COURT OF APPEAL FOR ONTARIO

CITATION:
Security
    National Insurance Company v. Markel Insurance Company, 2012
    ONCA 683

DATE: 20121011

DOCKET: C52873  C52924

Simmons, Armstrong and Pepall JJ.A.

BETWEEN                                                                                C52873

Security National Insurance Company

Applicant (Respondent)

and

Markel Insurance Company

Respondent (Appellant)

AND BETWEEN                                                                                C52924

Kingsway General
    Insurance Company

Applicant (Appellant)

and

Gore Mutual Insurance
    Company

Respondent (Respondent)

J. Claude Blouin, for the appellant Markel Insurance
    Company

Harry P. Brown, for the appellant Kingsway General
    Insurance Company

George Frank, for the respondent Security National
    Insurance Company

Mark Donaldson, for the respondent Gore Mutual Insurance
    Company

Heard: May 3, 2012

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated September 27, 2010, with reasons reported at
    2010 ONSC 5309, allowing an appeal from a decision of Arbitrator Lee Samis,
    dated November 20, 2009.

On appeal from the order of Justice Paul M. Perell, dated
    September 27, 2010, with reasons reported at 2010 ONSC 5308, 104 O.R. (3d) 61,
    dismissing an appeal from a decision of Arbitrator Kenneth J. Bialkowski, dated
    October 15, 2009.

Pepall
    J.A.:

INTRODUCTION

[1]

These
    two appeals involve priority disputes between insurers arising from the
    interpretation of s. 66(1) of the
Statutory Accident Benefits Schedule

Accidents on or after November 1, 1996
, O. Reg. 403/96 (SABS), enacted
    pursuant to the
Insurance Act
, R.S.O. 1990, c. I.8.

[2]

Section
    66(1) deems certain persons to be named insureds for the purposes of s. 268(2)
    of the
Insurance Act
. This affects the priority in which insurers are
    to pay statutory accident benefits under s. 268 of the Act.

[3]

Section
    66 is headed Company Automobiles and Rental Automobiles. Section 66(1) states:

(1) An individual who is living and ordinarily present in
    Ontario
shall be deemed
for the purpose of this Regulation
to
    be the named insured
under the policy insuring an automobile at
    the time of an accident if, at the time of the accident,

(a)
the
    insured automobile is being made available for the individuals regular use by
    a corporation, unincorporated association, partnership, sole proprietorship or
    other entity;
[Emphasis added.]

[4]

In cases
    with comparable facts, two arbitrators interpreted s. 66(1) differently and
    therefore reached different legal conclusions. Those awards were appealed to
    the Superior Court of Justice. Perell J. (the appeal judge) overturned one and
    upheld the other. The unsuccessful insurance companies now appeal to this
    court.  For the reasons that follow, I would dismiss the appeals.

BACKGROUND FACTS

(A)
Security
    National Insurance Company v. Markel Insurance Company

(a)

Contractual Relationship

[5]

Pinnacle
    Transport Ltd. (Pinnacle) operated a transport company. Markel Insurance
    Company (Markel) issued a motor vehicle liability policy to Pinnacle as named
    insured, which provided coverage for all vehicles owned, registered, leased and/or
    operated on behalf of the named insured.

[6]

Duncan
    McKerchar carried on business as a sole proprietorship with the business name
    The Tidy Scot. Mr. McKerchar bought a 1998 GMC truck from Pinnacle and paid
    for it in bi-weekly instalments.

[7]

Pinnacle
    and The Tidy Scot entered into an Independent Contractor Agreement, dated
    September 14, 2005 (the Agreement).   It provided that:

(i)  The Tidy Scot, as an independent contractor, would perform
    such transportation and ancillary services, including loading and unloading as
    requested by Pinnacle. The Agreement expressly provided that the relationship
    was not one of master/servant, principal/agent or employer/employee.

(ii) Pinnacle agreed to use the truck that was owned or leased
    by The Tidy Scot, but The Tidy Scot agreed to update the truck when and if required
    by Pinnacle and/or the Insurance Company. (The Insurance Company was not
    identified in the Agreement.)

(iii) During the term of the Agreement, The Tidy Scot would
    have full control and possession of the truck and assumed total responsibility
    for the operation, supervision and maintenance of the truck in a safe and
    proper working condition and in appearance satisfactory to Pinnacle. The Tidy
    Scot agreed to pay and to indemnify Pinnacle for all expenses arising out of
    the operation, maintenance and repair of the truck.

(iv) If required by Pinnacle, The Tidy Scot was to affix
    Pinnacles logo/identification to the truck.

(v) The Tidy Scot agreed to enrol in Pinnacles fleet public
    liability and property damage and cargo insurance coverage. The Tidy Scot was
    responsible for the deductibles and was to pay $145 per pay period for the
    insurance coverage.

(vi) Pinnacle would buy the licence plate for the truck but The
    Tidy Scot would pay for it.

(vii) The Tidy Scot was not to use the truck as a personal vehicle
    and was not to operate the truck for any other carrier or operator while it was
    being operated under Pinnacles licence and insurance.

(viii) The Tidy Scot received 75 per cent of the revenues
    generated by the truck each pay period and Pinnacle received 25 per cent.

[8]

The
    vehicle registration shows Duncan R. B. McKerchar/The Tidy Scot as the owner of
    the vehicle but Pinnacle is listed as the owner on the plate portion of the
    registration.

[9]

Consistent
    with the terms of the Agreement, the truck was never used by The Tidy Scot for
    anybody other than Pinnacle. Pinnacle issued a Professional Driver Manual
    setting out the rules and guidelines applicable to drivers.  Pinnacle also
    assigned pick-ups and deliveries. Pinnacles name and logo were affixed to the
    doors and the rear panel of the truck. The Tidy Scots $145 bi-weekly insurance
    payment amounted to approximately $3,770 annually, and Pinnacle deducted this
    amount from the cheques it issued to The Tidy Scot.  Similarly, Pinnacle
    recovered the entire cost of the plates from The Tidy Scot.

(b)

The Accident

[10]

On April 4, 2006, Mr.
    McKerchar was injured.  He attempted to jump on to his moving truck, which was
    being operated by another driver, fell under it and was run over. Mr. McKerchar
    was not a named insured nor a listed driver on the Markel policy of insurance
    issued to Pinnacle. He claimed statutory accident benefits from Security
    National Insurance Company (Security National), the insurer of his personal use
    vehicle. Security National paid the statutory accident benefits but instituted
    a claim that the obligation to pay these benefits rested with Markel as the
    insurer of Pinnacles fleet of vehicles.

(c)

Arbitration

[11]

The parties remitted
    the dispute to Arbitrator Lee Samis in accordance with the
Arbitration Act,
    1991,
S.O. 1991, c.17.  Among other things, he was required to consider
    whether Mr. McKerchar was deemed to be a named insured under the Markel policy.
    If the truck that was insured by Markel was being made available for Mr.
    McKerchars regular use at the time of the accident by a sole proprietorship or
    other entity, Mr. McKerchar would be deemed to be a named insured under the
    Markel policy.

[12]

In his award dated
    November 20, 2009, Arbitrator Samis found that there was no
de facto
difference between Mr. McKerchar and The Tidy Scot. In essence, they were
    one and the same entity. The Arbitrator also concluded that Mr. McKerchar was
    an occupant of the truck at the time of the accident.

[13]

The Arbitrator applied
    a line of authorities commencing with
Axa Insurance v. Markel Insurance
    Company of Canada
(Arbitrator Fidler, December 9, 1996), affd [1997] O.J.
    No. 2186 (Gen. Div.). He concluded that it would strain the wording of s. 66 to
    say that the truck was made available by Mr. McKerchar/The Tidy Scot to Mr. McKerchar.
    Nor could he see any evidence of a joint venture between Mr. McKerchar and
    Pinnacle or other entity for the purpose of s. 66(1). Therefore Mr. McKerchar
    was not a deemed named insured under the Markel policy.  In the result,
    Security National was required to pay the statutory accident benefits.

(B)
Kingsway
    General Insurance Company v. Gore Mutual Insurance
Company

[14]

Trowbridge Transport Ltd.
    (Trowbridge) operated a transport company. Kingsway General Insurance Company
    (Kingsway General) issued a fleet policy in favour of Trowbridge as named
    insured, which provided coverage for all vehicles owned and operated on behalf
    of the named insured.

[15]

William Higgs owned a
    freightliner tractor.  He worked as a self-employed owner/operator for
    Trowbridge. He had worked in this capacity since 2002 when he entered into the
    first of a series of owner/operator agreements between his sole proprietorship,
    Bill Higgs & Sons, and Trowbridge. In August 2007, Mr. Higgs
    registration of his business name expired.

[16]

Trowbridge entered
    into an Owner/Operator Agreement with Bill Higgs & Sons, dated January 1,
    2008 (the Agreement).  It provided that:

(i)    Bill Higgs & Sons, as an independent contractor, was
    to lease its freightliner tractor to Trowbridge and perform haulage services for
    Trowbridge. The Agreement expressly provided that the relationship created was
    that of an independent contractor and was not an employment relationship.

(ii)   Bill Higgs & Sons was obliged to equip its
    freightliner tractor in accordance with Trowbridges standards. It was
    responsible for maintenance of the vehicle and Trowbridge was responsible for
    maintenance of any trailers.

(iii) Trowbridge would obtain and maintain in force policies of
    insurance.  The policies would be purchased on behalf of Bill Higgs & Sons,
    which was responsible for payment of all deductibles.

(iv)  Trowbridge would pay for the licence plate on behalf of
    Bill Higgs & Sons.

(v)   Restrictions were placed on the use of alternate drivers and
    passengers were not permitted without Trowbridges approval.

[17]

Consistent with the
    terms of the Agreement, Mr. Higgs/Bill Higgs & Sons freightliner tractor
    was plated in the name of Trowbridge and Trowbridge obtained vehicle insurance
    from Kingsway General. The freightliner tractor was a scheduled vehicle on the
    Kingsway General policy and Mr. Higgs was a listed driver but not a named
    insured on the policy.

(
a
)     The Accident

[18]

In February 2008, Mr.
    Higgs was injured in an accident while he was driving the freightliner tractor.

[19]

At the time of the
    accident, Mr. Higgs was the named insured under the automobile insurance policy
    issued by Gore Mutual Insurance Company (Gore Mutual) for his 1996 Oldsmobile
    personal use automobile.

[20]

After the accident, Mr.
    Higgs applied to Kingsway General for statutory accident benefits. Kingsway
    General paid the accident benefits but served Gore Mutual with a notice of
    dispute between insurers. Kingsway General took the position that Gore Mutual
    should be the insurer liable to pay the accident benefits. Gore Mutual
    disagreed.

(
b
)     The Arbitration

[21]

The two insurance
    companies proceeded with an arbitration before Arbitrator Bialkowski. He held
    that Mr. Higgs was a deemed named insured under s. 66(1) of the SABS because
    the freightliner tractor was made available to Mr. Higgs by: (a) the sole
    proprietorship of Bill Higgs & Sons, or (b) another entity, namely, the
    joint venture comprised of Bill Higgs & Sons and Trowbridge under the
    Agreement. Arbitrator Bialkowski concluded that the legislative intent of s.
    66(1) was to place the freightliner tractor insurer in priority to the
    individuals personal use vehicle insurer in circumstances in which the
    accident involved the freightliner tractor in the course of the commercial
    arrangement between the parties. As such, he determined that Kingsway General,
    as the insurer of the freightliner tractor, was the priority insurer
    responsible to pay all accident benefits to Mr. Higgs.

APPEAL TO SUPERIOR COURT

[22]

The unsuccessful
    insurance companies in both arbitrations appealed the awards to the Superior
    Court of Justice.

[23]

The appeal judge dismissed
    the appeal from Arbitrator Bialkowski and allowed the appeal from Arbitrator
    Samis. The appeal judge declined to apply the line of cases beginning with
Axa
    Insurance v. Markel Insurance Co. of Canada
.  He held that an individual
    who is a sole proprietor may make an insured vehicle available to him or
    herself and be deemed to be a named insured, thereby satisfying the
    requirements of s. 66(1) of the SABS.

[24]

As such, the sole
    proprietorship of The Tidy Scot made the truck available to Mr. McKerchar and
    Mr. McKerchar was therefore deemed to be a named insured under the Markel policy.

[25]

Similarly, Mr. Higgs,
    as a sole proprietor, made the freightliner tractor available to himself and he
    was therefore deemed to be a named insured under the Kingsway General policy.

ISSUES

[26]

There are two key
    issues to be considered.

[27]

The first issue is
    whether an insured vehicle may be made available for an individuals regular use
    by that individuals sole proprietorship.

[28]

The second issue is
    whether the Agreements may be construed as creating joint ventures and, if so,
    does a joint venture constitute an other entity within the meaning of s. 66(1)
    of the SABS?

POSITIONS OF THE PARTIES

(a)     Sole Proprietorship

[29]

On the first issue, the
    insurers of the fleet vehicles, namely Markel and Kingsway General, advance
    similar arguments.

[30]

Firstly, they submit
    that there is extensive case law, including the 1996
Axa Insurance
decision,
that favours their position and
    the appeal judge should have shown deference to it. The appeal judges decision
    will have serious ramifications in the insurance industry since it represents a
    change in the law which will affect the insurance premiums charged by
    commercial insurers and the way in which the commercial and personal insurers
    interact in priority disputes between insurers.

[31]

Secondly, they argue
    that the appeal judge failed to take into account the commercial relationship
    of the parties to the insurance transactions and the Agreements.

[32]

Thirdly, they state
    that the appeal judge erred in his interpretation that an individual who was a
    sole proprietor may make an insured vehicle available to him or herself.

[33]

In submitting that
    the appeals should be dismissed, on the first issue the insurers of the
    personal use vehicles, Security National and Gore Mutual, argue  that the
    legislative intent was to place the risk on the insurer of the commercial
    vehicle. The commercial insurer should be responsible for accident benefits
    arising from a commercial operation.

[34]

Secondly, in their
    submission there is nothing in the wording of s. 66(1) of the SABS that
    requires that the individual be a different individual from the operator of the
    sole proprietorship.

[35]

Thirdly, they contend that
    a sole proprietorship is analogous to a single person corporation and a
    corporation may make a vehicle available to that individual under s. 66(1).

[36]

Lastly, they note that
    there are decisions that support the interpretation adopted by the appeal
    judge.

(b)     Joint Venture

[37]

On the second issue
    relating to the joint venture, Markel supports Arbitrator Samis conclusion
    that there was no joint venture and that the relationship between Pinnacle and
    The Tidy Scot consisted of two separate entities performing their respective obligations
    specifically without the creation of a new entity. Kingsway submits that the
    appeal judge erred in finding that a joint venture or commercial partnership
    existed between Mr. Higgs and Trowbridge and that there was no analysis by
    either the appeal judge or Arbitrator Bialkowski in reaching that conclusion.

[38]

In contrast, the
    personal use vehicle insurers, Security National and Gore Mutual, both support
    the interpretations applied by the appeal judge and Arbitrator Bialkowski, and
    also argue that there is case law that allows for a joint venture to constitute
    an other entity within the meaning of s. 66(1).

ANALYSIS

(a)     Context

[39]

Section 2 of the SABS defines
    an insured person very broadly. Among other things, an insured person is the
    named insured or a person who is involved in an accident involving the insured
    automobile and, in respect of accidents outside Ontario, the person who is an
    occupant of the insured automobile and who was a resident of Ontario at some
    point during the 60 days before the accident. The term named insured is not
    defined but is understood to refer to someone who is identified or named as an
    insured in an insurance policy.

[40]

In these appeals, both
    Mr. McKerchar and Mr. Higgs were named insureds in the policies for their personal
    use vehicles.  If by virtue of s. 66(1), they were deemed to be named insureds
    under the policies insuring the trucks, a priority dispute could arise.

[41]

Given  the broad definition
    of insured under the SABS, an individual may fall within the definition of
    insured on more than one insurance policy and, as such, have access to a number
    of insurers for payment of accident benefits. For this reason, s. 268 of the
Insurance
    Act
addresses the priority of liability for payment of statutory accident
    benefits. The relevant subsections of s. 268 state:

(2)     The following
    rules apply for determining who is liable to pay statutory accident benefits:

1.  In respect of an occupant of an automobile,

i.        the occupant has
    recourse against the insurer of an automobile in respect of which the occupant
    is an insured,

ii.       if recovery is
    unavailable  under subparagraph i, the occupant has recourse against the
    insurer of the automobile in which he or she was an occupant,

iii.       if recovery is
    unavailable under subparagraph i or ii, the occupant has recourse against the
    insurer of any other automobile involved in the incident from which the
    entitlement to statutory accident benefits arose,

iv.      if recovery is unavailable
    under subparagraph i, ii, or iii, the occupant has recourse against the Motor Vehicle
    Accident Claims Fund.

(5)     Despite
    subsection (4), if a person is a named insured under a contract evidenced by a
    motor vehicle liability policy or the person is the spouse or a dependant, as
    defined in the
Statutory Accident Benefits Schedule
, of a named
    insured, the person shall claim statutory accident benefits against the
    insurer, under that policy.

(5.2)  If
    there is more than one insurer against which a person may claim benefits under
    subsection (5) and the person was, at the time of the incident, an occupant of
    an automobile in respect of which the person is the named insured or the spouse
    or a dependant of the named insured, the person shall claim statutory accident
    benefits against the insurer of the automobile in which the person was an
    occupant.

[42]

Accordingly, if the
    claimant is, or is deemed to be, a named insured under more than one policy,
    the claimant shall receive benefits from the insurer of the vehicle in which
    the person was an occupant. That is, the insurer of a vehicle in which a named
    insured was an occupant at the time of the accident is the insurer highest in
    priority to pay accident benefits to that insured. As Mr. McKerchar and Mr.
    Higgs were found to be occupants, the insurer of the commercial vehicles would
    be required to pay the statutory accident benefits if the two men were deemed
    to be named insured on the fleet policies.

[43]

Arbitrator Samis
    described in some detail the historical and contextual background to the issue
    in dispute. In 1990, the Government of Ontario passed legislation that
    introduced the concept of no fault compensation for personal injury arising
    out of motor vehicle accidents. As he explained, since 1990, Ontario has
    operated in a compensation environment of restricted tort access, operating in
    parallel with elaborate no fault benefits: p. 2. Now injured persons claim
    their no fault benefits (statutory accident benefits), based on the contract
    between the insurer and the individual, or his or her family, and not
    necessarily on those arrangements governing the vehicle: p. 3.

[44]

He discussed the
    company car scenario and the purpose of s. 66, at pp. 3-4:

When the government changed the priority rules to bring
    claimants to a closer relationship with their own insurance company, by requiring
    payment of the statutory accident benefits by that company regardless of
    involvement of the insured vehicle, they had to recognize the existence of
    fairly common relationships that give rise to use of vehicles on a personal
    basis, but where the purchaser of the insurance is not the regular user of the
    vehicle. The traditional company car scenario involves situations where a
    business purchases a vehicle, and insurance for the vehicle, and then makes
    that vehicle available for the regular, personal, and frequent use of its
    employees or officers.  Similarly, the practice of renting and leasing vehicles
    might result in the creation of a contract of automobile insurance in the name
    of a vehicle owner but which is truly the personal vehicle of someone other
    than the registered owner.  Given the known frequency of these types of
    transactions, the legislature attempted to address how the new priority rules
    would apply to these situations. The result was regulation provisions, now
    embodied in section 66 of the SABS.
The apparent purpose of the regulation
    provision is to deem the person, for whom a vehicle is made available for
    regular use, to be a named insured.  This is clearly a recognition that in
    these types of transactions the regular user is in such a relationship with the
    vehicle and the vehicle insurer that that person should claim their benefits
    first from the insurer of the vehicle, rather than claim the benefits from some
    other insurance company
. [Emphasis added.]

[45]

He also discussed, at
    p. 4, the situation, like the ones here, where the owner of the vehicle is not
    the named insured under the insurance policy:

The[r]e are cases where the true owner of the vehicle is not
    the named insured under the policy of insurance but is an additional named
    insured, or listed driver, at best.  In these arrangements, it is common that
    the true owner of the vehicle has committed the vehicle to some commercial
    endeavour that includes obtaining insurance and other obligations in the
    business relationship. In these transactions, the policy of insurance is
    primarily a contractual relationship between the insurer and a non-owner. Given
    the commercial relationships in operation, the non-owner has some element of
    control, and some factual expectation of loss in the event of a liability
    claim. Accordingly, there is legitimate interest in procuring and maintaining
    adequate insurance with respect to the vehicle. The net result, however, is
    that a policy of insurance is effectively procured by someone who is not the
    owner of the vehicle.

[46]

The leading case
    addressing the situation described by Arbitrator Samis is
Axa Insurance.
The
    case involved facts similar to those in the cases before this court. The
    individual in
Axa Insurance
was an independent contractor who had agreed
    to work for a transport company pursuant to an owner/operator agreement whereby
    he transported loads using his own truck. Arbitrator Fidler determined that he
    was making his vehicle available for use by the transport company, not the
    other way around, and that the individual was not a deemed named insured. Accordingly,
    the injured truckers personal vehicle insurer was responsible for paying his statutory
    accident benefits.

[47]

In spite of his
    conclusion, Arbitrator Fidler was not very comfortable with the outcome,
    stating at p. 7:

Unfortunately the decision that I
    have come to does not result in a common sense solution to this problem. It
    troubles me that when a truck driver has an accident while operating his truck
    in the course of transporting goods pursuant to an owner/operator agreement,
    that he should have to go back to his own personal vehicle insurance to claim,
    when his personal vehicle had nothing to do with the accident.

[48]

Notwithstanding his
    concerns, Arbitrator Fidler felt bound by the wording of s. 91(4), the
    predecessor provision to s. 66(1).

[49]

On appeal and in brief
    oral reasons, Day J. of the Ontario Court of Justice (General Division) upheld
    his decision.

[50]

A number of decisions
    have followed
Axa Insurance.
These include:
Markel Insurance
    Company of Canada v. State Farm Mutual Automobile Insurance Company
(April
    12, 2000, Arbitrator Drew Hudson);
Axa Assurance Company v. ING Insurance
    Company of Canada
(May 25, 2006, Arbitrator Samis); and
Certas Direct
    Insurance Company v. Insurance Corporation of British Columbia
(June 2009,
    Arbitrator Shari Novick).

[51]

The question in these
    cases differed from that before this court. The arbitrators in those cases had asked
    the question that is not before us, namely,  whether the sole proprietor had
    made the vehicle available to the trucking company or whether the trucking
    company had made the vehicle available to the sole proprietor. They never asked
    whether for the purposes of s. 66(1), the sole proprietorship could make the
    vehicle available to the individual who was the sole proprietor.

[52]

In reaching a
    different conclusion from that reached by

Arbitrator Fidler in the
Axa
    Insurance
decision
,
Arbitrator Bialkowski determined that the legislative
    intent

behind s. 66(1) must have been to make the commercial insurer the
    insurer with

liability priority.

I, like Arbitrator Fidler am

troubled when a truck
    driver

has an accident while operating his truck in the course of
    transporting goods pursuant to an owner/operator agreement, that he would have
    to go to his own personal vehicle insurance to claim, when his personal

vehicle
    had nothing to do with the accident.  Insurance

premiums are collected
    on the basis of the particular risk of being insured. The risks of operating a
    heavy

commercial vehicle for distances far in excess of those normally
    driven by a private automobile should

be borne

by the insurer
    insuring the

commercial vehicle. Those additional risks would be unknown
    to the private

automobile insurer given the standard information
    contained in the application for insurance. I am fully satisfied that the
    legislative intent of Section 66(1)(a) is to have the commercial insurer
    responsible for accident benefit claims arising from the commercial operation.

[53]

Arbitrator Bialkowski
    reviewed many arbitral decisions in which injured persons were deemed to be
    named insureds:
TD General Insurance Co. v. Pilot Insurance Co.
(May 31,
    2007, Arbitrator Torrie);
Co-operators General Insurance Co. v. Cigna
    Insurance Company of Canada
(October 26, 1998, Arbitrator Robinson), affd
    (January 7 2000) 755/98 (Div. Ct.);
Co-operators Insurance Co. v. Oppenheim
(August 2002, Arbitrator Guy Jones);
Axa Insurance Co. v. Markel Insurance
    Co. of Canada
(December 18, 1998)
,
revd [1999] O.J. No. 5724 (Gen
    Div.), affd (2001), 140

O.A.C.

109
.

[54]

With this background
    in mind, I turn to s. 66(1)(a) itself. For the sake of convenience and given
    the importance of the wording, I repeat the provision:

(1) An individual who is living and ordinarily present in
    Ontario shall be deemed for the purpose of this Regulation to be the named
    insured under the policy insuring an automobile at the time of an accident if,
    at the time of the accident,

(a)
the insured automobile is being made available for the
    individuals regular use

by a
corporation, unincorporated association,
    partnership,
sole proprietorship
or other entity; [Emphasis added.]

[55]

Unlike the
Axa Insurance
case, the question before this court is whether s. 66(1)(a) permits an
    insured vehicle to be made available for an individuals regular use by the individuals
    sole proprietorship.

[56]

In my view, s.
    66(1)(a) permits an insured vehicle to be made available for an individuals
    regular use by the individuals sole proprietorship. This is evident from the
    language of the provision and its legislative purpose.

(b)     Language of s. 66(1)(a)

[57]

First I will consider
    the language of the section.

[58]

The appeal judge found
    no problem with the language and considered that its meaning was plain.  In
    contrast, Arbitrator Samis considered that the language directed one to look for
    a relationship between two parties and that the interpretation advanced by the
    personal use insurer would place a strain on the wording of the provision.

[59]

I start by observing
    that s. 66(1)(a) is not preclusive. There is nothing in subsection (a) that precludes
    a sole proprietorship from making a vehicle available to the sole proprietor.

[60]

The first descriptive entity
    included on the list is a corporation. Certainly there is nothing in s.
    66(1)(a) that would preclude a one person company from making a vehicle
    available to him or herself. The second entity on the list, an unincorporated
    association, does not have a separate legal status divorced from its members
    nor does a partnership but under the subsection, both entities are permitted to
    make vehicles available to their members.

[61]

A sole proprietorship
    is the entity in issue in this appeal. J. Anthony VanDuzer describes the nature
    of a sole proprietorship in his book
The Law of Partnerships &
    Corporations
3d ed. (Toronto: Irwin Law, 2009), at p. 7. It is the
    simplest form of business organization. It comes into existence whenever an
    individual starts to carry on business for her own account without taking the
    steps necessary to use some other form of organization, such as a
    corporation.  From a legal and practical standpoint, there is no separation
    between the sole proprietorship business organization and the person who is the
    sole proprietor. As a result, all benefits from the business accrue to the
    sole proprietor and all obligations of the business are his responsibility.

[62]

As with the other
    organizations, I see no legitimate reason why a sole proprietorship should not
    be permitted to make a vehicle available to the sole proprietor. The subsection
    contemplates that an individual operating a sole proprietorship can make a
    vehicle available to him or herself. Put differently, there is no requirement
    that the two parties be divorced from one another. In my view, on a plain
    reading of s. 66(1)(a), this is clear.

(c)     Legislative
    Intent

[63]

This brings me to a
    discussion of the legislative intent.  I agree with Arbitrator Bialkowski that
    the intent of the section is that the commercial insurer should be responsible
    for the accident benefits arising from the operation of the commercial vehicle.

[64]

The substance of the
    subsection is consistent with that conclusion.  The section is headed Company
    Automobiles and Rental Automobiles.  While not determinative, the heading does
    provide some context.  As with a company or rental automobile, if a vehicle is
    made available for regular use by any of the listed entities, the risk is to be
    borne by the insurer of that vehicle. This, in my view, makes sense and should
    be so in spite of any past practice in the insurance industry.

[65]

I therefore conclude
    that both the language and the evident intent of s. 66(1) permits an
    insured vehicle to be made available for an individuals regular use by the
    individuals sole proprietorship.

(d)

Application to these Cases

[66]

In the two cases
    before me, both drivers operated as sole proprietors. Mr. McKerchar operated as
    a sole proprietorship using the name The Tidy Scot, and entered into the
    Agreement with Pinnacle under that business name. Likewise, Mr. Higgs operated
    as a sole proprietorship using the business name Bill Higgs & Sons and
    entered into the Agreement with Trowbridge under that business name. While Mr.
    Higgs business name had expired several months before the accident, he nonetheless
    continued to carry on his business as a sole proprietorship. A sole proprietor
    may operate under his or her own name or may operate under a registered
    business name: VanDuzer, at p. 9.
[1]

[67]

Accordingly, in my
    view, it can be said that the sole proprietorships in both cases regularly made
    the insured vehicles available to Mr. Higgs and Mr. McKerchar. There was nothing
    in the parties commercial relationship with the trucking companies that
    precluded such a result.  In conclusion, both gentlemen are deemed insureds for
    the purposes of s. 66(1). The insurers of the commercial vehicles, Markel and
    Kingsway General, are therefore responsible for payment of their accident
    benefits.

(e)

Joint Venture

[68]

While I agree with the
    appeal judge that a joint venture for business purposes may be an other
    entity for the purposes of s. 66(1), given my conclusion on the first issue, it
    is unnecessary to address the joint venture issue and I decline to do so.

CONCLUSION

[69]

For the reasons given,
    I would dismiss the appeals. I would award Gore Mutual its costs of the appeal
    fixed, as agreed, in the amount of $7,500 inclusive of disbursements and
    applicable taxes. Similarly, I would award Security National the same amount in
    costs.

Released: October 11, 2012 JS

S.E.
    Pepall J.A.

I
    agree Janet Simmons J.A.

I
    agree Robert P. Armstrong J.A.

[1]
While registration of a business is required if a sole proprietor
    is using a name other than his or her own, the question of whether Mr. Higgs
    ought to have been registered at the relevant time is not before this court:
    see
Business Names Act
, R.S.O. 1990, c. B.1
7
,
    s. 2(2).


COURT OF APPEAL FOR ONTARIO

CITATION:
Selznick v. Selznick, 2012
    ONCA 686

DATE: 20121012

DOCKET: C55060

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Mirilyn Rachel Selznick (now Mirilyn Rachel
    Sharp)

Applicant/Appellant
    in Appeal

and

Stephen Selznick

Respondent/Respondent in Appeal

Stephen Grant, for the appellant

Diane E. Klukach, for the respondent

Heard: September 19 and 20, 2012

On appeal from the order of Justice Susan E. Greer, of
    the Superior Court of Justice, dated November 9, 2011 and January 21, 2012.

ENDORSEMENT

Background

[1]

The parties, both of whom are lawyers, were married in 1992, separated
    in 2001, and divorced in 2005. They have three children, aged 18, 16, and 14.

[2]

The appellant brought a motion for child support to be paid by the
    respondent, her former husband, commencing in January 2011. The motion was
    heard on October 10, 2011. On November 9, 2011, the motion judge released an
    endorsement that was supplemented by additional endorsements dated January 21,
    2012 and July 19, 2012. The order that was the subject matter of these
    endorsements bore two dates: November 9, 2011 and January 21, 2012 and was
    signed on July 26, 2012 (the Order). It addressed monthly child support, s. 7
    expenses under the
Federal Child Support Guidelines
, SOR/97-175

(the
    Guidelines), enforcement by the Family Responsibility Office (FRO), and
    income disclosure.

[3]

The appellant appeals from this Order.

[4]

The record before this court included eight facta and ten compendia. Given
    the state of the record, counsel were asked at the commencement of court to
    identify the issues to be argued on this appeal. Counsel identified the
    following five issues: i) the calculation of the appellants income for the
    purpose of determining the appellants share of the childrens s. 7 expenses
    under the Guidelines; ii) the nanny expense; iii) the Cornell University
    expense; iv) enforcement of the Order by the FRO; and v) the respondents motion
    to file fresh evidence.

Standard of Review

[5]

The Supreme Court of Canada addressed the standard of review for appeals
    of support orders in
Hickey v. Hickey
,
[1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577. As stated in that decision, at para.
    11, appeal courts should not overturn support orders unless the reasons
    disclose an error in principle, a significant misapprehension of the evidence,
    or unless the award is clearly wrong.

Analysis

(i) Appellants Income

[6]

The appellant submits that the motion judge erred in determining her
    2011 income by averaging the appellants income from the years 2008, 2009 and
    2010, when the appellants income was higher than her projected 2011 income.
    The appellant further argues that the motion judge erred in attributing to her $60,000
    in income for the purpose of determining the appellants share of the childrens
    s. 7 expenses under the Guidelines.

[7]

The motion judge noted that the appellants income fluctuated. She
    arrived at the appellants 2011 income figure by averaging the appellants
    income for the three preceding years to reach a figure of $210,615. To this
    figure, she added $60,000 to reach $270,615 because she found that the
    appellant had deliberately chosen to remain home and to only work on a
    part-time basis.

[8]

In the evidence before the motion judge, the respondent contended that
    the appellant worked part-time and could easily earn much more. The appellant
    contended that she worked full-time, albeit from home. No evidence was led on the
    hours docketed by the appellant at her law firm, nor was there any independent confirmation
    of the appellants status at her firm. It was open to the motion judge to
    prefer the respondents evidence. As of October 5, 2011, the date of the
    appellants sworn financial statement, the appellant had a net worth of
    $5,896,137.40, of which $3,551,670.40 represented savings in bank accounts.

[9]

The motion judge did not misapprehend the evidence before her, nor its
    effect. Having regard to the appellants income as a lawyer of significant
    experience at a mid-sized Toronto law firm, the motion judge made no error in
    principle in averaging the appellant's yearly income and attributing to her
    $60,000 in additional partnership income for the purpose of calculating the s.
    7 expenses. We therefore do not give effect to this ground of appeal.

(ii) Nanny Expense

[10]

Secondly,
    the appellant submits that the motion judge erred in denying the cost of the
    nanny as a s. 7 expense.

[11]

Section
    7 of the Guidelines provides the motion judge with discretion to order the payment
    of certain expenses by a party, taking into account the necessity of the
    expense in relation to the childrens best interests and the reasonableness of
    the expense in relation to the means of the spouses and to the familys
    spending pattern prior to the separation.

[12]

It
    was open to the motion judge to exercise her discretion and refuse to treat the
    cost of the nanny as a s. 7 expense. She noted that the children were all
    teenagers. They attended school and had after-school activities. The nanny did
    not drive the children to those activities. The appellant continued to work
    from home and was available to drive the children to activities if necessary. We
    do not give effect to this ground of appeal.

(iii) Cornell University Expenses

[13]

The
    appellant submits that the motion judge erred in her treatment of the eldest
    childs university expenses. We disagree.

[14]

When
    the motion was heard, the eldest child was still in high school and both the
    university she would attend and its location were unknown. As is clear from the
    motion judges January 21, 2012 endorsement, the parties were to agree on the
    university and related expenses, failing which a motion was to be brought. In
    June 2012, when the parties re-attended before the motion judge, the appellant
    estimated the costs for one year at Cornell University to be US$64,145. No
    agreement between the parties was reached and no motion was ever brought.
    Accordingly, there was an inadequate evidentiary record before the motion judge
    and she was not prepared to deal with the eldest childs s. 7 expenses past
    June 30, 2012. This was reasonable in the circumstances. Either of the parties
    may still bring a motion to address the eldest childs university expenses. In
    the meantime, the respondent continues to pay child support for the eldest
    child based on the Guidelines. We do not give effect to this ground of appeal.

(iv) Enforcement by the FRO

[15]

The
    appellant submits that the motion judge erred by permitting the respondent to
    pay his share of the s. 7 expenses directly to third parties or to the
    appellant rather than to the FRO.

[16]

In
    her July 19, 2012 endorsement, the motion judge stated that the s. 7 expenses
    were no longer to be subject to collection by the FRO. The Order contemplated
    that the monthly Guideline child support payments would be paid to the FRO but
    the s. 7 expenses would be paid directly to the third parties or to the
    appellant. It is evident from the motion judges July 19, 2012 endorsement that
    this was done because of a need for tax and other receipts and because the
    amounts were in a state of flux. Section 13(e) of the Guidelines provides that
    where the amount of the s. 7 expense cannot be determined, the proportion to be
    paid by the parties is to be set out in the order. This was done here. We see
    no basis on which to give effect to this ground of appeal.

(v) Respondents Motion to File Fresh Evidence

[17]

The
    respondent brought a motion to file fresh evidence. He abandoned his
    cross-appeal and therefore, apart from the s. 7 claims, his 2011 income was not
    a live issue before this court. The evidence he proposed to file was either
    already before us, was irrelevant and unnecessary, or its absence from the
    record reflected a lack of due diligence.

Disposition

[18]

For
    the reasons given, the appeal is dismissed as is the respondents motion to
    file fresh evidence.

[19]

The
    parties are to make written costs submissions of no more than 3 pages in length.

Doherty
    J.A.

Alexandra Hoy
    J.A.

S.E. Pepall
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sincies Chiementin
    S.p.A. v. King, 2012 ONCA 653

DATE: 20121001

DOCKET: C53076

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Mario Venezia in his capacity as trustee in
    bankruptcy of Sincies Chiementin S.p.A.

Plaintiff (Respondent)

and

Gregory P. King

Defendant (Appellant)

Sean Dewart and Tim Gleason, for the appellant

Randy Pepper, for the respondent

Heard: September 24, 2012

On appeal from the judgment of Justice W. Larry Whalen of
    the Superior Court of Justice, dated November 30, 2010.

By
    the Court:

[1]

The appellant, Gregory King, a Toronto lawyer who specializes in
    international business law, appeals the judgment of Whalen J. of the Superior Court
    of Justice dated November 20, 2010, granting summary judgment to recognize and
    enforce a judgment of the Civil Court of Rome dated August 25, 2001.

[2]

The Italian court held that King was liable to the Italian corporation
    Sincies, essentially in tort, for $600,000 in damages plus costs, for his
    professional conduct as a lawyer in a failed joint venture.

[3]

In a comprehensive judgment (208 paragraphs), the motion judge held that
    there was a real and substantial connection between the subject matter of the
    action and the Italian court, even though King did not attorn to its
    jurisdiction, and that the decision of the Italian court deserved to be
    recognized and enforced.

[4]

In reaching this decision, the motion judge relied heavily on the
    decisions of the Supreme Court of Canada in
Beals v. Saldanha
, [2003]
    S.C.R. 416, and this court in
Muscutt v. Courcelles
(2002), 60 O.R.
    (3d) 641, and
Charron Estate v. Village Resorts Ltd.
, 2010 ONCA 84.

[5]

This appeal was originally scheduled to be heard on May 30, 2011, but
    was adjourned pending the decision of the Supreme Court of Canada in
Charron
    Estate
and a companion case. The Supreme Court of Canada rendered its
    decision on April 18, 2012 under the style
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17.

[6]

The appellants principal submission is that the motion judge erred by
    finding that there was a real and substantial connection between Kings
    alleged misconduct and Italy.

[7]

We agree that the motion judges analysis was anchored in this courts
    decisions in
Muscutt
and
Charron Estate
and that he did not
    have the benefit of the Supreme Court of Canadas decision in
Van Breda
.
    However, as the appellant acknowledges in his factum,
Van Breda
simplified and clarified the law. Although parts of the eight-pronged test
    from
Muscutt
were jettisoned, there is really very little difference
    between this courts analysis in
Charron Estate
and the Supreme Court
    of Canadas decision in
Van Breda
with respect to the core factors to
    be considered.

[8]

In
Van Breda
, Lebel J. fashioned a list of four specific
    connecting factors that lead to a presumption that a court has jurisdiction.
    The third factor is that a tort was committed in the courts territorial
    jurisdiction.

[9]

In this case, the Civil Court of Rome carefully considered, on its own
    accord because King did not attorn to the jurisdiction, the question of
whether a tort had been committed in Italy. The court
    concluded that, with regard to extra-contractual action (i.e. the tort
    claim), the tort was committed, and damage resulted, in Italy.

[10]

In
    our view, a Canadian court should be very cautious in its scrutiny of the
    decision of a foreign court in determining whether a tort has been committed in
    its jurisdiction. In short, the Civil Court of Rome is better placed than us to
    determine its own laws.

[11]

Once
    it is determined that a tort has been committed in the foreign jurisdiction, it
    brings the case within the third connecting factor from
Van Breda
, and
    a real and substantial connection is presumptively established.

[12]

Here,
    the motion judge properly concluded that since there was a real and substantial
    connection between the subject matter of the action and the Italian court, the
    Italian judgment should be recognized and enforced in Ontario. Under
Beals
,
    at paras. 28-29, the principles of comity and reciprocity inform a Canadian
    judges determination of whether a foreign judgment should be enforced. The
    motion judge, at para. 189, was keenly aware of this:

Were the situation reversed, so that Sincies was a Canadian
    corporation with head offices in Ontario and all of the other facts discussed
    applying, and King as an Italian lawyer who assumed the same role he had in
    fact assumed in our case, I have no doubt that an Ontario court would have
    readily assumed jurisdiction I see no reason why principles of comity and
    reciprocity should not be recognized in the circumstances of this particular
    case and foreign judgment.

[13]

Further,
    the motion judge was cognizant of the principles of order and fairness that
    underlie the modern concept of private international law, and concluded, at
    para. 186:

It is not unfair that a professional who operates on a
    worldwide basis should be subject to foreign jurisdictions. [King] voluntarily
    entered into a solicitor/client relationship with a company he knew to be based
    in Italy, to whom he expected to give advice and from which he knew he would
    receive instructions, whatever dealings and transactions might occur as a
    result and wherever they might occur.

We agree with this analysis. The appellant knew that
    his advice would be received and acted on in Italy, as the evidence indicates
    it was. He is a sophisticated party who should have expected to be called to
    account in Italy.

[14]

The
    appellant also contends that the motion judge erred in concluding that there
    was no denial of natural justice in the manner in which the Italian court
    proceedings unfolded. The basis for this submission appears to be that the
    appellant was not put on notice that criminal allegations of fraud were being
    made against him. He alleges that, because in Canada fraud has to be pleaded
    specifically, the failure to do so specifically in Italy was a denial of
    natural justice.

[15]

We
    do not accept this submission. In our view, the motion judge was correct to
    conclude that the respondents actions did not deny the appellant the
    opportunity to participate in the Italian litigation had he wished to do so.
    While the word fraud was not used in the writ, the material facts going to the
    appellants alleged conduct were clear in the writ. Further, the correspondence
    from King to the Italian Trustee in Bankruptcy that the appellant contends
    ought to have been submitted to the Italian court by the respondent contains
    the appellants response to the fraud allegations, demonstrating full well that
    he knew what allegations he was facing. The reality is that the Italian court
    proceeding was not an
ex parte
hearing; it proceeded as a default
    proceeding only because the appellant did not choose to appear in his own
    defence.

[16]

Finally,
    the appellant submits that the motion judge erred in concluding that there was
    no fraud perpetrated by the respondent (by failing to disclose relevant
    information) on the Italian court.

[17]

We
    do not accept this submission. After a careful and extended analysis, the
    motion judge concluded that the Trustee and Giardina [the Trustees counsel]
    did not mislead the court. Nor can I conclude that either of the Trustee or
    Giardina abused their positions as officers of the court. We agree with this
    conclusion.

[18]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at $20,000, inclusive of disbursements and applicable taxes.

Released: October 1, 2012 (J.C.M.)

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sochnyeva v. Ontario, 2012
    ONCA 694

DATE: 20121016

DOCKET: C55238

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Hanna Sochnyeva

Plaintiff (Appellant)

and

Her Majesty the Queen in right of Ontario and
    Seneca College

Defendants (Respondents)

Hanna Sochnyeva, in person

Erin Rizok, for the respondent Her Majesty the Queen in
    right of Ontario

Anna Husa, for the respondent Seneca College

Heard:  October 10, 2012

On appeal from the orders of Justice Suzanne M. Stevenson
    of the Superior Court of Justice, dated February 16, 2012.

ENDORSEMENT

[1]

The appellant appeals from February 16, 2012 orders of the motions judge
    granting the respondents motions for summary judgment and dismissing the
    appellants claim.

[2]

In her statement of claim, the appellant asserted that her student aid
    funding had been wrongfully denied by the respondent Crown representing the
    Ministry of Training, Colleges and Universities and that the respondent, Seneca
    College, improperly gave the appellant a failing grade in the required subject
    of Practical Nursing Consolidation. The appellant claimed that the actions of
    both respondents deprived her of her ability to complete her education and
    obtain her nursing degree.

[3]

The motions judge concluded on the basis of the evidence before her that
    student aid funding was discretionary. As such, the appellant had no absolute
    entitlement to such aid. The restriction on funding to the appellant arose
    because she applied for and received funds to which she was not entitled in and
    for the same academic year under both the Ontario Student Assistance Program
    (OSAP) and the Ontario Student Bursary Program (OSBP).

[4]

Both application forms contained a prohibition on receiving OSAP and
    OSBP funding for the same academic year. As part of the OSBP application form,
    the appellant had agreed to promptly repay any funds she received in excess of
    her entitlement.  Despite numerous requests to do so, the appellant refused to
    refund the over-payment. The appellant has no claim for wrongful denial of student
    aid in these circumstances.

[5]

The motions judge made no finding with respect to the alteration of the Certificate
    of Loan and it was unnecessary for her to do so given her conclusion.

[6]

The motions judge also concluded on the basis of the evidence before her
    that the appellant had been unable to achieve a passing grade in the Practical
    Nursing Consolidation course despite being given numerous opportunities to
    rewrite the examination. There was ample evidence to support this finding.

[7]

The appellant raises various other grounds before us such as bias and
    repayment of the overpayment but these arguments were not advanced before the
    motion judge.

[8]

The motions judge applied the correct legal test as set forth in
Combined
    Air Mechanical Services Inc. v. Flesch
,  2011 ONCA 764 and determined that
    the appellants claim disclosed no genuine issue requiring a trial.

[9]

We see no error by the motions judge in the granting of the summary
    judgment motions and the dismissal of the appellants claim or her reasoning
    for doing so.

[10]

As
    for the fresh evidence, the appellant has not met the requisite test for
    admission. The absence of the fresh evidence from the record before the motions
    judge reflects a lack of due diligence.  Furthermore, the fresh evidence would
    not have affected the result in any event.

[11]

The
    appeal is dismissed. The respondents are each entitled to their costs of the
    appeal, fixed in the amount of $1000 each, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Soden v. Soden, 2012
    ONCA 678

DATE: 20121005

DOCKET: C55084

Laskin, Blair and Epstein JJ.A.

BETWEEN

Gregory Soden

Plaintiff (Respondent)

and

Antonie Soden and Kerry Holmes

Defendants (Appellants)

Kevin D. Zaldin, for the appellants

Christopher I.R Morrison, for the respondent

Heard: October 4, 2012

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated January 31, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The order sought to be appealed is interlocutory.  No appeal lies to
    this court.

[2]

Accordingly, the appeal is quashed for lack of jurisdiction.  The
    respondent is entitled to his costs, fixed at $3,000, inclusive of
    disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Toronto-Dominion
    Bank v. Piro, 2012 ONCA 666

DATE: 20121002

DOCKET: C55334

Sharpe, Gillese and Watt JJ.A.

BETWEEN

The Toronto Dominion Bank

Plaintiff (Respondent)

and

Angelo Piro and 1316679 Ontario Ltd.

Defendant (Appellant)

Angelo Piro, in person

David Lipkus, for the respondent

Heard: October 1, 2012

On appeal from the order of Justice Wailan Low of the Superior
    Court of Justice, dated March 26, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the part of the motion judge in denying an
    adjournment and granting summary judgment.  The appellant had filed no material
    in defence of the claim despite the timetable ordered previously by the motion
    judge. There is still nothing in this record to indicate that there is any defence
    to the respondents claim. The appellant is simply asking for time to rearrange
    his affairs. This is not a remedy open to us. Appeal dismissed. Costs to the
    respondent fixed at $4,212.97 inclusive of disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Weslock v. Sexton, 2012
    ONCA 733

DATE: 20121026

DOCKET: C55181

Rosenberg, Gillese and Tulloch JJ.A.

BETWEEN

Sheri-Lee Weslock

Plaintiff/Respondent

and

Neil Sexton

Defendant/Appellant

Neil Sexton, acting in person

Kenneth W. Watts, for the respondent

Heard: October 26, 2012

On appeal from the order of Justice C. William Hourigan
    of the Superior Court of Justice, dated February 7, 2012.

APPEAL BOOK ENDORSEMENT

[1]

There is no merit to this appeal. While the appellants materials were originally
    not before the motions judge, the appellant had an opportunity to present his
    argument. The motions judge understood the facts and the arguments. There was
    no denial of natural justice.

[2]

The motions judge accepted that the fax waiving conditions was sent at
    the time the appellant said. The subsequent conduct relied upon by the
    appellant could not affect the meaning of the term used in the appellants
    agreement of purchase and sale. The motions judge was correct to find as a
    matter of law that the time for waiving the condition expired at midnight not
    4:00 p.m.

[3]

Accordingly, the appeal is dismissed with costs fixed at $4,000.00
    inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Yar v. Yar, 2012 ONCA
    658

DATE: 20121001

DOCKET: C53292

Goudge, Simmons and Gillese JJ.A.

BETWEEN

Qasim Abraham Yar

Applicant (Appellant)

and

Roya Fatemeh Yar

Respondent (Respondent)

Aaron Franks and Michael Zalev, for the appellant

Tom Bastedo and Samantha Chowsky, for the respondent

Heard and released orally: September 21, 2012

On appeal from the order of Justice William Festeryga of
    the Superior Court of Justice, dated January 14, 2011.

ENDORSEMENT

[1]

We are all of the view that the reasons for judgment offered to support
    the orders challenged by the parties are, regrettably, woefully inadequate. In
    many cases we cannot discern any findings of fact that would be necessary to
    found such orders, nor can we see the path followed by the trial judge to reach
    his conclusions. We therefore agree with the parties that paras. 5, 9, 10, 11,
    12, 15, 16, 17, 18 and 19 must be set aside.

[2]

We agree with the appellant that the same is true of para. 12. Paragraph
    13 is similarly deficient. As a result para. 14 must fall as well, based as it
    is on imputed income. As a consequence, the costs order below obviously cannot
    be sustained and will be set aside.

[3]

The respondent contends that for paras. 12, 13, 17 and 18, this court
    should craft a remedy. However, the parties submit, and we agree, that all
    other issues we have dealt with should receive a new trial. In our view, there
    is a significant interrelationship between all the issues left for disposition
    once these orders are set aside. The interests of justice therefore are best
    served by returning all issues to a new trial. Costs of the first trial will be
    for the new trial judge.

[4]

We direct that these issues all be returned for a new trial, and we
    order that the new trial be expedited. Pending that, the interim order will
    remain in effect, subject to any variations that may properly be made.

[5]

We recognize the burdens placed on the parties by the defects in this
    trial. That is very unfortunate. We hope and expect that justice will be
    properly served by the new trial.

[6]

In our view, the means of both parties have been significantly depleted
    over the course of this litigation. We hope that this consideration will be a
    significant guide if this matter goes forward. In the circumstances, this is
    not a case for costs, and none are ordered.

S.T. Goudge
    J.A.

Janet Simmons J.A.

E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
York
    Region Condominium Corporation No. 890 v. RPS Resource Property
    Services Ltd., 2012 ONCA 670

DATE: 20121003

DOCKET: C53346

Sharpe, Simmons and MacFarland JJ.A.

BETWEEN

York Region Condominium Corporation No. 890

Plaintiff (Appellant)

and

RPS Resource Property Services Ltd., William
    Garland, Karyn Garland, Kandiah Sivaneswaran, Brett Matus, Eric Schraibman,
    Richard Taylor, James Wilson, W.H. Bosley & Co. Ltd. and Royal Bank of
    Canada

Defendants (Respondent in Appeal)

Peter J. Osborne and Naomi D. Loewith, for the appellant

Catherine Francis, for the respondent Royal Bank of
    Canada

Heard and released orally: September 24, 2012

On appeal from the judgment of Justice L.A. Pattillo of
    the Superior Court of Justice, dated January 19, 2011.

ENDORSEMENT

[1]

The appellant appeals the dismissal of its claim against the Royal Bank
    of Canada (RBC).

[2]

The appellant retained the services of the defendant RPS Resource
    Property Services Ltd. (RPS) as property manager. RPS maintained a bank
    account with RBC to hold trust funds belonging to the appellant. RPS maintained
    a number of other similar accounts and, as the trial judge found, RPS
    improperly moved funds from account to account in breach of its trust
    obligations. As a result, the appellant suffered a loss of over $370,000.

[3]

The trial judge awarded the appellant judgment against RPS and its
    principal Garland but dismissed the claim against RBC. The claim against RBC was
    pleaded as breach of contract, conversion and negligence although the
    allegations of negligence were sketchy.  At trial the appellant was allowed to
    advance a claim for breach of trust (knowing receipt and knowing assistance). The
    trial judge gave comprehensive reasons dismissing the claim against RBC. He
    briefly mentioned that the claim included negligence but did not otherwise deal
    with negligence as a discrete cause of action. The claim for breach of contract
    was more or less abandoned at trial.

[4]

On this appeal, the appellant invites us to set aside the dismissal of
    its claim against RBC and to award damages in negligence.

[5]

The threshold issue is whether the appellant advanced a claim in
    negligence at trial.

[6]

We are not persuaded that negligence was advanced at trial as a distinct
    claim. We reach that conclusion for the following reasons.

[7]

First, in his otherwise very thorough and comprehensive reasons, the
    trial judge did not deal with negligence. In our view, it is virtually certain
    that the reason the trial judge did not deal with negligence because he did not
    consider the appellant to have relied on that cause of action at the trial.

[8]

Second, the trial record strongly suggests that negligence was not
    advanced as a distinct claim. There is no indication that the appellant dealt
    with the very contentious issue of whether a bank owes a duty of care to a
    third party. The plaintiff led no evidence as to the standard of care that
    would apply to a bank should there be such a duty of care.  It is impossible
    for us to understand how a claim in negligence could be made out in the absence
    of evidence on these issues.

[9]

We are not persuaded by the material filed as fresh evidence to
    supplement the trial record demonstrates that the appellant relied on
    negligence as a discrete cause of action at trial. The opening and closing arguments
    of counsel were not transcribed but the factum filed by the appellants trial
    counsel at the opening of trial did not advance negligence as a distinct claim.
    Trial counsels notes are, at best, ambiguous and indicate a concerted strategy
    to avoid the defence of contributory negligence.

[10]

That
    leads to the third point, namely, that there was a very strong tactical reason
    for the appellant to have focused on breach of trust and conversion and to have
    avoided negligence as a distinct cause of action. RBC was in a position to
    mount a strong defence of contributory negligence. Throughout the period in
    which RPS operated its fraud, the appellant received monthly statements from
    RBC from which it could readily be discerned that unauthorized transfers were
    being made from the account. The appellant failed to notice these unauthorized
    transfers. It was to avoid that defence that the appellant relied on breach of
    trust and conversion.

[11]

We
    do not accept the submission that this court could or should entertain and determine
    the claim in negligence without a proper record from the trial court. As noted,
    the appellants claim is far from straightforward. Difficult issues of duty of
    care and standard of care would have to be confronted. That would require a
    trial on issues of fact and as we read the record, no such trial took place in
    this case.

[12]

As
    we have concluded that the theory of recovery advanced before this court was
    not advanced at trial, we dismiss the appeal.

[13]

Accordingly,
    the appeal is dismissed with costs to the respondent fixed in the amount of
    $30,000 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

J. MacFarland
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
2068895
    Ontario Inc. v. Snyder, 2012 ONCA 757

DATE: 20121107

DOCKET: C54394

Simmons, Armstrong and Watt JJ.A.

BETWEEN

2068895 Ontario Inc. and 2068896 Ontario Inc. and
Moldenhauer
  Developments Inc.

Appellants (Plaintiffs)

and

John Frederick Snyder and Carole Snyder

Respondents (Defendants)

and

2068895 Ontario Inc. and 2068896 Ontario Inc. and
Moldenhauer
  Developments Inc.

Appellants (Plaintiffs)

and

Cesare Divito and Sylvia Divito

Respondents (Defendants)

Alan S. Price, for the appellants

Bruce C. Robertson and Naaila Sangrar, for the
    respondents

Heard and released orally: October 29, 2012

On appeal from the judgment of Justice Katherine M. van
    Rensburg of the Superior Court of Justice, dated September 2, 2011.

ENDORSEMENT

[1]

We are sceptical that the trial judge proceeded correctly by resorting
    to evidence of a prior draft of para. 9 of the Agreements of Purchase and Sale
    to find ambiguity before assessing whether para. 9 in the finalized Agreements
    of Purchase and Sale was ambiguous on its face.

[2]

In any event, however, in our view, the outcome of this appeal turns on
    the events that occurred on the closing date. The vendor respondents tendered
    closing documents on the basis of their interpretation of the purchase price calculated
    under para. 9 in their respective Agreements of Purchase and Sale. The
    purchaser did not tender at all and, at trial, acknowledged that it was not in funds
    to close the transactions on the closing date. After the closing date, counsel
    for both vendor respondents advised the purchasers that they considered the
    transactions at an end.

[3]

At para. 110 of her reasons, the trial judge said:

I find that the disagreement as to purchase price was not an
    impediment to the closing of the transactions. The purchaser admitted that the
    difference in price using the alternative calculations was insignificant.

[4]

Although this finding was made under a heading in the trial judges
    reasons that assumed that the vendors interpretation of the purchase price was
    correct, in our view, it nonetheless amounts to a finding that any error in the
    vendor respondents Statements of Adjustments was not a material defect in the
    tender in all the circumstances of this case. In these circumstances, although
    possibly defective, the vendor respondents tender did not justify a refusal to
    close the transactions: see the Honourable Mr. Justice Paul M. Perell, Tender,
Practice Gems  Best Practices for Tendering in Real Estate Transactions
(Toronto: The Law Society of Upper Canada, 2009).

[5]

Accordingly, even if the vendor respondents interpretation of para. 9 were
    incorrect, the trial judge did not err in dismissing the appellants action.
    Time was of the essence of the transactions and the appellant purchasers were
    not in a position to close on the closing date.

[6]

The appeal is therefore dismissed.

[7]

Costs of the appeal are to the respondents fixed on a partial indemnity
    scale in the amount of $8,000.00 inclusive of disbursements and applicable
    taxes. Order to go for payment out to the respondents.

Janet Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Abu
    Hammam v. Usher, 2012 ONCA 818

DATE: 20121126

DOCKET: C54286

Laskin, Blair and Rouleau JJ.A.

BETWEEN

Lena Abu Hammam
,
    Adel Abu Hammam and Suhalin Abu Hammam,        Noorlin Abu Hammam, Mera Abu
    Hammam and Ahmed Abu Hammam,            by their litigation Guardian, Lena Abu
    Hammam

Appellant
(Plaintiffs)

and

Dr. Ann K. Usher

Respondent (Defendant)

Karl Arvai and Christos Nicolis, for the appellant

Peter W. Kryworuk and John A. Nicholson, for the
    respondent

Heard and released orally: November 20, 2012

On appeal from the judgment of Justice Lynne C. Leitch of
    the Superior Court of Justice, dated August 9, 2011.

ENDORSEMENT

[1]

The central basis of the appellants appeal is that the trial judge made
    palpable and overriding errors in her findings of fact by misapprehending
    cogent evidence and failing to consider or reconcile other material evidence.
    The appellant contends that these failings of the trial judge undermined her
    key finding that the cause of the bleeding was the IUD and not a laceration or
    perforation resulting from the respondents negligence on July 19, 2001.

[2]

We do not agree with the appellants position.  Accepting that some of
    the evidence may have supported the appellants theory of the case, there was
    ample other evidence to support the trial judges findings.  She gave thorough
    and thoughtful reasons for rejecting the appellants theory and accepting the
    respondents theory.  We cannot say that in doing so she committed any
    reviewable error.

[3]

We acknowledge that in her reasons, the trial judge did not deal with
    every inconsistency between the respondents trial evidence and other evidence
    such as the hospitals records and the respondents discovery evidence.  Her
    failure to do so does not justify appellate intervention in these circumstances.
    It is evident from her reasons as a whole that the trial judge accepted the
    respondents trial testimony.

[4]

Finally, we see no ground to interfere with the trial judges exercise
    of discretion on costs.

[5]

Accordingly, the appeal is dismissed, with costs in the amount of
    $25,000, inclusive of disbursements and applicable taxes.

John Laskin J.A.

R.A. Blair J.A.

Paul Rouleau J.A.