COURT OF APPEAL FOR ONTARIO

CITATION: De Jesus v. Linamar Holdings Inc.
(Camcor
    Manufacturing), 2017 ONCA 384

DATE: 20170515

DOCKET: C62551

Rouleau, Pardu and Roberts JJ.A.

BETWEEN

Ronald De Jesus

Appellant (Plaintiff)

and

Linamar
Corporation

Holdings Inc.
aka Camcor Manufacturing

Respondent (Defendant)

Robert A. Konduros, for the appellant

Malcolm MacKillop and Todd Weisberg, for the respondent

Heard: May 2, 2017

On appeal from the judgment of Justice Nancy Mossip of
    the Superior Court of Justice, dated July 18, 2016, with reasons reported at
    2016 ONSC 4383.

REASONS FOR DECISION

A.

Overview

[1]

The
    appellant appeals the dismissal of his wrongful dismissal action.

[2]

The
    appellant was employed as a production supervisor with the respondent.  On
    October 8, 2013, his employment was terminated for cause after approximately
    19.5 years of continuous employment, without notice or compensation in lieu of
    notice.  The respondent terminated the appellants employment because of a
    series of incidents that culminated in his having allowed 1,500 defective
    camshafts to be processed with roping marks during his shift and then in his
    having lied to the respondent about what had happened.

[3]

The
    trial judge did not accept the appellants evidence that he had carried out
    regular checks of the line and had instructed members of his team to do the
    same, nor his denial that 1,500 defective camshafts had been produced during
    his shift. The trial judge accepted the respondents evidence that 1,500
    defective camshafts had been produced during the appellants shift and that, if
    the appellant and his team had in fact been carrying out the mandated checks as
    often as they said they had, it would have been impossible for the appellant or
    his team members not to have discovered the defective camshafts.  Indeed, the
    trial judge accepted the evidence of one of the packers that she and other
    packers had brought the roping issue to the appellants attention on three
    occasions during their shift.  The trial judge concluded that the appellant had
    lied about the roping issues that had occurred during his shift.

[4]

The trial judge held that the appellants failure to supervise and to
    take any remedial steps once the roping problem was brought to his attention, combined
    with his dishonesty about what had happened, went to the heart of the
    employment relationship.  Accordingly, the trial judge concluded that these
    facts, when taken together with the appellants earlier disciplinary incidents,
    established on a balance of probabilities that the respondent had just cause to
    terminate the appellants employment.

B.

Issues on appeal

[5]

The appellant submits that the trial judge made the following errors:

i.

The trial judge reversed the onus that the respondent had to meet,
    erroneously requiring the appellant to prove that his employment had not been
    terminated for cause.

ii.

The trial judge was biased against the appellant.

[6]

We would not give effect to these submissions.

(1)

Did the trial judge reverse the onus on the employer to prove just
    cause?

[7]

The appellant submits that an improper reversal of the employers onus
    resulted in the trial judge erroneously accepting the respondents impossibly
    exaggerated evidence that 1,500 defective camshafts were produced during the
    appellants shift and the respondents hearsay evidence that 604 of those defective
    camshafts had to be scrapped. In support of his allegation of the trial judges
    error, the appellant points to the following sentence near the end of the trial
    judges conclusion, at para. 163:  On all of the evidence, the plaintiff has
    not met his onus that he was wrongfully terminated from his employment with the
    defendant.

[8]

We agree with the respondents submission that this concluding sentence referring
    to onus must be read in the context of the entirety of the trial judges reasons.
    From the respondents written and oral submissions at trial, it is apparent
    that the respondent accepted that it had the onus to demonstrate, on a balance
    of probabilities, that it had just cause to terminate the appellants
    employment without notice or compensation in lieu of notice.  In their
    submissions at trial, both counsel advised the trial judge that the respondent
    had this onus.

[9]

Moreover, the trial judge applied the correct analysis for determining
    whether just cause has been established, as set out by the Supreme Court of
    Canada in
McKinley v. BC Tel
,

2001 SCC 38, [2001] 2 S.C.R. 161,
    and as later referenced by this court in
Dowling v. Ontario
(Workplace
    Safety & Insurance Board)
(2004), 246 D.L.R. (4th) 65 (Ont. C.A.) and
Fernandes
    v. Peel Educational & Tutorial Services Limited (Mississauga Private
    School)
,
2016 ONCA 468, [2016] O.J. No. 3140.  Following this
    analysis, the trial judge concluded at para. 150 of her reasons that Mr. De
    Jesus action for wrongful dismissal cannot succeed because Linamar had just
    cause to terminate his employment.

[10]

Taken
    in this context, the trial judges above-noted sentence at para. 163 of her
    reasons merely alludes to the fact that the appellant was unsuccessful at
    trial. Her analysis itself does not reflect a reversal of the employers onus.

[11]

With
    respect to the trial judges acceptance of the hearsay evidence about the 604
    scrapped defective camshafts, we agree that this was an error.  However, this
    was not a palpable and overriding error because it did not affect the trial
    judges assessment of the evidence or her ultimate determination of the
    issues.  As the trial judge stated several times in her reasons, the key factual
    issue that she had to decide was whether 1,500 defective camshafts had been
    produced during the appellants shift.  Whether or not 604 of those camshafts
    were ultimately scrapped was immaterial to the trial judges determination of
    the total number of defective camshafts.  The trial judge found that the
    magnitude of the total number of defective camshafts, which the appellant
    allowed to pass uncorrected during his shift, taken together with his subsequent
    dishonesty about them, was the culminating event that formed the primary basis
    for his dismissal for cause.

[12]

The
    trial judge gave thorough and detailed reasons as to why she preferred the
    respondents evidence to that of the appellant on the issue of whether 1,500
    defective camshafts were produced during the appellants shift.  In particular,
    she was alert to and dealt with the differences among the various estimates of
    the actual number of defective camshafts given by the respondents witnesses.
    She accepted the evidence of the production supervisor who discovered and
    counted the actual number of defective camshafts produced during the
    appellants shift.  This evidence was consistent with and supported by the
    evidence of the packer and the other supervisors who testified about the unusually
    large amount of defective camshafts that they saw had been produced during the
    appellants shift.  It was open to the trial judge to accept this evidence and to
    conclude that 1,500 defective camshafts had been produced during the
    appellants shift. There is no basis to interfere with her finding on that
    point.

(2)

Was there a reasonable apprehension of bias?

[13]

We turn
    finally to the appellants allegation of bias against the trial judge.

[14]

In
Lloyd
    v. Bush
, 2017 ONCA 252, [2017] O.J. No. 1559, at para. 112, this court
    very recently reiterated the classic, undisputed test for reasonable
    apprehension of bias, as summarized by the Supreme Court of Canada in
Yukon
    Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney
    General)
, 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 20 of that decision:

what would an informed person, viewing
    the matter realistically and practically  and having thought the matter
    through  conclude?  Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide fairly?

[15]

This court went on to
    state, at para. 113 of
Bush
, the equally well-established principle
    that judges are afforded a strong presumption of impartiality that is not
    easily displaced, although that presumption can be rebutted by the trial
    judges conduct.

[16]

In
    support of his allegation of bias, the appellant places particular emphasis on
    the trial judges negative reaction to counsels failure to bring to the
    courts attention a decision of this court that questioned a procedural ruling
    that the trial judge had made earlier.  The trial judge initially chastised
    appellants counsel, describing his failure to bring the case to the courts
    attention as bad advocacy.  However, once counsel for both parties apologized
    and explained that the failure was unintentional, the trial judges initial annoyance
    immediately disappeared and she offered and granted appellants counsel a
    recess to determine best how to continue his questions in light of the new
    case.

[17]

This
    exchange and the other concerns raised by the appellant do not demonstrate bias
    on the part of the trial judge.  There is no evidence of inappropriate
    treatment by the trial judge of the appellant and his counsel.  Criticism of
    counsel by the trial judge, as occurred here, or disagreement with the findings
    urged upon her by counsel, does not amount to bias or give rise to a reasonable
    apprehension of bias.  The trial judges reasons for her findings are detailed
    and comprehensive, and amply supported by the record.

C.

Disposition

[18]

Accordingly,
    the appeal is dismissed.

[19]

Costs
    are to the respondent in the agreed amount of $20,000, inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

G. Pardu J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: DeMarco v. Nicoletti,
2017 ONCA 417

DATE: 20170523

DOCKET: C61638

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

Mark DeMarco

Appellant

and

Joseph Nicoletti, and John Leigh Daboll

Respondent

Mark DeMarco, acting in person

Karen Watters, for respondent

Heard: May 18, 2017

On appeal from the order of Justice Catrina Braid of the Superior
    Court of Justice, dated December 18, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The respondent moved to dismiss the appellants action because of his
    failure to pay security for costs. The appellant brought a cross-motion to vary
    the security. The motion judge dismissed the cross-motion and the action. The
    appellant, who is self-represented, appeals.

[2]

In essence, the appellant is seeking to revisit the security for costs
    order. While the courts can relieve against dismissal, the discretion is
    limited. The motion judge correctly observed that it was not appropriate, in
    such a motion, to revisit the security for costs order, or to circumvent the
    order entirely after appeal rights have been exhausted. This is what the
    appellant is attempting to do.

[3]

There is no error in principle allowing this court to interfere with this
    reasonable cost order.

[4]

The appeal is dismissed.

[5]

Costs to the respondent in the all-inclusive amount of $7,346.75.


COURT OF APPEAL FOR ONTARIO

CITATION: Duff (Duff Capital Group) v. Genesys Laboratories
    Canada Inc.,

2017 ONCA 429

DATE: 20170525

DOCKET: C61520

LaForme, van Rensburg and Huscroft, JJ.A.

BETWEEN

R. Sheldon Duff (a sole proprietor operating as
    Duff Capital Group)

Plaintiff (Respondent)

and

Genesys Laboratories Canada Inc.

Defendant (Appellant)

Jeffrey B. Simpson, for the appellant

R. Sheldon Duff, acting in person

Heard: May 19, 2017

On appeal from the judgment of Justice Wendy Matheson of
    the Superior Court of Justice, dated November 27, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The burden on the appellant was to demonstrate that the trial judge made
    an extricable error of law or a palpable and overriding error in interpreting
    the contract.

[2]

The appellant cannot do so on this record.

[3]

The trial judge found that the appellant confirmed agreement with the
    respondent concerning a new termination date and tail period for the contract,
    and that this along with respondents e-mails, satisfied the requirement of
    clause 10, the trial judge found, further, that the appellants March 1, 2002
    letter was consistent with a telephone call of February 21, 2002, in which it
    was agreed that the appellant would send a new cut-off date by letter.

[4]

The appellant has identified no extricable errors of law. The appellant
    essentially invites this court to review all of the evidence considered by the
    trial judge and reach a different decision that is not our rule on appeal.

[5]

The trial judge fully and fairly considered all of the evidence that was
    before her and her decision is entitled to deference.

[6]

The appeal is dismissed.

[7]

The appellant shall pay costs of $500 to this respondent as a fee plus
    $12,500 for disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: Duffus v. Frempong-Manso, 2017 ONCA 360

DATE: 20170504

DOCKET:
C61516

Juriansz, Lauwers and Hourigan JJ.A.

BETWEEN

Lisa Duffus

Applicant

(Respondent in Appeal)

and

Eric Frempong-Manso

Respondent

(Appellant)

Maria N. Sirivar, for the appellant

Esther L. Lenkinski, for the respondent

Heard: March 30, 2017

On appeal from the order of
    Justice Dale F. Fitzpatrick of the Superior Court of Justice, dated November
    16, 2015, with reasons reported at 2015 ONSC 7051.

Hourigan J.A.:

A.

INTRODUCTION

[1]

Child support laws are designed to ensure fairness and consistency.
    However, the system only functions when litigants make full and fair financial
    disclosure. Where a litigant chooses not to make proper financial disclosure,
    the determination of support obligations becomes complex and unpredictable.

[2]

A persistent problem in the family law system is litigants who believe
    that the rules of financial disclosure do not apply to them. They hide assets
    and sources of income, thereby forcing the opposing party and the court to
    waste valuable time and resources to get to the truth of their financial
    situation.

[3]

The appellant is such a litigant. It is clear from the record that he
    does not feel bound by the rules of disclosure. He is quite prepared to lie and
    obfuscate to avoid paying support for his children. In a thorough judgment, the
    motion judge established a figure for the appellants income and the resulting
    child support obligation.

[4]

On appeal, the appellants counsel wisely does not challenge the motion
    judges factual findings about her clients conduct. Instead, she narrowly
    focuses on two alleged errors. First, she says the motion judge erred in
    calculating the corporate income that should be attributed to him. Second, she
    argues that the motion judge erred in changing a pre-existing order, which
    provided for payment of child support over ten months, to a new order that
    required child support to be paid over twelve months.

[5]

The respondent does not concede that the motion judge made the alleged
    errors. However, she argues that this appeal should be dismissed on the basis
    that this court should defer to the motion judge in the circumstances of this
    case. Her point is that, given the appellants conduct, the determination of
    his income is largely artificial. In other words, who can say with any
    certainty that there is not further income that is still being hidden?
    Accordingly, she submits that the motion judge did the best he could with the
    information before him and that this court should defer to his decision.

[6]

The respondents argument holds some attraction. There is an element of rough
    justice in having the appellant live with the results of the motions given his
    conduct. However, this courts primary function is to correct errors. Where a
    legal error has been made, or a palpable and overriding error of fact or mixed
    fact and law has occurred, this court is obliged make the necessary correction.

[7]

I see no error in the motion judges decision to order that child
    support be paid over twelve months. I would make an adjustment to the amount of
    corporate income attributed to the appellant on the basis of double counting,
    but would otherwise dismiss the appeal.

B.

FACTS

[8]

The parties were never married. They have one child who is now sixteen
    years of age.

[9]

In May and June of 2012, the parties conducted a lengthy trial before
    Wildman J., which resulted in a consent order (the Wildman Order). That order
    dealt with both access and child support.

[10]

The Wildman Order provided that child support would be payable for only
    ten months of the year because the child spent equal time with the appellant
    over the two summer months.

[11]

The appellant swore a financial statement that was before the court when
    it made the Wildman Order. In that statement, he swore that he was T4 employee,
    with no additional income. Contrary to his sworn statement, and unbeknownst to
    the respondent and Wildman J., the appellant was diverting income through
    1858910 Ontario Inc. (the Corporation). For 2011, his income was $61,740
    greater than the $285,652.55 that was disclosed in his financial statement.

[12]

Despite his success in obtaining an order based on an artificially low level
    of income, the appellant was not satisfied. He brought two motions to change.
    The first was commenced in July 2013 and sought a reduction in his child
    support commensurate with his reported taxable income of $140,000 for 2012,
    effective July 1, 2013. The second was brought in July 2014. In that motion the
    appellant sought an order for child support based on a taxable income of
    $152,000 for 2013, effective August 1, 2014.

[13]

The respondent opposed the motions to change and brought a cross-motion for
    an order that the appellants income from all sources be considered for child
    support purposes. She also sought clarification regarding access provisions. The
    motion judges decisions on these motions and cross-motions are the subject of
    this appeal.

[14]

The motions and cross-motion were heard over the course a five-day
    hearing before the motion judge in January 2015. The motion judge found that
    the appellant was evasive and non-compliant with his disclosure obligations.
    In particular, he noted that the appellant did not disclose any interest in the
    Corporation until January 20, 2014. The motion judge rejected the appellants
    evidence that he held only a 50 percent interest in the Corporation.

[15]

The motion judge made a final order that required the appellant to pay
    monthly child support in the amount of $2,652 for 2012 based on an income of
    $337,667. He further ordered that the appellant pay monthly child support of
    $3,253 for 2013, based on an income of $418,869, and that those payments
    continue for 2014 pending further evidence and order of the court.

C.

ISSUES

[16]

The appellant submits that the trial judge made two errors:

1.

In the
    calculation of the income available to him from his IT consulting business;
    and

2.

Ignoring section
    6(a) of the Wildman Order that required him to pay child support for ten months
    rather than twelve months.

D.

ANALYSIS

Issue 1:  Calculation of Income

[17]

The appellant disputes several aspects of the motion judges approach to
    calculating income. He asserts errors in:

(i)

double-counting the non-arms-length loans made to him
  by the Corporation;

(ii)

attributing to income the difference between
    management fees expensed by the Corporation and those claimed on the
    appellants T4 income tax statement; and
(iii)

grossing up the amounts attributed to rent and amortization.
[18]

The motion judges decision is entitled to great deference. In the face
    of inadequate disclosure, judges face an almost impossible task of assessing
    the appropriate level of income on which to base awards of support. However,
    and as sated above, an appeal is an opportunity for a party to dispute an award
    where there has been an error in principle. In this case, I believe that there
    was such an error in relation to the loan amounts.
[19]

I start with first principles. The
Ontario
    Child Support Guidelines
, O. Reg. 391/97 (CSGs) are enacted
    under the
Family Law Act
, R.S.O. 1990, c.F.3 and
    provide a comprehensive approach to determining income for the purpose of
    paying child support.
[20]

The starting point for calculating annual income, as found
    in s. 16 of the CSGs, is a payors total income, also known as line 150
    income. Where, however, in the courts view, the line 150 income does not
    fairly reflect the money available for payment of child support, s. 18(1)
    permits the court to consider all or part of the pre-tax income of a
    corporation or an amount commensurate with services provided:
Shareholder, director or officer
18. (1) Where a parent or spouse is a
    shareholder, director or officer of a Corporation and the court is of the
    opinion that the amount of the parents or spouses annual income as determined
    under section 16 does not fairly reflect all the money available to the parent
    or spouse for the payment of child support, the court may consider the
    situations described in section 17 and determine the parents or spouses
    annual income to include,
(a) all or part of the
    pre-tax income of the Corporation, and of any Corporation that is related to
    that Corporation, for the most recent taxation year; or
(b) an amount
    commensurate with the services that the parent or spouse provides to the Corporation,
    provided that the amount does not exceed the Corporations pre-tax
    income.
[21]

Any amounts paid by a corporation as salaries,
    wages, management fees or other payments that are non-arms length are
    presumptively added into the corporate income pursuant to s. 18(2):
Adjustment to Corporations pre-tax income
(2) In determining the pre-tax income of a
    Corporation for the purposes of subsection (1), all amounts paid by the
    Corporation as salaries, wages or management fees, or other payments or
    benefits, to or on behalf of persons with whom the Corporation does not deal at
    arms length must be added to the pre-tax income, unless the parent or spouse
    establishes that the payments were reasonable in the circumstances.
[22]

The motion judge rejected the calculations in the appellants experts
    report on the basis that those calculations were informed by unsupported
    information provided by the appellant.  For example, the expert report accepted
    the appellants claim that he was only a 50 percent shareholder in the
    Corporation. Having rejected the expert evidence, the motion judge proceeded to
    calculate the appellants income on the basis of ss. 18(1) and (2) of the CSGs.
[23]

In calculating the appellants income, the motion judge took the
    approach under ss.18(1) and (2) of adding to the Corporations pre-tax income
all amounts paid by the Corporation as salaries, wages or management
    fees, or other payments or benefits that are non-arms length:

Adjustment

2012

2013

Employment Income

$90,000

$90,000

Dividends

$50,000

$62,000

Difference between Taxable and Actual CDN Dividends

($10,000)

($12,500)

Personal Expenses Paid by 1858910 Ontario Inc. ($7,500
          automotive + $3,643 professional fees for 2012; $7,500 automotive + $10,727
          travel + $17,109 furniture for 2013) grossed-up based on 49.3% notional tax
          rate

$21,978

$69,696

Difference between management fees expensed by 1858910
          Ontario Inc. and the amount claimed in Mr. Frempong-Mansos income tax return

$52,307

$42,356

100% of Pre-Tax Corporate Income

$55,308

$71,068

Loans from 1858910 Ontario Inc.

$78,074

$95,749

Total

$337,667

$418,869

[24]

While this overall approach was appropriate, in my view, there was a
    clear error in its execution in relation to the loan amounts. The motion judge
    attributed corporate loans to the appellant as income in the appellants hands
    under s. 18(1). However, at para. 94 of his reasons the motion judge found that
    the appellant had repaid the loans. Loans that were repaid should not have been
    attributed to the appellant as income.
[25]

This error resulted in the adjusted income attributed by the motion
    judge to the appellant in 2012 and 2013 exceeding the total revenue of the
    Corporation. The total revenue for the Corporation for 2012 and 2013 was
    $260,222 and $355,430, respectively.
[26]

The amount the motion judge arrived at for 2012 almost exactly exceeded
    the Corporations total revenue by the amount of the loan: $337,667 - $78,074 =
    $259,593 (only $629 short of the Corporations total revenue for that year).
[27]

For 2013, simply subtracting the amount added in relation to the loan
    yields an amount that falls short of the Corporations total revenue by
    $32,310:  $418,869 - 95,749 = $323,120. This is because of additional expenses
    in 2013 for rent ($10,600), advertising and promotion ($10,174), insurance
    ($2,805), office-related ($2,327) and telephone ($5,625) expenses, which the
    motion judge considered legitimate and therefore appropriately did not add back
    in to the adjusted amount.
[28]

Other than the loan error, the motion judge made no other clear errors.
    The appellant submits a number of additional errors.  These include attributing
    to the appellant the difference between management fees expensed and claimed,
    grossing up amounts attributed to rent and amortization, and failing to take
    into account that the company and appellants tax year did not line up.  On the
    basis these errors, the appellant requests a rehearing of the issue of income.
[29]

The motion judge attributed to the appellant the difference between the
    management fees expensed by the Corporation and the fees that he declared as
    income on his T4 income tax statement. There was, in my view, no clear error in
    doing so. There was no suggestion that anyone other than the appellant received
    the management fees paid by the Corporation.
[30]

I also see no clear basis for the additional submission raised in oral
    argument that the motion judge erred in grossing-up amounts attributed to rent
    and amortization. The motion judge found that for 2012 the Corporation had no
    legitimate rent expenses. Accordingly, it was appropriate for him to add back
    what he found to be an illegitimate deduction. This amount was not grossed-up
    but simply denied as a deduction and added back to the corporate income amount.
    For 2013, when there was evidence that the Corporation had a legitimate rent
    expense to an arms length landlord, the rent amount was not added back.
[31]

Similarly, the motion judge found, at para. 81 of his reasons, that the
    amortization deductions should be disallowed as expense deductions in the
    calculation of the Corporations pre-tax income because he found that there
    were no actual payments made in relation to these expenses. Again, these
    amounts were not grossed-up but simply eliminated as deductions from the
    Corporations pre-tax income.
[32]

The amounts that the motion judge did gross-up were personal expenses
    paid by the Corporation, such as those for car expenses, so-called professional
    fees, travel and furniture. These were appropriately grossed-up because had the
    Corporation not paid for them, they would otherwise have been paid for out of
    the appellants after-tax income.
[33]

It is possible that there is something to the argument that the
    corporation and appellants tax year did not line up.  If accepted, this might
    result in some small adjustment although it is not clear that over multiple
    years it would necessarily be in the appellants favour.  Furthermore, if there
    is any error here it does not in my view rise to the level of palpable and
    overriding error warranting appellate intervention. This is part of the risk
    the appellant incurred in providing inadequate disclosure to the court as well
    as inaccurate information to his expert.
[34]

Correcting only for the palpable and overriding error in counting the
    loans as income, I would accordingly attribute income to the appellant for 2012
    and 2013 in the amounts of $259,593 and $323,120.
[35]

Although these amounts are above $150,000, I would not interfere with
    the motion judges determination that there was no evidence that awarding the
    presumptive amounts under the CSGs would be inappropriate.
[36]

Based on this income, the CSGs indicate a monthly amount of $2,073 for
    2012 and $2,544 for 2013.The motion judge did not have income information for
    2014 and so continued the same monthly amount from 2013. I would, therefore,
    order that he pay $2,544 for 2014 pending further evidence and order of the court.
Issue 2:  Ten months vs. twelve months of support
[37]

The appellant submits that the motion judge erred in not continuing the
    provision in the Wildman Order that child support be paid for ten months each
    year. I disagree.
[38]

When the appellant brought his motions to change, the court was obliged
    to consider any variation in accordance with the CSGs:
Doyle v. Doyle
,
    2006 BCCA 128, 223 B.C.L.R. (4th) 271, at para. 11 and s. 17 (6.1) of the
Divorce
    Act
, R.S.C. 1985 c. 3.
[39]

Pursuant to s. 9 of the CSGs, for a parent to meet the 40 percent
    threshold warranting a set-off of child support, the parent must exercise a
    right of access for not less than 40 percent of the time over the course of
    year. The appellants submission is inconsistent with s. 9.  If accepted it would
    permit a set-off based on equal time with both parents over the two summer
    months that does not meet the annual 40% threshold required by s.9.
[40]

It is not open to the appellant to pick and choose the portions of the
    CSGs he wants to apply to his case. The motion judge made an order consistent
    with s.9 of the CSGs. There is no basis for appellate interference.
E.

DISPOSITION
[41]

I would allow the appeal to the extent that paragraph 1 of the motion
    judges order is amended to reflect an income of $259,593 and a monthly child
    support figure of $2,073. Paragraph 2 of the motion judges order is amended to
    reflect an income of $323,120 and a monthly child support figure of $2,544. The
    appeal is otherwise dismissed.
[42]

There has been divided success on the appeal. Normally that would result
    in an order that the parties bear their own costs. However, given the
    appellants conduct, I would order that he pay the respondent her costs of this
    appeal, which I would fix at $10,000, on a partial indemnity basis, inclusive
    of fees, disbursements and H.S.T.  This costs order may be enforced in the same
    manner as child support.
Released: RGJ MAY 04 2017
C.W. Hourigan J.A.
I agree. R.G.
    Juriansz J.A.
I agree. P Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Eden Agency Inc. v. Palinkas, 2017 ONCA 421

DATE: 20170524

DOCKET: C62934

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Eden Agency Inc.

Plaintiff (Appellant)

and

Michael W. Palinkas

Defendant (Respondent)

Barry L. Yellin, for the appellant

Marc A. Munro, for the respondent

Heard: May 16, 2017

On appeal from the judgment of Justice
Jane A. Milanetti
of the Superior Court of Justice,
    dated
November 16, 2015
.

REASONS FOR DECISION

[1]

The respondent, Palinkas, stored food processing
    equipment owned by the appellant, Eden Agency Inc., and claimed a storage lien
    under the
Repair and Storage Liens Act
, R.S.O
    1990, c. R.25.

[2]

The respondent retained the equipment in breach
    of his obligation under s. 17 of the
Act
to sell
    it after receiving a letter from the appellant dated May 30, 2012. Under s. 21
    of the
Act
, the effect of his failure to
    comply was that the respondent became liable to pay damages. The trial judge
    ordered him to pay damages to the appellant in the amount of $129,500 USD.

[3]

The trial judge reduced the damages to be paid
    by giving the respondent a credit of $27,900 for storage fees calculated at
    $900 a month for 31 months, from January 1, 2010 to July 31, 2012.

[4]

The appellants appeal is limited to whether
    credit should have been given to the respondent and to the amount.

[5]

The appellant makes two arguments. First, the
    respondent is not entitled to a credit because he did not claim a set-off in the
    statement of defence and did not counterclaim for the credit.

[6]

We reject this argument. As is noted in the
Canadian
    Encyclopedic Digest
(Ont. 4th), vol. 37, title 94 at § 3:

A legal lien is a defence rather than a cause
    of action, although it will usually relate to a cause of action. Generally
    speaking, such liens are not subject to limitations periods, since under the law
    of Ontario limitation periods generally tend only to bar recourse to judicial
    remedies, rather than to extinguish rights. However, in the case of some
    statutory liens, the lien expires at the end of a relevant limitation period
    and ceases to exist as a right. [Footnotes omitted.]

It was open to the trial judge to reduce
    the measure of damages by the value of the amount of the lien:
Debor
    Contracting Co. v. Core Rentals Ltd.
, (1982), 40 O.R.
    (2d) 24, 1982 CarswellOnt 3564 (H.C.), at para. 40 [
per
Pennell J.].

[7]

Second, the appellant argues that there was no
    evidence to support the amount of the credit for storage fees.

[8]

We do not give effect to this argument. There
    was evidence before the trial court that the consignor of the equipment (not
    the appellant) and the respondent had agreed on a storage fee of $900 per
    month. This was known to the appellants principal who acknowledged by letter
    of May 30, 2012 to pay at that rate for a short period of time. The
Act
does not require the relevant agreement to be between the owner of
    an article and the storer. Further, there is no evidence that the amount
    charged was unreasonable. The trial judge properly exercised her authority
    under s. 4 of the
Act

by providing for a
    credit.

[9]

The appellant also submits that the time period
    for the credit should be no longer than the two year limitation period under
    the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B. This would reduce the credit from $27,900 to $21,600. However, as noted
    above, the limitations period does not generally run against possessory liens.
    The appellant has offered no contrary authority to us.

[10]

The appeal is dismissed, with costs payable by the
    appellant to the respondent in the amount of $6,500.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2017 ONCA 354

DATE: 20170503

DOCKET: C62959

Laskin, Watt and Hourigan JJ.A.

IN THE MATTER OF:  BARTOSZ GAJEWSKI

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

Grace Choi, for the appellant

Anita Szigeti and Joseph Berger, for the respondent
    Bartosz Gajewski

Gavin S. MacKenzie for the Person in Charge of the
    Centre for Addiction and Mental Health

Heard and released orally: April 13, 2017

On appeal against the disposition of the Ontario Review
    Board dated, October 12, 2016.

ENDORSEMENT

[1]

The Crown appeals the Boards disposition and argues two grounds of
    appeal:

1.

The condition allowing Mr. Gajewski indirectly supervised or
    unaccompanied entry into the community for up to seven days is unreasonable
    because it does not protect public safety.

2.

The Boards failure to include J.N., the victims father, in the 500
    metre boundary condition is also unreasonable.

(1)

Indirectly supervised entry into the community

[2]

We are not persuaded that allowing Mr. Gajewski unaccompanied access or
    indirectly supervised entry into the community is unreasonable. We note that
    the Crown did not oppose this condition at the hearing. Instead what it did
    oppose was a condition allowing for community living. The Board acceded to the
    Crowns position and did not include in this disposition a condition permitting
    community living.

[3]

In this court the Crown argues that if indirectly supervised entry is to
    be allowed, it should be for no longer than four hours per day. We do not agree
    with the Crowns argument. The Boards disposition was reasonably supported by
    the list of evidentiary considerations at para. 26 of the factum of CAMH.

[4]

We add two other points. First, we do not view the Boards disposition as
    logically inconsistent as the Crown argues. The Crown contends the Boards
    disposition is inconsistent because on the one hand the Board rejected
    community living, but on the other approved unsupervised access for up to seven
    days. We do not agree with the Crowns contention.  The Boards disposition
    reflected its concern that a condition allowing for community living was
    premature.

[5]

Second, Mr. Gajewskis access to the community is not absolute. His
    liberty is entirely at the discretion of the hospital, the body that will
    manage Mr. Gajewskis risk. Seven days is a maximum, not a minimum period.

[6]

We therefore decline to give effect the Crowns main submission.

(2)

Including J.N. in the 500 Metre Boundary Condition

[7]

CAMH supports the inclusion of J.N and Mr. Gajewski does not object to his
    inclusion. We think it is reasonable to include J.N. and we so order.

[8]

The Crowns appeal is allowed in part in accordance with these reasons.

John Laskin J.A.

David Watt J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gilmor v. Nottawasaga Valley Conservation
    Authority,

2017 ONCA 414

DATE: 20170523

DOCKET: C61786

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Alex Gilmor and Tania Gilmor

Appellants (Respondents)

and

Nottawasaga Valley Conservation Authority

Respondent (Appellant)

The Township of Amaranth

Third Party (Respondent)

Alex Gilmor and Tania Gilmor, in person

J. Thomas Curry and Andrew M. Porter, for the
    intervener, Conservation Ontario

John A. Olah, for the appellant, Nottwasaga Valley
    Conservation Authority

Sara Blake and Jeremy Glick, for the intervener, Minister
    of Natural Resources

David N. Germain, for the respondent, The Township of
    Amaranth

Jeremy Opolsky and J. Toshach Weyman,
Amicus Curiae

Heard: December 20, 2016

On appeal from the order of Justice Emile R. Kruzick,
    Justice Paul M. Perell and Justice Sean F. Dunphy of the Divisional Court,
    dated September 9 2015, with reasons reported at 2015 ONSC 5327, 339 O.A.C. 159.

Huscroft J.A.:

A.

Overview

[1]

Building a home involves much more than a
    blueprint and building materials. It requires negotiation of approval processes
    involving regulatory bodies operating under a range of provincial legislation,
    regulations and municipal bylaws.

[2]

Alex and Tania Gilmor (the respondents)
    purchased a lot in 2009. They decided to build their home without first
    obtaining any of the required approvals. This decision has resulted in years of
    litigation and a home that remains unfinished.

[3]

Part of their lot is on a floodplain
    hazardous land within the meaning of the
Conservation Authorities Act
,
    R.S.O. 1990, c. C.27 (
CAA
), so-called because it is
land that could be unsafe for development, among other things
    because of flooding (s. 28(25)). The land
is subject to
    the control of the Nottawasaga Valley Conservation Authority (the NVCA).

[4]

The NVCA denied the respondents application for
    approval to build in 2011. The respondents appealed the NVCAs decision to the
    Mining and Lands Commissioner, who conducted a hearing
de novo
in
    2013. The Commissioner found that the respondents proposed development was
    neither appropriate nor safe and denied approval.

[5]

The respondents appealed the Commissioners
    decision to the Divisional Court. The Divisional Court allowed their appeal and
    directed the approval of their proposed development by the NVCA without
    conditions.

[6]

The NVCA appeals to this court.
Amicus
    curiae
was appointed to ensure that the position of the self-represented
    respondents was properly advanced. The Minister of Natural Resources and
    Forestry and Conservation Ontario intervene with leave of the court.

[7]

In my view, the Divisional Court erred in
    overturning the Commissioners decision. I would allow the appeal and restore
    the Commissioners decision for the reasons that follow.

B.

The regulatory regime

[8]

The
CAA
, which governs natural resource
    management, sets out a procedure for the establishment of conservation
    authorities across the province, including the NVCA. Conservation authorities
    have jurisdiction over areas that include a watershed  defined as an area
    drained by a river and its tributaries  and in particular over the control of
    flooding. Section 20(1) of the
CAA
sets out the objects of
    authorities, which include conservation, restoration, development and
    management of the watershed. Section 21(1) provides that authorities have the
    power:

(j)       to control the flow of surface waters in
    order to prevent floods or pollution or to reduce the adverse effects thereof;

In addition, s. 28(1) empowers authorities
    to make regulations:

(c) prohibiting, regulating or requiring the
    permission of the authority for development if, in the opinion of the
    authority, the control of flooding, erosion, dynamic beaches or pollution or
    the conservation of land may be affected by the development.

(3) A regulation made under clause (1) (b) or (c) may
    provide for permission to be granted subject to conditions and for the
    cancellation of the permission if conditions are not met.

[9]

Regulations made under s. 28(1) must comply with
    O. Reg. 97/04, which prescribes the content of conservation authority
    regulations and specifically requires that they prohibit development in or on
    hazardous lands, wetlands, and river or stream valleys, whether or not they
    contain an apparent watercourse. Section 3 of that regulation provides as
    follows:

3.
Subject to
    section 4, a regulation shall prohibit development in or on,

(a) hazardous lands;

(d) river or stream
    valleys that have depressional features associated with a river or stream,
    whether or not they contain a watercourse, the limits of which are determined
    in accordance with the following rules:

[10]

Section 4 mandates that regulations under s.
    28(1) allow the authority to grant permission to develop in or on an area
    prohibited by s. 3:

4.
(1) A
    regulation shall provide that the authority may grant permission for
    development in or on the areas referred to in section 3, or in other areas
    where the Minister is of the opinion that the authoritys permission for
    development should be required, if, in the authoritys opinion, the control of
    flooding, erosion, dynamic beaches, pollution or the conservation of land will
    not be affected by the development.

[11]

The NVCA made O. Reg. 172/06, entitled
Nottawasaga
    Valley Conservation Authority: Regulation of Development, Interference with
    Wetlands and Alterations to Shorelines and Watercourses
. The regulation
    was approved by the Minister pursuant to s. 28(5) of the
CAA
, which
    requires the Minister to be satisfied that
development
    should be prohibited or regulated or should require the permission of the
    authority.

[12]

Sections 2 and 3 of O. Reg. 172/06 give effect
    to the requirements of O. Reg. 97/04 as follows:

2.
(1)
    Subject to section 3, no person shall undertake development or permit another
    person to undertake development in or on the areas within the jurisdiction of
    the Authority that are,

(b) river or stream valleys that have
    depressional features associated with a river or stream, whether or not they
    contain a watercourse, the limits of which are determined in accordance with
    the following rules

(c) hazardous lands

3.
(1)
    The Authority may grant permission for development in or on the areas described
    in subsection 2(1) if, in its opinion, the control of flooding, erosion,
    dynamic beaches, pollution or the conservation of land will not be affected by
    the development.

C.

The decisions below

The NVCA

[13]

The NVCA listed several reasons for denying the
    respondents application for permission to build: the location was within a floodway;
    the proposed development did not comply with the NVCAs Planning and Regulation
    Guidelines; the proposed development was contrary to Natural Hazard policies of
    the Provincial Policy Statement 2005 (PPS); the issuance of a permit would
    set a negative precedent; and the proposed development would have a cumulative
    impact by filling in the floodplain, with negative impacts on flood control and
    conservation of land.

The Mining and Lands Commissioner

[14]

The Commissioner held a four-day
de novo
hearing, which included cross-examination of expert witnesses and a visit to
    the proposed development site.

[15]

The Commissioner issued a 58-page decision. The decision
    is not easy to follow. I summarize the findings on the five issues the
    Commissioner identified as relevant to her decision below.

1.

The relevance of law, policies, and guidelines

[16]

The Commissioner found that two policy documents
     the NVCA Planning and Regulation Guidelines, and the NVCA Development Review
    Guidelines  were relevant considerations, along with two provincial documents
     the PPS and the Ministry of Natural Resources Technical Guide.

2.

The general practice of conservation authorities

[17]

The Commissioner found that development within
    wetlands or areas that could interfere with the hydrologic function of a
    wetland is prohibited by s. 2(1) of O. Reg. 172/06, subject to the NVCAs discretion
    to grant permission to develop under s. 3. The proposed development site is
    within a floodway, and the burden was on the respondents to convince the
    Commissioner to exercise her discretion to permit the proposed development.

[18]

The Commissioner found, further, that crossing
    wetland or hazardous land to secure access to a building was not in the best
    interests of the land, and was not appropriate. Building the house at the rear
    of the property, off the floodplain, was not an acceptable alternative.

3.

The reasonableness/appropriateness of policies
    and guidelines

[19]

The Commissioner found that O. Reg. 172/06
    generally opposes development within any hazard area, but noted that it does
    not outline the reasons why, such as the potential danger to anyone living
    there. The NVCA guidelines describe the prevention of loss of life and
    property due to flooding as a principal mandate. The Commissioner
    acknowledged that a different view had been taken in
Junker v. Grand River
    Conservation Authority
, C.A. 83/91 (Ont. Mining and Lands Commissioner), but
    considered that sufficient evidence existed to support the authoritys
    responsibility to prevent loss of life and property. This included the
    development of Flood Warning Systems, the purchase of floodplain lands, the
    management of floodplains and waterways, and projects to control both flooding
    and erosion. The Commissioner adopted the NVCAs stated goal of ensuring safe access
    and egress to a development site.

4.

The suitability of the site for human habitation

[20]

The Commissioner broke the suitability issue down
    into four sub-issues.

i.

Location of the
    site within the floodplain and effect on the Natural Heritage System
.

The Commissioner found that
    the proposed development site was located on the edge of a regulated floodway within
    a backwater, where a reservoir or pooling effect would occur in the event of a
    flood. Flooding to a depth of approximately one metre could be expected during
    the benchmark Timmins storm, and the backwater effect would lower the velocity
    of the water. The Commissioner accepted that impact on the wetlands would be
    limited and was not a reason to deny permission for development, as long as
    protection against incursion into the wetland was provided.

ii.

Conformity to floodplain planning.

The Commissioner reiterated that development within areas
    under the NVCAs jurisdiction was not to occur unless it was permitted in
    accordance with the discretionary terms of the regulation. The Commissioner
    found the respondents proposal would not aggravate flooding in the area to any
    great degree and that hydraulic impact would probably be minimized. However,
    any new residential construction could increase the hazard in the area.

iii.

Safe access and egress.

The Commissioner applied flooding depth figures suggested by the
    Ontario Ministry of Natural Resources Technical Guide, which were also used by
    the NVCA, in determining the potential depth of flood waters on the proposed
    development site during a Timmins storm. The Commissioner found that the
    respondents application met safe access and egress standards in some, but not
    all, of the required areas. The Commissioner found that there was a clear
    failure to meet one of the most important guidelines, access for a family
    vehicle, and that the standard for younger children (under six to ten years of
    age) was not met. The Commissioner added that there was also a risk to
    emergency workers and a cost to the public.

iv.

The use of balanced cut and
    fill.

The Commissioner was not persuaded that the
    creation of a raised driveway and walkway to the house using a cut and fill
    method would solve the problem. In any event, the Commissioner noted that the
    cut and fill technique was normally used at the edges of a floodplain, rather
    than for a single development within a floodplain. The Commissioner stated that
    the cut and fill technique should be used sparingly because it could lead to an
    untold number of applications to develop in a floodplain or floodway resulting
    in a cumulative impact on flood control.

[21]

The Commissioner summarized the suitability
    considerations as follows:

The Tribunal finds that the appellant has not
    satisfied its concerns over technical matters, especially concerning safety
    issues. In addition, the tribunal is of the opinion that the application shows
    little concern for the issues surrounding natural hazards and the natural
    heritage which are outlined in both the NVCAs Regulations and the guidelines
    provided by the PPS, especially from a safety point of view.

5.

The relevance of cumulative effect and precedent

[22]

The Commissioner found that the potential
    cumulative effect from development on the respondents site would not have much
    impact, but reiterated her concern about setting a precedent that might
    encourage others to propose development in floodplains or floodways.

[23]

The Commissioner dismissed the respondents
    appeal, but in doing so noted that some aspects of proposed development could
    be revisited by the NVCA:

The tribunal  noted that at least four to five
    issues require further study or at least in depth discussions between the
    parties, all of which relate to technical issues. They are questions the
    tribunal cannot answer due to lack of clear evidence and as a result, any
    decision with regard to them would be questionable. Whether the NVCA is
    prepared to renew discussions of the issues, will be left for them to decide.
    As was noted, it is not just technical issues that should sway the tribunal.
    The floodway has a purpose in the conservation of land category and needs to
    be maintained to do its job.

In the final analysis, the tribunal has
    decided that the development in the floodway is inappropriate at this time. The
    risk to the homeowner, both from a standpoint of safety and property damage, as
    well as the subsequent cost to the taxpayer if the Timmins situation or any
    other flood occurs, must be acknowledged and is found to be unacceptable.

Based on the evidence and the reasons
    outlined, the tribunal does not find the application to be appropriate or
    justified especially from a safety point of view and, also from the need to
    maintain the natural floodway. The application cannot be considered unique from
    an environmental standpoint. The tribunal finds that the PPS will take
    precedence along with the mandate of the Conservation Authorities Act and the
    subsequent Regulation. Therefore, the tribunal will order that this appeal will
    be dismissed.

The Divisional Court

[24]

The respondents appealed the Commissioners decision
    to the Divisional Court under s. 133 of the
Mining Act
,
R.S.O. 1990, c. M.14
. Section 133 does not
    address the nature or scope of an appeal. It provides simply that an appeal
    lies to the Divisional Court from any decision of the Commissioner.

[25]

The Divisional Court noted that the proceeding
    was in the nature of an appeal and not purely a matter of judicial review,
    but did not develop the distinction. The court acknowledged that reasonableness
    is normally the standard of review applied to questions of law involving the
    interpretation of a tribunals home statute, but held that the correctness
    standard applied in this case for two reasons.

[26]

First, the court characterized the question
    before the Commissioner as a matter of general importance to the legal system
    that was beyond the Commissioners expertise, citing a prior Divisional Court decision,
3437400 Canada Inc. v. Niagara Peninsula Conservation Authority
, 2012
    ONSC 1503, 354 D.L.R. (4
th
) 756 (Div. Ct.).

[27]

Second, the court stated that the Commissioners
    reliance on safety considerations in rejecting the appellants application
    amounted to a positive assertion of jurisdiction to scrutinize applications on
    the basis of safety, which overlapped with municipal authority to administer
    the
Building Code Act, 1992
, S.O. 1992, c. 23 (
BCA
) and
    possibly the
Planning Act
, R.S.O. 1990, c. P.13, under which the PPS
    was published.

[28]

The court distinguished this courts decision in
Ontario (Ministry of Transportation) v. 1520658 Ontario Inc.
, 2011
    ONCA 373, 105 O.R. (3d) 321, which applied a reasonableness standard to an
    appeal under s. 133 of the
Mining Act
, on the basis that there is no
    privative clause in the
CAA
and because this case involves a conflict
    between private and public interests, as opposed to a conflict between
    competing uses of Crown lands.

[29]

The court then applied a correctness test to the
    Commissioners decision. In essence, the court held that the Commissioner erred
    by proceeding from an incorrect interpretation of its governing regulation,
    because neither the
CAA
nor the NVCA presumptively prohibit
    development on the respondents land. The court interpreted s. 3 of O. Reg.
    172/06 as establishing not an exception to a general prohibition on development
    but, instead, a condition precedent to prohibition. As the court put it,
only
developments that affect the control of flooding  may be prohibited, regulated
    or subject to a requirement for prior permission. [Emphasis in original.]

[30]

The Divisional Court concluded, further, that
    although safety issues could be considered, safety could not be elevated to a
    stand-alone head of jurisdiction for purposes of regulating flood control.

[31]

Although the court acknowledged that the
    cumulative impact of development may be a relevant consideration, it could not
    be used as a catch-all objection without having first established a reasonable
    foundation for the conclusion. The court characterized the cumulative impact as
    a minor theoretical impact that did not satisfy the threshold criterion of
    actual impact on flood control:

By restricting developments with an impact on
    control of flooding, neither s. 3 of the NVCA Regulation nor s. 28(1)(c) of the
    CAA can reasonably be construed as subjecting developments to control with only
    the most trivial or hypothetical of impacts. The inquiry is not akin to
    studying the impact of fluttering butterfly wings in Mongolia on flooding in
    Amaranth Township. Flood control impacts, if they were to be found, require
    evidence and a foundation that satisfies standards of reasonableness and
    materiality. I do not read the reasons of the Tribunal as suggesting any
    findings reaching that level of concern over cumulative impact nor would the
    evidentiary record before it reasonably permit such a finding.

[32]

The court set aside the Commissioners decision and
    considered the question of flood control itself, rather than remit the matter
    to the Commissioner. The court concluded that the respondents proposed
    development would have no impact on flood control and granted the permission sought
    under s. 3 of O. Reg. 172/06.

D.

Issues on appeal

[33]

Two issues must be resolved on this appeal.
    First, what is the appropriate standard of review on an appeal from the
    Commissioners decision? Second, how does that standard of review apply to the
    Commissioners decision?

E.

The standard of review

[34]

The appellants and interveners submit that the
    Commissioners decision is subject to review on the reasonableness standard.
Amicus
and the respondents seek to defend the Divisional Courts decision that the
    correctness standard applies.

[35]

In my view, the Divisional Court erred in
    applying a correctness standard to the Commissioners decision. As I will
    explain, the reasonableness standard applies.

The presumption of reasonableness applies

[36]

Following the decision of the Supreme Court in
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, it is well established
    that there are only two standards of review  correctness and reasonableness
    and a standard of review analysis is not always required in order to determine
    which standard applies. In a series of cases, the court has established that
    the reasonableness standard applies presumptively when a tribunal is
    interpreting its home statute or statutes that are closely related to its
    function:
Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd.
,
    2016 SCC 47, [2016] 2 S.C.R. 293, at para.
22;
Mouvement laïque québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2
    S.C.R. 3, at para.
46;
Canadian National Railway
    Co. v. Canada (Attorney General)
, 2014 SCC 40, [2014] 2 S.C.R. 135, at
    para. 55; and
McLean v. British Columbia (Securities Commission)
, 2013
    SCC 67, [2013] 3 S.C.R. 895, at para. 21. Correctness review is confined to a
    narrow range of cases in which the presumption of reasonableness review is
    rebutted.

[37]

The Mining and Lands Commissioner is a somewhat
    unusual tribunal in that it exercises authority under several statutes in
    addition to the
CAA
, including the
Mining Act
, the
Oil,
    Gas and Salt Resources Act
, R.S.O. 1990, c. P.12, the
Aggregate
    Resources Act
, R.S.O. 1990, c. A.8, the
Lakes and Rivers Improvement
    Act
, R.S.O. 1990, c. L.3, and the
Assessment Act
, R.S.O. 1990, c.
    A.31. The Commissioner is not constituted by the
CAA
 the
    Commissioner is a creature of the
Ministry of Natural Resources Act
,
    R.S.O. 1990, c. M.31  but the Commissioner is no less entitled to deference in
    interpreting and applying the
CAA
on that account. The institutional
    expertise of a tribunal performing duties under a particular statute does not
    depend on the tribunals constitution under that statute, nor is it diminished
    by a legislative decision to assign decision making authority to that tribunal
    over additional statutes, whether or not those statutes serve related purposes.

[38]

The Commissioner has, since 1982, exercised the Minister
    of Natural Resources power to hear
CAA
appeals pursuant to a formal
    delegation of the Ministers authority.
[1]
No other administrative tribunal has appellate decision-making authority under
    the
CAA
. In my view, the
CAA
(and associated regulations) may
    be regarded as one of the Commissioners several home acts. As a result, the
    reasonableness standard applies presumptively to appeals from the
    Commissioners decisions interpreting it. I note that this accords with this
    courts recent approach to an appeal from a decision of the Commissioner under the
Mining Act
:
2274659 Ontario Inc. v. Canada Chrome Corporation
,
    2016 ONCA 145, 394 D.L.R. (4th) 471, leave to appeal refused, [2016] S.C.C.A.
    No. 172, at para. 44.

Is the presumption of reasonableness review rebutted?

[39]

The Commissioner has considerable institutional
    expertise when it comes to interpreting and applying the
CAA
, and
    relative expertise compared to the court in any event. The mere existence of a right
    of appeal from the Commissioners decision does not rebut the presumption that
    reasonableness review applies in this case:
Edmonton East
, at paras. 27-29.

[40]

Dunsmuir
limits
    correctness review to four categories of questions: constitutional questions;
    jurisdictional questions; questions of general law both of central importance
    to the legal system as a whole and outside the adjudicators specialized area
    of expertise; and questions concerning the jurisdictional lines between two or
    more competing specialized tribunals. When a tribunal is required to decide one
    of these questions, the presumption of reasonableness review is rebutted:
Dunsmuir
,
    at paras. 58-61.

[41]

The question raised in this case is whether
    either of the latter two exceptions applies: whether a general question of law
    of central importance is raised or whether jurisdictional lines between two or
    more competing tribunals must be determined.

1.

Is a question of law of central importance
    raised?

[42]

In order for correctness review to apply, a
    question of law must be not only a general question of central importance to
    the legal system as a whole, but also a question that is beyond the tribunals
    specialized expertise. It cannot be said that the Commissioners interpretation
    of the
CAA
and regulations is such a question.

[43]

Amicus
did not
    seek to defend the Divisional Courts decision on the standard of review on
    this basis, and in my view properly so. The questions of law arising in this
    case are not general in nature; they concern the interpretation of specialized
    legislation and regulations governing flooding and development. Although the
    answers to these questions are important to the parties, they have no impact
    beyond the specialized administrative regime in which they arise: see e.g.,
Canadian

National Railway Co.
, at para. 60. Nor are the answers to these
    questions beyond the Commissioners expertise in any event.

[44]

In short, the questions of law arising in this
    case do not demand uniform and consistent answers that only correctness
    review can provide:
Dunsmuir
, at para. 60. The presumption of
    reasonableness review is not rebutted on this basis.

2.

Does a question concerning jurisdictional lines
    arise?

[45]

There is no doubt that the regulatory regime governing
    land use and development in Ontario is complicated and that several levels of
    approval are required. But correctness review does not apply on that account.
    Correctness review is required only if it is necessary to determine jurisdictional
    lines between competing specialized tribunals.

[46]

Amicus
submits
    that municipalities and the Ontario Municipal Board have exclusive jurisdiction
    concerning the application of the PPS, which deals with the safety of access
    and egress in the event of a flood.
Amicus
concedes that public safety
    is not unrelated to the NVCAs control of flooding mandate, and that the NVCA
    could be expected to give it some regard. But
amicus
suggests that
    conservation authorities (and the Commissioner) are usurping municipalities
    decision-making authority concerning public safety.

[47]

This submission must be rejected.

[48]

Questions concerning jurisdictional lines
    between specialized tribunals must be approached carefully, lest the
    presumption of reasonableness review be rebutted too easily and a key rationale
    underlying the presumption  that some decisions are better made by specialized
    administrative tribunals than the courts  be subverted.

[49]

The decision impugned in this case arises out of
    an application to build a home on hazardous land  a floodplain under the
    jurisdiction of the NVCA at first instance and the Commissioner on appeal. Although
    the
BCA
regulation
specifically adverts to construction standards for buildings constructed on
    floodplains, neither the regulation nor the
BCA
purport to authorize
    development on floodplains. They simply establish the relevant construction
    standards in the event that development on a floodplain is permitted
.
Not only do the
BCA
and its regulation not authorize development on
    floodplain; the ability to issue a building permit is, pursuant to s. 8(2) of
    the
BCA
, subject to compliance with any other applicable law, which is
    defined in the regulation as including the
CAA
.

[50]

The Divisional Court erred in concluding that
    the Commissioners authority overlapped with authority under the
BCA
and
    that correctness review applied as a result. I agree with the appellant and interveners
    that the court wrongly conflated
whether
development may occur within
    a floodplain  a question within the purview of the Commissioner  with
how
development in a floodplain must occur for purposes of the
BCA
,
    assuming that it is permitted.

[51]

The NVCA is required to act in a manner
    consistent with the PPS in exercising any authority that affects a planning
    matter:
Planning Act
, s. 3(5). Among other things, the PPS
    specifically requires that [d]evelopment shall be directed away from areas of
    natural or human-made hazards where there is an unacceptable risk to public
    health or safety or of property damage (s. 3.0).

[52]

Contrary to the submission of
amicus
, conservation
    authorities do not usurp municipal authority by acting in accordance with the
    PPS. Although there is overlapping regulatory authority concerning development,
    there is no conflict that requires judicial intervention to demarcate
    jurisdictional lines between tribunals  no problem that gives rise to the need
    for correctness review. The NVCA, and Commissioner on appeal, are the only
    bodies with development approval authority under the
CAA
and the
    regulations.

F.

Was the Commissioners decision reasonable?

[53]

The reasonableness of the Commissioners decision
    depends on the answer to two specific questions. First, was the Commissioners
    interpretation of ss. 2 and 3 of O. Reg. 172/06 reasonable? Second, was the
    Commissioners exercise of discretion under s. 3 reasonable?

The interpretation of ss. 2 and 3

[54]

The Commissioner had to determine whether the
    respondents were entitled to build a home on their land which, as noted above,
    is partly on a floodplain  hazardous land within the meaning of the
CAA
.
    The starting point was the NVCAs mandate under the
CAA
and its
    regulations.

[55]

Section 28 (1)(c) of the
CAA
authorized
    the NVCA to make a regulation prohibiting development, and O. Reg. 97/04 specifically
    required that the regulation prohibit development in or on hazardous lands,
    wetlands, and river or stream valleys. This is the provenance of O. Reg.
    172/06, and I set out the key sections again for convenience:

2.
(1)
    Subject to section 3, no person shall undertake development or permit another
    person to undertake development in or on the areas within the jurisdiction of
    the Authority

3.
(1)
    The Authority may grant permission for development in or on the areas described
    in subsection 2 (1) if, in its opinion, the control of flooding, erosion,
    dynamic beaches, pollution or the conservation of land will not be affected by
    the development.

[56]

The Commissioner interpreted s. 2(1) as
    prohibiting development within the floodplain, with the burden on the
    respondents to convince the Commissioner to permit their development pursuant
    to the exercise of the discretion under s. 3(1). The Commissioner refused to exercise
    the discretionary power under the regulation to permit the proposed development.

[57]

As the Supreme Court explained in
Dunsmuir
,
    at para. 47, reasonableness is a deferential standard of review that is
    appropriate because of the nature of the questions that come before
    administrative tribunals:

[C]ertain questions that come before
    administrative tribunals do not lend themselves to one specific, particular
    result. Instead, they may give rise to a number of possible, reasonable
    conclusions. Tribunals have a margin of appreciation within the range of
    acceptable and rational solutions. A court conducting a review for
    reasonableness inquires into the qualities that make a decision reasonable,
    referring both to the process of articulating the reasons and to outcomes. In
    judicial review, reasonableness is concerned mostly with the existence of
    justification, transparency and intelligibility within the decision-making
    process. But it is also concerned with whether the decision falls within a
    range of possible, acceptable outcomes which are defensible in respect of the
    facts and law.

[58]

I have no doubt that the Commissioners
    interpretation of O. Reg. 172/06 is reasonable. It accords with the plain
    meaning of the relevant sections.

[59]

The Divisional Courts interpretation  that s.
    3 is a condition precedent to the operation of the prohibition in s. 2  is
    counterintuitive given the structure of the regulation. Moreover, it appears to
    overlook O. Reg. 97/04, which specifically requires the NVCA regulation to
    prohibit development.

[60]

In my view, this is not an interpretation that
    the regulation can reasonably bear. But even assuming that it was within the
    range of interpretations that the Commissioner could have adopted, the bottom
    line is that the Commissioner was not required to adopt the Divisional Courts
    interpretation, and chose not to do so. In conducting reasonableness review, it
    is of no moment whether a court considers its interpretation of the law
    superior to the one adopted by the tribunal whose decision is being reviewed. Unreasonableness
    connotes more than mere disagreement  more than a preference for an
    alternative interpretation. An unreasonable interpretation of the law is one
    that is outside of the range of interpretations the tribunal could have adopted.

[61]

It simply cannot be said that the Commissioners
    interpretation of O. Reg. 172/06 is unreasonable in this sense. On the
    contrary, the Commissioners interpretation is tenable given the wording of the
    regulation and the requirements of O. Reg. 97/04, and the Commissioner was entitled
    to adopt it. To the extent that the Divisional Courts decision in
3437400
holds otherwise, it should not be followed.

The exercise of discretion under s. 3

[62]

Having established that the respondents proposed
    development was prohibited by s. 2 of the regulation unless the Commissioner exercised
    her discretion to permit it under s. 3, the Commissioner had to exercise the
    discretion under s. 3 reasonably.

[63]

That discretion is cast broadly. It establishes
    that permission for development
may
be granted by the NVCA, or
    Commissioner on appeal, if
in its opinion
the control of flooding will
    not be affected.

[64]

The Commissioner found that the development
    site is on the edge of the floodway and that as a result, this issue of the
    actual location is not one that would cause a refusal to grant the
    application. Furthermore, the Commissioner found that the respondents
    proposal would not aggravate the flooding conditions to any great degree; and
    that because the site was in a backwater area, hydraulic impacts would
    probably be minimized. In short, the proposed development would neither cause
    nor exacerbate such flooding as might otherwise occur.

[65]

It did not follow, however, that the respondents
    were entitled to have the discretion to permit development exercised in their
    favour.

[66]

Discretionary authority must be understood in
    the context of the regulation that establishes it and the purposes that
    underlie it. The difficulty in this case is that the legislative scheme is not
    explicit concerning the relevance of those purposes, and in particular safety
    considerations.

[67]

On one hand, the NVCA regulations prohibit
    development in the floodplain, as they were required to do, which can be
    understood as an approach to the control of flooding. Safety considerations
    clearly inform the prohibition: as noted above, s. 28(25) of the
CAA
defines hazardous lands  lands subject to the prohibition  as lands that
    could be unsafe for development because of naturally occurring processes
    associated with flooding. On the other hand, development on hazardous lands
    may be permitted in the floodplain pursuant to the exercise of discretion under
    s. 3 of the regulation, if, in the opinion of the authority or the Commissioner,
    the control of flooding will not be affected by the development. Safety is
    not listed as a relevant consideration, but nor are any other considerations
    that may be relevant to the control of flooding.

[68]

The Commissioner acknowledged as much, noting:
    The reasons why development is not supported, such as the potential danger to
    anyone living there, are not outlined as such in the Regulation. Nevertheless,
    the Commissioner asserted that the discretionary power to permit development
    indicates concern regarding any development in the floodway which might damage
    people and property. If they were not potential problems, there would be no
    need for the Regulation.

[69]

The appellant and interveners submit that the
    discretion under s. 3 may be exercised on the basis of safety concerns. The
    Minister of Natural Resources describes the protection of public safety and the
    reduction in public cost of disaster relief as key purposes of the
CAA
,
    and proper factors to be considered in the exercise of the discretion under s.
    3. Conservation Ontario submits that the Commissioners decision was consistent
    with the approach overwhelmingly applied by that Tribunal in similar cases,
    as well as the approach shared by conservation authorities across the province.

[70]

The Divisional Court did not deny that safety
    was a relevant consideration; however, the court insisted that safety could not
    be elevated to a stand-alone head of jurisdiction in the control of flooding.
Amicus
took a similar position.

[71]

The discretionary power to permit development in
    the floodplain is amenable to narrow and broad interpretations. The Divisional
    Court understood the term control of flooding in a narrow, literal sense, as
    limited to controlling the flow of surface waters. On this approach, the NVCA
    could enhance public safety only indirectly, by performing its mandate and
    gaining greater knowledge of floods and the means of controlling or mitigating
    them (para. 64).

[72]

The appellant and interveners urge a broader approach,
    in which the control of flooding is understood as embracing a wide range of
    considerations, including public safety.

[73]

In my view, it was open to the Commissioner to take
    safety considerations into account in determining whether to exercise the
    discretion under s. 3 to permit development on the floodplain. The prohibition
    on development in s. 2 of the regulation  common to the regulations of
    conservation authorities across the province  reflects a strategy of directing
    development away from floodplains. Given the history of flooding in Ontario, it
    is reasonable to conclude that the reasons for the prohibition include public
    safety as well as conservation considerations.

[74]

Although the Commissioner in
Junker
rejected
    the relevance of safety considerations, the Commissioner in this case noted
    that
Junker
has not been followed. In any event, the Commissioner was
    not bound to follow that decision, and
amicus
made no submissions to
    the contrary.

[75]

As to the Commissioners findings on safety, the
    difference in perspective between the Commissioner and the Divisional Court is
    striking. The Commissioner found the risk posed by a flood on the site of the proposed
    development was great: The question comes to mind as to why anyone would
    knowingly take on that kind of risk to their lives (p. 55). In contrast, the
    Divisional Court found that the Commissioner used safety as a pretext to
    apply a policy preference prohibiting development, and that the Commissioner
    unreasonably overstated the risk to safety in any event: The risk of a dangerous
    flood that genuinely posed a safety risk did not exist (para. 67).

[76]

The Commissioners decision on flood safety, and
    in particular the ability of people to enter and exit development areas, was
    informed by consideration of the PPS, which clearly expresses provincial policy
    of directing development away from hazardous lands, and by standards set out in
    the Ministry of Natural Resources and Forestrys Technical Guide and the NVCA
    policies. The Commissioner did not fetter her discretion in taking these policies
    and standards into account, nor is there any basis for concluding that the
    Commissioner invoked safety considerations as a pretext for applying a policy
    preference for a blanket ban on development. The prohibition of development in
    the floodplain arose by operation of the regulation, not by the exercise of the
    Commissioners policy preference. There is no basis for the respondents submissions,
    made at the hearing of this appeal, alleging corruption and misconduct on the
    part of the NVCA.

[77]

It might be thought that the Commissioner took a
    fairly strict approach to public safety, denying approval even though the
    proposed development met some of the flood safety guidelines. Certainly, the
    Divisional Court thought so. The court asserted that the proposed development
    posed no meaningful threat to safety and that safety was elevated out of all
    proportion to a reasonable assessment of it. The court went so far as to
    minimize the very concept of risk, adding that elimination of all risk in all
    endeavours is neither possible nor desirable.

[78]

With respect, the court erred in doing so. The
    courts task in conducting reasonableness review is not to weigh the evidence, reach
    its own judgment, and then use that judgment as a benchmark for assessing the
    reasonableness of the Commissioners decision.

[79]

The Commissioner was charged with the responsibility
    of making the discretionary decision whether to permit development on the
    floodplain, not the court. The evidence established that, in the event of a
    Timmins storm, the proposed development would be cut-off from the road by a
    pool of slow moving water, rising to a depth of approximately 0.8 metres. These
    were the circumstances in which the Commissioner exercised her discretion not
    to permit the proposed development. It may be that, as the Divisional Court
    noted, a Timmins storm is unlikely to occur, but it cannot be said that the
    Commissioners concerns about access to and egress from the site in the event
    of such a storm were unreasonable.

[80]

Finally, although the Commissioners decision is
    not as clear as it could be, safety considerations were not the only thing that
    informed the Commissioners exercise of discretion.

[81]

The Commissioner referred to considerations
    relevant to whether the proposed development was appropriate throughout the
    decision. For example, the Commissioner expressed the concern that no precedent
    be set that might encourage others to propose developments in floodplains (pp.
    55-56). Under the heading Conclusions, the Commissioner stated it is not
    just technical issues that should sway the tribunal. The floodway has a purpose
    in the conservation of land category and needs to be maintained to do its job
    (p. 57). The Commissioner ultimately cited two bases for her decision, safety
    and the need to maintain the natural floodway:

Based on the evidence and the reasons
    outlined, the tribunal does not find the application to be appropriate or
    justified especially from a safety point of view and, also from the need to
    maintain the natural floodway.

[82]

In all of the circumstances, the decision of
    the Commissioner is in my view reasonable and must be upheld.

G.

Conclusion

[83]

I would allow the appeal and reinstate the
    Commissioners decision.

[84]

The NVCA is entitled to its costs in this court
    and the Divisional Court and may make written submissions to the court within
    15 days of this decision. The Respondents will have a further 10 days in which
    to file their submissions.

[85]

The interveners are responsible for their own
    costs.

Released: D.D. May 23, 2017

Grant Huscroft J.A.

I agree. Doherty
    J.A.

I agree. David Brown
    J.A.

[1]

Ministry of Natural Resources Act
,
    O. Reg. 795; O. Reg. 571/00; and O. Reg. 364/82.


COURT OF APPEAL FOR ONTARIO

CITATION: Jundi v. Ouaida, 2017 ONCA 415

DATE: 20170519

DOCKET: C60751

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

Sami Osman El Jundi

Plaintiff (Respondent)

and

Bassam Ouaida
, MNP Ltd. Trustee
    of the bankrupt Andrew G. Loucks,

James Corbett, Dunnville Forest
    Products Inc.

and
447248 Ontario Limited

Defendants (
Appellants
)

AND BETWEEN

Bassam Ouaida
and
447248 Ontario
    Limited

Plaintiffs by counterclaim (
Appellants)

and

Sami Osman El Jundi
and
Lina Muskawi

Defendants by counterclaim (
Respondents)

Gabriella Varsha Deokaran, for the appellants

Thomas Arndt, for the respondents

Heard: May 15, 2017

On appeal from the orders of Justice David L. Corbett of
    the Superior Court of Justice, dated April 27 and 30, 2015, with reasons
    reported at 2015 ONSC 2529.

APPEAL BOOK ENDORSEMENT

[1]

The trial judges finding of fraudulent
    misrepresentation was not challenged on appeal. The appellant says this finding
    justified a remedy of rescission only for the parties first shareholders
    agreement. We disagree. When the trial judges reasons for judgment are read as
    a whole, the fraudulent misrepresentation finding justified rescission of all
    three agreements. In any event, even assuming that rescission because of the
    fraudulent misrepresentation was available only for the first agreement, the
    trial judges conclusion that the second and third shareholder agreements were
    unconscionable also justified a remedy of rescission. There was ample evidence
    for him to find unconscionability on this record.

[2]

The trial judges interpretation
    of shareholder agreements two and three as including an implied term to provide
    objective evidence of the value of the appellants land was reasonable and is
    entitled to deference from this court. The appellant has failed to demonstrate
    any reason to interfere with the trial judges interpretation of the parties
    contracts in all the circumstances.

[3]

Finally, there was no procedural
    unfairness here. Both the refusal of an adjournment of the trial beyond five
    days, and the decision not to admit documentary evidence that was not disclosed
    in accordance with the trial judges explicit instructions, were within the
    trial judges discretion, which was exercised in a manifestly fair manner.

[4]

For these reasons the
    appeal is dismissed. Costs to the respondents fixed at $25,000, inclusive of
    HST and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Kielb v. National Money Mart Company, 2017 ONCA 356

DATE: 20170505

DOCKET: C60707

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Jonathan Kielb

Appellant (Plaintiff)

and

National Money Mart Company

Respondent (Defendant)

Danny Kastner and Gregory Ko, for the appellant

Susan Crawford and Angela Wiggins, for the respondent

Heard: March 22, 2017

On appeal from the judgment of Justice S.A.Q. Akhtar of
    the Superior Court of Justice, dated June 12, 2015.

ENDORSEMENT

[1]

In
    2008, the appellant lawyer entered into an employment contract with the respondent.
    A non-discretionary bonus was found by the trial judge to be an integral
    component of the appellants compensation.

[2]

The
    parties employment contract contained a bonus plan clause (the limitation
    clause) that provided that the bonus did not accrue and was only earned and
    payable on the pay-out date.  It went on to state:

For example, if your employment is terminated, with or
    without cause, on the day before the day on which a bonus would otherwise have
    been paid, you hereby waive any claim to that bonus or any portion thereof.  In
    the event that your employment is terminated without cause, and a bonus would
    ordinarily be paid after the expiration of the statutory notice period, you
    hereby waive any claim to that bonus or any portion thereof.

[3]

The
    contract also included a termination clause which provided that the company was
    entitled to terminate the appellants employment without cause, provided that:

(i) the Company shall give you written notice of such
    termination as required by the ESA, which notice may be effective immediately
    (in which case you will be provided with pay in lieu of notice); and

(ii) the Company shall, within 10 business days from the
    date of giving such notice, or pay in lieu thereof, pay to you 4 (four) weeks
    per year of service and pro-rated for partial years of service (the Termination
    Payment), inclusive of any amounts paid in clause (i) above, in return for
    your execution of a full and final release of any and all claims by you as
    against the Company, Dollar or any related entities.  You agree to accept the Termination
    Payment in full satisfaction of all entitlements arising from such termination,
    whether under statute, contract or common law, including entitlement to
    reasonable notice.

[4]

The
    respondents fiscal year runs from July 1 to June 30 and the bonus pay-out date
    for 2010 was September 17, 2010.

[5]

The
    respondent terminated the appellant without cause on April 21, 2010 and paid
    him two weeks notice in satisfaction of the appellants statutory entitlement
    under the
Employment Standards Act
,
    2000, S.O. 2000, c. 41
(the ESA). In the absence of a signed
    release, the respondent refused to pay the appellant the additional six weeks
    base salary referenced in subparagraph (ii) of the contract.

[6]

The appellant, in an amended amended statement of
    claim, sued the respondent for the following damages:

(a) the amount representing his 2009/10 bonus accrued
    to his date of termination in the amount of $86,239.56;

(b) the amount representing his bonus accrued over his
    statutory and contractual notice period; and,

(c) the salary he would have earned over his statutory
    and contractual notice period.

[7]

The
    appellant did not plead a claim for any common law damages in the alternative
    or at all.

[8]

At
    trial, the appellant argued that the limitation clause was unenforceable due to
    its ambiguous and contradictory nature and because it also contravened the ESA.

[9]

The
    trial judge rejected these arguments.  He construed the employment contract and
    found the limitation clause to be unambiguous.  The clause was to be read in
    its entirety and, as such, it was clear that if the bonus pay-out date fell
    within the appellants notice period, the respondent would honour its
    requirements.  Moreover, even if the appellant had opted for the negotiated
    eight-week notice period, the notice period would have ended on June 16, 2010,
    before the bonus pay-out date, and the appellant would not have earned or have been
    eligible to receive the bonus payment.

[10]

Applying the
    principles in
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633,
and
    recognizing that the trial judge had the opportunity to consider the full
    factual matrix, we see no reason to interfere with the trial judges
    interpretation.

[11]

The parties did not
    purport to contract out of or otherwise waive the appellants statutory
    entitlements, which would have been void pursuant to s. 5(1) of the ESA.
    Rather, in clear and unambiguous language, the parties agreed that the
    appellant would be paid his entitlements under the ESA.  The contract was also clear
    and unambiguous that the appellants statutory entitlements included those
    bonus payments that would have been earned and paid out within the appellants
    statutory notice period under the ESA.

[12]

It was open to the
    parties to agree how and when any bonus was declared, earned, accrued and would
    be payable
.  We see no basis to interfere with
    the trial judges finding that no bonus entitlement had accrued by or on the
    date of termination, nor did it accrue during the notice period under the terms
    of the contract or the provisions of the ESA.

[13]

We would
therefore not give effect to this
    ground of appeal.

[14]

It was also open to
    the trial judge to dismiss the appellants arguments based on unconscionability
    and public policy.  As the trial judge found at para. 39 of his reasons,

[p]ublic
    policy would be ill served by permitting the plaintiff to accept a potentially
    lucrative position with the full knowledge that it contained a potentially
    unfavourable limitation clause and then to complain when that clause was
    actually executed
.
The provisions
    relating to the bonus were freely negotiated by the appellant.  In any event,
    the appellant failed to meet the four-part test for unconscionability set out
    in
Titus v. William F. Cooke Enterprises Inc.
, 2007 ONCA 573, [2007] O.J.
    No. 3148.

[15]

The appellants remaining
    ground of appeal may be addressed succinctly.  The appellant submits that the
    trial judge erred in finding the termination clause enforceable.  As a result,
    he argues, he is entitled to his common law notice period, which he calculates
    as six months.  This issue was neither pleaded nor argued at trial.  Indeed, at
    trial, the appellant sought to enforce his contractual entitlement to notice on
    termination in the amount of eight weeks.  The evidentiary record is lacking
    and it would be prejudicial to the respondent to permit the appellant to
    advance this argument at this late stage:
Kaiman v. Graham
, 2009 ONCA
    77, [2009] O.J. No. 324, at para. 18.

[16]

We would not give
    effect to this ground of appeal and it is therefore unnecessary to address
    common law reasonable notice.

[17]

Lastly, the respondent
    advised that it has withdrawn its cross-appeal.

[18]

The appeal is
    dismissed.  The appellant is to pay the respondent $15,000 in costs on a
    partial indemnity scale inclusive of disbursements and applicable tax.  This
    sum represents the respondents costs of the appeal less a reduction on account
    of the abandonment of its cross-appeal.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts