COURT OF APPEAL FOR ONTARIO

CITATION:
Dawe v.
    The Equitable Life Insurance Company of Canada, 2019 ONCA 512

DATE: 20190619

DOCKET: C65540

Pepall, Trotter and
    Harvison Young JJ.A.

BETWEEN

Michael Dawe

Plaintiff

(Respondent)

and

The Equitable Life Insurance Company of Canada

Defendant

(Appellant)

Michael A. Hines and Amanda J. Hunter, for the appellant

Andrew F. Camman, Susan A. Toth and Sarah Bauer, for the
    respondent

Heard: February 4, 2019

On appeal from the judgment of Justice Donald J. Gordon of
    the Superior Court of Justice dated May 23, 2018, with reasons reported at 2018
    ONSC 3130.

Trotter J.A.:

A.

Overview

[1]

Michael Dawe was employed as a Senior Vice President with The Equitable
    Life Insurance Company of Canada (Equitable Life). After 37 years of
    employment, he was terminated without cause, following a minor dispute about
    the purchase and use of promotional sporting event tickets.

[2]

Mr. Dawe sued for wrongful dismissal. Both parties moved for partial
    summary judgment on two issues relating to the calculation of damages: (1) the
    proper notice period; and (2) Mr. Dawes entitlement under Equitable Lifes
    bonus plans. Mr. Dawes other claims, including claims for punitive and moral
    damages, were left to be determined at trial.

[3]

The motion judge held that 30 months was the appropriate notice period
    and that Mr. Dawe was entitled to bonus payments over this period.

[4]

Equitable Life appeals against both holdings. It submits that the
    motion judges determination of reasonable notice was excessive. It also
    contends that the motion judge erred by failing to find that Mr. Dawes bonus
    entitlement was limited by a termination provision contained in Equitable
    Lifes bonus plans.

[5]

I would allow the appeal on the issue of notice, reducing it to 24
    months. There were no exceptional circumstances that warranted a longer notice
    period. I would dismiss the appeal as it relates to bonus entitlement. Mr.
    Dawes receipt of bonus payments was an integral part of his compensation
    package. Although I disagree with the motion judges conclusion, at para. 62,
    that the termination provision contained in each of the two bonus plans was
    unclear and confusing, I agree with his finding that the termination
    provision was unenforceable because it was imposed unilaterally and was not
    brought to Mr. Dawes attention by Equitable Life at any time before his
    termination.

B.

Background Facts

(1)

Introduction

[6]

Mr. Dawe enjoyed a successful career in insurance sales. He started his career
    in 1978 at Allstate Life Insurance Company of Canada (Allstate), when he was
    25 years old.

[7]

Equitable Life acquired Allstate in 1995. Following the acquisition, Mr.
    Dawe continued his employment at Equitable Life as an Assistant Vice President
    of Sales & Marketing. Over the years, Mr. Dawe received several promotions.
    When he was terminated without cause, he was a Senior Vice President.

(2)

The Compensation Scheme

[8]

Mr. Dawes compensation package was comprised of a base salary and a
    cash bonus, along with various other benefits. The bonus scheme changed over
    the years. According to the affidavit of Chris Brown, Senior Vice President of
    Human Resources of Equitable Life, all changes to the compensation plan were imposed
    unilaterally by Equitable Life. That is, the changes were not negotiated, nor
    was any sign off required from those affected by the changes. Mr. Dawe and other
    executives were advised of the changes and it was up to them to decide whether
    to continue to work under them, or to leave. Mr. Dawe always continued to
    work.

[9]

In 1998, Equitable Life implemented a new compensation package. It was
    designed to ensure that Equitable Lifes base salary was at the 50th percentile
    in the industry, and that its overall compensation scheme would be at the 75th
    percentile. The goal of this program was to retain good employees and make the
    company more competitive.

[10]

On
    December 10, 1998, Ronald D. Beaubien, who was President and CEO of Equitable
    Life at the time, sent a letter to Mr. Dawe in which he said, I am pleased to
    advise you of some positive changes to your total compensation package. Mr.
    Beaubien outlined some of the positive features of the plan. He also warned of
    the restrictive term that provided that, in order to participate in the plan,
    an employee must be in the employ of the company at the time the pay is
    processed.

[11]

In
    2006, Equitable Life introduced two new bonus plans  the Long Term Incentive
    Plan (LTIP) and the Short Term Incentive Plan (STIP). On March 29, 2006, Ron
    Beettam, President and CEO of Equitable Life, sent a memo to Mr. Dawe, advising
    him of the new plans. The memo enclosed [p]lan details with respect to the Long
    Term Incentive Program. The memo provided a brief explanation of how bonuses
    would be calculated. The STIP was introduced shortly after the LTIP. As
    discussed below, the plans introduced new provisions that substantially limit employees
    bonus entitlements in circumstances of resignation, termination for cause,
    retirement, death, and termination without cause. In cases of termination
    without cause, the plans provide for a Terminal Award pro-rated to the last
    day of active employment, and require that the employee sign a Full and Final
    Release in order to receive the Terminal Award.

[12]

Mr.
    Dawe said that he had no recollection of receiving copies of the two new plans.
    Mr. Beettam claimed that he delivered copies of the plans by hand to Mr. Dawe,
    and continued to do so each year a change was made to the LTIP. Mr. Beettam and
    Mr. Brown provided evidence that the STIP was available on the company intranet.
    The motion judge observed, at para. 44, that there is no record, electronic or
    otherwise, confirming delivery of the plans. Nevertheless, he concluded that it
    was more likely than not that the plan documents were delivered to Mr. Dawe:
    at para. 45.

[13]

One
    thing is not in dispute  there was nothing in the documentation accompanying
    these plans that highlighted the introduction of the termination provision that
    is in dispute in this case.

[14]

Mr.
    Brown swore that a meeting of senior executives was held on March 30, 2006 to
    review the terms of the LTIP and STIP. Mr. Brown said that those in attendance
    were permitted to ask questions about the plans. However, supporting documentation
    that a meeting ever took place was slim, and there was no confirmation that the
    termination provision was discussed.

[15]

In
    an attempt to prove that Mr. Dawe was aware of the termination provision, Equitable
    Life produced a number of memoranda from Mr. Beettam to Mr. Dawe concerning his
    yearly bonus. In each of these memos,
[1]
Mr. Beettam advised Mr. Dawe of his bonus payment and how it was calculated, as
    well as his revised base salary. None of these memos referenced the
    consequences of termination. However, the memos indicated that details of the
    STIP plan could be found on the companys intranet, and one of the memos
    referenced that the LTIP document was attached.

[16]

The
    motion judge found that Mr. Dawe had received bonus payments under both plans since
    2006, except for 2011 or 2012, when Equitable Life experienced unexpected
    losses resulting from a fraudulent scheme undertaken by some brokers. In that year,
    both Mr. Dawe and Mr. Beettam did not receive an STIP payment and their LTIP entitlements
    were reduced. In 2015, the last year that Mr. Dawe was employed at Equitable
    Life, his base salary was $249,000. In February of 2015, he received his bonus
    for 2014 in the amount of $379,585.

(3)

The Termination of Mr. Dawes Employment

[17]

Mr.
    Dawes employment with Equitable Life was terminated in October 2015. In his
    affidavit, Mr. Dawe described an increasingly strained relationship with Mr. Beettam.
    Mr. Dawe made notes of some of his negative experiences. For his part, Mr.
    Beettam reported a friendly relationship with Mr. Dawe, describing many
    occasions when he and his wife would socialize with Mr. Dawe and his wife.

[18]

Things
    came to a head in September 2015. A dispute arose over the purchase of hockey
    and basketball tickets by Mr. Dawe for promotional and personal use. For the
    purposes of determining the issues on appeal, it is not necessary to review the
    various accounts of this conflict. Suffice to say, during a meeting between the
    two men, Mr. Beettam verbally reprimanded Mr. Dawe for purchasing tickets
    without proper authorization. Mr. Dawe became very agitated during the meeting
    and requested that Mr. Brown and an in-house lawyer join the meeting. Mr.
    Beettam could only locate Mr. Brown, who joined the meeting.

[19]

Mr.
    Beettam and Mr. Brown said that Mr. Dawe requested an exit strategy or plan.
    Mr. Brown said that Mr. Dawe wanted the company to offer him a severance
    package. Mr. Dawe said in his affidavit, I did suggest we look at ways to
    disengage my employment from Equitable. I was upset that my integrity was being
    questioned and precipitously felt that I might have no choice but to leave.

[20]

Mr.
    Dawe took a few days off. He consulted a lawyer. Negotiations over a severance
    package ensued. At this time, Mr. Dawe alleged that he had been harassed and
    bullied by Mr. Beettam. When asked for further details, Mr. Dawe provided handwritten
    notes concerning two incidents beyond the hockey ticket incident. One note
    referenced a heated discussion between the two men in 2010, and the other note
    referenced a meeting in 2013 in which Mr. Beettam was allegedly acting
    aggressively toward Mr. Dawe, and raised his voice. Mr. Dawes lawyer refused
    to provide further details at the time. No agreement was reached on Mr. Dawes
    terms of departure.

[21]

Equitable
    Life ultimately determined that Mr. Dawes future employment with the company
    was untenable. His employment was terminated on October 8, 2015, effective the
    following day. Mr. Dawe rejected an offer of 24 months notice and the Terminal
    Awards under the LTIP and STIP. His combined Terminal Award payments under both
    plans amounted to a little over $400,000. The termination letter included a
    requirement to sign a release of claims. Mr. Dawe refused to sign the release
    and payment of the Terminal Awards was withheld. However, despite his refusal
    to sign the release, Mr. Dawe was paid eight weeks of termination pay in lieu
    of notice, as well as twenty-six weeks of severance pay in accordance with the
    provisions of the
Employment Standards Act, 2000
, S.O. 2000, c. 41 (
ESA
).

[22]

Mr.
    Dawe was 62 years old when he was terminated. He had worked with
    Allstate/Equitable Life for 37 years  his entire career. As Mr. Dawe said in
    his affidavit, he planned to work until he turned 65 years old, roughly 30
    months after his termination date.

C.

Issues on Appeal

[23]

The
    appellant raises the following grounds of appeal: (1) the motion judge
    improperly dealt with contested facts that were irrelevant to the issues before
    him; (2) the motion judge erred in finding that the appropriate notice period was
    30 months; and (3) the motion judge erred in finding that Mr. Dawe was entitled
    to his full LTIP and STIP bonus payments during the notice period, instead of
    the Terminal Awards.

D.

analysis

(1)

Consideration of Facts Irrelevant to the Issues

[24]

As
    noted above, both parties moved for partial summary judgment, restricted to the
    issues of the notice period and Mr. Dawes bonus entitlement. Mr. Dawes other claims,
    including claims for punitive and moral damages were left by the parties for
    another day.

[25]

In
    his reasons, the motion judge referred to facts that were arguably relevant to
    these other claims, but were irrelevant to reasonable notice and bonus
    entitlement. For example, in his description of the events that led to Mr.
    Dawes dismissal, the motion judge was critical of Equitable Life. Referring to
    the cost to Equitable Life as a result of what he considered to be such a
    minor dispute, the motion judge said, at para. 25: The shareholders would not
    be impressed, assuming they were made aware of this case. The triggering event
    did not warrant a verbal reprimand. Management could have done better.

[26]

At
    another point in his reasons, at para. 28, he referred to serious issues
    regarding managements conduct and questioned whether the termination was a
    planned event over a period of time. However, he said, at para. 29: This
    evidence will be relevant only to the remaining claims to be determined at
    trial. The events referred to have no part in this motion and are not
    considered in this decision.

[27]

Equitable
    Life submits that these findings were unrelated to the issues at hand and give
    the appearance of having influenced the decisions regarding notice and the STIP
    and LTIP incentive plans that followed.

[28]

I
    agree that the motion judges comments were not necessary to the issues he was
    tasked with deciding. Nevertheless, while these comments were better left
    unsaid, I am not persuaded that they had any influence on the motion judges
    findings on the substantive issues before him.

[29]

I
    would dismiss this ground of appeal.

(2)

The Notice Period

[30]

Equitable
    Life argues that the motion judge erred in determining that 30 months was the
    proper notice period and that, based on this courts authorities, the notice
    period should have been 24 months. I agree.

[31]

The
    motion judge was aware of this courts jurisprudence on damages for wrongful
    dismissal. At para. 30, he referred to the leading decision of
Lowndes v.
    Summit Ford Sales Ltd.
(2006), 206 O.A.C. 55 (C.A.). Writing for the court,
    Cronk J.A. observed in
Lowndes
, at para. 11, that the determination of
    what constitutes reasonable notice is case-specific and, while there is no absolute
    upper limit or cap on what constitutes reasonable notice, generally only
    exceptional circumstances will support a base notice period in excess of 24
    months. Cronk J.A. found, at paras. 13-16, that Mr. Lowndes had not
    established that his circumstances were exceptional, warranting a notice period
    exceeding 24 months.

[32]

This
    court has followed the
Lowndes
approach over the years. The
Lowndes
approach
    was endorsed in
Keenan v. Canac Kitchens Ltd.
, 2016 ONCA 79, 29 C.C.E.L.
    (4th) 33, at para. 30. In
Keenan
, the court declined to set aside an
    award of 26 months notice, finding that the plaintiffs, who were husband and
    wife, had established exceptional circumstances, based on their ages at the
    time of termination (63 and 61 years old), their lengthy service (32 and 25
    years), and the character of the positions they held.

[33]

In
Strudwick v. Applied Consumer & Clinical Evaluations Inc.
, 2016 ONCA
    520, 349 O.A.C. 360, at para. 42, the court cited
Lowndes
and
Keenan
in
    affirming that reasonable notice is determined on a case-specific basis, and
    while there is no cap, generally only exceptional circumstances will support a
    base notice period in excess of 24 months. The court refused to increase a base
    notice period of 20 months.

[34]

In
    this case, the motion judge took a different approach. His conclusion that a
    notice period of 30 months was appropriate did not rest on the presence of
    exceptional circumstances; instead, it was based on his perception of broader
    social factors that led him to conclude that the presumptive standards
    discussed in
Lowndes
were inapplicable. The motion judge said the
    following, at para. 31:

Whether it is exceptional circumstances or recognizing a
    change in society's attitude regarding retirement
, the particular
    circumstances of the former employee must be considered. For many years, the
    usual retirement age was considered to be 65. Pension plans improved as a result
    of the labour movement, introducing, for example, an 80 factor for most
    employees in the public sector and many in large companies in the private
    sector. That lead [
sic
] to some individuals retiring between the age of
    50 and 60. But many were not ready to fully retire. They sought out additional
    employment or simply continued to work in their existing position.
Further,
    mandatory retirement was abolished in 2006 in Ontario to protect against age
    discrimination. Many employees have continued past 65.
In result, it is
    important to recognize that each case is unique.
Presumptive standards no
    longer apply
. See, for example:
Filiatrault v. Tri-County
    Welding Supplies Ltd.
,
2013 ONSC 3091
, at
    paras. 54 and 59. [Emphasis added.]

[35]

The
    motion judge considered that Mr. Dawe was 62 years old when he was terminated
    from a very senior position, at a company he had served for 37 years. He said
    that Mr. Dawe had made no decision as to when retirement would occur, adding
    that he was committed to working at Equitable Life until at least age 65 and
    it was more likely he would have worked there to a later age than an earlier
    one: at para. 35. The motion judge placed Mr. Dawe at the extreme high end
    of each of the factors set out in
Bardal v. Globe and Mail Ltd.
, [1960]
    O.W.N. 253 (H.C.), and said, at para. 36, I would have felt this case
    warranted a minimum 36 month notice period. In finding that Mr. Dawe was
    entitled to 30 months notice, the motion judge ensured that Mr. Dawe would be fully
    compensated just beyond his 65th birthday.
[2]

[36]

The
    motion judges approach to reasonable notice was in error. First, he should
    have applied the
Lowndes
line of authority instead of relying on his own
    perceptions of the change in societys attitude regarding retirement: at
    para. 31. There was no basis in the record for making such sweeping statements.

[37]

As
    the motion judge observed, mandatory retirement was abolished in Ontario in 2006:
    see
Ending Mandatory Retirement Statute Law Amendment Act, 2005
, S.O.
    2005, c. 29 (previously known as Bill 211). But this legislative initiative
    would have been known at the time of the
Lowndes
appeal, which was
    decided after Bill 211 was enacted, but before most of its provisions came into
    force.
[3]

[38]

Further,
    more recent authorities from this court have not altered the approach in
Lowndes
.
Keenan
and
Strudwick
were decided a decade after
Lowndes
. Neither
    decision suggests that the end of mandatory retirement in Ontario ought to
    alter the traditional approach to determining reasonable notice. It was not
    open to the motion judge to chart his own course in light of these authorities.

[39]

It
    is unclear why the motion judge chose to rest his reasonable notice
    determination on mandatory retirement considerations. It was irrelevant to Mr.
    Dawes situation. In his affidavit, Mr. Dawe swore that he planned to retire at
    age 65. There was no basis in the evidence to find that he would have worked
    later.

[40]

In
    any event, Mr. Dawes plans regarding retirement are not determinative in
    ascertaining Equitable Lifes obligations towards him. In
Strudwick
,
    this court rejected Ms. Strudwicks submission that in the circumstances, she
    was entitled to pay and benefits up to the age of 65, when she would retire.
    Epstein J.A. noted that absent a fixed term contract, an employer does not
    guarantee employment to retirement: at para. 45. She further held that in
    entering the employment relationship, an employer cannot reasonably be seen as
    having accepted the risk that in dismissing an employee, it would be obligated
    to pay that employee until their retirement: see paras. 46-48.

[41]

The
    motion judges reasons suggest that he viewed this case as being tantamount to
    forced retirement: see paras. 34, 36. However, the record is clear that, in
    the throes of a conflict with his senior executive colleagues, Mr. Dawe
    initiated the process of his own departure from Equitable Life. He requested an
    exit strategy. While Mr. Dawe may have soon come to regret his decision, this
    factor ought to have weighed against a finding that this case involved
    exceptional circumstances justifying a notice period in excess of 24 months.

[42]

I
    agree with the motion judge that Mr. Dawes circumstances  including his
    senior position, career-long years of service at the same company, age at the
    time of termination, and his difficulty in finding new employment  warranted a
    substantial notice period. However, there was no basis to award Mr. Dawe more
    than 24 months notice.

[43]

Mr.
    Dawes circumstances are similar to those of the employee in
Lowndes
.
    Mr. Lowndes

was 59 years old at the time his employment was terminated.
    He had worked for the appellant employer for approximately 28 years, and held a
    management and director position at the time of termination. In concluding that
    exceptional circumstances had not been established, Cronk J.A. recognized Mr.
    Lowndes status as a long-term employee who had exhibited loyalty and
    dedication to the employers business over most of his working career. However,
    she noted that the base notice period of 24 months recognizes and rewards
    these factors, and constitutes the high end of the appropriate range of
    reasonable notice for long-term employees in [Mr. Lowndes] position: at para.
    15.

[44]

I
    would allow this ground of appeal and reduce the notice period to 24 months.

(3)

Damages for Bonus Entitlement

[45]

Equitable
    Life appeals the motion judges finding that Mr. Dawe was entitled to damages as
    compensation for the loss of his bonus entitlements during the notice period. The
    motion judge determined that the bonus payments under the LTIP and STIP were an
    integral component of Mr. Dawes compensation, giving rise to a common law
    right of payment during the notice period. The motion judge found that this
    common law right was not displaced by the terms of the plans for three reasons.
    First, he found that the terms of the plans that purported to limit entitlement
    to the payment of the bonuses were ambiguous and unenforceable. Second, he
    found that these terms were not brought to Mr. Dawes attention and Equitable
    Life did not meet its obligation to communicate these terms of employment to
    Mr. Dawe. Finally, the motion judge was of the view that Equitable Lifes
    requirement that Mr. Dawe sign a release contravened the
ESA
.

[46]

In
    my view, when read in context, the terms of the bonus plans are unambiguous,
    and the termination provision would have been enforceable against Mr. Dawe had it
    been brought to his attention. However, as explained below, there was an
    evidentiary basis which entitled the motion judge to conclude that the
    termination provision had not been brought to Mr. Dawes attention and was unenforceable
    for this reason.

(a)

Common Law Entitlement to the Bonus Payments

[47]

Before
    the motion judge, Equitable Life argued that its bonus plans were completely
    discretionary. This was offered as a reason for not paying Mr. Dawe what he
    would otherwise have been entitled to under the STIP and LTIP during the
    applicable notice period. The motion judge ultimately rejected this position,
    at para. 52 of his reasons. This finding was not specifically challenged by
    Equitable Life on appeal; nor was Mr. Dawes common law entitlement expressly
    acknowledged.

[48]

Damages
    for wrongful dismissal generally include all compensation and benefits that the
    employee would have earned during the notice period:
Paquette v. TeraGo
    Networks Inc.
, 2016 ONCA 618, 352 O.A.C. 1, at para. 16. This amount may
    include bonus payments that the employee would have been entitled to had they
    continued to be employed during the notice period: at para. 17. In
Paquette
,
    at paras. 30-31, this court articulated a two-part test for determining whether
    a wrongfully dismissed employee is entitled to damages for the loss of bonus
    entitlement: (1) was the bonus an integral part of the employees compensation
    package, triggering a common law entitlement to damages in lieu of bonus?; and
    (2) if so, is there any language in the bonus plan that would specifically
    remove the employees common law entitlement? See also:
Lin v. Ontario
    Teachers Pension Plan
, 2016 ONCA 619, 352 O.A.C. 10, at paras. 84-86;
Singer
    v. Nordstrong Equipment Limited
, 2018 ONCA 364, 47 C.C.E.L. (4th) 218, at
    paras. 21-22;
Bain v. UBS Securities Canada Inc.
, 2018 ONCA 190, 46
    C.C.E.L. (4th) 50, at para. 9.

[49]

The
    motion judge correctly applied the first part of the
Paquette
test in finding
    that Equitable Lifes bonus plans were an integral part of Mr. Dawes
    compensation package. The motion judge identified the relevant factors involved
    in making this determination, including Mr. Browns evidence concerning the competitive
    objectives of the compensation scheme as a whole, and the integral nature of
    the LTIP and STIP to the compensation scheme. The motion judge was aware of Mr.
    Dawes history of having received a bonus every year he was employed (except
    once in 2011 or 2012, the same year that Mr. Beettam did not receive a bonus). Moreover,
    as the motion judge observed, the purpose of the LTIP was described in the plan
    document as an integral component of Equitables executive cash compensation
    strategy consisting of a base salary program, short term (annual) incentives
    and long term incentives. Similar language is also found in the STIP.
[4]

[50]

On
    this record, the motion judge was entitled to conclude that the payment of
    bonuses was an integral component of Mr. Dawes compensation, giving rise to a
    common law entitlement to damages in lieu of bonus. This conclusion leads to
    the second part of the
Paquette
test  whether the common law
    entitlement was altered or removed by the language of the bonus plans.

(b)

The Termination Provision

[51]

Equitable
    Life argued that, at the time of his termination, Mr. Dawes entitlement to
    bonus payments was specifically limited by the terms of the LTIP and STIP. The
    motion judge considered the terms of the plans and found that the language
    used in the LTIP and STIP does not meet the requirement of an unambiguous
    alteration of Mr. Dawes common law entitlement. Simply put, the wording is
    unclear and confusing: at para. 62. As explained below, I disagree with the
    motion judges conclusion on this issue. I agree with the appellant that, in reaching
    this conclusion, the motion judge failed to read the plan documents as a whole,
    and instead applied a piecemeal approach by considering each relevant provision
    sequentially without regard to their combined effect: see
Sattva Capital
    Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47;
Amberber v. IBM Canada Ltd.
, 2018 ONCA 571, 424 D.L.R. (4th) 169, at
    paras. 47-50.

[52]

In
    order to determine whether the plans limited Mr. Dawes common law entitlement,
    it is necessary to take a closer look at the terms of the plans individually
    and in combination. During their submissions, counsel focused on the wording of
    the LTIP provisions which are substantially similar to the parallel STIP
    provisions. I will do the same.

[53]

The
    plan is eight pages long. It employs highly technical language in explaining how
    the bonus scheme works.

[54]

The
    key part of the document for the purposes of this appeal is IX. Administrative
    Processes. In this part, an Eligible Participant is defined as someone
    employed by the Corporation on the date an award is paid in order to receive
    an award. Eligible Participants who resign or who are terminated with cause
    forfeit all rights under the Plan including any awards earned but not yet paid
     and no award or pro-rated awards shall be paid.

[55]

The
    plan provides for Terminal Awards in circumstances of retirement, death, and
    termination for cause. Terminal Awards are essentially pro-rated awards,
    determined by a complicated calculation set out in term IX.C.(a)(iv).

[56]

The
    provision at the heart of this appeal is IX.C.(a)(iii) (i.e. the termination
    provision), which provides for Terminal Awards in circumstances of termination
    without cause, as follows:

Termination without Cause: An Eligible Participant terminated
    without cause
will be entitled to receive only Terminal Awards calculated in
    sub-paragraph (a)(iv) (below), pro-rated to the last day of active employment,
regardless of whether notice of termination is given or not given and
regardless
    of whether the termination is lawful or unlawful, and only if the Eligible
    Participant provides the Corporation with a Full and Final Release in the
    manner required in the Eligible Participants termination letter
. [Emphasis
    added.]

For greater certainty, term IX.D, titled Restrictions,
    provides:

a)

Awards earned and
    awards actually paid shall not be considered in determining any entitlement to
    termination, severance or common law notice or payments in lieu of notice. Upon
    termination without cause and with or without notice, the Eligible
    Participants only entitlements under this Plan shall be the Terminal Awards
    set out in section IX C.(a)(iv) (above).

[57]

In
    analyzing the combined effect of these provisions, I start with this courts
    decision in
Paquette
. Similar to this case, the issue in
Paquette
was
    whether the employee was entitled to claim wrongful dismissal damages for bonus
    payments he would have earned during the notice period following his
    termination without cause. In
Paquette
, the motion judge found that a
    term of the bonus plan that required that a person must be an active employee
    was clear and unambiguous and, therefore, disentitled the employee to any bonus
    entitlement upon being terminated without cause. I note that the active
    employee term in the bonus plan at issue in
Paquette
is similar to the definition
    of Eligible Participant in this case quoted in para. 54 above.
[5]

[58]

This
    court allowed the appeal. Writing for the court, van Rensburg J.A. determined
    that the motion judge had taken the wrong approach. She held, at para. 21, that
    the issue was not whether the employee was entitled to access bonus
    entitlements in accordance with the terms of the plan upon termination;
    instead, the question was whether he was entitled to damages comprised of the compensation
    and benefits that he would have been entitled to had he not been wrongfully
    dismissed: see also
Taggart v. The Canada Life Assurance Company
(2006),
    39 C.C.E.L. (3d) 48 (Ont. C.A.), at paras. 11, 16.

[59]

Moreover,
    van Rensburg J.A. stated that, had the employee been permitted to work through
    the reasonable notice period, he would have been actively employed and, under
    the terms of the plan, entitled to bonus payments:
Paquette
,

at
    para. 21. An employee who receives payment in lieu of reasonable notice stands
    in the same position:
Paquette
,

at para. 26;
Taggart
, at
    para. 16. Accordingly, the employer was not permitted to exploit the actively
    employed term by not permitting the employee to work through the reasonable
    notice period.

[60]

Mr.
    Dawe stands in the same position in this case. Kimberly Oliver, Senior Consultant,
    Executive Compensation at Willis Towers Watson, provided evidence on the
    summary judgment motion. Willis Towers Watson is regularly retained by
    Equitable Life to design competitive executive compensation packages. Ms.
    Oliver acknowledged that, had Mr. Dawe worked through his notice period, he
    would have been entitled to normal (i.e., non-Terminal Award) payments under
    the LTIP and STIP.

[61]

Citing
Paquette
, the motion judge held, at para. 61, that the first provision reproduced
    above requiring that an Eligible Participant must be employed by the
    Corporation on the date an award is paid in order to receive an award, was
    unenforceable. The motion judge found the remainder of the provisions
    reproduced above (terms IX.C.(a)(iii) and IX.D) to be too imprecise to oust Mr.
    Dawes bonus entitlements. I disagree.

[62]

As
    van Rensburg J.A. said in
Paquette
, at para. 31, [t]he question is not
    whether the contract or plan is ambiguous, but whether the wording of the plan
    unambiguously alters or removes the appellants common law rights. See also
Taggart
,
    at paras. 12, 19-20. In my view the LTIP and STIP do so limit Mr. Dawes
    entitlement.

[63]

This
    case is similar to
Kieran v. Ingram Micro Inc.
(2004), 189 O.A.C. 58
    (C.A.), a case dealing with an employees entitlement to stock options upon
    termination. Mr. Kieran had been dismissed without cause. The stock option plans
    provided that he had 60 days from the termination date to exercise any option rights
    then vested. The plan defined termination of employment as the date the
    employee ceases to perform services for the employer without regard to
    whether the employee continues thereafter to receive any compensatory payments
    therefrom or is paid salary thereby in lieu of notice of termination. Among
    other things, the motion judge determined that the language of the plans
    prevented Mr. Kieran from exercising his stock options.

[64]

This
    court dismissed Mr. Kierans appeal. Lang J.A. wrote, at para. 58 of
Kieran
,
    that there were no ambiguities in the terms of the plans. Recognizing that
    prior cases had found that general language such as cessation of employment
    may create ambiguity, Lang J.A. was satisfied that the wording of the plans in
    question did not. In
Paquette
, van Rensburg J.A. referred to
Kieran
and observed, at para. 43, that there was no ambiguity because the plans in
Kieran
did not speak only of termination or cessation of employment generally, [r]ather,
    the plans anticipated the very event that occurred  the termination of
    employment without just cause or notice.

[65]

In
    this case, the LTIP and the STIP went well beyond stipulating active
    employment as a precondition for bonus entitlement. The terms reproduced above
    address, with great precision, what happens to an eligible participants bonus
    entitlement upon termination without cause. To repeat the words of van Rensburg
    J.A. in
Paquette
, the LTIP and STIP anticipated the very event that
    occurred  Mr. Dawes dismissal without cause. This language unequivocally restricted
    his common law rights upon termination. The motion judge erred in finding
    otherwise. However, this does not end the inquiry. It is necessary to determine
    whether Mr. Dawe was properly informed of the termination provision unilaterally
    imposed by Equitable Life.

(c)

Was the Termination Provision Properly Communicated?

[66]

Equitable
    Life acknowledges that it unilaterally imposed changes to its compensation plan
    over the years, leaving its employees with the choice of accepting any new terms,
    or deciding to leave the company. This is consistent with the legal
    implications of unilateral changes to employment contracts.

[67]

The
    motion judge referred, at para. 56, to
Wronko v. Western Inventory Service
    Ltd.
, 2008 ONCA 327, 90 O.R. (3d) 547, at paras. 33-36, leave to appeal
    refused, [2008] S.C.C.A. No. 294, in which Winkler C.J.O. spoke of the three options
    available to employees in these circumstances: (1) accept the change either
    expressly or implicitly through acquiescence, thereby continuing employment
    under the newly imposed terms; (2) reject the changes and sue for damages if
    the employer insists on enforcing the new terms; or (3) notify the employer
    that the new term is rejected, leaving the employer the option of terminating
    the employee with proper notice and offering the employee re-employment on the
    new terms. See also
Lin
, at paras. 72, 75.

[68]

Equitable
    Life contends that, over the years, Mr. Dawe always acquiesced to the changes
    to the bonus plans. He readily accepted the bonuses that he received. As noted
    above, he received memos each year, explaining how his bonus had been
    calculated. Moreover, he always had access to the details of the plans, and the
    STIP plan was available on the companys intranet. Mr. Dawe denied ever having
    the termination terms of the LTIP and STIP brought to his attention. Importantly,
    Mr. Dawes position was accepted by the motion judge.

[69]

In
Paquette
, van Rensburg J.A. alluded to providing employees notice of
    adverse provisions in bonus plans. At para. 18, she said: To the extent that
    there are limitations [on the payment of the bonus], the question may arise as
    to whether they were brought to the attention of the affected employees and
    formed part of their contract of employment. However, notice was not a live issue
    in
Paquette
.

[70]

The
    issue of proper notice was squarely addressed in
Poole v. Whirlpool Corporation
,
    2011 ONSC 4100, 92 C.C.E.L. (3d) 350, affd 2011 ONCA 808, 97 C.C.E.L. (3d) 20.
Poole
involved an actively employed condition that the employer
    attempted to rely upon to limit entitlement to bonus payments. On a motion for
    summary judgment, Hoy J. (now A.C.J.O.) held, at para. 33: There is no
    evidence that Mr. Poole at any time assented to or agreed to this limitation.
    Nor is there evidence that Mr. Poole was given a copy of the 2005 Bonus Plan,
    or advised of this limitation. Simply posting the Plan on Whirlpool's Intranet,
    without more, is insufficient. This finding was upheld on appeal. This court
    affirmed that the failure to establish that the limiting condition was drawn to
    the employees attention at any time, either orally or in writing, precluded
    any reliance by the [employer] on the precondition to defeat the [employees]
    bonus claim:
Poole
, CA, at paras. 5-6.

[71]

In
    this case, the motion judge relied upon
Poole
to find that Equitable
    Life failed to bring the limiting terms of the LTIP and STIP to Mr. Dawes
    attention. He observed that there was no documentation to support Mr. Beettams
    claim that he delivered copies of both documents to Mr. Dawe. Nevertheless, the
    motion judge found that it was more likely than not that the documents were
    delivered to Mr. Dawe: at para. 45. But this was not the end of the matter. At
    paras. 46-47, the motion judge found:

However, the uncontradicted evidence is that Mr. Beettam,
    and others at Equitable made no effort to bring the forfeiture provisions to
    Mr. Dawes attention.
The various memorandums referred to only identify the
    positive aspects of the bonus plan, in particular the calculation that would result
    in payment in that particular year.

[T]he requirement is communication of the term the employer
    seeks to rely on.
I am not persuaded simply providing a copy of the plan
    document meets this standard. In essence, providing only a copy of the document
    transfers the onus to the employee of finding any negative terms of employment.
These are complex documents, drafted by lawyers, and most difficult to read and
    understand.
In my view, an employer has a duty to inform the employee of all
    expected terms of employment. That is particularly the case here as Equitable
    Life had changed the method of establishing bonus plans and was attempting to
    introduce a forfeiture clause that was not part of the prior system
.
    [Emphasis added.]

[72]

The
    motion judges conclusions are consistent with this courts decision in
Wronko
.
    Where changes are imposed unilaterally by the employer, the essence of the
    problem is whether the employee accepted the newly imposed terms of employment.
    In order to rely upon the limits created by the termination provisions,
    Equitable Life was required to prove that Mr. Dawe accepted these adverse,
    unilateral changes to an integral part of his compensation package. A
    pre-condition to acceptance is knowledge of the changes. On the record before
    the motion judge, he was entitled to find that Equitable Life failed to prove
    that Mr. Dawe knew about these changes, or that these changes were effectively
    communicated by Equitable Life to Mr. Dawe. Given the appellants obligation to
    put its best foot forward on this motion for summary judgment, the motion judge
    was entitled to assume that there would be no further evidence at trial that
    would have assisted Equitable Life on this issue: see
Bergen v. Fast Estate
,
    2018 ONCA 484, 30 M.V.R. (7th) 49, at para. 11.

[73]

I
    acknowledge that there was some evidence that may have supported a finding that
    Mr. Dawe might have been aware of the unfavourable terms in the bonus plans. After
    all, he was a Senior Vice President and was involved in the termination of
    other employees, signing termination letters that adverted to some of the same
    provisions at issue on this appeal. The motion judge found that he received
    copies of the plans. The STIP was available on the companys intranet. All of
    this evidence was before the motion judge.

[74]

Notably
    absent from the record was any direct evidence that the terms in question were
    brought to Mr. Dawes attention. As counsel for Mr. Dawe argued on appeal, had
    Mr. Beettams memo of March 29, 2006 contained one further sentence that
    referred to the termination provisions, it is quite possible that this
    litigation would never have been commenced. Alternatively, Mr. Dawe may have
    objected to the inclusions of these limitations, leading to scenarios (2) or
    (3), discussed in
Wronko
(at para. 67, above). Given how the transition of
    the bonus plans was implemented by Equitable Life, we will never know how
    things would have played out had Mr. Dawe been informed that he would be
    forfeiting large sums of money even if his employment were to be terminated
    without cause.

[75]

The
    motion judges ultimate conclusion on this issue hinges on considerations that
    are largely factual in nature. The discipline of deference requires us to
    respect his conclusion.

[76]

Accordingly,
    I would dismiss this ground of appeal. However, I would adjust the motion
    judges award to the extent that Mr. Dawes bonus entitlement is aligned with the
    notice period of 24 months, instead of 30 months, as explained above.

(d)

The
Employment Standards Act, 2000

[77]

In
    addition to his conclusions about the ambiguity of the language in the plans
    and lack of notice, the motion judge also found that Equitable Life was
    precluded from relying on the termination provision because it violated the
    provisions of the
ESA
by insisting that Mr. Dawe sign a release as a
    precondition to receiving the severance package that he was offered. Given my
    conclusion that the termination provision is unenforceable due to the lack of
    notice, it is unnecessary to address this issue to dispose of the appeal.
    However, I make the following brief comments.

[78]

In
    reaching his conclusion that Equitable Life breached the
ESA
, the motion
    judge acknowledged this courts judgment in
McNevan v. AmeriCredit Corp.
,
    2008 ONCA 846, 94 O.R. (3d) 458, in which Epstein J.A. stated, at para. 57: an
    offer of severance conditional on the execution of a release is not only
    standard but also wise corporate practice. Nevertheless, the motion judge
    found that the release in this case went too far because it required Mr.
    Dawe to give up his common law rights to receive his statutory rights: at para.
    67. He also held that the release infringed ss. 60 and 62 of the
ESA
because
    Equitable Life refused to pay the bonus during the notice period: at para. 67.

[79]

The
    motion judge provided very brief reasons for reaching these determinations that
    were largely conclusory. Assessing the correctness of both determinations would
    require reading in or assuming certain findings that were not explicitly made
    by the motion judge in his reasons. Given my conclusion on the notice issue, it
    is unnecessary to engage in such an analysis to dispose of the appeal. Accordingly,
    these reasons should not be taken as an endorsement of the motion judges
    conclusions regarding whether the release requirement contravened the
ESA
.

E.

conclusion

[80]

I
    would allow the appeal to the extent that the notice period is reduced from 30
    months to 24 months. Mr. Dawes bonus entitlement is adjusted accordingly.

[81]

If the parties cannot agree on the costs of the appeal, or
    adjustments to costs awarded on the motion, if any, they  may  make written submissions no more than five
    pages in length. The appellant shall serve and file its submissions within 10
    days of this decision. The respondent shall
    serve  file its submissions within 7 days
    of receiving the appellants submissions. No reply submissions are to be
    filed.

Released: AHY JUN 19 2019

G.T. Trotter J.A.

I agree. S.E. Pepall J.A.

I agree. A. Harvison Young J.A.

[1]

There were memos dated as follows announcing bonus
    entitlements: February 15, 2008 ($179,756.15); February 17, 2010 ($236,726);
    February 15, 2011 ($183,509.37); and February 12, 2013 ($165,691.61).

[2]

Being terminated on October 8, 2015, 30 months notice took Mr.
    Dawe to April 8, 2018, a few weeks after his 65th birthday.

[3]

Lowndes
was decided on January 6, 2006. The
Ending Mandatory
    Retirement Statute Law Amendment Act, 2005
was assented to on December 12,
    2005, but

by virtue of s. 8 of the Act, most of its
    provisions did not come into force until December 12, 2006.

[4]

The STIP plan document provides that the STIP is an integral
    component of Equitables cash compensation strategy consisting of a base salary
    program and annual variable incentives.

[5]

The active employee term required that the employee be
    actively employed by the employer at the time the bonus was paid: see
Paquette
,
    at para. 10.


COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Sherman Estate, 2019 ONCA 465

DATE: 20190605

DOCKET: M50447 (C65874)

van Rensburg J.A. (Motion
    Judge)

BETWEEN

Kevin Donovan

Applicant (Appellant/Responding Party)

and

The
    Estate of Bernard Sherman and the Trustees of the Estate, and

the Estate of Honey
    Sherman and the Trustees of the Estate

Respondents (Respondents in Appeal/Moving Parties)

Chantelle Cseh and Timothy Youdan, for the moving
    parties

Kevin Donovan, appearing in person

Heard: May 29, 2019

REASONS FOR DECISION

[1]

This is a motion for a stay of an order of this court pending the filing
    and disposition of the moving parties intended application for leave to appeal
    to the Supreme Court of Canada, and, if leave is granted, pending the final
    disposition of the appeal.

[2]

On December 15, 2017, prominent Toronto businessman and philanthropist
    Bernard Sherman and his wife, philanthropist Honey Sherman, were found murdered
    in their home. No one has yet been arrested and the crimes remain under police
    investigation.

[3]

In June 2018, counsel for the estate trustees of the estates of Bernard
    Sherman and Honey Sherman filed in the Superior Court applications for a
    certificate of appointment of estate trustee in respect of each estate. On the application
    of the estate trustees, Dunphy J. granted initial
ex parte
protective
    orders sealing the applications for a certificate of appointment of estate trustee,
    the confidentiality application materials, and other documents relating to the
    administration of the Shermans estates (the Sealed Materials).
[1]

[4]

Following a contested application to open the court files by the
    respondent, Kevin Donovan (who is Chief Investigative Reporter at the Toronto
    Star), Dunphy J. ordered on August 2, 2018 that the entire court file be sealed
     and remain sealed for a period of two years, subject to further order of the
    court.

[5]

That order was set aside on appeal to this court on May 8, 2019. This
    court ordered that its decision would take effect ten days after being
    released. Trotter J.A. made an order on consent temporarily suspending the
    effects of the May 8
th
order and providing for the continued sealing
    of the Sealed Materials pending the determination of this motion.

[6]

The motion is brought under s. 65.1 of the
Supreme Court Act
,
    R.S.C. 1985, c. S-26. Section 65.1(2) provides that such a motion may be
    brought before the serving and filing of the notice of application for leave to
    appeal, if the judge hearing the motion is satisfied that the party seeking the
    stay intends to apply for leave to appeal and that delay would result in a
    miscarriage of justice.

[7]

The moving parties have 60 days from May 8
th
to apply to the
    Supreme Court for leave to appeal. It was essential that they move quickly for
    a stay, before they had served and filed their notice of application for leave
    to appeal, as this courts order allowing the appeal provided for the Sealed
    Documents to be unsealed within ten days. There is no question that the moving
    parties intend to apply for leave to appeal, and they have clearly articulated
    the grounds they propose to argue in their application to the Supreme Court. I
    am satisfied that they have met the test under s. 65.1(2).

[8]

The test on a motion for a stay of an order of this court pending an application
    for leave to appeal to the Supreme Court of Canada, was set out by Strathy
    C.J.O. in
Livent Inc. v. Deloitte & Touche
, 2016 ONCA 395, 131
    O.R. (3d) 784 (in Chambers), at paras. 4-5. The factors to be considered are:
    (1) whether there is a serious question to be determined; (2) whether the
    moving party will suffer irreparable harm if the stay is not granted; and (3)
    whether the balance of convenience favours a stay. The factors are not to be
    treated as watertight compartments and the strength of one factor may
    compensate for weaknesses of another. The overarching consideration is whether
    the interests of justice call for a stay. See also
BTR Global Opportunity Trading
    Limited v. RBC Dexia Investor Services Trust
, 2011 ONCA 620, 283 O.A.C.
    321 (in Chambers), at para. 16.

(1)

Serious Question to be Determined

[9]

With respect to the first factor, whether there is a serious issue to be
    determined requires a preliminary assessment of the merits of the proposed
    appeal, as well as the merits of the proposed leave application. The assessment
    at this stage is described as a low threshold:
Livent Inc.
, at
    paras. 7-8.

[10]

In
    considering whether the appeal would raise a serious issue, I note that this
    court and the application judge differed in their conclusions as to whether the
    first part of the
Sierra Club
test (
Sierra Club of Canada v.
    Canada (Minister of Finance)
, 2002 SCC 41, [2002] 2 S.C.R. 522) was met.
    The application judge concluded on the evidence filed that the first part of
    the test was met  that the sealing order was necessary to prevent a serious
    risk to the privacy and safety of the trustees and beneficiaries of the two
    estates. He then applied the second part of the test to conclude that the
    salutary effects of the order sought outweighed its deleterious effects,
    including the effects on the right to free expression and the public interest
    in open and accessible court proceedings.

[11]

On
    appeal, this court concluded that the privacy interests were not properly
    considered at the first stage of the
Sierra Club
test and that it was
    not an inference from the evidence, but speculation, that the disclosure of the
    contents of the estate files posed a real risk of serious physical harm to the
    beneficiaries and trustees.

[12]

In
Baier v. Alberta
, 2006 SCC 38, [2006] 2 S.C.R. 311 (in Chambers),
    Rothstein J. noted that the extensive reasons of two levels of court, which
    came to different conclusions, made it apparent that there was a serious issue:
    at para. 16(a). Similarly in this case, a review of the reasons of the
    application judge and this court makes it clear that the central issue in
    dispute between the parties  whether public access to certain estate files
    should be denied, in whole or in part, for some period of time  raises a
    serious question.

[13]

The
    real issue on this part of the test is whether there is any arguable merit to
    the proposed application for leave to appeal. Leave to appeal is granted
    sparingly in civil matters, and must meet the test under s. 40(1) of the
Supreme
    Court Act
. The question is whether or not it is likely that the Supreme
    Court would grant leave. Typically, leave is granted under s. 40(1) of the
Supreme
    Court Act
only where the proposed appeal raises an issue of public or
    national importance.

[14]

The
    issues the moving parties intend to raise in their application for leave to
    appeal to the Supreme Court are identified and explained at some length in
    their factum on the stay motion, at paras. 36 to 51. Essentially, the proposed
    appeal would raise questions about (1) the appropriate analytical framework for
    an order restricting public access to court files involving non-litigious or
    administrative matters  something the Supreme Court has not yet determined;
    (2) whether, in the digital age, and having regard to the evolving
    jurisprudence concerning personal privacy, a persons privacy interests can
    amount to an important public interest at the first stage of the
Sierra
    Club
test; and (3) whether this court departed from relevant Supreme Court
    jurisprudence in concluding that the risk of harm was speculative and in
    failing to consider objectively discernable harm.

[15]

Mr.
    Donovan argues that there is no serious issue in this case because the law is
    settled. The proposed appeal involves a dispute about the application of the
    test for sealing orders, which has been consistently stated by the Supreme
    Court over the past 30 years. Mr. Donovan asserts that this court simply
    concluded, in its decision on the appeal, that the evidence was not sufficient
    to show a real, as opposed to a speculative, risk of serious harm to a public interest.
    He contends that the failure of the moving parties to move to file fresh
    evidence before this court undercuts their argument that there is a risk to personal
    safety if the court file is not sealed, and that the real concern here is
    personal privacy, which this court determined was not an important public
    interest to protect at the first stage of the
Sierra Club
test
.

[16]

I
    am satisfied that the low threshold of the first part of the test for a stay is
    met. The moving parties proposed application for leave to appeal to the
    Supreme Court has some arguable merit. Although the application arises in the
    context of a civil matter, the foundation of the dispute engages important
    public interests, and the issues the moving parties seek to raise on a further appeal
    go beyond the simple application of a known test to given facts and would
    transcend the facts of this particular case. The first part of the test
    therefore favours the order sought by the moving parties.

(2)

Irreparable Harm

[17]

Here
    the moving parties say that if the order requested is refused, they will be
    irreparably harmed because the intended application for leave to appeal, and,
    if leave is granted, the appeal itself, will be rendered moot.

[18]

Mr.
    Donovan argues that there will be no irreparable harm because this court has
    already determined that any harm that could result from the lifting of the
    sealing order is purely speculative. Mr. Donovans focus is on the harm to an
    important public interest required under the first part of the
Sierra Club
test.

[19]

Irreparable
    harm for the purpose of a stay motion is generally harm which either cannot be
    quantified in monetary terms or which cannot be cured:
Livent Inc.
, at
    para. 10, citing
RJR-MacDonald Inc. v. Canada (Attorney General)
,
    [1994] 1 S.C.R. 311, at p. 341. The focus here is on the harm that would result
    to the moving parties if the order in question were not stayed pending their application
    for leave to appeal.

[20]

I
    am satisfied that the moving parties would suffer irreparable harm if they were
    denied a stay, because their proposed application for leave to appeal, which I
    have concluded has arguable merit, would become moot. In
Provincial Court
    Judges Association of British Columbia v. British Columbia (Attorney General)
, 2018 BCCA 477, 430 D.L.R. (4th) 670 (in Chambers)
,
    the contested production of a Cabinet document was at issue. Bennett J.A.
    granted a stay of the B.C. Court of Appeals order for production of the
    document, pending an application for leave to appeal to the Supreme Court. She
    accepted that, if the stay were refused, the proposed appeal would be rendered
    moot, which would irreparably harm the moving party by disseminating
    potentially constitutionally-protected confidential information that might, at
    the end of the process, continue to be protected. In other words, the horse
    will be out of the barn: at para. 43.

[21]

The
    same reasoning applies to this case. Refusal of a stay of this courts order would
    mean that the Sealed Materials would form part of the public record, resulting
    in the release of information that, if the appeal process were to run its
    course, might be protected.

(3)

Balance of Convenience

[22]

There
    is no affidavit evidence from the respondent addressing the harm that will
    arise if the stay is granted. Mr. Donovan relies on the delay that has already
    transpired since he first sought access to the estate files in July 2018, and
    that will continue while the moving parties seek leave to appeal to the Supreme
    Court. The delay is in having access to information about the administration of
    the Sherman estates. The moving parties assert that there is no particular
    urgency for public access to the contents of the court file.

[23]

I
    am satisfied that the delay that Mr. Donovan and other members of the public
    would experience in obtaining access to the Sealed Documents before the application
    for leave to appeal is determined is outweighed by the irreparable harm that
    would follow if a stay were refused. The order sought has the effect of
    preserving the
status quo
during the relatively short period of time
    required for the determination of the moving parties application for leave to
    appeal to the Supreme Court. If leave is refused, then the order of this court
    reversing the sealing order will take effect at that time  likely within a
    matter of a few months. If leave is granted, it will be up to the Supreme Court
    to determine whether the Sealed Materials will continue to be sealed pending
    disposition of the appeal.

[24]

Finally,
    Mr. Donovan argues that, rather than staying the entire order of this court, I
    should redact the information that is truly confidential, and permit the
    balance of the court file to be opened to the public.

[25]

I
    am not prepared to do so. Dunphy J., in granting the confidentiality order, and
    after reviewing the two estate files with an eye to determining whether there
    were parts that could be disclosed without revealing the names, addresses or
    bequests left to beneficiaries of either estate or the names and addresses of
    the trustees, concluded that there was simply no meaningful part of either
    file that could be disclosed after making the number of redactions necessary to
    satisfy those conditions. In the appeal to this court, it was unnecessary to
    consider any possible redactions. What Mr. Donovan is asking, in effect, is
    that I put myself in the role of the judge of first instance, to review the
    Sealed Documents and to come to a different conclusion than he did. That is not
    something I am prepared to do. It is not appropriate, on this motion for a
    stay, to essentially make a fresh determination of the original merits of the
    application.

[26]

It
    is in the interests of justice to grant the motion for a stay. The order of
    this court dated May 8, 2019 therefore is stayed pending the filing and
    determination of the moving parties application for leave to appeal to the
    Supreme Court of Canada and the sealed materials shall accordingly remain
    sealed during this period. In accordance with their undertaking to the court,
    the moving parties shall serve and file their application for leave to appeal
    to the Supreme Court of Canada on or before June 21, 2019, and shall request
    that the motion, and, should leave be granted, any appeal to that court, be
    expedited.

[27]

No
    costs are sought or awarded.

K. van Rensburg
    J.A.

[1]

I am told by counsel for the moving parties that the Sealed
    Materials include everything that has been and continues to be filed in the
    Superior Court concerning the administration of the two estates. They also
    confirm Mr. Donovans expectation that the entire court file, including all
    documents filed after Dunphy J.s order was made, will become public when any
    stay of this courts order expires.


COURT OF APPEAL FOR ONTARIO

CITATION: El-Kasir v. Kawartha Muslim Religious Association,
    2019 ONCA 487

DATE: 20190612

DOCKET: C66171

MacPherson, Tulloch and Harvison Young JJ.A.

BETWEEN

Fathy El-Kasir

Plaintiff (Appellant)

and

Kawartha Muslim
    Religious Association,

Mr. Shazem Khan, Mohamed
    Elharram,

Magdy Kamar
, and Kenzu Abdella

Defendants
(
Respondent
)

Fathy El-Kasir, in person

Magdy Kamar, in person

Heard: June 12, 2019

On appeal from the judgment of Justice Myrna Lack of the Superior
    Court of Justice, dated October 22, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge made an order striking out the appellants statement of
    claim on two bases: failure to pay outstanding costs orders and failure to show
    a potential cause of action.

[2]

We agree with the motion judges reasons on both of these issues. The
    appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Elguindy v. Elguindy, 2019 ONCA 488

DATE: 20190612

DOCKET: C66297

MacPherson, Tulloch and Harvison Young JJ.A.

BETWEEN

Emad Elguindy and Irene Elguindy

Plaintiffs (Appellants)

and

Afrodite Elguindy and Aziz Elguindy

Defendants (Respondents)

Emad Elguindy, in person

Irene Elguindy, in person

No one appearing for the respondents

Heard: June 12, 2019

On appeal from the judgment of Justice James R.H.
    Turnbull of the Superior Court of Justice, dated December 5, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The Orchard fresh evidence that the appellant seeks to introduce is not
    in a form that we can consider. As a result, the December 5, 2018 judgment of
    Turnbull J. should be enforced according to its terms.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: G. Cooper Equipment Rentals Limited v. 2208011
    Ontario Limited (Trifield Construction), 2019 ONCA 475

DATE: 20190610

DOCKET: C66049

Tulloch, Roberts and Miller JJ.A.

BETWEEN

G. Cooper Equipment Rentals Limited

Plaintiff (Respondent)

and

2208011 Ontario Limited o/a Trifield Construction, Trifield

Construction Management Corp. o/a Trifield Construction
,
    Sandy

Goodman,
Aaron Goodman
, and Sari Goodman

Defendants (
Appellants
)

Vanessa A. Ibe, for the appellants

Whitney Abrams, for the respondent

Heard and released orally: June 7, 2019

On appeal from the judgment of Justice Jill M. Copeland
    of the Superior Court of Justice, dated September 19, 2018.

REASONS FOR DECISION

[1]

The respondent commenced an action against the appellant and others for
    breach of contract and breach of trust under the provisions of the
Construction
    Act
, R.S.O. 1990, c. C-30. The action was brought under the simplified
    procedure and the respondent obtained a judgment against the appellants on a
    summary judgment motion.

[2]

The appellants argue that the motion judge erred in determining that
    there was no genuine issue before her requiring trial. The appellants more or
    less repeat the arguments they advanced before the motion judge, arguing that
    the motion judge lacked the proper record to decide the issues, particularly
    since cross-examination was not available under the simplified procedure.

[3]

The appellants argue that the litigation turned on findings of
    credibility, specifically the credibility of Mr. Goodman in denying that
    Trifield Construction had been listed as a party to the Credit Application
    and Agreement when he signed it. The resolution of this issue, the appellants
    argue, required cross-examination or examination for discovery.

[4]

The appeal is without merit. The motion judge gave careful reasons for
    the findings that she made, which were supported by the evidence that was
    before her. The motion judge rejected the appellants evidence, which was
    contradicted by the documentary evidence as well as the conduct of the parties in
    acting in concert in the construction project, using the equipment supplied by
    the respondent and receiving construction funds. She found that 2208011 Ontario
    Limited had a subcontracting relationship with Trifield Construction Management
    Corp. and that Mr. Goodman had the requisite knowledge of the transactions and
    assented and acquiesced in them.

[5]

The motion judge was entitled to make these findings, and her factual
    findings are entitled to deference.

[6]

The appeal is dismissed. The respondent is entitled to its costs fixed in
    the amount of $4,000, inclusive of disbursements and HST.

M. Tulloch J.A.

L. B. Roberts J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Genstar Development Partnership v. The Roman
    Catholic Episcopal Corporation of the Diocese of Hamilton in Ontario, 2019 ONCA
    506

DATE: 20190618

DOCKET: C66059

MacPherson, Tulloch and Harvison Young JJ.A.

BETWEEN

Genstar Development Partnership

Applicant (Appellant)

and

The Roman Catholic Episcopal Corporation of the
    Diocese of Hamilton in Ontario

Respondent (Respondent)

Alan Merskey and Geoff Mens, for the appellant

Jonathan Lancaster and Sean Carter, for the respondent

Heard: June 12, 2019

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated October 1, 2018, with reasons reported at
    2018 ONSC 3702 and 2018 ONSC 4119.

REASONS FOR DECISION

[1]

The appellant Genstar brought an application for
    specific performance to enforce its purported right to purchase a block of land
    from the respondent Diocese, pursuant to an Agreement of Purchase and Sale,
    dated August 21, 1998, between Imasco Enterprises Inc. (Genstars purported
    predecessor) and the Diocese. The Agreement provided Imasco (as vendor) the
    option to repurchase the property from the Diocese (as purchaser) if the
    property was not developed as a church within 10 years.

[2]

The application judge dismissed Genstars
    application, finding that Genstar had not established that it was neither  successor
    to Imasco nor equitable assignee of the repurchase option and, in any event,
    that its various tenders to the Diocese were deficient. Genstar appeals,
    arguing that the application judge made palpable and overriding errors of fact
    on the evidentiary record before her in so concluding.  It also argues that she
    erred in not in deciding not to convert the application to an action and in
    refusing to permit supplementary evidence on the successor/assignee issues.

Background

[3]

In 1998, Imasco sold a block of land within a
    subdivision development to the Diocese, pursuant to an Agreement of Purchase
    and Sale, dated August 21, 1998. The property was zoned as a place of
    worship, and could only be sold to a purchaser who planned to use it for its
    designated purpose. The purchase price was $576,000. There is no dispute that
    the purchase price was less than the market value of the property, given the
    limited pool of potential purchasers for property zoned exclusively for
    religious purposes.

[4]

The Agreement provided Imasco the right to
    repurchase the property from the Diocese if it was not developed as a church
    within 10 years or if the property was subsequently not required for a church
    (the repurchase option). Section 5  the operative provision of the Agreement
     provided as follows:

If the Property is not developed
    for a church within 10 years hereof or if the Property is not required for a
    church, the Vendor shall be notified thereof and be entitled to repurchase the
    Property within 90 days of such notification at a price equal to the herein
    purchase price multiplied by the increase in the Ontario Consumer Price Index
    between the date of closing hereunder the date of repurchase.

[5]

The repurchase option was apparently included
    because municipal planning rules contemplated that a property initially zoned
    as a place of worship could be re-zoned residential if it was not developed
    into a place of worship after a certain period of time.

[6]

Following the sale of the property to the
    Diocese, Imasco transferred certain assets to other entities. These
    transactions were summarized by the application judge at para. 28 of her
    reasons reported at
Genstar Development Partnership v. The Roman Catholic
    Episcopal Corporation of the Diocese of Hamilton
, 2018 ONSC 4119 (the Second
    Endorsement).

[7]

Pursuant to a Transfer Agreement, dated February
    1, 2000 (the 2000 Transfer Agreement), Imasco transferred certain
    Transferred Assets  defined to be all of Imascos assets
other
than the Excluded Assets listed in a schedule to
    the 2000 Transfer Agreement  to Genstar Development Company Limited (GDCL). Shortly
    thereafter, pursuant to a Transfer Agreement, dated January 15, 2001 (the 2001
    Transfer Agreement), GDCL transferred all of its assets to a newly formed
    partnership  the appellant Genstar. Imasco and GDCL are no longer active corporations.

[8]

The Diocese did not develop the property as a
    church. It also did not give notice after the expiration of the 10 year period
    referred to in the repurchase option. It appears that nothing of substance
    happened until 2016, when the Diocese decided to sell the property. The Diocese
    issued a request for proposals, seeking bids to purchase the property.

[9]

Genstar learned that the Diocese planned to sell
    the property in April 2016. it wrote the Diocese, taking the position that the
    Diocese had breached the terms of the Agreement and expressing its position
    thatGenstar was entitled to exercise the repurchase option as a successor to
    Imasco. Significant correspondence between counsel for Genstar and counsel for
    the Diocese ensued. Genstar twice attempted to tender on the Diocese, but the
    Diocese refused to close citing deficiencies in the tenders and taking the
    position it was not obligated to sell the property to Genstar.

[10]

Genstar then commenced an application to enforce
    its rights under the repurchase option. The Diocese defended the application
    primarily on the basis that:

1)

both
    of Genstars tenders were deficient, as it had failed to use the Ontario
    Consumer Price Index to calculate the repurchase price and thus understated the
    repurchase price by approximately $20,000;

2)

Genstar
    was not Imascos legal successor; and

3)

if
    Genstar was properly construed as Imascos assignee, Genstar had failed to give
    the Diocese notice pursuant to the
Conveyance and Property Act
, R.S.O.
    1990., c. C. 34. In response to this latter argument, Genstar argued that it
    was an equitable assignee of the repurchase option.

[11]

At the hearing of the application, the
    application judge raised concerns about the sufficiency of Genstars evidence
    as to whether Genstar was Imascos successor or, alternatively, whether Imasco
    had assigned the Agreement to Genstar. In particular, she noted that Genstar
    had not included the schedule of Excluded Assets to the 2000 Transfer
    Agreement. She invited the parties to make further written submissions as to
    whether it was appropriate to convert the application to an action, pursuant to
    r. 38.10(b) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg 194: see
Genstar Development Partnership v. The Roman Catholic Episcopal Corporation
    of the Diocese of Hamilton
, 2018 ONSC 3702 (the First Endorsement).

[12]

In its written supplementary submissions,
    Genstar acknowledged that the evidentiary record lacked potentially relevant
    information relating to Genstars status as a successor. It urged the
    application judge not to take the draconian procedural step of converting the
    application to an action. It requested that the application judge allow it to
    adduce further evidence, in the context of the application, to cure the
    deficiencies in the evidentiary record. The Diocese took no position on whether
    it was appropriate to convert the application to an action, but objected to
    Genstars request that it be permitted to file supplementary evidence.

Decision Below

[13]

The application judge determined that she would
    not exercise her discretion to convert the application to the action. However,
    she also held that it would be unfair to allow Genstar to adduce further
    evidence on its status as a successor to Imasco. She noted that Genstar [had]
    never requested an adjournment and [had] consistently submitted that the Court
    should proceed on the present evidentiary record: Second Endorsement, at
    paras. 24, 32. In her view, it would be improper to allow Genstar to introduce
    new evidence after receiving comments and a ruling from the court. The Diocese
    was entitled to know the case it had to meet before the conclusion of the
    hearing.

[14]

The application judge held that Genstar had not
    established that it was a successor to Imasco, because it was not possible to
    determine which assets had been transferred from Imasco to GDCL, and
    subsequently to Genstar, in the absence of the schedule of Excluded Assets in
    the 2000 Transfer Agreement: Second Endorsement, at paras. 32-34. She also
    rejected Genstars alternate position that it was the equitable assignee of the
    repurchase option because it was not possible to determine if there was an
    intention to assign the Agreement in the absence of the schedule of Excluded
    Assets to the 2000 Transfer Agreement: Second Endorsement, at para. 39. As such,
    Genstar had failed to prove it was entitled to exercise the repurchase option.

[15]

The application judge further held, in
obiter,
that Genstars tenders were deficient and precluded it from enforcing the
    repurchase option. Genstar had not used the Ontario Consumer Price Index (as
    contemplated in the repurchase option) to calculate the purchase price and thus
    had understated the correct purchase price by approximately $20,000. She held
    that the Diocese was entitled to insist on strict compliance with the terms of
    the repurchase option. She also rejected Genstars argument that correspondence
    from the Diocese evidenced an anticipatory breach of the Agreement, and thus
    relieved Genstar of the obligation to tender: Second Endorsement, at para. 42.

Issues on Appeal

[16]

Genstar raises the following arguments on
    appeal:

·

The application judge made palpable and
    overriding errors of fact in not finding that Genstar was the successor to
    Imasco or, that Genstar was the equitable assignee of the repurchase option;

·

In the alternative, the application judge erred
    in not exercising her discretion to accept additional evidence or to convert
    the application to an action; and

·

The application judge erred in finding that Genstars
    tenders were deficient and precluded enforcement of the repurchase option.

[17]

For the reasons that follow, we are of the view
    that the appeal can be resolved solely on the basis of the first two asserted
    errors. In particular, we would dismiss the appeal on the basis that the
    application judge was entitled to find, on the record before her, that Genstar
    had not discharged its onus of proving that it was the successor to Imasco or
    the equitable assignee of the repurchase option. We also see no basis upon
    which to interfere with either the application judges refusal to convert the
    application to an action, or her refusal to accept supplementary evidence, in
    the circumstances of this case. In light of these conclusions, there is no need
    to resolve the question of whether the application judge erred in finding that Genstars
    tenders were deficient.

Analysis

[18]

As to the first asserted error, we do not agree
    that the application judge made a palpable and overriding error of fact in
    finding that the evidentiary record did
not
establish that Genstar was a successor to Imasco, or the equitable assignee of
    the Agreement and repurchase option. We note that Genstar agrees that the
    application judge correctly stated the law relating to succession and equitable
    assignment.

[19]

It was only possible to determine which assets
    flowed from Imasco to GDCL to Genstar on a consideration of the contractual documents
    evidencing the transfers  including the schedule of Excluded Assets to the
    2000 Transfer Agreement. The absence of the schedule of Excluded Assets left
    a critical gap in Genstars claim that it was a successor because it had
    [assumed] the burdens and become [vested] with the rights of Imasco and its
    alternative claim that it was an equitable assignee of the repurchase option
    because the intention was for Genstar to have the benefit of the repurchase
    option. The application judge could not determine if the Agreement had been
    transferred to Genstar on the record before her.

[20]

Genstar argues that the application judge erred
    because the uncontested evidence from Genstars affiant was that Imascos real
    estate contracts were transferred from Imasco to GDCL to Genstar. We do not
    accept this characterization of the affiants evidence. The portion of the
    affiants affidavit relied upon by Genstar in this regard  which was also
    reproduced by the application judge  simply describes and attaches the 2000
    Transfer Agreement and 2001 Transfer Agreement. While the affiant states that
    the Transferred Assets in the 2000 Transfer Agreement included Imascos real
    estate contracts  which is clear on the face of the definition of
    Transferred Assets in the 2000 Transfer Agreement  it is not possible to
    determine whether the specific Agreement at issue in this appeal was
    transferred in the absence of the schedule of Excluded Assets. While Genstar
    argues that the test for successorship outlined in
National Trust Co. v.
    Mead
, [1990] 2 S.C.R. 410, at p. 423 does not require that the purported successor
    assume all of the predecessors rights and obligations, it has provided no
    authority for the proposition that a successor can exercise a right
not
assumed.

[21]

As counsel for the appellant acknowledged during
    oral argument, Genstar had the burden to establish that it was entitled to
    enforce the repurchase option as against the Diocese. We are not satisfied that
    the application judge made a palpable and overriding error in concluding that
    she could not make a positive finding that Genstar was a successor of Imasco or
    the equitable assignee of the repurchase option in the absence of the relevant
    documentary evidence.

[22]

As to the second asserted error, we do not agree
    that the application judge erred in not exercising her discretion to receive
    additional evidence or to convert the application to an action.

[23]

An application judges discretionary decisions
    are entitled to significant deference. An appellate court will only interfere
    where the lower court misdirected itself, came to a decision that is so clearly
    wrong so as to amount to an injustice, or gave no or insufficient weight to a
    relevant consideration:
Pennyfeather v. Timminco Ltd.
, 2017 ONCA 369,
    at para. 135, citing
Penner v. Niagara Regional Police Services Board
,
    2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27.

[24]

Here, the application judge raised the issue of
    the missing schedule of Excluded Assets at the hearing of the application.
    There was no request for an adjournment. She was never provided with the
    schedule of Excluded Assets. While Genstar asked to provide additional
    evidence on the succession issue in its supplementary written submissions, it
    did not expressly identify what that evidence would be. The application judge
    was clearly concerned that to allow additional evidence would result in
    unfairness to the Diocese. In these circumstances, we are not satisfied that
    the application judge exercised her discretion in such a manner so as to
    warrant appellate intervention. Moreover, Genstar urged the application judge
    not to convert the application to an action in its written supplementary
    submission and, for that reason, it does not lie for it to argue before this
    court that she ought to have converted the application to an action.

[25]

Finally, we are not persuaded that the manner in
    which the hearing of the application unfolded was procedurally unfair. The
    issue of whether Genstar was a successor to Imasco, or an assignee of the
    repurchase option, was put in issue in the parties written submissions before
    the hearing of the application. While it is true that the application judge
    raised the issue of whether it was necessary to convert the application to an
    action at the hearing of the application  due in large part to the fact that
    the schedule of Excluded Assets to the 2000 Transfer Agreement was not in
    evidence  the parties were provided an opportunity to make additional written
    submissions on this issue. We therefore disagree with Genstars submission on
    appeal that it was blindsided by what it referred to as the application
    judges overemphasis on the missing schedule of Excluded Assets.

Disposition

[26]

For the forgoing reasons, the appeal is
    dismissed. The Diocese is entitled to costs of the appeal in the agreed upon
    amount of $35,000, inclusive of HST and disbursements.

J.C. MacPherson J.A.

M. Tulloch J.A.

A. Harvison Young
    J.A.