set of facts. The question, therefore, is one of mixed
    fact and law. If the application judge has applied the correct standard, has
    considered the requisite elements of that standard and has made no error in
    principle, either in the application of the standard or otherwise, the decision
    will only be set aside if the judge has made a palpable and overriding error in
    the assessment of the evidence:
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235, at paras. 26, 36; see also
Wilton v. Koestlmaier
,
    2019 BCCA 262, 48 E.T.R. (4th) 12, at paras. 22-23.

[14]

On the other hand, where the application judge
    has made an error in principle, for example, by failing to consider the
    requisite elements of the legal test or standard, or has erred in the
    application of that test or standard, the court is entitled to intervene. For a
    recent example of such intervention, see this courts decision in
McGrath
    v. Joy
, 2022 ONCA 119.

[15]

The application judge correctly identified the
Banks
    v. Goodfellow
test with respect to testamentary capacity and considered
    its elements.

[16]

The appellant has not identified any palpable
    and overriding error in the application judges assessment of the evidence.

[17]

We disagree with the appellants submission that
    the application judge made a finding of suspicious circumstances concerning the
    capacity of the Testatrix. Rather, the application judge was prepared to accept
    that the appellant had adduced some evidence of suspicious circumstances with
    respect to capacity such that [the respondent] has the onus of proving
    testamentary capacity. He was satisfied, however, that the respondent had discharged
    that onus.

[18]

The application judge was entitled to discount
    the evidence of Dr. Shulman because his opinion was based on a summary of
    facts, prepared by counsel, that was patently neither objective nor fair.

[19]

As the application judge noted, the summary of
    the evidence provided to Dr. Shulman may well have affected his appreciation of
    the evidence. For example, Dr. Shulman stated in his report that [t]he stark
    difference in the two Wills of 2002 and 2007 reflect radical changes in [the
    Testatrixs] thinking about potential beneficiaries. In fact, the only change of
    substance between the two wills was the substitution of one niece, the
    respondent, Zara Zychowicz, for another, the appellant, Cheryl Leonard. In
    light of the Testatrixs circumstances, and the terms of her previous wills,
    this can hardly be described as a radical change. The Testatrix had no
    children, her husband had sufficient means and, as the application judge found,
    the circumstances surrounding the preparation of her prior Wills shows that
    [the Testatrix] was ambivalent about her beneficiaries. She had named her half-brother
    John, the respondents father, as the residual beneficiary of her will in 1989.
    When she gave instructions for the earlier Will, she initially wanted both the
    appellant and the respondent to be beneficiaries, but ultimately settled on the
    appellant alone. The Will subsequently identified the respondent alone as the
    sole beneficiary. As the application judge noted, this was not indicative of a
    radical change in her thinking so as to call her capacity into question.

[20]

In assessing the weight to be given to the
    expert evidence, having discounted the evidence of Dr. Shulman, the application
    judge was entitled to prefer the expert evidence of Dr. Pachet. He quoted Dr.
    Pachets evidence:

Overall, based upon the documents reviewed
    there is no substantive or conclusive evidence to suggest that [the Testatrix]
    did not meet
Banks vs. Goodfellow
criteria when she executed the Will
    dated October 23, 2007. There is no evidence to suggest she would not have known
    the nature and effect of a Will, her natural beneficiaries, or the extent of
    her assets. Her cognitive impairment and degree of executive dysfunction would
    not have been viewed as a significant threat to her testamentary capacity. As
    well, there was no indication of a challenge to her decisional capacity in
    association with her personal matters or financial affairs prior to or at the
    time she changed her Will in 2007.

... based upon the documentation reviewed
    there is no substantive evidence that [the Testatrix] was delusional or
    paranoid when she executed the 2007 Will.... While the rationale regarding her
    choice of beneficiary in 2007 was not documented in a fulsome manner, there is
    no substantive information to argue that delusions or paranoid ideations were influencing
    her estate disposition at that time.

[21]

A judges findings of fact based on the
    acceptance of expert evidence and their preference of the evidence of one
    expert over another is entitled to deference and should not be disturbed in the
    absence of a palpable and overriding error in the assessment of the evidence.
    The appellant has demonstrated no such error.

[22]

The appellants core submission, however, is
    that having found that the presumption of capacity was not available, the application
    judge erred in finding testamentary capacity in the absence of affirmative
    evidence. She submits, for example, that the application judge erred in finding
    that the paucity of evidence of medical visits during the period of 2005 to
    2009 was consistent with Dr. Pachets opinion and supported the view that the
    Testatrix was functioning well and was not under any delusions.

[23]

We do not accept the appellants submission that
    the application judge relied on the presumption of capacity to find capacity or
    that he found capacity in the absence of material evidence. The application
    judges findings of fact in relation to testamentary capacity were the product
    of his assessment of
all the evidence
.

[24]

In addition to Dr. Pachets evidence, there was
    ample evidence before the application judge to support the Testatrixs
    testamentary capacity and the absence of undue influence. This included:

·

the evidence of the respondents father, the
    half-brother of the Testatrix, who held her power of attorney executed the same
    day as the Will and who described her as independent, capable of living alone
    and capable of making her own property, banking and financial decisions as well
    as her personal care decisions;

·

the evidence of a longstanding neighbour, who
    talked to the Testatrix almost every day, and described her as very smart,
    aware of what was going on around her, capable of making decisions in her best
    interests and showing no signs of hallucinations or paranoia;

·

the evidence of the solicitor who prepared the
    Will, who had a long-standing relationship with the Testatrix, who had obtained
    a satisfactory capacity assessment in relation to the earlier Will, and who did
    not recall or note any concerns about the Testatrixs capacity in relation to
    the Will  his contemporaneous notes indicate the Testatrix was upset with
    the appellant and thus gave instructions to remove her from her will;

·

the evidence of the Testatrixs family physician
    for more than 10 years prior to her death, to the effect that there had been no
    change in her testamentary capacity between January 2002 (when the original
    capacity assessment was performed by that same physician) and September 2007 or
    shortly thereafter (when the Will was prepared and executed) or even in
    psychiatric and geriatric notes up to 2010; and

·

the absence of any evidence, in the extensive
    medical record produced on the application, that the Testatrix lacked capacity,
    or had a mental illness that affected her capacity, at the time she gave
    instructions for the Will or signed the Will.

[25]

This evidence, together with the evidence of Dr.
    Pachet, which he accepted, fully supports the application judges conclusions
    on the issue of testamentary capacity. The appellant has identified no palpable
    and overriding error in his assessment of the evidence.

Costs Awarded Below

[26]

We turn to the issue of costs.

[27]

In post-hearing costs submissions, the appellant
    submitted that no costs should be awarded because the respondents counsel had
    not rendered accounts, had not kept dockets, and had essentially copied the
    bill of costs of appellants counsel.

[28]

The application judge found that the absence of
    dockets did not preclude an award of costs, but it did make the determination
    of costs more challenging. He had before him, however, a bill of costs prepared
    by respondents counsel, setting out time spent and hourly rates charged. The
    respondent claimed costs on a partial indemnity basis of $190,000.

[29]

The application judge awarded the respondent
    costs of $55,175 in fees and $20,000 for disbursements, for a total of $75,175,
    inclusive of HST. Those costs were payable by the appellant, as opposed to
    payable out of the estate.

[30]

In this court, the appellant renews the following
    submissions: (a) awarding costs amounts to a windfall in this case and no
    costs should be payable because the respondents counsel sent no bills to the
    respondent and kept no dockets; (b) the respondents costs should be paid out
    of her own share of the estate; or (c) each party should bear her own costs.

[31]

A court should set aside a costs award on
    appeal only if the judge has made an error in principle or if the costs award
    is plainly wrong:
Hamilton v. Open Window Bakery Ltd.,
2004 SCC 9, [2004]
    1 S.C.R. 303, at para. 27.

[32]

We see no basis on which to interfere with the
    application judges decision on costs. He considered the principles applicable
    to the award of costs and how those principles apply in estates litigation. The
    appellant has failed to identify an error in principle or to establish that the
    award was plainly wrong.

[33]

The application judge did not err in requiring
    the appellant to pay costs, particularly having regard to his conclusion that
    there were no reasonable grounds upon which to question the execution of the Will
    or the capacity of the Testatrix. Furthermore, while it is certainly preferable
    to keep dockets, even where the client will not be billed until the completion
    of the matter, the fact that respondents counsel had not issued accounts, and
    had no dockets, was not an automatic bar to the recovery of costs. The application
    judge must do the best they can in such circumstances and this application judge
    did so.

[34]

In any event, and stepping back for a moment, we
    find the costs award reasonable. The claim related to a $500,000 estate; the application
    hearing lasted four and a half days; there was expert evidence on both sides,
    multiple affidavits, and a very substantial documentary record: in addition to
    the Appeal Book and Compendium, we have before us nine volumes of exhibits. The
    costs awarded were proportional and well within the appellants reasonable
    expectations.

Disposition

[35]

For these reasons, the appeal is dismissed. We
    grant leave to appeal costs but dismiss the costs appeal.

[36]

Costs of the appeal to the respondent in the
    agreed amount of $15,000, inclusive of disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

L.B.
    Roberts J.A.

L.
    Sossin J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : 1750738 Ontario Inc. c. 1750714
    Ontario Inc., 2022 ONCA 215

DATE : 20220314

DOSSIER : C67079

Les juges van Rensburg, Benotto
    et Thorburn

ENTRE

1750738 Ontario Inc.

Demanderesse (Intimée)

et

1750714
    Ontario Inc., 1751917 Ontario Inc., 6888631 Canada Inc.

et 1750739 Ontario Inc.

Défenderesses (Appelantes)

Jeff G. Saikaley, Gabriel Poliquin et
    Marie-Pier Dupont, pour les appelantes

Sophie C. Reitano, pour lintimée

Date de laudience : par écrit

En appel du jugement du juge Michel Z.
    Charbonneau de la
Cour supérieure de justice
, en date du 14 mai 2019, dont les motifs figurent
à
2019 ONSC 2879.

INSCRIPTION SUR LES
    DÉPENS

[1]

Lappel concerne un désaccord parmi les
    investisseurs dans un lotissement denviron 100 lots résidentiels. Les quatre
    investisseurs sont : 1750714 Ontario Inc. (« 714 »), 1751917 Ontario
    Inc. (« 917 »), 6888631 Canada Inc.
(« 631 »)
    et 1750738 Ontario Inc. (« 738 »).

[2]

Il y a eu désaccord sur la question si un
    contrat verbal a été conclu et, si oui, les termes du contrat ; leffet de
    la convention parmi actionnaires sur le pr
é
sum
é
contrat oral ;
    leffet de la clause de résiliation des ententes antérieures sur le contrat
    verbal, lordonnance de lexécution en nature du contrat ; et
    lapplication de lordonnance.

[3]

Le tribunal de première instance a décidé quun
    contrat verbal a été conclu, que la condition de linvestissement est quun
    nombre de lots égaux à la participation du dirigeant de 738, M. Lacroix, dans
    le projet serait construit, que 738 pouvait poursuivre laction de sa part, et
    que le deuxième contrat ne nie pas leffet du premier. Le tribunal a ordonné lexécution
    en nature du contrat liant 714, 917 et 631 aux ordonnances.

[4]

Les appelantes, 714, 917, 631 et 739, ont interjeté
    appel à la décision du tribunal.
Les questions en
    litige furent :

1.

Est-ce que le tribunal a erré en droit en
    concluant quil y avait un contrat oral alors que les termes matériaux de ce
    présumé contrat étaient trop incertains et/ou en ajoutant des conditions
    implicites au contrat ?

2.

Est-ce que le tribunal a erré en droit en
    ninterprétant pas la clause de résiliation dans la convention pour conclure
    que la clause a pour effet de résilier le contrat antérieur, et ordonnant
    lexécution en nature du contrat ?

3.

Est-ce que le tribunal a commis une erreur de
    droit en ordonnant lexécution en nature du contrat ?

4.

Est-ce que le tribunal a commis une erreur de
    droit quant à lapplication des ordonnances à 714, 917 et 631 ? et

5.

Dans lalternative, est-ce que lautorisation de
    faire appel de lordonnance de dépens doit être accordée, et lordonnance
    modifiée ?

[5]

Cette cour a décidé que le tribunal na pas commis
    derreur, car :

1.

Les termes essentiels du contrat verbal étaient précis
    et certains ;

2.

Le tribunal avait raison de conclure que la
    clause dexclusion aurait pour effet décarter lélément de substance de
    lentente contractuelle préexistante ;

3.

Le tribunal na pas erré en concluant à
    lexécution en nature du contrat, car cest le seul remède qui permet de
    remettre 738 dans la position quelle aurait été sans la rupture de contrat,
    des dommages-intérêts sont inadéquats pour lentente unique, et il serait
    difficile de quantifier les dommages-intérêts avec exactitude ;

4.

Tous les investisseurs ont accepté dêtre liés
    par le contrat verbal ; et dans lalternative ; et

5.

738 a présenté une offre de transaction aux appelantes
    en offrant que laction soit réglée, mais les appelantes ont refusé loffre et
    nont présenté aucune offre de règlement à 738. 738 navait donc aucun choix
    que de procéder avec le procès et 738 a connu un jugement plus favorable que
    les conditions de son offre. Le Tribunal na commis aucune erreur révisable en
    appel en concluant que les dépens représentaient une « somme
    substantielle » et en appliquant la règle 49.10.

[6]

Lappel a donc été rejeté avec dépens. La cour
    demanda des soumissions écrites concernant le quantum des dépens, et ces motifs
    tranchent ces soumissions.

[7]

Le tribunal dispose dun large pouvoir
    discrétionnaire daccorder des dépens en appel : lart. 131(1) de la
Loi
    sur les tribunaux judiciaires
, L.R.O. 1990, c. C.43. Le tribunal peut considérer
    les facteurs énumérés dans la r. 57.01(1) des
Règles de procédure civile
,
    R.R.O. 1990, Reg. 194, pour le guider dans lexercice de sa discrétion, y
    compris les suivants :

·

le principe dindemnisation, y compris les taux
    facturés et les heures consacrées par les avocats ;

·

le montant de dépens raisonnables ;

·

le degré de complexité de linstance ;

·

limportance des questions en litige ; et

·

la conduite des parties.

[8]

Pour déterminer les dépens raisonnables que les
    parties pourraient sattendre à payer, une comparaison entre les dépens
    encourus par chaque partie peut être utile :
TransCanada Pipelines
    Ltd. v. Potter Station Power Ltd.
Partnership
, (2002), 20 C.P.C. (5th) 382 (S.C.J.), au para. 8 ;
City Front
    Developments Inc. v. Toronto District School Board
(2007), 285 D.L.R.
    (4th) 187 (Ont. S.C.), au para. 9 ;
Loreto v.
    Little (costs)
, 2010 ONSC 5993, aux paras. 33-34.

[9]

Le principe directeur et fondamental est de
    savoir si les coûts sont justes et raisonnables dans les circonstances :
Boucher
    c. Conseil des experts-comptables de la province de lOntario
(2004), 71
    O.R (3d) 291,

(Ont. C.A.).

[10]

Le sommaire des dépens de lIntimée pour lappel
    se résume comme suit :

Détails

Indemnité réelle

Indemnité partielle (60%)

Indemnité substantielle (90%)

Honoraires
          (incluant la TVH)

44
          250,24 $

26
          550,14 $

39
          825,21 $

Débours
          (incluant la TVH)

15
          185,63 $

9
          214,51 $

13
          681,60 $

TOTAUX :

59 435,87 $

35 764,65 $

53 506,81 $

[11]

Les sommes dépensées par les appelantes pour
    lappel se résument comme suit :

Détails

Indemnité réelle

Indemnité partielle (60%)

Indemnité substantielle (90%)

Honoraires (incluant la TVH)

36 969,08 $

22 181,45 $

33 272,17 $

Débours (incluant la TVH)

4 549,77 $

4 549,77 $

4 549,77 $

TOTAUX :

41 518,85 $

26 731,22 $

37 821,94 $

[12]

Les appelantes nont pas abusé du processus
    judiciaire, donc nous octroyons des dépens sur une base dindemnité partielle.

[13]

Le degré de complexité de linstance et limportance
    des questions en litige sont dune importance moyenne et la conduite des deux parties
    est acceptable.

[14]

LIntimée a encouru de grands déboursés à la hausse
    après avoir engagé

un cabinet davocat externe pour réviser son mémoire
    dappel. Ces débours constituent une certaine duplication des services rendus
    par lavocate au dossier.

[15]

Pour toutes ces raisons, nous octroyons à lIntimée
    un montant global de 32 000 $ pour tous ses dépens y compris la taxe.
    Ces dépens sont sur une base dindemnisation partielle pour la durée de
    linstance dappel et un montant réduit pour les débours.

« K.
    van Rensburg j.c.a. »

« M.L.
    Benotto j.c.a. »

« J.A.
    Thorburn j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION:
Richards (Re), 2022 ONCA 216

DATE: 20220314

DOCKET: C69537

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

In the Matter of the Bankruptcy of Michael
    Paul Richards, of the City of Toronto, in the Province of Ontario

Ian J. Klaiman, for the appellant,
    Michael Paul Richards

Catherine Francis, for the respondent,
    Royal Bank of Canada

Heard: March 11, 2022 by video
    conference

On appeal from the order of Justice Barbara
    A. Conway of the Superior Court of Justice, dated June 3, 2021.

REASONS FOR DECISION

[1]

Michael Richards appeals from the order of the
    bankruptcy judge that involved the interpretation of a trust of which he is the
    beneficiary (the Trust). At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow. We now provide our reasons.

[2]

The appellant is an undischarged bankrupt. Royal
    Bank of Canada (RBC) has an outstanding judgment against him for $987,613
    plus costs and interest. On September 16, 2019, RBC filed a bankruptcy
    application against the appellant, which was issued the same day.

[3]

The appellant is the beneficiary of a property
    at 61 St. Clair Avenue West (the Property) pursuant to a Trust that was
    settled by his father in 2001. The Trust was set up to hold the Property during
    the lives of the appellants parents, with a life interest permitting them to
    live in the Property. The appellants father, George, died in 2010. His mother,
    Patricia, continued to live in the Property. She died in July 2020. According
    to the terms of the Trust, the date of death of the second of the appellants
    parents is called the Time of Division.

[4]

At the Time of Division, the trustees are
    required to distribute the Trust Fund (including the Property and any Chattels)
    to the appellant, if he is then alive. Section 5.2.2 of the Trust reads:

On the Time of Division the Trustees shall:

if George Richards is not then alive, the
    Trust Fund, including, for greater certainty, the Real Property and the
    Chattels  shall be paid and transferred to Michael Paul Richards, if he is
    then alive

[5]

Prior to Patricias death, the trustees of the
    Trust sold the Property. The proceeds of sale ($1,172,120.90) are being held in
    trust.

[6]

In October 2020, RBC obtained an order under s.
    38 of the
Bankruptcy and Insolvency Act
,

R.S.C. 1985, c. B-3
    (
BIA
), taking an assignment of rights of the appellants Trustee in Bankruptcy
    to make a claim against the sale proceeds of the Property. The Bankruptcy
    Trustee had not wanted to pursue the claim due to lack of funding. RBC now
    stands in the shoes of the Bankruptcy Trustee with respect to the sale proceeds
    of the Property.

[7]

RBC brought a motion to recover the sale
    proceeds up to the amount owing to RBC. It sought a declaration that the
    appellant was the beneficiary of the Trust and had an interest in the Property
    under the terms of the Trust. RBC argued that the sale proceeds constituted
    property of the bankrupt, pursuant to the broad definition in s. 67(1)(c) of
    the
BIA
, which vested in his Bankruptcy Trustee and formed part of his
    estate.

[8]

The appellant responded that his interest in the
    Property was suspended while he is a bankrupt, pursuant to the provisions of s.
    4.2 of the Trust. That provision is somewhat unusual. It reads:

Any right of a Beneficiary to receive any
    income or capital of the Trust Fund as a result of a mandatory direction to the
    Trustees to make such a distribution, including, for greater certainty, a
    mandatory entitlement of a Beneficiary to the exclusive use, occupation and enjoyment
    of the Real Property and the Chattels . shall be enforceable only until such Beneficiary
    shall become bankrupt  whereupon and so long as the effect or operation thereof
    shall continue, the Beneficiarys Interest shall cease until the cause of the Beneficiarys
    Interest becoming vested in or belonging to or being payable to a person other
    than such Beneficiary shall have ceased to exist  and then the Beneficiarys
    Interest shall again be allocated to such Beneficiary as aforesaid unless and
    until a like or similar event shall happen whereupon the Beneficiarys Interest
    of such Beneficiary shall again cease and so on from time to time.

[9]

The appellant submitted that his interest in the
    Property could not vest in his Bankruptcy Trustee as he had no rights to the
    Property, pursuant to s. 4.2, until such time as he was discharged from
    bankruptcy. The appellant contended that, during his bankruptcy, any rights he
    had were suspended. It is only on his discharge from bankruptcy that the
    Property will vest in him pursuant to s. 5.2.2 and he will own it outright.

[10]

The bankruptcy judge rejected that contention,
    as do we. She found that the mandatory distribution provision contained in s.
    5.2.2 of the Trust overrode s. 4.2. In particular, the bankruptcy judge held that
    the provisions of the Trust (Part IV), which contained s. 4.2, applied to the
    Property during the lifetimes of the appellants parents, but the provisions of
    the Trust (Part V) that contained s. 5.2.2 applied to the Property after the
    death of his parents. The bankruptcy judge noted that the mandatory division of
    the Property contained in Part V was not made subject to s. 4.2 nor did it
    otherwise reference that provision. She further found that, had the intent been
    as the appellant contends it to be, she would have expected there to have been
    express language in the mandatory distribution provision to that effect. As she
    said, at para. 18: I simply cannot conclude that the Settlor intended to
    override the mandatory mechanism of s. 5.2.2 by an oblique reference to capital
    in s. 4.2.

[11]

As a result, the bankruptcy judge concluded that
    the Property vested in the appellant at the Time of Division. The Property thus
    constituted property of the appellant and vested in his Trustee in Bankruptcy.
    Since the Trustee in Bankruptcy had transferred its rights in the appellants Property
    to RBC, RBC was entitled to receive the proceeds of sale up to the amount that the
    appellant owes to RBC.

[12]

The appellant has failed to demonstrate any
    error in the bankruptcy judges decision. Her decision involves an
    interpretation of the Trust document and is entitled to deference on review:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at
    paras. 50-52. The fact is that we agree with her interpretation. It is
    consistent with the plain wording of the relevant section and is also
    consistent with the stated purpose of the Trust.

[13]

We would also observe that, if the
    interpretation of the Trust is as contended by the appellant, it would offend
    the public policy that underlies the
BIA
by allowing persons to place
    assets out of the reach of their creditors. As Rowe J. said in
Chandos
    Construction Ltd. v. Deloitte Restructuring Inc.
, 2020 SCC 25, 449 D.L.R.
    (4th) 293, at para. 31, the anti-deprivation rule renders void contractual
    provisions that, upon insolvency, remove value that would otherwise have been
    available to an insolvent persons creditors from their reach.

[14]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal in the amount of $17,500, inclusive of
    disbursements and H.S.T.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hategan v. Frederiksen, 2022 ONCA
    217

DATE: 20220314

DOCKET: M53145 (C69160)

Pardu
    J.A. (Motion Judge)

BETWEEN

Elisa
    Romero Hategan

Plaintiff (Appellant)

and

Elizabeth
    Moore Frederiksen and Bernie Farber

Defendants (Respondents)

Joseph Kary, for the appellant

Alexi Wood and Lillianne Cadieux-Shaw,
    for the respondent Elizabeth Moore Frederiksen

Mark Freiman, for the respondent Bernie
    Farber

Heard: February 28, 2022, by video conference

ENDORSEMENT

[1]

The appellant moves for an order setting aside the Registrars dismissal
    of her appeal and asks for extra time to perfect the appeal.

[2]

The respondents ask that the motion be dismissed. They submit that the
    appeal has no merit, and that the appellant has not adequately explained the
    delay.

The Judgment below

[3]

On February 3, 2021, the motion judge dismissed the appellants claims
    on a summary judgment motion, awarded judgment for damages for defamation
    against her and granted a permanent injunction against her. The terms of the
    injunction restrained the appellant from making or publishing any statement
    referring to the respondent Elizabeth Moore Frederiksen
[1]
and required her to remove all online statements she has made about Frederiksen,
    release all domain names she had created using Frederiksens name and refrain
    from using any online identifier containing that name. The appellant served a
    Notice of Appeal on March 3, 2021, and filed it two days later. On March 26,
    2021, the motion judge ordered her to pay costs and confirmed the permanent
    injunction.

The nature of the action

[4]

Both the appellant Elisa Romero Hategan and the respondent Frederiksen
    are former active members of Heritage Front, an extremist neo-Nazi group. Each
    says that they had a difficult childhood or adolescence. They both became
    disillusioned with the group and left. After leaving, both women have spoken
    publicly against extremism and hate groups. The appellant feels that
    Frederiksens public persona amounts to an appropriation of the appellants own
    identity as an anti-hate speaker. The appellant feels that Frederiksens
    appearance and her religious and sexual identity have been assumed to steal the
    appellants life and accomplishments.

[5]

The appellant relied upon a public statement made by the respondent
    Bernie Farber for the foundation of her action against him. On September 19,
    2017, Farber appeared on a television show,
The Agenda
,

and
    made the following statement:

By the way [Frederiksen] was one of
    a couple women that were involved in the Heritage Front, both of whom,
    actually, [Frederiksen] and another young woman by the name of [Hategan], both
    of them ended up being heroes in terms of how they were able to take themselves
    out, how they were able to work the system, to basically shut down the Heritage
    Front. And so in this particular case, itss [sic] kind of interesting that the
    women were the heroes in shutting this down. There were others involved as
    well, the Bristol Affair, he was the mole. All of this came together as a
    result of the women who full timely took a stand and said, were not going to
    deal with this anymore.

[6]

The appellant sued both respondents for damages for the torts of wrongful
    appropriation of personality, civil conspiracy, injurious falsehood, negligence
    and unlawful interference with economic interests. She did not sue for
    defamation.

Positions of the parties before the motion judge

(1)

The appellants position

[7]

The appellant took the position that summary judgment was not
    appropriate because there were major credibility issues that required a trial
    to resolve the many inconsistencies and contradictions in the voluminous evidence
    filed on the motion. The legal issues were complex and it would be unfair to
    proceed by way of summary judgment before documentary production. The appellant
    asserted that Frederiksen lifted facts, storylines and key pieces of the
    appellants life story and falsely passed them off as her own lived
    experience for commercial profit. The appellant believes that she was the
    only young woman who played any role whatsoever in the collapse of the
    Heritage Front.

[8]

The appellant asserted that Farber and Frederiksen worked together to
    cultivate the latters brand, thereby appropriating the appellants life story.
    The appellant argued that since Farber filed no evidence on the motion, his
    motion for summary judgment should be dismissed.

[9]

The appellant argued that the respondent Frederiksens motion for
    summary judgment on the counterclaim for defamation should be dismissed for the
    same reasons.

[10]

The
    appellant asserted that there were genuine issues requiring a trial of these
    claims, including whether limitation periods barred any of the claims and other
    defences.

(2)

The respondents positions

[11]

The
    respondents took the position that a credibility assessment was not required.
    Even if the appellants evidence was accepted as true, which they denied, the
    evidence did not support any actionable claim. They took the position that the
    appellants claim was based on speculation, unfounded allegations, and
    conspiracy theories. They argued that the elements of the causes of action
    asserted by the appellant were not supported by evidence. They argued that
    Frederiksen was entitled to speak about her own life experiences. There was no
    evidence that Frederiksen had misrepresented her own life experiences in any
    material respect. The claim for civil conspiracy was similarly based on an
    allegation that the respondents had made and endorsed false representations
    that Frederiksen had undergone experiences with the Heritage Front like those
    asserted by the appellant. They argued there was no evidence of any agreement
    between the respondents that could amount to a conspiracy and no evidence of
    any unlawful act against a third party which was intended to target the
    appellant. They argued that there was no duty of care owed that could found a
    claim in negligence, nor any standard of care nor breach nor damages
    identified.

[12]

The
    respondent Farber reiterated that his comments on the television broadcast were
    incapable of supporting the causes of action alleged. There was no other
    evidence capable of supporting any of the pleaded torts and no evidence of any
    damages arising from any alleged acts by him. There was no evidence of false
    statements by Farber or any agreement that could amount to a conspiracy.

[13]

On
    the counterclaim, the respondents argued that it was uncontestable that the
    statements were defamatory, that they had been published by the appellant and
    that they would tend to lower the reputation of the respondents in the eyes of
    a reasonable person. They argued that the defence of justification was not
    available because the appellant failed to provide any evidence that the
    defamatory statements were true. They submitted that the defence of fair
    comment was not available as the statements were clearly published with malice.
    Frederiksen argued that the appellant had appropriated her identity by
    registering multiple names for website and social media groups using
    Frederiksens name and further that the appellant had threatened to sue others
    who proposed to engage Frederiksen to speak.

[14]

Frederiksen
    argued that a permanent injunction was necessary to end the appellants long
    running campaign to ruin her reputation, which did not lessen even after the
    counterclaim was brought and continued after a consent interim order
    restraining her from defaming Frederiksen was made. The appellant stated she
    had nothing left to lose, no assets to lose in a libel case, and that she would
    continue to speak.

The motion judges decision

[15]

The
    motion judge rejected the arguments advanced by the appellant and found for the
    respondents on the counterclaim. She ruled that summary judgment in favour of
    the respondents was appropriate.

(1)

The claims against Farber

[16]

She
    concluded that Farbers opinion expressed in the television broadcast was not
    untrue and was incapable of supporting the torts alleged and that there was no
    evidence of damage. She held there was no evidence of an agreement that could
    amount to a conspiracy. The opinions expressed about events in the past in the
    broadcast could not be construed as appropriation of the appellants name or
    image for commercial purposes. Similarly, the claim of unlawful interference
    with economic interests was based on allegations of false public statements
    about Frederiksens life, said to amount to appropriations of the appellants
    life. There was no duty of care owed to support a claim in negligence. She
    concluded that the claim against Farber was frivolous and vexatious.

(2)

The claims against Frederiksen

[17]

The
    motion judge held that Frederiksen was entitled to speak about her own life
    experiences and that this was not an actionable wrong. The evidence was that
    Frederiksen had only ever spoken truthfully about her own life. This did not
    amount to unauthorized use of a name or likeness of a person as a symbol of
    [her] identity. Even taking the appellants evidence at its highest, there was
    no evidence of false statements by Frederiksen which underlay the claims for
    injurious falsehood and civil conspiracy, no evidence of an agreement to
    support the allegation of conspiracy, and no evidence of an unlawful act
    directed at a third party to support the claim on interference with economic relations.
    There was no basis to find a duty in negligence, no standard of care or breach
    identified, and no evidence of any loss.

[18]

The
    motion judge held that the defamatory statements the appellant made about the
    respondent Frederiksen were not true, and that they were made maliciously and
    with abusive intent. The motion judge awarded global damages of $100,000
    together with $50,000 for aggravated damages and $50,000 for punitive damages
    to Frederiksen for defamation, breach of confidence, appropriation of Frederiksens
    name on websites and social media sites and interference with her economic
    relations. She agreed that a permanent injunction was necessary to restrain the
    appellants behaviour and invited counsel to make submissions as to the form of
    the order.

The delay following the summary judgment

[19]

The
    appellant submits that she manifested an intention to appeal by serving and
    filing a notice of appeal from the summary judgment on March 3, 2021 and March
    5, 2021 respectively. She says that she mistakenly thought she had 60 days
    after the receipt of the transcripts of the summary judgment hearing to perfect
    the appeal. There was no transcript of the hearing; it proceeded on a written
    record. Pursuant to Rule 61.09(1)(a) of the
Rules of Civil
    Procedure
, R.R.O.
    1990, Reg. 194,
she was required to perfect her appeal within 30
    days from March 5, 2021. On April 6, 2021, the Registrar of this court gave
    notice to the appellant of an intention to dismiss the appeal for delay,
    pursuant to Rule 61.13 (2.1). The notice gave her an extension to April 28,
    2021, to perfect the appeal and explained how to obtain a further extension if
    requested before that date. She was warned that the Registrar intended to
    dismiss the appeal if it was not perfected or the time was not otherwise
    extended.

[20]

On
    April 8, 2021, counsel emailed the appellant to advise her of the rules to
    perfect her appeal, and warning that unless perfected there would be a motion
    to dismiss the appeal for delay. On cross examination on the appellants
    affidavit on this motion, the respondents learned that the appellant had
    retained Mr. Kary as her fourth counsel in mid-April, close to the date of the
    email, although that was not communicated to the respondents until May 12,
    2021.

[21]

Counsel
    for Frederiksen wrote to the court on April 16, 2021, to ask for an opportunity
    to make submissions if the appellant asked for a further extension to perfect
    the appeal.

[22]

Nothing
    happened over the following weeks and on May 3, 2021, counsel for Frederiksen
    wrote to the court to ask if the matter had been dismissed for delay, copying
    the appellant on that correspondence.

[23]

On
    May 12, 2021, Mr. Kary wrote to advise that he was now acting for the appellant
    and asked for more time to perfect the appeal. Frederiksens counsel advised
    that the respondents would not consent.

[24]

Mr.
    Kary did not respond. On May 26, 2021, counsel for Frederiksen wrote to the
    court inquiring about the dismissal for delay, and followed up with another
    letter on July 1, 2021, with copies to both Mr. Kary and the appellant. There
    was no response indicating that they intended to pursue the appeal.

[25]

On
    July 21, 2021, the Registrar dismissed the appeal for delay because it had not
    been perfected. On August 18, 2021, the appellants counsel advised that he was
    bringing a motion to set aside the administrative dismissal. He still had not
    filed a notice confirming that he was now counsel of record. Counsel on both
    sides initially agreed to a motion date of October 1, 2021. Frederiksens
    counsel suggested a timetable for various steps to ensure that date could be
    met. The appellants counsel did not provide his motion materials until October
    8, 2021.

[26]

Cross
    examinations were initially set for October 20, 2021, however the appellants
    counsel indicated that he intended to file a further affidavit in reply which
    had not been contemplated by the initial timetable. Counsel for the Frederiksen
    asked that the affidavit be delivered by October 25, 2021, so that cross
    examinations could deal with all of the appellants evidence. Cross
    examinations were conducted on October 27, 2021.

[27]

I
    admit the fresh evidence proffered by the respondents consisting of
    correspondence between counsel to illustrate how events unfolded after cross examinations.
    On November 4, 2021, counsel for Frederiksen wrote to appellants counsel to
    ask if he had arranged for a date for argument of the motion. She provided him
    with transcripts of the cross examination the next day and extended the
    timetable to give the appellants counsel until November 12, 2021, to deliver
    his factum, still hoping that the motion could be heard before the end of the
    year.

[28]

On
    November 12, 2021, counsel for the appellant advised his factum was not yet
    complete and that he had not yet secured the motion date. He delivered his
    factum on November 15, 2021. On December 10, 2021, he advised that he would not
    be able to bring the motion before the end of the year.

[29]

Counsel
    for the appellant advised that he had obtained a date for the motion of January
    11, 2022, but that this was intended to be a placeholder date only and that it
    was not his intent to file the material with the Court any time in the
    immediate future. I am neither confirming or agreeing to the date at this time.
    He was hopeful that if another matter requiring Frederiksens counsels
    attention settled, the motion could still be argued in December 2021, but later
    indicated that personal issues on his part and his clients absence meant that
    the motion could not proceed in December.

[30]

On
    December 7, 2021, the respondents offered to amend the terms of the injunction
    to allow the appellant to communicate with her medical and mental health
    advisors, to respond to concerns about the breadth of the injunction. They
    asked the appellants counsel to provide a draft document to reflect their
    acceptance of his proposal to effect this by way of agreement, rather than an
    amendment to the judgment. No such document was ever forthcoming.

[31]

The
    appellant ultimately brought a motion returnable January 11, 2022, some 13
    months after the judgment.

The Grounds of Appeal

[32]

The appellant challenges the motion judges
    decision on many grounds. Her initial Notice of Appeal lists 38 paragraphs of
    grounds of appeal, many of them compounding multiple criticisms of the judgment
    and the motion judge. Her supplementary Notice of Appeal adds 15 more
    paragraphs alleging error.

[33]

While the appellants counsel indicates that he
    takes no issue with any of the factual findings made by the motion judge, he
    submits that she did not follow the procedure mandated by
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R.
    87

for fact finding on a summary judgment motion and that
    the judgment must be set aside on that ground. He submits that the motion judge
    necessarily evaluated credibility and weighed competing evidence.

[34]

He submits that the injunction granted
    restraining the appellant from speaking about Frederiksen was too broad and
    that such relief should only be granted in the clearest of cases. He submits
    that the motion judges reasons finding the appellant liable on the
    counterclaim were insufficient and failed to address the allegedly defamatory
    statements individually. He submits that the trial judge erred in finding the
    appellants statements about Frederiksen were made maliciously.

[35]

He submits that after judgment was given, but
    before the terms of the injunction were settled, the motion judge received
    unsolicited correspondence from counsel for Frederiksen enclosing a letter the
    appellant had sent to the Canadian Race Relations Foundation, enclosing her
    Notice of Appeal and complaining about the conduct of the motion judge. This,
    he says, could have affected the motion judges decision about the scope of the
    injunction. The appellant is critical of the motion judges liberal importation
    of the respondents factums, cutting and pasting substantial parts of them into
    her reasons. She criticizes the motion judge for casual comments about previous
    law firm relationship with one of the respondents counsel dating back to the
    year 2000 and other casual comments about her own retirement, golf, spouse and
    dinner plans. She alleges that the motion judge was biased, favoured the
    respondents, and pressured her counsel.

[36]

While the appellant did not plead defamation,
    and such a claim would have been barred by the very short limitation period in
    the
Libel and Slander Act
, R.S.O. 1990, c. L.12, the appellant submits
    that her claim was in essence a claim in defamation and that the motion judge
    should have analysed it on that basis.

[37]

The appellant submits that the motion judges
    reasons for dismissing the claim of wrongful appropriation of personality were
    inadequate and wrong.

[38]

The appellant has not particularized her grounds
    of appeal by filing a draft factum on this motion and has not suggested a date
    by which her appeal would be perfected.

Have the respondents been prejudiced by the
    appellants delay?

[39]

The appellant submits that the respondents have
    suffered no prejudice from delay on her part, which should be forgiven because
    she was self represented for the initial period following the judgment, and
    because the matter was complex. Since the injunction would remain in place
    pending the hearing of the appeal, the respondents would be protected from
    further defamatory statements.

[40]

In sum, the appellant submits that the justice
    of this case requires that the Registrars order dismissing the appeal be set
    aside and that she be allowed to perfect her appeal.

Analysis

[41]

The relevant factors on this motion to extend
    the time to perfect an appeal and to set aside a Registrars dismissal are not
    in dispute:
Issasi v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, at
    para. 4. They are:

1.

whether the appellant formed an intention to
    appeal within the relevant period;

2.

the length of the delay and explanation for the
    delay;

3.

any prejudice to the respondent;

4.

the merits of the appeal; and

5.

whether the justice of the case requires it.

[42]

While the appellant manifested an intention to
    appeal within 30 days of the judgment in issue, I am not persuaded that she has
    pursued the appeal with reasonable diligence. The initial notice from the
    Registrar should have prompted her to act with a sense of urgency, knowing that
    there was a risk her appeal would be dismissed for delay. The summary judgment
    motion was based on a written record. Assembly of an appeal book incorporating
    those documents would have been a mechanical exercise which could have been
    completed without delay but still has not been done. If the appellant proposed
    to place fresh evidence before the panel hearing the appeal about the conduct
    of the hearing, that should have been articulated in an affidavit accompanying
    a motion to admit fresh evidence. The appellant had no apparent difficulty
    articulating her complaints about the trial process in her first Notice of
    Appeal. She has not done so. Cross examination on any such affidavit would
    almost certainly be required and would lead to further delay even if she
    delivered an affidavit promptly.

[43]

The issues on the appeal are largely defined by
    the reasons for judgment, and I am not satisfied that there is a reasonable
    excuse for failure to deliver a factum. No draft factum has been delivered to
    identify the issues that would be argued on appeal.

[44]

We are now 13 months after the judgment and
    these steps have not been taken. Her approach to the appeal has been desultory.
    While the length of the delay is not amongst the worst seen in this court, it
    is important to recall the context of a summary judgment motion, which by its
    nature is intended to avoid a trial when one is not required and promote
    proportionate, economical and speedy access to justice.

The merits of the appeal

[45]

In oral argument, the appellants counsel agreed
    that the linchpin upon which all of the appellants asserted causes of action
    rested was her allegation that the respondents made false statements. When
    asked to point to any evidence of such false statements, counsel was unable to
    do so. This was a sufficient basis to dismiss her claims. The motion judges
    observations that the appellants claims were based on speculation were well
    founded. I agree with her observation that the claim advanced against Farber
    was frivolous and vexatious.

[46]

Here, the motion judge was not weighing the
    credibility of competing versions of events. Even taking the appellants case
    at its highest, there was a critical gap in her evidence. Under these
    circumstances, the motion judge did not err in concluding that this was an
    appropriate case for summary judgment.

[47]

The appellant argues that although not pleaded
    or argued, the motion judge should have treated this as an action for
    defamation. The motion judge would have erred had she done so. It would be even
    more inappropriate to permit these arguments to be advanced for the first time
    on appeal. Such a claim would likely be barred by the three-month limitation
    period under the
Libel and Slander Act
. Farber made his remarks in the
    broadcast on September 19, 2017. The amended statement of claim adding him as a
    defendant was issued on April 15, 2019. Farbers remarks were not on their face
    capable of a defamatory meaning. This is a question of law.:
Lysko v.
    Braley
(2006), 79 O.R. (3d) 721 (CA), at para. 116. Similarly, a claim in
    defamation against Frederiksen could not survive the absence of any evidence of
    defamatory statements.

[48]

The tort of appropriation of personality was
    recently discussed in
Wiseau Studio, LLC et al. v. Harper et al.
,
2020 ONSC 2504, an authority relied
    upon by both the appellant and the respondent Frederiksen. In general, the tort
    is established when a persons personality has been appropriated, amounting to
    an invasion of his right to exploit his personality by the use of his image, voice
    or otherwise with damage to the plaintiff:
Wiseau
, at para. 212. Frederiksens
    truthful statements about her own life experiences and her own choices about
    sexual and religious practices cannot amount to an invasion of the appellants
    right to exploit her own personality. There is no evidence that Frederiksen
    used the appellants name or likeness by way of commercial exploitation.

[49]

The claim for injurious falsehood fails in the
    absence of any evidence of false statements by either respondent and in the absence
    of evidence of malice on their part.

[50]

The claim for civil conspiracy fails in the
    absence of any evidence of an agreement. While the appellant argues on appeal
    that the unlawful means used to advance the conspiracy was defamation, this fails
    in the absence of evidence of defamatory statements.

[51]

The tort of unlawful interference with economic
    relations is established where a plaintiff suffers economic loss resulting from
    a defendants unlawful act against a third party, intended to target the
    plaintiff:
A.I. Enterprises Ltd. v. Bram Enterprises Ltd.
, 2014 SCC 12,
    [2014] 1 S.C.R. 177, at paras. 23, 43, 45. Here, there was no unlawful act nor
    a third party identified.

[52]

There is no basis to posit a novel duty of care
    that would support a claim in negligence. The appellant did not articulate in her
    pleadings or argument any standard of care, any breach of that standard or
    damages due to negligence, all of which are essential elements of a claim in
    negligence.

[53]

Nor do the appellants expressed concerns about
    the conduct of the trial judge rise to the level required to displace the
    presumption of judicial integrity and impartiality:
Cojocaru v. British
    Columbia Womens Hospital and Health Centre
, 2013 SCC 30, [2013] 2 S.C.R.
    357, at paras. 15-20. Frederiksens counsel did not breach Rule 1.09 by sending
    unsolicited communications to the motion judge between the date of the judgment
    and the date when the terms of the injunction were settled. The motion judge
    invited counsel to communicate with her about the terms of the injunction. The
    appellants actions in continuing to communicate with third parties about the
    respondents was relevant to the scope of the injunction.

The counterclaim

[54]

The evidence that the appellant made defamatory
    statements about Frederiksen was overwhelming. The motion judge described the
    breadth of circulation, the degree of repetition and the seriousness of the
    harm inflicted at pp. 131-133 of her reasons for decision:

[131] Ms. Moore submits that the defamatory
    statements meet all three of these elements. First, the defamatory statements
    were published by Ms. Hategan. The majority of the defamatory statements were
    posted online on a variety of social media platforms and websites accessible
    worldwide to thousands of viewers. In certain instances, the defamatory
    statements were emailed directly to third parties and, with respect to the
    case summary, was emailed to over 500 people. Secondly, Ms. Moore is the
    clear target of the defamatory statements. The Court of Appeal for Ontario has
    confirmed that defamation can be made out through statements that do not refer
    specifically to the plaintiff, in this case Ms. Moore, but follow previous
    statements in which Ms. Moore is specifically identified. In most cases
    the defamatory statements expressly identify Ms. Moore by name or photograph.
    In certain defamatory statements, she is not specifically named, but these
    statements follow previous statements in which she is specifically identified. A
    reasonable reader would understand that the publication is about
    Ms. Moore.

[
132
] Finally, Ms. Moore
    claims that there is no question that the defamatory statements would tend to
    lower Ms. Moores reputation in the eyes of a reasonable person. She submits
    that the defamatory statements are of the most serious nature, containing
    accusations of manifestly improper and immoral conduct, and contain all the
    essential hallmarks of expression that is not worthy of protection. In their
    plain and ordinary meaning, the defamatory statements would be understood to
    mean that Ms. Moore is a stalker; is a liar; is dangerous; is not to be
    trusted; has engaged in unethical and illegal behaviour; is homophobic; is
    lying about being bisexual; is a bigot; is delusional; suffers from mental
    illness; has engaged in fraud; has capitalized on white supremacy for personal
    gain; has colluded with individuals and organizations to attain financial
    gains; has appropriated Ms. Hategans experiences for her own personal and
    financial gain; trades sexual favours for success; and has committed perjury by
    lying in an affidavit filed with the court.

[
133
]
    I agree that the tort of defamation has been made out. The words complained of
    were published to at least one other person; the words complained of referred
    to Ms. Moore either directly or indirectly and the impugned words are
    defamatory, in the sense that they tend to lower Ms. [Moore]s reputation in
    the eyes of a reasonable person. [Footnotes omitted.]

[55]

I do not accept the argument that in this
    context, the motion judge was obliged to examine each statement made by the
    appellant in isolation.

[56]

The onus was on the appellant to establish any
    defence to the defamation. Given the gaps in the appellants evidence, I am not
    persuaded that the motion judge erred in rejecting the defences of justification
    and fair comment. The thrust of the appellants campaign was that Frederiksen
    was dishonestly stealing her identity. That was not established. Here, the mode,
    style, tenor, tone, language, broad dissemination over multiple platforms as
    well as the content of the communications scream of malice. The evidence
    proffered by the appellant did nothing to dispel that impression: see
Zhong
    v. Wu
, 2019 ONSC 7088, at para. 24.

[57]

The appellant also submits that the motion judge
    erred in granting an injunction restricting her ability to speak about
    Frederiksen. The terms of the injunction are as follows:

4. THIS COURT ORDERS that a permanent
    injunction be granted as against Hategan restraining Hategan from making,
    distributing, disseminating or in any way publishing any statement orally or in
    writing (including electronic) on any online platform or through any medium or
    to any third party whatsoever that: (a) refers to Frederiksen by name; or (b)
    refers to Frederiksen with sufficient detail or information to make it possible
    to reasonably identify Frederiksen even without referring to Frederiksens
    name;

5. THIS COURT ORDERS that Hategan remove from
    any online platform any statement that she has distributed, disseminated or in
    any way published about Frederiksen, including but not limited to all
    statements listed in the Amended Claim, and that all such statements be removed
    within seven days of this Order;

6. THIS COURT ORDERS that within seven days of
    this Order, Hategan contact all relevant entities and take all necessary steps
    to release and never again use all domain names listed at paragraph 44 of the
    Amended Claim and any other domain names which Hategan may have created that
    refer to Frederiksen or use Frederiksens name;

7. THIS COURT
    ORDERS that Hategan will refrain from ever purchasing, holding, using or
    controlling any internet domains, tags, handles, websites, profiles or other
    online identifiers containing Frederiksens name;

[58]

Given the appellants history of disregarding
    the interim order and the intentions she expressed, there was good reason to
    believe that absent an injunction she would continue her abusive campaign. Further,
    there was good reason to believe that any judgment for damages was unlikely to
    be recoverable. Given the breadth and persistence of the defamatory conduct, I
    am not persuaded that the injunction was overly broad: see
Rainy River
    (Town) v. Olsen
, 2017 ONCA 605, 6 C.P.C. (8th) 1, at para. 5. The appellant
    is not restrained from speaking about the many matters that are important to
    her, provided she does not refer to Frederiksen. This is a modest limitation on
    her freedom of speech, in the circumstances.

[59]

In her factum filed on this motion, the appellant
    does not challenge the motion judges conclusions that the appellant had
    appropriated Frederiksens identity by securing domain and web site names
    incorporating the latters name, nor that the appellant had publicized a
    confidential communication made to her by Frederiksen, except to say that the
    motion judge should not have made a global award of damages for all of the
    wrongs committed by the appellant. The overall award was reasonable. There is
    little likelihood it would be altered on appeal.

[60]

Overall, I conclude that there is little or no
    merit to the appeal.

Prejudice

[61]

It would be prejudicial to the respondents to
    incur further costs to resist an appeal with so little merit, particularly
    given the appellants assertions that she is immune from any judgment awarded
    against her: see
Bobel v. Humecka
,
2021 ONCA 757.

The overall justice of the case

[62]

I recognize the importance of the right of
    appeal. However, stepping back and looking at this matter as a whole, I am not
    persuaded that the Registrars order dismissing the action should be set aside
    nor that further time should be allowed to perfect the appeal. Considering the
    appellants failure to pursue the appeal with reasonable timeliness, the little
    merit to the appeal, the prejudice to the respondents, coupled with the evident
    malice with which the appellant has acted, to the detriment of the respondents,
    the motion is dismissed.

[63]

The respondent Frederiksen does not seek costs
    of this motion if it is dismissed. The respondent Farber sought costs fixed at
    $5,000.00. There is no reasons why costs should not follow the result of this
    motion, if demanded, and costs of the motion are awarded to Farber fixed at $5,000.00
    inclusive of taxes and disbursements.

G.
    Pardu J.A.

[1]

Elizabeth Moore Frederiksens legal name is Elizabeth
    Frederiksen, but she continues to use her original name, Elizabeth Moore, for
    her work.