COURT OF APPEAL FOR ONTARIO

CITATION: Granger v. Granger, 2016 ONCA 945

DATE: 20161215

DOCKET: C61292

Cronk, Juriansz and Brown JJ.A.

BETWEEN

John Granger

Appellant (Respondent/Counter-Applicant)

and

Katarina Granger and Helena Granger

Respondents (Applicants/Counter-Respondents)

Saba Ahmad and Michael Hackl, for the appellant

Bruce Baron and Maija Pluto, for the respondents

Heard: October 12, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 20, 2015, with reasons reported at
    2015 ONSC 6238 and the application decision of March 23, 2015, with reasons
    reported at 2015 ONSC 1711.

Juriansz J.A.:

INTRODUCTION

[1]

In this appeal the appellant John Granger is pitted against his elderly
    mother Katarina Granger and his sister Helena Granger. The core of their
    dispute relates to the family home to which Helena and Katarina held joint
    title and in which they were all residing at the material time. Johns main
    appeal is from the trial judges dismissal of his application for a declaration
    that he had a beneficial interest in the family home, or alternatively for
    equitable damages for financial contributions and services rendered to
    Katarina. John also appeals from the judges decision on an earlier application
    upholding the validity of a power of attorney Helena holds for Katarina.

[2]

For the reasons that follow, I would allow both parts of the appeal.
    First, though the trial judge was faced with a difficult and acrimonious family
    dispute in which he made few findings of fact because much of the evidence of
    both sides lacked credibility, he erred in his approach to unjust enrichment.
    Applying the proper approach to the findings the trial judge did make results
    in part of Johns unjust enrichment claim succeeding. Second, considering the
    trial judges ultimate findings at trial as fresh evidence, his initial ruling
    on the application upholding Helenas power of attorney cannot stand.

FACTS AND PROCEDURAL HISTORY

(1)

Background

[3]

The family home in Toronto was purchased in 1981 and title was taken in
    Katarinas name only. Shortly after his father deserted the family in 1984,
    John dropped out of school and lived with his mother in the family home for the
    next 30 years. Then this dispute arose.

[4]

Johns position is that his mother wanted him to live with her to look
    after her and the house. He says she promised him that if he did so he would
    have half the house upon her death. Later, after Katarina helped Helena
    purchase another property, John says Katarina promised him the entire house
    upon her death.

[5]

In 2012, after Helenas marriage broke up, she moved back into the
    house. Helena, exercising her power of attorney, transferred title to the house
    to Katarina and herself as joint tenants for two dollars consideration.

(2)

The proceedings below

[6]

On September 25, 2014 Katarina and Helena commenced an application for a
    writ of possession to evict John and his common-law wife Margaret from the
    family home. John brought a counter application challenging Helenas power of
    attorney, seeking the appointment of a neutral litigation guardian, and seeking
    a beneficial interest in the property.

[7]

The applications came before the trial judge sitting as the application
    judge in March, 2015. He found that Katarina was competent and dismissed Johns
    allegation of undue influence as well as his request for the appointment of a
    litigation guardian. He granted Katarinas and Helenas request for an order evicting
    John and Margaret from the property. They moved out of the property in 2015.

[8]

The application judge also ordered a trial of an issue as to whether
    Katarina and Helena held their interests in the property for John by way of
    constructive trust, or whether John was entitled to damages for his financial
    and other contributions to the property and to Katarinas care and maintenance.

[9]

After hearing nine days of evidence, the trial judge dismissed Johns
    claims by order dated October 20, 2015.

(3)

None of the family members were credible

[10]

The trial judge concluded he could not rely on the evidence any of the
    three family members.

a.

The mother Katarina Granger

[11]

The trial judge questioned whether Katarina had any recollection at all
    of the various incidents giving rise to this dispute. He added:

117
Katarina consistently and repeatedly offered
    stock answers such as "Helena handled everything", "Helena
    always helped me and John did nothing" and "Helena always looks out
    for me". These responses sounded rehearsed, and likely served as "go
    to answers" when Katarina either didn't understand the question, or didn't
    want to give the actual answer. The fact that Katarina denied signing the 2011
    Will showed me the extent to which her testimony could venture in the event she
    felt she was giving the "wrong evidence".

118
During Katarina's testimony, Helena was seated
    in the back of the courtroom. On several occasions after Katarina answered the
    questions posed by counsel, Helena would exclaim phrases such as "no,
    that's not right" or "she is not understanding the question". It
    appeared that Helena was either expressing disappointment with her mother's
    evidence, or even worse, trying to remind or influence her mother to
    "stick to the script".

[12]

Katarina was so entrenched in her position that she claimed Helena was
    responsible for certain basement renovations John claimed to have made, even
    though Helena had already moved out of the property for several years and never
    testified as to her involvement at all with any basement renovations.

b.

The daughter Helena Granger

[13]

The trial judge remarked that in their testimony, John and Margaret had
    described Helena as an aggressive, domineering, stubborn bully, and then
    observed that Helena came as advertised, and then some. He
found Helenas explanation of inconsistencies between her
    testimony at trial and her prior sworn testimony as shocking.
Helena
    took irreconcilable positions and
effectively
    admitted that she viewed it permissible to tell a different story to John's
    counsel than the one she spun to the Court at trial, purportedly taking the
    same oath.

[14]

The trial judge said that Helena attempted to portray herself as
    superior to the rest of the Granger family members by making false,
    unbelievable claims of higher education. He found her testimony strained the
    limits of both common sense, and reality. The trial judge concluded Helena was
    a witness who essentially said or assumed anything to avoid the mere
    contemplation of being incorrect.

c.

The son John Granger

[15]

The trial judge was troubled by Johns failure to produce any documents
    that clearly showed a transfer of funds from himself to his mother. The trial
    judge observed that he sought to resile from
specific
    representations to Canada Revenue Agency, and presumably on his unemployment
    insurance applications.  The trial judge was troubled by Johns
    characterization of the property as his mothers in more recent years. In
    cross-examination John gave rambling answers that did not specifically respond
    to questions posed of him. When confronted with inconsistent statements from
    prior cross-examination on his affidavits, he was evasive and on one occasion
    even answered that his previous evidence given only months earlier was wrong.

d.

The documentary evidence

[16]

In addition to finding the parties not credible, the trial judge found
    he could not rely on most documents they tendered. Because of the parties
    conflicting and confusing testimony about the documents he found it difficult
    to make anything of them at all.

[17]

For example, the parties produced a series of written lease agreements
    listing John and Margaret as the tenant but, curiously, indicating Helena as
    the landlord. At trial, all parties testified the leases were shams but
    offered completely different explanations as to why the leases were prepared
    and signed. The trial judge found none of the explanations made any sense.
    Whatever the reason for the existence of these leases, the trial Judge observed
    the parties have attempted to alter the truth to suit their respective needs
    in these proceedings.

[18]

Another example is the registration of a $50,000 mortgage against the
    title of the second property in 2002 at a time when Katarina owned it. The
    parties disputed who knew about the mortgage, who received the proceeds, and
    who made the payments on the mortgage. After reviewing the parties testimony,
    the trial judge said [o]nce again, neither party provided a satisfactory, let
    alone realistic explanation for this factual issue.

[19]

The parties produced copies of various rent receipts issued to either
    John or Margaret. The trial judge found it curious that the receipts were
    signed by Helena and not by the owner of the property. Helena testified the
    rent receipts were issued to John to assist his applications for social
    assistance and unemployment insurance over the years to prove he was incurring
    rent obligations. John did not disagree but testified he turned his social
    assistance payments and most of his unemployment insurance benefits over to his
    mother.

(4)

The decisions under appeal

[20]

John appeals from the trial decision dated October 20, 2015. He submits
    the trial judge erred by not imposing a constructive trust on Katarinas and
    Helenas interests in the property. In the alternative, he submits that the
    trial judge erred by not ordering equitable damages for his financial and other
    contributions to Katarinas care and maintenance.

[21]

John also appeals the part of the decision on the first application
    refusing to revoke Helenas power of attorney. Johns counsel did not have a
    formal order reflecting the decision of March 23, 2015 issued, taking the
    position that as long as an order was not taken out the judge was not
functus
and was able, at trial, to revisit the findings he had made on the application.
    In the notice of appeal to this court, John appeals from the trial decision of
    October 20, 2015 as well as the application decision of March 23, 2015.

[22]

Rather than outline the trial judges reasons here, I will outline the
    relevant portions of his reasons under each ground of appeal.

ISSUES

[23]

There are three main issues in this appeal:

1)

Did the trial judge
    err in denying Johns claim based on proprietary estoppel?

2)

Did the trial judge
    err in denying Johns claim based on unjust enrichment?

3)

Did the trial judge
    err in failing to reconsider his initial decision upholding Helenas power of
    attorney in light of his subsequent adverse findings of fact against Helena at
    trial?

ISSUE 1: PROPRIETARY ESTOPPEL

[24]

Relying on this courts decision in
Clarke v. Johnson
, 2014
    ONCA 237, 371 D.L.R. (4th) 618 (C.A.), the trial judge set out the following
    test for a claim of proprietary estoppel:

i.

the owner of the property induces, encourages or allows the
    claimant to believe that he/she has or will enjoy some right or benefit over
    the property;

ii.

in reliance upon his/her belief, the claimant acts to his
    detriment to the knowledge of the owner; and

iii.

the owner then seeks to take unconscionable advantage of the
    claimant by denying him/her the right or benefit which he/she expected to
    receive.

[25]

The trial judge rejected Johns claim on the basis he was not promised a
    present interest in the property by Katarina but, rather, an interest that
    would not vest until Katarinas death. He therefore held that Johns claim
    based on proprietary estoppel was premature.

[26]

Johns counsel submits this proposition is wrong in law. She
    argues there is no requirement that the right or interest in question must be a
    present interest in the property and that a promise to bequeath is sufficient
    to ground a claim for proprietary estoppel. Johns counsel points out that in
Cowderoy v. Sorkos Estate
,
2014 ONCA 618, 325 O.A.C. 130, this
    court found a promise to bequeath was enforceable (where there had been partial
    performance).

[27]

That is so, but the court in
Cowderoy
also found the trial
    judge erred by ordering the property conveyed. This court ruled the property
    should not have been ordered conveyed because the enforceable promise was that
    the property would be bequeathed and the plaintiffs would receive the promised
    interest upon the promisors death. In
Cowderoy
, the promisor had
    died. This court set aside the conveyance and substituted an order deeming the
    bequest to have been made in the promisors will. The distinction is important
    because the estate was facing a claim for dependents relief.

[28]

As the trial judge stressed, in this case, John never claimed a
    present interest in the property but asserted he was promised he would receive
    an interest upon his mothers death. Applying the approach of
Cowderoy
,
    the trial judge noted
perhaps Johns complaints will
    resurface in potential estate litigation at some point in the future. However,
    at this point, Johns claim for a beneficial interest in the property based
    upon proprietary estoppel fails.

[29]

The added wrinkle in this case is that Katerina has disposed of the
    allegedly promised asset and can no longer bequeath it to John. But even
    characterizing Johns claim as one for damages for the breach of the promise,
    his right to damages would arise on Katarinas death.

[30]

I therefore reject this ground of appeal. The trial judge made no error
    in holding it would be premature to assess whether John might have a claim
    based on proprietary estoppel against Katarinas estate.

ISSUE 2: UNJUST ENRICHMENT

(1)

Allocation of burden of proof in the trial judges reasons

a.

Overview

[31]

Johns counsel submits that the trial judge erred in his application of
    the test for unjust enrichment by failing to properly allocate the burden of
    proof in a case that involved the mutual conferral of benefits. In the first
    step of the proper analysis, the burden is on John to establish merely that he
    conferred a benefit on Katarina. Instead, the trial judge immediately took into
    account the benefits Katarina conferred on John by considering at the first
    step whether John conferred a
net
benefit on Katerina.

[32]

I agree the trial judge did not properly allocate the burden of proof.
    The proper allocation leads to a different result. In a case such as this, in
    which the trial judge finds all the party witnesses entirely lacking in
    credibility, onus is usually dispositive.

b.

The trial judges approach

[33]

In this case, the trial judge recognized the importance of the burden of
    proof. Early in his reasons, he stressed that a moving party has the onus of
    factual proof of the evidence necessary to satisfy its legal burden. And he
    said for a party to seek to discharge its legal onus of proof, the court must
    first be satisfied with the credibility and reliability of the evidence in
    order to be in a position to make the relevant findings of fact.

[34]

In his unjust enrichment analysis, the trial judge placed the onus on
    John, as the claimant, to prove he conferred a net benefit on Katarina. He
    said  I must determine whether John conferred a
net
benefit to Katarina
    as the legal owner of the property (emphasis in original).

[35]

In considering the exchange of mutual benefits, the trial judge began by
    finding as a fact the accommodation John and Margaret enjoyed in Katarinas
    house over the years had a value of $250,000  $350,000. This was one of the
    few clear findings of fact he made.

[36]

Next, he held that whatever financial contributions John and Margaret
    made over the years, they did not surpass the $250,000 - $350,000 they would
    have necessarily incurred in rental payments. Similarly, he held that although
    domestic services are capable of supporting an unjust enrichment claim, any
    services John provided could not satisfy the first element of the unjust
    enrichment test on a net analysis. He came to these conclusions without
    making any specific factual findings about the amount of financial
    contributions made or the value of the services provided, though he found that
    some contributions were made and some services were provided.

[37]

As the trial judge emphasized, the burden of establishing the conferral
    of an enrichment, a corresponding deprivation, and the absence of an
    established juristic reason for the enrichment all lie upon the claimant.
    However, he failed to recognize that where the defendant claims a set-off
    because of the mutual exchange of benefits, the allocation of the burden of
    proof is more nuanced.

c.

The correct approach:
Kerr v. Baranow

[38]

The more nuanced allocation is explained by the Supreme Court of Canada
    in
Kerr v. Baranow
, 2011 SCC 10, [2011] 1 S.C.R. 269. Cromwell J.,
    writing for a unanimous court, focused directly on mutual benefit conferral and
    explained at what point in the analysis it should be considered. He stated that,
    generally, mutual benefit conferral is to be considered at the defence or remedy
    stage. In limited cases it can be taken into account at the juristic reason
    stage of the analysis, but only to the extent that it provides relevant
    evidence of the existence of a juristic reason for the enrichment: para. 109.

[39]

Cromwell J. explained the reason for this approach. He explained, at
    para. 110, that not addressing mutual benefits at the benefit/detriment stage
    of the analysis is consistent with the
quantum meruit
origins of the
    fee-for-services approach and, as well, with the straightforward economic
    approach to the benefit/detriment analysis which has been consistently followed
    by this Court. At para. 112, he added that refusing to take mutual benefits
    into account at the benefit/detriment stage is also supported by a
    straightforward economic approach to the benefit/detriment analysis which the
    Court has consistently followed.

[40]

Cromwell J. stressed that this approach should be used where the alleged
    enrichment consists of services. He said at para. 113: Provided that they
    confer a tangible benefit on the defendant, the services will generally
    constitute an enrichment and a corresponding deprivation.
Whether the
    deprivation was counterbalanced by benefits flowing to the claimant from the
    defendant should not be addressed at the first two steps of the analysis
 (emphasis
    added).

[41]

Cromwell J. went on to state that mutual benefit conferral may in some
    cases be considered at the juristic stage of the analysis but only to shed
    light on the parties reasonable expectations. He explained at para. 115:
    given that the purpose of the juristic reason step in the analysis is to
    determine whether the enrichment was just, not its extent, mutual benefit
    conferral should only be considered at the juristic reason stage for that
    limited purpose.

d.

The
Kerr
approach applies here

[42]

Counsel for the respondent urged in oral argument that Cromwell J.s
    comments in
Kerr
regarding the appropriate analytical approach to
    mutual benefit conferral applied only to the particular context of a joint
    family venture. I do not agree. While
Kerr
and its companion case
Vanasse
    v. Seguin
did involve joint family ventures, Cromwell J.s comments at
    paras. 109-115 are intended to be of more general application. I say this for five
    reasons.

[43]

First, the structure of
Kerr
itself confirms this view. At
    paras. 80-100, Cromwell J. outlines the proper approach to a claim for monetary
    relief based on unjust enrichment in a joint family venture. Where a joint
    family venture has led to wealth generation, the remedy should be calculated
    based on the share of those assets proportionate to the claimants contributions.
    Then, at paras. 101-108, Cromwell J. addresses the difference between that
    situation and one where relief must be calculated on a fee for services
    basis. Both may involve mutual benefit conferral. In the joint family venture
    context, the analysis takes mutual benefit conferral into account in assessing
    relative contribution to the joint assets. By contrast, in the fee for services
    approach, mutual benefit conferral is taken into account in the manner outlined
    at paras. 109-115  namely, it is taken into account as a set off, typically
    at the defence stage of an unjust enrichment analysis.

[44]

Second, Cromwell J. explicitly draws on non-family case law in
    explaining why mutual benefits should not be taken into account at the
    benefit/detriment stage of the analysis. At para. 112, Cromwell J. holds as
    follows: [r]efusing to take mutual benefits into account at the
    benefit/detriment stage is also supported by a straightforward economic
    approach to the benefit/detriment analysis which the Court has consistently
    followed.
Garland
is a good example
 (emphasis added). At
    para. 113, he goes on to state that although
Garland
dealt with
    payment of money, the same approach should apply where the alleged enrichment
    consists of services. These references to
Garland v. Consumers Gas Co.,
[1998] 3 S.C.R. 112 and the courts straightforward economic approach make it
    clear that Cromwell J. viewed his comments regarding the appropriate point at
    which to consider off-setting benefits as having a more general application
    outside of the family context.

[45]

Third, scholarly commentary suggests that Cromwell J.s comments
    regarding the appropriate stage of the analysis to consider off-setting
    benefits apply outside the family context. In P.D. Maddaugh and J.D. McCamus,
The
    Law of Restitution
(loose-leaf), Vol. II (Toronto: Thomson Reuters, 2016),
    the authors point to housekeeper cases as an example of where Cromwell J.s
    comments would apply, at 34:700. They explain as follows:

Where, in the typical case,
a housekeeper is persuaded by an
    elderly gentleman to provide him with housekeeping services until his death on
    the basis of an unenforceable promise that he will leave his home by will to
    the housekeeper
, housekeepers have been allowed to bring successful
quantum
    meruit
claims for the reasonable value of the services rendered in the
    expectation of compensation. In such a case,
it might be argued that the
    free room and board, if any, provided by the deceased could constitute a mutual
    benefit that ought to be taken into account in reducing the award
. The
    correct analysis of such a problem, in our view, would turn on whether the room
    and board provided to the housekeeper was understood by the parties to
    constitute partial compensation for the services rendered. If the parties did
    indeed have such an understanding, it seems inescapable that the value of that
    benefit should be deducted from the ultimate fee-for-services award. If, on the
    other hand, the parties understanding was that the room and board was being provided
    gratuitously and that the only compensation for the services rendered would be
    the home, no deduction would be appropriate, in cases where the facts
    concerning the parties intentions on this point were less than clear, the
    Court would be confronted with a difficult factual determination

In
Kerr
, the discussion of the mutual benefit issue in a
    fee-for-services context is quite focused on the juristic reason test from the
Garland
calculus and the perceived problem of determining precisely where the mutual
    benefits would be taken into account in the
Garland
calculus.
For
    Cromwell J., the correct approach in this context would be not to consider the
    mutual benefits provided by the defendant at the benefit/detriment phase of
    the
Garland
analysis
. One would simply ask whether a benefit was
    conferred and, if so, whether there was a corresponding deprivation suffered by
    the plaintiff. Mutual benefits provided by the defendant might be relevant, in
    the Courts view, in the juristic reason stage of the analysis. The fact that
    parties had agreed to exchange benefits might be relevant in establishing what
    the reasonable expectations of the parties are, a factor which, as noted
    above, might be relevant in that context. [Emphasis added].

[46]

Fourth, provincial appellate courts have applied
Kerr
outside
    the family context on many occasions: see, for example
Consulate Ventures
    Inc. v. Amico Contracting & Engineering (1992) Inc.
, 2011 ONCA 418,
    278 O.A.C. 216, at paras. 44-57;
Aviva Insurance Company of Canada v. Lombard
    General Insurance Company of Canada
, 2013 ONCA 416, 116 O.R. (3d) 161, at
    paras. 47-60;
Clarke v. Johnson,
2014 ONCA 237, 318 O.A.C. 186, at
    paras. 62-72;
Haigh v. Kent,
2013 BCCA 380, 364 D.L.R. (4th) 544, at
    paras. 31-48;
Economical Mutual Insurance Company v. The Bank of Nova
    Scotia et al.,
2015 NLCA 29, 367 Nfld. & P.E.I.R. 297, at paras. 27-41.

[47]

Of particular note on this point is the decision in
Watson v. Bank
    of America
, 2015 BCCA 362, 79 B.C.L.R. (5th) 1.
Watson
was a
    class action certification case. Merchants proposed to certify a class to sue
    credit card companies for costs imposed by their credit card infrastructure.
    They advanced various causes of action, including unjust enrichment. One of the
    defence arguments against certification was that the plaintiffs would not be
    able to demonstrate a net harm to the merchants because of various
    off-setting economic effects: paras. 162-165.

[48]

The court analysed the significance of this argument with respect to the
    unjust enrichment claim at paras. 175-181. Interestingly, the defendants
    attempted to use
Kerr
to support their off-set argument. They relied
    on Cromwell J.s comment, at para. 104, that mutual enrichments may be
    considered at the juristic reason stage to the extent that the provision of
    reciprocal benefits constitutes relevant evidence of the existence (or
    non-existence) of juristic reason for the enrichment. The court rejected this
    argument. The court noted that the defendants overstate the import of the
    comments made in
Kerr
, a family case. But it nevertheless held,
    relying on
Garland
, that the appropriate stage to consider off-setting
    benefits is at the second stage of the analysis, where the defendants would
    bear the onus of proof.

[49]

Fifth, and finally, applying the same approach in family venture and
    non-family venture cases promotes the overall doctrinal coherence of the law of
    unjust enrichment. Cromwell J.s decision in
Kerr
was itself an attempt
    to harmonize various strains of the unjust enrichment jurisprudence. As he
    noted at para. 33, there is and should be no separate line of authority for
    family cases developed within the law of unjust enrichment. Rather, the
    rights and remedies for unjust enrichment should be the same for all cases.

[50]

For all these reasons, the principle in both family and non-family cases
    of mutual benefit conferral is that any alleged off-setting benefits should be
    considered at the defence/remedy stage of the analysis where the defendant
    bears the onus of proof.

e.

Conclusion regarding the analytical approach

[51]

In this case, the trial judge asked himself the wrong initial question
    by immediately considering whether John had conferred a net benefit on Katarina.
    Instead, at the first step of the analysis, the trial judge should have
    considered whether John conferred a benefit on Katarina. I turn to that
    question now.

(2)

Did John confer a benefit on Katarina? If so, to what extent?

[52]

As I have mentioned, John claimed that he and Margaret had conferred two
    primary benefits on Katarina: (i) monetary payments and (ii) Johns personal
    domestic services. I conclude John discharged his onus of proving the conferral
    of a benefit of his personal services, but not of monetary payments.

a.

The monetary contributions

[53]

First, John and Margaret claim to have paid his mother a varying sum of
    cash each month contributing to the payment of the property taxes, utility
    bills, food and other expenses. Katarina and Helena denied that these payments
    were ever made.

[54]

The trial judge found that any financial contributions would have to
    have come from Margaret, given,
inter alia
, that John was unemployed
    for 11 of the last 22 years, while Margaret was always consistently employed,
    earning between $35,000 and $45,000 per year. Margarets evidence was
    consistent with this view: Margaret testified she gave money to John, who gave
    it to his mother, and occasionally when John was not around she gave money
    directly to Katarina.

[55]

The trial judge resisted crediting John with any of these alleged
    financial contributions. The trial judge repeatedly observed that Margaret had
    not sought any beneficial interest in the property herself. He said that if
    John and Margaret viewed any payments they made to be joint, then they should
    have advanced a joint claim for a beneficial interest in the property.

[56]

This, in my view, was an error. The trial judge should have recognized
    John and Margaret as a spousal unit and considered payments made by Margaret as
    made on behalf of John. At the very least, Margaret gifted the money to John
    who then gave it to Katarina.

[57]

In any event, the trial judge was prepared to accept that John and
    Margaret did make some financial contributions over the years: para. 153,
    though he expressed skepticism about the extent of those payments. He noted
    that any evidence of the alleged payments  is significantly lacking. He
    concluded that they do not come close to surpassing the $250,000 - $350,000
    benchmark the trial judge set. Because he reached this conclusion, the trial
    judge did not attempt to quantify the payments he accepted were made.

[58]

The lack of a definitive finding leaves this court in a difficult
    position. Johns counsel argued strenuously that the trial judge made a
    palpable and overriding error in not inferring John and Margaret must have been
    giving money to Katarina. The household expenses estimated in the record
    exceeded the ordinary ongoing household income, at least in the years after
    Katarina no longer had paying tenants. Counsel points out that Katarina did not
    work and had a minimal income. A straightforward comparison of her income and
    expenditures for the years for which evidence was tendered demonstrates that,
    to make ends meet, she must have obtained financial help from someone else. In
    2011, for example, Katarinas annual expenditures outpaced her annual income by
    almost $10,000. Helena, in her testimony, expressly denied providing financial
    support to Katarina. Johns counsel submits the trial judge should have
    inferred that, for at least a number of years, John and Margaret were making up
    the difference.

[59]

Though I recognize the force of this argument, I am not persuaded the
    trial judge committed reversible error by finding John and Margaret did not
    adduce sufficient evidence to permit him to quantify any payments they made. As
    the trial judge observed, the onus was on John to prove not only that it was
    more likely than not that he had made payments, but also to prove the probable
    amount of those payments, at least in approximate terms. The trial judge was
    entitled to find the evidence John had adduced did not allow him to determine
    with any confidence how frequently he had made payments or in what amounts.

[60]

I would not interfere with the trial judge's conclusion that John failed
    to discharge his onus to establish he conferred a benefit on Katarina by giving
    her money over the years.

b.

Johns personal services

[61]

As mentioned, the trial judge accepted that John provided some domestic
    services to Katarina and there may be value in John overseeing some of the
    work which he described in his testimony but the value of these did not amount
    to a net benefit in light of the value of the accommodation in Katarinas
    home. Again, because the trial judge immediately considered the mutual
    conferral of benefits he did not attempt to quantify the value of the services
    he accepted John provided. This Court is therefore left with task of attempting
    to ascertain the value of the personal services that the trial judge accepted
    John provided to Katarina.

[62]

Johns evidence was that he provided various domestic services to his
    mother (shovelling snow, cutting grass, maintenance and repairs, minor
    renovations, purchasing groceries, housekeeping, meal preparation, errands,
    etc.). He estimated his time commitment in respect of these services on an
    average annual basis: two hours per day from 1982 to 1989; three hours per day
    from 1990 to 2007; 6 hours per day from 2008 to 2013. The increases are
    attributable to his mothers increasing needs over time, resulting from her mounting
    frailty and dependence.

[63]

For their parts, Katarina and Helena flatly denied that John provided any
    valuable domestic services to Katarina.

[64]

There is no doubt that Katarina required substantial domestic
    assistance. The evidence is clear that Katarina spoke hardly any English and
    did not drive. She was not able to effectively deal on her own with anyone
    outside the home. From the early 1980s onwards, Katarina never worked after
    experiencing a work-related accident. She has been confined in a wheelchair for
    some time.

[65]

Further, throughout his reasons, the trial judge seems to accept that
    John performed a variety of home repair and maintenance services. For example,
    he states that there is little reason to dispute that John completed a
    renovation of the basement of the house around 1985. He also states that it
    [appears] that John took a lead role in addressing a boundary dispute with
    Katarinas neighbours. He notes that John produced photographs in support of
    work he claims to have done on the garage before hiring a third party
    contractor to complete the job, though he states that it is unclear what value
    John is claiming for his work on that project.

[66]

On the other hand, the trial judge does not appear to have been
    impressed by Katarinas and Helenas approach of baldly denying each and every
    statement John made about his contributions on these subjects. The trial judge
    noted that Katarina was so entrenched in her position that she claimed Helena
    was responsible for the basement renovations, even though Helena had already
    moved out of the property for several years.
[1]

[67]

In sum, reading the trial judges reasons as a whole, he seems to have
    implicitly accepted that John performed a variety of domestic services for
    Katarina over the years.

[68]

That said, the trial judge does not seem to have placed much value on Johns
    services. The trial judge said that some of the acts undertaken by John and
    Margaret would be those of a dutiful son and daughter-in-law. In my view, this
    observation led the trial judge into error. These services had value and were a
    benefit to Katarina. John was under no legal obligation to act as a dutiful
    son and perform these services.

[69]

In any event, to the extent that it is relevant at all, whether Johns
    actions were simply those of a dutiful son ought to have been considered at a
    later stage of the analysis. Specifically, that issue might have been
    considered in the context of a reasonable expectations analysis, where the
    defendant bears the onus of proof (a subject I discuss a few paragraphs below).

[70]

Further, there was uncontradicted evidence before the trial judge
    regarding the value of Johns services. The parties agreed that various expert
    reports could be entered into evidence at trial without testimony. The
    agreement of the parties was that the court could accept or reject the opinion
    evidence depending on the court finding the foundational facts to substantiate
    any assumptions made in arriving at these opinions. One such report was that of
    valuation consultant Gordon Krofchick. Mr. Krofchicks report was the only
    evidence that expressed an opinion of the value of Johns services. He
    concluded, using average rates for unskilled labour and based on the hourly
    estimates John gave on a per annum basis, adjusting for inflation, that John
    contributed $438,113 in domestic services from 1982 to 2013. Mr. Krofchick was
    not cross-examined. Katarina did not obtain a contradictory report.

[71]

The trial judge did not accept Helenas and Katarinas blanket denial
    that John made any contributions. Thus, we are left with Johns evidence
    regarding his estimated hourly work, which the trial judge did not reject in
    his reasons. Those estimates provide the necessary foundational facts to
    validate the assumptions underlying the Krofchick report.

[72]

Applying the trial judges meagre findings to the evidence, I conclude that
    John contributed $438,113 in domestic services to Katarina and enriched her in
    that amount.

[73]

I am mindful that this conclusion is in tension with the trial judges
    finding that Johns and Margarets services and contributions did not come
    close to his threshold for net value of $250,000 - $350,000. As I have already
    stated, the trial judge seems to have attributed little to no value to Johns
    domestic services because of his observation that those services were those of
    a dutiful son. That error infected his assessment of the uncontroverted
    evidence regarding the value of Johns services. The evidence establishes the
    monetary value of the services the trial judge implicitly found that John
    performed.

(3)

Was there a corresponding deprivation to John?

[74]

The corresponding deprivation to John is evident and follows necessarily
    from proof of the enrichment. In a case involving the provision of personal
    services such as this one, the party providing personal services suffers a
    corresponding deprivation of their own time and effort. This deprivation
    mirrors the enrichment in nature and extent. John suffered a corresponding
    deprivation of $438,113.

(4)

Was there a juristic reason for the enrichment?

[75]

At the final stage of the
prima facie
case of enrichment
    analysis, the plaintiff must show that the enrichment did not occur pursuant to
    an established category of juristic reason. These categories include contract,
    disposition of law, donative intent, and other valid, common law, equitable or
    statutory obligations. If there is no juristic reason from an established
    category, then the plaintiff has made out a
prima facie
case under the
    juristic reason component of the analysis:
Kerr,
at para. 43. The
de facto
burden of proof then switches to the defendant to show there is a
    reason why the enrichment should be retained because in all the circumstances
    there is another reason to deny recovery even though the case falls outside the
    existing categories of juristic reason:
Kerr
, at para. 44. Cromwell J.
    at para. 114 stressed that the analysis of juristic reason at this stage is not
    to determine the value of the enrichment or whether reciprocal benefits should
    be set off against the enrichment. At this stage, the limited role of
    considering reasonable expectations is to reveal whether there is a reason for
    the defendant to retain the enrichment. Generally, reciprocal benefits are to
    be considered at the defence/remedy stage, as I discuss below.

[76]

John testified that his reason for providing the personal services was
    his mothers promise that, if he did so, he would receive half of the house
    upon her death. This falls outside the established categories of juristic
    reason to permit Katerina to retain the benefit.

[77]

As noted in
Kerr
, once the plaintiff has demonstrated that
    there is no categorical juristic reason, the defendant may still argue that
    there is a juristic reason outside of the established categories. The
    reasonable expectations of the parties may be relevant to this inquiry insofar
    as they show a juristic reason for enrichment. In addition, the defendant may
    seek to demonstrate, at the defence and remedy stage, that the plaintiff did
    not reasonably expect compensation.

[78]

Counsel for Helena and Katarina did not seriously advance an argument
    there was a juristic reason outside the established categories based on
    reasonable expectations. He merely argued that Katarina and Helena baldly
    denied the services were provided (which the trial judge rejected) and that
    John received rent-free accommodation (which I have noted should be considered
    at the next stage).

[79]

To the extent reasonable expectations may be considered at this stage,
    it seems to me that there was ample evidence that John reasonably expected to
    be compensated for his contributions to Katarinas maintenance and care. In
    oral argument, counsel for Katarina was asked why John believed he was entitled
    to half of the value of the home, and he candidly admitted that Katarina
    probably told him that. I recognize, as mentioned above, that the trial judge
    suggested that Johns contributions were simply those of a dutiful son. That
    suggestion, however, was not made in the context of analysing a reasonable
    expectations argument, either at the juristic reason stage or at the defence
    and remedy stage where the defendant bears the onus of proof. The evidence
    before the trial judge and counsels admission suggest that John reasonably
    expected some compensation. It is clear Katarina and Helena did not discharge
    the onus on them to point to a juristic reason outside the established
    categories that would entitle Katarina to retain the benefit conferred by John,
    without compensation.

(5)

Prima facie
case of enrichment

[80]

I conclude accordingly that John has discharged his onus to establish a
prima
    facie
case of enrichment.

(6)

Did Katarina confer off-setting benefits on John?

[81]

According to the framework Cromwell J. set out in
Kerr
, John
    having established a
prima facie
case of enrichment, Katarina bore the
    onus of establishing a valid defence, or a valid reason to limit the requested
    remedy. It is at this stage that the alleged offsetting benefit of rent-free
    accommodation ought to have been considered.

[82]

The trial judge was entitled to conclude on the evidence before him that
    the market value of the accommodation in which Margaret and John lived was
    between $250,000 and $350,000.

[83]

That said, the trial judges error was to implicitly treat proof of the accommodation
    value as proof of an offsetting benefit. That approach was wrong in law. The
    onus remained on Katarina, who was claiming an offsetting mutual benefit, to prove
    rent-free accommodation was provided. By initially considering whether John
    provided a net benefit to Katarina, the trial judge in effect placed the onus
    on John to prove he paid rent. In the proper analysis, in which the offsetting
    mutual benefit is considered as a defence, the onus was on Katarina to prove
    John did not pay rent. She did not meet this onus for several reasons.

[84]

First, Katarina testified that she never expected to receive rent from
    John. This admission presents great difficulty for her in discharging the onus
    of proving a valid set-off. As noted by Maddaugh & McCamus, quoted above,
    if the expectation of the parties was that one party would provide personal
    services and the other would deduct from the value of those services the cost of
    room and board, then a valid set-off may be made out. But if the parties
    understanding was that the room and board was being provided gratuitously,
    then no deduction is appropriate.

[85]

Second, even if the parties had an expectation that John would pay rent,
    the trial judge did not make a finding that John did not pay rent. There was
    considerable dispute regarding the explanation for the various rent receipts
    and leases produced at trial. The trial judge did not resolve the dispute, and
    after reviewing the deeply contradictory evidence of the witnesses, concluded at
    para. 67:

I do not accept any of the explanations offered by the parties
    for the existence of these leases.  There must have been a reason why the
    parties signed so many leases over a number of years.  However, they have
    attempted to alter the truth to suit their respective needs in these
    proceedings.

[86]

In effect, the trial judge found himself unable to determine whether the
    evidence showed that rental payments had been made. As he placed the burden of
    proof on John, he was not satisfied that rent had been paid. However, at this
    stage, the burden should properly have been placed on Katarina. The trial judge
    rejected Katarinas and Helenas explanations for these rent receipts and
    leases as well.

[87]

I am satisfied, on the findings of the trial judge, Katarina did not
    satisfy the burden on her to prove she provided rent-free accommodation to
    John.

(7)

Conclusions on Unjust Enrichment

[88]

For those reasons, Johns claim for unjust enrichment is made out. John
    established a
prima facie
case for enrichment, conferring a $438,113
    benefit on Katarina in the form of personal services. Katarina did not
    establish a valid set-off due to her failure to prove that John and Margaret
    did not pay rent. Consequently, I conclude that John is entitled to equitable
    damages in the amount of $438,113.

[89]

I would therefore set aside the trial judges dismissal of Johns
    application insofar as it claimed equitable damages and replace it with an
    order granting Johns claim in the amount of $438,113 to be recovered from the
    proceeds of the sale of the house held in trust by the real estate solicitor to
    the credit of this litigation.

ISSUE 3: THE POWER OF ATTORNEY

[90]

Johns counsel advances two arguments seeking to set aside the judges
    decision dismissing his application to revoke Helenas power of attorney and
    order Helena to account for her management of Katarinas funds.

[91]

First, Johns counsel argues the trial judge should have revisited his
    findings made in his March 23, 2015 ruling in light of the evidence and his
    findings made at trial. Johns counsel had refused to take out a formal order
    reflecting the March 23, 2015 decision so that the trial judge would not be
functus
and would have jurisdiction to revisit his earlier findings. While I agree that
    the trial judge was not
functus
and had the jurisdiction to revisit
    his earlier findings, I am satisfied that it was within his discretion to
    refuse to do so.

[92]

Second, in the alternative, John appeals from the judges March 23, 2015
    ruling and seeks to admit Katarinas and Helenas
viva voce
testimony
    at trial as fresh evidence on the appeal.

[93]

Counsel for Katarina and Helena resists the fresh evidence application.
    He submits that John, by exercising due diligence, could have obtained and
    tendered Katarinas and Helenas
viva voce
testimony on the return of
    the application. He points out that r. 39.03(4) of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194 permits a party to seek to examine
    a person as a witness at the hearing of a motion or application in the same
    manner as at trial, and John did not seek to do so. I would not give effect to
    this argument. Given established practice, I am satisfied John would not have
    been granted leave to call
viva voce
evidence on the return of the
    application.

[94]

I would admit Katarinas and Helenas testimony at trial as new
    evidence. It is potentially decisive and may be reasonably expected to affect
    the result.

[95]

Turning to the substantive issue, it is evident that some of the trial
    judges findings made after the trial are inconsistent with the findings in his
    March 23, 2015 reasons.

[96]

Take, for example, the trial judges emphatic findings at trial about
    Helenas domineering and bullying nature and her influence over Katarina, along
    with his observation of Helena sitting in the back of the courtroom trying to
    influence her mothers testimony. He said he had little to no doubt that
    Helena has orchestrated all of the events giving rise to the transfer of the
    property to herself and Katarina in joint tenancy and the execution of new
    Wills. He observed that Katarina did not even appear aware of Helenas
    transferring title to the property. He had no difficulty in concluding that
    this transfer was not the subject of any alleged trust relationship, and was
    carried out for the purpose of Helena acquiring the right of survivorship by
    reason of ownership of the property in joint tenancy. These can be contrasted
    with his earlier findings that there was no evidence Helena exerted undue
    influence on Katarina and that the evidence did not establish mismanagement or
    financial abuse of Katarina by Helena.

[97]

While the limited evidence before the trial judge on the application may
    not have demonstrated undue influence, it is obvious from his trial reasons he
    considered it abundantly clear that Helena exerted undue influence over
    Katarina.

[98]

Accepting those trial findings as fresh evidence I would conclude that
    Helena exercised undue influence over Katarina. It follows that I would set
    aside the judges dismissal of Johns application and replace it with an order
    granting Johns application, revoking Helenas power of attorney and requiring
    Helena to account for her management of Katarinas property.

CONCLUSION

[99]

I would allow the appeal and order that John is entitled to equitable
    damages in the amount of $438,113 to be recovered from the proceeds of the sale
    of the house held in trust by the real estate solicitor to the credit of this
    litigation. Further, I would order that Helenas continuing power of attorney
    over Katarinas property be revoked and Helena be required to account for her
    management of Katarinas property.

[100]

Counsel
    may make written submissions as to costs of the appeal and the proceedings
    below. Such submissions are to be no longer than five pages in length and filed
    within 15 days of the release of this decision.

Released: December 15, 2016 (EAC)

R.G. Juriansz J.A.

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

I agree. David Brown J.A.

[1]
I note parenthetically that some of Katarina and Helenas blanket denials are
    extremely implausible. Many are on subjects about which they are highly
    unlikely to have had direct knowledge. For instance, Helena denied that John
    had paid for materials purchased in support of repairs to the front and rear
    porches. She did so notwithstanding Johns production of receipts for those
    materials, and without testifying that she was there to witness someone else
    having paid for them.


COURT OF APPEAL FOR ONTARIO

CITATION: Gustafson v. Johnson, 2016 ONCA 972

DATE: 20161222

DOCKET: M46963 (C62186)

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Gina Gustafson and Juanita Curle

Applicants (Responding Parties)

and

Bruce Johnson
,
Allan Curle
, Norall Group Inc., and Norall Group
    Contracting Inc.

Respondents (Moving Parties)

Bruce Johnson and Allan Curle, acting in person

Gino Arnone and Morris Holervich, for the responding parties

Heard: December 12 and 16, 2016

ENDORSEMENT

[1]

In this motion, the moving parties seek to review the order of a single
    judge of this court, dated September 12, 2016 (the Order).  The Order dismissed
    their motion to extend time to perfect their appeal.

Background in Brief

[2]

The moving parties wish to appeal the decision of Pierce J. made on
    April 26, 2016, following a contested winding up application.  They filed a
    notice of appeal in this matter on May 26, 2016.

[3]

By order dated August 24, 2016, the Registrar dismissed the moving
    parties appeal for delay (the Registrars Dismissal Order).

[4]

The moving parties then brought a motion to a single judge of this court
    for an order setting aside the Registrars Dismissal Order and extending the
    time to perfect their appeal.  The motion judge found that the moving parties
    had the requisite intention to appeal and had given a satisfactory explanation
    for the short delay.  The explanation was that after the trial before Pierce J.,
    their lawyer had advised them that due to the complexity of the matter, he
    would not be able to continue to represent them through the appeal.  As
    self-represented litigants, they had struggled with preparing the court
    documents necessary to perfect their appeal.

[5]

The motion judge dismissed their motion for an extension of time on the
    basis that their appeal did not have any real chance of success.  It is that decision
    which gave rise to the Order.

[6]

On this review motion, the moving parties ask that the Order be set
    aside and that they be granted an extension of time to perfect their appeal.

Analysis

[7]

An appeal lies from an order or judgment and not from the reasons for
    decision.  No judgment has been taken out in this proceeding.  If it is
    necessary to understand the merits of the proposed appeal, then the court may
    require the parties to file the formal judgment before resolving a motion to
    extend time:
Ontario Wealth Management Corporation v. Sica Masonry and
    General Contracting Ltd.
, 2014 ONCA 500, 17 C.B.R. (6th) 91, at paras.
    5-6. In the circumstances of this case, without the formal judgment it is not
    possible for the court to properly assess the merits of the putative appeal.
    Therefore, we would set aside the Order and order that a judgment be filed
    before a further motion to extend time is heard and decided.

[8]

A single example will suffice to show why it is necessary to see the
    formal terms of the judgment before the court can fairly assess the putative
    ground of appeal relating to Ms. Johnson.  The moving parties submit that the application
    judge erred by issuing a decision purporting to bind Ms. Johnson, a person who
    was not named as a party to the application.  Without the formal judgment, the
    court is not in a position to assess the merits of this ground of appeal.  Indeed,
    this ground of appeal gains strength from the respondents stated reason for
    not yet having taken out the judgment in this matter.  The reason given is that
    so long as the formal judgment has not been taken out, the application judge remains
    seized of the matter and that, in turn, leaves open the possibility of
    rectifying any problems arising from the fact that Ms. Johnson was not named as
    a respondent to the application.

Disposition

[9]

For these reasons, the motion to review the Order is granted and the
    Order is set aside, without prejudice to the right of the moving parties to
    renew their motion for an extension of time to perfect their appeal.  The
    moving parties have 20 days from the date that the judgment is filed to renew
    their motion.

[10]

Costs of this motion are to the moving parties, fixed in the sum of
    $1,000, all-inclusive, payable in the cause.

E.E. Gillese J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jadid v. Toronto Transit Commission, 2016 ONCA 936

DATE: 20161214

DOCKET: C61901

Feldman, Epstein and Miller JJ.A.

BETWEEN

Maimuna Jadid

Plaintiff (Appellant)

and

Toronto Transit Commission and John Doe Driver

Defendants (Respondents)

B. Robin Moodie as agent for Jillian Van Allen, for the
    appellant

Madeline Ferreira, for the respondents

Heard: September 30, 2016

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated February 17, 2016, with reasons reported at
    2016 ONSC 1176.

Miller J.A.:

[1]

The appellant was injured as she fell while attempting to board a Toronto
    Transit Commission bus in March 2006. After settling a statutory accident benefits
    claim in 2007, the appellant commenced an action against the respondents. The
    action was beset with missteps: it was dismissed administratively for delay,
    and after obtaining an order setting aside the dismissal on terms, the
    appellant failed to take the procedural steps required by that order. The
    appellants subsequent motion to vary those terms, years later, was dismissed
    and the action stayed. The appellant now appeals from that order. For the
    reasons that follow, I would dismiss the appeal.

A.

Background

[2]

The appellants action was dismissed for delay by registrars order on
    August 9, 2011. On February 17, 2012, OMarra J. set aside the dismissal order
    on terms (the OMarra order). Among the terms was the requirement that the
    appellant set the action down for trial within 60 days. This required the
    appellant to complete examinations for discovery and file a trial record within
    60 days. The appellant did neither. Neither did the appellant have the OMarra
    order issued and entered.

[3]

The appellant took no further steps for two years.

[4]

Eventually, in May 2014, counsel for the appellant wrote to request the
    respondents affidavit of documents. The respondent replied that it had been provided
    two years earlier, which it had, and suggested that counsel review his file. By
    this time, the respondent had assigned new in-house counsel who was not yet aware
    of the procedural history of the action, and did not know that the OMarra
    order had not been taken out.

[5]

Thereafter, the appellant sought to schedule an examination for
    discovery of the representative of the respondent. The respondent initially
    objected on the basis that it had not completed its examination of the
    appellant, which took place June 20, 2014. It relented on threat of bringing a motion,
    and agreed to an examination on September 30, 2015. In the meantime, the
    respondent sought confirmation that the OMarra order had been entered, and in
    February 2015 requested a copy of the entered order. It repeated the demand at
    the examination on September 30, 2015, and when the appellant could not produce
    it, the respondent refused to proceed.

[6]

With counsel for the appellant now alive to the problem of the un-entered
    OMarra order, he retained counsel, who had the order issued and entered. It
    was then necessary to have the timetable established by that order varied,
    given that the 60 day period for setting the matter down for trial had long
    since passed. Accordingly, the appellant brought the motion to vary. It was
    unopposed.

[7]

The motion judge concluded, at para. 91, that the delay in the case was
    extreme, that there were no non-perfunctory explanations offered, and that the
    plaintiff never had a bona fide intention to adhere to the deadline ordered and
    only intermittent interest in advancing  this case. He dismissed the motion
    and imposed a stay of the action.

B.

Issues

[8]

The appellant appeals on the basis that the motion judge erred in
    refusing to vary the OMarra order setting aside the registrars dismissal, and
    in staying the action. More specifically, the motion judge is said to have
    erred by:

1. Misapprehending
    the governing legal principles;

2. Finding
    that the respondent suffered actual prejudice as a result of the delay; and

3. Finding
    that the litigation and motion delay were not explained.

C.

Analysis

(1)

The legal principles

[9]

The motion judges analysis began with the well-established criteria
    from
Reid v. Dow Corning Corp.
[2001] O.J. No. 2365, 11 C.P.C. (5th)
    80 (Ont. Master), at para. 41, revd. on other grounds [2002] O.J. No. 3414, 48
    C.P.C. (5th) 93 (Ont. Div. Ct) governing appeals from a registrars dismissal
    for delay. The four factors that
Reid
identifies as relevant to the
    exercise of discretion are: (1) the explanation of the litigation delay, (2)
    the inadvertence in missing the deadline; (3) the efforts to move promptly to
    set aside the dismissal, and (4) the absence of prejudice to the defendant.

[10]

The
    matter before the motion judge is a step removed from an appeal of a
    registrars dismissal. The dismissal of the action had previously been set
    aside by the OMarra order, on terms. Those terms had not been satisfied, so
    the appellant moved to vary the terms which could no longer be met on the
    original schedule. The motion judge reasoned that this additional factor, a
    moving party who has been to the well for relief once and returns a second
    time (at para. 53), necessitated the following additional considerations: (1)
    the length of both the pre- and post-order delay; (2) that no priority should
    be given to any of the
Reid
factors over any others; (3) that
    prejudice to the defendant may be inferred from the passage of time; and (4)
    the application of a heightened scrutiny of the four
Reid
factors and
    the requirement of an explanation for why the first lifeline was ignored.

[11]

The
    appellant argued that the motion judge misapprehended the
Reid
test
    (and subsequent case law applying it) by rejecting the proposition that
    prejudice takes priority over the other factors.

[12]

I
    disagree. It is well established that, as stated by the motion judge, none of
    the
Reid
factors have automatic priority over any others. The
Reid
test provides a structured approach to reconciling the principle that civil
    actions should be decided on their merits, with the principle that the public
    interest is served by enforcing procedural rules that promote the timely and
    efficient resolution of disputes
(1196158 Ontario Inc. v. 62474013 Canada
    Ltd
., 2012 ONCA  544, 112 O.R. (3d) 67, at para. 18). It guides the
    exercise of judicial discretion and thereby reduces the risk of overlooking
    relevant considerations. It does not set out a formula, prioritize any
    enumerated factors over any others, or categorically exclude the consideration
    of other factors not listed:
H.B. Fuller Co. v. Rogers
, 2015 ONCA 173,
    386 D.L.R. (4th) 262, at para. 23;
Marche dAlimentation Denis Theriault
    Ltée v. Giant Tiger Stores Ltd.
, 2007 ONCA 695, 87 O.R. (3d) 660, at para
    20.

(2)

Prejudice

[13]

The
    appellants main argument is that the respondent has not suffered prejudice
    from the delay and the motion judge erred in finding prejudice and in not
    according decisive weight to this fact.

[14]

The
    motion judge accepted that there was no evidence of actual prejudice caused to
    the respondent by the delay, and accepted the appellants submission that if
    the respondent had any evidence of actual prejudice, it would have attended the
    hearing and presented it.

[15]

The
    appellant further submits that the respondent at no time relied on the security
    of its position. It was only on assigning new in-house counsel, which
    necessitated a review of the file, that the respondent even became aware of the
    actions irregularities. Even at this point, the respondent was prepared to go
    ahead with discoveries, notwithstanding that the timetable in the OMarra order
    had not been complied with and the action had not been restored. It did not
    take a hard line, refusing to proceed at the examination for discovery, until
    it was confirmed that the OMarra order had not been entered.

[16]

Nevertheless,
    as the motion judge noted, there is no requirement that the respondent adduce
    evidence of actual prejudice. Prejudice can be inferred from the mere passage
    of time:
1196158 Ontario Inc.
,
supra
, at para. 32. The motion
    judge found that, in the particular circumstances of this case, the ability of
    the respondent to defend the claim was in fact compromised:

[85]    The occurrence report filed by the driver the day after
    the incident is the only evidence the defendant has and will likely ever have
    to counter whatever the plaintiffs version of events when she alleges
    negligence of the defendant. That report is terse  it is highly doubtful that
    it will be able reliably to be supplemented with revived actual memory this
    many years after the fact. The ability of this or any defendant similarly
    situate to defend a claim this old and of this nature on the issue of liability
    has certainly been compromised. Once sharp and persuasive evidence may
    lose a considerable amount of its punch when reduced to an antiseptic reading
    of an occurrence report ten or more years after the fact without the ability to
    contribute any meaningful additional details. Such prejudice is progressive and
    almost impossible to quantify. I conclude from the totality of the evidence
    before me that the defendants right to a fair hearing has been impaired by the
    passage of time through the inaction of the plaintiff.

[17]

The
    motion judge thus concluded that there was non-compensable prejudice to the
    defendant. In my view, he made no error in coming to this conclusion.

(3)

Delay

[18]

There
    are three relevant periods of delay: (1) the primary delay resulting in the
    registrars dismissal, (2) the secondary delay in failing to take the
    procedural steps set out in the OMarra order within the 60 day period, and (3)
    the almost four year delay in moving to amend the OMarra order for a new
    schedule for a second attempt to satisfy the conditions for reinstating the
    action.

[19]

The
    appellant submits that any delay was neither intentional nor deliberate and has
    been explained. As such, the appellant submits, the motion judge erred in
    finding that the delay in this case favoured dismissing the motion.

[20]

I
    disagree. That the delay was not intentional does not absolve the appellant of
    the responsibility to move the action forward:
Wallace, supra
, at
    para. 18. Neither did the motion judge err in concluding that the appellant
    failed to provide a reasonable explanation for missing the deadline set in the
    OMarra order. The appellants explanation was that she failed to complete
    discoveries and set the matter down for trial within the 60 days because of the
    inadvertence in not having the OMarra order issued and entered.

[21]

But
    as the motion judge found, this is no explanation at all. There is no causal
    relationship between not having an order entered and failing to abide by the
    deadlines set out in that order. The motion judge was entitled to conclude from
    the appellants two year hiatus in taking any steps towards fulfilling the
    terms of the OMarra order, that she had no serious intention to pursue the
    action.

[22]

It
    was for the motion judge to balance the competing principles and weigh the
    almost four year delay in moving to vary the order in the context of the entire
    delay and all of the other circumstances that he canvassed. He made no error in
    his treatment of the appellants failures to explain both the delay in missing
    the 60 day timeline set out in the OMarra order and the delay in bringing the
    motion to vary the OMarra order. The motion judge did not accept as
    exculpatory the appellants argument that the reason she failed to meet the
    deadline in the OMarra order was because the OMarra order had not been taken
    out.

[23]

The
    conduct of the defendant in litigation may be a relevant consideration, however,
    in this case very little turns on this factor.  Although the respondent did
    little to move things along, this was the appellants responsibility:
Wallace
    v. Crates Marine Sales Ltd.
, 2014 ONCA 671, 245 A.C.W.S. (3d) 72, at
    para. 18.

[24]

The
    motion judges findings were open to him, and he made no error in reasoning to
    the conclusion that he did. I would therefore dismiss the appeal.

(4)

Criticism of counsel

[25]

It
    is necessary to address the motion judges criticisms of counsel for the
    appellant, both motion counsel and counsel who had carriage of the file
    (neither of whom were counsel on the appeal). Some of these criticisms were
    excessive and others unfounded.

[26]

First,
    the motion judges reasons are seasoned with rhetorical flourishes that cross
    the line from harmless ornamentation to ridicule. In my view, these are unfair
    and their absence would have done nothing to blunt the force of the motion
    judges legitimate criticisms.

[27]

Second,
    the motion judge levelled two specific accusations at counsel that need to be
    corrected.

[28]

The
    first of these is the motion judges characterization of the appellants trial
    counsels non-compliance with the OMarra order as tantamount to contempt of
    court (para. 7). The motion judge aptly chastised counsel for disregarding the
    OMarra order and treating it as an inconvenience. It is significant, however,
    that the OMarra order did not compel the appellant to do anything. It is a
    power-conferring order rather than a mandatory order. It sets out conditions
    that need to be fulfilled in order to restore an action that has been
    administratively dismissed. No one is or was under any obligation to have the
    action restored, or to take any steps to that end. So in not taking the
    lifeline offered by the OMarra order, counsel was not acting contemptuously,
    but presumptuously, in expecting that his failure to follow the OMarra orders
    prescriptions would be excused. The fruit of that presumption was the dismissal
    of the motion and the stay of the action.

[29]

The
    second matter relates to an exchange between the motion judge and motion
    counsel. Motion counsel, seeking to impress upon the motion judge the absence
    of prejudice to the respondent, sought to hand up unsworn email correspondence
    between counsel for the parties. The supposed import of the correspondence,
    which was put before this court on a fresh evidence motion, was that the respondents
    non-opposition to the motion was a
de facto
consent. The motion judge
    rejected this evidence on the basis that it was inadmissible and non-probative.

[30]

At
    the conclusion of argument, motion counsel for the appellant sought and was
    granted permission to file additional legal argument. This he did later that
    day. However, he also added the unsworn email correspondence that the motion
    judge had refused to receive. In my view, this step was misguided. Counsel had
    not sought permission to file additional material, particularly unsworn
    evidence that the motion judge had refused to receive. The motion judges
    reaction was severe: (s)uch a deception  for no other description can be
    applied  is unworthy of a barrister and member of the Law Society of Upper Canada
    and displayed disrespect to this court (at para. 15).  The motion judge
    concluded that the motion counsel had only sought leave to file supplementary
    written argument so as to surreptitiously file the rejected emails.

[31]

Again,
    however, I take issue with the motion judges characterization of counsels
    conduct. The motion judge was entitled to refuse to accept the emails. But it is
    out of all proportion to label this conduct deceit and to impugn the motion
    counsels professional integrity in doing so.

D.

Disposition

[32]

I
    would allow the motion for leave to file fresh evidence. I would dismiss the
    appeal with costs to the respondent in the amount of $7,500 inclusive of
    disbursements and HST.

Released: KF DEC 14 2016

B.W. Miller J.A.

I agree. K. Feldman J.A.

I agree. Gloria
    Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jasinska v. Jasinski, 2016 ONCA
    993

DATE: 20161230

DOCKET: C62001

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Mariola Jasinska

Applicant (Respondent)

and

Piotr Jasinski

Respondent (Appellant)

M.Z. Tufman, for the appellant

Andrew Kania, for the respondent

Heard and released orally: December 21, 2016

On appeal from the judgment of Justice Meredith Donahue
    of the Superior Court of Justice, dated April 12, 2016.

ENDORSEMENT

[1]

The appellant appeals an order dismissing his motion to set aside a
    default order that the matrimonial home be sold and that $400,000 be paid to
    the respondent by way of equalization.

[2]

The appellant had failed to file an answer or a financial statement. The
    history of these proceedings is summarized at paragraph 4 of the respondents
    factum. That history shows a persistent, indeed, deliberate failure on the part
    of the appellant to respond to these proceedings.

[3]

The central submission made by the appellant on this appeal is that the
    default order was in fact a temporary or interim order and that the judge
    hearing the set aside motion misunderstood and mischaracterized it as a final
    order. He relies on the fact that the box temporary at the top of the order
    is checked and that the order provides that the payment is to be on account of
    the equalization payment owing to the applicant. He argues that properly
    construed the order was for an advance on equalization and that further
    proceedings were contemplated. He asks that he now be permitted to file an
    answer and financial statement.

[4]

We disagree with that submission. All parties appearing at the set aside
    motion treated the order as a final order as did the motion judge. We are
    satisfied that when the materials filed by the respondent in support of her
    motion for an order for equalization are considered, the request she made was
    in substance for a final determination of her equalization entitlement. Ticking
    the temporary box was inconsistent with the substance of this order. The words
    on account of were perhaps inapt, but in our view they cannot convert what
    was in substance a final order into a temporary or interim order.

[5]

We note as well that the order did not use the more conventional words
    advance on equalization used to indicate that the order was intended to be interim
    in nature.

[6]

The appellant also alleges ineffective assistance of counsel. That
    ground is rarely made out in civil cases and it is not made out here. The
    evidence, including that of the appellants allegedly ineffective counsel,
    demonstrates that the appellant failed to give appropriate or timely
    instructions to move to set aside the default order. Whatever the shortcomings
    of the appellants counsel, they should not be visited upon the respondent at
    this stage of these proceedings.

[7]

Accordingly, the appeal is dismissed. The respondent is entitled to her
    costs of the appeal fixed at $30,000, inclusive of disbursements and taxes to
    be paid to her by the Sheriff from the proceeds being held by the sale of the
    matrimonial home. If there are no remaining funds being held by the Sheriff,
    the costs should be paid by the appellant.

Robert J. Sharpe J.A.

P. Lauwers J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kakoutis v. Bank of Nova Scotia, 2016 ONCA 919

DATE: 20161205

DOCKET: C62062

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Louis Kakoutis and Effie Kakoutis

Plaintiffs (Appellants)

and

The Bank of Nova Scotia

Defendant (Respondent)

Louis Kakoutis and Effie Kakoutis, in person

Adrian Visheau, for the respondent

Heard: November 18, 2016

On appeal from the judgment of Justice J. Trimble of the
    Superior Court of Justice, dated April 5, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge dismissed the appellants Milton action because he
    found the appellants were attempting to re-litigate issues that had previously
    been litigated or could have been litigated in a Toronto proceeding between
    them and the Bank.  He therefore concluded the action was frivolous, vexatious
    and an abuse of process.  Based on our review of the statement of claim in the
    Milton action and proceedings in the Toronto action, we agree.

[2]

The appeal is dismissed.  Costs of the appeal are fixed in the amount of
    $5,000 on a partial indemnity scale inclusive of disbursements and applicable
    taxes payable to the respondent.


COURT OF APPEAL FOR ONTARIO

CITATION:  Kiskadee Ventures Limited v. 2164017 Ontario Ltd.,
    2016 ONCA 955

DATE: 20161219

DOCKET: C60677

Doherty, MacPherson and Lauwers JJ.A.

BETWEEN

Kiskadee Ventures Limited

Plaintiff (Appellant)

and

2164017 Ontario Ltd.
,
    Pal/Max Property Management Inc. and Metropolitan Toronto Condominium
    Corporation No. 870

Defendants (Respondent)

Jeffrey A. L. Kriwetz and David Fenig, for the appellant

Mark Terence Wong, for the respondent

Heard:  December 5, 2016

On appeal from the judgment of Justice Kelly P. Wright of
    the Superior Court of Justice, dated June 16, 2015, with reasons reported at
    2015 ONSC 3877.

By the Court:

[1]

The appellant, Kiskadee Ventures Limited (Kiskadee), sold produce and
    poultry to grocery stores.  Kiskadee purchased the produce from suppliers in
    the Caribbean and the poultry from local Ontario suppliers.

[2]

Kiskadee operated out of several units in a condominium.  The
    respondent, 2164017 Ontario Limited (216), operated its business out of a
    unit in the same condominium.

[3]

216 had work done in the basement of its unit in 2009.  In December
    2010, 216 filled in the hole in the basement floor with cement.  Kiskadee
    claimed that the work done in December 2010 damaged the telephone cable running
    under the floor of 216s unit.  Kiskadee maintained that the damage to the
    telephone cable caused it to lose telephone service in its units for several
    days.

[4]

Kiskadee sued 216, claiming that the damage to the telephone cable was
    caused by 216s negligence.  Kiskadee further claimed that its inability to
    communicate by telephone in a timely fashion with its Caribbean produce
    suppliers and its Ontario poultry suppliers resulted in substantial business losses.
    The losses in respect of the Ontario poultry dealers consisted of the profits
    lost by Kiskadee when it could not complete certain purchases.  The losses in
    respect of the Caribbean suppliers occurred because the suppliers could not
    communicate with Kiskadee as prearranged at Kiskadees place of business.
    Absent that timely communication, the suppliers had purchased produce on behalf
    of Kiskadee which eventually could not be shipped to Canada and sold by
    Kiskadee.  Kiskadee alleged that it was required to cover the suppliers losses
    to maintain a good working relationship with them.

[5]

Kiskadees claim depended almost entirely on the evidence of Latchman
    Narine, the owner of Kiskadee.  Specifically, unless Mr. Narines evidence was
    accepted, there was no evidence that Kiskadee had suffered any business losses
    as a result of an interruption of its telephone service in December 2010.

[6]

216 challenged virtually every aspect of Kiskadees case, although 216
    did acknowledge that it filled the hole in the basement of its unit with cement
    in December 2010.

[7]

The trial judge rejected Mr. Narines evidence in its entirety.  She
    gave several reasons for doing so.  She also concluded that although Kiskadee
    had lost phone service on the same day that the cement was poured in the
    basement of 216, Kiskadee had failed to prove causation.

The Grounds of Appeal

(i)

The trial judges rejection of Mr. Narines evidence

[8]

A consideration of this ground of appeal begins by recognizing the
    deference owed to the trial judges fact-finding, particularly when the
    fact-finding is based on a credibility assessment.  Counsel for the appellant
    submits that even taking into account that deference, the trial judges
    rejection of Mr. Narines evidence cannot stand.

[9]

In support of the submission that the trial judge erred in her
    assessment of Mr. Narines credibility, counsel offers fresh evidence on appeal.
    That evidence challenges one of the principal grounds upon which the trial
    judge rejected Mr. Narines evidence.  In addition to the fresh evidence, counsel
    argues that some of the other bases upon which the trial judge rejected Mr.
    Narines evidence are tainted by material misapprehensions of the evidence, while
    still others reflect an unreasonable assessment of parts of his evidence.

[10]

Counsel for the respondent accepts that the evidence offered on appeal
    effectively removes one of the grounds upon which the trial judge rejected Mr.
    Narines evidence.  Counsel submits, however, that all of the other grounds,
    and there were many, withstand appellate scrutiny.  He contends that the many
    reasons advanced by the trial judge for rejecting Mr. Narines evidence provide
    ample justification for that rejection.   Counsel submits that had the fresh
    evidence been before the trial judge, her assessment of Mr. Narines
    credibility would inevitably have been the same.

[11]

We will address the fresh evidence first.  At trial, Mr. Narine
    identified certain documents as letters sent to him by his Caribbean suppliers
    identifying the produce that had been purchased on Kiskadees behalf.  These
    letters provided the foundation of Kiskadees damage claim as it related to its
    dealings with the Caribbean suppliers.  Some of the letters were dated and some
    were not.

[12]

Mr. Narine was cross-examined about certain fax dates on some of the
    letters.  Those dates were more than a year later than the dates of the letters.
    The trial judge also questioned Mr. Narine about the differences in the dates.
    Mr. Narine could offer no explanation for those differences.

[13]

The trial judge referred to the differences in the dates in some detail
    in her reasons (paras. 27-30).  She relied on those differences, and Mr.
    Narines inability to offer any explanation for them, in making a strong
    finding against Mr. Narines credibility and the provenance of the letters said
    to be from the suppliers.

[14]

The fresh evidence explains that the fax dates were placed on the
    documents in the course of the litigation.  Counsel for the respondent accepts
    this explanation.  Obviously, this explanation neutralizes any negative impact
    the difference between the fax dates and the dates of the letters might have on
    Mr. Narines credibility.

[15]

When a party puts evidence before the court of appeal, it is incumbent
    on that party to explain why the evidence was not put forward at trial.  As
    indicated above, Mr. Narine was specifically asked about the dates and had no
    explanation for them.

[16]

On appeal, counsel submits that Mr. Narine could not explain the fax
    dates because Kiskadee understood that counsel had agreed that all documents
    contained in the document briefs filed by both counsel were accepted as
    authentic, meaning they were what they appeared to be.  Consequently, Kiskadees
    witness, Mr. Narine, never turned his mind to the differences in the dates and was
    unable to answer the questions about those differences.

[17]

Counsel for 216 submits that the authenticity of the documents contained
    in the document briefs was not agreed upon at trial.  Counsel for 216 contends
    that it was agreed that the documents would be tendered without formal proof,
    but that it was open to opposing counsel to challenge the probative value and
    reliability of any specific document.  On counsel for 216s approach, the authenticity
    of a document is an aspect of its reliability.

[18]

At trial, both counsel filed document briefs containing the documents
    relied on by them.  The briefs were marked as exhibits.  Early in the trial,
    the trial judge inquired as to the basis upon which the documents were
    tendered.  Counsels responses were unclear.  The trial proceeded without
    further clarification.  Based on the submissions made in this court, it is
    apparent that counsel had very different understandings of the evidentiary
    basis upon which the document briefs were filed and marked as exhibits at
    trial.

[19]

The practice of filing document briefs at the outset of trial, containing
    the documents to be relied on by the parties, is a well-established one.  The
    practice is encouraged as it can significantly enhance trial efficiency.
    However, trial efficiency is served only if counsel have a mutual and clear
    understanding of the evidentiary basis upon which the documents are tendered
    and communicate that understanding to the trial judge.  For example, describing
    a document as authentic can mean different things.  When tendering document briefs,
    counsel must take care to ensure that they have a common understanding of that
    term.  The definition of authenticity in rule 51.01 provides a helpful
    reference point.  Similarly, counsel should clearly distinguish between hearsay
    and non-hearsay uses of the contents of documents.  Specific documents may
    require further qualifications and explanations as to the agreed use of those
    documents.    Counsel would be well-advised to commit their shared
    understanding of the evidentiary basis upon which documents are admitted to
    writing and to file a copy of that agreement with the document briefs.

[20]

We are satisfied that the confusion over the basis upon which the
    document briefs were filed resulted in counsel for Kiskadee not turning his
    mind to the difference between the fax dates and the dates in the suppliers
    letters and the impact that difference might have on a consideration of the authenticity
    of the documents.  Had he done so, the explanation offered on appeal would have
    been put forward at trial.  In these circumstances, the failure to offer the
    explanation at trial should not preclude our consideration of the evidence on
    appeal.

[21]

The admissibility of the fresh evidence turns on whether that evidence,
    considered with the rest of the evidence adduced at trial, could be expected to
    have affected the result or, more specifically, could be expected to have
    affected the trial judges assessment of Mr. Narines credibility:  see
Ontario
    Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources)
,
    [2002] O.J. No. 1445, at para. 63.  If the answer is yes, the fresh evidence is
    admissible and a new trial must be ordered.  If the answer is no, the evidence
    is not admissible on appeal.

[22]

The fresh evidence eliminates one of the significant reasons the trial
    judge advanced to support her finding that Mr. Narine was an incredible
    witness.  However, her reasons contain some nine additional reasons for
    rejecting his evidence (see paras. 24-44).

[23]

Several of the trial judges reasons for rejecting Mr. Narines evidence
    are at least as significant to that assessment as is her finding in respect of
    the fax dates on the letters from some of the suppliers.  For example, the
    trial judge referred to Mr. Narines evidence that he could not telephone his
    Ontario suppliers because the telephone in his office did not work as an absurd
    explanation.  This characterization is justified.  The finding is particularly
    significant because it offers strong support for the trial judges broader
    finding that Mr. Narine seemed ready and willing to say whatever he thought would
    support his claim (para. 42).

[24]

In finding Mr. Narines evidence incredible, the trial judge also
    pointed to his evidence that while it was crucial to his business that his Caribbean
    suppliers be able to contact him at his office in a timely fashion, Mr. Narine
    made no efforts to contact those suppliers when he realized that they would be
    unable to contact him because of his telephone difficulties.  Mr. Narine testified
    that the Caribbean suppliers were not accessible and did not have telephones.  However,
    on the evidence offered by Kiskadee, Mr. Narine had telephone numbers, fax
    numbers and emails for at least some of those suppliers.  According to the
    phone records, Mr. Narine contacted some of those suppliers regularly (paras.
    31-33).  It was reasonably open to the trial judge to rely on this evidence in
    rejecting Mr. Narines testimony that he had no way of communicating with his
    Caribbean suppliers because the phone in his office was not working.  Mr.
    Narines evidence that he could not communicate with his Caribbean suppliers,
    and had to wait for their calls, was crucial to Kiskadees business loss claim
    as it related to the Caribbean suppliers.

[25]

The trial judge also referred to the total absence of any documentation
    to support the losses claimed by Mr. Narine to support her conclusion that his
    evidence was unbelievable (paras. 37-38).  For example, Mr. Narine testified
    that he made repayments of over $48,000 to a supplier named Lopez, without any
    documents from the supplier to back up the claim.  Indeed, on Mr. Narines
    evidence, Kiskadee began to repay Mr. Lopez before Mr. Lopez even claimed a
    loss (para. 38).  Once again, it was open to the trial judge to reject Mr.
    Narines explanation about the losses suffered by Mr. Lopez and to factor that
    rejection into her ultimate assessment of Mr. Narines credibility as it
    related to the claimed losses.

[26]

The trial judge also rejected Mr. Narines evidence because Bell Canada telephone
    bills he relied on to show that Kiskadee had no phone service at the relevant
    time related to an entirely different timeframe (para. 41).  The trial judge
    was entitled, in assessing Mr. Narines credibility, to consider this attempt
    to put forward documents as supporting the claim when in fact they did no such
    thing.

[27]

Considering the reasons as a whole, we are satisfied that there remained
    strong grounds upon which to reject Mr. Narines evidence even in the face of the
    evidence offered on appeal.  That evidence could not reasonably be expected to
    have affected the negative assessment of Mr. Narines credibility.

[28]

Apart from the fresh evidence, counsel for Kiskadee argued that the
    trial judge made factual errors in her assessment of Mr. Narines credibility
    and that some of the reasons she gave for rejecting his evidence were
    unreasonable.

[29]

We cannot agree.  We see no error in the material factual findings
    underlying the trial judges credibility assessment.  As to her reasons for
    finding Mr. Narine incredible, we accept that some of the negative inferences
    drawn by the trial judge may not have been drawn by other trial judges.  None
    of those inferences, however, fall outside of the broad spectrum of inferences reasonably
    available to the trial judge.  We must defer to those inferences in matters of
    credibility.

[30]

We would not interfere with the trial judges assessment of Mr. Narines
    credibility.  Based on that assessment, Kiskadees claim could not succeed.

(ii)

The trial judges interventions

[31]

Counsel for Kiskadee submits that the trial judges repeated
    interventions,
particularly during Mr. Narines
    cross-examination, require a new trial.  Counsel argues that the interventions
    created the appearance that the trial judge was not impartial, but had placed
    the weight of her office against
Kiskadees claim
.
    Counsel submits that the trial judges interventions made the trial unfair
.

[32]

During the trial, and particularly during Mr. Narines
    evidence, the trial judge interrupted the questioning of counsel with her own
    questions on many occasions.  Most of the interruptions were benign and some
    were helpful.  For example, some of the trial judges questions sought
    clarification of answers given by Mr. Narine or were designed to expedite the
    progress of the trial.

[33]

Some of the trial judges questions of Mr. Narine were,
    however, improper.  On a few occasions, the trial judge cross-examined Mr.
    Narine.  Those kinds of questions should come from counsel and not the trial
    judge.  On one or perhaps two occasions, the trial judges questioning is
    properly described not only as cross-examination, but as aggressive
    cross-examination.  On those occasions, the trial judges questions could
    reasonably be seen as conveying to Mr. Narine the trial judges disbelief of
    the answers Mr. Narine had already given.  Our adversarial process has no place
    for this kind of questioning by a trial judge.

[34]

The trial judges cross-examination of Mr. Narine, especially
    on the one or two occasions when that cross-examination became aggressive,
    served no legitimate trial purpose and jeopardized the appearance of the fairness
    of the trial.  The trial judge should not have asked those questions.

[35]

Not every improper question by a trial judge
    necessitates reversal on appeal.  The question must be whether the
    interventions, considered in the context of the entirety of the proceedings,
    were sufficiently egregious to lead the reasonable observer to conclude that
    the appearance of impartiality had been sufficiently compromised so as to
    undermine the appearance of the fairness of the trial.

[36]

After anxious consideration, we are satisfied that the
    trial judges questions did not reach the point at which they compromised the
    appearance of the fairness of the trial.  As indicated above, some of the
    interventions were appropriate.  Most that were unnecessary were harmless.  The
    isolated instances in which the trial judges questioning took on the tone of
    aggressive cross-examination did not, standing alone, compromise what was, in
    all other respects, a fair trial.

(iii)

Causation

[37]

Counsel submitted that the trial judge made a serious factual error when
    she found that
Kiskadee had failed to show that
    the telephone cable servicing its units ran under the basement floor of 216.  The
    trial found that without evidence that the cable ran under 216,
Kiskadee
could not prove causation (paras. 58-60).

[38]

The evidence of the Bell Canada employee who
    testified for
Kiskadee was unclear.  It is, however, arguable that his
    evidence established a link between the telephone cable running into and underneath
    the basement floor of 216 and the telephone service to Kiskadees units in the
    building.

[39]

In any event, any error by the trial judge in her causation finding
    could have no effect on the result.  Her total rejection of Mr. Narines
    evidence left Kiskadee with no evidence capable of establishing that Kiskadee
    had suffered any loss as a result of the interference with its telephone
    service.

Conclusion

[40]

The appeal is dismissed.
Costs to 216 in
    the amount of $22,000, inclusive of disbursements and relevant taxes.

Released:   DD  DEC 19
    2016

Doherty
    J.A.

J.C.
    MacPherson J.A.

P.
    Lauwers J.A.