COURT OF APPEAL FOR ONTARIO

CITATION: Benson v. Belair Insurance Company Inc., 2019 ONCA
    840

DATE: 20191025

DOCKET: C65918 and C66726

Feldman, MacPherson and Simmons JJ.A.

BETWEEN

DOCKET: C65918

Austin Benson

Applicant (Appellant)

and

Belair
    Insurance Company Inc. and

Financial
    Services Commission of Ontario

Respondents (Respondents)

AND BETWEEN

DOCKET: C66726

Christopher
    Perneroski, by his Litigation

Guardian, Wendy Perneroski

Plaintiff (Respondent)

and

Echelon General Insurance Company

Defendant
    (Appellant)

Ian W. Furlong and Robert M. Ben, for the appellant
    Austin Benson

Eric K. Grossman and Patrick M. Baker, for the
    respondent Belair Insurance Company Inc.

Deborah McPhail and Martina Aswani, for the respondent
    Financial Services Commission of Ontario

Daniel Strigberger and Caroline L. Meyer, for the
    appellant Echelon General Insurance Company

Robert M. Durante and Ben Irantalab, for the respondent Christopher
    Perneroski

Heard: May 29, 2019

On appeal from the judgment of the Divisional Court (Regional
    Senior Judge Geoffrey B. Morawetz, and Justices Julie A. Thorburn and E. Ria
    Tzimas), dated April 9, 2018, with reasons reported at 2018 ONSC 2297, 141 O.R.
    (3d) 541, refusing an application for judicial review of a decision of the
    Financial Services Commission of Ontario (Appeal Division), dated February 15,
    2017, with reasons reported at 2017 CarswellOnt 3134.

On appeal from the order of Justice Annette Casullo of
    the Superior Court of Justice, dated February 28, 2019, with reasons reported
    at 2019 ONSC 1415.

Feldman J.A.:

Introduction

[1]

Two accidents. Two recreational off-road vehicles, an ATV and a dirt
    bike. Two catastrophic injuries. Both accidents occurred outside Ontario, one
    in British Columbia, one in Georgia, U.S.A. Both injured parties are from
    Ontario. Both have an Ontario automobile insurance policy for a car or truck
    they own in Ontario. Both insurers denied statutory accident benefits (SABs).
    Both were challenged in court but via different procedural routes. One sued in
    the Superior Court, which held that the insurer must pay the SABs. The other
    sought arbitration at the Financial Services Commission of Ontario. The Arbitrator
    denied the claim. That denial was upheld on appeal to the Directors Delegate
    and on judicial review by the Divisional Court.

[2]

Both appeals were heard together by this court as they both concern the
    interpretation of the same provisions of the
Insurance Act
,
R.S.O.
    1990, c. I.8, and the
Off-Road Vehicles Act
,
R.S.O. 1990, c.
    O.4, as they apply to out of province accidents.

[3]

For the reasons that follow, I would find that both insurers are obliged
    to pay SABs because both vehicles are automobiles that were involved in an
    accident within the meaning of the
Statutory Accident Benefits Schedule
    Effective September 1, 2010
,
O. Reg. 34/10 (the SABS Regulation
    34/10) and the
Statutory Accident Benefits Schedule  Accidents on or
    after November 1, 1996
,
O. Reg. 403/96 (the SABS Regulation
    403/96), collectively the SABS Regulations.

Background Facts

(1)

Benson v. Belair
:

[4]

The appellant, Mr. Austin Benson, was a resident of Ontario who was
    living in British Columbia in June 2013. On June 23, while a passenger on an
    all-terrain vehicle (ATV) that was owned and driven by a British Columbia
    resident driving on a public trail owned by the Northern Rockies Regional
    Municipality, Mr. Benson fell off and suffered a severe brain injury. He was
    the named insured under an Ontario automobile policy issued by the respondent,
    Belair Insurance Company Inc. That policy did not list an ATV as an insured
    vehicle.

[5]

Mr. Benson filed an application for accident benefits in Ontario. Belair
    denied coverage, contending that because the accident occurred in British
    Columbia, the question of whether an ATV constitutes an automobile for Ontario
    accident benefit purposes was to be determined under the laws of British
    Columbia which do not require ATVs to be insured as motor vehicles.

[6]

The parties were unable to resolve their dispute through mediation and Mr.
    Benson applied for arbitration at the Financial Services Commission of Ontario.
    The FSCO Arbitrator upheld Belairs denial of accident benefits. Mr. Bensons
    statutory appeal to the Directors Delegate and his further application for
    judicial review to the Divisional Court were both dismissed.

[7]

The Arbitrator rejected Mr. Bensons argument that Ontario legislation
    applied regardless of the jurisdiction in which the accident took place. He
    stated:

Rather, I agree with the Insurers analysis that the starting
    point of the analysis begins with the principle of
lex loci delicti
,
    which is a rule of private international law. The Supreme Court of Canada has
    stated that Canadas Constitution supports a rule that is certain and that
    ensures that an act committed in one part of this country will be given the
    same legal effect throughout country;
lex loci delicti
principle. Its
    support of this law is unequivocal because it allows for uniformity of legal
    effect throughout the country. On the whole, there is little to be gained and
    much to lose in creating an exception to
lex loci delicti
.

The Supreme Court of Canada decisions of
Tolofson v. Jensen
and
Lucas v. Gagnon
[[1994] 3 S.C.R. 1022] are particularly relevant
    when analyzing which provincial laws should be adhered to in the case before
    me. These cases address the choice of rule of law, which law should govern
    auto accidents involving residents of different provinces.

As it relates to the case before me, given that this incident
    occurred in British Columbia and using the Supreme Court of Canada decision as
    guidance; the laws of British Columbia and specifically the laws of British
    Columbia that relate to insurance requirements of an ATV at the time of the
    accident, should apply in this case.Clearly, Ontario law has no relevance to
    the insurance coverage regarding this vehicle.I am not convinced that the
    usage of the term any relevant law in the third part of the ordinary parlance
    test can be used to impose an Ontario insurance requirement on Mr. Askins ATV
    in British Columbia.

[8]

On appeal, the Directors Delegate upheld the Arbitrators decision. In
    his view, this was a matter of statutory interpretation. He concluded:

If any Act in s. 224(1)(a) [of the
Insurance Act
] refers
    strictly to Ontario law, it cannot apply to the ATVs owner in British
    Columbia, as Mr. Askin and his ATV fall outside of Ontarios jurisdiction. And
    if any Act can include Acts of British Columbia, the ATV was not required to
    be insured under a motor vehicle policy there, so again the any [sic] extended
    definition of automobile under relevant legislation does not apply.

[9]

On judicial review, the Divisional Court concluded that the application
    involved a matter of statutory interpretation to which the standard of review
    of reasonableness applied, and because the decision fell within the range of
    possible defensible outcomes, deference was warranted.

[10]

On
    the issue of whether Ontario or British Columbia law applied to the question of
    whether the ATV was required to be insured, the Divisional Court stated at
    paras. 39-42:

The Ontario Court of Appeal in
Adams v. Pineland Amusements
    Ltd.
, 2007 ONCA 844, 88 O.R. (3d) 321 held that when determining a case of
    liability insurance, "the proper question is whether the vehicle [involved
    in the accident] required motor vehicle insurance at the time and in the
    circumstances of the accident."

This ATV ("the vehicle") was not required to be
    insured under any motor vehicle liability insurance policy because this ATV was
    operated in British Columbia where ATVs need not be insured. At the time and in
    the circumstances of this accident, this ATV was not insured.

Moreover, there is no basis to assert that the Applicant had a
    legitimate expectation that his insurer would cover an accident involving ATVs,
    as ATVs are not included under this insured's policy.

Finally, although Ontario's
Off-Road Vehicles Act
states that "no person shall drive an off-road vehicle unless it is
    insured under a motor vehicle liability policy" under the
Insurance Act
,
    it is reasonable to assume that this provision only requires this of ATVs in
    Ontario, not ATVs in British Columbia. Accordingly, although an ATV in Ontario
    is required by Ontario's Off-Road Vehicles Act to be insured under a motor
    vehicle liability policy, the same cannot be said of the particular ATV in this
    case because it is an ATV located in British Columbia.

[11]

The
    Divisional Court concluded, at para. 46: the Director's Delegate's decision
    that the relevant legislation to consider is British Columbia legislation and
    the ATV did not therefore fall within the definition of an automobile for the
    purpose of the SABs, was reasonable.

(2)

Perneroski v. Echelon
:

[12]

The
    parties presented the court with an agreed statement of facts which formed the
    basis for the motion judges analysis. The respondent, Mr. Christopher
    Perneroski, is a resident of Ontario. The appellant, Echelon General Insurance
    Company, issued a standard Ontario OAP 1 motor vehicle liability policy to him
    as the named insured, with his Toyota pick-up truck as the described automobile
    under the policy. The insurance policy contained the statutory benefits set out
    in the SABS Regulation 403/96. There is no dispute that if Mr. Perneroski was
    involved in an accident, he would be an insured person under the policy and
    entitled to accident benefits.

[13]

He
    purchased a dirt bike on February 27, 2006, which he registered with the
    Ontario Ministry of Transportation. Just 12 days later, on March 11, 2006, Mr.
    Perneroski was tragically injured while riding the dirt bike on a closed track at
    a sports resort in Union Point, Georgia, U.S.A. He sustained a severe traumatic
    brain injury. He has spent the ensuing years in a wheelchair, requiring
    round-the-clock care and supervision. Mr. Perneroski submitted a claim for
    accident benefits under the insurance policy. Echelon denied the claim on the
    basis that the dirt bike was not an automobile, and therefore the incident was
    not an accident as defined in the SABS Regulation 403/96.

[14]

The
    motion judge referred to the definition of automobile in s. 224(1) in Part VI
    of the
Insurance Act
. Under that definition, automobile includes (a)
    a motor vehicle required under any Act to be insured under a motor vehicle
    policy. A dirt bike is an off-road vehicle. The
Off-Road Vehicles Act
provides in s. 15(1) that: [n]o person shall drive an off-road vehicle unless
    it is insured under a motor vehicle policy in accordance with the
Insurance
    Act
.
[1]
Subsection (9) provides an exception from the insurance requirement where the
    off-road vehicle is being driven on land occupied by the owner of the dirt
    bike. Similarly, s. 2(1) 5. of a regulation to the
Off-Road Vehicles Act, General
,
R.R.O. 1990, Reg. 863, (the ORVA Regulation) also provides an insurance
    exemption when the bike is being driven in a sponsored closed course competition
    or rally. Because the plaintiff was not in a rally or on his own property, the
    motion judge accepted that had the accident occurred in Ontario, he would have
    been entitled to receive accident benefits.

[15]

The
    issue became whether the same result applied when the accident occurred outside
    Ontario. The motion judge approached the question in the same way as it was
    approached in the
Benson
case, by asking what law applied, Ontario law
    or Georgia law. The motion judge found that she would exercise her discretion
    to apply the
lex fori
, the law of Ontario, rather than the
lex
    loci delicti
, the law of Georgia. However, in the alternative, recognizing
    that this was not a tort case but a contractual dispute, she applied the law of
    the jurisdiction where the contract was formed, again, Ontario law, and found
    that Mr. Perneroski was entitled to receive SABs.

Issue

[16]

These
    appeals were heard together because they both raise the same issue: Do the SABS
    Regulations and the definition of automobile in Part VI of the
Insurance
    Act
, apply differently if the accident occurs in Ontario or outside
    Ontario?

Analysis

[17]

Part
    VI of the
Insurance Act
of Ontario governs automobile insurance in
    this province. The provision of SABs in every motor vehicle liability policy is
    mandated by s. 268(1) which provides:

Every contract evidenced by a motor vehicle liability policy,
    including every such contract in force when the
Statutory Accident Benefits
    Schedule
is made or amended, shall be deemed to provide for the statutory
    accident benefits set out in the
Schedule
and any amendments to the
Schedule
,
    subject to the terms, conditions, provisions, exclusions and limits set out in
    that
Schedule
.

[18]

Both
    Mr. Benson and Mr. Perneroski, residents of Ontario, held motor vehicle
    liability policies with Belair and Echelon respectively.

[19]

The
    SABS Regulation 34/10, the version currently in force and the version that was in
    force at the time of the Benson accident, and the SABS Regulation 403/96, the
    version in force at the time of the Perneroski accident, define an accident as
    follows:

accident means an incident in which the use or operation of
    an automobile directly causes an impairment or directly causes damage to any
    prescription eyewear, denture, hearing aid, prosthesis or other medical or
    dental device[.]

[20]

And
    insured person is defined in the SABS Regulation 34/10 in part as follows:

insured person means, in respect of a
    particular motor vehicle liability policy,

(a) the named insured, any person specified in
    the policy as a driver of the insured automobile and, if the named insured is
    an individual, the spouse of the named insured and a dependant of the named
    insured or of his or her spouse,

(i) if the named insured, specified driver,
    spouse or dependant is involved in an accident in or outside Ontario that
    involves the insured automobile or another automobile, or

(ii) if the named insured, specified driver,
    spouse or dependant is not involved in an accident but suffers psychological or
    mental injury as a result of an accident in or outside Ontario that results in
    a physical injury to his or her spouse, child, grandchild, parent, grandparent,
    brother, sister, dependant or spouses dependant[.]
[2]

[21]

I
    note here that an insured person is within the definition whether the accident
    occurs in or outside Ontario.

[22]

Other
    provisions make it clear that SABs are payable where an automobile is used or
    operated whether in Canada, the United States or any other jurisdiction
    designated in the SABS Regulations. Section 243(2) of the
Insurance Act
provides:

Statutory accident benefits
    provided under section 268 apply to the use or operation of any automobile in
    Canada, the United States of America and any other jurisdiction designated in
    the
Statutory Accident Benefits Schedule
, and on a vessel plying between
    ports of Canada, the United States of America or a designated jurisdiction.

[23]

At
    the time of the accidents, s. 2(3) of the SABS Regulation 34/10 and s. 3(2) of the
    SABS Regulation 403/96 also provided:

The benefits set out in this Regulation shall be provided in
    respect of accidents that occur in Canada or the United States of America, or
    on a vessel plying between ports of Canada or the United States of America.

[24]

Importantly,
    both Mr. Perneroskis insurance policy and Mr. Bensons insurance policy specifically
    state under the heading Where You Are Covered:

This policy covers you and other insured persons for incidents
    occurring in Canada, the United States of America and any other jurisdiction
    designated in the Statutory Accident Benefits Schedule, and on a vessel
    travelling between ports of those countries.

[25]

As
    benefits are provided for an accident, and an accident only arises out of the
    use or operation of an automobile, one must look for the relevant definition of
    automobile. Because the SABS Regulations do not include that definition, this
    court in
Adams v. Pineland Amusements Ltd.
, 2007 ONCA 844, 88 O.R.
    (3d) 321, endorsed a three-part test for determining whether the vehicle that
    caused the particular damage or injury was an automobile for the purpose of the
    provisions: 1) Is the vehicle an automobile in ordinary parlance? 2) If not, is
    it defined as an automobile in the wording of the insurance policy? 3) If not,
    does the vehicle fall within any enlarged definition of automobile in a
    relevant statute?

[26]

It
    was accepted in both decisions under appeal that neither a dirt bike nor an ATV
    is considered to be an automobile in ordinary parlance. That proposition is not
    in dispute on the appeals.

[27]

Nor
    was it argued that either is defined as an automobile in the wording of the two
    respective policies.
[3]

[28]

Therefore,
    the issue in each case is whether the dirt bike and the ATV fall within any
    enlarged definition of automobile in a relevant statute. Section 224(1) of the
Insurance Act
, in Part VI, defines automobile for the purpose of
    Part VI in part as:

automobile includes,

(a) a motor vehicle required under any Act to be
    insured under a motor vehicle liability policy[.]

[29]

Section
    1 of the
Off-Road Vehicles Act
defines an off-road vehicle as follows:

off-road vehicle means a vehicle
    propelled or driven otherwise than by muscular power or wind and designed to
    travel,

(a) on not more than three wheels, or

(b) on more than three wheels and being
    of a prescribed class of vehicle[.]

[30]

It is agreed that both the dirt bike and the ATV are off-road vehicles
    governed by the
Off-Road Vehicles Act
. Subsections
    15(1)-(3) and (9) of the
Off-Road Vehicles Act
provide that an off-road vehicle cannot be driven without insurance, with the
    one exception that insurance is not required where the vehicle is driven on
    land occupied by the owner of the vehicle. Subsections 15(1) and (9) state:

(1) No person shall drive an off-road
    vehicle unless it is insured under a motor vehicle liability policy in
    accordance with the
Insurance Act
.

(9) Subsections (1), (2), and (3) do
    not apply where the vehicle is driven on land occupied by the owner of the
    vehicle.

[31]

As
    mentioned earlier, s. 2(1) 5. of the OVRA Regulation also provides an insurance
    exemption when an off-road vehicle is driven in a sponsored closed course
    competition or rally:

2.
(1) The
    following are designated as classes of vehicles that are exempt from the
    provisions of the Act and this Regulation:

[]

5. Off-road vehicles driven or
    exhibited at a closed course competition or rally sponsored by a motorcycle
    association.

[32]

In neither incident was the off-road vehicle being driven on land that
    was occupied by the owner of the vehicle or in a sponsored rally. Mr. Benson
    was a passenger on an ATV owned and driven by Mr. Lee Askin in British Columbia
    on a trail that was owned and operated by the Northern Rockies Regional
    Municipality. Mr. Perneroski was driving his own dirt bike on a closed track at
    a sports resort in Georgia.

[33]

All agree that had the two incidents happened in Ontario, the two
    injured parties would have been entitled to receive SABs under their respective
    policies. Why? The two off-road vehicles would be automobiles within the
    extended definition in s. 224(1) of the
Insurance Act
, because under s. 15(1) of the
Off-Road Vehicles Act
, they would have required insurance in order to be driven in the
    locations they were being operated at the time of the accidents.

[34]

However, the same insurance requirement did not apply in either Georgia
    or British Columbia for dirt bikes and ATVs. In both cases under appeal, the
    courts and tribunals set out to determine whether the law of Ontario or the law
    of the jurisdiction where the incidents occurred governed the SABs entitlement
    issue, applying the legal constructs of
lex loci delicti
and
lex fori
. In my view, they erred in
    so doing.

[35]

As
    the motion judge in the
Perneroski
case recognized in her reasons, the
    issue before the court was not a tort claim arising out of an accident in
    another jurisdiction involving an Ontario resident and a local resident, where
    the choice of law rules from
Tolofson v. Jensen
,
[1994] 3
    S.C.R. 1022, must be considered and applied: see
Kingsway General Insurance
    Co. v. Canada Life Assurance Co.
(2001), 149 O.A.C. 303 (C.A.), at para.
    12.

[36]

The
    issue in the two cases under appeal is the proper interpretation and
    application of the respective insurance contract provisions and the Ontario
    statutes that govern SABs entitlement.

[37]

When
    all the relevant provisions are examined, it is clear, in my view, that Ontario
    law governs and that the provisions that dictate the result for Ontario
    incidents dictate the same result for incidents that take place outside Ontario
    that are covered under the automobile insurance policy.

[38]

The
    interpretive stumbling block that has challenged the courts and tribunals is the
    wording of s. 15(1) of the
Off-Road Vehicles Act
. That is the section
    that makes an off-road vehicle an automobile within the expanded definition in
    s. 224(1) of the
Insurance Act
because it requires insurance when such
    vehicles are driven. However, that requirement is not enforceable outside
    Ontario. As with any Ontario Act, it can only be enforced in Ontario. That led
    the Divisional Court to conclude that an off-road vehicle is only an automobile
    when it is being driven in Ontario.

[39]

With
    respect, that interpretation fails to read the section in the context and for
    the purpose of s. 224(1) of the
Insurance Act
.

[40]

As
    a stand-alone statute, the
Off-Road Vehicles Act
governs the use and
    operation of off-road vehicles when they are not being driven on a highway. It
    includes a number of enforcement provisions which apply only in Ontario.
    However, s. 224(1) of the
Insurance Act
contains a direction for the
    purpose of applying s. 3(1) of the SABS Regulation 34/10 (
formerly
    s. 2(1) of the SABS Regulation 403/96)
, to examine other Ontario statutes
    in order to determine whether a particular motor vehicle comes within the expanded
    definition of automobile by requiring that motor vehicle to be insured.

[41]

I
    say Ontario statutes because s. 224(1) refers to any Act, and s. 87 of the
Legislation
    Act
, 2006
, S.O. 2006, c. 21, Sched. F, states that the words Act
    and statute, when used in an Act or regulation, mean an Act of the
    Legislature of Ontario. Therefore, it is an error to look to a statute of
    another jurisdiction or to see if there is a statute in that jurisdiction that
    requires insurance. The expanded definition must be found in an Ontario Act.

[42]

On
    a plain reading of ss. 15(1) and (9) of the
Off-Road Vehicles Act
, and
    s. 2(1) 5. of the ORVA Regulation, insurance is required to drive an off-road
    vehicle except on the owners own property or where the off-road vehicle is designated
    by regulation as an exempt class of vehicles. Those sections therefore have the
    effect of defining an off-road vehicle as an automobile for the purpose of s.
    224(1) and s. 3(1) of the SABS Regulation 34/10 (formerly s. 2(1) of the SABS
    Regulation 403/96), except when it is driven on the owners own property or in
    a sponsored closed course competition or rally. There is no language that
    limits that definition to off-road vehicles driven in Ontario.

[43]

This
    result is consistent with the provisions of the
Insurance Act
, the
    SABS Regulations, and the contract language, which all state that the SABs will
    be provided whether the incident occurs anywhere in Canada, the U.S.A. or the
    other designated jurisdictions. The effect of the Divisional Courts
    interpretation would be to read out the expanded definition of automobile for
    incidents that occur outside Ontario and limit SABs payments accordingly. Even
    if the local laws where the incident occurred required insurance for the
    off-road vehicle, as I explained above, such laws do not inform the definition
    of automobile.

[44]

The
    result is also consistent with the statutory scheme for insurers liability for
    payment of SABs set out in ss. 268(2)-(5.2) of the
Insurance Act
. Those
    sections mandate which insurer pays the SABs, depending on the factors listed
    in the sections including whether the claimant is an occupant of an automobile
    or a non-occupant. Again, there is no differentiation based on where the
    incident that caused the loss or injury occurred. By applying the same
    definition of automobile no matter where the incident occurs, the same insurer
    will be called on to pay the benefits. There is no unfairness among insurers
    arising from this result.

[45]

I
    also respectfully disagree with the statement by the Divisional Court that Mr.
    Benson could have no legitimate expectation that his insurer would cover an
    accident involving an ATV because ATVs were not included in his policy. To the
    contrary, the SABS Regulations make it clear that if you are a defined insured
    person you are covered for incidents in the insured automobile
or another
    automobile
. A person can expect coverage if the accident occurs in an
    automobile within the extended definition.

[46]

The
    Divisional Court also referred to a statement in this courts decision in the
Adams
case at paras. 16 and 17 where the court said: [t]he proper question was
    whether [the vehicle] required motor vehicle insurance at the time and in the
    circumstances of the accident. The Divisional Court interpreted that statement
    to mean that if the vehicle is being driven outside Ontario in a jurisdiction
    that does not require insurance, that is a circumstance that precludes the
    vehicle from being an automobile within the extended definition.

[47]

I
    would not extend the intended effect of that statement to treat the fact that an
    incident occurred outside Ontario as a relevant circumstance for the purpose of
    determining whether the vehicle is an automobile for SABs purposes. That
    statement was made in the context of an Ontario action where the issue was
    whether a go-kart was an automobile for the purposes of receiving SABs. The
    argument had been made that the go-kart was an automobile because it
    conceptually might require insurance if it were illegally driven on a highway.
    The court looked at the actual timing and circumstances of the accident in
    rejecting that proposition. Because the go-kart was operated on a private
    go-kart track at the time of the accident, it did not require insurance.

[48]

A
    similar analysis applies when reviewing other Court of Appeal decisions that
    have considered the labyrinth of provisions under the relevant Ontario statutes
    including the
Insurance Act
, the Statutory Accident Benefits Schedule,
    the
Compulsory Automobile Insurance Act
, R.S.O. 1990, c. C.25, the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, the
Off-Road Vehicles Act
, and the
Motorized Snow Vehicle Act
, R.S.O. 1990, c. M.44, for the purpose of
    determining whether such vehicles as a tomato wagon, a back-hoe, or a farm
    tractor were automobiles for the purposes of the
Insurance Act
. These
    cases include
Copley v. Kerr Farms Ltd.
(2002), 59 O.R. (3d) 346 (C.A.),
Morton v. Rabito
(1998), 42 O.R. (3d) 161 (C.A.), leave to appeal
    refused, [1999] S.C.C.A. No. 51, and

Regele v. Slusarczyk
(1997), 33 O.R. (3d) 556 (C.A.). In each of these cases, the relevant time and
    circumstance were where the particular vehicle was at the time of the incident,
    and whether an Ontario statute required it to be insured at that time. I have
    not been referred to any case that involved incidents that occurred outside
    Ontario.

[49]

To
    conclude, I am satisfied that when considering the extended definition of
    automobile, the circumstances to be considered are those mandated by the
    relevant statutory provisions that state when a vehicle is required to be
    insured under a motor vehicle liability policy. As a definitional mechanism,
    the provisions are applicable to any incident for which SABs may be payable in
    the same manner, regardless of where the incident occurred within the
    geographical coverage area of the relevant Ontario insurance policy.

Standard of Review

[50]

The
Benson

appeal is from a judgment denying an application for judicial
    review by the Divisional Court of a decision of the Directors Delegate on
    appeal from a Financial Services Commission of Ontario arbitrator, with leave
    granted by this court. The Divisional Court held that the reasonableness
    standard of review applies. I agree.

[51]

In
    my view, the decision of the Directors Delegate was unreasonable and must be
    set aside. This is the type of case recognized by the Supreme Court of Canada
    in
McLean v. British Columbia (Securities Commission)
, 2013 SCC 67, [2013]
    3 S.C.R. 895, at para. 38, where the range of reasonable outcomes will
    necessarily be limited to a single reasonable interpretation.

[52]

There can be only one reasonable interpretation of the statutory language
    regarding the extended definition of automobile. The language is not unclear
    or ambiguous. With respect, the Arbitrator and the Directors Delegate
    proceeded on a legal misapprehension that the
lex loci delicti
should
    be applied to a contract and statutory interpretation issue involving an
    Ontario contract and Ontario legislation where that legislation specifically
    directs that Ontario law is to apply:
Insurance Act
at s. 123. An
    interpretation of the statutory language cannot be within a range of reasonable
    outcomes where it is erroneously based on inapplicable legal principles. Further,
    the provisions of the statutes in question and the standard form motor vehicle
    insurance policy must have the same meaning for all claimants. The factual
    circumstances of the claimants will differ and require adjudication, but the
    application of the legislative provisions must be uniform.

Conclusion

[53]

I would dismiss the
Perneroski
appeal with costs fixed in the agreed
    amount of $10,000 inclusive. I would allow the
Benson
appeal with
    costs fixed in the agreed amount of $5,000 inclusive for the appeal and $4,000
    inclusive for the motion.

Released: K.F. October 25, 2019

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

[1]

The
Off-Road Vehicles Act
does not have any application
    to an off-road vehicle being driven on a highway (s. 2). In that circumstance,
    other statutes govern. Insurance is required for off-road vehicles driven on a
    highway (and therefore it is an automobile under the extended definition in s.
    224(1) of the
Insurance Act
), see s. 2(1) of the
Compulsory
    Automobile Insurance Act,
R.S.O. 1990, c. C.25 and s. 1(1) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8.

[2]

A substantively similar definition was provided in the previous
    SABS Regulation 403/96, which read in part:

insured
    person in respect of a particular motor vehicle liability policy, means,

(a)

the named insured, any
    person specified in the policy as a driver of the insured automobile, the
    spouse of the named insured and any dependant of the named insured or spouse,
    if the named insured, specified driver, spouse or dependent,

(i)

is involved in an
    accident in or outside Ontario that involves the insured automobile or another
    automobile, or

(ii)

is not involved in an
    accident but suffers psychological or mental injury as a result of an accident
    in or outside Ontario that results in a physical injury to his or her spouse,
    child, grandchild, parent, grandparent, brother, sister, dependant or spouses
    dependant,

[3]
Mr. Perneroski took the position that his dirt bike was defined in the
    insurance policy as an automobile in the court below but the motion judge
    concluded, at para. 52, that as the dirt bike was an automobile under the third
    branch of the
Adams
test, it was not necessary to deal with the second
    branch. Mr. Perneroski did not take the position that the dirt bike was defined
    as an automobile in the insurance policy in this appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Bernard Property Maintenance v. Taylor, 2019
    ONCA 830

DATE: 20191021

DOCKET: C66638

Juriansz, Benotto and Miller JJ.A.

BETWEEN

Bernard Property Maintenance

Applicant/Respondent

(Respondent)

and

Paul Taylor

Respondent/Appellant

(Appellant)

Paul Taylor, acting in person

David S. Strashin, for the respondent

Heard: September 26, 2019

On appeal from the order of Justice David Price of the
    Divisional Court, dated July 16, 2018, with reasons reported at 2018 ONSC 4390,
    affirming two decisions of the Landlord Tenant Board, dated July 18, 2017 and
    July 25, 2017.

Juriansz J.A.:

A.

Appeal Improperly Brought in this Court

[1]

This appeal from a single judge of the Divisional Court came before us
    sitting as a panel of the Court of Appeal. At the outset we asked the parties
    to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued
    that appeal lay to this court pursuant to s. 6(1) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43.

[2]

I disagree. A line of authority establishes that the proper process to
    set aside or vary a decision of a single judge of the Divisional Court is a
    motion pursuant to s. 21(5) of the
CJA

before a panel of the Divisional
    Court. Mr. Taylors appeal was improperly filed in this court.

[3]

In
Overseas Missionary Fellowship v. 578369 Ontario Ltd
. (1990),
    73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional
    Court should take precedence over and exclude the general terms of the provisions
    governing appeal to this court, currently at s. 6(1) of the
CJA
: at p.
    75. More recently, in
Alliance to Protect Prince Edward County v. Ontario
    (Environment and Climate Change)
, 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers
    J.A. observed that the structure of the [
CJA
] requires a person to
    exhaust the remedial jurisdiction of the Divisional Court before coming to the
    Court of Appeal: at para. 13. In
Coote v. Ontario (Human Rights
    Commission)
, 2010 ONCA 580, this court summarily quashed an appeal of an
    order of a single judge of the Divisional Court to the Court of Appeal,
    stating, The appellants proper appeal route is to a panel of the Divisional
    Court on a motion under s. 21(5) of the
Court of Justice Act
: at para.
    2.

[4]

The reconstitution of a panel of this court as a panel of the
    Divisional Court is an action that is practically abandoned:
P.M. v.
    M.A
., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that
    this court granted Mr. Taylor leave to appeal, a stay of the order
    below, and an extension of time, we reconstituted ourselves as a panel of
    the Divisional Court to hear and determine the matter as if it were a motion
    brought under s. 21(5) of the
CJA
with the assent of the Chief Justice
    of the Superior Court of Justice and the consent of the parties.

B.

Merits of the Present Appeal

(1)

Procedural History

[5]

Mr. Taylor is a tenant in a property that was managed by the responding
    party, Bernard Property Maintenance (Bernard Property). On June 7, 2017 Bernard
    Property commenced applications before the Landlord and Tenant Board the
    Board) to end Mr. Taylors tenancy, evict him, and collect unpaid rent. On
    June 12, 2017, the Board gave notice that the applications would be heard on
    July 17, 2017. Mr. Taylor did not attend on that day, and the Board Member granted
    the applications and made an eviction order.

[6]

Mr. Taylor sought a reconsideration, submitting that the Member failed
    to accommodate his disabilities by not granting an adjournment. On July 25, 2017,
    the Board Vice Chair issued a decision denying his request to review the Members
    order. Mr. Taylor then appealed to the Divisional Court on July 27, 2017.

[7]

Bernard Property brought two unsuccessful motions to dismiss Mr.
    Taylors appeal for delay. The first was rejected as it had not been filed and
    served properly. The second was dismissed on terms that Mr. Taylor pay rent and
    take steps to perfect his appeal.

[8]

On June 27, 2018, Bernard Property brought a third motion to dismiss Mr.
    Taylors appeal for delay in perfecting, because the appeal was frivolous,
    vexatious, or an abuse of process, and because Mr. Taylor had not complied with
    the earlier order to pay rent. Price J., sitting as a single judge, granted the
    motion on July 16, 2018 and made an order that, among other things, dismissed
    Mr. Taylors appeal for delay on the ground of his failure to perfect the
    appeal, pursuant to Rule 61.13(1) and (3) of the
Rules of Civil Procedure

    and on the ground that it is manifestly devoid of merit, frivolous and/or
    vexatious pursuant to Rule 21.01(3)(d) of the
Rules of Civil Procedure
.

[9]

Mr. Taylor then filed appeal proceedings in the Court of Appeal,
    proceedings that are now being treated as a motion for review under s. 21(5) of
    the
CJA
.

(2)

Grounds of Appeal

[10]

Mr.
    Taylor raises two main grounds of appeal. First, he argues that the motion
    judge lacked jurisdiction to dismiss his appeal. Second, he argues that on the
    merits, the appeal raised the substantial issue of whether the Board failed to
    accommodate his disabilities, contrary to the
Canadian Charter of Rights
    and Freedoms, the Ontario Human Rights Code
, R.S.O. 1990, c. H.19, and
    other legislation.

[11]

For
    the reasons that follow, I would reject these submissions.

(3)

Jurisdiction of the Judge Below

[12]

Mr.
    Taylor argues that the motion judge relied on inapplicable rules to ground his
    jurisdiction to quash the appeal. He points out that r. 61.13 bestows
    jurisdiction to dismiss an appeal for delay on the Registrar of the court, not
    on a judge, and r. 21.01(3)(d) applies to an action before trial. The
    definition of action does not include an appeal: see r. 1.03(1).

[13]

Counsel
    for Bernard Property submits that the motion judge had jurisdiction to quash
    the appeal under s. 134(3) of the
CJA
. He said such orders are made regularly
    by single judges of the Divisional Court. While he did not cite any examples,
    there are many.

[14]

Cases
    in which appeals from the Landlord and Tenant Board have been quashed include
Regan
    v. Ennis
, 2016 ONSC 7143 (Div. Ct.);
Shields v. Lancelotte
, 2016
    ONSC 4433 (Div. Ct.); and
Houle v. Hayes
, 2010 ONSC 924, 91 R.P.R.
    (4th) 285 (Div. Ct.).
Panels of the Divisional Court have upheld decisions
    of single judges quashing appeals under s. 134(3) of the
CJA
: see, e.g.,
Regan v. Latimer
, 2016 ONSC
    4351 (Div. Ct.), affg 2016 ONSC 4132 (Div. Ct.), leave to appeal to Ont. C.A.
    dismissed for delay, M46871 (November 16, 2016);
Bérubé v. Rational
    Entertainment Limited
, 2010 ONSC 5545, 271 O.A.C. 151 (Div.
    Ct.), affg 2009 CarswellOnt 8674 (Div. Ct.), leave to appeal to Ont. C.A. dismissed
    for delay, M39388 (January 19, 2011).

[15]

It
    should be noted that r. 61.16(2.2), which provides that a motion for an order
    that finally determines an appeal should be heard by a panel of not fewer than three
    judges, expressly applies only to the Court of Appeal. Conversely, s. 21(3) of
    the
CJA
provides that a motion in the Divisional Court shall be heard
    by one judge, unless the court provides otherwise.

[16]

The
    motion judge in this case did not specifically state that he was acting under
    s. 134(3) of the
CJA
. However, Mr. Taylor was put on notice that the
    respondent was applying for an order dismissing his appeal because it had no
    merit. That issue was fully argued before the motion judge. I am satisfied that
    he had jurisdiction to quash the appeal as devoid of any merit and his order is
    not rendered a nullity simply because he did not cite s. 134(3).

(4)

Merits of the Appeal, Under s. 21(5) of the
CJA

[17]

Mr.
    Taylor submits that his appeal had merit because it raised the substantial
    issue of whether the Board had failed to accommodate his disabilities. He telephoned
    the Boards offices on July 17, 2017, the morning of his hearing, to indicate he
    could not attend the hearing because of disability. He says he was told that
    the Board does not grant adjournments to tenants.

[18]

This
    submission requires a review of what transpired before the Board and what the Board
    decided.

[19]

The
    Boards Notice of Hearing was issued on June 12, 2017 for the hearing date July
    17, 2017. The Notice stated: It is very important for you to attend the
    hearing. If you are late, or if you do not attend your hearing, it may take
    place without you. For tenants who could not attend the hearing, the Notice
    provided the following advice: you should send someone who has your written
    permission to represent you. If you or your representative do not attend, the
    Board may hold the hearing without you and you will not be sent any further
    notice of the proceedings.

[20]

In
    his reasons dated July 18, 2017, the Member noted that Mr. Taylor did not
    attend the hearing and the hearing proceeded in his absence. The Member later
    learned that Mr. Taylor had called the Boards hotline to advise he would not
    be attending, but the Member indicated he would not have granted an adjournment
    had he known of the call. The Member observed that Mr. Taylor had prior notice
    of the hearing, that he did not contact the landlord in advance to request an
    adjournment, that he did not avail himself of the Boards rescheduling procedures,
    that he did not send an agent, and that he simply called minutes before the
    hearing was scheduled to begin to advise he would not attend. The Member noted
    that Mr. Taylor had requested similar adjournments in the past and concluded
    that he was gaming the system and abusing procedure for the purpose of delay.

[21]

The
    Member ruled in favour of the Landlord and terminated the tenancy, ordering Mr.
    Taylor to move out by July 31, 2017 and pay $2,869.39, a sum representing his rent
    owing and Board fees, less his rental deposit.

[22]

Mr.
    Taylor subsequently requested review of the Boards decision, which was denied
    on July 18, 2017. The Vice Chair of the Board was not satisfied that there was
    a serious error in the order or that a serious error occurred in the
    proceedings. She stated that the Member clearly and completely gave solid
    reasons as to why the adjournment was not granted, noting that the Boards
    records of Mr. Taylors phone call made no mention of the disability he says
    required adjournment. The Vice Chair concluded that given the Members
    knowledge of Mr. Taylors past interactions with the Board, the Member
    exercised his discretion reasonably.

[23]

In
    the Divisional Court, the motion judge began by noting that in order to have
    merit, an appeal from the Board must be based on a ground of law. At para. 33,
    he explained the scope of the Divisional Courts powers of review:

The Divisional Court is not a venue where a Tenant is entitled
    to have the facts of his case re-litigated. In the present case, where the Tribunal
    has found as a fact that Mr. Taylor repeatedly failed to pay his rent, and that
    finding of fact was within the scope of his authority and jurisdiction, an
    appeal based on a dispute that fact has no merit.

[24]

The
    motion judge went on to find that there was no evidence in the material before
    him to support a finding that the Board discriminated against Mr. Taylor on the
    ground of disability by failing to adjourn the hearing on July 17, 2017: at
    para. 37. The Board offered accommodations for those who could not attend
    hearings, namely a procedure for rescheduling hearings and the ability to send
    an agent to a hearing on a tenants behalf: at para. 39. The motion judge noted
    that Mr. Taylor offered no evidence that he was not able to attend the hearing
    himself to argue for an adjournment on the ground of disability, reschedule the
    hearing in compliance with the Boards procedures, or send an agent on his
    behalf: at para. 40. The motion judge held that in failing to provide such evidence,
    Mr. Taylor failed to establish a
prima facie
case of discrimination: at
    para. 43.

[25]

The
    motion judge found that Mr. Taylor had breached an earlier order of the
    Divisional Court by failing to pay his rent from August to December 2017, and
    for June and July 2018. He was $9,975 in arrears of his rent for seven months:
    at para. 44. The motion judge noted that Mr. Taylor provided no evidence to
    support his claim that he had complied with the order and paid his rent: at
    para. 45.

[26]

In
    challenging the decision of the motion judge under s. 21(5) of the
CJA
,
    Mr. Taylor has the burden of establishing that the single judge made an error
    of law or a palpable and overriding error of fact: see

Marsden v.
    Ontario (Minister of Community Safety and Correctional Services)
, 2012
    ONSC 6118 (Div. Ct.).

[27]

Mr.
    Taylor has failed to satisfy that burden. Mr. Taylor does not point out any
    error of law in the motion judges reasoning. Moreover, the motion judges
    decision dismissing Mr. Taylors appeal for lack of merit is amply supported by
    the record. The motion judge could interfere only if the Members refusal to
    grant an adjournment was an unreasonable exercise of the Members discretion.
    The Members finding that Mr. Taylor failed to pay rent and was gaming the
    system for delay is a finding of fact. Given that finding of fact, the
    Members refusal to grant an adjournment was an entirely reasonable exercise of
    his discretion. The Vice Chair reasonably concluded Mr. Taylor had failed to
    show a serious error in the Members reasoning. As she stated, [a]bsent a serious
    error, a review is not an opportunity to extend time and permit the Tenant to
    occupy a rental unit for a longer period, especially if rent is not being
    paid.

[28]

There
    is no basis to set aside or vary the order of the motion judge dismissing Mr.
    Taylors appeal for lack of merit.

[29]

I
    consider it unnecessary to discuss other matters Mr. Taylor raised in his
    written argument. The substitution of the landlord as respondent in place of
    the landlords agent was inconsequential and it was within the motion judges
    discretion to admit fresh evidence.

[30]

The
    motion to set aside or vary the order of the motion judge is dismissed.

[31]

The
    respondent does not seek costs.

Released: RGJ OCT 21 2019

R.G. Juriansz J.A.

I agree. M.L. Benotto J.A.

I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Birtzu v. McCron, 2019 ONCA 777

DATE: 20191002

DOCKET: C66048

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Julian
    Birtzu and Valentin Birtzu

Plaintiffs (Respondents)

and

Constance McCron and the Estate
    of Constantin Birtzu

Defendants (Appellants)

Ian M. Hull and Doreen Lok Yin So, for
    the appellant, Constance McCron

Peter M. Callahan, for the respondent,
    Julian Birtzu

No one appearing for the respondent,
    Valentin Birtzu

Heard: September 19, 2019

On
    appeal from the order on costs in respect of the trial proceedings made on
    April 11, 2017 by Justice Bloom of the Superior Court of Justice, with reasons
    reported at 2017 ONSC 2276.

REASONS FOR DECISION

I

[1]

This appeal is brought with leave from the order
    of the trial judge, directing that the parties should bear their own costs of
    the proceeding. At the end of oral argument, the court advised the parties that
    the appeal was allowed and the cost order varied to award costs to the appellant
    (defendant at trial) on a partial indemnity basis, fixed at $150,000. The court
    indicated that reasons would follow. These are those reasons.

II

[2]

Constantin Birtzu (Mr. Birtzu) died on April
    29, 2009. He had three children, two sons, Julian and Valentin, and a daughter,
    Constance. Mr. Birtzus wife had died in 2005.

[3]

In January 2006, Mr. Birtzu executed a will,
    leaving his entire estate to his daughter, Constance. Previous wills had
    distributed the estate among his three children and his grandchildren.

[4]

In August 2011, Julian and Valentin commenced an
    action against Constance and the estate. They sought:

·

to set aside the 2006 will;

·

a declaration that part of Constances home was
    held in trust for the estate of Mr. Birtzu;

·

an accounting of the assets of the estate; and

·

damages against Constance for conversion of
    estate property and breach of fiduciary duty.

[5]

The trial lasted for 21 days. Ultimately, the
    trial judge dismissed all of the claims made by Julian and Valentin. He held
    that the claims were statute-barred by the
Limitations Act, 2002
. He
    further held that, although Julian and Valentin had shown suspicious
    circumstances in relation to the execution of the 2006 will arising from Mr.
    Birtzus dementia, Constance had discharged her onus to prove testamentary
    capacity. The trial judge further held that Julian and Valentin had failed to
    show undue influence.

[6]

Having determined that the claims were statute-barred
    and that the will was valid in any event, the trial judge did not consider the
    merits of the other claims advanced by Julian and Valentin.

[7]

Julian and Valentin commenced an appeal from the
    trial judges decision. That appeal was dismissed for delay. A motion to set
    aside the dismissal failed. Constance sought and obtained leave to appeal the
    costs order.

III

[8]

Cost awards are discretionary. This court seldom
    grants leave to appeal a cost order and will vary that order only if the
    appellant demonstrates legal error, or that the order is plainly wrong:
Hamilton
    v. Open Window Bakery Ltd.
, [2004] 1 S.C.R. 303, at para. 27.

[9]

Constance was entirely successful at trial. In
    the normal course, she would have received her costs. Nor was this a case for
    costs payable by the estate. Constance was the sole beneficiary of the estate.

[10]

In his brief costs endorsement, the trial judge
    made reference to two features of the trial proceedings before indicating that
    there would be no award as to costs. First, he noted that Julian and Valentin
    had successfully established suspicious circumstances surrounding the 2006
    will, but had failed in their claim on account of the limitation period.
    Second, the trial judge indicated that Constance had given misleading evidence
    about her fathers mental state. He held that Constances attempt to mislead
    the court could not be condoned and was relevant to his costs decision.

[11]

With respect, the trial judges costs
    endorsement, which suggests that Constance was successful only by virtue of the
    limitation period defence, mischaracterizes the trial judges detailed factual
    findings in his reasons for judgment. The trial judge accepted that Julian and
    Valentin had shown suspicious circumstances in respect of the 2006 will.
    However, he went on to find that Constance had rebutted those suspicious
    circumstances and demonstrated her fathers testamentary capacity. The trial
    judge made strong findings of fact in favour of Constance on both the
    testamentary capacity and the undue influence issues. Those findings are set
    out below:

[136] In coming to my conclusion on testamentary
    capacity I have had regard also to the six clinical factors listed by Dr.
    Shulman and the legal factors listed in the case law I have examined,
    particularly
Banks v. Goodfellow
,
supra
.
Constantin knew that he was making a will giving his entire
    estate to his daughter. He did so to reward her for her care and assistance; he
    felt that he had done enough for his sons financially as stated by Mr. Schwind
.

[137] The Plaintiffs have not discharged their
    onus to prove undue influence. Constantin was susceptible to undue influence by
    reason of his age, dementia, and depression as noted by Dr. Shulman. Moreover,
    Connie made the arrangements to have the will drafted and was the sole
    beneficiary.
However, the evidence falls far short of
    establishing the elements set out by the case law I have previously reviewed.
    There is no proof of coercion by Connie, nor is there proof that she subverted
    the testators wishes to borrow phraseology from Dr. Shulman
. The
    testators gratitude to her and the absence of similar sentiments toward his
    sons explain why he made the will in question. [Emphasis added.]

[12]

Julian and Valentin lost at trial on all fronts.
    The implication in the cost endorsement that success had been somehow divided
    at trial is not borne out by an examination of the trial judges reasons for
    judgment.

[13]

The second reason given for denying Constance
    her costs  her misleading evidence at trial  is reflected in the trial
    judges reasons for judgment. He found that Constance lied about her
    recollection of conversations she had with her fathers doctor relating to her
    fathers mental condition in late 2004. She denied that the doctor had told her
    that her father had dementia. The doctor testified that he had told Constance
    about the dementia. The trial judge believed the doctor.

[14]

Counsel for Constance invites us to reconsider
    the trial judges credibility assessment. We will not do so. It was open to the
    trial judge to find that Constance misled him concerning her recollection of
    the conversations with her fathers doctor.

[15]

The conduct of a litigant in the course of a trial,
    including offering misleading testimony, can be relevant in assessing costs. Costs
    are not, however, used to punish a litigant for giving misleading evidence.

[16]

Constances misleading evidence about her
    recollection of her conversations with her fathers doctor had no effect on
    either the length of the trial, or the conduct of the trial. Her misleading
    evidence also had no impact on the trial judges findings. The trial judge
    accepted the thrust of Constances evidence concerning her fathers testamentary
    capacity, no doubt because that evidence was corroborated by other credible
    independent witnesses.

[17]

Although, as the trial judge properly pointed
    out, misleading evidence can never be condoned, the misleading evidence given
    by Constance cannot justify, on its own, a denial of costs in respect of a
    21-day trial in which Constance was entirely successful in defending the will. The
    trial judge erred in law by focusing his costs analysis almost exclusively on
    the misleading nature of one aspect of Constances evidence.

[18]

Counsel for Constance also argues that the reasons
    for the cost award are so brief as to be entirely inadequate. He submits that inadequate
    reasons constitute a freestanding error in law, justifying appellate
    intervention.

[19]

Trial judges are very familiar with the factors
    that are relevant to costs assessments and have considerable experience in
    blending those factors to meet the needs of a particular case. That experience
    allows trial judges to hone in on the important factors. They should not be expected
    to provide a grocery list of the potentially relevant factors in their
    reasons.

[20]

We think it was, however, incumbent on the trial
    judge in this case, to more fully explain why, despite Constances total
    success, she was denied her costs. Nor does the endorsement refer to other
    factors that added further weight to Constances claim to costs. The trial
    judge made no reference to the offers to settle made by Constance. She made two
    written offers. While both were operative for a relatively brief time period,
    and had been withdrawn by trial, they were nonetheless substantial offers,
    which obviously exceeded the result eventually achieved by Julian and Valentin.
    The trial judge also made no reference to the complexity of the proceedings.
    That complexity, reflected in the length of the trial, flowed in large measure
    from the multi-front challenge Julian and Valentin made to the will and the
    distribution of the estate assets. Constance had to reply to all allegations
    and claims.

[21]

For the reasons set out above, we are satisfied
    that the trial judges costs order was plainly wrong. Appellate intervention
    is warranted.

IV

[22]

Constance was entirely successful at trial. Costs
    should have followed the result. We also see no reason why the award should be
    on anything other than a partial indemnity basis. We would fix the quantum at
    $150,000. In doing so, we are guided principally by the amount claimed by
    Julian and Valentin for costs on a partial indemnity basis.

[23]

Constance is entitled to her costs of the
    appeal. We would fix those costs at a total of $10,000, inclusive of the leave
    application, disbursements and relevant taxes. The costs are payable by both
    Julian and Valentin.

Doherty
    J.A.

A.
    Harvison Young J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Byrd v. Allianz Global Risks US
    Insurance Company, 2019 ONCA 858

DATE: 20191030

DOCKET: C65846

Strathy C.J.O., Sharpe and
    Roberts JJ.A.

BETWEEN

Sharon
    Byrd and David Byrd

Plaintiffs
(Respondents)

and

Allianz Global Risks US Insurance Company
,
    McDougall
Insurance Brokers Ltd., Bay of Quinte Mutual Insurance Co.,
and Doug Whitley Insurance Brokers Limited c.o.b.
Whitley Insurance & Financial Services

Defendants
(
Appellant
)

Clay Hunter, for the appellant

Robert J. Reynolds for the respondents

Heard:  October 28, 2019

On appeal
    from the order of Justice Stanley J. Kershman of the Superior Court of Justice,
    dated July 31, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from the order declaring that it has a duty to
    defend claims against the respondents.

[2]

The appellant submits that the motion judge erred in his application of
    the correct approach to be taken in the consideration of whether an insurer has
    a duty to defend claims against its insured. In this case, the respondents are
    defendants in two actions arising from an accidental death caused by an all-terrain
    vehicle operated on the respondents property, which contains a private airstrip.
    The appellant insured the respondents against their liabilities under a general
    liability policy.

[3]

We do not accept the appellants submissions. The motion judge correctly
    followed the pleadings rule approach prescribed by the Supreme Court of
    Canada. He analyzed the insurance policy and the pleadings to determine whether
    the pleadings allege facts which, if true, raise claims that arguably fall under
    the coverage of the policy and would require the appellant to indemnity the respondents
    for the claims:
Monenco Ltd. v. Commonwealth Insurance Co.
,
    2001 SCC 49, at paras. 28-30, 33;
Progressive Homes Ltd.
    v. Lombard General Insurance Co. of Canada,

2010
    SCC 33, at para. 19.

[4]

The appellant submits that the motion judge erred by going beyond the
    pleadings and speculating that the use of an all-terrain vehicle on the
    respondents private airstrip could constitute ancillary services that would be
    covered under the policy. The pleadings were silent as to nature of the respondents
    use of the all-terrain vehicle when the accident occurred and there was no
    evidence supporting the motion judges conclusion.

[5]

We are not persuaded by these submissions. Without engaging in a fanciful
    reading, the motion judge was required to give the widest latitude to the
    allegations in the pleadings in determining whether they raise a claim within
    the policy:
Monenco
, at paras. 31-32. The duty
    to defend is broader than the duty to indemnify; an insurer will have a duty to
    defend when there is the mere possibility that a claim falls within the
    insurance policy, regardless if it is ultimately liable to indemnify the insured:
Progressive Homes
, at para. 19. In our view,
    that is the case here. We see no error in the motion judges interpretation of the
    policy or the pleadings.

[6]

The respondents are entitled to their partial indemnity costs in
    the amount of $9,500.00, inclusive of disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

Robert
    J. Sharpe J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Caja Paraguay de Jubilaciones y Pensiones del
Personal de Itaipu Binacional v. Obregon
, 2019 ONCA 803

DATE: 20191004

DOCKET: C67055

Rouleau, Trotter and Harvison
    Young JJ.A.

BETWEEN

Caja Paraguay de
    Jubilaciones y Pensiones
del Personal de Itaipu Binacional

Plaintiff (Respondent)

- and -

Eduardo Garcia Obregon a.k.a.
    Eduardo Garcia a.k.a. Eddie
Obregon, Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a.
Claudia Patricia De Garcia a.k.a. Claudia Santisteban, Ligia
Ponciano, Managed (Portfolio), Corp., Genesis (La), Corp.
(Ontario Corporation Number 1653094), Genesis (La), Corp.
(Alberta
Corporate Access Number 2013145921), FC Int, Corp., First
Canadian Int, Corp., Union Securities Limited, Scott Colwell,
Marty Hibbs, Hibbs Enterprises Ltd., Columbus Capital
Corporation,
Antonio Duscio,
Leanne Duscio, Leanne Duscio
Carrying On Business As The Queen St. Conservatory, Catan Canada
Inc., Vijay Paul, Greg Baker, Bradley F. Breen, Lou Maraj,
2138003 Ontario Inc., Mackie Research Capital Corporation,
First Canadian Capital Markets Ltd., First Canadian Capital
Corp., FC Financial Private Wealth Group Inc., Jason C.
Monaco, Daniel Boase, Paolo Abate, Nikolaos Stylianos
Tsimidis, Genesis Land Development Corporation, Limited
Partnership Land Pool (2007), and GP LPLP 2007 Inc.

Defendants (
Appellant
)

Antonio Duscio, in person

Fredrick Schumann,

duty counsel for the appellant,

John De Vellis, for the plaintiff (respondent)

Andrew Hotke,

for
    the Crown

Heard: October 1, 2019

On appeal from the sentence imposed on March
    5, 2019 by Justice S.F. Dunphy of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Duty counsel on behalf of the appellant argues
    that the one-year sentence for civil contempt was excessive. He argues that the
    transcript shows that the sentencing judge was inflamed by the appellants
    failure to comply with his order freezing his assets and requiring disclosure.
    He also argues that the sentence was purely punitive with coercion playing
    virtually no role.

[2]

Finally, he argues that the sentence is out of
    line with sentences imposed in other civil contempt cases.

[3]

We disagree.

[4]

Sentencing in civil contempt cases is highly
    fact specific and give rise to discretionary decisions. In this case, the
    appellant was given ample opportunity to purge his contempt and had not made
    substantial effort in this regard. In fact, during the contempt proceedings, he
    has attempted to deceive the court. The findings of the sentencing judge in
    that regard have not been appealed. Nor have the sentencing judges findings
    that the contempt was brazen, deliberate and among the worst the judge has ever
    seen. The appellant was found to have perpetrated a $7 million civil fraud.
    Nothing has been recovered despite the lengthy delay given by the judge before
    imposing sentence. As noted by the plaintiff, the only disclosures made were of
    assets that had already been identified by the plaintiff and were either now
    out of reach or could not be located.

[5]

While we agree that some of the sentencing
    judges comments during the proceedings could be viewed as intemperate, we are
    not satisfied that they led him to impose an inappropriate sentence.

[6]

Although the one-year sentence is long, we do
    not consider it excessive in the circumstances.

[7]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Chong v. Donnelly, 2019 ONCA 799

DATE: 20191007

DOCKET: C67021

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Ting Mei Chong

Applicant
(Respondent)

and

Timothy John Donnelly

Respondent
(Appellant)

Christopher J. Haber, for the appellant

Ting Mei Chong, self-represented

Heard: October 3, 2019

On appeal from the order of Justice Judy
    A. Fowler Byrne of the Superior Court of Justice, dated May 1, 2019.

REASONS FOR DECISION

[1]

The issue in this appeal is whether the motion
    judge erred in finding the appellant in contempt of a court order that governed
    the parties parenting arrangements in the context of a bitter matrimonial
    dispute.

[2]

The relevant term of the order directed that the
    childrens transitions between the parties were to occur on school days and
    non-school days as follows:

Transitions on a school day shall take place
    at the school with the parent whose time with the children is ending delivering
    the children to the school and the parent with whom the children will be with
    picking up the children. If not a school day, the parent who has the children
    will deliver the children to the other parents residence at 8:00 a.m.

[3]

On a school day when the children were to be picked
    up by the respondent, the appellant advised the respondent by text message that
    he would pick up the children after school in order to feed them, because he
    believed the respondent could not do so, and that he would then return them to
    school to attend school events that evening. The respondent advised the
    appellant not to do so because the children would be in after-school care and
    she had arranged for their dinner. The appellant nevertheless picked up the
    children, fed them dinner, and returned them to school.

[4]

The motion judge found the appellant in contempt
    of the order but dismissed the appellants motion that the respondent was also
    in contempt for other alleged breaches of the order. The latter finding was not
    appealed. We understand that the appellants motion for contempt was brought
    first and then the respondent responded with her own motion for contempt.

[5]

In finding the appellant in contempt, the motion
    judge referred to two leading cases on civil contempt,
Carey v. Laiken
,
    2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35 and
Greenberg v. Nowack
,
    2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26, which set out the three
    elements that must be proved beyond a reasonable doubt: (1) the order alleged
    to have been breached must state clearly and unequivocally what should and
    should not be done; (2) the party alleged to have breached the order must have
    actual knowledge of it; and (3) the party allegedly in breach must have
    intentionally done the act that the order prohibits or intentionally failed to
    do the act that the order compels.

[6]

The motion judge found that these three elements
    were established beyond a reasonable doubt: the order was clear, the appellant
    had actual knowledge of it, and he intentionally did the act that the order
    prohibited  he picked up the children from school on a day when he was not
    entitled to do so. The motion judge found the appellant in contempt, but imposed
    no penalty and awarded no costs. She did, however, encourage the parties to see
    a family mediator.

[7]

We see no basis to interfere with the motion
    judges finding that appellant had breached the terms of the order and that the
    three elements of civil contempt were established.

[8]

Having found that the three elements for civil
    contempt were established, however, the motion judge erred in law by failing to
    consider whether she should exercise her discretion to decline to make a
    finding of contempt. It is this last, crucial step that is missing from the
    motion judges analysis.

[9]

As the Supreme Court of Canada stated in
Carey
,
    at para. 36, [t]he contempt power is discretionary and courts have
    consistently discouraged its routine use to obtain compliance with court
    orders. This power should be exercised cautiously and with great restraint
    as an enforcement power of last rather than first resort. The Court added, at
    para. 37, that a judge may properly exercise his or her discretion to decline
    to impose a contempt finding where it would work an injustice in the
    circumstances of the case.

[10]

There is no indication that the motion judge
    considered whether a finding of contempt was a last resort or whether she
    considered any alternatives to such a finding. Such alternatives might have included
    the court finding that the appellant had breached the order, while admonishing
    him that, despite his apparently good intentions in ensuring his children were
    fed, he should respect the respondents wishes when the children were with her
    and comply with the order.

[11]

Nor does it appear that the motion judge
    considered the best interests of the children, which this court has stated is
    the paramount consideration when the issue raised in the contempt motion
    concerns access to children
: Ruffolo v. David,
2019 ONCA 385, 25
    R.F.L. (8th) 144, at para. 19. As this court stated in
Ruffolo
, it is
    in the best interests of the children to encourage professional assistance as
    an alternative to making a finding of contempt too readily. Indeed, here, the
    motion judge herself encouraged the parties to continue working with a family
    mediator.

[12]

In our view, the motion judges failure to
    consider these discretionary factors before making a finding of contempt was an
    error of law. It is especially important for courts to consider the discretion to
    impose a contempt finding in high-conflict matrimonial cases such as this one.
    We note, in fairness to the motion judge, that she refused to impose any
    penalty but that still left the appellant with the opprobrium of a contempt
    order. We are persuaded that while it was proper to find that the appellant had
    breached the order, it was not in the interests of justice in the context of
    this case to add a formal order of contempt.

[13]

The appeal is allowed. There will be no order as
    to costs.

[14]

We would urge both parties to attempt to resolve
    their parenting arrangements amicably in the future. The contempt motions they
    each brought reflected poorly on them both and are not in the best interests of
    their children.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

M. Jamal J.A.