COURT OF APPEAL FOR ONTARIO

CITATION: Antorisa Investments
  Ltd. v. Vaughan (City), 2012 ONCA 586

DATE: 20120907

DOCKET: M41289

Gillese J.A. (In chambers)

BETWEEN

Antorisa Investments Ltd. and 1785037 Ontario
    Ltd.

Applicants

and

The Corporation of the City of Vaughan

Respondent

Orlando Rosa and David Outerbridge, for the applicants

Andrew J. Heal and V. Arman, for the respondents

Heard: September 5, 2012

On application for leave to appeal under s. 131 of the
Provincial
    Offences Act
from the judgment of Justice Ronald A. Minard of the Ontario
    Court of Justice, dated March 26, 2012, which allowed the appeal by the
    respondent City of Vaughan from the judgment of Justice of the Peace Adele
    Romagnoli, dated June 6, 2011, with reasons reported at [2012] O.J. No. 3584.

Gillese
    J.A
.:

[1]

The Applicants operate an Active Green + Ross location in Vaughan.  They
    are licensed to operate as an automotive retail store.  They were charged with
    operating a public garage contrary to the City of Vaughan (the City) By-law
    1-88, s. 5.2 and, therefore, with committing a violation of s. 67(1) of the
Planning
    Act
, R.S.O. 1990, c. P.13.

[2]

Midway through the prosecutions case, the trial judge stayed the
    proceedings.  She ordered a stay based on her conclusion that the prosecution
    was an abuse of process.  In reaching this conclusion, the trial judge relied
    on the clear evidence of the Citys by-law enforcement officer that no offence
    had been committed on the offence date or any other date on which she (the
    by-law enforcement officer) had attended the premises.

[3]

The City appealed.

[4]

The appeal judge allowed the appeal, reversed the stay and ordered a new
    trial.

[5]

The Applicants seek leave to appeal to this court, pursuant to s. 131 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33.

[6]

After hearing oral argument on the motion, I advised the parties that I
    would grant leave to appeal, with brief reasons to follow.  These are the
    promised reasons.

The Test for Granting Leave  Section 131 of the
Provincial
    Offences Act

[7]

Section 131 of the
Provincial Offences Act
reads as follows:

131.
(1)
A
      defendant or the prosecutor or the Attorney General by way of intervention may
      appeal from the judgment of the court to the Court of Appeal, with leave of a
      judge of the Court of Appeal on special grounds, upon any question of law alone
      or as to sentence.

(2)  No
      leave to appeal shall be granted under subsection (1) unless the judge of the
      Court of Appeal considers that in the particular circumstances of the case it
      is essential in the public interest or for the due administration of justice that
      leave be granted.

[8]

The law on s. 131 is well-settled: see, for example,
R. v. Castonguay
    Blasting Ltd
., 2011 ONCA 292 (in Chambers), at paras. 14-15. In order for the
    Applicants to obtain leave, they must establish: (i) special grounds; (ii) on a
    question of law alone; and (iii) that, in the particular circumstances of this
    case, it is essential in the public interest or for the due administration of
    justice that leave be granted.  What constitutes special grounds in s. 131(1)
    is informed by the requirement in s. 131(2) that it is essential in the public
    interest or for the due administration of justice that leave be granted.  The
    threshold for granting leave is very high.

Analysis

[9]

The Applicants raise several grounds of appeal, the thrust of which is that
    the appeal judge went beyond the scope of permissible appellate review and
    second-guessed the trial judges exercise of discretion.  In essence, the
    Applicants say that the appeal judges focus was on the merits of the case instead
    of abuse of process and, as a consequence, he erred by, among other things, reweighing
    evidence, making factual findings for which there was no evidentiary foundation
    and making evidentiary rulings that were not available to him.

[10]

While
    some of the grounds of appeal might arguably be classified as mixed questions
    of law and fact, I am satisfied that some raise questions of law alone.  As the
    various grounds that have been raised are interrelated, I would permit the
    appeal to go ahead as it has been framed rather than attempting to restrict the
    issues on appeal in some fashion.

[11]

This
    case raises significant questions about the laying of charges by enforcement
    officers, a matter with consequences far beyond the parties to this particular
    case.  Enforcement officers across the province are responsible for
    investigating and recommending the laying of charges under a wide array of
    legislation.  Their actions affect the daily lives of Ontario citizens.  Accordingly,
    the due administration of justice and the public interest requirements are met:
    see
Maitland Valley Conservation Authority v. Cranbrook Swine Inc
., 2001
    CarswellOnt. 3855 (C.A) (in Chambers), at para. 10.

DISPOSITION

[12]

Accordingly,
    leave to appeal is granted.

Released: September 7, 2012 (E.E.G.)

E.E. Gillese
    J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION:

Aragona v. Aragona, 2012
    ONCA 639

DATE: 20120926

DOCKET: C55324

Cronk, Epstein and Pepall JJ.A.

BETWEEN

Robert Aragona

Applicant (Respondent)

and

Beniamino Aragona, guardian of property for Maria Emilia
    Aragona
,

and the
    Public Guardian and Trustee

Respondents (
Appellant
)

John W. Bruggeman, for the appellant

J.Greg Murdoch and Cynthia Davis, for the respondent

Heard: September 6, 2012

On appeal from the judgment of Justice Gray of the
    Superior Court of Justice, dated March 5, 2012.

Epstein
    J.A.:

[1]

The
    appellant and respondent are brothers. On August 3, 1999 the appellant was
    appointed the guardian of property for their mother, Maria Aragona.  Ms.
    Aragona, who suffered from Alzheimers disease, died on March 6, 2010.

[2]

The appellant
    appeals from the March 5, 2012 judgment in which the application judge dismissed
    his application to pass accounts and awarded other relief, the effect of which
    amounted to a strong rebuke of the appellants conduct as guardian.

[3]

With
    the exception of one variation to take into account a possible benefit accruing
    to Ms. Aragonas estate, I am in full agreement with the application judges
    reasoning and conclusions.  I would therefore allow the appeal, in part.

Background

[4]

On
    May 1, 2001, pursuant to an order of the Superior Court, the appellant passed
    his first set of accounts.  On July 20, 2004, he was again ordered to pass
    accounts  this time within 30 days of that date and every three years
    thereafter. His failure to comply with the July 2004 order resulted in yet
    another order, dated June 8, 2010, requiring him to pass accounts.  On December
    14, 2010, this court dismissed the appellants appeal from that order. The application
    to pass accounts, the first since May of 2001, finally came before the application
    judge on January 9, 2012.

[5]

The
    application judges findings relating to the finances concerning Ms. Aragonas
    property, during the appellants guardianship, can be summarized as follows.

[6]

As
    of May 21, 2001 the capital in the estate, held in an investment account,
    amounted to $152,055.71 and the liabilities totalled $8,521.45.  The estate
    revenue from 2001 until her death was $195,776.41, an amount only $11,000 short
    of meeting Ms. Aragonas expenses during that period.  In September 2003 the investment
    account was closed and a money order in the amount of $117,881.95 was given to
    the appellant.  He deposited the money order into another investment account
    approximately a year later. Between May 31, 2001 and March 31, 2010, the
    appellant withdrew $122,534.40 from the investment account.  As of March 31,
    2010, this account held $46,562.91.

[7]

After
    hearing the contested passing of accounts and rejecting the appellants efforts
    to tender additional evidence as part of his written submissions, the application
    judge released reasons in which he identified certain misconduct in the
    appellants management of his mothers property.

[8]

This
    central finding of misconduct gave rise to the following terms of the decision that
    the appellant challenges on appeal.

[9]

On
    the basis of the application judges finding that the appellant transferred,
    without convincing explanation, a significant sum of money from his mothers investment
    account to his own account, the appellant was ordered to reimburse these monies
    through a payment of $132,628.

[10]

On the basis of the
    application judges conclusion that the appellant had incurred unjustified legal
    expenses in the management of his mothers property, the application judge
    ordered the appellant to reimburse the estate for certain legal costs paid by
    the estate and not use estate funds to pay other outstanding accounts.

[11]

Finally, citing
Zimmerman
    v. McMichael Estate
, 2010 ONSC 2947, 103 O.R. (3d) 25 (S.C.J.), the
    application judge ordered that the appellant was disentitled to compensation
    for his work as a guardian and that he personally pay the costs of the
    application itself.

Issues

[12]

The appellant submits
    that the application judge erred:

(1)   in including in his calculation of the money the
    appellant was ordered to repay the estate, the amount of $18,615.38 in legal
    costs;

(2)   in ordering that outstanding legal accounts not be paid
    by the estate;

(3)   in not adequately explaining his decision to require the
    appellant to repay $132,628 to the estate and his decision that outstanding
    legal accounts not be paid by the estate; and

(4) in depriving him of compensation as guardian of his
    mothers property.

Analysis

(1)

R
equiring the appellant to repay $18,615.38 to the estate

[13]

Of the $28,154 in
    legal fees the appellant claimed were expended on behalf of the estate, the
    respondent challenged the amount of $18,615.38.  The application judge found in
    the respondents favour on this issue and added this amount to the amount he
    ultimately ordered the appellant to repay the estate.

[14]

With respect to this
    issue, the appellants primary submission is that he did not receive a fair
    hearing.  The transcript reveals, he says, that counsel for the respondent made
    it clear at the outset of the hearing of the application that his client did
    not take issue with any disbursements the appellant claimed he had made on
    behalf of the estate. Mr. Bruggeman, counsel for the appellant, submits that
    his clients case was presented on the basis of that representation.  The
    appellant was, therefore, taken by surprise when the respondents written
    submissions included argument in which these disbursements were challenged.  Mr.
    Bruggeman attempted to respond by including in his written submissions argument
    referencing material already in the record and additional documentation that
    had not been put before the application judge that related to these disbursements.
    The application judge refused to accept the new evidence
.

[15]

I do not agree with
    the appellants contention that, in these circumstances, he was treated
    unfairly.

[16]

From the outset the
    respondent signalled to the appellant his particular concern about the disbursements
    in question.  On August 2, 2011, the respondent served a Notice of Objection
    identifying missing documents and concerns relating to the Statement of Accounts
    the appellant had delivered.  On October 25, 2011, the respondent served an
    Amended Notice of Objection and a Demand for Particulars setting out additional
    concerns about the decrease in the capital of the investment account and the lack
    of documentary support for disbursements the appellant claimed to have made.

[17]

At the opening of the
    hearing of the application, an exchange took place between counsel and the
    application judge about what was in issue.  Counsel for the respondent indicated
    that his client was not challenging disbursements.  In the course of this
    exchange counsel agreed with the application judges expression of the
    understanding that disbursements were not in issue at this time.  It was
    against this background that the hearing proceeded.

[18]

During
    cross-examination the appellant was questioned about a number of disbursements allegedly
    paid by the appellant on behalf of the estate, over a number of years.  Significantly,
    Mr. Bruggeman neither objected to these questions nor dealt with the issue
    during re-examination.

[19]

Given the history of
    the appellants failure to fulfill his obligations as guardian of his mothers
    property and the respondents having put the appellant on notice about his
    concern about certain disbursements, (as evidenced by the Notices of Objection
    and the Demand for Particulars), the cross-examination of the appellant should,
    in my view, have caused counsel for the appellant to be concerned about whether
    the issue of the respondents challenge to the claimed disbursements had, in
    fact, been taken off the table. If appellants counsel firmly held the view
    that it was not in issue, he most certainly would have objected to the
    questioning. As indicated, he did not.

[20]

Moreover, when the
    appellant was clearly made aware, through the respondents written submissions,
    that these legal expenses were in issue, at least from the respondents
    perspective, the appellant was still unwilling or unable to support the
    challenged disbursements despite being given the opportunity on two subsequent
    occasions to do so. The application judge reviewed the appellants submissions
    on this issue and the documentation upon which he relied and was not prepared
    to accept the new evidence.  That said, based on his review, he concluded that
    the evidence was of no assistance - the new material simply disclose[d] what
    was apparent already. This is relevant to the fairness argument the appellant
    is advancing.  Finally, during oral argument before this court, the appellant still
    could not provide an explanation in support of the challenged disbursements
    despite being given an opportunity to do so.

[21]

The appellants
    fairness argument should be considered in the light of his statutory
    obligations.  Pursuant to the
Substitute Decisions Act, 1992
, S.O.
1992
,
    c. 30, a guardian of property has a fiduciary obligation to carry out his or
    her obligations with honesty and due care and attention.  The core of these
    obligations includes the duty to be in a position at all times to prove the
    legitimacy of disbursements made on behalf of the estate: Widdifield on
    Executors and Trustees, 6
th
ed. (Scarborough, ON: Thomson Carswell,
    2002) at p. 13-1. The history of the appellants conduct demonstrates that he managed
    his mothers property in blatant disregard of his obligations as guardian.

[22]

In the light of the
    appellants obligations as guardian and this history, I am not persuaded that
    he was treated unfairly with respect to the disbursements issue.  The appellant
    had ample opportunity on the passing of his accounts to justify the
    expenditures allegedly made on behalf of the estate.  He failed to do so.
    Indeed, there is no indication that the appellant, even now, has access to any
    material that would have had an impact on the application judges decision in
    this respect.  In fact, in his reasons, the application judge gratuitously
    indicated that he may have disallowed the entire amount of claimed legal
    expenses, totalling $28,154, had the respondent challenged them.

[23]

I would therefore not
    give effect to this argument.

(2)

The order that the estate would not be
    responsible to pay unpaid legal accounts

[24]

The legal fees ordered
    not to be paid by the estate relate to lawsuits the appellant initiated against
    his brothers, on behalf of the estate.  In these proceedings, the appellant claimed
    that his brothers, in their management of their fathers estate, failed properly
    to account for assets under their management, the income from which was
    directed, through their fathers will, to the benefit of Ms. Aragona, during
    her lifetime.

[25]

The application judge
    held that these proceedings were ill-advised given the financial stability of
    Ms. Aragonas estate and therefore that the estate should not be responsible
    for the legal costs associated with these proceedings.

[26]

However, the appellant
    submits that the application judge erred in failing to take into account the
    possibility that the estate could actually benefit from the proceedings.  He
    points to an award of costs in the amount of $25,000 in favour of the estate
    arising out of a motion for contempt brought in one of the proceedings.  While
    these costs have not yet been paid to the estate, there is nothing in the
    record to support the conclusion that all, or at least part, will not be
    collected.  It would be unfair, argues the appellant, for the estate to receive
    a benefit from the contempt motion, without having to incur any of the associated
    costs.

[27]

I find merit in this
    argument.  And counsel for the respondent, quite fairly, advised the court that
    he does as well.  However, his submission is that if and when any part of the
    award is collected, the parties should look to the trustee of Ms. Aragonas
    estate to determine what, if any, responsibility the estate should have for the
    legal fees incurred by the appellant in respect of the contempt motion that led
    to the award.

[28]

The difficulty with
    this suggestion lies in the wording of the specific terms of the judgment under
    appeal.  Paragraph 4 orders that [a]ny outstanding legal accounts directed to
    the estate of Maria Emilia Aragona shall not be paid by the estate.  Left
    unchanged, this provision would preclude the trustee from authorizing the
    payment of legal costs from the estate.

[29]

I am of the view that
    this issue can be resolved in a manner designed to be fair to those whose
    interests are affected and also cost-effective, having regard to the amounts
    potentially in issue.  With these objectives in mind, I would order that if the
    estate collects the total amount of $25,000 pursuant to this award, that it reimburse
    the appellant in the amount of $7,500 for legal fees he can demonstrate he paid
    and that led to this award.

(3)

The Sufficiency of Reasons

[30]

I do not find merit in
    the appellants argument that the application judges reasons relating to his
    decision to order him to repay $132,628.33 to the estate and that the estate
    not be responsible for the legal fees associated with the $25,000 costs award,
    are inadequate.

[31]

As put by Doherty J.A.
    in
Law Society of Upper Canada v. Neinstein
(2010),
317 D.L.R. (4th) 419
, when the adequacy
    of the reasons is raised as a ground of appeal the courts focus is on whether
    the reasons explain what was decided and why that decision was made.

[32]

Shortcomings
    notwithstanding, I am of the view that the application judges reasons are
    adequate.  The findings of fact that the application judge was required to make
    were supported by the record and those based on the application judges
    unfavourable assessment of the appellants credibility are entitled to
    deference. And, the application of these facts to the controlling legal
    principles leading to the conclusions reached is explained.

[33]

Ultimately, the test
    is whether the reasons permit reasonable appellate review.  In my view, they
    do.  I would therefore not give effect to this ground of appeal.

(4)

Compensation and Costs

[34]

The application judges
    reliance on
Zimmerman
was well-placed given his strongly-worded
    conclusion at para. 34 that the conduct of (the appellant) has been shocking.
    He has literally helped himself to many thousands of dollars from his mothers
    estate, at a time when his mother had Alzheimers and was unable to look after
    her own affairs. (The appellant) treated the money in the estate as if it was
    his own.

[35]

The application
    judges assessment of the appellants failure to keep proper accounts and of his
    indifference to his fiduciary obligations, finds ample support in the record.
    It follows that depriving him of compensation for his guardianship was clearly
    within the application judges discretion:
Zimmerman
at para. 34.

[36]

I would also reject this
    ground of appeal.

Disposition

[37]

Accordingly, for the
    reasons given, I would allow the appeal in part by varying paragraph four of
    the judgment to read as follows:

4.       Any outstanding legal accounts directed to the estate
    of Maria Emilia Aragona shall not be paid by the estate save and except that,
    to the extent that the estate collects all of the $25,000 costs awarded in its
    favour under paragraph eight of the Order of Somers J., dated January 5, 2006,
    in action no. 01-0373/03, the estate shall pay the total amount of $7,500,
    inclusive of disbursements and all applicable taxes, on account of those legal
    fees incurred by Beniamino Aragona in respect of the underlying motion that led
    to the award.

[38]

In all other respects,
    I would dismiss the appeal.

[39]

The respondent is entitled
    to his costs of the appeal paid by the appellant, personally.  As agreed, these
    costs are fixed in the amount of $10,600, inclusive of disbursements and all
    applicable taxes.

Released:

SEP 26 2012

GE                                                  Gloria
    J. Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree Sarah Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Bank of
    Montreal v. Barber Glass Industries Inc.,
2012 ONCA 630

DATE: 20120925

DOCKET: C55056

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J.S.C.J. (
ad hoc
)

BETWEEN

Bank of Montreal

Applicant

and

Barber Glass Industries Inc.

Respondent

Jack B. Berkow and Scott A. Crocco, for the appellant, Danbury
    Industrial et al.

Harvey Chaiton and Maya Poliak, for the respondent, Grant
    Thornton Limited

Steven L. Graff, for the respondent, Bank of Montreal

Sam P. Rappos, for the respondent, Roynat Inc.

Heard: September 10, 2012

On appeal from the order of Justice James M. Spence of
    the Superior Court of Justice, dated February 6, 2012.

ENDORSEMENT

Introduction

[1]

The respondent, Grant Thornton Limited (the court appointed Receiver)
    brought a motion for directions on the question of whether the appellant,
    Danbury Industrial et al. (the Auctioneer) was entitled to a Buyers
    Premium in connection with the sale of assets of the debtor, Barber Glass
    Industries Inc. (the Debtor) pursuant to a court-approved Auction Service
    Agreement (the ASA).  The motion judge ordered that the Auctioneer was: (i)
    entitled to a 12% buyers premium on the sale of certain assets to ToughGlaze
    (UK) Ltd.; but (ii) not entitled to a buyers premium on the sale of assets to
    1762423 Ontario Inc. (the Purchaser).  This second decision is the subject of
    this appeal.

Brief background

[2]

Prior to a public auction, the Auctioneer
entered
    into an Offer to Purchase (the Offer) with the Purchaser, wherein the Purchaser
    agreed to a private purchase of substantially all of the Debtors assets for
    $8.5 million.  The Offer did not refer to a Buyers Premium.  However, a Bill
    of Sale was also executed, and was later amended to include a handwritten
    amendment stating that the purchase price was inclusive of the Buyers
    Premium.

[3]

After the Offer had closed, the Auctioneer provided the Receiver with a
    proposed distribution of the purchase price and claimed a Buyers Premium.  The
    Receiver refused to pay any premium and the Auctioneer commenced legal
    proceedings.

[4]

Under clause 2.5(1)(f) of the ASA, the Auctioneer was entitled to
    receive a share of the buyers premium of the sale of the assets (the Buyers
    Premium).   Clause 1.1(12) defined the Buyers Premium as:

the fee charged to purchasers by the [Auctioneer] upon sale of
    the [a]ssets  which in no event shall be less than twelve (12%) per cent of
    the purchase price.

Reasons of the motion judge

[5]

The motion judge acknowledged that the ASA entitles the Auctioneer to a
    Buyers Premium from the proceeds of the sale of the assets and that the terms
    of the auction stated a 12% Buyers Premium would apply.  However, he concluded
    that the Auctioneer was not entitled to a Buyers Premium in connection with
    the Purchaser transaction for several reasons.

[6]

First, the motion judge found that the Offer did not contain a provision
    for the Auctioneer to charge a Buyers Premium for the purchases.  He noted
    that the Offer has an entire agreement clause that states that the Offer
    supersedes all prior agreements and understandings and that there are no such
    agreements or understandings.  He noted also that the Offer requires all
    amendments and modifications be in writing and signed by the parties.
    Accordingly, he held that the Offer represents the entire agreement of the
    parties, which contains no provision for a Buyers Premium and, therefore, the
    Auctioneer is not entitled to one.

[7]

Second, the motion judge observed that the Bill of Sale also did not
    refer to a Buyers Premium.  Although it was revised later, he concluded that
    this was not evidence that a Buyers Premium was in fact charged upon the sale
    of the assets for the purposes of the ASA.  He held that, for the ASA to apply,
    the Buyers Premium would have had to be charged at the time of the transaction.

[8]

Third, the motion judge held that the purchase was completed in
    accordance with the terms of the Offer, not the auction.

[9]

Finally, the motion judge held that there was conflicting evidence as to
    whether the Auctioneer told the Purchaser that the Buyers Premium would be
    included in the purchase price at the time the Offer was entered into and
    closed.  He went on to hold that in view of the entire agreement clause in the
    Offer, it is not necessary to address the matter.

Analysis

[10]

The Auctioneer on appeal agrees that the motion
    judge correctly identified the issue for determination as being whether a
    Buyer's Premium is payable to the Auctioneer under the ASA
.
However, it submits that he was in
error in
    his analysis and conclusions.  We agree.

[11]

In our view, the motion judge erred in his conclusion that the
    12% Buyers Premium did not apply in this case.  The Buyers Premium was an
    unqualified entitlement pursuant to the ASA between the Auctioneer and the
    Receiver.  In other words, the Buyers Premium, pursuant to clause 2.5 of the
    ASA was mandatory.  All references to the Buyers Premium in the ASA leave
    little doubt that it was in any way negotiable.

[12]

The
    motion judge placed too much emphasis on the provisions of the Offer between
    the Auctioneer and the Purchaser, such that it completely obscured the
    mandatory obligations between the Auctioneer and the Receiver under the ASA.
    More consideration ought to have been given to the true intent of the
    respective parties and their obligations under each of these agreements.

[13]

Here,
    the Receiver clearly was aware of the Buyers Premium from the ASA.  The
    auction catalogue set out the 12% buyers premium was annexed as a schedule to
    the Offer making the Purchaser aware of it.  Thus, the Auctioneers entitlement
    to a Buyers Premium was a matter that was known to all the parties.  Indeed,
    the Receiver in oral argument in this court, fairly and appropriately admitted
    that if it had been written into the Offer, it would have been obliged to pay
    it.

[14]

Furthermore,
    the revised Bill of Sale between the Auctioneer and the Purchaser is a
    component of the Offer, and it documents the parties agreement that the
    purchase price included the Buyers Premium.  The motion judge unduly expanded
    the scope of the entire agreement clause in the Offer, thereby preventing any
    further amendments from having any meaning.

[15]

Notably,
    the motion judge permitted a Buyers Premium in the private sale to ToughGlaze
    for $650,000 even though the purchase agreement did not expressly reference
    one.  Like here, it was revised later in the Bill of Sale to reflect that the
    purchase price included the premium.  The difference, according to the motion
    judge, was that in this case there was the entire agreement clause.  As we have
    explained, this difference incorrectly ignores the mandatory commitment under
    the ASA.

[16]

Negotiated commercial documents
    are to be interpreted
so as to accord with sound commercial principles
    and good business sense and avoid commercial absurdity
:
Salah v. Timothy's Coffees of the World Inc
., 2010 ONCA 673, para. 16
.
In this case, it would be commercially absurd for the Receiver to pay a Buyers
    Premium on a successful $6.5 million bid at auction, but not on a private sale
    which involved $8.5 million.  But for the mistake of not including a Buyers
    Premium entitlement in the Offer, the Auctioneer expected to receive one and
    the Receiver was obliged to pay one.

[17]

We
    take note of the fact that if the Purchaser had paid the amount the assets sold
    for at auction; it would have been obligated to pay approximately $6.5
    million.  Pursuant to the Offer, however, the Purchaser paid $8.5 million less
    a credit for the excluded assets.  This resulted in a net price well above what
    it would have paid based on the prices bid at auction plus a 12% Buyers
    Premium.

[18]

The
    Auctioneers award of a Buyers Premium does not produce an unfair result,
    whereas denying one does.  That is, denying one ignores the impressive results
    achieved by the Auctioneer, the clear intention of the parties under clause 2.5
    of the ASA and its compulsory application, and results in a $700,000 windfall
    to the Receiver.

[19]

For these reasons, the appeal is allowed.  The Auctioneer is
    entitled to a 12% Buyers Premium in the sum of $700,890 payable forthwith.
    Costs are awarded to the Auctioneer in the amount of $10,000, inclusive of
    disbursements and applicable taxes.

Warren
    Winkler C.J.O.

H.S.
    LaForme J.A.

J.D. Cunningham A.C.J.
S.C.J.


COURT OF APPEAL FOR ONTARIO

CITATION:
Baxter v. Ontario
    (Real Estate and Business Brokers Act Registrar), 2012 ONCA 632

DATE: 20120924

DOCKET: C54783

Simmons, Blair and LaForme JJ.A.

BETWEEN

Timothy Baxter and T. Baxter Real Estate Ltd.

Applicants (Respondents)

and

Registrar,
Real Estate and Business Brokers
    Act, 2002

Respondent (Appellant)

Robert A. Maxwell and George P. Drametu, for the
    appellant

Carolyn R. Brandow, for the respondent

Heard: May 28, 2012

On appeal from the order of the Divisional Court (Justices
    Kent and Aston; Justice Matlow, dissenting), dated July 12, 2011, with reasons
    reported at 2011 ONSC 2497, 282 O.A.C. 201, dismissing an appeal from the order
    of Vice-Chair Elizabeth L. Sproule of the Licence Appeal Tribunal, dated
    January 25, 2010.

COSTS ENDORSEMENT

[1]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the amount of $10,429.55 inclusive of disbursements and applicable
    taxes.

Janet Simmons J.A.

R.A. Blair J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Bluewater
    Health v. Kaila, 2012 ONCA 629

DATE: 20120921

DOCKET: C55405

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Bluewater Health

Applicant (Respondent)

and

Dr. Sanjeev Kaila

Respondent (Appellant)

C. Kuehl, for the appellant

Paula A. Trattner and Aislinn Reid, for the respondent

Heard and released orally: September 19, 2012

On appeal from the judgment of Justice Carey of the Superior
    Court of Justice, dated March 30, 2012.

By the Court:

[1]

The appellant, Dr. Kaila, appeals the order of the application judge
    that rule 30.1.01(3), the deemed undertaking rule, does not apply to the
    Affidavit of Dr. Rajiva Singh, dated March 2, and the exhibits thereto.

[2]

The background of this matter is, briefly, as follows.

[3]

The appellant commenced an action against the respondent hospital,
    Bluewater Health, in 2008, alleging breach of the agreement governing their
    relationship. The parties attended a mediation, but were unsuccessful in
    resolving the issue. It was evident that the lack of documentary evidence of complaints by the appellant to the hospital was a
    weakness in his case.

[4]

Ten days after the mediation, the appellant produced two new e-mails
    that he intended to use at trial. Both e-mails detail complaints made to other
    medical staff at the hospital before the action was commenced. Suspicious as to
    the authenticity of the e-mails, the hospital commenced an investigation, and
    ultimately obtained an affidavit from Dr. Rajiva Singh, one of the alleged
    recipients of the e-mails. In the affidavit, Dr. Singh stated that he had no
    independent recollection of having received the e-mails, and did not have the
    e-mail address attributed to him at the time the e-mails were purportedly sent
    and received. The e-mails are exhibits to his affidavit.

[5]

Soon after, the parties settled.

[6]

Subsequently, the appellant applied for re-appointment to the hospitals
    professional medical staff. The hospitals Medical Advisory Committee (MAC) was
    aware that the hospital doubted the authenticity of the e-mails that had been produced
    in the action by the appellant, but did not have a copy of Dr. Singhs
    affidavit.  The MAC recommended to the hospitals Board that the appellant be
    re-appointed.  The Board referred the matter back to the MAC for
    reconsideration at a special MAC meeting. Prior to the meeting, the appellants
    counsel was advised of the list of documents that would be considered, which
    included Dr. Singhs affidavit. Counsel for the appellant objected, and the
    meeting was adjourned pending a court determination of whether the deemed
    undertaking rule applied to the affidavit, and if so, whether relief would be
    granted.

[7]

Rule 30.1.01 (3) of the
Rules of Practice
provides that all
    parties and their lawyers are deemed to undertake not to use evidence or
    information to which the Rule applies for any purposes other than those of the
    proceeding in which the evidence was obtained. Subrule (1) provides that the
    Rule applies to, among other things, evidence obtained under Rule 30
    (documentary discovery).

[8]

We assume for the purpose of this appeal that the deemed undertaking
    rule applied to the e-mails produced by the appellant.

[9]

Subrule 30.1.01(8) provides as follows:

If satisfied that the interest of justice outweighs any
    prejudice that would result to a party who disclosed evidence, the court may
    order that subrule (3) does not apply to the evidence or to information
    obtained from it, and may impose such terms and give such directions as are
    just.

[10]

The
    application judge concluded that if the deemed undertaking rule applied, the respondent
    should be exempted from its application pursuant to subrule 30.1.01 (8). He
    determined that the interest of justice in denouncing the unethical fabrication
    of evidence, if in fact it did occur, outweighed any prejudice from the
    disclosure of the e-mails. The application judge noted that the exchange in the
    e-mails at issue concerns the same parties as before the court, their content
    is benign, and, if authentic, they do not relate to any private or
    confidential matters between the parties.

[11]

In
Juman v. Doucett
, [2008] SCJ No. 8 (S.C.C.), the Supreme Court of
    Canada considered when relief should be given against deemed undertakings.   Binnie
    J., writing for the court, observed, at para. 35, that,  where discovery
    material in one action is sought to be used in another action with the same or
    similar parties and the same or similar issues, the prejudice to the examinee
    is virtually non-existent and leave will be generally granted.

[12]

Here,
    the same parties are involved and the issue is again the relationship between
    those parties. Moreover, the e-mails at issue are allegedly an exchange between
    those very parties. The appellant has no privacy interest in the e-mails, and
    there is no prejudice to him.

[13]

The
    appellants suggestion that the hospital was somehow seeking to use the
    affidavit for an improper purpose is not supported by the evidence.

[14]

A
    decision to grant relief from the deemed undertaking rule entails an exercise
    in discretion. In our view, on these facts, the application judge properly
    concluded that his discretion should be exercised to order that the deemed
    undertaking rule does not apply to prohibit the provision of Dr. Singhs
    affidavit to the MAC.

[15]

The
    appeal is accordingly dismissed.

[16]

Costs
    of the appeal are awarded to the respondents in the amount of $10,000,
    including taxes and disbursements.

D. Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Breitwieser (Re), 2012
    ONCA 649

DATE: 20120928

DOCKET: C54938

Sharpe, Simmons and Epstein JJ.A.

IN THE MATTER OF:  Alf Breitwieser

J. Di Luca, for the appellant

Mabel Lai and J. Zamprogna, for the respondent

Heard: September 25, 2012

On appeal against the disposition of the Ontario Review
    Board dated, January 3, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the Boards conclusion that the appellant continues to pose
    a significant risk to public safety was reasonable and well supported by the
    evidence.

[2]

However, we conclude that the Boards rejection of the recommendation of
    the treatment team that the appellant be detained subject to a condition that he
    be permitted to live in Elgin County accommodation approved by hospital was not
    supported by the evidence, was inconsistent with
Winko
and therefore,
    must be set aside as unreasonable.

[3]

The Board was plainly concerned about the capacity of the treatment team
    to monitor the appellants compliance with medication. Implicit in the Boards
    rejection of community living is the proposition that only something
    approaching perpetual daily monitoring could satisfy that concern.

[4]

This is not supported by the evidence. The majority of the medication
    the appellant receives is by way of injection at the hospital every two weeks.
    It would be immediately apparent to the treatment team if the appellant refused
    the injection medication. Moreover, it takes two weeks to decompensate if he
    does not receive the medication.

[5]

In our view, the Board also misapprehended the evidence as to the
    capacity of the treatment team to monitor the appellant tin the community. Dr.
    Roopchand testified that daily monitoring could be maintained for a certain
    period and that an appropriate level of supervision could be established
    thereafter. In the end, under the treatment teams recommendation, the
    appellant would remain subject to a detention order and therefore subject to
    immediate return to hospital should problems arise.

[6]

For these reasons, the appeal is allowed, the Boards order is set aside
    and replaced by an order containing the recommendation made by the hospital.


COURT OF APPEAL FOR ONTARIO

CITATION:

Brown v. Hudson's
    Bay Company, 2012 ONCA 631

DATE: 20120924

DOCKET: C55054

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J.S.C.J. (
ad hoc
)

BETWEEN

Collington Brown

Appellant

and

The Hudsons Bay Company (HBC), Linda Mercadante,
    Jane Doe a.k.a. Laura, Bramalea City Centre, Canstar Security Services Inc.,
    Michael Magnaye, Ryan Harnest, Amanda Elizabeth Balne, Shaun McGrath, and
    Raphael Waugh

Respondents

Collington Brown, in person

Paulette Pommells, for the respondents

Heard and released orally: September 14, 2012

On appeal from the judgment of Justice Leonard Ricchetti
    of the Superior Court of Justice, dated January 12, 2012.

ENDORSEMENT

[1]

The appellant submits that the motion judge made three errors. First, he
    argues that the motion judge made palpable and overriding errors in his
    findings of fact. We disagree.

[2]

The motion judge clearly explained that even if he found all the relevant
    facts in favour of the appellants position the claims were without merit
    because the requisite elements of the torts alleged could not be made up. In
    reaching this conclusion he made the following critical findings:

(1)   The respondent, Hudsons Bay Company is a lessee from the
    store and its employees requested the attendance of the security personnel to
    ensure the appellant left the store;

(2)   The respondents did not cause the appellants detention,
    rather he caused it himself by failing to leave when asked by all security
    staff do so; and

(3)   The respondents did not threaten or touch the appellant.

[3]

The appellants customer service dispute with the respondents is not
    relevant to proving his claims against them. What the record clearly
    establishes, and as the motion judge found, is that based upon the appellants
    own examination for discovery the respondents never touched the appellant and
    had backed away from the confrontation. This is fatal to the appellants court
    claims against the respondents. This ground of appeal is without merit.

[4]

Second, the appellant submits that the motion judge failed to recognize
    that the respondents had a positive duty under s. 3(1) from the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2, namely to take such care as is
    reasonable to keep premises reasonably safe for all persons entering the
    premises.

[5]

We reject this ground of appeal. The appellant did not raise this cause
    of action in the statement of claim and it was not considered by the motion
    judge. Even if it had been properly raised on the motion, the
Occupiers
    Liability Act
would not assist the appellant. As is clear from the record
    and in the findings of the motion judge the appellant created the danger to his
    person by refusing to leave the store, not the respondents.

[6]

Third, the appellant argues that the motion judge erred in failing to
    apply the full appreciation test for granting summary judgment as established
    in
Combined Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764.

[7]

This ground of appeal is also dismissed. Although the motion judge used
    the language, no genuine issue requiring trial, he actually correctly applied
    the proper test. After referencing
Combined Air
, the motion judge
    disposed of the matter because it fell into the second category of
Combined
    Air
.  That is, summary judgment was granted because the claims of the
    appellant were without merit.

[8]

Once again the motion judge found that even if all the facts favoured
    the appellant, the claim he seeked was simply without merit, indeed, and as
    previously referenced the motion judge found that based on the appellants own
    examination for discovery none of the respondents touched the appellant and
    they evacuated from the confrontation.

[9]

Accordingly, the appeal is dismissed.

[10]

The
    respondents costs will be fixed at $3,500 inclusive of disbursements and HST.

Warren Winkler C.J.O.

H.S. LaForme
    J.A.

J.D. Cunningham A.C.J.
S.C.J.


COURT OF APPEAL FOR ONTARIO

CITATION:

Canada
    (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569

DATE: 20120905

DOCKET: M40742 & M40925 (C54560)

Weiler, Blair and Rouleau JJ.A.

In the Matter of the Bankruptcy of Matthew David
    Moore, of the City of Brampton in the Regional Municipality of Peel, Province of
    Ontario

BETWEEN

The Superintendent of Bankruptcy

Respondent/Applicant (Appellant)

and

407 ETR Concession Company
    Limited
and Matthew David Moore

Moving
    Party/Respondent (
Respondents
)

J.T. Curry and Andrew Parley, for the respondent 407 ETR
    Concession Company Limited

Liz Tinker, for the appellant

Heard: May 16, 2012

Rouleau
    J.A.:

Introduction

[1]

The court is being called upon to rule on two motions.  The first is a
    motion by 407 ETR Concession Company Limited (407 ETR) to quash the notice of
    appeal delivered by the Superintendent of Bankruptcy (Superintendent) on the
    basis that the Superintendent does not have the standing necessary to appeal
    the decision.

[2]

In the event that 407 ETRs motion to quash is successful, the
    Superintendent seeks leave to appeal and an extension of time to bring the
    motion for leave.

[3]

407 ETR opposes leave being granted on the basis that the Superintendent
    was not a party to the underlying dispute, a dispute that has since settled,
    and there is no basis in law for granting such leave.

[4]

The outcome of these motions turns on the proper interpretation of ss.
    5(4)(a) and 193(e) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985,
    c. B-3 (
BIA
).

Facts

[5]

Matthew David Moore (Moore) made an assignment in bankruptcy in November
    2007.  At the time he had accumulated a debt to 407 ETR of approximately
    $35,000 in unpaid toll charges.

[6]

On June 21, 2011, Deputy Registrar Donaldson made an order granting Moore an absolute discharge from bankruptcy.  Moore then sought to obtain valid vehicle
    permits for two cars.    Section 22(4) of the
Highway 407 Act, 1998
,
    S.O. 1998, c. 28, prevents the Registrar from validating or issuing permits
    where 407 tolls remain unpaid. Accordingly, the Registrar of Motor Vehicles
    refused to validate or issue the permits because of the unpaid tolls

[7]

Moore brought a motion returnable before a registrar in bankruptcy
    seeking a declaration that his debt to 407 ETR was released pursuant to his
    absolute discharge from bankruptcy.  Both 407 ETR and the Superintendent were
    served with notice of the motion.

[8]

Registrar Mills heard the motion on September 8, 2011.  Through
    inadvertence 407 ETR did not appear. Nor did the Superintendent.  The
    Superintendent explained that, based on past experience, such motions were usually
    granted or settled.

[9]

The registrar allowed Moores motion granting an order that: (i) Moores discharge on June 21, 2011 released him from all claims provable in bankruptcy,
    including the debt of 407 ETR; and (ii) directing the Ministry of Transportation
    to issue licence plates to Moore upon payment of the usual licensing fees.

[10]

Upon
    becoming aware of the registrars order, 407 ETR took steps to have it set
    aside.  It brought a motion in the Superior Court, rather than before a
    registrar in bankruptcy.
[1]
407 ETR did not give the Superintendent notice of its motion.  Moore consented to the motion, which was granted by the motion judge on October 6, 2011.

[11]

Moore subsequently amended his motion and filed it with the Superior Court. He moved for
    the same relief he had sought before the registrar. He also sought a
    declaration to prevent 407 ETR from using s. 22(4) of the
Highway 407 Act
to stop him from obtaining a vehicle permit.

[12]

Additionally,
    he served 407 ETR and the Attorneys General of Canada and Ontario with a notice
    of constitutional question.  He maintained that the refusal to validate or
    issue a vehicle permit under the provincial legislation engaged four conflicts
    with the
BIA
and that s. 178(2) of the
BIA
provides that
    an order of discharge releases the bankrupt from all claims provable in
    bankruptcy.

[13]

On
    October 25, 2011, the motion judge dismissed Moores motion.  He concluded that
    there was no operational conflict between s. 22 of the
407 Highway Act
and s. 178(2) of the
BIA
.  As a result, he declined to grant the
    relief sought by Moore.

[14]

The
    Superintendent did not receive notice of any of the proceedings before the motion
    judge, including the constitutional question.  It learned of these proceedings
    after the motion judges decision dismissing Moores motion on its merits.

[15]

On
    November 4, 2011, the day before the end of the appeal period, the
    Superintendent intervened in this proceeding by serving and filing a notice of
    appeal.  It relied on ss. 5(4)(a) and 193(c) of the
BIA
as its
    authority to do so. Later that day, Moore advised the Superintendent that he no
    longer intended to appeal the decision as he had received a very, very
    attractive offer to settle from 407 ETR.

[16]

On
    November 17, 2011, 407 ETR brought a motion to quash the Superintendents notice
    of appeal.  It took the position that the Superintendent lacks standing to
    bring an appeal as it was not a party to the proceeding below.  Further, if the
    Superintendent were to request leave, leave should not be granted.

[17]

The
    Superintendent took the position that leave was not required to appeal the
    motion judges decision.  However, out of an abundance of caution, it brought a
    motion requesting leave pursuant to s. 193(e) of the
BIA
and/or the courts
    inherent jurisdiction and sought an extension of time to do so.

Issues

[18]

The
    issues raised by these motions are as follows:

1.

Does the
    Superintendent have standing to appeal the order of the motion judge as of
    right?; and

2.

If the
    Superintendent does not have standing as of right:

(a)
    Can the Superintendent appeal the motion judges decision with leave of the
    court?

(b)
    Should an extension of time for serving and filing a notice of motion
    requesting leave to appeal be granted?; and

(c)
    Should leave to appeal be granted?

Analysis

(1)

Does the Superintendent have
    standing to appeal the order of the motion judge as of right?

[19]

An
    appeal from a decision or order made in proceedings instituted under the
BIA
is governed by the
BIA
and the
Bankruptcy and Insolvency General Rules
,
    C.R.C., c. 368 (
BIA
rules), not by the
Courts of Justice Act
,
    R.S.O. 1990, c. C-43, and the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194.

[20]

BIA
rule 31(1) provides that an appeal to a court of appeal referred to in s.
    183(2) of the
BIA
(which includes the Court of Appeal for Ontario) must be made by filing a notice of appeal at the office of the Registrar of the
    court appealed from.  In the case of Ontario, the court appealed from is the
    Superior Court of Justice.  The appeal must be filed within ten days of the
    order or decision appealed from.

[21]

The
    Superintendent relies on the broad power granted by s. 5(4)(a) of the
BIA
,
    as providing it with a right of appeal to this court even where it did not
    participate in the proceedings at the first instance and none of the original
    parties are appealing. I do not agree that s. 5(4)(a) grants the Superintendent
    that right.

[22]

The
    section allows the Superintendent to intervene in any matter or proceeding in
    court, where the Superintendent considers it expedient to do so, as if the
    Superintendent were a party thereto.  Although the section gives the
    Superintendent a broad power to intervene, the ability to do so is restricted
    to a proceeding in court.

[23]

Court
    is defined in s. 2 of the
BIA
. Except in certain noted sections, it
means a court referred to in subsection 183(1) or
    (1.1).
Sections. 183(1) and (1.1) list the provincial and territorial
    trial courts, including the Superior Court of Ontario. The Court of Appeal for Ontario, or any other appellate court for that matter, is notably absent from the list.  The
    scope of intervention by the Superintendent contemplated by s. 5(4)(a)is thus limited
    to the trial courts, and not the courts of appeal.

[24]

The
    Superintendent further argues that even if s. 5(4)(a) only allows interventions
    in the Superior Court, technically, its intervention in this proceeding was
    filed in the Superior Court within the requisite ten day appeal period. Pursuant
    to
BIA
rule 31(1), the notice of appeal is to be filed with the
    Superior Court, not the Court of Appeal. After filing it is transmitted to the
    Court of Appeal.  As a result, the Superintendent contends that the intervention
    was made before the matter had left the Superior Court.

[25]

I
    would not give effect to this submission.  Although
BIA
rule 31(1) provides
    for the filing of the notice of appeal in the Superior Court, the appeal is taken
    to the Court of Appeal for Ontario.  For all intents and purposes, it is a
    proceeding taken in the Court of Appeal.  It is the Court of Appeal and not the
    Superior Court that has authority over the proceeding, including the
    appropriate parties and any proposed interveners.

[26]

The
    Superintendent, therefore, has no standing to bring an appeal to this court as
    of right. However, that does not dispose of the matter. The Superintendent
    argues that it has standing to appeal the motion judges decision with leave of
    the court.

(2)(a) Can the Superintendent appeal the motion judges
    decision with leave of the court?

[27]

Section
    193 of the
BIA
provides for statutory rights of appeal and reads as
    follows:

Unless otherwise expressly provided, an appeal lies to the
    Court of Appeal from any order or decision of a judge of the court in the
    following cases:

(a) if the point at issue involves
    future rights;

(b) if the order or decision is likely
    to affect other cases of a similar nature in the bankruptcy proceedings;

(c) If the property involved in the
    appeal exceeds in value ten thousand dollars;

(d) From the grant of or refusal to
    grant a discharge if the aggregate unpaid claims of creditors exceed five
    hundred dollars; and

(e) In any other case by leave of a
    judge of the Court of Appeal.

[28]

The
    Superintendent argues that s. 193(e) is a catch all provision allowing for the
    possibility of an appeal in any case that does not otherwise fall under s.
    193(a) to (d).  Section 193(e) is, therefore, broad enough to permit this court
    to grant leave and allow the Superintendent to appeal from the motion judges
    decision even though it was not a party thereto.

[29]

407
    ETR argues that absent a statutory right of appeal, there is no inherent
    jurisdiction in this court to hear the appeal.  407 ETR submits that s. 193(e)
    of the
BIA
, does not give this court jurisdiction to grant the leave
    to appeal sought and has no application in this case.

[30]

I
    agree with the Superintendents submission.  Subsections 193(a-d) grant
    automatic rights of appeal.  Subsection (e), however, is distinct from the
    preceding sections in that it is discretionary.  The wording gives the court
    broad discretion.  It provides that in any case where leave is granted, other
    than those listed in (a-d), an appeal lies to the Court of Appeal from any
    order or decision of a judge of the court.

[31]

Although
    we have not been referred to a reported case where a court of appeal granted
    leave to the Superintendent where it was not a party in the lower court
    proceedings, I see nothing in the section that prevents us from doing so.
    Indeed, reading the provision in the context of the statutory scheme and, in
    particular, the unique position of the Superintendent, necessitates this
    conclusion.

[32]

Even
    where the Superintendent does not intervene as a party in the Superior Court, its
    statutory position is such that it is not a true stranger to the proceedings.
    The Superintendent holds a unique position with respect to bankruptcy
    proceedings.  It is the chief government official appointed by the Governor in
    Council charged with supervising the administration of all estates and matters
    to which this Act [the
BIA
] applies:
BIA
, s. 5(2).

[33]

To
    allow the Superintendent to fulfill this role, the
BIA
gives it the
    power to intervene in any
BIA
proceedings in the Superior Court as if
    it were a party:
BIA
, s. 5(4).  To guide the exercise of that
    authority, the Superintendent has established an intervention program that has,
    as its objective:

identify[ing] those situations in which the Superintendent or a
    representative of the Superintendent should intervene in the administration of
    certain cases by applying to the courts
to ensure that the integrity of the
    insolvency process is maintained.
This may involve cases  where matters
    of public policy are concerned: Frank Bennett,
Bennett on Bankruptcy
,
    14
th
ed. (Toronto: CCH, 2009), at p. 1471. [Emphasis added.]

[34]

Intervention
    at first instance is therefore crucial to the important role of the
    Superintendent in maintaining the integrity of the bankruptcy and insolvency
    system. It follows that in certain exceptional circumstances, for example,
    where a decision is made to which the Superintendent was not a party,
    Parliament must have intended that it be permitted to seek the leave of this
    court to appeal from that decision.

[35]

That
    said, where the Superintendent relies on s. 193(e) to appeal a decision to
    which it was not a party at first instance, leave to appeal should only be
    granted in exceptional circumstances and in accordance with the factors the
    court relies on when exercising its inherent jurisdiction to grant leave to a
    non-party, as set out in
Société des Acadiens du Nouveau-Brunswick Inc. v.
    Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch
,
    [1986] 1 S.C.R. 549, at p. 594. That is, the applicant should be able to show:

(a) that its
    interest was not represented at the proceeding;

(b) that it has an
    interest which will be adversely affected by the decision;

(c) that it is, or
    can be, bound by the order;

(d) that it has a
    reasonably arguable case; and

(e) that the
    interests of justice in avoiding a multiplicity of proceedings would be served
    by the grant of leave.

[36]

In
    my view, these factors provide a helpful guide to determine when the
    Superintendent has established exceptional circumstances justifying the
    granting of leave under s. 193(e) where it has not intervened in the
    proceedings below.

[37]

I
    therefore conclude that s. 193(e) of the
BIA
permits this court to
    grant the Superintendent leave to appeal from a lower court decision to which
    it was not a party where it can establish exceptional circumstances, and meet
    the standard test that any party must meet to obtain leave of the court.

(2)(b) Should an extension of time for serving and filing
    a notice of motion requesting leave to appeal be granted?

[38]

Before
    deciding whether the Superintendent should be granted leave in this case, there
    is the question of the timing of its motion. The decision the Superintendent
    seeks to appeal was issued October 25, 2011. The Superintendents notice of
    appeal was served and filed November 4, 2011.  The notice of motion seeking
    leave to appeal, however, was not filed until January 17, 2012, after the
    Superintendent became concerned that leave may in fact be required.  By this
    time, the motion was out of time.

[39]

In
    my view, the extension of time ought to be granted.  It is well established
    that in deciding whether to extend the time to appeal or seek leave, the court
    will consider:

a)

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

b)

the length of
    the delay and the explanation for the delay;

c)

any prejudice to
    the respondent;

d)

the merits of
    the appeal; and

e)

whether the
    justice of the case requires it.

See
Rizzi v. Mavros
, 2007 ONCA 350, 85 O.R.
    (3d) 401, at para. 16.

[40]

In
    this case, the Superintendent formed the intention to appeal within the
    relevant ten day appeal period, as demonstrated by the timely service and
    filing of its notice of appeal.  It has also provided a satisfactory explanation
    for the delay in bringing the motion for leave.  The Superintendent originally
    believed, and still believes, that it had the right to intervene pursuant to ss.
    5(4)(a) and 193(c) of the
BIA
and did not require leave to appeal
    After reviewing the respondents factum, it determined that it was prudent to
    request leave as an alternative argument and did so in a timely fashion.

[41]

There
    is no indication of any prejudice to 407 ETR as a result of the timing of this
    motion.  407 ETR knew early on that the Superintendent was appealing and knew
    the basis of that appeal.  Further, since 407 ETR and Moore have settled their dispute,
    the timing of the appeal does not delay any receipt of funds.

[42]

As
    to the merits of the appeal and the justice of the case, there are a number of
    alleged errors of law raised by the Superintendent.

[43]

The
    Superintendent submits that the motion judge mischaracterized key elements of
    the bankruptcy and insolvency system, and the interplay between section 22(4)
    of the
Highway 407 Act
and s. 178(2) of the
BIA
.  It further
    argues that the motion judges statement that the first goal of the bankruptcy
    system is the equitable distribution of the assets of a bankrupt among the
    estates creditors runs contrary to the Supreme Court of Canadas decision in
Husky
    Oil Operations Ltd. v. Minister of National Revenue,
[1995] 3 S.C.R. 453,
    at para. 7.

[44]

Additionally,
    the Superintendent has an interest that may be adversely affected in the sense
    that the decision has the potential to seriously impact the bankruptcy and
    insolvency system.  Arguably, it creates a new class of debts that can be
    enforced after bankruptcy over and above those set out in s. 178(1) of the
BIA
.
    With respect to the impact on 407 ETR alone, the Superintendent explains that
    since 2007, the number of bankrupts and proposals debtors in Ontario who list
    407 ETR as a creditor exceeds 6,000.

[45]

These
    issues are significant and at the very least constitute arguable grounds for an
    appeal. There is, therefore, good reason to grant the extension sought by the
    Superintendent.

(2)(c) Should leave to appeal be granted?

[46]

The
    remaining question then, is whether this is an appropriate case in which to
    grant leave to appeal. In my view, even though it was not a party to the
    proceedings below, the Superintendent has demonstrated that the answer must be
    yes.

[47]

Generally
    speaking, the factors to be considered on an application for leave to appeal
    are:

a)

whether the point of
    appeal is of significance to the practice;

b)

whether the point
    raised is of significance to the action itself;

c)

whether the appeal is
prima
    facie
meritorious or, on the other hand, whether it is frivolous; and

d)

whether the appeal
    will unduly hinder the progress of the action.

See
Power Consolidated (China) Pulp Inc. v.
    British Columbia Resources Investment Corp.
(1988), 19 C.P.C. (3d) 396
    (C.A.);
Med Finance Co. S.A. v. Bank of Montreal
(1993), 22 C.B.R.
    (3d) 279, (B.C.C.A.);
Norbourg Groupe financier inc. (Syndic de
)
,
2006 QCCA 752, 33 C.B.R. (5th) 144;
Medical
    International Technologies (MIT Canada) Inc. v. V. & G. International
    Licensing Corp.
, 2010 QCCA 1826, [2010] Q.J. No. 10209;
Re Pope &
    Talbot Ltd.
, 2011 BCCA 326,
21
    B.C.L.R. (5th) 270
.

[48]

However,
    as Armstrong J.A. noted in
SVCM Capital Ltd. v. Fiber Connections Inc.
(2005),
    198 O.A.C. 27, at paras. 19-20, there is no stringent test for determining
    whether to grant leave to appeal pursuant to s. 193(e) of the
BIA
.
    There is a variety of factors to consider depending on the circumstances of the
    case.  Armstrong J.A. highlighted the prominence of two such factors: the
    existence of arguable grounds of appeal and issues of significance to the
    bankruptcy practice that ought to be considered and addressed by the Court of
    Appeal.

[49]

As
    previously discussed, the Superintendent has established that the appeal is not
    without merit and the issues raised are significant to the bankruptcy
    practice.  It has therefore satisfied the standard test for obtaining leave
    applicable to all parties. The second part of the equation is whether the
    Superintendent has demonstrated that this is an exceptional case so as to
    justify granting leave to appeal notwithstanding its absence as a party at
    first instance. In my view, it has.

[50]

This
    is not a case where the Superintendent made a conscious decision not to
    intervene at first instance. In the present case, the Superintendent was
    deprived of the opportunity to exercise its discretionary power to intervene in
    the Superior Court proceeding because it never received notice of the setting
    aside of the registrars order, or Moores amended notice of motion and notice
    of constitutional question.  All of these issues were before the motion judge
    and would ordinarily have attracted the attention of the Superintendent, who
    would likely have intervened.

[51]

Unaware
    of the proceedings, however, the Superintendent did not intervene. Its
    interests, thus, went unrepresented. And, as discussed above, the unique
    interests of the Superintendent  regarding the integrity of the bankruptcy and
    insolvency system  were, at least arguably, adversely affected. It is worth
    emphasizing that the interests of the Superintendent are not identical to those
    of the bankrupt. They are much broader and of a systemic nature. It is
    therefore no answer to say that the Superintendents interests were represented
    below through the submissions of Moore.

[52]

The
    Superintendent is not bound by the order of the motion judge in that it is
    required to take, or refrain from taking, some action. However, in so far as
    the motion judge made findings that dictate how certain debts are to be treated
    under the
BIA
, the Superintendent is bound by those findings in its
    supervision of the bankruptcy regime. Further, as discussed above, the
    Superintendent has an arguable case that the motion judges decision is the
    product of a misapprehension of the bankruptcy and insolvency system and its
    relationship with the
Highway 407 Act
.  The Superintendent is also
    concerned that the decision appears to run counter to the interpretation given
    to s. 178(2) by the court is Saskatchewan in the recent decision of
Gorguis
    v. Saskatchewan Government Insurance
, 2011 SKQB 132, [2011] 6 W.W.R. 372,
    a decision presently under appeal.

[53]

Finally,
    given the broader importance of the issues raised on this appeal and, specifically
    the concern that the decision of the motion judge may result in a conflict
    between how s. 178(2) of the
BIA
is interpreted in Ontario and in
    Saskatchewan, it is in the interests of justice to allow the Superintendent to
    pursue them before this court, rather than to leave the law in a state of
    uncertainty until such time as the issue arises in another proceeding.

[54]

The
    importance of the arguable issues in the proposed appeal, combined with the
    inability of the Superintendent to respond to them at first instance brings this
    case within the narrow category of exceptional cases where leave to appeal
    ought to be granted to the Superintendent despite that it was not a party at
    first instance. I would therefore grant the Superintendents application for
    leave to appeal.

Conclusion

[55]

The
    Superintendents application for an extension of time to file its notice of
    motion seeking leave to appeal the motion judges decision is granted, as is
    its application for leave to appeal that decision.  Because I agree with 407
    ETRs submission that the Superintendent did not have a right to appeal, I
    would normally grant the relief sought and strike the appeal.  However, as I am
    granting the Superintendents application for leave, no useful purpose would be
    achieved by requiring the filing of a fresh notice of appeal. Costs of both
    motions are reserved to the panel hearing the appeal.

Released: Sept. 5, 2012                                         Paul
    Rouleau J.A.

KMW                                                                I
    agree K.M. Weiler J.A.

I
    agree R.A. Blair J.A.

[1]
The Superintendent suggested that 407 ETR made a deliberate choice
    to move before a judge of the Superior Court instead of a registrar in bankruptcy.
    It referred to the bankruptcy of Dean Robert Oliver where 407 ETR failed to
    appear on a similar motion through inadvertence.  In response to a later
    consent motion brought by 407 ETR to set aside the order obtained, Registrar
    Nettie advised 407 ETR that although he would allow the consent motion to set
    aside the order, such an inadvertence will not be excused in the future.


WARNING

THIS IS AN
    APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT
    TO S. 45 OF THE ACT WHICH PROVIDES:

45.
    (7)
The court may make an order,

(a)     excluding
    a particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45.
    (8)
No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45.
    (9)
The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION:
Childrens Aid Society of
    Ottawa v. S.N.-D., 2012 ONCA 590

DATE: 20120907

DOCKET: M41546

Gillese J.A. (In Chambers)

BETWEEN

Childrens Aid Society of Ottawa

Responding party

and

S.N.-D.

Moving party

S. N.-D., moving
    party acting in person

Julie Daoust, for the responding party

Heard: in writing

On motion for an extension of time and stay of
    proceedings in respect of the judgment of the Divisional Court (Hackland,
    Robertson and Aitken JJ.), dated March 28, 2012, with reasons reported at 2012
    ONSC 1888.

Gillese J.A.:

[1]

The Appellant is the mother of two children who are the subject of child
    protection proceedings under the
Child and Family Services Act
, R.S.O.
    1990, c. C.11 (the
CFSA
).  She brings a motion seeking an extension
    of time to file her leave to appeal application.  This motion was done by
    writing alone.

[2]

For the following reasons, I would dismiss the motion.

THE BACKGROUND IN BRIEF

[3]

A.N. was born on April 6, 2010.  By order of Beaudoin J. made on July
    14, 2011, A.N. was made a Crown Ward for purposes of adoption.  The order was
    made following a 5-day trial held from June 13-17, 2011.

[4]

A.N-D. was born on June 22, 2011.  By order dated August 15, 2011, A.N-D.
    was made a Crown Ward for purposes of adoption.

[5]

The Appellant appealed both orders.

[6]

The appeals were joined and heard by the Divisional Court.  By decision
    dated March 28
th
, 2012 (the Decision), the Divisional Court
    dismissed the two appeals, thus confirming the status of the two children as
    Crown Wards to be adopted.

[7]

On April 20, 2012, the Childrens Aid Society of Ottawa (the CAS)
    confirmed with the court that the Appellant had not filed a motion for leave to
    appeal.

[8]

On April 25, 2012, the children were placed for adoption.

[9]

On May 1, 2012, the adoption placement was registered with the Ministry
    of Community and Social Services.

[10]

The
    Appellant has been self-represented throughout these proceedings.

THE PARTIES POSITIONS

[11]

The
    Appellant filed an affidavit in which she swore that she served the CAS with a
    notice of appeal on April 5, 2012.  She also deposes that she sent a notice of
    appeal and motion for a stay and fee waiver to this court on April 10, 2012,
    and that the court lost her documents.  She further deposes that she exchanged
    a number of letters with the CAS in the month of April in which she made it
    clear that she intended to appeal the Decision but needed some leeway in
    respect of the time limits.  She says that she tried without success to find a
    lawyer in Ottawa or Toronto that was willing to take her case.  Without the
    benefit of legal representation, she says that she acted as quickly as she
    could to file the necessary documents but that the court sent them back a
    number of times as they had not been properly completed.

[12]

The
    Appellant says that if leave to appeal is granted, she will introduce fresh
    evidence to show that Dr. Worenklein, the clinical psychologist who testified
    at trial, did so based on incorrect information, namely, that she had not
    followed his recommendations and taken parenting courses.  She says that she
    had followed his recommendations and taken a number of parenting courses prior
    to the first trial.

[13]

The
    CAS submits that the court does not have jurisdiction to grant an extension of
    time because the children have already been placed for adoption.  Its position
    is founded on s. 69(5) of the
CFSA
, which reads as follows:

69(5)  No extension of time for an appeal shall be
    granted where the child has been placed for adoption under Part VII (Adoption).

ANALYSIS

[14]

The
    CAS submission based on s. 69(5) of the
CFSA

consists of a
    single sentence.  It is a bald assertion that this court lacks jurisdiction to
    grant an extension of time.  There is no analysis, legislative history or
    anything else to support the contention that s. 69(5) of the
CFSA

applies
    to proceedings in this court.  Whether s. 69(5) applies to proceedings in this
    court is an extremely significant point of law, one that I decline to decide in
    the absence of full and proper argument.

[15]

Consequently,
    I will decide the motion on the merits.  I begin by reminding myself that the
    paramount purpose of the
CFSA
, as set out in s. 1(1), is to promote
    the best interests, protection, and well-being of children.  At the same time,
    however, the Supreme Court has recognized that a parents section 7
Charter

rights may be engaged in child protection proceedings:
New Brunswick
    (Minister of Health and Community Services) v. G. (J.)
,
[1999] 3
    S.C.R. 46.

[16]

On
    the materials before the court, I am fully satisfied that the Appellant formed
    the intention to appeal within the relevant time period and that she has
    adequately explained the delay in filing the requisite documents.

[17]

The
    Appellant appears to have made valiant efforts to file the requisite
    documentation within time.  It also appears clear that she made the CAS aware,
    before the appeal period had elapsed, that she intended to seek leave to appeal
    the Decision.  There is nothing in the CAS materials that responds to these
    allegations by the Appellant or in any way contradicts them.

[18]

On
    the assumption that the Appellants assertions are correct, I am concerned by
    the speed within which the adoption process was completed while the CAS was
    aware that the Appellant wished to seek leave to appeal.  The Appellant is
    self-represented, lives in Ottawa and is dealing with the courts in Toronto.
    These proceedings are hugely significant to her.  I recognize that the
    childrens best interests must be the paramount consideration and that the
    legislation creates very strict, tight timelines with that goal in mind.  At
    the same time, the legislation does not oust all notions of fairness.  It may
    be that there is some answer to my concern about the speed with which the CAS
    acted despite being aware of the Appellants intentions to seek leave, however,
    as I have noted, the CAS offered no explanation or response to the Appellants
    version of events in its submissions to this court.

[19]

Nonetheless,
    based on a consideration of the merits of the appeal, I would not grant the
    motion for an extension of time.  The matters sought to be raised on appeal are
    factual in nature.  This court owes deference to factual determinations, a
    consideration that is particularly compelling in child protection proceedings.
    And, importantly, the matters that the Appellant wishes to raise on appeal,
    including those relating to Dr. Worenklein, were fully canvassed and dealt with
    by the Divisional Court.  For example, in paras. 8-9 of its reasons, the
    Divisional Court refers to the parenting workshops, program and counselling
    that the Appellant took prior to trial.  It states that the Appellant acknowledged
    that until shortly before trial, she had refused to sign consent forms allowing
    the CAS to get information from those providing her with assistance.  The court
    went on to refer to the trial judges findings in respect of Dr. Worenkleins
    testimony, including his expressed concerns that the Appellant had not pursued
    parenting courses earlier in the process, had not consented to give the CAS
    direct access to those providing her with parenting courses, and the
    Appellants observed inability to apply what she had been taught.

[20]

The
    reasons of the Divisional Court are lengthy and compelling as, indeed, are the
    reasons given by the decision-makers at first instance.

[21]

I
    see no prospect of the Appellant being granted leave to appeal, if she were
    granted an extension of time within which to file the necessary documentation.
    In the circumstances, the best interests of the children would not be served by
    granting an extension of time for filing.

DISPOSITION

[22]

For
    these reasons, the motion is dismissed.

Released: September 7, 2012 (E.E.G.)

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

CIBC Mortgages
    Inc. v. Kwaw, 2012 ONCA 602

DATE: 20120912

DOCKET: C55277

Cronk, Epstein and Pepall JJ.A.

BETWEEN

CIBC Mortgages Inc.

Plaintiff (Respondent)

and

Edmund Manna-Atta Kwaw

Defendant (Appellant)

Edmund Manna-Atta Kwaw, in person

Robert Dowhan, for the respondent

Heard and released orally: September 7, 2012

On appeal from the Order of Justice Robert M. Thompson of
    the Superior Court of Justice, dated March 27, 2012.

ENDORSEMENT

[1]

The reasons of the motion judge, although brief, indicate that he
    considered and applied the applicable test for determining whether to set aside
    a default judgment.

[2]

In particular, it is implicit in the motion judges reasons that he was
    prepared to accept that the first two branches of the test (the absence of
    delay and an adequate explanation of the circumstances giving rise to the
    default) may have been satisfied.  However, the appellants motion to set aside
    the default judgment against him foundered on the third branch of the test.  Although
    the default judgment sounds in fraud, the appellant failed to establish any
    arguable defence on the merits to either the Banks fraud claim or its
    negligence claim.  Simply put, there was no evidence of an arguable defence to
    either cause of action.  We note that, to this date, there is no explanation
    forthcoming from the appellant as to what happened to the money in question.

[3]

In these circumstances, we agree with the motion judge that the
    interests of justice, including the overall integrity of the administration of
    justice, strongly militated in favour of the dismissal of the motion.

[4]

We see no error by the motion judge in his dismissal of the motion or
    his reasoning for doing so.

[5]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal, fixed in the amount of $2,000, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk
    J.A.

Gloria J.
    Epstein J.A.

Sarah
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

Direkoglu v. Toronto
    Police Services Board, 2012 ONCA 587

DATE: 20120907

DOCKET: C55258

Cronk, Epstein and Pepall JJ.A.

BETWEEN

Kemal Direkoglu

Plaintiff (Appellant)

and

Toronto
    Police Services Board
P.C.
    Spence McDonald, Badge No. 7616
P.C.
    Darren Worth, Badge No. 5335
P.C.
    Todd Jocko, Badge No. 7654
P.C.
    Joel Houston, Badge No. 5441 and
P.C.
    Daniel MacNab, Badge No. 5353

Defendants (Respondents)

Kemal Direkoglu, in person

Robin A.F. Squires, for the respondents

Heard and released orally: September 4, 2012

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated February 29, 2012.

ENDORSEMENT

[1]

The respondents moved to dismiss the appellants action as a result of
    his failure to abide by six outstanding costs orders relating to various
    unsuccessful motions and appeals brought by the appellant in protracted
    litigation with one or more of the respondents.  All six orders, totalling
    approximately $6,000, were outstanding at the time of the motion.  By order
    dated February 29, 2012, T.R. Lederer J. of the Superior Court of Justice
    granted the requested dismissal order and awarded the costs of the motion and
    the action to the respondents.  The appellant appeals.

(1)

Appellants
    Adjournment Request

[2]

At the outset of oral argument, the appellant sought to make submissions
    in support of a request that this appeal be stood down pending the determination
    of what he said were outstanding proceedings before the Supreme Court of
    Canada, the Law Society of Upper Canada and the Canadian Judicial Council,
    among other bodies.  In effect, he sought an adjournment of the appeal pending
    resolution of those matters.  The respondents opposed the adjournment request.

[3]

After hearing submissions, we declined to adjourn the appeal.  Nothing
    in the materials filed by the appellant justified a last minute adjournment of
    the appeal.  On those materials, it was unclear whether the allegedly
    outstanding proceedings relate in any way to the matters in issue on this
    appeal.  Indeed, it was not established that the proceedings described by the
    appellant in fact were in progress.  We therefore proceeded to the hearing of
    the appeal on the merits.

(2)

Merits of the Appeal

[4]

After his adjournment request was denied, the appellant declined to make
    any submissions on the merits of his appeal, despite being afforded an
    opportunity to do so.  We therefore considered the arguments advanced in his
    written materials.

[5]

The appellant filed a lengthy notice of appeal (152 pages) in which he
    sought, among other relief, the repeal, revision or amendment of numerous
    legislative enactments, both provincial and federal, and various monetary
    remedies.  However, notwithstanding his lengthy notice of appeal, his grounds
    of appeal from the challenged order are unclear.  Moreover, nowhere in his
    materials does the appellant deny that the relevant cost orders were
    outstanding at the time of the motion before the motion judge.  Instead, in his
    factum, he asserts (as he did before the motion judge) that the costs orders are
    invalid for unspecified reasons and that he is unable to satisfy the costs
    orders due to impecuniosity, which he claims resulted from police theft of his
    money and that of his family.

[6]

We see no merit to the arguments raised by the appellant.  The costs
    orders at issue were valid and outstanding at the time of the motion and the
    appellant failed to comply with any of them.  There was no evidence before the
    motion judge  and there is none before this court  of the appellants alleged
    impecuniosity.  Indeed, on the record before the motion judge, there was some
    evidence to the contrary.

[7]

We therefore see no error in the motion judges reasoning or in his
    disposition of the motion.  The appeal is dismissed.  As the respondents do not
    seek their costs of the appeal, we award no costs.

E.A.
    Cronk J.A.

Gloria
    J. Epstein J.A.

Sarah Pepall J.A.