COURT OF APPEAL FOR ONTARIO

CITATION: Sankar v. Bell Mobility Inc., 2017 ONCA 295

DATE: 20170412

DOCKET: C60176

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Celia Sankar

Plaintiff (Appellant)

and

Bell Mobility Inc.

Defendant (Respondent)

Proceeding under the
Class Proceedings Act,
    1992

Paul J. Pape and Shantona Chaudhury, for the appellant

Steve T. Tenai and Guy White, for the respondent

Heard: January 20, 2017

On remand from the order of the Supreme Court of Canada, dated
    October 20, 2016.

By the Court:

[1]

A.

Background

[1]

On April 4, 2016, this court dismissed the
    appellants appeal from a summary judgment motion dismissing her class action. Our
    reasons are reported at 2016 ONCA 242, 348 O.A.C. 58.

[2]

On June 2, 2016, the appellant brought an
    application for leave to appeal to the Supreme Court of Canada.

[3]

On September 15, 2016, the Supreme Court
    released its decision in
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23.

[4]

On October 20, 2016, the Supreme Court neither
    granted nor denied leave to appeal, but directed that the case forming the
    basis of the application for leave to appeal be remanded to this court,
    pursuant to s. 43(1.1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26
    for disposition in accordance with
Ledcor
.
[1]

[5]

Section 43(1.1) provides that the Supreme Court
    may, in its discretion, remand the whole or any part of the case to the court
    appealed from or the court of original jurisdiction and order any further
    proceedings that would be just in the circumstances.

[6]

Having received correspondence from counsel
    concerning the remand order, we requested written submissions on two issues:
    (a) the meaning and effect of the remand order; and (b) the appropriate
    disposition in light of
Ledcor
. We advised counsel that we would be
    prepared to entertain oral submissions, if requested. A hearing was held at
    counsels request, at the conclusion of which we reserved judgment.

[7]

These reasons will explain why we affirm our
    previous decision.

B.

The meaning and effect of the remand order

[8]

Counsel for the appellant argues that the
    remanded matter should be heard as a fresh appeal, but that the court could
    inform itself from its earlier reasons: referring to
British Columbia
    (Ministry of Forests) v. Teal Cedar Products Ltd.
, 2015 BCCA 263, 70
    B.C.L.R. (5th) 318, leave to appeal to S.C.C. granted, [2015] S.C.C.A. No. 363,
    appeal heard and reserved November 1, 2016, at para. 2;
Canada (Procureur général)
    c. Syndicat canadien de la fonction publique, section locale 675
, 2016
    QCCA 163, D.T.E. 2016T-121,
leave
to appeal to S.C.C.
    refused, [2016] S.C.C.A. No. 117, at para. 3; and
R. v. Polches
, 2008
    NBCA 1, 325 N.B.R. (2d) 262, leave to appeal to S.C.C. refused, 349 N.B.R. (2d)
    399 (note), at para. 18.

[9]

Disposition of the case in accordance with
Ledcor

    does not mean revisiting questions that
Ledcor
does not touch upon:
    see
Polches
, at para. 20. What it does mean is that, as a matter of
    fairness to the parties and judicial economy, we should reconsider our original
    decision in light of the authoritative pronouncement of the Supreme Court on
    issues that may have affected our disposition of the appeal. As this court has
    stated in
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc.
, 2017
    ONCA 293, at para. 14, [i]f the application of
Ledcor
mandates a
    different disposition, this court should alter its earlier decision in light of
    the teachings of
Ledcor
. If it does not, this court should affirm its
    earlier decision.

[10]

We turn to that question.

C.

The appropriate disposition in light of
Ledcor

(1)

The teachings of
Ledcor

[11]

Ledcor
s core instruction
    is that in cases involving the interpretation of standard form contracts, the
    standard of review is correctness because the factual matrix or surrounding
    circumstances generally have little impact on their interpretation: see
Ledcor
,
    at para. 32.

[12]

In
Ledcor
, at para. 22, the Supreme
    Court referred to this courts decisions in
MacDonald v. Chicago Title
    Insurance Company of Canada
, 2015 ONCA 842, 127 O.R. (3d) 663, leave to
    appeal to S.C.C. refused, [2016] S.C.C.A. No. 39 and in the instant case as
    examples of the application of a correctness standard of review to the
    interpretation of a standard form contract.

[13]

A second instruction of
Ledcor
is that
    the circumstances of the negotiation of standard form contracts will generally
    play no role in their interpretation, because by their very nature there is usually
    no negotiation of such contracts (at para. 28). Some elements of the
    surrounding circumstances of standard form contracts, such as the purpose of
    the contract, the nature of the relationship it creates, and the market or industry
    in which it operates, have a role in the interpretative process. However, this
    is only because they are the same for everyone who enters into the particular
    standard form contract, are not negotiated on a case-by-case basis and are not
    inherently fact-specific (at paras. 30, 31).

(2)

The Submissions of the Parties

[14]

The appellant acknowledges that this court
    applied the correctness standard of review expressed in
Ledcor
.

[15]

She submits, however, that
Ledcor
went
    beyond this courts decision in
Chicago Title
by emphasizing that the
    surrounding circumstances of a standard form contract play no role in its
    interpretation unless they are the same for everyone.

[16]

The appellant asserts that the motion judge incorrectly
    used the surrounding circumstances or factual matrix in interpreting Bells
    Terms of Service. He erred in considering parts of the factual matrix that were
    not common to all Bell subscribers and failed to consider provisions of Bells
    Terms of Service that were common to all subscribers and failed to give them
    proper legal effect. She submits that this court made the same errors.

[17]

The appellant says that the motion judge, and
    this court, failed to give proper legal effect to the notice provisions of
    Bells standard form contract, which she says made Bells notices to its
    customers, delivered after the contract was made, part of [Bells] contractual
    bargain. Thus, says the appellant, Bells notices sent to its customers, after
    they had topped up their accounts, advising them of the expiry date of their
    contracts, were contractual terms common to all customers and should have been
    considered by the motion judge.

[18]

The appellant also says that the motion judge
    erred in finding that the notices were simply subsequent communications and
    that this court erred in finding they were post-contractual representations.

[19]

The respondent acknowledges that the motion judge,
    who did not have the benefit of either
Chicago Title
or
Ledcor
,
    may have mischaracterized portions of Bells contractual terms as parts of the surrounding
    circumstances. However, it says, this court properly identified and relied on
    contractual terms which were ancillary to and contemplated by Bells Terms of
    Service and came into existence every time a customer bought a new top-up.

(3)

Discussion

[20]

In view of the appellants concession and the
    Supreme Courts acknowledgment that this court applied a correctness standard
    of review in this case, the real issue arising from
Ledcor
is whether
    we improperly used the surrounding circumstances to interpret Bells Terms of
    Service applicable to wireless customers. The appellant says we did and that we
    erred in failing to consider the expiry date Bell assigned to each
    subscribers contract, as reflected on the subscribers account and the
    reminder messages sent to the subscriber.

[21]

As a starting point, we observe that we noted at
    para. 26 of our reasons, after adopting a correctness standard of review, that
    in this case:

[T]he factual matrix applicable to the
    dealings between individual customers and Bell plays no role in the
    interpretation of the contract.
Indeed, if that did
    play any role, the interpretation of the contract would not be a suitable
    common issue, [in the class proceeding] because the answer could vary depending
    on the underlying facts. [Emphasis added.]

[22]

This was a class action and the motion judge was
    required to answer common issues that would apply to all class members. The issue
    was not Ms. Sankars claim against Bell for breach of contract. It was the
    determination of a common issue of whether Bell breached the contracts of all
    class members. The common issues were expressed as follows:

A(1)(a) Do the terms of the contracts between
    the defendant and class members require the defendant to wait until after the
    expiry of the prepaid credits before the prepaid credits can be seized?

A(1)(b) Did the defendant breach the terms of
    the contract by seizing prepaid credits before it was entitled to?

[23]

In order for the court to determine the common
    issues, the contract had to be the same for all class members and the answer had
    to be the same for all class members. A common issue cannot be answered by considering
    facts that vary from class member to class member.

[24]

That did not, however, preclude a finding that
    the contracts between the defendant and class members were found in
    documents, in addition to the Terms of Service, that were common to all class
    members, and that contained additional contractual terms. We noted this at paras.
    22-23 and 25 of our reasons:

In my view, in addition to the initial
    agreements, the motion judge was entitled to rely on other documents that
    formed part of the contractual relationship between the parties - the PIN
    receipts and phone cards referred to earlier. These, taken together with the
    agreements made when they subscribed to the service, formed the contract
    between every customer and Bell.
It was appropriate to answer the common
    issue based on these documents and indeed the answer would have been incomplete
    had they not been considered.

There is a difference between considering
    the factual matrix and considering the documents that make up the contract
    itself.
It is not uncommon in modern contracts, including contracts made
    partly on "paper" and partly on the internet, for the contract terms
    to be found in several "documents". And it is well-settled that where
    parties enter into interrelated agreements, the court is required to look to
    all those agreements to determine their construction.

In this case, the agreements were not contemporaneous, but they
    were interrelated. The initial agreement contemplated that customers would top
    up their accounts through Bell's websites, through the purchase of phone cards
    and through the purchase of PIN receipts. These were not simply part of the
    factual matrix - they contained contractual terms themselves. The motion judge
    properly had regard to these documents in order to determine the contract
    terms.
Because these terms were common to all class
    members (albeit in slightly different language depending on the manner of
    top-up), it was appropriate to address the issue as a common issue.
[Emphasis added.]

[25]

To summarize our reasons, Bells Terms of
    Service contemplated that customers like Ms. Sankar, who bought pre-paid
    services, would replenish the funds in their accounts by topping up from time
    to time. If the funds were not topped up, the balance would expire after a
    specified time period or after an expiry date, and any funds remaining in
    the account would be forfeited.

[26]

Bells Terms of Service did not define the
    specified time period or the expiry date. Nor did they set out the cost of
    top-ups, the amount of time that could be purchased or the particulars of the
    expiry date applicable to any given top-up.

[27]

These terms were left to be identified when a
    customer actually
purchased
a top-up. For example,
    one common way of topping up was by purchasing a phone card, or what the
    appellant described as a gift card. The customer who had been using prepaid
    services (and was, therefore, operating under Bells Terms of Service) would go
    into a store, choose a phone card, give it to the cashier and pay the
    appropriate amount of money depending on the number of days of service
    purchased. In return, the customer would receive a paper receipt containing a personal
    identification number, or PIN. The PIN receipt could then be used to top up
    in one of a number of ways, including on the customers phone or through Bells
    website.

[28]

As explained in our reasons, at paras. 14 and
    15, the information on the phone card and the receipt given to the customer,
    contained the details of the contract made by the customer at the time of top-up
     the purchase of a specified amount of phone time on Bells system at a
    specific price and with a specific expiry date.

[29]

The appellant does not complain about the
    accuracy of the expiry date identified when customers purchased their top-ups.
    Her complaint relates to the date communicated to customers by text message at
    some point before their top-ups were to expire.

[30]

The purchase of a prepaid card for valuable
    consideration was an individual contractual transaction that took place under
    the umbrella of the contractual relationship contained in the Terms of Service.
    This transaction was specifically contemplated by the Terms of Service and it
    was consistent with them. The appellant makes no assertion to the contrary.
    While customers could top up their accounts by other means, the methods, and
    the information conveyed at the time of purchase, were similar to what took
    place in a phone card transaction.

[31]

To use the language of
Ledcor
, no
    matter what method the customer used to top up her account, the method of calculating
    the expiry date and the manner in which it was communicated to the customer was
    "the same for everyone. The expiry date so calculated and communicated
    was consistent with the Terms of Service.

[32]

It was impossible for the motion judge to answer
    the breach of contract common issue without examining the terms of the top-up
    transaction. He could not find the answer solely in the Terms of Service and
    neither party suggests otherwise.

[33]

The appellants assertion is that instead of
    considering the documentation and communication that took place at the time of
    top-up, the motion judge should have considered the text messages sent to
    customers before the funds were about to expire. However, the text messages had
    no contractual effect. They were sent long after the top-up was made. If
    individual subscribers were confused by the language of the messages, as the
    appellant claims to have been, they may have a cause of action for
    misrepresentation, but it is unlikely that such a claim could be pursued in a
    class action.

[34]

The same is true of the appellants complaint
    about the expiry date that Bell assigned to the customers account, after the
    top-up was made. The customer may or may not have looked at his or her account
    page where this date was posted, may or may not have been confused and may or
    may not have relied on the date to delay making a further top up. If so, the
    customer might have an action for misrepresentation, but not for breach of
    contract.

[35]

In our view, the motion judge did not err in
    answering the breach of contract common issues as he did.

[36]

We acknowledge that we, and the motion judge,
    may have erred in suggesting that the brochures available in stores, and Bells
    website information, could be considered in determining the terms of the
    contract. Even assuming that such information might be admissible in an
    individual case, it could not possibly be common to all class members. That
    said, it is important to note that the information displayed in these locations
    was consistent with the information contained on the so-called gift cards and
    the PIN receipts and other methods of top-up. In other words, it only confirmed
    the contractual terms that were identified at the time of the top-up.

[37]

The motion judge found that the appellants complaint,
    like the complaints of many other class members, was based on Bells reminder
    messages. These messages were sent to customers shortly before the expiry of
    their active period to remind class members who had not already done so to
    top up before expiry. He said, at para. 4 of his reasons:

Many of the class members complaints were prompted in part by
    the defendant's reminder messages noting the expiration date. If these
    expiration dates were one day longer than what was stated
in the original top-up agreement
, and class members
    reasonably relied on this additional day to their detriment, the appropriate
    remedy would be either a breach of contract claim arguing promissory estoppel
    or an action in
misrepresentation
    both of which would require proof of individual reliance and therefore not
    amenable to a class proceeding. This of course explains why neither remedy was
    alleged by the plaintiff or pursued herein. This class proceeding was certified
    as a straight-forward contractual and statutory interpretation case. I find
    that Bell prevails in both regards. [Emphasis added.]

[38]

He continued, at para. 28:

If any class member misunderstood the
    follow-up expiration date messages as meaning that unused funds would expire
    on Day 31 and would be seized on Day 32, and she relied on said messages to her
    detriment (by not topping up in time and forfeiting the unused balance) and the
    defendant did not grant a courtesy extension, then her remedy, as already
    noted, was two-fold: either a claim in breach of contract arguing promissory
    estoppel or a claim in
misrepresentation.
    But both of these remedies would require proof of individual reliance and
    neither would be amenable to a class proceeding. That is why, as I have already
    noted, neither promissory estoppel nor
misrepresentation
    was alleged by the plaintiff or pursued herein.

[39]

Referring to this observation, at para. 28, this
    court observed:

These communications [the expiration date
    messages] were not part of the factual matrix surrounding the formation of the
    contract. At their highest, they were post-contractual representations.

[40]

To the extent this suggested that the messages
    might have been considered as if they
were
part of
    the factual matrix, it was a mis-statement.

[41]

In any case, we continued, at para. 32:

As the motion judge noted, the appellants
    real complaint, and the real complaint in this class action, is that Bells
    subsequent communications to its customers  made after they had purchased
    their top-ups and as the top-up was about to expire  were misleading. That is
    because they may have created the impression that subscribers had an additional
    day after the end of the active period to "top up" before their funds
    expired. I agree with the motion judge that this was essentially a claim for
    misrepresentation or promissory estoppel, neither of which was before him,
    because neither was held to be amenable to resolution as a common issue in the
    class proceeding.

[42]

In our view, the communications to which the
    appellant refers, be they in the form of reminder messages or expiry dates
    shown on the customers account pages, were of no contractual effect and could
    not have been referred to, either in interpreting the contract or in answering
    the common issues.

D.

Conclusion

[43]

For these reasons, having reconsidered our
    decision in light of
Ledcor
, we affirm our decision.

[44]

The parties may make written submissions as to
    costs. The respondent shall file its submissions within 15 days of the release
    of these reasons and the appellant shall have 10 days within which to reply.
    The submissions shall be limited to three pages, exclusive of costs outlines.

Released: G.R.S.  April 12, 2017

George R. Strathy C.J.O.

H.S. LaForme J.A.

Grant Huscroft J.A.

[1]

The remand order stated:

Pursuant to s.
    43(1.1) of the
Supreme Court Act
, the case forming the basis of the
    application for leave to appeal from the judgment of the Court of Appeal for
    Ontario (Toronto), Number C60176, 2016 ONCA 242, dated April 4, 2016,
    is remanded to the Court of Appeal for Ontario for disposition in accordance
    with
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
    2016 SCC 37.


COURT OF APPEAL FOR ONTARIO

CITATION: Stanbarr Services Limited v. Reichert, 2017 ONCA
    318

DATE: 20170418

DOCKET: C62223

Feldman, Cronk and Miller JJ.A.

BETWEEN

Stanbarr
    Services Limited, Kempston Grove Corp.,

617695
    Ontario Limited & Eddy Goldberg

Plaintiffs (Respondents)

and

Hans Jorg Reichert
& Marianne Reichert

Defendants (Appellant)

Ivan Y. Lavrence, for the appellant

Martin Greenglass, for the respondents

Heard: April 12, 2017

On appeal from the judgment of Justice Francine Van Melle
    of the Superior Court of Justice, dated May 12, 2016.

By the Court:

Introduction

[1]

The appellant, Hans Jorg Reichert, appeals from the judgment of Van
    Melle J. of the Superior Court of Justice dated May 12, 2016 ordering him to
    pay the respondent mortgagees the sum of $1,293,734.54 owing on a private,
    residential mortgage in the amount of $765,000 granted by the appellant to the
    respondents in February 2011 on his matrimonial home, together with costs in
    the amount of $26,000, plus pre-judgment interest.

[2]

The appellant raises two grounds of appeal.  He argues that the trial
    judge erred: i) by failing to grant an adjournment of the trial on May 12,
    2016, requested on that date by the appellants wife, Marianne Reichert; and
    ii) by proceeding to conduct the trial and grant judgment in favour of the
    respondents on May 12, 2016 in the appellants absence, and without continuing
    the trial to permit him an opportunity to attend and lead evidence in defence
    of the respondents action for payment of the mortgage debt.

[3]

The appellant also seeks leave to introduce fresh evidence on this
    appeal, consisting of documentation that he says demonstrates that he had
    relevant evidence to lead at trial in his defence of the mortgage action that
    was capable of yielding a different outcome.

[4]

For the reasons that follow, we conclude that the appeal must be
    dismissed.

Background in Brief

[5]

Default in payment on the second mortgage held by the respondents
    occurred in November 2011.  On April 18, 2013, the respondents obtained partial
    summary judgment for possession of the mortgaged premises.  In granting summary
    judgment, Bielby J. of the Superior Court of Justice rejected the appellants
    claim that he and his wife were merely tenants of the property and that the
    property was legally and beneficially owned by a family trust created by the
    appellant and his wife, rather than the appellant personally.  This court
    dismissed the appellants appeal from Bielby J.s judgment on October 2, 2013:
Reichert
    v. Stanbarr Services Limited
, 2013 ONCA 602.

[6]

Thereafter, a court-appointed receiver sold the mortgaged premises, with
    court approval.  The sale proceeds were insufficient to satisfy either the debt
    owing on a first mortgage on the property or any of the monies owing under the
    second mortgage held by the respondents.

[7]

The respondents action for payment of the mortgage debt was set down
    for trial in Brampton in December 2014, for an estimated six to ten days.  A
    pre-trial was conducted in June 2015 and the action was scheduled for trial
    during the week of February 22, 2016.  The appellant, who was then
    self-represented, was cautioned by the court to retain counsel if he wished to
    do so.

[8]

When a second pre-trial was held on February 22, 2016, the appellant
    sought and was granted an adjournment to afford him further time to retain
    counsel.  The case was marked peremptory to the appellant for trial in May
    2016.

[9]

On April 27, 2016, the appellant sued his former solicitor, who had furnished
    him with independent legal advice on the mortgage transaction with the
    respondents.  The appellant also moved for an order that the negligence action
    and the respondents mortgage action, together with certain other litigation,
    be consolidated or tried together and transferred to Toronto.  The motion did
    not proceed because the requisite confirmation notice had not been filed with
    the court.

[10]

By
    this time, the appellant had retained counsel.  A third pre-trial of the
    mortgage action was held in early May 2016.  On the day of the pre-trial,
    counsel informed the court that his retainer had been terminated.  The
    appellant again sought an adjournment of the trial.  His request was denied by
    the pre-trial judge.

[11]

On
    May 12, 2016, the respondents attended court with counsel and their witnesses
    for commencement of the trial.  Without prior notice to the respondents,
    neither the appellant nor any counsel on his behalf attended court.  Instead,
    the appellants wife appeared and again requested an adjournment of the trial,
    relying particularly on a doctors letter dated May 10, 2016, which stated that
    the appellant had suffered an emotional breakdown after the third pre-trial and
    that he would be unable to attend any court hearings and trials for at least a
    couple of months.  It also emerged that the appellant had failed to pay
    several outstanding costs orders and, according to his wife, had no funds to
    pay them or any costs that might be awarded to the respondents as a term of the
    requested adjournment, if granted.

[12]

After
    hearing submissions, the trial judge declined to grant the adjournment and
    proceeded with the trial in the appellants absence.  It is this discretionary decision
    that the appellant now attacks before this court.

Discussion

[13]

In our view, the trial judge was fully justified in refusing to grant
    the appellant a further adjournment of the trial.  By May 12, 2016, the action
    had been set down for trial for almost 17 months, three pre-trials had been
    conducted, the appellant had been warned of the need to retain counsel on a
    timely basis should he wish to do so, the trial had already once been adjourned
    at the appellants request and a new trial date  peremptory to the appellant
    had been set, the appellant had retained, and terminated, the services of a
    solicitor, and the respondents and their counsel had prepared for trial and
    were ready, willing and able to proceed, together with their witnesses.

[14]

Further,
    the medical evidence proffered by the appellants wife indicated that the
    appellant would be unable to proceed with the trial for months, the appellant
    professed to have no funds to pay the respondents costs thrown away should an
    adjournment be granted, and several previous costs orders against the appellant,
    some in respect of the same litigation, remained unpaid.

[15]

In
    all these circumstances, the granting of a further adjournment would have been
    manifestly unfair to the respondents and contrary to the interests of justice
    and judicial economy.  It was open to the trial judge to deny an adjournment,
    in the exercise of her discretion.  This was her call to make and we see no
    basis for appellate interference with her ruling.

[16]

Nor
    do we accept the appellants assertion that the trial unfairly proceeded in his
    absence.

[17]

Contrary
    to the appellants submission, it appears that the trial judge made no
    direction that, at the conclusion of the respondents evidence, the trial would
    be adjourned until May 16, 2016 for the purpose of allowing the appellant to
    attend trial and call evidence.  Instead, the trial judge offered to adjourn
    the trial for a few days and also invited the appellants wife to remain and
    participate in the trial on behalf of the appellant.

[18]

However,
    the appellants wife refused either accommodation.  As Roberts J.A. of this
    court noted at para. 21 of her reasons on a motion for security for costs in
    this matter, dated October 18, 2016:

Moreover, the trial judges exchanges with Ms. Reichert
    demonstrate that the offer of a few days adjournment was conditional on Ms.
    Reicherts confirmation that the appellant would appear in a few days time.
    When Ms. Reichert declined to remain without agreeing to the offer of a few
    days adjournment, the trial judge stated clearly that the trial would proceed
    in the appellants absence.

[19]

In
    any event, based on the doctors May 10 letter provided to the trial judge by
    the appellants wife, no reasonable expectation could have arisen that the
    appellant would be available for trial by May 16.  Nor did the appellants wife
    suggest to the contrary or that counsel for the appellant would be able to
    attend court on May 16 or that she would herself be prepared to act as the
    appellants agent for the conduct of his defence.  Instead, in effect, an
    adjournment of an unspecified, but lengthy, duration was sought.

[20]

Moreover,
    and importantly, the record does not support the appellants claim that he was
    denied procedural fairness because the trial judge denied his adjournment
    request without fully hearing from the parties.  The trial judge heard
    submissions from the parties  including from the appellants wife  before
    ruling on the request.

[21]

Finally,
    we are not persuaded that the fresh evidence sought to be tendered on appeal by
    the appellant, if admitted at trial, would have yielded a different outcome.

[22]

The
    appellant sought to defend the mortgage action solely on the basis that a
    family trust, rather than the appellant, was the legal and beneficial owner of
    the mortgaged property and liable for the mortgage debt.  This claim was
    unequivocally rejected by Bielby J. when he granted judgment to the respondents
    for possession of the property.  It is also unsupported by the mortgage itself,
    including the standard charge terms containing the appellants covenant to pay,
    the certificate of independent legal advice furnished by the appellants
    solicitor in relation to the mortgage transaction, the mortgage commitment
    letter, and various other documents related to the mortgage loan.  In any
    event, in documents filed with the court by the appellant on a summary judgment
    motion in his solicitors negligence action, the appellant expressly
    acknowledged that he, rather than the trust, was the legal owner of the
    mortgaged property and that the relevant mortgage documents contained his
    personal covenant to repay the mortgage loan.  He has therefore now essentially
    admitted that the defence sought to be advanced by him in the mortgage action
    is factually and legally unsupportable.

[23]

For
    all these reasons, the appellants proposed defence of the action and this
    appeal are devoid of merit.

Disposition

[24]

The
    appellants application for leave to admit fresh evidence on appeal and the
    appeal are both dismissed.  The respondents are entitled to their costs of the
    appeal, fixed in the amount of $15,000, inclusive of disbursements and all
    applicable taxes.

[25]

The
    sum of $10,000 is currently held in court as security for the costs of this
    appeal. These funds shall be paid out of court to the respondents solicitors,
    in trust, in partial satisfaction of the costs of the appeal now awarded to the
    respondents, upon request therefor in proper form filed by the respondents.

K. Feldman J.A.

E.A. Cronk J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wallace (Re), 2017 ONCA 342

DATE: 20170428

DOCKET: C61514

Blair, Lauwers and Hourigan JJ.A.

In the Matter of the Bankruptcy of Alma Maria Wallace (aka
    Alma Maria Belacic) of the City of Toronto, in the Province of Ontario

Sean N. Zeitz, for the appellant, Brief & Associates
    Inc.

Chris Dockrill, for the respondent, Alma Maria Wallace

Heard and released orally: April 21, 2017

On appeal from the order of Justice Barbara A. Conway of
    the Superior Court of Justice, dated November 17, 2015.

ENDORSEMENT

[1]

The Bankrupt,

Alma
    Maria Wallace (aka Alma Maria Belacic),
was required by order
    of Pattillo J. dated April 8, 2015 to execute a power of attorney with respect
    to her interest in a property in Croatia, which would enable the Trustee in Bankruptcy,
    Brief & Associates Inc., to complete a sale of the property. The Bankrupt
    did not appeal or seek a variation of that order and it remains in effect.

[2]

The Bankrupt has refused to execute the power of
    attorney. While there was some dispute over the form the power of attorney
    should take, the Bankrupt made it clear in the contempt proceeding before
    Conway J., which is the subject of this appeal, that she would not sign any
    power of attorney.

[3]

Instead of determining whether the Bankrupt was
    in contempt, because doing so would serve no practical purpose, the bankruptcy
    judge made an order granting the Trustee authority to sign the power of
    attorney on behalf of the Bankrupt in the form tendered by the Trustee, with
    one change: she redacted the last sentence that would have enabled the Trustee
    to assign its powers to a third party in Croatia. She ordered, nonetheless,
    that if it became necessary to transfer the power of attorney to Croatian
    counsel to facilitate the sale process, the Trustee could return to court to
    seek that relief.

[4]

The Trustee appeals, not with respect to the
    main substance of the order, but with respect to the motion judges refusal to
    make a finding of contempt and with respect to the redaction of the last
    sentence of the power of attorney. The Trustee seeks the Bankrupts
    incarceration for contempt.

[5]

The Trustee argues the bankruptcy judge erred by
    failing to find the Bankrupt in contempt and impose a penalty on the Bankrupt. The
    record might well justify a contempt finding, as the bankruptcy judge
    recognized. Instead of making that finding and imposing a penalty, the
    bankruptcy judge made an order providing the Trustee with a power of attorney
    that did not require the Bankrupts approval. The Trustee argues the bankruptcy
    judge erred in considering that a contempt order would lack utility.

[6]

We do not see any basis for interfering with the
    bankruptcy judges decision. In our view, she made an order in relation to the
    power of attorney that on the record matched the Trustees request for an effective
    power of attorney. There is no evidence before the court that the power of
    attorney with the judges redaction is insufficient to accomplish its goal of
    permitting the Trustee to realize the bankrupts Croatian assets.

[7]

We do not condone the Bankrupts conduct and
    emphasize to her that the failure to obey a court order is serious misconduct
    not to be continued. However, even if circumstances are such as to meet the
    three-stage test for contempt as set out in such authorities as
Prescott-Russell
    Services for Children and Adults v. G. (N.)
(2006), 82
    O.R. (3d) 686 (C.A.), courts have long recognized the need to exercise caution
    prior to making a contempt order and, as counsel for the Trustee admits, making
    such an order is discretionary. The motion judge made a discretionary decision
    carving out instead an order that met the practical needs of the situation. We
    see no error in her doing so.

[8]

The appeal is dismissed. We do not think this is an appropriate case for
    costs. There will be no order as to costs.

R.A. Blair J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD
    AND FAMILY SERVICES ACT

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

45(7)  The court may make an order,

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: A.B.S. v. S.A.S., 2017 ONCA 382

DATE: 20170510

DOCKET: C61765

Sharpe, Lauwers and Hourigan JJ.A.

BETWEEN

A.B.S.

Appellant

and

S.A.S

Respondent

A.B.S., acting in person

Jennifer P. Ryan for the respondent

Heard: February 27, 2017

On appeal from the order of Justice J. Patrick Moore of
    the Superior Court of Justice, dated January 27, 2016.

ENDORSEMENT

[1]

We see no error on the part of the trial judge in awarding sole custody
    to the mother with access to the father.

[2]

The trial judge gave thorough reasons explaining why he accepted the
    evidence indicating that it was in the best interest of this child to award
    sole custody to the mother. That finding is entitled to deference on appeal.

[3]

The father did not seek joint custody at trial and there is no basis
    upon which we could impose that order now. The conflict between these parties
    and their inability to communicate regarding this child was evident to the OCL,
    the CAS and the trial judge and joint custody was not a viable option.

[4]

As for support, it was open to the trial judge to impute minimum wage as
    income, and we are not persuaded that there was any legal error or
    misapprehension of the evidence that would permit us to interfere. Spousal
    support was time limited. Nor did the trial judge error in rejecting a deduction
    for business expenses from the appellants employment income. Finally, in our
    view, the section 7 expenses were reasonable.

[5]

Appeal dismissed.

[6]

Costs to the respondent fixed at $3,584.86.


COURT OF APPEAL FOR ONTARIO

CITATION: Airex Inc. v. Ben Air System Inc., 2017 ONCA 390

DATE: 20170516

DOCKET: C60178

Simmons, Rouleau, and Roberts JJ.A.

BETWEEN

Airex Inc.

Plaintiff (Respondent)

and

Ben Air System Inc. also known as Ben-Air Systems
    Inc.,
Beny Quattrociocchi and Juan Cumming

Defendants (Appellants)

Colin Holland, for the appellants

John Lo Faso and David Morawetz, for the respondent

Heard: May 1, 2017

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated February 20, 2015.

By the Court:

[1]

The appellants appeal from a summary judgment
    declaring them in breach of the trust provisions of the
Construction
    Lien Act
, R.S.O. 1990, c. C.30 (the Act) and ordering
    them to jointly and severally pay $216,662.84 to the respondent, Airex Inc.
    (Airex).

[2]

The corporate appellant, Ben Air System Inc.
    (Ben Air) entered into a subcontract with Omico Mechanical Ltd. (Omico) to
    do a portion of Omicos HVAC work on a TTC facility (the project). Ben Air
    subsequently ordered certain HVAC equipment for the project from Airex.

[3]

The appellant, Beny Quattrociocchi, is the
    president of Ben Air; the appellant, Juan Cumming, is the project manager of
    Ben Air. There was no dispute on the motion that Mr. Quattrociocchi signed a
    guarantee in favour of Airex, guaranteeing Ben Airs present and future
    indebtedness to Airex.

[4]

Further, subject to one issue regarding a
    claimed set-off and an argument concerning mitigation, there was no issue on
    the motion that Ben Air owes Airex monies on account of HVAC equipment for the
    project. There was also no issue that Omico paid $387,228.32 plus HST to Ben
    Air on account of Ben Airs subcontract and that those funds are trust funds in
    relation to the project under s. 8 of the Act.

[5]

The main issue on appeal is whether the motion
    judge erred in failing to find a genuine issue requiring a trial concerning
    whether Ben Air breached s. 8 of the Act.

[6]

Section 8 of the Act provides that monies
    received on account of a contract for an improvement constitute a trust fund
    for the benefit of subcontractors and other persons who supply services or
    material for the improvement (collectively subcontractors) and prohibits use
    of any such funds for a purpose inconsistent with the trust until all such
    persons have been paid in full. (All sections of the Act referred to in these
    reasons are reproduced in full in Appendix A.)

[7]

Section 10 of the Act discharges the recipient
    of trust funds from its trust obligations to the extent of payments to
    subcontractors. Section 11 of the Act permits the recipient of trust funds to
    reimburse itself from the trust funds for payments to subcontractors from
    monies not subject to the trust.

[8]

Section 13 of the Act makes directors, officers
    and persons in effective control of a corporation personally liable for a
    breach of s. 8 where they assent to or acquiesce in conduct they know, or ought
    reasonably to know amounts to a breach of trust by the corporation.

[9]

On appeal, the appellants argue that they filed
    evidence on the motion, which, at a minimum, raises an issue that Ben Air paid
    out more money on account of equipment purchases, payments to sub-contractors
    and wages and salaries for the project than it received from Omico, including
    payments made to itself from trust funds to reimburse itself for payments made
    in relation to the project. Relying on ss. 10 and 11 of the Act, the appellants
    submit that the motion judge erred in failing to find a genuine issue requiring
    a trial concerning whether Ben Air breached s. 8 and whether the personal appellants
    are liable for that breach.

[10]

We do not accept this submission. Simply put,
    Ben Air failed to file evidence on the motion that carried sufficient weight to
    support its position.

[11]

For example, in an affidavit filed on the
    motion, Mr. Cumming asserted that Ben Air used a cheque received from Omico in
    the amount of $158,000 to pay invoices from other project subcontractors
    (Servocraft Limited and Engineered Air), which had been outstanding longer than
    Airexs invoices. However, Mr. Cumming did not provide any invoices or banking
    records to support this assertion. Moreover, we note that, in a letter confirming
    payment of the $158,000, Omico stated it had agreed to forward the cheque in
    part payment of an amount allocated to goods supplied by Airex.

[12]

Mr. Quattrociocchi also filed an affidavit on
    the motion to which he attached Ben Airs Profit and Loss sheet for the project
    and various supporting documents. In his affidavit, he asserted that the Profit
    and Loss sheet demonstrated that Ben Air received $387,228.32 plus HST from
    Omico in relation to the project and that Ben Air expended $399,823.53 plus HST
    to cover equipment purchases, wages and salaries, and payments to
    subcontractors, leaving Ben Air with a deficit on the project.

[13]

In contrast to Mr. Cummings evidence, the
    Profit and Loss statement appended to Mr. Quattrociocchis affidavit suggested
    Servocraft Limited and Engineered Air had been paid prior to the receipt of the
    $158,000 cheque from Omico. And the supporting documents attached to Mr.
    Quattrociocchis affidavit were rife with shortcomings: in relation to several
    payments alleged to have been made in relation to the project, there were no
    supporting invoices and no other evidence to support the claim that the
    payments were made in relation to the project; in other instances there were no
    documents to support the assertion that monies claimed to have been billed in
    relation to the project had in fact been paid; in one instance, a cheque for $305,100
    payable to Engineered Air, there was an unexplained stamp on the back of the cheque
    that included the words dishonoured items returned to Bank of Montreal.

[14]

It is also noteworthy that neither Mr. Cummings
    affidavit nor Mr. Quattrociocchis affidavit was delivered in compliance with
    the timetable established for the motion. Mr. Cummings affidavit was one day
    late. Mr. Quattrociocchis affidavit was seven weeks late and was delivered
    only ten days prior to the motion hearing date. In these circumstances, the
    appellants are not entitled to rely on any adverse inferences that might
    otherwise be drawn from a failure to cross-examine.

[15]

We acknowledge that it was Airexs role to
    demonstrate no genuine issue requiring a trial.

[16]

However, once Airex demonstrated the following
    matters (which were never really in dispute), Airex had established that it was
    the beneficiary of trust monies under s. 8(1) of the Act:

·

it was a sub-contractor on the project;

·

it supplied materials to Ben Air, a contractor
    on the project, for which it (Airex) had not been paid; and

·

Ben Air had received payments on account of the
    project from Omico, another contractor on the project.

[17]

It was then for Ben Air to show that the trust monies
    had been properly applied:
St. Marys Cement Corp. v. Construc Ltd.
(1997), 32 O.R. (3d) 595 (Gen. Div.) at pp. 600-601;
Sunview
    Doors Ltd. v. Academy Doors & Windows Ltd
.
, 2010 ONCA 198, 101 O.R. 3d 285, at paras. 83-84. Moreover, the
    appellants were required to put their best foot forward on the summary judgment
    motion:
Canada (Attorney General) v. Lameman
,
    2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11, citing
Transamerica
    Life Insurance Co. of Canada v. Canada Life Assurance Co
.
(1996), 28
    O.R. (3d) 423 (Gen. Div.), at p. 434, affd [1997] O.J. No. 3754 (C.A.);
Goudie
    v. Ottawa (City)
,

2003 SCC 14,
[2003] 1 S.C.R. 141, at para. 32;
Chernet v.
    RBC General Insurance Company
2017 ONCA 337, at para. 12
. Viewed
    as a whole, the evidence the appellants filed was contradictory and lacked
    documentary support. It certainly did not carry sufficient weight to support
    their assertions that they had paid out more money than they received in
    relation to the contract  or even that payments they had made on the contract
    left them without sufficient trust funds to pay Airex.

[18]

As for the claimed set-off, the respondent produced
    documents indicating it complied with the contract at issue. The appellants did
    not produce documents to demonstrate otherwise.  We see no basis on which to
    interfere with the motion judges decision that there was no genuine issue
    requiring a trial concerning the set-off.

[19]

The appellants submitted no authority to
    support their argument that Airex was under a duty to mitigate by filing a
    lien. We agree with the motion judges conclusion that its failure to do so is
    not in any way a failure to mitigate its losses.

[20]

We would not grant leave to appeal costs.

[21]

The appeal is therefore dismissed with costs to
    Airex fixed in the agreed upon amount of $13,500 inclusive of disbursements and
    HST.

Released:

MAY 15 2017                                    Janet
    Simmons J.A.

PR                                                     Paul
    Rouleau J.A.

L.B.
    Roberts J.A.

Appendix A

Construction Lien Act
, R.S.O. 1990, c. C.30

Contractors
    and subcontractors trust

Amounts
    received a trust

8.
(1)  All amounts,

(a) owing to a contractor or subcontractor, whether or not
    due or payable; or

(b) received by a contractor or subcontractor,

on
    account of the contract or subcontract price of an improvement constitute a
    trust fund for the benefit of the subcontractors and other persons who have
    supplied services or materials to the improvement who are owed amounts by the
    contractor or subcontractor. R.S.O. 1990, c. C.30, s. 8 (1).

Obligations
    as trustee

(2)
    The contractor or subcontractor is the trustee of the trust fund created by
    subsection (1) and the contractor or subcontractor shall not appropriate or
    convert any part of the fund to the contractors or subcontractors own use or
    to any use inconsistent with the trust until all subcontractors and other
    persons who supply services or materials to the improvement are paid all
    amounts related to the improvement owed to them by the contractor or
    subcontractor. R.S.O. 1990, c. C.30, s. 8 (2).

Payment
    discharging trust

10.
Subject to Part IV (holdbacks), every payment by a trustee to a person the
    trustee is liable to pay for services or materials supplied to the improvement
    discharges the trust of the trustee making the payment and the trustees
    obligations and liability as trustee to all beneficiaries of the trust to the
    extent of the payment made by the trustee. R.S.O. 1990, c. C.30, s. 10.

Where
    trust funds may be reduced

11.
(1)  Subject to Part IV, a trustee who pays in whole or in part for the
    supply of services or materials to an improvement out of money that is not
    subject to a trust under this Part may retain from trust funds an amount equal
    to that paid by the trustee without being in breach of the trust. R.S.O. 1990,
    c. C.30, s. 11 (1).

Liability
    for breach of trust

By
    corporation

13.
(1)  In addition to the persons who are otherwise liable in an action for
    breach of trust under this Part,

(a) every director or officer of a corporation; and

(b) any person, including an employee or agent of the
    corporation, who has effective control of a corporation or its relevant
    activities,

who
    assents to, or acquiesces in, conduct that he or she knows or reasonably ought
    to know amounts to breach of trust by the corporation is liable for the breach
    of trust. R.S.O. 1990, c. C.30, s. 13 (1).

Effective
    control of corporation

(2)
    The question of whether a person has effective control of a corporation or its
    relevant activities is one of fact and in determining this the court may
    disregard the form of any transaction and the separate corporate existence of
    any participant. R.S.O. 1990, c. C.30, s. 13 (2).

Joint
    and several liability

(3)
    Where more than one person is found liable or has admitted liability for a
    particular breach of trust under this Part, those persons are jointly and
    severally liable. R.S.O. 1990, c. C.30, s. 13 (3).

Contribution

(4)
    A person who is found liable, or who has admitted liability, for a particular
    breach of a trust under this Part is entitled to recover contribution from any
    other person also liable for the breach in such amount as will result in equal
    contribution by all parties liable for the breach unless the court considers
    such apportionment would not be fair and, in that case, the court may direct
    such contribution or indemnity as the court considers appropriate in the
    circumstances. R.S.O. 1990, c. C.30, s. 13 (4).