COURT OF APPEAL FOR ONTARIO

CITATION: Lilydale Cooperative Limited v.
    Meyn Canada Inc., 2019 ONCA 761

DATE: 20190930

DOCKET: C64740

Feldman, Roberts and Fairburn
    JJ.A.

BETWEEN

Lilydale Cooperative Limited

Plaintiff

and

Meyn Canada Inc.
,
Mey-Can Equipment
    Ltd.
,
Meyn Food Equipment Inc.
, EMK NV and Elboma Moortgat
    Konstruktie NV

Defendants (
Appellants)

and

Allied Boiler Services
    Inc. and
Weishaupt Corporation

Third Parties (
Respondent)

Sandra L. Secord, for the appellants

Kammy K. Digambar and Alicia
    Piotrowski, for the respondent

Heard: March 7, 2019

On appeal from the judgment of Justice Peter
    J. Cavanagh of the Superior Court of Justice, dated November 22, 2017, with
    reasons reported at 2017 ONSC 6983.

Feldman J.A.:

[1]

This is an appeal from a summary judgment dismissing
    the appellants third party claim against the respondent as statute barred. The
    motion judge relied on issue estoppel

or abuse of process to prevent the
    appellants from relitigating the limitation issue, based on the summary
    judgment that had dismissed as statute barred another third party claim by the
    appellants seven years earlier.

[2]

I would dismiss the appeal based on
    discoverability. The motion judge erred in applying the doctrine of issue
    estoppel or abuse of process, but the third party claim is nonetheless out of
    time and should be dismissed. It was not legally appropriate for the appellants
    to wait for a jurisdictional dispute to be resolved before commencing its third
    party claim.

Facts

[3]

The plaintiffs action arises from a fire at its
    poultry processing plant on January 29, 2004. The plant was owned and operated
    by the plaintiff, Lilydale Cooperative Limited, now Sofina Foods Inc.
    (Lilydale).

[4]

There are two groups of defendants to the main
    action: Meyn Canada Inc., Mey-Can Equipment Ltd., and Meyn Food Equipment Inc.
    (collectively, Meyn); and EMK NV and Elboma Moortgat Konstruktie NV
    (collectively, EMK).

[5]

At all relevant times, Meyn was a supplier of
    food processing equipment. Meyn designed a fryer and oven system which it sold to
    Lilydale in 1994. EMK supplied a component, a thermal boiler, for the fryer and
    oven system that was supplied by Meyn to Lilydale.

[6]

On December 22, 2004, Lilydale commenced an
    action in Alberta against Meyn and EMK for damages arising from the fire,
    alleging that the parts each company had supplied were defective. Lilydale
    claimed breach of contract against Meyn, and negligence against both Meyn and
    EMK.

[7]

Because of a limitation issue in the Alberta
    action, Lilydale commenced the Ontario action against Meyn and EMK on January
    19, 2006, making essentially the same claims as in the Alberta action.

[8]

Lilydale served Meyn with the statement of claim
    in both the Alberta and the Ontario actions on March 10, 2006. In a letter on
    the same date, Lilydale stated that it would proceed only in one of the two
    provinces. On April 4, 2006, Lilydale also served EMK with the statement of
    claim in both actions.

[9]

On November 14, 2006, Meyn moved to stay
    Lilydales action in Ontario on the basis that Alberta was the most convenient
    forum, or alternatively because the Ontario action was an abuse of process. According
    to counsel for Meyn, the three parties to the two actions (Lilydale, Meyn and
    EMK) had an understanding that Lilydales claims against EMK and Meyn would be
    held in abeyance until the forum issue was determined. Pending the resolution
    of the forum issue, neither Meyn nor EMK pleaded in the Ontario action.

[10]

There is no evidence indicating that Weishaupt
    Corporation, the respondent in this appeal, was made aware of this understanding,
    or of the status of the Ontario action during this time.

[11]

Meyns motion was dismissed by Day J. on
    February 13, 2007:
Lilydale Co-operative Ltd. v. Meyn Canada Inc.
(2007), 84 O.R. (3d) 621 (S.C.) and the appeal was dismissed by this court on
    February 14, 2008:
Lilydale Co-operative Ltd. v. Meyn Canada Inc.
,
    2008 ONCA 126, 50 C.P.C. (6th) 1. On March 6, 2008, Meyn informed the other
    parties that it would not pursue a further appeal. As a result, the Alberta
    action was discontinued.

[12]

On May 22, 2008, Meyn served its statement of
    defence and cross claim against EMK in the Ontario action.

[13]

On November 14, 2008, just over two years and
    eight months after the Ontario claim was served on it, Meyn issued third party
    claims in the Ontario action against Weishaupt and Allied Boiler Services Inc.,
    claiming against Weishaupt for breach of contract, and against Allied for
    breach of contract and in tort.

[14]

On November 27, 2008, EMK also issued third
    party claims against Weishaupt and Allied in tort.

[15]

In July 2010, Allied sought an order striking
    out both Meyns and EMKs third party claims against it on the grounds that
    they were statute barred. Weishaupt did not bring a similar motion to strike at
    that time.

[16]

On July 21, 2010, the Allied motion judge granted
    Allieds motion and dismissed both third party claims against Allied:
Lilydale
    Co-operative Limited v. Meyn Canada Inc.
, 2010 ONSC 4114. Meyn took no
    position on this motion and did not attend.

[17]

The grounds for the motion were based on s.
    18(1) of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sched. B,
    which provides:

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

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

[18]

In dismissing the third party claims against
    Allied, the Allied motion judge made two findings: 1) under s. 18(1) the
    discoverability principles in s. 5 of the
Limitations Act

do
    not apply; and 2) even had she accepted that s. 5 applied to claims under s.
    18(1), she would have found that EMK failed to issue its third party claim
    against Allied within two years from the discovery of its claim.

[19]

In 2013, EMK and Meyn brought a special case
    motion to determine whether Alberta law, including its limitation provisions,
    applied to Lilydales claims. On October 30, 2013, Pollak J. determined that
    Alberta law applies to Lilydales tort claims and Ontario law applies to its
    contract claims:
Lilydale Cooperative Ltd. v. Meyn Canada Inc.
, 2013
    ONSC 5313. As a result, the parties agreed that Lilydales tort claims against
    Meyn and EMK were statute barred by Albertas ultimate ten year limitation
    period, but the contract claim against Meyn in Ontario continued. That decision
    was upheld by this court on April 22, 2015:
Lilydale Cooperative Limited v.
    Meyn Canada Inc.
2015 ONCA 281, 335 O.A.C. 7.

[20]

The motion to dismiss Meyns third party claim
    that is the subject of this appeal, was brought by Weishaupt in July 2017 on
    the same ground that Allied had raised in its 2010 motion, that the claim is statute
    barred.

[21]

On November 22, 2017, the motion judge granted summary
    judgment, dismissing Meyns third party claim against Weishaupt on the basis of
    issue estoppel. He held that Meyn was precluded by the doctrine of issue
    estoppel, or in the alternative, abuse of process, from relitigating the same
    question that had been decided seven years earlier in the Allied motion in
    which Meyns third party claim against Allied was dismissed, i.e. whether s.18
    of the
Limitations Act
,

was subject to the discoverability
    criteria in s. 5. Because he relied on issue estoppel and abuse of process, the
    motion judge did not address and apply the discoverability criteria under s. 5
    of the
Limitations Act
to Meyns claim against Weishaupt.

Issues

1)

Did the motion judge err by applying the
    doctrine of issue estoppel?

2)

Did the motion judge err by applying the
    doctrine of abuse of process?

3)

If yes, is Meyns third party claim against Weishaupt
    statute barred?

Analysis

(1)

Did the motion judge err by applying the doctrine of issue estoppel?

[22]

Issue estoppel is a branch of
res judicata
(the other branch being cause of action estoppel) which precludes the relitigation
    of issues previously decided in court in another proceeding:
Toronto (City)
    v. C.U.P.E.
, Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para.
    23. There are three preconditions to invoking the doctrine of issue estoppel:

1)

The issue must be the same as the one decided in
    the prior decision;

2)

the prior judicial decision must have been
    final; and

3)

the parties to both proceedings must be the same,
    or their privies:
C.U.P.E.
at para. 23, quoting from
Danyluk v.
    Ainsworth Technologies Inc.
, 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 25.

[23]

In
C.U.P.E.
, an employee of the City of
    Toronto who worked as a playground supervisor was convicted of sexual assault
    of a boy under his supervision. When the employee grieved his dismissal by the
    City, the arbitrator determined that he was not bound by the findings of the
    criminal trial judge that formed the basis for the conviction and ordered the
    employee re-instated on the basis that he had not committed the sexual assault.

[24]

One of the issues on the appeal was whether the
    doctrine of issue estoppel applied to preclude the arbitrator from making a
    different finding than the one made at the criminal trial. The stumbling block for
    applying issue estoppel was the third requirement: that the parties to both
    proceedings must be the same, or their privies, as the Crown and the City are
    not the same party nor is the City a privy of the Crown.

[25]

In that context, the Supreme Court considered,
    and rejected dispensing with the third requirement of issue estoppel, known as
    mutuality, as has been done in some other jurisdictions, in order to be able
    to apply the doctrine. Arbour J. examined the rationales for and the
    consequences of abandoning the mutuality requirement in the United States. She
    concluded at para. 29:

What emerges from
    the American experience with the abandonment of mutuality is a twofold concern:
    (1) the application of the estoppel must be sufficiently principled and predictable
    to promote efficiency; and (2) it must contain sufficient flexibility to
    prevent unfairness. In my view, this is what the doctrine of abuse of process
    offers, particularly, as here, where the issue involves a conviction in a
    criminal court for a serious crime.

[26]

Arbour J. observed that because the primary
    concern in that case was with the integrity of the criminal process rather than
    the traditional issue estoppel concerns such as costs and multiple vexatious
    proceedings, she was satisfied that issue estoppel did not apply. She stated at
    para. 32: [f]or these reasons, I see no need to reverse or relax the
    long-standing application of the mutuality requirement in this case and I would
    conclude that issue estoppel has no application.

[27]

On the motion under appeal, Weishaupt submitted
    that Meyn was precluded from relitigating the legal issue respecting whether
    the doctrine of discoverability applies to s. 18 of the
Limitations Act
because that issue was decided in the Allied motion. Meyn responded that issue estoppel
    could not apply because it failed on the third requirement, mutuality. Because
    Weishaupt was not a party to the Allied motion, the requirement that the same
    parties or their privies must be parties to both proceedings was not met. Meyn
    made the further point that by waiting to bring its motion to strike, Weishaupt
    took the risk that subsequent judicial decisions could change the
    interpretation and application of s. 18 of the
Limitations Act
.

[28]

The motion judge based his conclusion that issue
    estoppel did apply on the fact that Weishaupt was a party to Meyns third party
    action against Allied and Weishaupt, even though it was not a party to the Allied
    motion to strike the claims against Allied. He found that because Weishaupt was
    a party to the proceeding in which the Allied motion was brought, Weishaupt would
    be affected by [the Allied motion judges] decision, and therefore issue
    estoppel applied.

[29]

The motion judge quoted no authority for this
    conclusion and, with respect, it does not accord with the law on issue
    estoppel. Rather it assumes the result  if issue estoppel applied, then
    Weishaupt would be affected by the prior decision, but not if it did not apply.

[30]

Issue estoppel requires mutuality of parties in
    the proceeding that resulted in the binding decision. Weishaupt was not a party
    to the Allied motion. While in this case it is in Weishaupts interest to apply
    issue estoppel, it would be different had Allied lost its motion to strike. In
    that case, Meyn could not seek to rely on that outcome to bind Weishaupt, when
    Weishaupt had no right to participate and no ability to appeal. Issue estoppel
    is intended to dictate a fair outcome  that the same parties are precluded
    from relitigating the same issue. To bind Weishaupt to a decision that it had
    no right to participate in would be unfair and contrary to the principles
    underlying
res judicata
and issue estoppel. That is why mutuality
    remains one of the requirements for applying the doctrine.

[31]

It is also unfair to Meyn to bind it to a
    decision from another motion that it chose not to dispute, brought by another party.
    While the record does not disclose the reason for Meyns strategic decision not
    to oppose the Allied motion, it was entitled to make that decision for reasons
    that applied to Allied but may not have applied to Weishaupt. To effectively
    penalize Meyn for that choice may have the effect of encouraging unnecessary
    litigation, especially in complex multi-party actions. Meyns decision not to
    try to hold Allied as a third party cannot prevent Meyn from taking a different
    position with Weishaupt, if Weishaupt seeks the same relief. It is not bound by
    issue estoppel because Weishaupt was not a party to the earlier proceeding.

[32]

The motion judge listed the following four
    requirements of issue estoppel that he found were met in this case at para. 39
    of his reasons:

a.

The question that was decided by [the Allied motion judge] that is
    said to create the estoppel, that the discoverability principles in s. 5 of the
Limitations Act

do not apply to claims subject to section 18 of
    the
Limitations Act

and each of EMK and Meyn had two years from
    the date of service of Lilydales Statement of Claim in which to issue its
    Third Party Claim, is the same question that is before me.

b.

The decision of [the Allied motion judge] is final.

c.

Both Weishaupt and Meyn are parties on the motion before me in which
    issue estoppel is raised, and both were parties to Meyns third party action in
    which the decision of [the Allied motion judge] was made.

d.

The question decided by [the Allied motion judge] on the application
    of the discoverability principles in s. 5 of the
Limitations Act

to
    a claim for contribution and indemnity that is subject to s. 18 was fundamental
    to the substantive decision to dismiss Meyns Third Party Claim against Allied.

[33]

However, his statement at c) is incorrect: the
    decision made by the Allied motion judge was not made in Meyns third party
    action against Weishaupt. It was made in Meyns third party claim against
    Allied. While both claims are made in the same pleading, they are separate,
    independent, stand-alone claims. The fact that they are made in the same
    pleading does not make Weishaupt, a non-party to the Allied motion, a party for
    the purpose of issue estoppel. To do so would undermine the purpose of the
    doctrine and the fairness of its application.

(2)

Did the
    motion judge err by applying the doctrine of abuse of process?

[34]

The doctrine of abuse of process is a flexible
    doctrine unencumbered by the specific requirements of issue estoppel, and can
    be applied where the requirements of issue estoppel may not be met to prevent
    what is essentially the relitigation of an issue that has already been
    determined:
C.U.P.E.

at paras. 35-37.

[35]

The motion judge stated that if the lack of
    mutuality had prevented him from deciding the motion on the basis of issue
    estoppel, then in the alternative, he would have found that Meyn was precluded
    by the doctrine of abuse of process from relitigating the question decided in
    the Allied motion. Referring to
C.U.P.E.
, he stated at para. 41 of his
    reasons that the rationales for applying both doctrines are based on the
    principles of judicial economy, consistency, finality and the integrity of the
    administration of justice.

[36]

While the application of the doctrine of abuse
    of process involves the exercise of discretion by a motion judge, in my view,
    the motion judge erred in the exercise of his discretion by applying the
    doctrine of abuse of process to these facts. He should have rejected the
    application of the doctrine for two reasons: 1) by the time the motion was
    argued, the law with respect to s. 5 and s. 18 of the
Limitations Act

had changed since the Allied motion in 2010; and 2) it is unfair to Meyn to
    essentially penalize it for not participating in the Allied motion.

[37]

First, on the Allied motion, the Allied motion
    judge decided that the two year limitation period in s. 18 of the
Limitations
    Act
was not subject to the discoverability criteria in s. 5. Since her
    decision, this court has determined in

Mega International Commercial
    Bank (Canada) v. Yung
, 2018 ONCA 429, 425 D.L.R. (4th) 439, that
    properly interpreted, s. 18 is subject to discoverability under s. 5. While the
    question of the proper interpretation of s. 18 and whether it is subject to
    discoverability under s. 5 was the subject of conflicting decisions prior to
    the 2018 decision in
Mega
,
that law has now been settled in a
    manner that is inconsistent with the Allied motion judges decision.

[38]

In
Minott v. O'Shanter
    Development Co.

(1999),
42 O.R.
    (3d) 321 (C.A.)
, Laskin J.A. commented on the role
    of a change in the law when a judge is deciding whether to apply the doctrine
    of issue estoppel. He stated at para. 51:

If the decision of a court on a point of law in
    an earlier proceeding is shown to be wrong by a later judicial decision, issue
    estoppel will not prevent relitigating that issue in subsequent proceedings. It
    would be unfair to do otherwise.

[39]

The same discretionary fairness factors apply to
    a judges decision whether to apply the doctrine of abuse of process:
C.U.P.E.
at para. 53. Because the law with respect to s. 18 and s. 5 of the
Limitations
    Act

was unsettled when the Allied motion was heard, Meyn was
    entitled to argue that discoverability principles should be applied. Its
    argument was that it did not discover that a third party claim in the Ontario
    action was the appropriate means to seek a remedy, until after the issue of
    where Lilydales action would proceed, i.e. the forum issue, had been finally
    determined.

[40]

I would add that even if the motion judge did
    not err in his exercise of discretion, it would be an error for this court to
    uphold his decision now that this court has held in
Mega
that the
    correct interpretation of s. 18 includes the principles of discoverability,
    contrary to the decision on the Allied motion in 2010.

[41]

Second, in
C.U.P.E.
, the Supreme Court
    could not apply the doctrine of issue estoppel because the parties to the
    criminal proceeding and to the arbitration were not the same. The
    accused/employee was the same but the Crown and the City were separate parties.
    The court therefore considered whether it could and should apply the doctrine
    of abuse of process to prevent the factual finding of the criminal conviction
    from being undermined by the opposite finding of the arbitrator on the same
    facts.

[42]

The court explained that abuse of process
    focuses on the integrity of the adjudicative process rather than on the interests
    of the parties to the attempted relitigation of an issue. For example, in the
C.U.P.E.
case itself, the court found that the relitigation of the issue whether the employee
    sexually assaulted the child amounted to a blatant abuse of process. It
    undermined the integrity of the criminal process.

[43]

However, the court pointed out circumstances
    where it would be unfair to apply abuse of process or issue estoppel even if
    the requirements were met. One example it gave was where the stakes in the
    original proceeding were minor but in the subsequent proceeding they were very
    significant. In that case it would be unfair to favour the goal of finality where
    the incentive to defend the original proceeding was low. That example appears
    to apply squarely in this case, where Meyn was apparently not concerned about
    maintaining Allied in the litigation and chose not to respond to the Allied
    motion, but certainly wants to keep Weishaupt in as a third party.

[44]

The motion judge favoured the goal of finality
    in this case. He stated at para. 42 of his reasons:
[i]f parties were permitted to relitigate questions that were finally
    decided because of new views they may later take of the law that applies in a
    given case, whether based upon new judicial decisions or other considerations,
    litigation would have no end [citation omitted]
. However, he did not
    consider the unfairness discussed by the Supreme Court in
C.U.P.E.
when a party chooses for its own reasons not to respond to one partys motion,
    but has reasons to respond to anothers.

[45]

There was no abusive conduct by Meyn. It chose
    to respond to the motion by Weishaupt as it was entitled to do, and make the
    legal and factual arguments that it believed applied in the context of its
    claim against Weishaupt.

(3)

Is Meyns third-party claim against Weishaupt statute
    barred?

[46]

As discussed above, the motion under appeal was
    heard and decided before this courts decision in
Mega
. Because the
    motion judge decided the motion based on issue estoppel or abuse of process, he
    concluded that he did not need to decide the legal issue whether discoverability
    principles apply under s. 18. He therefore never considered when Meyn
    discovered its third party claim, applying the criteria in s. 5 of the
Limitations
    Act
.

[47]

While Meyns position on the appeal was that the
    court should dismiss the summary judgment motion and send the limitation issue
    on to be heard as part of the trial, it was acknowledged in oral argument that it
    had put its best foot forward on the motion as required. The respondent
    submitted that this court should decide the limitation issue.

[48]

Meyns argument rests on the fourth criterion
    that governs the discovery date for a claim under s. 5(1)(a) of the
Limitations
    Act
, which reads: that, having regard to the nature of the injury, loss
    or damage, a proceeding would be an appropriate means to seek to remedy it.

[49]

Meyns position is that it was not legally
    appropriate under s. 5(1)(a)(iv) of the
Limitations Act
to bring the
    third party proceedings until the forum issue was finally decided in February
    2008 and that the two years ran from that time. Its submission is based on what
    occurred in the main action where Lilydale took the position by letter dated March
    10, 2006 that it would only be proceeding in one jurisdiction, Alberta or
    Ontario. Meyn did not defend or take any steps in the Ontario action. In its
    submissions on this appeal, Meyn explained that the reason for this was because
    it believed that doing so had the potential to undermine its position in
    support of the stay of the Ontario action.

[50]

Meyns argument regarding discoverability has
    two prongs. First, it could not deliver any third party claim in the Ontario
    action to ensure that it did not attorn and thereby jeopardize the forum
    argument. Second, if it had been successful in establishing that Alberta was
    the correct forum, then the Ontario action would have been discontinued and
    there would have been no need for any third party proceedings. Therefore, the
    principle applies from
407 ETR Concession Co. v. Day
,
2016 ONCA
    709, 133 O.R. (3d) 762, and
Presidential MSH Corp. v. Marr, Foster &
    Co. LLP
,
2017 ONCA 325, 135 O.R. (3d) 321, that it would not be legally
    appropriate to commence a legal proceeding while another resolution process that
    may resolve the matter is ongoing.

[51]

Dealing first with the issue of how this court
    should proceed, I am satisfied based on the record and the submissions, that the
    record for the summary judgment motion was complete and that there is no
    genuine factual issue that requires a trial. Therefore, while it would have
    been better for this court to be reviewing a finding by the motion judge on the
    issue of discoverability, this court is in as good a position as the motion
    judge to determine that issue based on the record.

(a)

Does the risk of attornment and prejudice to the
    forum motion postpone the commencement of the limitation period?

[52]

Attornment to a courts jurisdiction by a
    defendant signifies acquiescence to the jurisdiction of the court. When a party
    takes steps beyond merely contesting the jurisdiction of a court, that party
    may be found to have voluntarily engaged the jurisdiction of the court and
    therefore attorned to it:
Wolfe v. Pickar
,
2011 ONCA 347, 332
    D.L.R. (4th) 157, at para. 44.
See
    also
Kunuthur v. Govindareddigari
, 2018 ONCA 730, 427 D.L.R. (4th) 120, at
    para. 18, leave to appeal refused, [2018] S.C.C.A. No. 449
.
Meyn
    submits that filing pleadings in Ontario, including by serving the third party
    claim, could have prejudiced the position it was taking on the forum motion,
    that Alberta was the more appropriate forum.

[53]

In support of its assertion of potential
    prejudice, Meyn cites four cases where the issue was whether steps taken
    amounted to attornment:
Stoymenoff v. Airtours PLC

(2001), 17
    C.P.C. (5th) 387 (Ont. S.C.), at paras. 35, 38-9;
Atlas Copco Inc. v. Hillier
,
    2009 CanLII 2897 (Ont. S.C.), affd 2009 ONCA 687, at paras. 17-18;
Stanley
    v. Stanley
, [2003] O.T.C. 307 (S.C.); and
Carolina Foods Inc. v.
    838116 Ontario Inc.
,
2015
    ONSC 1342. In my view, these cases do not assist Meyn. None of these cases involved
    the impact of attornment on a limitation period.

[54]

This court held in
Federation Insurance Co.
    of Canada v. Markel Insurance Co. of Canada
,
2012 ONCA 218, 109
    O.R. (3d) 652, that in s. 5(1)(a)(iv), the word appropriate means legally
    appropriate, and that tactical choices that arise during litigation do not
    delay the commencement of the limitation period. Sharpe J.A. stated at para.
    34, in the context of pre-claim negotiations:

To give
    "appropriate" an evaluative gloss, allowing a party to delay the
    commencement of proceedings for some tactical or other reason beyond two years
    from the date the claim is fully ripened  would, in my opinion, inject an
    unacceptable element of uncertainty into the law of limitation of actions.

[55]

While a finding that serving a third party claim
    amounted to attornment could be prejudicial, or even fatal to a partys forum
    challenge, the strategic decision of how to deal with this risk of prejudice is
    the type of tactical consideration that does not affect the legally
    appropriate calculus in s. 5(1)(a)(iv) of the
Limitations Act
. The
    issue of whether serving a third party claim solely to protect a limitation
    period will amount to voluntary attornment is for the forum judge to decide. It
    does not affect the discoverability of the third party claim and therefore the
    commencement of the limitation period.

[56]

I also note that a party such as Meyn, facing
    the expiry of a limitation period, had a number of procedural avenues to take
    to avoid that consequence rather than allow a limitation period to expire or be
    found to have expired on the application of discoverability principles.

[57]

First, Meyn could have alerted Weishaupt that
    the third party claim was coming and sought its agreement under s. 22(3) of the
Limitations Act
to a stand-still pending the determination of the
    forum issue. I can see no reason for the third party not to agree. However, if
    there were one, then judicial authorization on the attornment issue could be
    sought. That is what occurred in
Joyce v. MtGox Inc.
, 2016 ONSC 581,
    where Perell J., on a case management conference in advance of the expiry of
    the limitation period, involving a party in Meyns position, ruled that issuing
    the third party claim would not amount to attornment.

[58]

Second, Meyn could have served the third party
    claim, with an express reservation of its rights, and then argued at its forum
    motion that it did so only to preserve the limitation period and therefore has
    not attorned to Ontarios jurisdiction. Meyn brought a
forum non conveniens
motion. It was understood by all the existing parties that Meyn was not
    acknowledging the convenience of Ontario as the forum for the action by
    bringing the motion. While that motion was outstanding, it would be anomalous
    indeed if Meyns service of a third party claim to preserve a limitation period
    in Ontario would be found to amount to such an acknowledgement.

[59]

To conclude, while risk of attornment was a
    potentially legitimate concern for Meyn, that concern related to its position
    on the forum issue and did not affect the discoverability of its third party
    claim and the need to take the steps necessary to preserve the claim within the
    limitation period.

(b)

Was it legally inappropriate to bring third
    party proceedings before the forum issue had been determined?

[60]

In
Presidential
,
this court,
    following
407 ETR
, explained that a proceeding could be legally
    inappropriate and therefore not discoverable within the meaning of s. 5(1)(a)(iv)
    of the
Limitations Act
, where the party with the claim is pursuing
    another resolution process that would eliminate the loss and thereby avoid
    needless litigation.

[61]

Meyn submits that this principle applies to the
    facts of this case. Meyn was pursuing a challenge to Ontario as the convenient
    forum, which, if successful, would have ended the Ontario action and obviated
    the need to commence a third party claim against Weishaupt. I would reject Meyns
    submission. A forum challenge does not resolve the dispute between the parties
    but merely moves the dispute to a court in another jurisdiction. It is not an
    alternative process, but rather, it is the same process but in a different
    jurisdiction.

[62]

This is consistent with recent decisions of this
    court where the alternative process argument from
407 ETR
and
Presidential
was raised and rejected in the context of multiple court or alternative dispute
    resolution proceedings. For example, in

Ridel v. Goldberg
, 2019 ONCA 636, 71
    C.B.R. (6th) 1, van Rensburg J.A. held that the determination of an appeal, which
    had the potential to eliminate a new claim against a different defendant, did
    not postpone the commencement of the limitation period with respect to that new
    claim. She stated at para. 77:

While not determinative, this courts decision
    in
Tapak v. Non-Marine Underwriters, Lloyds of
    London
, 2018 ONCA 168 (CanLII), 76 C.C.L.I. (5th)
    197, leave to appeal refused, [2018] S.C.C.A. No. 157, is instructive. In that
    case, the appellants relied on s. 5(1)(a)(iv) to argue that an appeal against
    other parties, if successful, might have eliminated their losses and that they
    therefore did not know that their action for contribution and indemnity was an
    appropriate means to seek to remedy their losses until the appeal was
    dismissed. At para. 13, the court rejected this argument, stating:

[Section] 5(1)(a)(iv) is not intended to be
    used to parse claims as between different defendants and thus permit one
    defendant to be pursued before turning to another defendant. Rather, it is
    intended to address the situation where there may be an avenue of relief
    outside of a court proceeding that a party can use to remedy their injury,
    loss or damage.

See also
Gravelle (CodePro
    Manufacturing) v. Denis Grigoras Law Office
, 2018 ONCA 396, at para. 6.

[63]

The forum challenge is conceptually similar to
    settlement discussions, which may resolve the entire claim so that no court
    proceeding need be commenced, but nonetheless do not postpone the running of
    the limitation period: see
Presley v. Van Dusen
,
2019 ONCA 66,
    432 D.L.R. (4th) 712, at para. 25; and
Markel
at para. 34.

[64]

As in
Ridel
,
Tapak v. Non-Marine
    Underwriters
,
Lloyds of London
,
2018 ONCA 168, 76
    C.C.L.I. (5th) 197, leave to appeal refused, [2018] S.C.C.A. No. 157, and
Gravelle
,
    in this case, there was no alternative resolution process to which Weishaupt
    was a party that could have resolved the issue between it and Meyn. Rather, Meyn
    was attempting to have the whole Ontario action dismissed, obviating the need
    for the third party claim.

[65]

To allow parties to wait, at their discretion,
    for other court or arbitral proceedings to conclude, where the result could
    obviate the need to bring a claim that they know exists, is inconsistent with
    the purpose of the
Limitations Act

for two reasons. First, this
    approach could extend the limitation period well beyond the two year original
    threshold in an uncertain and unpredictable manner. Second, there were no significant
    savings to be achieved by not commencing the third party claim until the forum
    challenge was complete. Procedurally, a stand-still or tolling agreement could
    be sought until the forum issue had been finalized by the court so that the
    third party would not be required to plead in response. However, it would be on
    notice that if the Ontario action proceeds, it is a named party, required to
    preserve its documents, and respond to the action as advised.

[66]

In my view, these factors drive the conclusion
    that the day Meyn was served with the statement of claim by Lilydale, it knew
    that a third party claim against Weishaupt was the appropriate means to seek a
    remedy from Weishaupt. It was therefore not legally appropriate for Meyn to
    wait until the forum issue had been decided before the commencing third party
    claim.

Result

[67]

In the result, while the doctrines of
    issue estoppel and abuse of process are not applicable in this case, I would
    dismiss the appeal on the basis that under s. 18 of the
Limitations Act
,
    applying the discoverability criteria under s. 5, Meyn discovered its third
    party claim against Weishaupt when it was served with the statement of claim by
    Lilydale in March 2006. Its third party claim brought in November 2008 was
    therefore statute barred. I would award costs to Weishaupt in the agreed amounts
    of $15,000 inclusive of disbursements and HST for the appeal and $23,000
    inclusive for the motion.

Released: K.F. September 30, 2019

K. Feldman J.A.

I agree. L.B. Roberts J.A.

I agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Ontario (Attorney
    General), 2019 ONCA 730

DATE: 20190919

DOCKET: C66839

MacPherson, Watt and Miller
    JJ.A.

BETWEEN

Lina Lochner and Silvano Lochner

Applicants (Appellants)

and

Ontario (Attorney General)

Respondent

Lina Lochner and Silvano Lochner,
    self-represented

Gavin MacDonald, for the respondent

Heard: in writing

On appeal from the judgment of Justice
    Laura A. Bird of the Superior Court of Justice, dated March 25, 2019.

REASONS FOR DECISION

[1]

At the request of counsel for the Attorney
    General for Ontario, the respondent in this appeal, the Registrar has referred
    this appeal to the court for summary determination under s. 685(1) of the
Criminal
    Code,
R.S.C.
, 1985, c. C-46
.

[2]

For the reasons that follow, we are satisfied
    that the appeal is frivolous and vexatious and can be determined without being
    adjourned for a full hearing before a panel of the court. As a result, the
    appeal is dismissed.

The Background Facts

[3]

In August, 2006 members of the Emergency Task
    Force of the Toronto Police Service executed a
Feeney
warrant at the
    Lochner residence to arrest Silvano Lochner. During execution of the warrant,
    officers tasered George Lochner whom they erroneously believed was Silvano Lochner.
    Paramedics arrived at the residence, attended to George Lochner and transported
    him to hospital. He was released from hospital the same night.

[4]

The appellants, as well as other family members,
    have sought various forms of redress for this incident since 2006. A civil
    suit, taken over by the Provincial Guardian and Trustee, was settled and the
    settlement approved over then objections of the Lochner family. Complaints to
    the Ontario Civilian Police Commission. Requests of the Chief of Police to institute
    disciplinary proceedings against the officers who executed the warrant.

The Private Prosecution: The First Phase

[5]

On September 23, 2016 the appellant Silvano
    Lochner laid a private information alleging that officers executing the
Feeney
warrant committed the offences of assault with a weapon and assault causing
    bodily harm in doing so.

[6]

In January, 2017 the appellant Lina Lochner, who
    is the appellant Silvano Lochners mother, and his brother laid separate
    informations against the same officers alleging the same offences.

[7]

In February, 2017 the three informants laid a
    further private information against the same officers, alleging that one of
    them had committed perjury during an examination for discovery in 2009. The
    alleged perjury related to the number of taser guns used to disable George
    Lochner during the 2006 execution of the
Feeney
warrant.

[8]

After four pre-enquête appearances in the
    Ontario Court of Justice, the Crown stayed all the outstanding private
    informations on two grounds:

i.

that there was no reasonable prospect of
    conviction; and

ii.

that there was no public interest in continuing
    the prosecution.

[9]

The appellants applied to a judge of the
    Superior Court of Justice seeking an order setting aside the stay entered by
    the Crown and directing a new
pre-enquête
in the
    Ontario Court of Justice. The motion judge dismissed the application on the
    grounds that:

i.

the Crowns exercise of its discretion to stay
    proceedings on the basis of no reasonable prospect of conviction was proper;
    and

ii.

the Crowns assessment of the absence of public interest in
    continuing the prosecution was reasonable.

See,
Lochner v. Ontario (Attorney
    General)
, 2017 ONSC 5293, at paras. 5-7.

The Private Prosecution: The Second Phase

[10]

Within one week of the dismissal of their
    application for an order in lieu of
mandamus
, the appellants laid a
    new information against the officer whom they had previously claimed had
    committed perjury during the same examination for discovery in 2009. The
    substance of the perjury alleged was the same as had been alleged in the
    previous information. In their application to have process issue, the
    appellants said that they had not previously sworn an information for the same
    offence.

[11]

A justice of the peace conducted a pre-enquête on
    two separate days. She found that there was no evidence:

i.

that the officer knowingly made a false
    statement; or

ii.

that the officer made the statement with intent
    to mislead.

As a result of this evidentiary
    deficit, the justice of the peace declined to issue process. The justice
    considered, but did not decide, that the proceedings were frivolous, vexatious
    or an abuse of process.

[12]

The appellants again sought an order in lieu of
mandamus
to compel the conduct of a new pre-enquête on the same information. The
    application was dismissed. The motion judge found:

i.

that the substantive arguments of the appellants
    were totally devoid of merit;

ii.

that, irrespective of the merits of the arguments advanced, the
    relief sought was discretionary and would have been refused in the exercise of
    that discretion; and

iii.

that the application was vexatious in that the appellants sought to
    circumvent the effect of the previous decision on the same information by
    recommencing with a fresh but duplicative information before a different
    justice.

See,
Lochner v. Ontario (Attorney
    General)
, 2017 ONSC 2994.

[13]

The appellants appealed the motion judges
    decision to this court. The appeal was dismissed for the reasons given by the
    justice of the peace and by the motion judge:
Lochner v. Ontario (Attorney
    General)
, 2019 ONCA 52.

The Private Prosecution: The Third Phase

[14]

Two days after this court dismissed their appeal
    from the second refusal of an order in lieu of
mandamus
, the
    appellants swore a third information alleging the same perjury by the same
    officer at the same examination for discovery. Once again, the appellants
    denied having previously sworn an information about the same matter. They also
    denied that another justice of the peace had refused to issue process for the
    same offence.

[15]

On this occasion, the appellants swore the
    information in a different territorial jurisdiction than had been the case for
    the two prior informations. A justice of the peace conducted a hearing under s.
    504 of the
Criminal Code
, but declined to receive the information
    because the appellants had failed to adduce any evidence to support the
    allegations that the proposed accused had committed perjury.

[16]

For a third time, the appellants applied to a
    judge of the Superior Court of Justice for an order in lieu of
mandamus
compelling the justice of the peace to hold a hearing. Among other things, they
    argued that the justice of the peace committed jurisdictional error by
    converting the hearing under s. 504 to a pre-enquête under s. 507.1.

[17]

The motion judge dismissed the appellants
    application. In her view, even if the justice of the peace committed
    jurisdictional error by converting a hearing about receipt of the information
    under s. 504 to a pre-enquête about the issuance of process under s. 507.1, the
    appellants had suffered no prejudice. This was so, the motion judge reasoned,
    because even if the information had been received, process would not have
    issued at the conclusion of the pre-enquête for lack of evidence of the
    essential elements of the offence.

[18]

The motion judge declined to exercise her
    discretion to grant an order in lieu of
mandamus
for a second reason
    the conduct of the appellants. That conduct included:

i.

disregard of a prior decision of a judge of the
    Superior Court of Justice which characterized their second attempt to have an
    information received as an abuse of process;

ii.

providing false information on an intake form required of private
    informants that they had not previously sworn an information alleging the same
    offence;

iii.

failing to disclose that on a prior occasion another justice of the
    peace had refused to issue process on the basis of the same information; and

iv.

contravening s. 507.1(7) of the
Criminal Code
by seeking
    another pre-enquête after an earlier refusal, in the absence of any new
    evidence in support of the allegations.

See,
Lochner v. Ontario (Attorney
    General)
, 2019 ONSC 1908.

This Appeal

[19]

After a thorough review of the materials filed
    by the appellants, we are satisfied that this appeal is at once frivolous and
    vexatious and can be determined without a full hearing of oral arguments before
    a panel of this court.

[20]

To begin, the notice of appeal filed in this
    court reveals no arguable grounds of appeal. In generic terms, the notice
    recites that the motion judge erred:

i.

in law;

ii.

in fact;

iii.

in both law and fact; and

iv.

in making assumptions, rather than findings of
    facts.

[21]

The additional materials filed by the
    appellants, in particular, their factum, do not lay bare any substantial ground
    of appeal that would warrant an oral hearing by a panel of this court. It
    necessarily follows, in our view, from the absence of legal merit in the
    proposed appeal that the appeal is frivolous, as that term is used in s. 685(1)
    of the
Criminal Code
.

[22]

Second, we also consider the proposed appeal is
    vexatious.

[23]

As we have said, the proposed appeal lacks
    merit. It appears to have been initiated in pursuit of an unyielding course of
    harassment extending for more than a decade. After each failure, the appellants
    simply begin again with the same threadbare allegations before a different
    justice of the peace. They do not disclose their previous failures, indeed deny
    their existence by positive misstatement, calculated omission or both. They
    ignore the prohibition in s. 507.1(7) of the
Criminal Code
which
    requires new evidence as a condition precedent for a fresh pre-enquête after a
    prior refusal to issue process.

[24]

The appellants have engaged in an unremitting
    regimen of forum shopping clothed in deceit to make it appear as a matter of
    first impression. On seven previous occasions, they have been told that their
    allegations do not satisfy the standard required for the receipt of an
    information under s. 504 or for the issuance of process under s. 507.1. Yet
    they persist. In our view this warrants characterizing the proposed appeal not
    only as frivolous, but also as vexatious and not requiring an oral hearing
    before a panel of this court.

Conclusion

[25]

For these reasons, we are satisfied that the
    proposed appeal does not show a substantial ground of appeal, is both frivolous
    and vexatious and does not warrant an oral hearing before a panel of this
    court.

[26]

The appeal is dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Makwana v. Bishnu, 2019 ONCA 695

DATE: 20190906

DOCKET: C64355

Sharpe, Trotter and Harvison Young JJ.A.

BETWEEN

Dipikaben Makwana

Applicant
    (Appellant)

and

Sewsankar Bishnu

Respondent
    (Respondent in Appeal)

and

Surujpaul Bishnu

Respondent
    (Respondent in Appeal)

and

Howard Melvin Wasserman

Intervener
    and Trustee in Bankruptcy for Sewsankar Bishnu

G.S. Joseph and M. Newman, for the appellant

Abba Chima, for the respondent, Sewsankar
    Bishnu

Jameel Madhany, for the respondent, Surujpaul Bishnu

Howard Melvin Wasserman, in person

Heard: May 29, 2019

On appeal from the
    order of Justice Bielby of the Superior Court of Justice, dated August 23,
    2017.

COSTS ENDORSEMENT

[1]

We have now received the parties submissions as to costs and make the
    following disposition.

[2]

At the conclusion of the oral hearing of this appeal, the parties agreed
    that the total amount of costs for the appeal and cross-appeal should be
    $30,000.

[3]

The appeal raised three issues, namely, whether the motion judge erred
    by:

1.

varying
    the order for spousal support;

2.

varying
    the order for child support; and

3.

dismissing
    the fraudulent conveyance application and refusing to award Surujpaul Bishnus
    costs of the fraudulent conveyance proceeding.

[4]

In our view it is appropriate to allocate $10,000 in costs to each of
    these three issues.

[5]

The appeal from the order as to spousal support was dismissed and,
    accordingly, the respondent is entitled to $10,000 in costs for that aspect of
    the appeal.

[6]

The appeal from the order as to child support was allowed in part and
    accordingly the appellant is entitled to $10,000 in costs for that aspect of
    the appeal.

[7]

The fraudulent conveyance appeal was dismissed, and we award $7,500 to
    Surujpaul Bishnu, payable by the appellant, for that aspect of the appeal.

[8]

The cross-appeal was dismissed, and we award $2,500 to the appellant for
    that aspect of the appeal.

[9]

In our view, it would not be appropriate to make any order as to costs
    against the trustee in bankruptcy given the nature of the trustees interest in
    this appeal.

[10]

In
    the result, the costs as between the appellant and respondent as to spousal and
    child support are offset and no costs are payable as between those parties.

[11]

As
    the cost of the cross-appeal are to be offset against the costs of the
    fraudulent conveyance appeal, the appellant is ordered to pay $5,000 costs to
    Surujpaul Bishnu.

Robert
    J. Sharpe J.A.

G.T.
    Trotter J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Manastersky v. Royal Bank of Canada, 2019 ONCA 705

DATE: 20190909

DOCKET: C65121

Feldman, Brown and Miller JJ.A.

BETWEEN

James Anthony Manastersky

Plaintiff (Respondent)

and

Royal Bank of Canada and
RBC
    Dominion Securities Inc.

Defendant (
Appellant
)

Jeremy Devereux and Geoff Mens, for the appellant

Nancy Shapiro, for the respondent

Heard: February 19, 2019

On appeal from the judgment of Justice Patrick J. Monahan
    of the Superior Court of Justice, dated February 14, 2018, with reasons
    reported at 2018 ONSC 966.

COSTS ENDORSEMENT

BROWN J.A.:

[1]

In reasons released July 18, 2019, this court unanimously dismissed the
    appeal of RBC Dominion Securities Inc. (RBCDS) in respect of the award
    concerning the foreign exchange methodology; a majority of the court allowed
    the appeal in respect of the award of damages in respect of the carried
    interest plan. As a result, the principal amount of the trial judgment was
    reduced from $1,144,181.50 ($953,392.50 + $190,789) to $190,789.

[2]

Based on the agreement of the parties, the trial judge had awarded Mr.
    Manastersky his costs of the action in the amount of $100,000. The parties have
    been unable to agree on the treatment of that costs award in light of the
    disposition of the appeal.

[3]

In its written cost submissions, RBCDS argues that the award of the
    costs below should be reduced to $40,000. Mr. Manastersky submits that award
    should remain the same or, alternatively, be reduced to no less than $75,000.

[4]

When the costs below are considered in light of the general principles
    governing the fixing of trial costs, I am persuaded that some reduction in the
    award should be made. When a party succeeds on appeal, that success ordinarily
    must be imputed as success at trial:
Eastern Power Limited v. Ontario
    Electricity Financial Corporation
, 2012 ONCA 366, at para. 16. However, it
    does not follow that the trial costs award should be reduced in proportion to
    the monetary success on appeal. More is involved when assessing costs.

[5]

As Mr. Manastersky points out in his written costs submissions, he
    succeeded on four main issues at trial. No appeal was taken by RBCDS on two of
    the issues. In respect of the two issues on appeal, success was divided.
    However, only about 25% of the trial time dealt with the carried interest plan
    issue and only one of the four witnesses called by RBCDS addressed that issue.
    Given those circumstances and the parties initial agreement on the costs of
    the action assessed on a full success basis, which was accepted by the trial
    judge, I conclude that a fair and reasonable award of costs for the action
    below would be $80,000. I would so vary the judgment below.

David Brown J.A.

I agree. K. Feldman J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Marin v. Baiu, 2019 ONCA 769

DATE: 20190930

DOCKET: C66560

Juriansz,
    Benotto and Miller JJ.A.

BETWEEN

Angela
    Marin  formerly Baiu

Applicant/Respondent in Appeal

and

Lucian
    Baiu

Respondent/Appellant in Appeal

Lucian Baiu, self-represented

Angela Marin, self-represented

Heard & released orally: September 26, 2019

On appeal from the judgment of Justice H. McGee of the Superior
    Court of Justice, dated January 21, 2019.

REASONS FOR DECISION

[1]

The parties have been involved in matrimonial litigation
    for eight years. On January 13, 2014, Justice Gilmore released reasons for
    judgment following a five-day trial. The judgment dealt with custody, support
    and equalization.

[2]

The husbands appeal from the judgment was
    dismissed on April 21, 2015. His application for leave to appeal to the Supreme
    Court was dismissed on April 29, 2015. His motion for reconsideration was filed
    with the Supreme Court but not accepted. He then failed to pay the equalization
    of $134,808.00 plus interest plus costs. The wife filed a writ of seizure and
    sale.

[3]

On March 14, 2016, the husband filed a Motion to
    Change to vary custody, terminate support and reduce the equalization payment.
    Various motions, orders and appeals followed. The parties discussed settlement.
    Just when it was thought that the litigation was over, the husband brought
    another Motion to Change, essentially asking for the same relief, except now he
    was seeking spousal support.

[4]

The motion was heard by Justice McGee on January
    11, 2019. She concluded that:

1.

she had no jurisdiction to adjust equalization
    payment;

2.

she had no jurisdiction to change the spousal
    support to award spousal support to the applicant since: i) there was no
    request in the originating process; and ii) there was no order for support to
    change;

3.

she required her husband to pay the outstanding
    cost order before proceeding with the motion to change child support;

4.

the wifes request to have the husband declared a vexatious litigant
    be dismissed because there was no such motion before her.

[5]

The husband appeals.

[6]

We do not accept the appellants submission that
    rule 59.06(2)(a) of the Rules of Civil Procedure applies with respect to subsequently
    discovered facts. The cases relied on by the appellant were not family law
    cases, and only the Family Law Rules, which have the objective of finality in
    family law matters, apply.

[7]

In any event, the fresh evidence the appellant
    sought to file could not have affected the result because the court below had no
    jurisdiction to vary equalization.

[8]

The husbands appeal is essentially seeking a
    new trial on all issues. There is no basis to set aside the order of the motion
    judge as there is no mistake of fact or law articulated. There is a high degree
    of deference owed to all matters of family law at the first instance, but in
    any event, we agree with the motion judges conclusions.

[9]

The appeal is dismissed.

[10]

The in-person respondent did not establish that
    she had incurred any cost for the appeal clause. There will be no costs of the
    appeal.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mississippi River Power
    Corporation v. WSP Canada Inc., 2019 ONCA 771

DATE: 20190930

DOCKET: C66126

Juriansz, Benotto and Miller JJ.A.

BETWEEN

Mississippi
    River Power Corporation

Plaintiff (Appellant)

and

WSP Canada Inc., Genivar Inc.,
    William R. Walker Engineering Inc., Wm. R. Walker Engineering Inc., Douglas
    Leask, M. Sullivan & Son Limited, Michael Dent, Dent Engineering, 1009044
    Ontario Ltd., Harrington Plumbing and Heating Limited operating as Harrington
    Mechanical

Defendants (Respondents)

Helmut R. Brodmann, for the appellant

David M. Adams and Matthew E. Taft, for
    the respondents Michael Dent, Dent Engineering and 1009044 Ontario Ltd.

David A. Tompkins, for the respondent
    M. Sullivan & Son Limited

Christopher F. Reil, for the respondent
    Harrington Plumbing and Heating Limited operating as Harrington Mechanical

J. Stephen Cavanagh, for the respondents
    WSP Canada Inc., Genivar Inc., William R. Walker Engineering Inc., Wm. R.
    Walker Engineering Inc. and Douglas Leask

Heard: September 24, 2019

On
    appeal from the judgment of Justice Robyn M. Ryan Bell of the Superior Court of
    Justice, dated October 15, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from partial summary
    judgment: (1) granted in favour of the Walker respondents limiting the Walker
    respondents potential liability to the appellants to $2 million; (2) granted
    in favour of the remaining respondents also limiting potential liability to $2
    million.

[2]

The Walker respondents entered into a personal
    services contract (PSC) with the appellant which contained a clause limiting
    the liability of Walker to $2 million.

[3]

The appellant argues that the motion judge erred
    in her interpretation of the PSC by impermissibly using subsequent conduct of
    the parties to interpret that contract. Specifically, the error is said to be
    in finding that the parties had agreed by their conduct to extend the terms of
    the PSC beyond design services to govern the construction phase of the project
    as well.

[4]

The appellant argues that the motion judge ought
    to have taken the minutes of the MRPC board meetings as evidence that the
    appellant and the Walker respondents had entered a second contract to govern
    the construction phase, and ought to have applied the terms of that contract.

[5]

The motion judge did not accept this argument,
    and held that the PSC was extended, by way of a stipulated price contract, so
    as to apply to services provided by Walker during the construction phase of the
    project. The motion judges interpretation of the contract is entitled to
    deference. We are not persuaded that the motion judge made any error in
    principle or any other reviewable error. We would not interfere with this determination.

[6]

With respect to the second issue, the appellant
    argues that the motion judge erred in extending the benefit of the limit on
    liability to the remaining respondents. The motion judge found that the
    appellant and Walker intended to extend the benefit of the insurance covenant
    to the remaining respondents. She did so on the basis that it would have made
    no sense commercially for Walker to bargain to limit its own liability to $2
    million, while leaving itself exposed to claims for contribution and indemnity
    from the remaining respondents.

[7]

The appellant conceded that this is a question
    of mixed fact and law to be assessed on the standard of palpable and overriding
    error. The motion judges interpretation of the contract was open to the motion
    judge on this standard of review.

[8]

We do not agree with the submission that the
    motion judge erred in not finding that the insurance limits prescribed by the
    PSC were increased by the quantum required by the CGL coverage set in the
    stipulated Price contract., The insurance limits prescribed by the stipulated
    Price contract do not relate to professional liability, which is the subject of
    the insurance clause the PSC. The PSC HAS mechanism for increasing the limit,
    and that mechanism was not used.

[9]

The appeal is dismissed. We are advised that the
    parties have agreed on costs and there is no need for this court to make an
    order in this respect.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Paterson Veterinary Professional
    Corporation v.

Stilton Corp. Ltd., 2019 ONCA 746

DATE: 20190924

DOCKET: C65863

Paciocco, Harvison Young and
    Jamal JJ.A.

BETWEEN

Paterson Veterinary Professional
    Corporation

Applicant (Respondent)

and

Stilton Corp. Ltd.

Respondent (Appellant)

W. Jaskiewicz, for the appellant

David Fogel, for the respondent

Heard: August 15, 2019

On appeal from the judgment of Justice E. Ria Tzimas of the Superior
    Court of Justice, dated August 21, 2018, with reasons reported at 2018 ONSC
    4952.

Harvison Young J.A.:

A.

Overview

[1]

The appellant, Stilton Corp. Ltd., appeals from
    a judgment which granted the application of the respondent, Paterson Veterinary
    Professional Corporation, for the enforcement of a settlement agreement that
    the parties concluded in 2013.

[2]

Stilton raises three distinct grounds on this
    appeal. First, it submits that the application judge erred in finding that an
    application was an appropriate procedure for enforcing a settlement agreement.
    Second, it submits that the application judge erred in finding that the
    doctrine of frustration was inapplicable in the circumstances of this case.
    Third, it submits that the application judge erred in granting the remedy of specific
    performance.

[3]

For the following reasons, I would dismiss the
    appeal.

B.

Factual Background

[4]

This matter arises out of a long association and
    a shorter history of litigation between veterinarians Dr. James McCleary,
    president and director of Stilton, and Dr. Marjorie Paterson, the sole director
    of Paterson Veterinary. Dr. McCleary began his practice in the 1970s. Dr.
    Paterson joined in the 1980s. The practice operated on Clarkson Road in
    Mississauga (the property). Paterson Veterinary eventually purchased the
    practice (known as the McCleary Animal Hospital) from Stilton through an
    agreement of purchase and sale. Stilton continued to own the property, but the
    agreement of purchase and sale granted Paterson Veterinary a lease of the
    property with an option to purchase. It is this property that is in issue in
    this appeal.

[5]

As a result of a dispute that arose when
    Paterson Veterinary wanted to exercise its option to purchase the property, it
    commenced an action for specific performance and other relief in April 2013. In
    December of that year, the parties settled that action. The settlement
    agreement provided that, following a five-year lease extension, Stilton would
    transfer its title and ownership of the property to Paterson Veterinary and
    Paterson Veterinary would pay the purchase price of $1,250,000 plus HST. The
    action was dismissed pursuant to the settlement agreement.

[6]

Paterson Veterinary continued to lease the
    property, as agreed. As it prepared to complete the contemplated purchase, Dr.
    Paterson was advised on January 26, 2018, through the appellants counsel, that
    Dr. McCleary d[id] not want to sell his property. Stilton refused to close
    the sale of the property on February 1, 2018, despite Paterson Veterinarys
    tender of the executed documents and certified cheques for the purchase price
    and HST.

[7]

Paterson Veterinary applied for specific
    performance of the settlement agreement and for a vesting order. Stilton
    opposed on a number of bases, including that: (1) there were material facts in
    dispute relating to the settlement agreement requiring the application to be
    converted into an action with a full trial, (2) the settlement agreement was no
    longer binding due to the increase in the value of the property, and that (3)
    Paterson Veterinary was not entitled to specific performance. The application
    was granted and is appealed to this court.

C.

Analysis

(1)

Did the application judge err in proceeding by
    way of application?

[8]

Stilton submits that the application judge erred
    by allowing this matter to proceed by way of application. In Stiltons view,
    the application was not properly brought, and proceeding by way of application
    is inappropriate because there are material facts in dispute. I do not accept
    either argument.

[9]

Although the application judge acknowledged that
    Paterson Veterinary had technically erred by failing to refer in its notice of
    application to r. 14.05 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, she held that this oversight could properly be corrected. In her
    view, adding reference to the rule was covered by the phrase such further and
    other remedies as may be appropriate. I see no error in this decision.

[10]

The application judge also held that r.
    14.05(3)(d) and (e) provide for the use of an application in relevant
    circumstances, such as the determination of rights that depend on the
    interpretation of a deed, will, contract or other instrument and the making of
    a declaration of an interest in or charge on land. Rule 14.05(3)(h), as it
    read then, also spoke to the use of an application to obtain relief in respect
    of any matter where it is unlikely that there will be any material facts in
    dispute. Relying on these provisions, she held that the respondents claim
    could proceed by way of application. She did not err in doing so.

[11]

While it is clear that there are matters in
    dispute between these parties, there was, as the application judge concluded,
    no impediment to the courts ability to interpret the legal meaning of the
    [s]ettlement [a]greement and to make a declaration concerning the interest in
    the Clarkson property on the basis of the [s]ettlement [a]greement.

[12]

The appellant argues that the frustration issue
    engaged disputed material facts. I agree with the application judge that it did
    not. Neither party disputed that the value of the property had increased
    significantly since the settlement agreement was concluded. The issues engaged
    included, as she put it: the interpretation of the [s]ettlement [a]greement,
    the assessment of the existence of a breach, and a determination of the
    appropriate remedy for that breach.

[13]

The appellant argues that a request for specific
    performance should not be resolved by way of application. I disagree. Where
    appropriate, specific performance has been granted on applications brought to
    force the sale of real property: see e.g.
Di Millo v. 2099232 Ontario Inc.
,
    2018 ONCA 1051, 430 D.L.R. (4th) 296, leave to appeal to S.C.C. refused, [2019]
    S.C.C.A. No. 55;
THMR Development Inc. v. 1440254 Ontario Ltd.
, 2018
    ONCA 954, 85 B.L.R. (5th) 175;
Sivasubramaniam v. Mohammad
, 2018 ONSC
    3073, 98 R.P.R. (5th) 130, affd 2019 ONCA 242, 100 R.P.R. (5th) 1. In the
    circumstances of this case there are no material facts in dispute that would
    have rendered an application an inappropriate procedural route for determining
    whether to order the equitable remedy sought.

[14]

The application judge therefore did not err in
    allowing this matter to proceed by way of application.

(2)

Did the application judge err in finding that
    the settlement agreement was a valid and enforceable contract?

[15]

Stilton submits that the application judge erred
    in law by rejecting its arguments that the settlement agreement had been
    frustrated as a result of the steep appreciation in real estate prices or was
    ultimately the product of conduct that amounted to economic coercion and
    therefore not enforceable.

[16]

I agree with the application judges analysis on
    this issue. The appellant asks this court to find that the dramatic increase in
    the value of the property since the settlement agreement was negotiated is, in
    and of itself, a frustrating event. I would decline to do so.

[17]

A contract is frustrated when, due to a
    supervening event for which no provision was made by the parties, the
    performance of the contract becomes radically different from that which was
    undertaken:
Naylor Group Inc. v. Ellis-Don Construction Ltd.
,

2001
    SCC 58, [2001] 2 S.C.R. 943, at paras. 53-56. In this case, the price increase was
    not a supervening event that made the performance of the contract radically
    different. Assuming that the lowest initial appraisal exchanged by the parties
    during the settlement negotiation ($945,000) was an accurate estimate of the
    value of the property when the settlement agreement was reached in 2013, and
    that the 2018 appraisal accurately reflects its value ($1,925,000), the value
    of the property approximately doubled over this period. It was fully open to
    the application judge to conclude on these facts that this was insufficient to
    constitute frustration. I agree with her finding that the parties were alive to
    the issue of the propertys value and that they would not have premised their
    agreement on the value of this property staying the same. The price increase
    was significant but not an intervening event that in any way made the
    obligation to transfer the property, at its higher value, radically different.

[18]

As a general proposition, even dramatic price
    changes may be foreseeable and therefore not a suitable basis for a frustration
    claim. Price changes are a risk inherent in any market. This is no doubt why
    frustration claims based on price changes often fail: see e.g.
Holst v.
    Singh
, 2018 ONSC 4220, at para. 6;
642947 Ontario Ltd. v. Fleischer
(1997), 9 R.P.R. (3d) 261 (Ont. C.J.) at para. 97, revd 56 O.R. (3d) 417
    (C.A.). There are strong policy considerations militating against these claims.
    The finality and predictability of contractual relations, as foundational
    principles of our economy, depend on contractual rights weathering the ebbs and
    flows of the market. Certainly, in this case, holding that the increase in
    price over the five-year period frustrated Stiltons obligation to sell the
    property would turn the law of contract on its head by undermining those
    principles. I would reject this ground of appeal.

(3)

Did the application judge err in holding that
    the enforcement of the settlement agreement did not engage the courts
    equitable jurisdiction?

[19]

The application judge erred in finding that the
    existence of a settlement agreement allowed her to order specific performance
    without undertaking an analysis as to whether this was the appropriate remedy.
    I am aware of no authority supporting this approach. To the contrary, in
Veiga
    v. Veiga
, 2013 ONSC 7027, Stinson J. found it necessary for the party
    seeking specific performance of a settlement agreement to establish that it is
    warranted: at para. 43. Similar analysis has been undertaken in analogous cases
    elsewhere in Canada: see e.g.
Beier v. Proper Cat Construction Ltd.
,
    2013 ABQB 351, 564 A.R. 357, at paras. 97-101.

[20]

It was incorrect to say that the appellant had
    agreed to the requested specific performance of the sales transaction in the
    settlement agreement. The settlement agreement is by nature a contract. The
    contractual obligation taken on by the appellant in this settlement agreement
    is distinct from a remedy that may be ordered by the court upon finding that
    this contract has been breached. Even where parties explicitly stipulate in a
    contract that specific performance is preferred, which these parties did not
    do, such stipulations are not binding on the court: Robert J. Sharpe,
Injunctions
    and Specific Performance,
(Toronto: Thomson Reuters, 2012) (loose-leaf
    updated 2018, release 27), at para. 7.730. The application judge was required,
    upon finding the settlement agreement had been breached, to consider whether
    the courts equitable jurisdiction should have been exercised to grant the
    requested remedy of specific performance. With respect, she erred by not doing
    so.

(4)

Is specific performance the appropriate remedy?

[21]

Having determined that the application judge
    erred in failing to determine whether specific performance was an appropriate
    remedy, it is now necessary to undertake this analysis. As in
THMR
    Development
, this court is in as good a position as the application judge
    to deal with this issue because this case was argued on a paper basis: at para.
    21. As already discussed earlier in these reasons, there are no material facts
    in dispute that require a trial on this issue, despite the appellants
    submissions to the contrary.

[22]

Specific performance is a discretionary
    equitable remedy that should be granted where damages cannot afford an
    adequate and just remedy in the circumstances:
Matthew Brady Self Storage
    Corporation v. InStorage Limited Partnership
, 2014 ONCA 858, 125 O.R. (3d)
    121, at para. 29, leave to appeal refused, [2015] S.C.C.A. No. 50. In
    determining whether to exercise this discretion I consider below (1) whether
    the property is unique, (2) whether the respondent remained ready, willing and
    able to close, (3) whether the respondent is disentitled to an equitable remedy
    and (4) whether damages are a suitable and just alternative in this case. For
    the reasons that follow, specific performance was the appropriate remedy.

(1)

Is the property unique?

[23]

The Supreme Court of Canada has held that in the
    case of a breach of a contractual obligation to sell real property, specific
    performance should not be granted as a matter of course absent evidence that
    the property is unique to the extent that its substitute would not be readily
    available:
Semelhago v. Paramadevan
, [1996] 2 S.C.R. 415, at para.
    22. Real property will be unique when it has a quality that cannot be
    replicated elsewhere that relates to the proposed use of the property and makes
    it particularly suitable for the purpose for which it was intended:
John E.
    Dodge Holdings Ltd. v. 805062 Ontario Ltd.
(2001), 56 O.R. (3d) 341
    (S.C.), at para. 73, affd 63 O.R. (3d) 304 (C.A.), leave to appeal refused,
    [2003] S.C.C.A. No. 145.

[24]

In her evidence, Dr. Paterson lists a number of
    features that make the property uniquely suited to Paterson Veterinarys needs
    as the owner of the practice, including that it: (1) is currently set up as a
    veterinary clinic, (2) is a free-standing bungalow building, (3) has 11 parking
    spots, (4) is situated on a quiet street for walking dogs in her preferred
    neighbourhood, and (5) has capacity to board approximately 80 animals. There
    was no evidence as to the number of animals actually boarded or the financial
    significance of boarding to the practice. Dr. McClearys evidence was that the
    clinic had limited ability to board animals, and on cross-examination he
    estimated the capacity at 70 animals. He did not dispute the other
    characteristics highlighted by Dr. Paterson but denied that the property is
    uniquely featured.

[25]

Perhaps most significantly, it is undisputed
    that the clinic has operated out of the property since 1974. In that time,
    goodwill value has been accumulated. This goodwill attaches not only to the
    veterinary practice but also to the property on which it has operated during
    this period. Indeed, it is common ground that in negotiating the sale of the
    practice, Dr. Paterson was adamant that Paterson Veterinary would only buy if
    it was able to eventually purchase the building. Dr. Patersons evidence is
    that ownership of the property is critical to the business, and the
    respondent negotiated accordingly.

[26]

This fact scenario is very similar to that in
The
    One Stop Fireplace Shop Ltd. v. Parigon Industries Inc.
, 2013 ONSC 1562,
    31 R.P.R. (5th) 277. There, a tenant under a commercial lease brought an
    application to compel a landlord to sell the leased premises. On the issue of
    whether the property in question was unique, thereby entitling the tenant to
    specific performance, Nightingale J. found that the property was unique to the
    tenant because they had been operating their business out of the location for
    several years. As the property had accumulated considerable goodwill value to
    the tenant with its customers, it was unique to the tenant: at para. 72. Similarly,
    in this case, the goodwill value attached to the property makes it particularly
    suitable for the purpose of continuing to operate the veterinary practice.

[27]

I would also note the fact that the respondent
    negotiated with the appellant for title in the property not only when it
    purchased the veterinary practice, but also after settling the 2013 litigation.
    The consistency with which Dr. Paterson has pursued legal title in the property
    provides further support for the conclusion that it is uniquely suited to
    Paterson Veterinarys purpose. In addition, despite somewhat bald statements by
    Dr. McCleary on cross-examination that there are other similar or better
    properties nearby, Stilton has not provided specific details of any such
    property, for example, real estate listings of properties for sale.

[28]

Overall then, the respondent has met its burden
    of establishing that the property is unique. The property logically has a
    number of features that make it uniquely suited to the purpose of carrying on a
    veterinary practice that has in fact operated there for decades. Even if the
    physical features could be replicated elsewhere, an alternative location would
    be an inadequate substitute because the goodwill associated with the practice
    is intertwined with
this
property. It is common
    ground that the respondent would not have purchased the practice without the
    option to own the property and has twice negotiated its purchase. As the
    combination of the goodwill and physical features cannot be replicated
    elsewhere and are uniquely suited to the continuation of the veterinary
    practice by the respondent, the property is unique for the purposes of the
Semelhago
analysis.

(2)

Was the respondent ready, willing and able to
    close?

[29]

A party seeking a sale of real estate to be
    specifically performed must remain ready, willing and able to close on the
    purchase of the property:
Silverberg v. 1054384 Ontario Limited
(2008),
    77 R.P.R. (4th) 102 (Ont. S.C.), at para. 110, affd 2009 ONCA 698, 266 O.A.C.
    216.

[30]

Paterson Veterinary was and is clearly ready,
    willing and able to purchase the property as of the date agreed upon in the
    settlement agreement. The closing date set out in the settlement agreement is
    February 1, 2018. On January 26, 2018, Stiltons lawyer wrote to Paterson
    Veterinarys lawyer confirming that he represented Stilton, requesting that any
    further correspondence be directed to him, and expressing that Dr. McCleary did
    not want to sell the property. It is uncontested that on the agreed upon
    closing date a representative of Paterson Veterinary attempted to deliver
    closing documents, including certified trust cheques, to Stiltons lawyer. Dr.
    McClearys evidence is that he instructed his lawyer not to accept any
    documents related to the purchase of the property. It was the refusal of
    Stilton to sell, and not unwillingness or inability on the part of Paterson
    Veterinary that prevented the deal from closing. As in
Silverberg
, at
    para. 112, the commencement of the application for specific performance is
    evidence that Paterson Veterinary continues to be ready, willing and able to
    purchase the property.

(3)

Is the respondent disentitled to equitable
    relief?

[31]

A relevant consideration in deciding whether to
    order specific performance is the behaviour of the parties having regard to the
    equitable nature of the remedy:
Matthew Brady
, at para. 32. Equitable
    relief may be refused if the party seeking relief has been guilty of misconduct
    in relation to the contract that party seeks to enforce:
Silverberg
,
    at para. 120. Here, there are no facts disentitling the respondent to equitable
    relief. Paterson Veterinary has clean hands, there was no delay in bringing
    this application, and no disentitling circumstances were seriously alleged.

[32]

To the contrary, the equities of this case
    clearly favour the respondent. It seeks to enforce a settlement agreement that
    was negotiated between two commercial parties represented by counsel. That
    settlement agreement was itself the product of a lawsuit seeking an agreement
    of purchase and sale concerning this property to be specifically performed. As
    discussed above, Stiltons position that the settlement agreement was not
    enforceable is without merit. The agreement was breached. Dr. McClearys
    evidence is that he felt that the settlement agreement was no longer in full
    force and effect because there had been a dramatic increase in the propertys
    value and that the property is [his] baby. This did not justify Stiltons refusal
    to honour the settlement agreement. Here, the equities clearly favour the
    respondent who seeks to enforce a valid settlement agreement in face of the
    appellants clear breach.

(4)

Are damages a suitable alternative in this case?

[33]

Damages are not a suitable alternative to
    specific performance on the facts of this case. As discussed above, the
    property is uniquely suited to Paterson Veterinarys business and even a
    substantial damages award would not allow it to purchase a readily available
    substitute. Further, the damages caused by Stiltons breach would be difficult
    if not impossible to accurately quantify given the intertwining of the goodwill
    in the business with the goodwill in the property. It would be inequitable to
    force the respondent to engage in this exercise. It had already sued the
    appellant to specifically perform the sale and entered into a valid settlement
    agreement under which the appellant agreed to sell before finding itself in
    court again seeking specific performance of the same sale. As the application
    judge highlighted, there is value in parties being able to rely on settlement
    agreements and thus avoiding a never-ending spiral of litigation. Damages
    would therefore be inadequate and inequitable in the circumstances.

(5)

Conclusion on the appropriate remedy

[34]

Given that the property is unique, that Paterson
    Veterinary was and is willing and able to close the transaction, that there are
    no facts disentitling it to equitable relief, and that damages are not a
    suitable alternative, specific performance is the appropriate remedy.

D.

Disposition

[35]

I would dismiss this appeal. I would order the
    appellant to transfer title to the property pursuant to the settlement
    agreement. The sale must be completed within 30 days of the release of this
    decision, failing which I would order that the property shall vest in the
    respondent upon the respondents performance of its corresponding contractual
    obligations under the settlement agreement, provided such performance occurs
    within 90 days of the release of this decision.

[36]

If the parties have not been able to agree on
    costs, I would order that they file costs outlines, bills of costs along with
    their submissions, not to exceed 5 pages in length, within 10 business days of
    the receipt of this decision.

Released: September 23, 2019

DMP

A.
    Harvison Young J.A.

I
    agree D.M. Paciocco J.A.

I
    agree M. Jamal J.A.


WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.N., 2019 ONCA 741

DATE: 20190920

DOCKET: C64094

Juriansz, Pepall and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.N.

Appellant

Anil K. Kapoor and Victoria M.
    Cichalewska, for the appellant

Elena Middelkamp, for the respondent

Heard and released orally:
    September 16, 2019

On appeal from the conviction entered by
    Justice Paul F. Monahan of the Ontario Court of Justice on March 16, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    human trafficking and one count of assault. The trial judge admitted two video-recorded
    statements of the complainant after she recanted at trial.

[2]

Counsel relied on his factum for the argument
    that the trial judge erred by admitting the two statements.

[3]

The trial judge made no error in admitting the
    statements. A careful oath was administered on the second statement, and there
    was a reasonable basis upon which the trial judge could conclude there was an
    appropriate substitute for an oath on the first statement. The police officer taking
    the first statement made it clear the complainant was to tell the truth. In any
    event, in her second statement she swore everything she had said in the first
    statement was true. The statements were given voluntarily, they were video
    recorded, and the complainant was available for cross-examination at the trial.

[4]

Counsels oral argument was based on
    insufficiency of reasons. He submitted that the trial judge provided insufficient
    reasons for rejecting the complainants trial testimony and failed to explain
    why the prior statements satisfied him of the appellants guilt beyond a
    reasonable doubt.

[5]

We do not accept this argument. In our view the
    reasons, as principally summarized in para. 84, demonstrate why the trial judge
    rejected the complainants trial evidence and why he accepted her prior statements.
    He clearly considered the suggestion the complainant was angry with the
    appellant and so had fabricated her allegations against him. However, on a
    consideration of all the evidence he concluded the prior statements were truthful.

[6]

The trial judges reasons satisfy the test set
    out in
R. v. Sheppard
, [2002] 1 S.C.R. 869 and
R. v. Dinardo
,
[2008] 1 S.C.R. 788.

[7]

The appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.