COURT OF APPEAL FOR ONTARIO

CITATION: Maurice v. Alles, 2016 ONCA 287

DATE: 20160421

DOCKET: C60269

Epstein, van Rensburg and Hourigan JJ.A.

BETWEEN

Robert Maurice

Applicant (Appellant)

and

Lorraine Alles, Diane Pomorski, Carol MacDonald,
    Donald Maurice, George Alles and Kirby-Maurice Company Limited

AND BETWEEN

Lorraine Alles, Diane Pomorski, Carold MacDonald,
    and Donald Maurice

Applicants (Respondents)

and

Robert Maurice

Respondents (Respondents)

Peter Griffin and Nadia Campion, for the appellant

Richard Worsfold, for the respondents

Heard: November 10, 2015

On appeal from the order of Justice Laurence A. Pattillo
    of the Superior Court of Justice, dated March 13, 2015, with reasons reported
    at 2015 ONSC 1671.

Hourigan J.A.:

A.

Overview

[1]

This appeal of the order of the motion judge
    dismissing an oppression remedy claim on a motion for summary judgment raises
    two issues. First, is summary judgment available in the context of an
    application as opposed to an action? Second, does the two-year limitation
    period in the
Limitations Act, 2002
, S.O. 2002, c. 24, apply to
    oppression remedy claims and, in particular, to claims of ongoing oppressive
    conduct?

[2]

For the reasons that follow, I am of the view
    that a motion for summary judgment under Rule 20 is not available to adjudicate
    issues raised on an application under Rule 14 of the
Rules of Civil
    Procedure
unless the application is converted into an action. However, as
    I will go on to explain, the use of Rule 20 in the circumstances of this case
    was merely a procedural defect and thus I would not interfere with the motion
    judges decision on this basis.

[3]

An oppression remedy claim must be commenced
    within two years of the discovery of a potential claim. The alleged oppressive
    conduct in this case is not ongoing. However, where, as here, a party engages
    in conduct that is in furtherance of, or based upon, earlier oppressive
    conduct, this is a new cause of action because it is new oppressive conduct.

[4]

For this reason, I conclude that the motion
    judge erred in dismissing the appellants oppression claim as statute barred. I
    would allow the appeal and order that the oppression remedy claim proceed as a trial.

B.

Background Facts

[5]

The appellant and the individual respondents are
    siblings except for George Alles, who is the husband of Lorraine Alles.
    Starting in the 1950s, their late father, Mr. Maurice, owned an interest in
    Television Antenna & Service Co. (Tasco) through his holding company
    Kirby-Maurice Company Limited (Kirby-Maurice). Marlba Investments Limited
    (Marlba) owned the land on which Tasco operated. Marlba, in turn, was owned
    equally by Kirby-Maurice and another holding company owned by their fathers
    business partner, Mike Sayer.

[6]

Mr. Maurice restructured Tasco in the late
    1970s. He gave equal interests in Tasco to each of his six children and Mr.
    Sayers six children, preserving voting control for his family by causing the
    issuance of 54 percent of Tascos voting preferred shares to Kirby-Maurice.

[7]

In the early 1990s, litigation between the
    Maurice and Sayer families concerning Tasco and Marlba concluded with a
    settlement agreement that provided for the ownership structure of the two
    companies. It also specified that both families would enter into unanimous
    shareholder agreements (USAs) to govern the business and affairs of each
    company. The appellant and his siblings were parties to this settlement
    agreement.

[8]

Those USAs were never executed. The parties,
    however, governed themselves according to provisions set out in the settlement
    agreement, which were to be contained in the USAs. Those provisions included a
    prohibition on the transfer of shares in either Tasco or Marlba except between
    members of the same family, a shareholders right to require the corporation to
    repurchase their common shares for cancellation at fair value, and a right of
    first refusal with respect to the shares sought to be repurchased by the
    corporation.

[9]

The Maurice siblings, who were each 20 percent
    owners of Kirby-Maurice, later entered into a USA concerning their interests in
    that company (the Kirby-Maurice USA). The Kirby-Maurice USA provided, among
    other things, for a share sale procedure. Critical to this appeal were
    provisions requiring a shareholder selling their shares in Tasco and Marlba to
    also sell, at a fair value to be determined by a valuator, his or her shares in
    Kirby-Maurice.

[10]

On May 13, 1996, the appellant exercised his
    right to sell his shares in Tasco and Marlba. In accordance with the terms of
    the Kirby-Maurice USA, the appellant offered to sell his shares in
    Kirby-Maurice at the same time. The sale of the appellants shares in Tasco and
    Marlba did not close until March 23, 2007, almost 11 years after he first
    exercised his right under the settlement agreement. When it did, the appellant
    received a total of $2,275,000 for his shares; $1,966,700 for his shares in
    Tasco and $308,300 for his shares in Marlba, based on the July 31, 2005
    valuation completed by PricewaterhouseCoopers.

[11]

Negotiations between the respondents and a prospective
    purchaser ultimately led to Tasco and Marlba shareholders (including the
    respondent siblings and Kirby-Maurice) receiving a letter of intent from a
    third party with an interest in acquiring their shares in June 2007. The
    appellant, who was no longer a shareholder of Tasco or Marlba, first learned of
    the potential purchase in October 2007. He expressed his view that
    Kirby-Maurices 54 percent of the voting preferred shares in Tasco should fetch
    a premium given that they represented control of the company.

[12]

In the meantime, although he had offered his
    shares in Kirby-Maurice for sale, the appellant remained a shareholder and
    director of Kirby-Maurice. He received notice of a Kirby-Maurice shareholders
    meeting scheduled for July 25, 2008 to discuss a proposed sale of
    Kirby-Maurices shares in Tasco and Marlba. At the meeting, the appellant was
    advised of the following: his siblings had sold their shares in Tasco and
    Marlba; the purchaser was a numbered company; the owner of that company was
    unknown; Kirby-Maurices preferred shares in Tasco were being sold for
    redemption at face value; and Kirby-Maurices nominees to Tasco and Marlbas
    boards of directors were resigning.

[13]

The appellant opposed the sale. He argued that
    proceeding without the unanimous consent of the shareholders would breach the
    Kirby-Maurice USA and that his siblings should obtain a valuation before
    selling their shares in Tasco and Marlba. After the appellant left the meeting,
    his siblings approved the sale of Kirby-Maurices shares in Tasco and Marlba.

[14]

Since the meeting of July 25, 2008, the
    appellant has requested a valuation of his shares in Kirby-Maurice and, on
    numerous occasions, requested information relating to how Kirby-Maurices
    preferred shares in Tasco were valued for the purposes of their sale. These
    requests have been either ignored or refused by his siblings.

[15]

In 2013, the appellants siblings brought an
    application for the appointment of a valuator to value the issued and
    outstanding shares of Kirby-Maurice. The appellant commenced a
    cross-application against his siblings, George Alles, and Kirby-Maurice,
    alleging breach of both the settlement agreement and the Kirby-Maurice USA, and
    seeking relief under the oppression remedy section of the
Business
    Corporations Act
, R.S.O. 1990, c. B.16 (OBCA) arising out of the sale of
    Kirby-Maurices shares in Tasco and Marlba.

[16]

In 2014, the appellant received a copy of the
    share purchase agreement for the sale of the respondents and Kirby-Maurices
    shares in Tasco and Marlba, dated August 1, 2008, as part of the respondents
    disclosure. The appellant also learned the following:

·

negotiations over the sale lasted more than a
    year;

·

the purchase price increased over the course of
    the negotiations;

·

each sibling shareholder received $2,980,025 for
    their shares in Tasco and Marlba; and

·

the issue whether Kirby-Maurices preferred
    shares in Tasco should be valued at more than face value was considered.

C.

Decision Below

[17]

Pursuant to an order of Newbould J., dated
    October 1, 2013, the cross-application was to be determined as a mini-trial
    before the application to appoint a valuator. The respondents brought a motion
    for summary judgment to dismiss the claims in the cross-application as being
    statute barred and for the valuators appointment. The appellant brought a
    motion requiring the respondents to reimburse Kirby-Maurice for legal fees the
    corporation paid on the respondents behalf in connection with the ongoing
    disputes with the appellant from 2008 onward.

[18]

On the motion and cross-motion, the respondents
    argued that the appellants claims all related to the sale by Kirby-Maurice of
    its shares in Tasco. The respondents argued that the appellant discovered the
    claims as of July 25, 2008, the date of the shareholders meeting when the
    appellant learned of the respondents sales of their own shares and the
    proposed sale of Kirby-Maurices shares in Tasco and Marlba. As the
    cross-application was commenced more than two years after the claims were
    discovered, the claims were out of time. The appellant argued that his claims
    were not barred since the oppressive conduct was ongoing.

[19]

With respect to the appellants claims for
    breach of the settlement agreement and the Kirby-Maurice USA, the motion judge
    found that the appellant was aware of these breaches as of July 25, 2008.
    Accordingly, he held that the breach of contract claims were statute barred.

[20]

The motion judge found that the appellant was
    similarly aware of the facts giving rise to the oppression claims related to
    the Kirby-Maurice USA as of July 25, 2008. Consequently, those claims were also
    statute barred. At para. 54 of his reasons, the motion judge relied on
Fracassi
    v. Cascioli
, 2011 ONSC 178, for the proposition that pursuant to the
Limitations
    Act
, the applicable limitation period for an oppression claim begins two
    years after the day on which the claim for oppression was discovered.

[21]

The motion judge held that even if the
    oppression is ongoing, such continuation does not operate to extend the
    limitation period beyond the time of two years from discovery. In this regard,
    the motion judge distinguished
Waxman v. Waxman
(2004), 186 O.A.C. 201
    (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291 and
Metcalfe v. Anobile
,
    2010 ONSC 5087, 77 B.L.R. (4th) 293, on the basis that, while those cases
    referred to the ongoing nature of the conduct to defeat a limitation period,
    it is discoverability that is the key factor in determining when the
    limitation period begins to run.

[22]

As the appellant only learned of his oppression
    claim for legal fees paid by Kirby-Maurice through information produced by the
    respondents in 2014, the motion judge held that this claim was not statute
    barred. However, this payment of legal fees by Kirby-Maurice would only be
    oppressive to the appellant if Kirby-Maurice did not have sufficient funds to
    purchase the appellants shares at the price determined by the valuator. The
    motion judge granted the respondents motion for the valuators appointment.

D.

Issues

[23]

Although the notice of appeal referenced the
    dismissal of the appellants breach of contract and oppression remedy claims,
    the appellant limited his argument in both his factum and oral submissions to
    the dismissal of the oppression remedy claim. For the purposes of the appeal, therefore,
    the issues to be determined are whether the motion judge erred in:

(i) granting
    summary judgment in the context of an application; and

(ii) finding that the limitation period applicable to the
    appellants oppression remedy claim had expired.

E.

Analysis

(i
)       Summary
    Judgment in an Application

[24]

Counsel for the appellant raised with the panel
    at the hearing of the appeal the issue of whether a motion for summary judgment
    is an available procedure in the context of an application. He admitted that
    this was an issue that came to him shortly before the hearing of the appeal and
    that it was not raised before the motion judge or in the materials originally
    filed on this appeal.

[25]

Generally, a party who has participated in a
    process in the court below without complaint cannot object to that process on
    appeal:
Harris v. Leikin Group Inc.
, 2014 ONCA 479, 120 O.R. (3d) 508,
    at para. 53; see also
Marshall v. Watson Wyatt & Co.
(2002), 57
    O.R. (3d) 813 (C.A.), at paras. 14-15. I nonetheless think it is important to
    address the issue of the availability of a summary judgment motion on an
    application under Rule 14,  especially given the increased prevalence and
    importance of summary judgment motions since the Supreme Court of Canadas
    decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[26]

The parties have brought one relevant decision
    to our attention. In
Essex Condominium Corp. No. 5 v. Rose-ville Community
    Center Assn
. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.), Pomerance J. held
    that summary judgment was not available in the context of an application to
    wind up a corporation under the
Corporations Act
, R.S.O. 1990, c.
    C.38.

[27]

Similarly, in
Ravikovich v. College of
    Physicians & Surgeons (Ontario)
, 2010 CarswellOnt 6643 (S.C.), Ferrier
    J. concluded that

summary judgment is not available in a judicial review
    application because the remedy is only available for actions and an action is a
    proceeding that is not an application.

[28]

I agree with the analysis of the issue in both
    cases, although I reach a different result on the facts of this case.

[29]

The starting point in the analysis is the
    language of Rule 20.  It is clear that the rule contemplates that it will be
    used in the context of an action and not an application. The rule specifies
    that a motion for summary judgment is available to a plaintiff after the
    delivery of the statement of defenc
e
 on all or part of the claim in
    the statement of claim. Similarly, a defendant may move for summary
    judgment to dismiss all or part of the claim in the statement of claim.

[30]

The emphasized terms are defined in r. 1.03 and
    it is plain that they apply in the context of an action and not an application.
    A plaintiff is defined as a person who commences an action and a defendant is
    a person against whom an action is commenced. An action is a proceeding that
    is not an application and includes a proceeding commenced by, among other
    things, a statement of claim.

[31]

There is no reference in the text of Rule 20 to
    an applicant, who is defined in r. 1.03 as a person who makes an application
    or to a respondent

who is defined in r. 1.03 as a person against whom an
    application is made or an appeal is brought, as the circumstances require.  Nor
    does the summary judgment rule mention a notice of application, which is the
    originating process for an application.

[32]

The drafters of the summary judgment rule made a
    deliberate choice to restrict its availability to actions. There is a valid
    policy rationale for this restriction. Summary judgment is a simplified
    procedure, designed to determine all or part of an action in a summary manner,
    in order to reduce expense and preserve court resources. An application is also
    a summary process. Its use is restricted, pursuant to r. 14.05(3), to
    situations where an application is permitted under the
Rules

or
    in cases where certain enumerated relief is claimed. Evidence is generally
    supplied through affidavits and cross-examinations conducted out of court.
    Where there is conflicting evidence that requires credibility determinations on
    central issues, the application must be converted to an action: see
Baker
    v. Chrysler Canada Ltd
.
(1998), 38 O.R. (3d) 729 (S.C.). If a
    proceeding is capable of being resolved as an application, it should be, as
    that is the most expeditious and least expensive determination of the
    proceeding on its merits. There is no utility in layering on to this summary
    process another summary process.

[33]

This is not a situation, as the respondents
    submit, where there is a lacuna in the
Rules
and the court is required
    to utilize r. 1.04 to interpret Rule 20 as if it applied to applications under
    Rule 14. Rule 38.10(1)(b) empowers a judge to order that all or part of an
    application proceed to trial. Pursuant to rr. 38.10(2) and (3), where the application
    judge orders that all or part of an application should proceed to trial, the
    proceeding is thereafter treated as an action in respect of the issues to be
    tried subject to the directions in the order directing a trial. The practical
    effect of r. 38.10 is that the summary judgment vehicle in Rule 20 will be
    available to resolve the issues in a Rule 14 application after the application
    is converted by judicial order into an action.

[34]

With this analysis in mind, I turn to a
    consideration of whether the summary judgment rule was available to the parties
    and the court below. Newbould J. made an order that the claims of oppression
    and breach of contract should be determined through a mini-trial. Although Newbould
    J.s order did not explicitly direct that the application proceed to trial, he
    had authority to make such an order pursuant to r. 38.l0(1)(b).

[35]

Considering that neither party objected to the
    use of the summary judgment procedure and that both fully participated in the
    motion, any error in disposing of the limitation period issue by way of a
    motion for summary judgment was merely a procedural defect that caused no
    prejudice to the parties. Thus, I would not interfere with the motion judges
    decision on the procedural basis raised by the appellant in oral argument.

(ii)     Limitation Period

(a)      Positions of the
    Parties

[36]

There is a division in the case law regarding
    the applicability of the general two-year limitation period prescribed by s. 4
    of the
Limitations Act, 2002
, to cases of ongoing oppression. The
    positions of the parties on this appeal reflect this division.

[37]

The appellant submits that in the
Waxman

and
Metcalfe

decisions referenced above, the courts
    recognized a judges remedial discretion to permit a claim commenced more than
    two years after its discovery if there is an ongoing fact situation of
    continuing oppressive conduct.

[38]

In
Waxman
, this court affirmed the
    trial judges decision to allow an oppression claim to proceed even though the
    plaintiff was aware of the facts giving rise to at least some of the claims
    many years before he commenced his action. Notwithstanding that knowledge, the
    court found, at para. 536, that [t]he trial judge exercised her discretion to
    apply her broad remedial authority to the pattern of oppressive conduct that
    started in 1979. In doing so she neither abused her discretion nor ran afoul of
    any legislative limitation period.

[39]

In
Metcalfe
, a case distinguished by
    the motion judge with facts very similar to the present appeal, the applicant
    commenced an oppression application on August 7, 2008, more than five years
    after he began seeking information about his shareholdings. Citing
Waxman
,
    the court held that no statutory limitation period was applicable and, in any
    event, the claim was not statute barred as the oppression continued until at
    least March 5, 2007 when the applicant finally obtained some of the information
    he sought.

[40]

The respondents submit that
Waxman

is
    distinguishable on the basis that it was
decided under
    the former
Limitations Act
, R.S.O. 1990, c. L.15. According to this
    courts decision in
Joseph v. Paramount Canadas Wonderland
,
2008 ONCA 469, 90 O.R. (3d) 401, the common law discretion to extend a
    limitation period by applying the doctrine of special circumstances no longer
    exists under the new legislation.  Rather, s. 4 makes clear that a
    two-year limitation period applies unless the
Limitations Act, 2002
,
provides otherwise.

[41]

Pepall J. followed the
Joseph
decision
    in
Fracassi
. Having found that oppression claims are caught by the
    two-year limitation period under the
Limitations Act, 2002
, Pepall J.
    concluded that the limitation defence asserted by the defendants succeeded in
    part. She also found that
limitation periods apply to
    ongoing oppressive conduct, reasoning that limitation periods begin when
    the cause of action arises, not when it is remedied, at para. 273.

[42]

The respondents cite

a

number of
    Ontario Superior Court decisions where
Fracassi
has been followed:
Reinhart
    v. VIXS Systems Inc
.
, 2011 ONSC 5349,
Paul v. 1433295 Ontario
    Limited
, 2013 ONSC 7002, 120 O.R. 339, revd on other grounds 2015 ONSC
    3588,

Sterling Waterhouse Inc. v. LMC Endocrinology Centres (Toronto)
    Ltd
.
, 2015 ONSC 3987, revd on other grounds 2015 ONCA 645, and

Solar
    Harvest Co. v. Dominion Citrus Ltd.
, 2015 ONSC 1315, 39 B.L.R. (5th)
    141. In all of those cases, the courts held that the two-year limitation period
    applies to oppression remedy claims under the OBCA.

(b) Applicable Limitation Period

[43]

In my view, an oppression remedy claim under the
    OBCA is subject to the general two-year limitation period prescribed by s. 4 of
    the
Limitations Act, 2002
. Oppression is not listed under s. 16 as a
    claim to which no limitation period applies, nor is it exempted under s. 19 of
    the legislation. Special circumstances are also not available to extend the
    limitation period.

[44]

In the present case, the respondents act of
    selling their common shares in Tasco and Marlba would not qualify as oppressive
    conduct
per se
.
The potential oppressive conduct that arises
    from this transaction is twofold. The first is the failure of the respondents
    to provide the appellant with the requested information regarding the
    transaction. Second, the transaction itself may qualify as actionable
    oppression if it adversely impacted the value of the appellants shareholding
    in Kirby-Maurice.

[45]

The appellant had knowledge in July 2008 that
    the respondents were selling their common shares in Tasco and Marlba, that the
    Tasco preferred shares held by Kirby-Maurice would be sold for redemption at
    face value ($1.20 per share), and that the respondents were not disclosing the
    information regarding the valuation of their shares and any potential impact of
    the sale on the value of the appellants shares in Kirby-Maurice.

[46]

The appellant had an obligation to commence a
    claim based on the respondents failure to produce the information regarding
    the share transaction within two years of his discovery that they would not
    produce it to him.  It is not open to this court, as was suggested by the
    appellant, to look behind his non-action and excuse it based on the fact that
    this was a family business or that he had a reasonable expectation that the
    information would eventually be produced. Such an approach would effectively
    mark the return of the special circumstances doctrine, which has no application
    under the current limitations regime.

[47]

Had the appellant taken steps pursuant to the
    oppression remedy to protect his rights based on the non-disclosure, he would
    have also been in a position to determine whether he had a potential claim with
    respect to the respondents share sale. He then could have potentially
    commenced a claim seeking compensation or other related relief.

[48]

I am also of the view that this is not a case
    where there is ongoing oppressive conduct. The sale was a singular event that
    occurred many years ago. The refusal to produce documents was made known to the
    appellant in 2008. It is true that no production was made until this proceeding
    was commenced, but the continuous refusal to produce documents does not operate
    to extend the limitation period any more than a refusal to pay an outstanding
    amount in a collection action extends the limitation period until payment is
    received. As previously mentioned,
limitation periods
    begin when the cause of action arises, not when it is remedied:
Fracassi
,
    at para. 273.

[49]

Courts must be careful not to convert singular
    oppressive acts into ongoing oppression claims in an effort to extend
    limitation periods. To do so would

create a special rule for oppression
    remedy claims.

[50]

Despite the foregoing, in my view, the motion
    judge erred in law in concluding that the appellants oppression claim was out
    of time. Another discrete potentially oppressive act occurred when the
    respondent siblings commenced their application on May 13, 2013 for an order
    appointing a valuator to determine the fair value of the appellants shares in
    Kirby-Maurice.

[51]

In that application, there was no reference to
    the circumstances surrounding the disposal of the Tasco preferred shares and
    what impact it had on the value of the appellants Kirby-Maurice shares. Nor
    was there any production of the documents related to the share sale until they
    were produced as part of the respondents disclosure on the cross-application
    following the decision of Newbould J. The sibling respondents were in effect
    seeking a valuation process and payout to the appellant that did not take into
    account their earlier alleged oppressive conduct.

[52]

A party that engages in a series of oppressive
    acts can always make the argument that it is all part of the same corporate
    malfeasance and that the limitation period begins to run with the discovery of
    the first oppressive act. In analyzing that conduct, courts must have regard to
    the remedial nature of the oppression remedy and the fact that any threatened
    or actual conduct that is oppressive, or unfairly prejudicial to, or unfairly
    disregards the interests of any complainant can constitute a discrete claim of
    oppression. The oppression remedy section of the OBCA is drafted in the
    broadest possible terms to respond to the broadest range of corporate
    malfeasance.

[53]

Where the motion judge erred was in failing to
    carefully scrutinize the respondents conduct to determine whether there were
    any discrete acts of oppression within the two-year period prior to the
    commencement of the cross-application. In my view, the sibling respondents
    committed a new act of alleged oppressive conduct when they brought their
    application and attempted to rely upon their previous alleged oppressive
    conduct as part of the share valuation.

[54]

The practical effect of the motion judges
    reasoning is that where a party is alleged to have acted in an oppressive
    manner and no oppression remedy application is commenced as a consequence, he
    or she is free to take additional oppressive steps in furtherance of, or based
    upon, the initial oppressive conduct. That reasoning is contrary to the broad
    purposive interpretation that must be afforded this statutory cause of action:
    see
BCE Inc. v. 1976 Debentureholders
, 2008 SCC 69, [2008] 3 S.C.R.
    560, at para. 58;
Rea v. Wildeboer
, 2015 ONCA 373, 126 O.R. (3d) 178,
    at para. 33; and
Unique Broadband Systems, Inc. (Re)
, 2014 ONCA 538,
    121 O.R. (3d) 81, at para. 107.

[55]

The value of the Tasco preferred shares is
    central to the valuation of the appellants shares in Kirby-Maurice. The
    determination of the oppression allegations is an important part of the
    valuation process and that is why Newbould J. ordered a mini-trial on those
    allegations. In order to determine whether there is actionable oppression, the
    court is required to analyze whether there was oppression as a consequence of
    the respondents share sale and, if so, whether there is oppression now by
    reason of the respondents reliance on their previous misconduct. Therefore,
    the motion judge erred in dismissing the oppression remedy claim as statute
    barred.

F.       DISPOSITION

[56]

I would allow the appeal and set aside the order
    for summary judgment dismissing the appellants oppression remedy claim. I
    would direct that the parties proceed to a trial on the allegation that the
    share sale transaction executed by the respondents was oppressive, or unfairly
    prejudicial to, or unfairly disregarded the appellants interest in obtaining
    fair value for his shares in Kirby-Maurice. This trial shall be determined
    prior to the valuation of the appellants shares in Kirby-Maurice.

[57]

After the hearing of the appeal, the parties
    advised that they have reached an agreement on costs, which they will provide
    to the court once our decision has been rendered.  They may do so now.

Released: April 21, 2016 GE

C.W.
    Hourigan J.A.

I
    agree Gloria Epstein J.A.

I
    agree K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McAnuff (Re), 2016 ONCA 280

DATE: 20160420

DOCKET: C61151

Laskin, Cronk and Miller JJ.A.

IN THE MATTER OF:  NOVAR MCANUFF

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies and Meaghan McMahon, for the appellant

Amanda Rubaszek, for the respondent Attorney General for
    Ontario

Kathryn Hunt, for the respondent Person in Charge of the
    Centre for Addiction and Mental Health

Heard: March 8, 2016

On appeal against the disposition of the Ontario Review
    Board dated September 4, 2015.

Laskin J.A.:

A.

Overview

[1]

In January 2011, the appellant Novar McAnuff was found not criminally
    responsible (NCR) on account of mental disorder. Since then, he has been
    detained at the Centre for Addiction and Mental Health (CAMH).
[1]
For about three years, beginning in September 2012, he was detained on the
    general (or minimum) forensic unit of CAMH. He had privileges, which included
    being able to go on the hospital grounds or into the community without being
    accompanied by staff and potentially being able to live in the community.

[2]

After his last annual hearing in August 2015, the Ontario Review Board
    found that McAnuff continued to pose a significant threat to the safety of the
    public. Instead, however, of continuing his detention on the general forensic
    unit of CAMH, the Board ordered that he be detained on the secure (or medium)
    forensic unit. The Board removed McAnuffs privileges of unaccompanied access
    to the hospital grounds and the community, and substituted access only when
    accompanied by staff. In the Boards opinion, detention on the secure unit
    without unaccompanied privileges was the necessary and appropriate disposition
    because McAnuffs ongoing use of marijuana increased his psychosis and
    hostility.

[3]

Before the Board, McAnuff sought an absolute discharge, but in this
    court he does not challenge the Boards finding that he continues to pose a
    significant threat to the safety of the public. He raises a single issue before
    us: is the Boards order that he be detained on the secure forensic unit
    unreasonable?

[4]

The resolution of this issue turns on the answers to two questions:
    first, is detention on the secure unit, in practice, more restrictive of
    McAnuffs liberty? And if it is, second, is it necessary and appropriate
    because there is a link between McAnuffs marijuana use and a risk to public
    safety while he is detained?  I would answer these two questions yes and
    no. Thus I conclude that the Boards detention order is unreasonable.

[5]

McAnuffs transfer to the secure unit is more restrictive of his liberty
    because it will deprive him of privileges he enjoyed while on the general unit.
    It is also unnecessary and inappropriate. The index offences that led to
    McAnuffs NCR finding were three minor assaults committed within minutes of
    each other. In the five years McAnuff has been detained at CAMH he has not
    assaulted anyone or engaged in any other acts of physical or verbal aggression,
    despite his continued use of marijuana.

[6]

I would allow the appeal, order that McAnuff be detained on the general
    forensic unit of CAMH, and restore the privileges the Board removed after his
    last hearing.

B.

Relevant Background

(1)

The Appellant
    Novar McAnuff

[7]

Novar McAnuff is 43 years old. He was born in Jamaica and raised by his
    paternal grandmother until he was ten, when he moved to Canada to live with his
    mother. He continues to have a relationship with his mother, and she remains
    his only support in the community. He has not worked since his teens.

[8]

McAnuff has been in and out of psychiatric care for much of his life. In
    the nearly 20 years before he came under the jurisdiction of the Board, he was
    admitted to hospital 11 times for reasons related to his mental health.
    Typically, these admissions were triggered when McAnuff acted aggressively or
    violently towards others, including his mother. Of significance to this appeal,
    these violent acts appear to have occurred when McAnuff was using drugs, was
    not supervised, and was not taking his medication. During this time, he lived
    at various boarding homes and intermittently was homeless.

[9]

Also during this period, McAnuff was charged with three criminal
    offences. On the first two charges  possession of a dangerous weapon and
    criminal harassment  he was found unfit to stand trial; on the last charge,
    assault, he was convicted in September 2009 and placed on probation for 18
    months.

[10]

McAnuffs current diagnoses are schizophrenia, substance disorders (cannabis
    and crack cocaine), and an unspecified personality disorder with antisocial
    traits.

(2)

The Index Offences

[11]

The index offences consisted of three minor assaults committed within
    five minutes of each other during the evening of September 2, 2010.

[12]

At 8:30 p.m., two women left their apartment building to walk their
    dog. McAnuff approached the women and lunged at the dog, trying to take it. One
    of the women swung at McAnuff with her keys; McAnuff tried to grab her and take
    her keys away but she pushed him off. He then grabbed the shirt of the other
    woman. The two women got away and called the police.

[13]

Five minutes later, about a block away, a mother and her daughter were
    walking down the street. McAnuff was on the other side of the street but
    suddenly crossed over, approached the women, and grabbed one of them by the
    waist. The other woman dropped her belongings and started hitting McAnuff with
    an umbrella. McAnuff released the first woman, grabbed the items the second
    woman had dropped, and fled. The two women then called the police.

[14]

None of the women suffered any injuries and none of McAnuffs acts were
    sexual in nature.

(3)

McAnuffs Marijuana
    Use

[15]

McAnuff first used marijuana when he was seven years old. He smoked it
    daily from the age of 16 up to the time of the index offences.

[16]

While he has been at CAMH, McAnuff has been able to obtain marijuana and
    continues to use it regularly. The hospital report documents numerous incidents
    of McAnuffs failure to comply with conditions prohibiting his use of the drug.

[17]

McAnuff claims that he has a right to smoke marijuana and that it makes
    him feel better, both physically and mentally. He denies that it adversely
    affects his mental state. The hospital doctors, on the other hand, say that
    McAnuffs insistence on using marijuana shows that he has little or no insight
    into his mental illness.

(4)

McAnuffs Detention on the General Forensic Unit and the Boards 2014 Disposition

[18]

McAnuffs detention on the general forensic unit of CAMH from September
    2012 until the Boards 2014 disposition can be summarized as follows:

·

McAnuff did not assault anyone; nor did he engage in any
    aggressive or confrontational behaviour towards staff or patients.

·

He continued to smoke marijuana, thus demonstrating to his
    treatment team that he had little or no insight about how its use affected his
    mental health.

·

He generally complied with his medication regime.

·

He regularly used his privileges to go on the hospital grounds
    unaccompanied by staff. When exercising these privileges, he often used
    marijuana. As a result of doing so, his privileges were suspended and
    eventually reinstated many times.

·

In late January 2013 and again in February 2013, he was
    discharged into the community, but each time he had to be readmitted to CAMH
    because of his substance abuse and mental decompensation.

[19]

In its reasons following McAnuffs August 2014 hearing, the Board noted
    Dr. Ramshaws evidence that McAnuff is doing well at the moment and that he is
    thoughtful, delightful, has a sense of humour, and is involved in activities. But
    Dr. Ramshaw was concerned that McAnuff has been unable to maintain stability.
    [W]henever indirectly supervised hospital and grounds privileges were
    re-introduced he tested positive for drugs soon after. Dr. Ramshaw testified
    that marijuana use has negative effects on Mr. McAnuffs mental stability: he
    becomes angry, hostile, irritable, and suspicious.

[20]

The Board concluded that McAnuff could not safely be discharged into the
    community until he demonstrated that he could exercise his privileges without
    using drugs. The Board ordered that McAnuff continue to be detained on the
    general forensic unit with the same privileges of unaccompanied access to the
    hospital grounds and the community that he had enjoyed previously.

C.

The Boards 2015 Disposition was Unreasonable

(1)

The Necessary
    and Appropriate Standard

[21]

In determining the proper disposition to impose on a person who, like
    McAnuff, represents a significant threat to the safety of the public, the Board
    must consider the four factors in s. 672.54 of the
Criminal Code
, R.S.C. 1985, c. C-46
: the need to
    protect the public from dangerous persons; the mental condition of the person;
    the reintegration of the person into society; and the other needs of the
    person. The Board must then arrive at a disposition that is necessary and
    appropriate in the circumstances.

[22]

The necessary and appropriate standard came into force on July 11,
    2014. Before then, the
Criminal
Code
required that the
    disposition be the least onerous and least restrictive to the accused. This
    court has endorsed the Boards view that the two standards are synonymous  in
    other words, the necessary and appropriate disposition is also the least
    onerous and least restrictive disposition:
Ranieri (Re)
, 2015 ONCA
    444, 336 O.A.C. 88, at paras. 20-21. The change in language was meant to
    clarify the standard and make it easier to understand, not to modify it. Thus,
    the jurisprudence developed under the least onerous and least restrictive
    standard continues to apply to dispositions under the necessary and appropriate
    standard.

[23]

Two features of this jurisprudence are especially relevant to this
    appeal. First, the necessary and appropriate standard applies to the entire
    package of conditions imposed on the person detained: see, for example,
Penetanguishene
    Mental Health Centre v. Ontario (Attorney General)
, 2004 SCC 20, [2004] 1 S.C.R. 498,
at
    para. 71.

[24]

Second, the standard is constitutionally justifiable because [i]t
    ensures that the NCR accuseds liberty will be trammelled no more than is necessary
    to protect public safety:
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, at para. 70. As I will discuss, the
    Boards failure to link the more restrictive conditions it imposed on McAnuff
    to the protection of public safety justifies this courts intervention.

(2)

The August 2015
    Hearing before the Board

[25]

The Board hearing took place in late August 2015. Its disposition was
    made on September 4, 2015 and its reasons were given on October 2, 2015.
    McAnuff was represented by counsel but did not testify. Dr. Ramshaw testified
    for the hospital, as she did at the 2014 hearing. She was the only person to
    give evidence.

[26]

Dr. Ramshaw asserted, as she did the previous year, that McAnuff posed a
    significant threat to public safety. But her opinion on the conditions of his
    detention changed. She now recommended that McAnuff be detained on the secure
    forensic unit of CAMH, which in her opinion would be less restrictive of
    McAnuffs liberty than his detention on the general unit.

[27]

The parties took starkly different positions before the Board. McAnuff
    sought an absolute discharge. The hospital, relying on Dr. Ramshaws opinion,
    maintained that McAnuff still posed a significant threat to public safety and
    had to be detained. It sought his detention on the secure forensic unit instead
    of the general forensic unit and the removal of his unaccompanied grounds and
    community privileges. The Crown supported the hospitals position.

[28]

The Board accepted the hospitals position on significant threat and on
    the necessary and appropriate conditions of detention. It did not expressly say
    why continued detention on the general forensic unit was inappropriate. Nor did
    it adopt Dr. Ramshaws opinion that detention on the secure forensic unit would
    be less restrictive of McAnuffs liberty. Its reasons for ordering McAnuffs
    detention on the secure unit with only accompanied grounds and community
    privileges focused on McAnuffs marijuana use.

The Board unanimously finds that the most necessary and
    appropriate Disposition necessary to manage the risk posed to the public while
    still meeting Mr. McAnuffs needs pursuant to s. 672.54 of the
Criminal
    Code
is that he be detained in the Secure Forensic Unit at CAMH with
    limited privileges into the community. In coming to this conclusion the Board
    notes the continuing ongoing use of substances by Mr. McAnuff even while he has
    been confined to a general unit and the resulting deleterious effect on his
    mental status. The Board is hopeful that a move to a secure unit will make
    access to substances extremely difficult for Mr. Mcanuff and will allow him to
    develop some significant insight around the effect of such substances on his
    mental illness. In the circumstances, this Disposition is the most necessary
    and appropriate.

(3)

Analysis

[29]

In his factum, McAnuff submitted that the Board erred because it did not
    refer to the least onerous and least restrictive standard. Wisely, he did not
    pursue this submission during oral argument. The Board correctly stated the
    current standard  necessary and appropriate. It cannot be faulted for not
    referring to the previous standard, which, as I have said, is synonymous with
    the current standard.

[30]

The only question before us is whether the Board erred in its application
    of the necessary and appropriate standard. In recognition of its expertise,
    this court must give deference to the Boards disposition. The standard of
    appellate review is reasonableness. The Boards view of how best to manage the
    risk posed by a particular NCR accused should not be interfered with so long as
    the conditions of detention lie within a range of reasonable judgment:
Pinet
    v. St. Thomas Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at
    para. 22.

[31]

McAnuff submits that the Boards disposition is unreasonable. His
    submission has two branches: in practice, detention on the secure forensic unit
    is more restrictive of his liberty than detention on the general forensic unit;
    and it is neither necessary nor appropriate because of the absence of evidence that
    his marijuana use poses a risk to public safety. The hospital and the Crown
    rely on Dr. Ramshaws opinion that detention on the secure forensic unit will
    be less restrictive of McAnuffs liberty. And they submit that the Boards
    finding on the effects of McAnuffs marijuana use is reasonable and should be
    upheld on appeal. I agree, however, with both branches of McAnuffs submission.

(a)

Detention on the Secure
    Forensic Unit is More Restrictive of McAnuffs Liberty

[32]

The secure forensic unit of CAMH has a higher level of security than the
    general forensic unit. On its face, a transfer from the general to the secure
    unit is more restrictive of McAnuffs liberty. Of course, the level of security
    by itself does not always conclusively determine the extent of a detained
    persons liberty. This very issue was canvassed by the Supreme Court in
Penetanguishene
and by my colleague Cronk J.A. in
Penetanguishene Mental Health Centre
    v. Magee
(2006)
, 80 O.R.
    (3d) 436 (C.A.). In some cases, a detained person may have access to more
    programs and amenities in a more as opposed to a less secure setting.

[33]

In the present case, however, the hospital and the Crown do not appear
    to claim that McAnuff will have more access to programs and other amenities on
    the secure forensic unit. Dr. Ramshaw gave a different explanation for why
    McAnuffs detention on the secure unit would be less restrictive of his
    liberty.

So, based upon that, we  he has been very restricted over the
    past, particularly six months, confined to the unit when he uses and then more
     only able to enjoy accompanied privileges because of his use with indirectly
    supervised privileges. So, it is our opinion that he is actually more
    restricted on a general forensic unit, which is very porous, and which clearly,
    there is a lot of substances, substance availability, at least to Mr. McAnuff
    somehow he manages to get those and it is for these reasons that we would
    recommend a secure unit. It would be less restricted, it would be less porous,
    it would be  it would put the public at a decreased risk.

So, it is our opinion that he will not do better on the general
    forensic unit, given how hes done over the last couple of years and that hes
    doing worse, rather than better, unfortunately, and that it is quite likely
    that on a more secure unit, without opportunity, he would have a better chance to
    potentially gain some insight and recognize that substances have created
    difficulties for him and placed him at greater risk and so, its for those
    reasons that we have made such recommendations at this juncture and with that,
    I will leave it open to questions.

[34]

This passage seems to suggest that McAnuff will find it harder to obtain
    marijuana while on the secure unit, will therefore use it less often, and will
    eventually gain better insight into his illness. Even accepting Dr. Ramshaws
    opinion, it does not take into account that the necessary and appropriate
    disposition must have regard to the entire package of conditions to which
    McAnuff will be subjected.

[35]

On the general unit, McAnuff could go on the hospital grounds and into
    the community unaccompanied by staff. He even had the potential of living in
    the community, and was on the waiting list for 24-hour supervised accommodation.
    All of these privileges have been taken away by the Boards disposition.
    Neither the hospital nor the Crown contends that these privileges can be
    maintained if McAnuff is on the secure forensic unit. On the secure unit,
    McAnuff can go onto the hospital grounds or into the community only when
    accompanied by staff. And he no longer has even the possibility of living in
    the community. Thus McAnuffs detention on the secure forensic unit is more
    restrictive of his liberty than his detention on the general forensic unit.

[36]

Admittedly, his unaccompanied privileges on the general unit can be
    suspended, as they have been in the past, when he used marijuana while
    exercising them. But these privileges have also typically been reinstated and,
    under his previous conditions of detention, would still remain available to
    him. In the light of the differences in the privileges available to McAnuff on
    the general unit and the secure unit, the Board ought at least to have
    addressed whether it viewed a transfer to the secure unit as more or less
    restrictive of McAnuffs liberty. It did not do so.

(b)

The Record Does Not Show a Link
    between McAnuffs Marijuana Use and a Risk to Public Safety

[37]

The only other basis on which the Boards disposition can be supported
    is if the evidence shows a link between McAnuffs marijuana use and a risk to
    public safety, the paramount consideration under s. 672.54. The hospital and
    the Crown contend the evidence of Dr. Ramshaw and the hospital report establish
    this link. I do not accept the respondents contention. The record demonstrates
    that while on the general unit, even though he continued to use marijuana,
    McAnuff posed no real risk to the safety of patients, staff, or the public.

[38]

Dr. Ramshaw did testify that she saw an increase in McAnuffs hostility,
    which in her view was linked to his marijuana use.

We do see a direct link between an increase in psychosis and
    the substance use and an increase in hostility and substance use.

[39]

But Dr. Ramshaw conceded that Mr. McAnuff did not engage in any acts of
    violence or aggression.

Q.      But there was no overt acts of violence or           aggression?

A.       No.

Q.      And we can say the same in the September 2013 to July
    2014 period as well.  Page 17 at the bottom and Page 18 at the top. A whole
    year basically

A.

Yes.

Q.

without
    violence?

A.

That is correct.

[40]

Dr. Ramshaw also said that over the course of the year leading up to his
    August 2015 hearing, McAnuff became agitated from time to time. But she again
    acknowledged that his agitation stopped short of physical aggression.

Q.      Okay. So, thats again, for a full year period and intermittent
    can mean a wide variety of things. Do you know how many times he was said to be
    agitated?

A.       No. It could be quite frequent. I dont have the exact
    number of times. Its difficult to count because he can have different levels
    of agitation within one day, but it is intermittent because there are also
    periods when he is very pleasant, he appears to be in good spirits, he appears
    to be future oriented again, wants to gain stability, but then reverts to
    these, to the more decompensated mental state intermittently. So, again, I
    really dont have numbers, but it has been for a large part of the year. Id
    say particularly in the last six months.

Q.      You couldnt say, though, hes, hes been agitated
    every day?

A.       No, he has not.

Q.      Not at all?

A.       No.

Q.      And, certainly, intermittent agitation is quite
    distinct from any, sort of, verbal or aggression or physical aggression?

A.       He has not been physically aggressive.

[41]

The hospital report states that in the year leading up to his August
    2015 hearing, McAnuffs marijuana use increased and he became increasingly
    psychotic over time with intermittent agitation associated with marijuana use.

[42]

But the hospital report does not document any incident where McAnuff has
    been physically or even verbally aggressive on the general forensic unit. Despite
    his increased use of marijuana and the fluctuations in his mental state, he
    posed no risk to the safety of other patients or the staff. In her testimony
    before the Board, Dr. Ramshaw did say: Its my opinion that some of his
    behaviours potentially contribute to safety issues of patients on the ward
    because of the somehow encouraging, at least, the bringing in of more
    substances. But this opinion, without any evidence to support it, cannot
    justify McAnuffs detention on the secure forensic unit.

[43]

In my opinion, the hospital and the Board focussed on McAnuffs
    treatment needs and on making it harder for him to obtain marijuana,
[2]
but failed to adequately consider that the restrictions on his liberty must be
    consistent with his level of risk to public safety:
Winko
, at para. 70;
Saikaley
    (Re)
, 2011 ONCA 136, [2011] O.J. No. 722, at para. 7. The link between his
    marijuana use and public safety on which the respondents rely to support the
    Boards disposition does not exist. Indeed there has been no link for the
    entire time McAnuff has been at CAMH.

[44]

The evidence on McAnuffs conduct before and after his detention on the
    general forensic unit at CAMH is telling. In the years leading up to his NCR
    finding and his detention, McAnuff could act violently towards others, even his
    own mother. Then, too, he used drugs, but he was not supervised and was not
    regularly taking the medication prescribed for him. At CAMH, he is in a
    structured, supervised environment and he takes his medication
[3]
.
    Under these conditions of detention he has not acted violently despite his
    continued use of marijuana.

[45]

I conclude that the Boards disposition is unreasonable. I would allow
    McAnuffs appeal and order that he be detained on the general forensic unit of
    CAMH on the conditions in the Boards August 2014 disposition.

Released: April 20, 2016 (J.L.)

John Laskin J.A.

I agree. E.A. Cronk J.A.

I agree. Bradley W. Miller
    J.A.

[1]
Except for a brief period of one and a half months in early 2013 when he was
    living in the community.

[2]
The hospital was unable to explain from where and how McAnuff obtained his
    marijuana.

[3]
On March 30, 2015, McAnuff was found incapable of consenting to anti-psychotic
    medication. The Public Guardian and Trustee is his substitute decision-maker.


COURT OF APPEAL FOR ONTARIO

CITATION: Miller, Canfield, Paddock and Stone, LLP v. BDO
    Dunwoody LLP, 2016 ONCA 281

DATE: 20160421

DOCKET: C60953

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Miller, Canfield, Paddock and Stone, LLP

Plaintiff (Appellant)

and

BDO Dunwoody LLP

Defendant (Respondent)

Myron W. Shulgan, for the appellant

James P. Thomson, for the respondent

Heard: April 15, 2016

On appeal from the judgment of Justice
Pamela
    L. Hebner
of the Superior Court of Justice, dated August 7, 2015.

ENDORSEMENT

[1]

The appellant law firm, Miller, Canfield, Paddock and Stone LLP, appeals
    from the judgment of Hebner J. dismissing its action against its client, BDO
    Dunwoody, for the payment of fees under the parties April 30, 2007 contingency
    fee retainer agreement. Under the retainer agreement, the Law Firm agreed to
    act on behalf of BDO in any and all proceedings BDO intended to commence
    against certain defendants. The retainer agreement contained a provision
    entitled Termination of Legal Services, which provided that the client, BDO,
    had the right, with or without cause, to cancel the Law Firms services. In
    that event, BDO agreed it would be responsible to protect and pay the value of
    all services to date, and the retainer agreement specified how the value of
    services would be calculated.

[2]

A dispute arose between the parties about whether the Law Firm should
    pay the cost of retaining outside counsel to appeal a decision in the
    proceeding BDO commenced. BDO took the position that the Law Firm's refusal to accept
    responsibility for appeal counsels fees amounted to a repudiation of the
    retainer agreement. On June 19, 2012, BDO wrote the Law Firm to advise that BDO
    accepted the repudiation and directed the Law Firm not to take any further
    steps on behalf of BDO.

[3]

On April 15, 2014, the Law Firm rendered an invoice to BDO in the amount
    of $427,891.57 for the value of the services rendered to the date of
    termination of the retainer agreement. There is no dispute that the invoice
    accurately calculated the value of those services in accordance with the terms
    of the retainer agreement.

[4]

BDO brought a summary judgment motion to dismiss the Law Firms action
    to collect its fees. The Law Firm brought a cross-motion for judgment in the
    amount of the invoice.

[5]

The motion judge held that the Law Firm had breached the retainer
    agreement and the breach amounted to a repudiation of the agreement, but BDOs
    acceptance of the repudiation did not amount to a cancellation of services by
    it.

[6]

Assuming, without deciding, that the Law Firms refusal to pay the fees
    of outside appeal counsel amounted to a repudiation of the retainer agreement,
    in our view the motion judge did not apply the proper principle of law to her
    interpretation of that contract. A repudiatory breach of a contract does not,
    in itself, bring an end to a contract. Rather, it confers upon the innocent
    party, such as BDO, the right of election to treat the contract at an end. As a
    general rule, the party not at fault must make the election and communicate its
    decision to terminate the contract to the repudiating party: John D. McCamus,
The
    Law of Contracts
, 2d ed. (Toronto: Irwin Law, 2012), at p. 641.

[7]

When BDO accepted the Law Firms repudiation of the retainer agreement
    and told it to take no further steps in the proceeding, BDO cancelled the Law
    Firms services within the meaning of the agreements termination provision. In
    accordance with the terms of the retainer agreement, BDO thereupon became
    responsible to pay the Law Firm the value of all services performed to date
    calculated in accordance with the retainer agreement.

[8]

Accordingly, we grant the appeal and set aside the dismissal of the Law
    Firms action. We grant judgment in favour of the Law Firm in the amount of
    $427,891.57, together with pre-judgment interest.

[9]

We award the Law Firm its costs of the appeal fixed in the amount of $10,000,
    inclusive of disbursements and HST, and its costs of the motion below in the
    amount of $20,000, plus disbursements and HST.

John
    Laskin J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Neuberger v. York, 2016 ONCA 303

DATE: 20160425

DOCKET: C59813 and C59918

Gillese, van Rensburg and Miller JJ.A.

In the Estate of Chaim Neuberger, deceased

BETWEEN

Edie Neuberger in her capacity as the named
    Estate Trustee of the Primary Will of Chaim Neuberger and in capacity as the
    named Estate Trustee of the Secondary Will of Chaim Neuberger

Applicant (Appellant)

and

Myra York in her personal capacity, in her capacity as the named Estate
    Trustee of the Primary Will of Chaim Neuberger, in her capacity as the named
    Estate Trustee of the Secondary Will of Chaim Neuberger and in her capacity as
    the Attorney for Property or Attorney for Property
de son tort
for Chaim
    Neuberger
,
Adam Jesin-Neuberger
,
Shawna Jesin-Neuberger, Jeremy Jesin-Neuberger,
    Jessica Jesin-Neuberger, Jaclyn Jesin-Neuberger, Sonny York, Spencer York and
    Laura York

Respondents (
Appellant
/
Respondents
)

Chris G. Paliare, Megan E. Shortreed and Jean-Claude
    Killey, for the appellant Edie Neuberger

Kimberley A. Whaley, Benjamin Arkin and Arieh A. Bloom,
    for the appellant Adam Jesin-Neuberger

Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for the
    respondent Myra York in all capacities

Clare E. Burns and Bianca La Neve, for the respondents
    Sonny York, Laura York and Spencer York

Heard: October 8 and 9, 2015

On appeal from the order of Justice Susan E. Greer of the
    Superior Court of Justice, dated November 21, 2014, with reasons reported at
    2014 ONSC 6706.

Gillese J.A.:

[1]

By judgment dated March 8, 2016, the appeals in this matter were allowed
    and, among other things, the costs award below was set aside.  The parties were
    invited to make written submissions on costs of the appeal and underlying motion,
    if they were unable to resolve those matters between themselves.

[2]

No agreement on costs was reached and the court has now received the individual
    costs submissions of each of Edie Neuberger and Adam Jesin-Neuberger (together,
    the Appellants), and the joint costs submission of the respondents Myra York,
    Sonny York, Laura York and Spencer York (the York Parties).

COSTS OF THE MOTION BELOW

The Parties Positions

[3]

Edie Neuberger asks for costs of the motion below in the amount of $209,066.65,
    which includes almost $24,000 of disbursements and HST.  Fees are calculated on
    a partial indemnity basis.

[4]

Adam Jesin-Neuberger asks for costs of the motion in the amount of $110,424.55,
    all inclusive.  Again, this reflects fees calculated on a partial indemnity
    basis.

[5]

The York Parties submit that the Appellants should be awarded costs of
    the motion in the amount of $300,000, all inclusive.  They say they did not have
    the benefit of scrutinizing the Appellants dockets and ask that the court
    infer that some of the time spent on the motion was unreasonable.

Analysis

[6]

By order dated December 18, 2014 (the Costs Order Below)
[1]
,
    the motion judge ordered that Edie Neuberger and Adam Jesin-Neuberger were
    jointly and severally liable for the costs of Myra York, fixed at $221,765.97,
    and the costs of Sonny York, Laura York and Spencer York, fixed at
    $165,621.00.  Both sums were inclusive of disbursements and HST.

[7]

As the Appellants were successful on their appeals, they are
    presumptively entitled to their costs of the motion below.  The York Parties do
    not contend otherwise.

[8]

In setting the quantum of costs for the motion below, I begin by
    considering that the motion judge ordered costs of almost $390,000 in favour of
    the York Parties.  I have also considered the reasons that the motion judge
    gave in setting that quantum.    Her costs endorsement of December 18, 2014,
    demonstrates a full consideration of the factors set out in rule 57.01(1) of
    the
Rules of Civil Procedure,
R.S.O. 1990, Reg. 194 and gives guidance
    to this court on, among other things, the reasonable expectations of the
    unsuccessful party, the complexity of the proceeding, and the importance of the
    issues.  I note that the costs claimed by the Appellants of almost $320,000 are
    considerably less than the costs order below of $387,386.97.

[9]

I also note that Edie Neubergers claimed amount ($209,066.65), is less
    than the amount claimed by Myra York on the motion ($247,941.25) and less than
    the amount actually awarded to Myra York on the motion ($221,765.97).

[10]

I have further considered the parties combined claims for costs of the
    motion below.  The Appellants combined claim for costs of the motion is for
    $319,491.20 while the York Parties combined claim was for $425,427.46.

[11]

With these considerations in mind and after reviewing the Appellants
    costs outlines, in my view, costs of the motion below should be ordered to the
    Appellants in the amounts sought.

COSTS OF THE APPEAL

The Parties Positions

[12]

Edie Neuberger seeks costs of the appeal, on a partial indemnity basis,
    of $148,903.78, including disbursements and HST.

[13]

Adam Jesin-Neuberger seeks his costs of the appeal on a partial
    indemnity basis in the amount of $197,297.23, inclusive of disbursements and
    HST.  In support of the amount claimed, he says that this court should consider
    that he is waiving his entitlement to a blended costs award on appeal  that
    is, to have his partial indemnity costs paid by the York Parties personally and
    the balance of his full indemnity costs paid out of the Estate.  He contends
    that waiver of his right to a blended costs award is to the benefit of the York
    Parties because the burden of the portion of his costs paid out of the estate
    would have fallen, in part, on them as beneficiaries.  He also says that this
    consideration is relevant to the reasonable expectations of the unsuccessful
    parties.

[14]

The York Parties acknowledge that the Appellants are entitled to costs
    of their appeals but submit that costs should be made payable in the cause or
    in any event of the cause and/or be reduced to $50,000 because:

1.  the main
    legal issue on the appeal (whether the equitable doctrines of estoppel by
    representation and convention apply to bar a challenge to the validity of a
    will) was novel and of public interest;

2.  the York
    Parties were successful on some of the legal issues raised by the Appellants on
    the appeal; and,

3.   the
    quantum of costs sought by the Appellants on their appeals is substantially greater
    than the quantum awarded in similar appeals and, therefore, greater than could
    be reasonably expected.

Analysis

[15]

As the successful parties on appeal, the Appellants are presumptively
    entitled to costs.  While not all of the Appellants arguments were successful
    on the appeals, I do not view the outcome of these appeals as one of divided
    success  the Appellants were wholly successful in having the order under
    appeal set aside.

[16]

While the significance of the legal issues resolved by these appeals goes
    beyond the parties, I do not accept that those issues are of sufficient novelty
    to warrant a departure from the normal rule that a successful party is entitled
    to partial indemnity costs.

[17]

In deciding the quantum of costs, the award must be fair and reasonable
    in all the circumstances, with due consideration for the parties reasonable
    expectations:
Boucher v. Public Accountants Council (Ontario)
(2004),
71 O.R. (3d) 291 (C.A.)
, at para. 38.

[18]

Comparing the parties respective costs of appeal is useful when considering
    the parties reasonable expectations.  I understand that the York Parties
    combined partial indemnity costs of the appeal are approximately $353,000,
    which is similar to the Appellants combined partial indemnity costs of
    approximately $346,000.

[19]

Reasonable expectations are also informed by past costs orders of this
    court.  In that regard, I accept the York Parties submission that the amounts
    claimed by the Appellants are larger than many of the costs awards made by this
    court in typical appeals.  That said, however, costs in any appeal must be decided
    based on the particular circumstances of the case before the court.  I would
    not describe these appeals as typical estate appeals.  They raised legally
    complex issues arising from a factually complex record.  The 6-volume exhibit
    book contained 17 affidavits that set out a lengthy and complicated history and
    included medical records, expert medical evidence, expert appraisal evidence,
    and accounting evidence.  Seven cross-examinations on the affidavits were
    conducted and the appeal itself was heard over a day and a half.

[20]

For these reasons, in my view, a fair and reasonable costs award for
    these appeals would be $100,000 to Edie Neuberger and $75,000 to Adam
    Jesin-Neuberger, both such sums inclusive of disbursements and taxes.

[21]

While these amounts are less than the amounts sought by the Appellants,
    they are significant sums that reflect the results of the appeals, the amounts
    in issue, the complexity of the proceeding, the importance of the legal issues
    disposed of by the appeals, and the distinct interests of the two appellants and
    their respective roles in this litigation and on appeal.

[22]

I would order that costs be payable forthwith, in accordance with this
    courts usual practice.  I do not accept the York Parties submission that the Appellants
    costs should be payable in the cause or in any event of the cause. The effect
    of the Appellants success on these appeals is that they are entitled to
    proceed with this litigation. They should not be required to wait until the
    conclusion of proceedings to recover their costs, nor should their recovery be
    contingent on whether they proceed with, or are ultimately successful in, this
    litigation.

[23]

In setting the quantum of costs for each of the Appellants, I have
    considered Adam Jesin-Neubergers submission based on the proposition that he would
    have been entitled to a blended costs award in respect of his appeal.  I do not
    accept that he would have been entitled to such a costs award.

[24]

In estates litigation in Ontario, the historical approach to costs has
    been displaced in favour of one in which the costs rules in civil litigation
    apply both at first instance and on appeal, unless the court finds that one or
    more of the relevant public policy considerations dictate that costs (or some
    portion thereof) should be paid out of the assets of the estate:
McDougald
    Estate v. Gooderham
(2005), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80;
    see also
Sawdon Estate v.

Sawdon,
2014 ONCA 101, 370 D.L.R. (4th)
    686, at para. 101.  The public policy considerations at play in estate
    litigation are primarily of two sorts: (1) where the difficulties or
    ambiguities that give rise to the litigation are caused, in whole or in part,
    by the testator; and (2) the need to ensure that estates are properly
    administered.

[25]

Blended costs awards, in which a portion of costs is payable by the
    losing party and the balance is payable out of the estate, are available at
    first instance and on appeal, in the discretion of the court, where one or more
    of the relevant public policy considerations are found to be engaged:
Sawdon
,
    at paras. 93-100 and 107.

[26]

The availability of estoppel as a bar to a wills challenge was the main
    issue below and on the appeals.  In my view, that issue does not engage the relevant
    public policy considerations. As such, the usual loser pays costs regime in
    civil litigation, which applied at the motion level, ought also to apply on appeal.
    Consequently, in my view, Adam Jesin-Neuberger would not have been entitled to a
    blended costs award with the balance of his costs of the appeal being paid out
    of the Estate.

DISPOSITION

[27]

Accordingly, I would order that the Appellants are entitled to their
    costs of the motion below, in the amounts sought. I would order costs of the
    appeals fixed at $100,000 and $75,000 in favour of Edie Neuberger and Adam
    Jesin-Neuberger, respectively. Both such sums are all inclusive.  I would
    further order that all the costs orders are payable forthwith by the York
    Parties.

Released: April 25, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. K. van Rensburg
    J.A.

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

[1]
Reported at 2014 ONSC 7512.


COURT OF APPEAL FOR ONTARIO

CITATION: Olumide v. Conservative Party of Canada, 2016 ONCA
    314

DATE: 20160428

DOCKET: C61130, M46052 and M46341

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Ade Olumide

Plaintiff (Appellant)

and

Conservative Party of Canada, Kanata Carleton Conservative Electoral
    District Association and Walter Pamic

Defendants (Respondents)

Ade Olumide, acting in person (via teleconference)

Mark Wiffen, appearing as duty counsel

Paul DAngelo, for the respondents (via teleconference)

Heard and released orally: April 27, 2016

On appeal from the order of Justice Charles T. Hackland
    of the Superior Court of Justice, dated September 4, 2015.

ENDORSEMENT

[1]

The core of the several motions brought by Mr. Olumide is his motion to
    review Miller J.A.s order dated November 6, 2015 denying an extension of time
    to serve and file a notice of appeal of Hackland J.s order of September 4,
    2015. Justice Hacklands order stayed Mr. Olumides proceedings in the Superior
    Court of Justice until similar proceedings in the Federal Court of Canada were
    finally determined.

[2]

Justice Hacklands order is an interlocutory order. It merely stays the
    litigation. The parties have not lost a substantive right relating to the
    merits of the litigation: see
Waldman v. Thomson Reuters Canada Ltd.
,
    2015 ONCA 53, at para. 23.

[3]

In addition to the motions, there is an appeal of Hackland J.s costs
    order dated September 28, 2015. Even if this appeal were properly before us
    (which we doubt because it too seems interlocutory), there is no merit in the
    appeal. The costs order of $2000 is a reasonable exercise of Hackland J.s
    discretion.

[4]

Similarly, there is no merit to the components of the motions challenging
    the costs order in this court of Strathy C.J.O. and Simmons and Miller JJ.A.
    All of these orders were proper exercises of their discretion.

[5]

The motions and the appeal are dismissed. The respondents are entitled
    to their costs fixed at $1500, inclusive of disbursements and HST.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Othen v. Robertson, 2016 ONCA 268

DATE: 20160413

DOCKET: C60868

Sharpe, Juriansz and Roberts JJ.A.

In the matter of an application an application
    under subsection 32(1) of the
Health Care Consent Act, 1996
, S.O.
    1996, c. 2, Schedule A, as amended

BETWEEN

Lawrence Othen

Applicant (Appellant)

and

Dr. David Robertson

Respondent (Respondent in Appeal)

Lawrence Othen, in person

DArcy J. Hiltz, as
amicus

Alexandra V. Mayeski, for the respondent

Heard: April 8, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated January 23, 2015.

ENDORSEMENT

[1]

In our view, the Superior Court appeal judge did not err in dismissing
    the appeal from the decision of the Consent and Capacity Board that the
    appellant was incapable of consenting to treatment with antipsychotic
    medications.

[2]

Amicus
argues that the appeal judge erred by considering the
    subsequent decision of the Board changing the appellants status to that of an
    involuntary patient.

[3]

We disagree.

[4]

Evidence of the appellants post-hearing status was referenced by the
    appeal judge only as background information. In our view, he properly assessed
    the issue of capacity to consent to treatment on the basis of the record before
    the Board when it made that determination and his assessment was not materially
    influenced or affected by what transpired at the subsequent hearing.

[5]

The
amicus
submits that the Boards decision that he lacked
    capacity to consent was unreasonable.

[6]

We disagree.

[7]

As the Board found, and the Superior Court appeal judge confirmed, there
    was clear evidence that the appellant suffers from a mental disorder and that
    he refused to acknowledge that he was affected by that mental disorder. The
    Board found that the respondent did not prove that the appellant was incapable
    of understanding the information relevant to making a decision about the treatment.
    However, the Board found that the respondent had demonstrated that the
    appellant was not able to appreciate the reasonably foreseeable consequence of
    a decision or lack of decision.

[8]

In our view, there was ample evidence to support that determination. Dr.
    Hauck testified that repeated attempts had been made to discuss treatment with
    the appellant but the appellants delusions rendered him incapable of
    understanding the information relevant to the treatment decision. Dr. Hauck
    explained that, due to his illness, the appellant:

(1)

Did not acknowledge any sort of
    understanding of a mental health diagnosis;

(2)

Did not understand the proposed
    treatment or the consequences of accepting or refusing treatment; and

(3)

Any choices the appellant made
    were on the basis of his delusional beliefs.

[9]

Finally, we do not agree that the appellant was denied a fair hearing.
    Any curtailment in the cross-examination of Dr. Hauck was on matters tangential
    to the issues before the Board.

[10]

For
    these reasons, the appeal is dismissed.

Robert
    J. Sharpe J.A.

G.R.
    Juriansz J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Peters Estate v. Desjardin Securite Financiere,
    2016 ONCA 282

DATE: 20160420

DOCKET: C61175

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Chanderdai
    Peters, Executrix and Trustee of the Estate of Isaac Peters

Plaintiff

(Appellant)

and

Desjardin Securite
    Financiere, Compagnie DAssurance Vie / Desjardins Financial Security Life
    Assurance Company and METRO ONTARIO INC.

Defendant

(Respondent)

James Jagtoo and Frances Jagtoo for the appellant

Rebecca Gosevitz for the respondent

Heard:  April 14, 2016

On appeal from the judgment of Justice Laurence A.
    Pattillo of the Superior Court of Justice, dated September 23, 2015.

ENDORSEMENT

[1]

Chanderdai Peters, in her capacity as Executrix and Trustee of the
    Estate of her son, Isaac Peters, appeals the decision of the motion judge
    granting summary judgment dismissing her action.

[2]

On December 12, 2012, Mr. Peters died as a result of injuries caused by
    a fall from the balcony of his twelfth floor apartment. The appellant commenced
    an action claiming payment of an accidental death benefit pursuant to a group
    policy (the Policy) issued by the respondent Desjardins Financial Security
    Life Assurance Company (Desjardins) to Metro Ontario Inc. (Metro).

[3]

It was not disputed that Mr. Peters was an employee of a wholly owned
    subsidiary of Metro at the time of his death and that he was covered by the Policy.
    However, Desjardins brought a motion for summary judgment to dismiss the action
    on the basis that the appellant could not meet her burden of establishing that
    the death was caused by accident. In the alternative, Desjardins relied on the
    suicide exclusion in the Policy.

[4]

Applying the roadmap for summary judgments drawn in
Hryniak v.
    Mauldin
, 2014 SCC 7, at para. 66, the motion judge first reviewed the
    record without using the new fact-finding powers and found that there was a
    genuine issue requiring a trial on the issue whether the appellant had
    established on a balance of probabilities that Mr. Peters died accidently. He
    concluded that there was evidence to support both that Mr. Peters died
    accidently and that he died by suicide. However, the motion judge was of the
    view that the need for a trial could be obviated by resorting to the powers
    listed in r. 20.04(2.1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg.194.

[5]

After reviewing the evidence in detail, the motion judge found that the
    appellant could not meet her onus of establishing on a balance of probabilities
    that her sons death was an accident. Accordingly, he granted summary judgment
    dismissing her claim.

[6]

The appellant does not dispute that it was open to the motion judge to
    determine the case on a motion for summary judgment. Her criticism is that the motion
    judge, having embarked on the use of his powers under r. 20.04(2.1), failed to
    adequately consider and assess the evidence that supported a conclusion that
    the death was caused by accident. She further submits that there were
    credibility issues in the evidence that the motion judge did not address.

[7]

We disagree. There were no significant credibility issues on the
    evidence. What were at issue were the inferences to be drawn from the evidence.
    In our view, the motion judge carefully considered the evidence and drew
    inferences that were available to him. It was not incumbent on the motion judge
    to advert to every piece of evidence that might support a conclusion that the
    death was accidental.

[8]

The motion judge was aware of the appellants position that the
    conclusions and opinions reflected in reports prepared by the police officers
    involved in the case and the Coroners office raised credibility issues.  In
    his endorsement, the motion judge stated that he would not consider those conclusions
    and opinions in his analysis.

[9]

In these circumstances, there is no basis to interfere with the motion
    judges conclusion that the appellant did not meet her onus.

[10]

The appellant raises the additional issue of the dismissal of her action
    against Metro. She submits that the motion judge erred in dismissing the action
    against Metro, given that Metro did not participate in the motion and that the
    claim against it is based on alleged misrepresentations contained in a booklet
    produced by Metro explaining the Policy. We agree. The nature of the claim
    against Metro is different from the contractual claim asserted against
    Desjardins and it was not open to the motion judge to dismiss the action
    against it.

[11]

The appeal is dismissed, except to the extent that the dismissal of the
    action against Metro is set aside. As agreed between the parties, Desjardins,
    as the successful party, is entitled to its costs of the appeal, fixed at
    $9,500 inclusive of fees, disbursements, and applicable taxes.

John
    Laskin J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pro-Demnity Insurance Company v. Ontario (Financial
    Services Commission), 2016 ONCA 260

DATE: 20160408

DOCKET: C61171

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Pro-Demnity Insurance Company

Applicants (Appellants)

and

Financial Services Commission of Ontario and Her
    Majesty the Queen in Right of the Province of Ontario as Represented by the
    Attorney General of Ontario

Respondent (Respondent)

John J. Chapman and Jennifer Bush, for the appellant

Robert H. Ratcliffe and Edmund Huang, for the respondent

Heard and released orally: April 6, 2016

On appeal from the judgment of Justice David L. Corbett
    of the Superior Court of Justice, dated September 28, 2015.

ENDORSEMENT

[1]

The Pro-Demnity Insurance Company provides professional liability
    insurance to Ontario architects. The Ontario Architects Association, the body
    that regulates architects in Ontario pursuant to the
Architects Act
,
    R.S.O. 1990, c. A.26, is authorized by s. 2(5) of that Act to own shares in
    Pro-Demnity. Pro-Demnity is licenced under the
Insurance Act
, R.S.O.
    1990, c. I.8,

to sell liability insurance to architects.

[2]

Pro-Demnity brought an application under r. 14.05(3)(d) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking a determination that s.
    2(5) of the
Architects Act
does not prevent it from expanding the scope
    of its insurance business beyond liability insurance for architects and to
    insureds other than architects. The application judge held that he had
    jurisdiction to hear the application, but declined to exercise it.

[3]

On appeal, the appellant argues that the application judge erred
    in declining to exercise his jurisdiction and submits that this court should
    interpret s. 2(5).

[4]

Pro-Demnitys commenced its Rule 14.05(3)(d) application after it had
    submitted an application to the Superintendent to amend its licence to sell
    insurance. Section 27(2) of
The
Insurance
    Act
gives the Superintendent exclusive jurisdiction to determine all
    questions of fact and law that arise in dealing with that application. In
    response to Pro-Demnitys application, the Superintendent requested certain
    information and expressed a concern in relation to s. 2(5) of the
Architects
    Act
. Upon receiving that preliminary response, the appellant commenced
this
application for an interpretation of
    s. 2(5) divorced from its license amendment application.

[5]

While the motion judge determined he had jurisdiction to rule on the r.
    14.05(3)(d) application, he declined to exercise that jurisdiction. He
    explained that he regarded it as more appropriate for the Superintendent to
    determine the question in the context of the licence amendment application, and
    then allow any challenge to the Superintendents decision to come before the
    court on judicial review on a full record.

[6]

The motion judges decision was discretionary and reasonable. In the
    circumstances, we see no reason to interfere.

[7]

The appeal is dismissed.

[8]

The costs of the appeal are fixed in the amount of $10,000, all
    inclusive.

Robert
    J. Sharpe J.A.

R.
    G. Juriansz J.A.

L. B. Roberts J.A.