COURT OF APPEAL FOR ONTARIO

CITATION:  Simmonds v. Simmonds, 2013 ONCA 479

DATE: 20130716

DOCKET: C56555

Hoy A.C.J.O., Feldman and Simmons JJ.A.

BETWEEN

Garfield Simmonds

Applicant (Appellant)

and

Michelle Simmonds

Respondent (Respondent in Appeal)

Peter M. Callahan, for the appellant

Orlando da Silva Santos, for the respondent

Heard and released orally: July 5, 2013

On appeal from the order of Justice E. Ria Tzimas of the
    Superior Court of Justice, dated January 22, 2013.

ENDORSEMENT

[1]

The appellant appeals the January 22, 2013 order of the motion judge
    dismissing his motion for a finding that the respondent was in contempt of
    court because she had failed to comply with the August 3, 2012 order of Mossip
    J. requiring her to provide specified disclosure in respect of her income loss
    claim arising from the motor vehicle accident that occurred in 2004.

[2]

The motion judge reviewed the materials that had been provided and found
    that the respondent had complied with the order of Mossip J. and provided all
    relevant disclosure.

[3]

The appellant relies on
Pimiskern v. Brophey
,
2013 O.J. No. 505 to argue that an
    order dismissing a motion for contempt is a final order.

[4]

The respondent concedes that an order finding contempt is a final order
    but argues that because the motion judge dismissed the motion for contempt, the
    motion judges order is interlocutory and not binding on the trial judge, and
    that an appeal accordingly does not lie to this court.

[5]

We agree with the respondent and reject the conclusion reached in
Pimiskern
.

[6]

This appeal is accordingly dismissed for lack of jurisdiction.  Costs
    are fixed in the amount of $3,500 all inclusive.

Alexandra
    Hoy A.C.J.O.

K.
    Feldman J.A.

Janet
    Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Smith
    (Re), 2013 ONCA 458

DATE: 20130704

DOCKET: C56607

MacPherson, Rouleau and Lauwers JJ.A.

IN THE MATTER OF: SHIRLEY SMITH

AN APPEAL UNDER PART XX.1 OF THE
CODE

Shirley Smith, in person

Anita Szigeti,
Amicus Curiae

Philippe G. Cowle, for the Attorney General of Ontario

Janice E. Blackburn, for the Person in Charge of the
    Centre for Addiction and Mental Health

Heard and released orally: July 3, 2013

On appeal against the disposition of the Ontario Review
    Board dated September 21, 2012.

ENDORSEMENT

[1]

The appellant appeals from the disposition of the Ontario Review Board
    dated September 21, 2012, whereby the Board ordered that the appellant be
    detained in a secure forensic unit at the Centre for Addiction and Mental
    Health (the Hospital), subject to her transfer to a general forensic unit, in
    the discretion of the person in charge of the Hospital, if her condition
    clinically improves to the extent of justifying such a transfer.

[2]

Amicus
challenges the Boards hybrid order on the grounds that
    it is unreasonable and that the Board failed to make the least onerous and
    least restrictive disposition available.  In particular,
Amicus
argues
    that the Board erred (1) by failing to include in its disposition order a term
    permitting the appellant to reside in the community, as the Board had ordered
    in the past; (2) by failing to consider the requirements of s. 672.54 of the
Criminal
    Code
in any meaningful way; and (3) by failing to have regard to the
    appellants liberty interests.

[3]

We are not persuaded that the Boards disposition is unreasonable or
    that the Board erred in the ways asserted by
Amicus
.

[4]

The appellant suffers from bipolar disorder, historical cocaine abuse
    and personality disorder NOS (Cluster B, severe).  As the Board noted, her
    treatment course has been complicated by her non-compliance with outpatient
    care and medication.

[5]

It was common ground at the review hearing that the appellant continues
    to pose a significant risk to the safety of the public.  The evidence before
    the Board established that in the months and weeks before the review hearing,
    the appellant experienced frequent, rapid and unpredictable declines into
    aggressive, manic behaviour, rendering her a threat to the public while in the
    community.  During her episodes of acute mania, she became psychotic and
    behaved in impulsive, aggressive and sometimes violent ways.

[6]

While the appellant had been able to maintain some stability while
    living in the community in the past, her condition had recently declined to the
    extent that her treatment team no longer regarded community living as
    appropriate, then or for the foreseeable future.  The appellants treating
    psychiatrist since her March 2012 readmission to Hospital testified before the
    Board that the appellant required a period of stability for several months
    before she could be transferred to a general secure unit at the Hospital.
    Further, in his opinion, it was highly unlikely that she would be well enough
    to live in the community in the coming year.

[7]

It was on the basis of this evidence that the Board concluded that a
    condition permitting community living in the coming year was inappropriate.  On
    this record, the Boards disposition was reasonable and well within the realm
    of its expertise.

[8]

We are also not persuaded that the Board failed to consider the
    mandatory requirements of s. 672.54 of the
Code
or the appellants
    liberty interests.

[9]

The Boards reasons indicate that it was cognizant of the requirements
    of s. 672.54 of the
Code
and the need to fashion the least onerous and
    restrictive disposition possible in light of the appellants changed
    circumstances.  The Boards hybrid order was fashioned specifically to allow
    for the appellants eventual reintegration into the community by a transfer to
    a new general forensic unit at the Hospital as soon as her clinical condition
    had sufficiently improved to permit this transfer (such a transfer in fact took
    place six months ago).  By so ordering, the Board expressly considered both the
    liberty interests of the appellant and the least onerous and restrictive
    disposition possible in light of the appellants recent and serious
    decompensation.

[10]

Finally,
    we want to record that we were impressed with Ms. Smiths oral submissions at
    the hearing today.  It is obvious that she is making real progress which will
    be highly relevant at her next review hearing scheduled for October 23, 2013.

[11]

The
    appeal is dismissed.

J.C. MacPherson J.A.

Paul Rouleau J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sferruzzi v. Allan, 2013 ONCA 496

DATE: 20130723

DOCKET: C57228

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Anthony Sferruzzi

Appellant

and

Jennifer Lorraine Allan

Respondent

Anthony Sferruzzi, in person

Jennifer Lorraine Allan, in person

Heard: July 16, 2013

On appeal from the judgment of Justice R.B. Reid of the
    Superior Court of Justice, dated June 14, 2013.

Gillese J.A.:

OVERVIEW

[1]

Anthony Sferruzzi and Jennifer Allan were married in May 2002.  Their
    son Mason was born on November 23, 2006.  Ms. Allans child from a previous
    relationship, Jasmine (born in 1995), lived with them as a child of the
    marriage.

[2]

In 2008, when Mason was approximately 16 months old, he was diagnosed
    with autism.  He has significant special needs.

[3]

Mr. Sferruzzi is an Assistant Crown Attorney.  He has regular work hours
    from Monday to Friday, but works overtime as needed for case preparation.  Ms.
    Allan is currently a senior support provider with an organization that provides
    residential care to adults with special needs.

[4]

Mr. Sferruzzi and Ms. Allan separated in 2009.  They agreed that Mr.
    Sferruzzi would have sole custody of Mason and Ms. Allan would have sole
    custody of Jasmine.  Those custody arrangements have continued throughout,
    without contest.  Both parties live in Waterloo.  Ms. Allan has regular access
    with Mason.

[5]

Mr. Sferruzzi has been in a committed relationship with Robin Packer for
    just over four years.  Together, they have a three-year old son, Nicholas.  Ms.
    Packer also has two teenage children from a previous relationship.

[6]

Mr. Sferruzzi wishes to move to Pickering so that Mason and Nicholas can
    grow up with one another and so that he, Ms. Packer and their children can live
    together as a family.  He is confident that this will be in Masons best
    interests.

[7]

A court order precludes Mr. Sferruzzi from moving Mason from the
    Waterloo region without Ms. Allans consent.

[8]

Mr. Sferruzzi brought a motion to vary the court order so that he could relocate
    to Pickering with Mason.

[9]

Ms. Allan opposed the motion.  She was concerned about the reduced
    frequency of contact that she would have with Mason, and about the disruption
    in Masons relationships with members of her family and his treatment
    providers.  She was also concerned about the expenses associated with access
    travel and the difficulties involved in Mason being in a car for lengthy
    periods while travelling for access visits.

[10]

The
    motion judge found that the proposed relocation to Pickering was a material
    change in circumstances for Mason, with the result that he was empowered to make
    a variation order under s. 17(5) of the
Divorce Act
, R.S.C. 1985, c. 3
    (2nd Supp.).  However, he concluded that the proposed relocation was not in
    Masons best interests.  By order dated June 14, 2013 (the Order), he
    dismissed the motion.

[11]

Mr.
    Sferruzzi appeals.

[12]

At
    the motion and on appeal, both parties were self-represented.

[13]

For
    the reasons that follow, I would allow Mr. Sferruzzis appeal and grant the
    motion.

BACKGROUND

(1)

Masons
    Needs

[14]

Mason
    requires specialized and extensive treatment.  He does not learn at the pace of
    other children his age, nor does he have the same level of social and
    environmental engagement.  He sleeps poorly, and engages in self-stimulatory
    behaviours such as hitting himself.  He is aggressive with others, sometimes pinching
    or biting his caregivers and those around him.  Historically, he had no
    interest in other people or children.  His condition makes it nearly impossible
    for him to be left alone.  He requires constant care.

[15]

Mason
    receives daily treatment known as intensive behavioural intervention (IBI)
    therapy.  IBI therapy is based on Masons specific needs and helps him to stay engaged,
    thus connected to his real environment.

[16]

In
    the mornings, Mason attends school from 8:00 a.m. to 1:00 p.m.  However, he
    spends only about fifteen minutes each day in a regular classroom. The rest of
    the time, he is in a separate room receiving one-on-one support.  In the
    afternoons from 1:00 p.m. to 5:00 p.m., Mason works with his therapist in Mr.
    Sferruzzis home.

[17]

Over
    time, Mason has made some progress.  He now formulates basic sentences, makes
    eye contact more frequently, plays functionally with toys, and wishes to play
    with other children.

(2)

The
    Current Access Arrangement

[18]

In
    Ms. Allans current job, she works on Sunday from 2:00 p.m. to 9:00 p.m.,
    Monday through Wednesday from 12:00 p.m. to 9:00 p.m., and Thursday from 9:00
    a.m. to 3:00 p.m.  Since she began her current job in March 2011, Ms. Allan has
    had access on a weekly, alternating basis.

[19]

One
    week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to Friday morning
    before school, and then again after therapy on Friday from 5:00 p.m. to 7:30
    p.m.  The next week, Mason is with Ms. Allan from 5:00 p.m. on Thursday to
    Friday morning before school, and then again after therapy on Friday through to
    Sunday at 12:30 p.m.

(3)

Masons
    Care and Treatment

[20]

Both
    parents enjoy a loving and meaningful relationship with Mason.  Before the
    motion judge, Ms. Allan described Masons close bond with herself, Jasmine, and
    Ms. Allans friends and family.  Ms. Allan often takes Mason to visit her
    extended family in London and St. Thomas. Masons former therapist attested to
    Ms. Allans support of his treatment.  Although Mr. Sferruzzi calls into
    question Ms. Allans commitment to Masons therapy, the motion judge found that
    [t]here was no evidence of significant resistance or lack of cooperation on
    the part of [Ms. Allan] to Masons current therapy regime.

[21]

Mr.
    Sferruzzi plays a much larger role than Ms. Allan in Masons treatment and
    care.  He is Masons sole caretaker the vast majority of the time.  He
    participates in and monitors Masons therapy and progress, and tracks Masons
    medication.  As the motion judge found:

[T]he evidence is clear [Mr. Sferruzzi] has been highly
    focussed on Mason and his special needs both before and after the separation.
    He obviously has a strong commitment to Masons case and to ensuring that Mason
    achieves his maximum potential. The IBI therapy regime has been supported by [Mr.
    Sferruzzi] in his own interaction with Mason and in the financial commitment
    that it requires.
There is no suggestion by
    [Ms. Allan] that custody should change and no evidence supports that conclusion
.

[22]

Mr.
    Sferruzzi also now bears the full financial burden of Masons IBI therapy
    regime, albeit with some minor relief by means of set off against the child
    support he pays for Jasmine.  In March 2013, the limited public funding for
    Masons IBI therapy expired.  The financial support received for Masons treatment
    at school will end in the fall of 2013.  Although Mr. Sferruzzi has held
    fundraising events to assist with funding Masons therapy, he doubts his
    ability to continue to pay $2,500 to $3,000 per month for that therapy while
    maintaining his own separate household.

(4)

Background
    on the Proposed Relocation

[23]

Ms.
    Packer is a registered nurse who works for Central East Community Care Access
    Centre and resides in Pickering.  Mr. Sferruzzi knew Ms. Packer when they were
    both children.  They reconnected as adults, initially as friends, and then in
    an intimate relationship after he and Ms. Allan separated.

[24]

Ms.
    Packer spends time with Mason at least once per month but also on some
    weekends, long weekends and special occasions.  She facilitates play between
    Mason and Nicholas.  She is well aware of Masons needs.  Her employment is
    sufficiently flexible that she will be available to respond to assist with the
    needs of Mason and Nicholas during her working hours.

[25]

Having
    sole custody of Mason has taken a toll on Mr. Sferruzzi.  Because Mason must be
    engaged and supervised at all times, household chores must be done after Mason goes
    to bed.  So, too, must any of his work obligations that carry over from the
    regular work day.  Mr. Sferruzzi describes himself as exhausted, at times
    falling asleep at the dinner table.  He has installed special locks on the
    doors in his home to ensure that Mason cannot leave the house if he falls
    asleep accidentally.

[26]

Notably,
    because of the stress from caring alone for Mason and the exhaustion due to long-term
    loss of sleep, Mr. Sferruzzi has had to take three stress leaves from his job.
    He also suffered a significant depression in the summer of 2012.

[27]

Mr.
    Sferruzzis depression contributed to a break in his relationship with Ms. Packer
    in late September 2012.  It was an amicable break up and the two continued to
    see one another as friends.  After being prescribed medication and attending
    counselling, his depression lifted, and he and Ms. Packer were fully reconciled
    by late January or early February 2013.

[28]

Significantly,
    Mason has developed a relationship with his brother, Nicholas.  Mason sees
    Nicholas a day or two per month, on average.  Both Mr. Sferruzzi and Ms. Packer
    describe the two boys playing and being affectionate with each other.  Ms.
    Packer reports that she recently saw Mason comfort Nicholas when he was upset,
    by hugging him and kissing him on the head.  Mason will seek Nicholas out and
    has taken some responsibility for him.

[29]

Mr.
    Sferruzzi obtained a contract position with the Durham Crown Attorneys office
    in May 2013.  The Durham Office held the position for him, pending the outcome
    of the motion below.  When the motion failed, he was forced to give up the job
    offer.  However, he has been assured that he remains competitive and it seems
    likely that he will be able to get a contract position there.

(5)

The
    Proposed Relocation

[30]

Mr.
    Sferruzzi submits that the move to Pickering would benefit Mason in a number of
    ways.  By virtue of sharing a family and a home, Mr. Sferruzzi and Ms. Packer
    will be able to provide one another with greater emotional, financial, and
    logistical support.  Mr. Sferruzzi anticipates that such an arrangement will
    improve his physical and mental health, and make him a better parent to Mason.

[31]

Mr.
    Sferruzzi also argues that Mason will benefit from daily contact with his
    brother Nicholas, with whom he shares a special bond.  Despite the age
    difference between the brothers, they are at approximately the same stage of
    development.  Mr. Sferruzzi submits that spending time with Nicholas will help
    Mason to acquire new skills and practice existing ones.  It will also enable
    Mason to develop a meaningful relationship with a sibling and a peer.

[32]

Mr.
    Sferruzzi has proposed a number of measures to make the relocation, if
    permitted, as easy as possible for Mason.  For example, Mr. Sferruzzi plans to
    initially maintain his own residence with Mason in Pickering.  Only after Mason
    has settled into his new school and therapy program will Ms. Packer, Nicholas, and
    her other children join the household.  Mr. Sferruzzi has also arranged for a
    new clinical supervisor to oversee Masons IBI therapy in Durham, and has coordinated
    with Masons current supervisor to ensure continuity in Masons treatment.
    Masons daily schedule in Durham will be the same as his current schedule: he will
    attend school in the mornings, and work with his therapist at home in the
    afternoons.

[33]

Mr.
    Sferruzzi also remains committed to facilitating Ms. Allans access. He
    proposes that Ms. Allan have access every other weekend from Thursday at 5:00
    p.m. to 12:30 p.m. on Sunday.

[34]

Ms.
    Allan reiterated her concerns about the impact that the move would have on
    Mason: the reduced frequency with which she would see him, a disruption in
    Masons time with members of her family and his treatment providers, the
    challenges for Mason having to travel from Pickering to Waterloo for access
    visits, and the expense associated with access travel.  Ms. Allan was also
    concerned about Mason missing school and therapy every second Friday on the
    proposed access plan.

[35]

When
    asked by the court, Ms. Allan indicated that she did not have an alternate
    access proposal, should the move be allowed.

[36]

Before
    the motion judge, Mr. Sferruzzi offered to contribute to additional expenses Ms.
    Allan may incur as a result of the relocation. For example, he offered to
    subsidize Ms. Allans fuel costs.  This offer was renewed on appeal.

[37]

Finally,
    Mr. Sferruzzi has received assurances from a number of Ms. Allens friends and
    family members that Masons relationships with them will continue as before, if
    Mason moves to Pickering.  Mr. Sferruzzi has undertaken to facilitate such
    access.

THE FRESH EVIDENCE APPLICATION

[38]

Mr.
    Sferruzzi sought to introduce fresh evidence on appeal, the most significant
    aspects of which are as follows.

[39]

First,
    after mid-June of this year, Masons primary one-on-one worker in Waterloo will
    no longer work at his school.  The workers back-up staff do not know if they will
    be returning.  Further, he will have a new classroom teacher if he remains at
    the same school.  Therefore, come the fall, Mason will have a new support
    worker, along with a new classroom teacher, whether or not he remains in
    Waterloo.

[40]

Second,
    if permitted to relocate, Mr. Sferruzzi has found a school for Mason in
    Pickering that has similar resources (workers, educational assistants, speech
    pathologists, occupational therapist) and occupational equipment as his current
    school.  This includes a quiet work room, which is the same as the classroom
    in which Mason spent most of his time at his current school with his worker.
    He and Ms. Packer have already met with the principal to begin to formulate a
    transition plan for Mason in the event that his appeal is allowed.  The
    principal has agreed that Mason would be put into the class with the teacher
    having the most experience with students with needs similar to those of Mason.

[41]

Third,
    as noted earlier, after the dismissal of his motion, Mr. Sferruzzi was forced
    to give up his job offer from the Durham Crown Attorneys office.  However, he is
    confident that he can obtain employment in Pickering if permitted to relocate
    with Mason.

ANALYSIS

The Governing Legal Principles

[42]

Gordon
    v. Goertz
, [1996] 2 S.C.R. 27 is the seminal case on mobility in family law
    cases.  In it, the Supreme Court set out the principles that govern such
    matters.  Paragraphs 49-50 of
Gordon
contain the following summary of
    those principles:

1.

The parent
    applying for a change in the custody or access order must meet the threshold
    requirement of demonstrating a material change in the circumstances affecting
    the child.

2.

If the threshold
    is met, the judge on the application must embark on a fresh inquiry into what
    is in the best interests of the child, having regard to all the relevant
    circumstances relating to the childs needs and the ability of the respective
    parents to satisfy them.

3.

This inquiry is
    based on the findings of the judge who made the previous order and evidence of
    the new circumstances.

4.

The inquiry does
    not begin with a legal presumption in favour of the custodial parent, although
    the custodial parents views are entitled to great respect.

5.

Each case turns
    on its own unique circumstances. The only issue is the best interest of the
    child in the particular circumstances of the case.

6.

The focus is on
    the best interests of the child, not the interests and right of the parents.

7.

More
    particularly the judge should consider,
inter alia
:

a)

The existing custody
    arrangement and relationship between the child and the custodial parent;

b)

The existing access
    arrangement and the relationship between the child and the access parent;

c)

The desirability of
    maximizing contact between the child and both parents;

d)

The views of the
    child;

e)

The custodial parents
    reason for moving,
only
in the exceptional case
    where it is relevant to that parents ability to meet the needs of the child;

f)

Disruption
    to the child of a change in custody;

g)

Disruption to the
    child consequent on removal from family, schools, and the community he or she
    has come to know.

In the end, the importance of the child remaining with the
    parent to whose custody it has become accustomed in the new location must be
    weighed against the continuance of full contact with the childs access parent,
    its extended family and its community. The ultimate question in every case is
    this: what is in the best interests of the child in all the circumstances, old
    as well as new?

Appellate Intervention is Warranted

[43]

The
    Supreme Court of Canada has confirmed the narrow scope of appellate review in
    all family law matters relating to custody and access:  see
Van de Perre v.
    Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11.  An appellate
    court is entitled to intervene only where the trial court committed a material
    error, seriously misapprehended the evidence, or made an error in law:
Van
    de Perre
, at paras. 11-12.

[44]

In
    my view, appellate intervention in the present case is warranted for two
    reasons: the motion judge erred in law in placing the burden of proof on Mr.
    Sferruzzi, and he seriously misapprehended some aspects of Mr. Sferruzzis evidence
    and failed to afford it proper respect.

The Burden of Proof

[45]

The
    motion judge erred in law by placing the burden of proof on the appellant.
    This error is evident from the following passage at p. 23 of the motion judges
    reasons:

I am called upon [to] decide whether, based on all of the
    factors, there is sufficient evidence to convince me that the proposed move and
    the related changes to Masons access to the respondent are in his best
    interest. [
Mr. Sferruzzi
]
has
    made the motion and bears the onus of satisfying me in that regard.
[Emphasis
    added.]

[46]

The
    second point in the extract from
Gordon
, set out above, makes it clear
    that once the threshold requirement of demonstrating a material change in the
    childs circumstances is met, the judge must embark on a fresh inquiry into
    the best interests of the child.  Accordingly, it was an error for the motion
    judge to approach the motion on the basis that the appellant had to persuade
    him that the relocation was in Masons best interests.  As the threshold had
    been met, the ultimate question on the motion was: what is in Masons best
    interests in all the circumstances, old as well as new? (See
Gordon
,
    at para. 50.)

Misapprehension of the Evidence

[47]

The
    motion judge further erred by misapprehending Mr. Sferruzzis evidence and by failing
    to afford his views, as the custodial parent, great respect: see
Gordon
,
    at para. 49.

[48]

At
    p. 19 of his reasons for judgment, the motion judge says:

Even if this is an exceptional case where the custodial
    parents reason for wanting to move relates to the best interests of the child,
    I am not satisfied that the evidence is sufficiently clear by way of a benefit
    for Mason to convince me that it should be given significant weight.

[49]

With
    respect, it appears that the motion judge fundamentally misapprehended Mr.
    Sferruzzis evidence as to the benefits to Mason from moving to Pickering.  The
    move has everything to do with Masons best interests.    Mr. Sferruzzi has had
    three stress leaves while caring for Mason.  He is the sole financial provider
    for Masons therapy.  He does not know if he can continue to pay between $2,500
    and $3,000 per month for Masons therapy.  He cannot continue to provide the
    lions share of Masons care, on his own.  If permitted to relocate to
    Pickering, he will have Ms. Packers support in looking after Mason, and in
    sharing the associated financial and emotional burdens.  Mason will have the
    benefit of a healthy, happy parent who is better equipped physically,
    emotionally, and financially to care for him.

[50]

Further,
    Ms. Shaw, a therapist who has been working with Mason for four years, gave evidence
    that she incorporates siblings into therapy where possible, because the sibling
    can engage the autistic sibling and, in some cases, provide an age appropriate
    example for the autistic child.  The motion judge gave no weight to the additional
    benefits likely to accrue to Mason from living with Nicholas, saying that
    there was no certainty about how the brothers relationship would develop.

Application of the Gordon Factors

[51]

In
    light of these errors, it falls to this court to apply the factors set out in the
    seventh point of para. 49 of
Gordon
.

[52]

Factor
    #1  the existing custody arrangement  This factor does not apply as there is
    no change to custody.

[53]

Factor
    #2  the existing access arrangement - The proposed arrangement will reduce the
    frequency with which Ms. Allan sees Mason.  However, provided that Mason spends
    the full access time with Ms. Allan  and not part of it in school or therapy
    the amount of time will remain the same or slightly increase the overall number
    of hours they are able to spend together in any given month.

[54]

Factor
    #3  maximizing contact between the child and both parents  As indicated,
    while the frequency with which Ms. Allan sees Mason will be reduced, the
    overall time they will spend together will be roughly the same.  Further, and
    very importantly, Mr. Sferruzzi has committed to continuing to facilitate Ms.
    Allans access, including by providing financial support for the costs of
    access transportation.  There is nothing in the record to suggest that he will
    be anything but supportive of continued access.

[55]

Factor
    #4 - the views of the child - Mason is not capable of giving his views, thus
    this factor does not apply.

[56]

Factor
    #5  the custodial parents reason for moving as relevant to his ability to
    meet Masons needs  I will not repeat the comments made earlier except to reiterate
    that Mason will benefit from a happier, healthier, and more stable custodial parent.
    Mr. Sferruzzi has had to take three stress leaves while caring for Mason.  Furthermore,
    he has borne the full financial cost of Masons treatment since the government
    funding ended.  If permitted to relocate, he will live with Ms. Packer.  The
    savings coming from joining the two households will lighten Mr. Sferruzzis
    financial burdens and stress, and ensure that he is able to continue to financially
    provide for Masons therapy.  Ms. Packers emotional and logistical support
    will also be invaluable in terms of Mr. Sferruzzis ability to meet Masons
    needs.  Further, as I have explained, there is the very real possibility that
    Mason will benefit from living with his brother, Nicholas.

[57]

Factor
    #6  disruption to the child of a change in custody  There is no change in
    custody and therefore this factor is not relevant.

[58]

Factor
    #7  disruption to the child consequent on removal from family, schools, and
    the community he or she has come to know  Several points need to be made in
    relation to this factor.

[59]

The
    first is that the nature of Masons condition has led to him to have little
    involvement with his community, apart from his family and therapists.  In a
    very real sense, there will be no disruption in that regard.

[60]

As
    for disruption in family relations, Mr. Sferruzzi led evidence to show that Ms.
    Allans family will continue to see him, as they did before, when Ms. Allan has
    access.  On the other side of the equation, Mason will benefit from being part
    of his brothers life, and part of Mr. Sferruzzi and Ms. Packers blended
    family.

[61]

There
    will be no additional disruption in terms of school as the fresh evidence shows
    that Mason would have had to have a new teacher and support worker even if he
    had remained at the same school.  The fresh evidence further shows that the new
    school in Pickering will provide a very consistent environment to that which Mason
    had in grade 1 in Waterloo.  And, Masons daily schedule will remain
    unchanged.

[62]

Further,
    Mr. Sferruzzi gave a great deal of evidence on how Masons treatment would be
    transitioned, if the move is permitted.  One salient piece of evidence, not
    referred to by the motion judge, relates to the IBI therapy that Mason
    receives.  Over the five years that Mason has been receiving IBI, he has had at
    least 16 instructor therapists.  If permitted to move, Masons current
    instructor therapist has committed to spending time with Mason and his new
    therapist in his new environment to effect a smooth transition.  This is the
    same process that was used by Masons prior instructor therapists.  There is no
    evidence that the previous changes of therapists caused any significant
    disruption to Mason.

CONCLUSION

[63]

The
    ultimate question is: considering all of the circumstances, old and new, what
    is in Masons best interests?  There will be some disruption caused by the move,
    of course.  But, for the reasons given, it is in Masons best interests to
    permit Mr. Sferruzzi to move, with Mason, to Pickering.

DISPOSITION

[64]

Accordingly,
    I would allow the appeal, set aside the Order and grant the appellant
    permission to move, with Mason, to the region of Durham, Ontario.  The
    respondent shall have access to Mason on alternating weekends from Thursday
    evening at 5:00 pm to Sunday at 12:30 pm, commencing the second Thursday after
    Mason moves to the region of Durham.  If the parties are unable to reach an agreement
    on arrangements for pickup and dropoff, they shall take the matter to the
    Superior Court.

[65]

The
    appellant has offered to pay the respondent $75 per month to help cover the
    costs of access transportation.  To the extent that an order is required to
    make this undertaking binding, I would so order.

Released: July 23, 2013 (E.E.G.)

E.E. Gillese
    J.A.

I agree. John Laskin J.A.

I agree. G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tender Choice Foods Inc. v. Versacold
    Logistics Can. Inc., 2013 ONCA 474

DATE: 20130719

DOCKET: C56566

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Tender Choice Foods Inc.

Plaintiff / Appellant

and

Versacold Logistics Canada Inc.

Defendant / Respondent

Michael Swartz and Graham R. Brown, for the appellant

Marina E. Sampson and Jacob Kaufman, for the respondent

Heard and released orally: June 17, 2013

On appeal from the order of Justice Paul Perell of the Superior
    Court of Justice, dated January 3, 2013.

ENDORSEMENT

[1]

The appellant claims that it only knew of its loss from the breach of
    duty to warn when the internal investigation report was disclosed in 2010. This
    is based on a theory that it paid fees until October 2006 and only learned in
    2010 that the goods were stolen well before that date. On the appellants own
    pleadings it knew some of the goods were stolen as early as July 2006 and by
    October 2006 that all lots 1, 2 and 3 were stolen. By that time it knew it had
    paid some fees for storage when the goods were no longer in storage. It may not
    have known the full extent of the damages but that is not required under s. 5
    of the limitations act, see:
Hamilton (City) v. Metcalfe & Mansfield
    Capital Corporation
, 2012 ONCA 156 at para. 61.

[2]

Accordingly, the appeal is dismissed.

[3]

The appellant has not shown that an error of principle was made
    respecting the costs awards and accordingly leave to appeal costs is refused.

[4]

The respondent is entitled to its costs fixed at $10,000.00 inclusive of
    disbursements and HST.

M. Rosenberg J.A.

R.J. Sharpe J.A.

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: XY v. United States, 2013 ONCA 497

DATE: 20130724

DOCKET: M42144 (C54886)

Rouleau J.A. (In Chambers)

BETWEEN

XY

Applicant/Person Sought

and

The United States of America

Requesting State

and

The Minister of Justice of Canada and the
    Attorney General of Canada

Respondent

Daniel Moore, for the applicant/person sought

Nancy Dennison, for the respondent

Paul B. Schabas and Daniel
    Stern, for the interveners Toronto Star Newspapers Limited, Postmedia Network
    Inc., Canadian Broadcasting Corporation, and Global Montreal, a Division of
    Shaw Television Limited Partnership

Heard: July 23, 2013

ENDORSEMENT

[1]

The applicant, XY, brings this motion to seal the court record of his
    application for judicial review and to hold the hearing of the matter
in
    camera.

A.

Background and Procedural History

[2]

This motion arises from extradition proceedings brought against the
    applicant, XY. The United States requested XYs extradition from Canada. XY
    consented to his committal for extradition, but resisted his surrender to the
    United States on the basis that it would violate his right to life, liberty,
    and security of the person, as guaranteed by s. 7 of the
Canadian Charter of
    Rights and Freedoms
. In his submissions to the Minister of Justice, XY
    argued that he risks being killed while in custody in the United States, in
    retaliation for his cooperation with American law enforcement in the
    investigation of organized crime. The Minister, concluding that the United
    States could adequately protect XY while he remained in their custody, ordered
    XYs unconditional surrender to the United States. XY applied to this court for
    judicial review of the Ministers decision.

[3]

This motion is XYs further application to the court for an order that the
    court record in this case be sealed and the hearing of his application for
    judicial review be held
in camera
, pursuant to the courts duty to
    protect XYs informer privilege. I previously ordered that the court file be sealed
    on an interim basis pending the determination of the motion.

[4]

Several members of the media were granted leave to intervene in XYs
    motion to seal the court record and to hold the hearing
in camera
. Counsel
    for the media, the applicant, and the respondent came before me on February 26,
    2013 to speak to the matter. Pursuant to the procedure set out by the Supreme
    Court of Canada in
Named Person v. Vancouver Sun
, 2007 SCC 43, [2007] 3
    S.C.R. 253, at paras. 45-61, proceedings commenced
in camera
, and I
    determined that XY qualifies as a confidential informer and is therefore entitled
    to claim informer privilege. I then received preliminary submissions from
    counsel as to what elements of the record could be safely disclosed to the
    public without tending to reveal XYs identity. The matter was adjourned and a
    written endorsement was issued directing counsel for XY and the Crown to file a
    redacted record and factums to be reviewed by the court and ultimately released
    to the media and to the public. Counsel reattended before me on July 23, 2013
    to argue whether the extent of this proposed disclosure was satisfactory, or ought
    to be more fulsome still in order to comply with the open court principle. The
    parties to this motion largely agreed on the extent to which the hearing should
    be held
in camera
.

B.

Arguments of the parties

[5]

The media interveners argued that the redaction of the record went
    beyond what was necessary to protect XYs identity. Citing
Vancouver Sun
,

at para. 40, counsel for the media argued that the guiding principle is
    always that

the informer privilege cover[s] only that information which
    would
in fact
tend to reveal an informers identity; all other
    information regarding the proceeding would continue to be information which
    should be published under the open court principle. [Emphasis added.]

Further, while acknowledging that the
Dagenais/Mentuck
test does not apply when informer privilege is at stake, counsel for the media
    submitted that the court ought to be mindful of the holding in
R. v. Mentuck
,
    2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 34-35, that a court should only
    order limits on the open court principle when it is necessary to prevent a
    real and substantial risk, the reality of which is well-grounded in the
    evidence, to the proper administration of justice, which includes the use of
    police informers.

[6]

With these principles in mind, counsel for the media conducted a
    detailed review of the redacted record and suggested several places where
    further disclosure was necessary in order to respect the open court principle.
    The following omissions from the record were particularly objected to by the
    media: first, the particular law enforcement agency with which XY cooperated
    was omitted; second, the charges for which XY is sought for extradition were
    entirely redacted; third, the Ministers reasons for surrender were heavily
    edited; fourth, XYs notice of application for judicial review had large excisions;
    and fifth, XYs edited statement was only about half the length of its
    unredacted counterpart.

[7]

Counsel for XY and counsel for the Crown argued that their burden is not
    to establish that, taken in isolation, each excision from the record tends to
    reveal XYs identity. Rather, they must show and the court must consider whether
    the information sought, when added to the information already publicly
    available, will narrow to a dangerous degree the pool of people that XY could
    be. In their submission, the disclosure requested by the media would reduce the
    pool to very few individuals and put XY at risk of being exposed.

C.

Analysis

[8]

I reiterate that XY qualifies as a confidential informer and is
    therefore entitled to claim informer privilege. First and foremost, the requesting
    state, with its greater access to the information relevant to this
    determination, has acknowledged that XY acted as an informant to the
    authorities in that country and has advised the Crown accordingly. In the
    extradition context, significant weight ought to be given to representations made
    by Canadas treaty partners. Second, the fact that XY has acted as an agent for
    law enforcement in certain investigations in no way removes his informer status
    and privilege in several other investigations where he has not stepped outside
    of his protected role as an informant:
R. v. Named Person B
, 2013 SCC 9
, 356 D.L.R. (4th) 264,

at para. 43;
R. v. G.B.
(2000), 146
    C.C.C. (3d) 465 (Ont. C.A.), at para. 35.

[9]

Since the privilege applies, the courts role is to accommodate the
    open court principle to as great an extent possible without risking a breach of
    the informer privilege:
Vancouver Sun
, at para. 55. I do not agree with
    the medias submission that the privilege only covers information that poses a
    real and substantial risk, to be proven by evidence, of revealing an
    informers identity. The privilege protects any information that might implicitly
    reveal or would in fact tend to reveal the informers identity:
R. v.
    Leipert
,

[1997] 1 S.C.R. 281, at para. 18;
Vancouver Sun
, at
    para. 40. I agree with Crown counsel that the analysis of the extent of informer
    privilege in a given case should not become a trial about what individual
    pieces of information would or would not actually reveal the informants
    identity. The court must apply logic and common sense, and also look to the available
    evidence, in deciding what information would tend to reveal an informers
    identity; the court must consider the entire context, and behave judiciously in
    the circumstances.

[10]

In
    the fairly exceptional context of this case, I agree with counsel for the
    applicant and the Crown that XY is already somewhat vulnerable to
    identification. The number of people extradited from Canada to the United
    States each year is not large. Neither the court nor the parties knows with any
    degree of certainty what information exists in the public domain in the United
    States or Canada regarding the subjects of particular extradition proceedings.

[11]

The
    further information the media seeks would narrow the pool of people XY might be
    to an unacceptable level of specificity. Crown counsel submitted, and I agree,
    that the redactions in the record consistently protect one of three types of
    information that would tend to reveal XYs identity in the circumstances of
    this case: the nature of the offences for which the United States seeks to
    extradite XY; the type and extent of assistance XY provided to American law
    enforcement; and any of XYs personal characteristics, history, or
    relationships. I am satisfied that these types of redacted information would,
    on the facts of this case, tend to reveal XYs identity. I need not be
    satisfied that each redaction will in fact reveal his identity.

[12]

Any
    redaction is imperfect. Reasonable people may disagree as to what information
    will tend to reveal a persons identity. I recognize that there are instances
    in this case where words, names, or small pieces of information were redacted
    from the record when they likely could have been released to the public without
    tending to reveal XYs identity. For example, the media argued, in a point
    illustrative of their central contention that the redaction in this case was
    too sweeping, that the names of certain lawyers and articling students who were
    involved in this proceeding, and appear in the record, were needlessly redacted.
    This may be so. However, I am satisfied that the applicant and the Crown made a
    good faith effort to release all of the information they could and that nothing
    of any significance that could be released was redacted. The court must take a
    realistic approach to the process of redaction and recognize that where hundreds
    of pages of material need to be meticulously combed through in order to extract
    revelatory information, errors will be made and some shortcuts will be taken.
    For example, removing a full page of the record rather than redacting
    everything but the articles and conjunctions is a reasonable approach. Although
    the parties must always strive for perfection, the court will nonetheless be
    satisfied where good faith efforts were made and the result achieves the
    objective of respect for the open court principle.

[13]

I
    note that the Crown conceded that the total redaction of paragraph (g) in XYs
    notice of application for judicial review was an error, and that it ought to
    have been only partially redacted. Counsel for XY agreed. That page in the redacted
    record should therefore be corrected.

D.

order

[14]

Subject
    to any ruling by the panel hearing the application for judicial review, there
    will be a sealing order applicable to the court record in this case. The public
    record will be composed of the redacted record (with the correction noted
    above) and redacted factums filed with and approved by the court.

[15]

With
    respect to the format of the hearing of the application for judicial review,
    subject again to the panels discretion, counsel for the parties are to tailor
    their submissions so that the hearing will take place to the greatest extent
    possible in public. Only those portions of the oral argument that cannot be made
    without disclosing information tending to reveal XYs identity are to proceed
in
    camera
.


COURT OF APPEAL FOR ONTARIO

CITATION:  Zacharias v. Zurich Insurance
Company, 2013 ONCA 482

DATE: 20130716

DOCKET: C55908

Sharpe, Epstein and Pepall JJ.A.

BETWEEN

Nancy Zacharias

Plaintiff (Respondent)

and

Zurich Insurance Company

Defendant (Appellant)

Chris T. Blom, for the appellant

Allan Rouben and Russell J. Howe, for the respondent

Heard: March 15, 2013

On appeal from the judgment of Justice Suzanne M.
Stevenson of the Superior Court of Justice, dated July 16, 2012, with reasons
reported at 2012 ONSC 4209, 111 O.R. (3d) 611.

Epstein J.A.:

INTRODUCTION

[1]

For claimants injured in motor vehicle accidents between 1990 and 1994,
the governing Ontario accident benefits regulation provides for interest on
overdue benefit payments. The issue in this appeal is whether that interest is
compound or simple.

[2]

The respondent, Nancy Zacharias, was in a car accident on December 18,
1990. Based on injuries she claims to have suffered in that accident, Zacharias
sought weekly benefits from her insurer, the appellant, Zurich Insurance
Company, pursuant to Part IV of the
Statutory Accident Benefits Schedule
Accidents before January 1, 1994
, R.R.O. 1990, Reg. 672 (SABS 1990). Zurich
honoured the claim and from December 25, 1992, to January 26, 1996, paid
benefits to Zacharias in the amount of $216.37 per week.

[3]

Zurich terminated Zacharias benefits on January 26, 1996 on the basis
that Zacharias was, in fact, not injured, or if she were, her injuries did not
arise from the accident. As a result of the termination of benefits, Zacharias
commenced this action against Zurich, claiming past and on-going benefits from
December 18, 1990, at the rate of $600 per week.

[4]

Zacharias also claims interest on the overdue amounts that she maintains
Zurich owes to her.  She claims interest pursuant to s. 24(4) of SABS 1990,
that provides as follows:

The insurer will pay interest on overdue payments from the date
they become overdue at the rate of 2 per cent per month.

[5]

A dispute over Zacharias entitlement to interest gives rise to this
appeal.  Zacharias position is that s. 24(4) requires Zurich to pay interest
of two per cent per month compounded monthly. Zurich disagrees, saying that s.
24(4) provides for only simple interest.

[6]

Whether Zurich has any outstanding liability to Zacharias has yet to be
determined.  However, to resolve the important issue of whether Zurich is
obliged to pay compound or simple interest on any amounts it is found to owe to
Zacharias, Zurich moved under rule 21.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
for
determination of whether s. 24(4) provides for simple or compound interest.

[7]

I refer to the issue as important.  Depending on the amount of Zurichs
liability to Zacharias, if any, the difference between simple and compound interest
could be in excess of $10 million.

[8]

The motion judge concluded that s. 24(4) of SABS 1990 provides for
compound interest.

[9]

Zurich appeals.

THE STATUTORY FRAMEWORK

The Ontario Motorist Protection Plan and SABS

[10]

In
1990, the Ontario legislature enacted the provinces first extensive no-fault
insurance plan: see
Meyer v. Bright
(1993), 15 O.R. (3d) 129 (C.A.).
Known as the Ontario Motorist Protection Plan (the OMPP), the new regime
introduced a threshold system whereby individuals could pursue remedies in tort
for injuries sustained in motor vehicle accidents only where the injuries were
physical, permanent and serious.  In exchange for significantly restricting the
scope of traditional tort rights, the OMPP provided for enhanced no-fault
benefits and a structure to ensure prompt payment of those benefits. The
details of the no-fault benefits regime are provided by regulation, commonly
referred to as SABS.

[11]

As
set out above, the focus of this appeal is the interpretation of s. 24(4) of SABS
1990.  However, subsequent SABS, summarized in the next three paragraphs,
provide context.

[12]

In
1994, the legislature amended aspects of the no-fault regime and a new benefits
schedule came into force: see
Statutory Accident Benefits Schedule
Accidents after December 31, 1993 and Before November 1, 1996
, O. Reg.
776/93 (SABS 1994). Section 68 of SABS 1994, the provision relating to
interest on overdue amounts owed to a claimant, is differently worded than s. 24(4)
of SABS 1990. Section 68 provides as follows:

If payment of a benefit under this Regulation is overdue, the
insurer shall pay interest on the overdue amount for each day the amount is
overdue from the date the amount became overdue at the rate of 2 per cent per
month
compounded monthly
. [Emphasis added]

[13]

The
interest provision in the next iteration of SABS contained the same language as
that found in s. 68 of SABS 1994: see
Statutory Accident Benefits Schedule
 Accidents on or After November 1, 1996
, O. Reg. 403/96, s. 46(2).

[14]

Section
51(2) of
Statutory Accident Benefits Schedule  Effective September 1, 2010
,
O. Reg. 34/10, the most recent benefits schedule, contains the same language as
the previous two SABS, with the exception of a reduction in the rate of
interest from two per cent compounded monthly to one per cent per month,
compounded monthly.

The Insurance Act

[15]

The
enabling statute, the
Insurance Act
, R.S.O. 1990, c. I-8, is also relevant
for the purposes of the interpretive analysis. Section 282(10) of the
Insurance
Act
, a section that came into force at
the same time as SABS 1990 and has not been amended over the applicable time
period,
requires an arbitrator to make an additional award to a
claimant in circumstances where the arbitrator finds that an insurer has unreasonably
withheld payments.

Special Award

(10)  If the arbitrator finds that an insurer has unreasonably
withheld or delayed payments, the arbitrator, in addition to awarding the
benefits and interest to which an insured person is entitled under the
Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per
cent of the amount to which the person was entitled at the time of the award
together with interest on all amounts then owing to the insured (including
unpaid interest) at the rate of 2 per cent per month, compounded monthly, from
the time the benefits first became payable under the Schedule.

THE
MOTION JUDGES ANALYSIS

[16]

The
motion judge identified the interpretive question as whether or not, in the
absence of the words compounded monthly that were later added to similar
provisions, those words can be inferred [in s. 24(4) of SABS 1990] from the
overall context, scheme and object of the Regulation (at para. 36).

[17]

Since
s. 24(4) of SABS 1990 does not, in referring to interest, specify simple or
compound, the motion judge decided that a reading of the words [of s. 24(4)]
in their grammatical and ordinary sense is impossible (at para. 36).  Even
after reading the words in their entire context, the motion judge found genuine
ambiguity with respect to s. 24(4) of [SABS 1990] and that resort needs to be
made to external interpretive aids and extrinsic materials in order to
determine the issue (at para. 38).

[18]

The
primary external interpretive aid upon which the motion judge relied is the
Report
of the Automobile Insurance Board
(Ontario: Ministry of Financial
Institutions, 1989), commissioned by Order in Council in March 1989.  Further
to its commissioned mandate, the Automobile Insurance Board conducted lengthy
hearings and in July 1989, delivered a comprehensive report, (the Kruger
Report), to the Lieutenant Governor in Council. The Report, tabled during the
legislative process, played a central role in the debates leading to the
passage of SABS 1990.

[19]

The
Report recommended that Ontario adopt a no-fault benefits system similar to the
one then in place in New York State.

[20]

With
respect to interest on overdue benefit payments, the Kruger Report explicitly
advocated that Ontarios new regime follow the analogous New York State scheme.
Although the Kruger Report did not explicitly refer to it, the New York law
contains a provision that requires, through regulation, insurers to pay
insureds interest on overdue amounts at two per cent per month compounded
monthly: see
Insurance Law
, N.Y.C. 5106: Fair Claims Settlement; 11
NYCRR 65, s. 65.15(h).

[21]

The
motion judges view that the Kruger Report represented the
best evidence of legislative intent and that the Report implicitly recommended that
insurers be required to pay interest on overdue amounts at the rate of two per
cent per month compounded monthly, factored prominently in her conclusion that s.
24(4) provides for compound interest.

[22]

The motion judge reasoned that the absence of the words compounded
monthly in the interest provision of [SABS 1990] may be a drafting error and
the inclusion of those words in [SABS 1994] was an instance of language
polishing and not a substantive amendment (at para. 50).

[23]

The
motion judge therefore held that Zacharias is entitled to compound interest on
any arrears of benefits ultimately found to be owing to her by Zurich.

THE PARTIES POSITIONS ON APPEAL

[24]

Zurich
submits that the motion judge erred in concluding that the language in s.
24(4), relating to interest, is ambiguous.  Zurich argues that the only interpretation
that is reasonably available, having regard to the entire context of the
statutory framework, is that, under SABS 1990, overdue payments attract simple
interest.

[25]

Relying
heavily on the canon of construction that to express or include one thing
implies the exclusion of the other, Z
urich
submits that
the specific use of the words compound interest in s.
282(10) of the
Insurance Act
precludes interpreting s. 24(4) in SABS
1990 as providing for compound interest.  Zurich points out that Arbitrator
Makepeace in
McMaster v. Dominion of Canada General Insurance Co.
,
[1994] O.I.C.D. No. 122, and in
J. W. v. Canadian General Insurance Group
,
[1999] O.F.S.C.I.D. No. 22, relied on this argument in concluding that s. 24(4)
provides for simple interest.

[26]

Zurich
also submits that the change in the wording of s. 24(4) of SABS 1990 to that
found in s. 68 of SABS 1994, which explicitly specifies compound interest, should
be regarded as purposive. Zurich relies on the presumption that amendments to
the wording of a legislative provision are made for some intelligible purpose.
Zurich refers to the decision of Laskin J., (as he then was) who applied this
presumption in
Bathurst Paper Ltd. v. New Brunswick (Minister of Municipal
Affairs)
, [1972] S.C.R. 471. Zurich contends that in changing the wording
the drafters intended to replace the insurers interest obligation from simple to
compound.

[27]

Zacharias
primary argument is that the motion judge was correct in finding that s. 24(4)
is ambiguous.  For interpretive assistance, it was therefore open to the motion
judge to look to the external aid that provided the most reliable insight into
the legislative intent of s. 24(4)  the Kruger Report.

[28]

The
Kruger Report recommended that the legislature implement a regime, specifically
including a component requiring insurers to pay interest on overdue amounts,
fashioned after the no-fault benefits regime in New York State.  Since that
regime provided for interest on overdue payments of two per cent per month
compounded, logic dictates that s. 24(4) be interpreted as imposing the same
obligation.

[29]

According
to Zacharias, the motion judge correctly interpreted s. 24(4) in a manner consistent
with its plain wording and with its clear legislative intent.

The Additional Issue

[30]

In
this court Zacharias, for the first time, submitted that even though s. 24(4)
does not explicitly refer to compound interest, the effect of the provision is
to require insurers to pay interest at two per cent compounded monthly.  The
argument is as follows.  Since s. 24(3) provides that weekly income benefits
are payable every second week, and since s. 24(4) provides that overdue
payments bear interest at the rate of 2% per month from the time they become
overdue, interest is a component of the overdue payment and hence compounded.
Put differently, interest owed on an overdue payment is added to the amount of
the payment thereby becoming part of the overdue amount to which any further
overdue payments are added and upon which interest is calculated.  Because
interest is calculated on amounts that include interest, the effect of s. 24(4)
is to require insurers to pay compound interest.

[31]

Since
this argument had not been made before the motion judge and was not extensively
addressed by the parties in their written or oral arguments on appeal, supplementary
written argument was requested.

[32]

In
her written submissions, Zacharias seeks to fortify her position that s. 24(4)
implicitly provides for compound interest by referring to the wording of s. 68
of SABS 1994.  Zacharias relies on two differences between the language found
in s. 68 of SABS 1994 and that found in s. 24(4) of SABS 1990. First, s. 68 stipulates
that interest accrues on the amount of an overdue benefit, whereas s. 24(4)
provides for interest on an overdue payment.  Second, s. 68, unlike s. 24(4),
expressly provides that interest be compounded monthly.

[33]

For
convenience, I set out s.68 again:

If payment of a benefit under this Regulation is overdue, the
insurer shall pay interest on the overdue amount for each day the amount is
overdue from the date the amount became overdue at the rate of 2 per cent per
month compounded monthly.

[34]

Zacharias
submits that the significance of these two changes is as follows.  Section 68,
through the way in which it is worded, restricts the amount overdue to a
benefit.  Since benefits do not include interest, in order to compensate an
insured for the loss of the time value of money, in the same fashion as s.
24(4), s. 68 had to specifically provide for compound interest. In other words,
s. 68 does explicitly (with the word compounded) precisely what s. 24(4) does
implicitly (with the word payment).

[35]

Zurich
submits that s. 24(4) cannot be read as Zacharias suggests.  For Zacharias
argument to succeed, overdue payments must include accrued interest.  That is
not possible, argues Zurich, as ss. 24(1) and (2), define an amount payable in
a manner that specifically excludes interest.

(1)  Amounts payable under Parts II, III and V are overdue if
not mailed or otherwise delivered by the insurer within thirty days after it
has received a completed application for statutory accident benefits.

(2)  Amounts payable under Part IV are overdue if not mailed or
otherwise delivered by the insurer within ten days after it has received a
completed application for statutory accident benefits or if the insurer fails
to make a payment required by subsection (3).

[36]

In
providing when an amount payable is overdue, ss. 24(1) and (2) refer to
payments under Parts II, III and IV and V of the regulation. The obligation to
pay interest under s. 24(4) is in Part VIII of the regulation.  Zurich contends
that because interest is not included in amounts payable for the purpose of determining
when an amount payable becomes overdue, Zacharias argument, one that is premised
on interest being added to and treated as an overdue amount, must fail.

ISSUES

1. Is the wording of s. 24(4) regarding interest to be paid on
overdue amounts, ambiguous?

2. If not, what is the ordinary meaning to be attributed to the
wording, taking into consideration legislative intent?

3. If the wording of s. 24(4) is ambiguous, what is the
appropriate interpretation of the interest insurance companies are required to
pay having regard to the use of other interpretive aids?

ANALYSIS

[37]

The
oft-repeated Driedger approach to statutory interpretation has been explicitly approved
by the Supreme Court in
Re Rizzo & Rizzo Shoes Ltd.
, [1998] 1
S.C.R. 27, at para. 21:

Today there is only one principle or approach; namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.

See also
R. v. A.D.H
.
, 2013 SCC 28, at
para. 19.

[38]

There
is no dispute over the legislative intent of the requirement that insurers pay
interest on overdue amounts owed to insureds. That intent is to compensate
insureds for the loss of the time value of money and to encourage insurers to
pay accident benefits promptly:
Attavar v. Allstate Insurance Co. of Canada
(2003), 63 O.R. (3d) 199 (C.A.).

[39]

The
interpretation of s. 24(4) in SABS 1990 must therefore be guided by this
intention and the approach endorsed by the Supreme Court in
Rizzo
.

(1)

Is the wording of the provision ambiguous?

[40]

In
Bell ExpressVu Ltd. Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R.
559, at paras. 28-29, Iacobucci set out the test for ambiguity and explained
the importance of the determination:

What, then, in law is an ambiguity? To answer, an ambiguity
must be "real" (
Marcotte, supra
, at p. 115). The words of
the provision must be "reasonably capable of more than one meaning" (
Westminster
Bank Ltd. v. Zang
(1965), [1966] A.C. 182 (U.K. H.L.), at p. 222,
per
Lord Reid). By necessity, however, one must consider the "entire
context" of a provision before one can determine if it is reasonably
capable of multiple interpretations. In this regard, Major J.'s statement in
Canadian
Oxy Chemicals Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743
(S.C.C.), at para. 14, is apposite: "It is only when genuine ambiguity
arises between two or more plausible readings,
each equally in accordance
with the intentions of the statute
, that the courts need to resort to
external interpretive aids" (emphasis added), to which I would add,
"including other principles of interpretation".

[41]

Applying
the
Bell Expressvu
test, I come to the conclusion that s. 24(4) is not
ambiguous. In my view, a consideration of the provision in its grammatical and
ordinary sense and in a manner that corresponds with the scheme of the legislation
and its intent, leads to only one interpretation  that interest is
compounded.

[42]

Blacks
Law Dictionary
,
8
th
ed. (St. Paul, MN: West Pub. Co.,
2004), at p. 830 defines compound interest as interest payable on both
the principal and the previously accumulated interest.

[43]

If
a benefit an insurer owes an insured is not paid in accordance with the SABS
1990 time requirements and is therefore overdue, then at the expiry of 30
days, two per cent interest is calculated on the overdue amount.  That interest
is then added to the principal amount owing and becomes part of the amount that
is overdue. If the next benefit payment is not made on time, the amount of the
benefit is added to the amount that is overdue.  At the end of 30 days, two per
cent interest is calculated on the total overdue amount and is added to that
amount.

[44]

Simply
put, s. 24(4) provides that at the end of the month during which a payment is
overdue, two per cent interest is added to the amount that is overdue.  As long
as this overdue amount remains unpaid, interest continues to accrue at two per
cent per month on both the increasing principal and on the interest that has
been calculated monthly. As both the principal and interest are overdue
payments, interest must be calculated and paid on amounts that include interest.
Section 24(4) therefore provides for compound interest.

[45]

I
do not agree with Zurichs argument that ss. 24(1) and (2) of SABS 1990,
prevent interest from being treated as part of the overdue payment for the
purposes of s. 24(4).  These subsections define when an amount an insurer owes
an insured becomes overdue: see
Mercier v. Royal & SunAlliance
Insurance Company of Canada

(2005), 72 O.R. (3d) 94 (C.A.). They
simply cannot be read as restricting what may be included as part of an overdue
payment.

[46]

Moreover,
the practical implication of Zurichs argument leads to an improbable conclusion.
If interest is precluded from being considered part of an overdue amount then
arguably an insurers interest obligations to an insured never become overdue.

[47]

I
also do not accept Zurichs submissions that the change in the wording in s.
24(4) of SABS 1990 to that found in s. 68 of SABS 1994 and the fact that
compound interest is specified in s. 280(1) of the
Insurance Act
,
support
interpreting s. 24(4) as providing for simple interest.

[48]

In
my view, the change in wording from s. 24(4) of SABS 1990 to s. 68 of SABS 1994
should be seen as purposive. However, I view that purpose as increasing the
effectiveness of the legislative intent to compensate insureds for the loss of
the time value of their money and to encourage the prompt payment of benefits.

[49]

This
purpose becomes apparent when all of the wording changes are taken into account
including that, unlike in s. 24(4) of SABS 1990, s. 68 of SABS 1994 specifies that
the insurer shall pay interest on the overdue amount for each day the amount
is overdue from the date the amount became overdue.

[50]

Considering
all of the differences in wording between the two provisions, it is clear that s.
24(4) of SABS 1990 provides for two per cent interest compounded monthly and
calculated monthly. Section 68 of SABS 1994 provides for two per cent interest
compounded monthly and calculated daily.

[51]

The
implications of this difference in terms of legislative intent of compensating
insureds for the loss of the time value of money and encouraging the prompt
payment of benefits, are significant.

[52]

Through
the daily calculation of interest, s. 68 comes closer to providing full
compensation for the insureds loss of the time value of money as interest is
calculated on fluctuating overdue amounts.

[53]

Through
the daily calculation of interest, s. 68 also increases the incentive for
insurers to make timely payments as it eliminates the benefit of an interest-free
period of payment delay. This benefit can be substantial, particularly when
SABS 1994 came into effect, a time when the prevailing interest rates were
high.

[54]

Therefore,
in my view, taking the entire context into consideration, s. 24(4) is only
reasonably capable of only one meaning  interest must be paid on a compound
basis.

(2)

What is the ordinary meaning to be attributed to the wording, taking
into consideration legislative intent?

[55]

The
interpretive exercise should go beyond the ordinary grammatical meaning and
take into account its context consistent with the legislative scheme and
intent. See
ATCO Gas & Pipelines Ltd. v. Alberta (Energy &
Utilities Board)
[2006] 1 S.C.R. 140 at para. 38 (S.C.C.). I have already factored
context and legislative intent into the analysis that lead me to conclude that
s. 24(4) provides for compound interest and need only add a few brief comments.

[56]

Simply
put, in my view, interpreting s. 24(4) as providing for compound interest fits
within the legislative scheme and advances the legislative intent. Interpreting
s. 24(4) as providing for simple interest does not.

[57]

Compound
interest fits into the legislative scheme that imposes clear, tight, timelines
for the payment of benefits.  The scheme specifies when payments are overdue
and requires an insurer to pay interest on overdue amounts in a manner that
compensates the insured for the loss of the time value of money.

[58]

It
is important to note that compound interest does not penalize.  It
compensates.  A penalty for conduct that goes beyond benign delay is provided
for in s. 282(10) of the
Insurance Act
,
set out above that
requires an insurer to be sanctioned in circumstances where a finding is made that
the insurer has demonstrated an unreasonable lack of regard toward its obligations
to pay benefits on a timely basis.

[59]

I
return to the decision of this court in
Attavar
to explain the
significance of compound interest in advancing legislative intent. This
significance is made clear by the strong words of Laskin J.A. at para. 49 where
he says, [w]ithout a provision [requiring an insurer to compensate the
claimant for the loss of the time value of money, in other words without
compound interest], insurers would have an incentive to delay paying benefits
properly owing, thus forcing insureds to litigate their claims.

[60]

To
summarize, the practical effect of s. 24(4) of SABS 1990 is to provide for
compound interest.  Indeed, as I see it, such is the only interpretation
consistent with the legislative intent and scheme.

[61]

I
therefore reach the same conclusion as the motion judge  that s. 24(4)
provides for compound interest.  However, as can be seen, I have followed a
different analytical route than that followed by the motion judge.

DISPOSITION

[62]

I
would dismiss the appeal.  In my view, Zacharias is entitled to her costs of
the appeal which, based on the parties costs submissions, I would fix at $20,000
including interest and applicable taxes.

RELEASED:

GE                                                  Gloria
Epstein J.A.

JUL 16 2013                                    I agree
Robert Sharpe J.A.

I
agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1724684 Ontario Limited v. Leafwood Investment Inc.,
 2013 ONCA 509

DATE: 20130808

DOCKET: C55893

MacFarland, Watt and
    Epstein JJ.A.

BETWEEN

1724684 Ontario Limited
and 2234223 Ontario Inc.

Applicant/Appellant

and

Leafwood Investment Inc.
and Goldman, Spring Kitchler & Sanders LLP

Respondent/Respondent

Leafwood Investments Inc.

Appellant/Respondent

and

1724684
    Ontario Limited and 2234223 Ontario Inc.,

Shahin Talaei, aka Sean
    Talaei, and Ahad Jafarpour, aka Jeff Jafarpour

Respondent/Appellant

Joseph Markin, for the appellant

D.R. Rothwell, for the respondents Leafwood Investment
    Inc.

Heard:  June 24, 2013

On appeal from the judgment of Justice E. P. Belobaba of
    the Superior Court of Justice, dated July 18, 2012.

ENDORSEMENT

[1]

The appellant (purchaser) and respondent (vendor) entered into an
    agreement of purchase and sale for certain lands located in Whitby, Ontario and
    for a quantity of structural steel. This agreement was subsequently amended
    (the Amending Agreement). The land are described in the agreement as draft
    plan approved under draft plan of subdivision: for a residential housing
    development that included a strip plaza. The respondent (vendor), had already
    purchased structural steel for the strip plaza, and, as part of the Amending Agreement,
    required this steel to also be purchased by the appellant (purchaser).

[2]

On the date scheduled for closing, the land transaction was completed,
    but the structural steel component was not as the Amending Agreement provided
    that the structural steel component of the deal be verified and verification
    had not taken place. The portion of the verification term and the disputed
    issue between the parties reads:

The Vendor shall use its best reasonable efforts to
    obtain an inspection of the fabricated steel by the Vendor and Purchaser jointly
    prior to closing date, and to assist the Purchaser in satisfying itself that
    the fabricated steel as per the Vendors purchase order and shop drawings for
    structural steel for Buildings A2, B1 to B6, C to D and E on structural
    drawings prepared by VGA Consultants is available for delivery to the site upon
    payment of the storage and transportation costs set out above (the Purchasers
    Steel Requirements) and that all monies owing to the steel company for steel
    fabrication only have been paid, in accordance with minutes of settlement
    between the Vendor and Skyhawk Steel. The Purchaser covenants to act reasonably
    and in good faith to satisfy itself as soon as possible as to compliance with
    the Purchasers Steel Requirements.

[3]

As verification had not taken place at the time of closing, the portion
    of the purchase money relating to the structural steel was place in trust, in
    accordance with paragraph 8 of the Amending Agreement.

[4]

Two issues interfered with the verification necessary to close the
    structural steel part of the transaction. One was whether the open web steel
    joists specified for the project were part of the structural steel that was
    the subject of the Amending Agreement. The purchaser took the position that the
    open web steel joists were part of the Amending Agreement, while the vendor
    took the position that they were not. The second was whether the purchaser made
    reasonable efforts to verify that the structural steel met its requirements.

[5]

There is no dispute between the parties that the open web steel joists
    were not available and could not be supplied by the vendor.

[6]

The trial judge concluded that the open web steel joists were not part
    of the structural steel that was the subject of the Amending Agreement. This
    conclusion was based on paragraph 6 of the original agreement of purchase and
    sale. The trial judge also held that the purchaser had not acted reasonably and
    in good faith to verify that the steel met its requirements. He therefore
    ordered that the money held in trust be provided to be vendor.

[7]

The purchaser submits that the trial judge erred in holding in favour of
    the vendor with respect to both issues.

[8]

We find it necessary to deal only with the first issue.

[9]

Paragraph 6 of the original agreement of purchase and sale (that
    remained the same in the Amending Agreement) provides:

The Vendor shall use its best reasonable efforts to
    obtain an inspection of the fabricated steel by the Vendor and Purchaser
    jointly prior to the closing date and to assist the Purchaser in satisfying
    itself that the
fabricated steel as per the Vendors purchase order and
    shop drawings for structural steel for Buildings A2, B1-B6, C and D to E on
    structural drawings prepared by VGA Consultants
is available for delivery
    to the site upon payment of storage and transportation costs ... and that all
    monies owing to the steel company for steel fabrication only have been paid, in
    accordance with the Minutes of Settlement between the Vendor and Skyhawk
    Steel.  (Emphasis added.)

[10]

In
    our view the documents that must be considered in interpreting the meaning of the
    parties bargain are the Amending Agreement itself and the documents referenced
    in it that describe the structural steel. These additional referenced documents
    are the vendors purchase order and shop drawings for structural steel prepared
    by the projects architects, VGA Consultants. VGA retained Lor Eng Construction
    Services Inc. for the structural design.

[11]

The
    purchase order from the vendor to Skyhawk provides in part:

Please Supply the Following Goods subject to the Conditions
    Specified Below

1      1.00   Supply and Install Structural Steel for  Building
      A2, B1-B6, C, D and E

1.     Work under this contract to
        include but not limited to the supply of labour, material and equipment for
        complete scope for structural steel and open web steel joists for Buildings A2,
        B1-B6, C, D and E;

4.       Supply and installation of structural steel, open web steel joists etc.

[12]

Further,
    the structural drawings identified as GN-1 bear a heading for open web steel
    joists and specify their technical structural requirements.  As well, the
    drawing identified as S-3 notes the presence of open web steel joists in
    several locations.

[13]

In
    our view, the trial judge erred in basing his interpretation of the Amending
    Agreement on documents that were extraneous to it in circumstances where it was
    unnecessary to do so.

[14]

The
    Amending Agreement specified that it was the structural steel identified in the
    purchase order and that document specified open web steel joists.  Similarly
    the structural drawings refer to open web steel joists.

[15]

In
    our view, properly interpreted, using the language of the Amending Agreement
    and the documents specifically referenced in it, the open web steel joists were
    part of the structural steel that the purchaser contracted to buy and the vendor
    contracted to sell.

[16]

As
    previously indicated, the parties agree that the open web steel joists were not
    made available to the purchaser. The vendor therefore breached the Amending
    Agreement and on this basis, the money held in trust should be returned to the
    purchaser.

[17]

It
    follows, therefore, that the appeal must be allowed on this basis alone and there
    is no need to deal with the second issue raised.

[18]

The
    appeal is therefore allowed and the judgment is set aside. The funds held in
    trust by Messrs. Golden, Spring, Kitchler and Sanders LLP, plus accrued
    interest are to be returned to the purchaser.

[19]

The
    purchaser also seeks the costs of the trial.

[20]

The
    trial judge awarded no costs on the basis that success had been divided. This
    division arose from the fact that at trial the vendor had argued that the application
    should be dismissed as the parties had settled the matter. The trial judge
    found that there had been no settlement. On the basis of the vendors loss on
    this point and the purchasers loss regarding which party had breached the
    Amending Agreement, the trial judge held that success was divided and concluded
    there should be no order as to costs.

[21]

No
    issue was taken in this court with the trial judges finding that there had
    been no settlement.

[22]

However,
    the purchaser has been successful in this court. In the usual circumstances,
    where an appeal is allowed and the judgment below is set aside, the costs order
    made is also set aside.  We see no reason why that should not be the case here.

[23]

In
    their costs outline in relation to the trial costs, the purchaser sought
    $59,321.00 on a partial indemnity scale while the vendor sought the sum of
    $53,796.74, both figures inclusive of disbursements and HST.

[24]

We
    order the costs of the trial to the purchaser fixed in the amount of $50,000.00
    and of the appeal to the purchaser, fixed in the amount of $15,000. Both
    amounts are inclusive of disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Akran v. Toronto Dominion
    Bank, 2013 ONCA 528

DATE: 20130823

DOCKET: C56876

Goudge, Watt and Pepall JJ.A.

BETWEEN

Manouchehr Akran

Applicant (Appellant)

and

The Toronto Dominion Bank

Respondent (Respondent)

Richard Parker, for the appellant

Nicole Brown Dunbar, for the respondent

Heard: August 22, 2013

On appeal from the judgment of Justice Leonard Ricchetti
    of the Superior Court of Justice, dated September 21, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis upon which the appeal could be allowed.  There is no
    error in the order below.  The appeal is dismissed.

[2]

Costs to the respondent fixed at $2000 in total.


COURT OF APPEAL FOR ONTARIO

CITATION: Association of Justices of the Peace of
    Ontario v. Ontario, 2013 ONCA 532

DATE: 20130830

DOCKET: C55585

Goudge, Watt and Pepall JJ.A.

BETWEEN

Association of Justices
    of the Peace of Ontario

Applicant (Appellant)

and

Her Majesty the Queen in Right of the Province of
    Ontario

Respondent (Respondent)

James Morton, for the appellant

Sunil Kapur and Lauren Cowl, for the respondent

Heard: August 22, 2013

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated May 23, 2012.

ENDORSEMENT

[1]

This is an appeal from two orders of Belobaba J.  The first adjourned
    for six months the appellants application for an interpretation of an Ontario
    Regulation.  The second dismissed that application.

[2]

In our view, the appeal from both orders must be dismissed.

[3]

In Ontario, the annual remuneration of Justices of the Peace is
    determined by a process very analogous to that for Ontario provincial judges
    and federally appointed judges.  An independent Commission makes a
    recommendation to which the Ontario government responds.  The government then
    implements its response.

[4]

The Commission recommendation for the 2008 remuneration of Justices of
    the Peace was made on December 18, 2008.  The respondent accepted the
    recommendation and passed a Regulation implementing it on May 29, 2009.

[5]

The Regulation provided for an increase in the remuneration of Justices
    of the Peace by the amount of the Statistics Canada index known as the
    Industrial Aggregate (Ontario), but did not quantify that amount.  The
    respondent determined the amount to be 2.7% based on the Statistics Canada
    calculation as of December 2008.

[6]

Because of a change in the method of calculation made by Statistics
    Canada in January 2009 that would have yielded a higher percentage, a dispute
    arose between the appellant and the respondent as to the correct percentage the
    respondent should use.  This resulted in the respondent referring the issue of
    the appropriate percentage back to the Commission.  It issued its report on May
    2, 2011, in which the majority recommended a compromise increase of 3.3%.

[7]

The respondent was slow to respond to this recommendation.  Before it
    did so, the appellant brought this application before Belobaba J. seeking an
    interpretation of the Regulation passed on May 29, 2009.

[8]

The application judge adjourned the application and granted the
    respondent an additional six months to respond to the Commission but, sensibly,
    on terms that would encourage settlement.

[9]

When it finally responded on November 20, 2012, the respondent explained
    why it rejected the compromise percentage and would continue to use the amount
    of 2.7%.

[10]

The
    appellant brought the application back before the application judge on December
    7, 2012.  He dismissed it based on the applicable jurisprudence beginning with
    the P.E.I. Reference (
Reference Re: Remuneration of Judges of the
    Provincial Court (P.E.I.
), [1997] 3 S.C.R. 3).  That case law provides that
    a governments determination of judicial remuneration made in response to a
    Commission recommendation is subject only to judicial review on a standard of
    rationality.  The appellants appropriate course therefore, was to proceed by
    judicial review, not to seek an interpretation of the implementing Regulation.

[11]

While
    the appellant appeals both orders of the application judge, Mr. Morton candidly
    acknowledged that only his appeal of the December 7, 2012 order matters.  If he
    succeeds in that appeal, his appeal of the adjournment order is of no moment.
    That is equally true if he fails in his appeal of the December 7, 2012 order.
    We therefore need say nothing more about the appeal of the adjournment order,
    and it is dismissed.

[12]

Turning
    to the appeal of the December 7, 2012 order, we agree with the application
    judge.  The real dispute between the parties is about the respondents response
    to the Commissions recommendations for the 2008 remuneration of Justices of
    the Peace.  The Regulation that the appellant seeks to have interpreted is merely
    the implementation of that response.  The jurisprudence of the Supreme Court of
    Canada makes clear that in these circumstances judicial oversight is by way of
    judicial review of the response, on a standard of rationality, not by judicial
    interpretation of the implementing Regulation.  In that way, the balance is
    preserved between judicial independence and the legislatures right to set
    judicial remuneration.  The appellants appropriate course therefore is to
    proceed by way of judicial review, not by way of an interpretation of the
    implementing Regulation.

[13]

The
    appeal is dismissed.  No costs are sought or ordered.

S.T.
    Goudge J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.