COURT OF APPEAL FOR ONTARIO

CITATION: Belton v. Spencer, 2020 ONCA 623

DATE: 20201001

DOCKET: M51814 (C68642)

Brown
    J.A. (Motions Judge)

BETWEEN

John
    Belton

Plaintiff

(Respondent/Responding
    Party)

and

Katie
    Spencer

Defendant

(Appellant/Moving
    Party)

Todd J. McCarthy and Olivier Guillaume,
    for the moving party

Allan Rouben, Laura Hillyer and James
    Page, for the responding party

Heard: September 29, 2020 by video conference

REASONS
    FOR DECISION

I.        OVERVIEW

[1]

The appellant, Katie Spencer, is the defendant
    in a personal injury action brought by the respondent plaintiff, John Belton, seeking
    damages for injuries he alleges he suffered when kicked by the respondents
    horse in May 2010. The appellant moves under r. 63.02(1)(b) of the
Rules of
    Civil Procedure
for an order staying the order of Sheard J. dated
    September 4, 2020 that struck out the parties jury notices (the Order): 2020
    ONSC 5327.

[2]

As a practical matter, granting the stay would result
    in a lengthy adjournment of the trial now scheduled to proceed before a judge
    alone starting next Monday, October 5, 2020. If the stay is not granted, the
    trial will proceed on Monday and it is likely that the issues surrounding the
    appellants appeal will not be considered until after the trial has concluded.

[3]

For the reasons set out below, I dismiss the
    appellants motion for a stay.

II.       BACKGROUND EVENTS

[4]

The motion judge set out a detailed chronology
    of the steps in this action at para. 6 of her reasons. Briefly, the
    horse-kicking event took place on May 31, 2010. The action was commenced on May
    30, 2012. Both parties requested trial by jury. The action was set down on May
    23, 2017 and placed on the Hamilton trial list for the November 2018 sittings.

[5]

As a result of the anticipated late delivery of
    a further plaintiffs expert report, in June 2018 the action was traversed to
    the May 2019 sittings.

[6]

In January 2019, the appellant sought an
    adjournment of the trial due to her travel plans. The action was traversed to
    the November 2019 sittings.

[7]

In September 2019, the appellant advised that
    she intended to call an increased number of witnesses. As a result, it appeared
    that the action would have to be traversed to the March 2020 long trial
    sittings. Respondents counsel advised that he was not available for those
    sittings. In the result, the parties agreed to traverse the action to the
    October 2020 sittings.

[8]

In November 2019, RSJ Arrell of the Central
    South Region directed that the action be placed on the Hamilton long trial
    sittings commencing October 5, 2020 for a trial by jury estimated to take six
    weeks.

[9]

The COVID-19 pandemic hit Ontario in March 2020,
    at which time the Superior Court of Justice restricted the scope of its
    operations.

[10]

During a conference call with RSJ Arrell in June
    2020, the parties were advised that due to the COVID-19 pandemic, it was
    unlikely that civil jury trials would take place in 2020 and that the trial of
    this action would likely be delayed by 12 to 18 months.

[11]

The respondent then moved to strike out the jury
    notices. The motion was heard in writing by the motion judge who released her
    reasons on September 4, 2020. She struck out the jury notices.

[12]

The appellant filed a notice of appeal dated
    September 11, 2020 with this court.

[13]

The respondent filed a notice of motion dated
    September 17, 2020 to quash the appeal on the basis that the Order was
    interlocutory in nature, so an appeal lay with leave to the Divisional Court.

[14]

On the morning of September 23, 2020, the
    parties participated in a conference call with RSJ Arrell, who advised that the
    trial was first on the Hamilton non-jury trial list and would start on Monday,
    October 5, 2020 before a judge alone.

[15]

On September 22, the appellant served a notice
    of motion returnable before a panel seeking to state a case before the Court of
    Appeal pursuant to r. 22.03.

[16]

On September 24, the appellant served a notice
    of motion seeking to stay the Order.

[17]

The respondents motion to quash the appeal and
    the appellants motion to state a case are scheduled to be heard by a panel of
    this court in November 2020.

[18]

Both parties are ready for trial. However, the appellant
    wants a trial with a jury, not by judge alone.

[19]

In her factum, the appellant describes the order
    that she seeks as follows:

The Defendant/Appellant seeks an Order staying
    the Order under appeal dated September 4, 2020 and in turn staying the action
    and adjourning the trial to a date in 2021 as directed by the Local Regional
    Senior Judge after the appeal process in this action and the appeal process in
    other actions involving the identical issue have been exhausted by way of a
    decision of this Court on appeal or by way of Special Case under Rule 22.

III.      THE GOVERNING TEST

[20]

The principles applicable to a motion to stay an
    order pursuant to r. 63.02(1) are well-known. In
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334, the Supreme
    Court of Canada articulated a three-part test for obtaining a stay of a
    judgment pending appeal: (1) is there a serious question to be tried (i.e., to
    be determined on the appeal); (2) will the moving party suffer irreparable harm
    if the stay is not granted; and (3) does the balance of convenience favour
    granting the stay?

[21]

These components of the test are not watertight
    compartments; the strength of one may compensate for the weakness of another:
Circuit
    World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677. As
    well, they are interrelated in the sense that the overriding question is
    whether the moving party has shown that it is in the interests of justice to
    grant a stay:
BTR Global Opportunity Trading Limited v. RBC Dexia Investor
    Services Trust
, 2011 ONCA 620, 283 O.A.C. 321, at para. 16;
Circuit
    World
, at p. 677.

[22]

As put by the authors of
Sopinka and
    Gelowitz on The Conduct of an Appeal,
4th ed. (Toronto: LexisNexis, 2018),
    at §2.187, the factors to be considered by a motion judge are generally
    designed to assess the prejudice to the parties if the order sought is granted
    or refused.

IV.     FIRST COMPONENT: IS THERE A SERIOUS QUESTION TO BE
    DETERMINED ON THE APPEAL?

A.

Framing the serious question to be determined on the appeal

[23]

In her notice of motion, the appellant frames
    the serious question to be determined in respect of the Order in the following
    terms:

There is a serious issue to be determined at
    the appellate level concerning the substantive right to trial by jury amidst
    concern about trial delay associated with the current COVID-19 pandemic.

[24]

In her notice of appeal and counsels oral
    argument, the appellant elaborated on the serious question in two respects.
    First, the appellant submits that the motion judge, sitting in Chambers and not
    as a triage judge or trial judge, erred by permanently depriving her of the
    substantive right to trial by a jury on the eve of trial, without leaving open
    the possibility that the trial judge could direct a trial by judge and jury.
    Second, the motion judge failed to recognize the importance of the appellants
    substantive right to have a trial by jury by failing to properly balance that
    right with a proportionate concern for trial delay and the lack of prejudice to
    the respondent.

B.

Analysis

The questions raised by the motion judges Order
    and reasons

[25]

Even though the threshold for demonstrating a
    serious question for determination on the appeal is low, in my view the merits
    of the appellants appeal are weak.

[26]

The substantive right to a civil jury trial,
    upon which the appellant relies, is a qualified right. As this court stated in
Cowles
    v. Balac
(2006), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006]
    S.C.C.A. No. 496, at para. 32, a partys entitlement to a jury trial is subject
    to the power of the court to order that the action proceed without a jury:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 108(3). While a court should not
    interfere with the right to a jury trial in a civil case without just cause or
    cogent reasons, a judge considering a motion to strike out a jury notice has a
    rather broad discretion to decide whether the moving party has shown that
    justice to the parties will be better served by the discharge of the jury:
Cowles
,
    at paras. 36-38. This test recognizes that the paramount objective of the
    civil justice system is to provide the means by which a dispute between the
    parties can be resolved in the most just manner possible:
Cowles
, at
    para. 39.

[27]

As more recently stated by this court in
Girao
    v. Cunningham
, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 171, while the
    right to a jury trial in a civil action is fundamental, it is not absolute and
    must sometimes yield to the practicality.

[28]

Given the breadth of the discretion afforded to
    the judge considering a motion to strike out jury notices, it is not surprising
    that the jurisprudence provides that appellate review of the exercise of the
    discretion to dispense with a jury is limited:
Cowles
, at para. 40. To
    justify appellate intervention, it must be shown that the motion judges
discretion was exercised arbitrarily or capriciously
or
    was based upon a wrong or inapplicable principle of law:
Kostopoulos v.
    Jesshope
(1985), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985]
    S.C.C.A. No. 93, at pp. 69-70.

[29]

Accordingly, to succeed on her appeal the
    appellant must show that in granting the Order the motion judge acted upon a
    wrong or inapplicable principle of law or exercised her discretion arbitrarily
    or capriciously.

[30]

However, the only allegation of an error of law apparent
    in the appellants notice of appeal is that the motion judge did not adopt a
    wait and see approach to the motion to strike, thereby contradicting three
    decades of established authority in Ontario in which a motion judge defers to
    the trial judge the issue of whether to strike out a jury notice. In
Cowles
,
    this court described the wait and see approach at para. 70:

Over the years, courts have said that, in some
    cases, when confronted with a motion to strike a jury notice or discharge a
    jury, it is preferable to proceed with the trial and wait until the evidence or
    a substantial portion of it has been heard before deciding whether the
    discharge of the jury is warranted. Experience has shown that in many instances
    the anticipated complexities of a case or other concerns giving rise to a
    motion to dismiss a jury do not materialize or at least not to the extent
    originally asserted. By "waiting and seeing", courts are better able
    to protect the substantive right of the party who wants a jury trial and to
    only dismiss the jury when it becomes necessary to do so.

[31]

Significantly, the court in
Cowles
went
    on to state that taking a wait and see approach is not a rule of law: at
    para. 71. The court observed that the
Courts of Justice Act
and the
Rules
    of Civil Procedure
contemplate that a judge may strike a jury notice even
    before a trial has begun and that a trial judge may dismiss a jury before
    beginning to hear the evidence: at para. 71.

[32]

The motion judge identified the principles in
Cowles
and how subsequent courts have interpreted them: at paras. 15 and 16. She examined
    how those principles should be applied in light of calls by the Supreme Court
    of Canada to remedy the delays endemic to the Canadian civil justice system and
    implement a necessary culture shift in the civil system:
Blencoe v.
    British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R.
    307, at para. 140;
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87,
    at para. 28.

[33]

The motion judge explained how the motion to
    strike required her to apply these entrenched principles to the reality [the
    court] now faces: at para. 36. That reality has two components. First, on
    March 17, 2020 the Superior Court of Justice suspended civil jury selection and
    jury trials. Second, at the time the motion judge wrote her reasons, there had
    been no new announcements detailing how and when the courts in this Judicial
    Region will be able to resume conducting civil jury trials: at para. 8. That
    meant no judge would be assigned to hear the action as a civil jury trial until
    some uncertain date in the future. As a result, if a wait and see approach
    is taken, the delay in the scheduling of the trial that the plaintiff seeks to
    avoid, will have already occurred. For that reason, I find that the wait and
    see approach to be unsuitable: at para. 38.

[34]

Assessing the motion judges reasons as a whole,
    it is not apparent that she exercised her discretion based on a wrong principle
    of law.

[35]

It also is not apparent from her reasons that
    the motion judge exercised her discretion arbitrarily or capriciously. She
    considered the appellants submission that earlier delays by the respondent
    should not enable him to deprive the appellant of her substantive right to a
    trial, and she explained why she did not accept the submission: at paras. 39 to
    42. Nor did she accept the appellants contention that pandemic-related delays
    would affect both jury and non-jury trials equally. She referred to the
    evidence before her that RSJ Arrell had informed the parties in June 2020 that
    a non-jury trial could be scheduled in late 2020 or early 2021. In her view,
    the evidence disclosed that it was more likely that a non-jury trial could be
    scheduled earlier than a jury trial: at para. 43.

[36]

Weighing the various factors, the motion judge
    set out the results of her balancing exercise at paras. 45 and 47:

The parties are ready for trial. But for the
    pandemic, the trial would have proceeded in October 2020. The events that gave
    rise to the action are already a decade old. The defendant's right to a trial
    by jury, is outweighed by the need to provide the plaintiff with more timely
    access to justice.

COVID-19 has created additional challenges to
    ensuring access to justice, which, in this case, requires the court to strike
    the defendants jury notice in order to do what is possible to ensure an
    earlier and more efficient and more affordable trial.

[37]

On its face, the motion judges balancing
    exercise does not appear arbitrary or capricious.

[38]

Accordingly, in light of the standard of
    deference applicable to the motion judges exercise of her discretion, I regard
    the merits of the questions the appellant seeks to have determined on the
    appeal as weak.

Questions relating to the jurisdiction of
    this court

[39]

There is one further aspect of the serious
    question component that I must consider.

[40]

The respondent takes the position that the Order
    is interlocutory in nature and, therefore, the appellant has appealed to the
    wrong court  her appeal properly lies to the Divisional Court with leave:
Courts
    of Justice Act
, s. 19(1)(b). In response, the appellant submits that she
    has filed a notice of appeal in the Court of Appeal, her appeal has been
    assigned an appeal number, and she therefore has a proper appeal before this
    court unless and until a panel gives effect to the respondents motion to
    quash.

[41]

I adopt the approach taken by my colleague,
    Simmons J.A., in
Fontaine v. Attorney General of Canada
, 2020 CanLII
    64770 (Ont. C.A.), at para. 14, where she stated:

It is not for me, sitting as a single judge of
    this court, to determine whether this court has jurisdiction to entertain the
    appellants appeal. Nonetheless if I were persuaded that the Order under appeal
    was interlocutory, or even probably interlocutory, that would militate against
    granting the requested stay.

[42]

The weight of authority holds that an order
    striking out a civil jury notice is interlocutory in nature.

[43]

First, in
Belende c. Greenspon
, 2007
    ONCA 448, 226 O.A.C. 175, leave to appeal refused, (2008) 249 O.A.C. 398, a
    panel of this court held that such an order is interlocutory, stating, at para.
    3:

Malgré le fait quun droit à un procès devant
    jury est un droit de fond, la decision dannuler ou de ne pas annuler
la convocation du jury
ne détermine aucunement les questions
    en litige dans cette affaire. Plutôt, lordonnance du juge Reilly est sur une question
    collatérale. Voir
Hendrickson v. Kallio
, [1932] O.R. 675 (C.A.).
    Lordonnance ne met pas fin aux poursuites de Monsieur Ndem et ne limite pas
    les recours quil demande.
Voir
Buck Brothers Ltd.
    v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.);
Huras v.
    Primerica Financial Services Ltd.
(2000), 137 O.A.C. 79 (Ont. C.A.).

(unofficial Google translation)

Despite the fact that a right to a jury trial
    is a substantive right, the decision to set aside or not to set aside the jury notice
[1]
does not in any way determine the issues in this case. Rather,
    Justice Reilly's order is on a collateral issue. See
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.). The order does not put an end to Mr. Ndem's prosecution
    and does not limit the remedies he requests. See
Buck Brothers Ltd. v. Frontenac
    Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.);
Huras v. Primerica
    Financial Services Ltd.
(2000), 137 O.A.C. 79 (Ont. C.A.).

[44]

The appellant argues that the decision in
Belende
is unclear and was incorrectly decided. I see nothing unclear in the decision;
    it remains the most recent decision of a panel of this court on the issue.

[45]

Second, although the decision of this court in
Stoicevski
    v. Casement
(1983), 43 O.R. (2d) 436 (C.A.) did not involve an order
    striking out a jury notice, in the course of its reasons the panel identified a
    matter involving a jury notice as one that results in an interlocutory order: at
    p. 438.

[46]

Third, a group of Divisional Court decisions
    treats orders striking out jury notices and orders dismissing motions to strike
    out jury notices as interlocutory:
Benjamin v. Primerica Life Insurance
    Company et al.
, 2017 ONSC 6273, 12 C.P.C. (8th) 82 (Div. Ct.);
Safranyos
    v. McHugh
, 2015 ONSC 6146, 2015 CarswellOnt 14954 (Div. Ct.), at para. 7;
Kayhan
    v. Greve
(2008), 92 O.R. (3d) 139 (Div. Ct.);
Forget v. Sutherland
,
    [2006] O.J. No. 422 (Div. Ct.).

[47]

Fourth, one of the classic articulations of the
    distinction between a final and an interlocutory order is that found in
Ball
    v. Donais
(1993), 13 O.R. (3d) 322 (C.A.). There, this court stated that a
    final order is not only one that finally disposes of the rights of the parties
    to the litigation, but an order may also be final if it finally disposes of a
    defence and thereby deprives the defendant of a substantive right which could
    be determinative of the entire action: at p. 324.

[48]

The appellant contends that the frequent
    references in the jurisprudence to the right to a civil jury trial as a
    substantive right signifies that an order striking a jury notice is a final
    order as described in
Ball v. Donais
. As the respondent points out,
    the difficulty with that submission is that an order striking out a jury notice
    does not deprive the appellant of a substantive right that could be
    determinative of the entire action. Such an order merely directs a mode of
    trial. And, as this court stated in
Cowles
, at para. 38, neither party
    has an unfettered right to determine the mode of trial: see also,
Cheung v.
    Samra
, 2018 ONCA 923, 431 D.L.R. (4th) 18, at para. 7;
Williams v.
    Grand River Hospital
, 2016 ONCA 793, 134 O.R. (3d) 319, at paras. 5-6.

[49]

Finally, the appellant points to a 1961 decision
    of this court in
Such v. Dominion Stores Ltd.
, [1961] O.R. 190 (C.A.).
    In that case, the plaintiff was granted leave to appeal to the Court of Appeal
    from the order of a High Court judge striking out a jury notice. However, that
    unusual route of appeal was the product of a provision of the
The Judicature
    Act
, R.S.O. 1960, c. 197, that was repealed in 1971
[2]
and a practice convention regarding appeals from r. 400 of the
    former
Rules of Practice
[3]
(striking out jury notices) that disappeared long ago.
[4]
As a consequence, the appeal
    routes described in the
Such
decision offer no assistance for a contemporary
    inquiry into whether an order striking out a jury notice is final or
    interlocutory.

Conclusion

[50]

As mentioned, I regard the merits of the questions
    the appellant seeks to determine on the appeal as weak. The weight of the
    jurisprudence strongly suggests the Order probably is interlocutory. In those
    circumstances, I conclude that the question to be determined on the appeal
    factor militates against granting the requested stay.

V.      SECOND COMPONENT: IRREPARABLE HARM

[51]

The irreparable harm stage of the analysis
    focuses on the harm the moving party may suffer if the stay is not granted:
RJR-MacDonald
,
    at pp. 340-341. A court must ascertain whether a refusal to grant the stay could
    so adversely affect the moving partys interests that the harm could not be
    remedied if the eventual decision on the merits does not accord with the result
    of the stay motion:
RJR-MacDonald
, at p. 341. Irreparable, in this
    sense, refers to the nature of the harm suffered rather than its magnitude. It
    is harm which either cannot be quantified in monetary terms or which cannot be
    cured:
RJR-MacDonald
, p. 341. Irreparable harm may occur where the
    failure to grant a stay would render any subsequent appeal moot:
Sopinka
    and Gelowitz
, at §2.192.

[52]

As I understand the appellants materials and
    submissions, she contends that if a stay of the Order is not granted, she will
    suffer irreparable harm in three ways.

[53]

First, she submits, in effect, that the loss of
    her substantive right to a civil jury trial in and of itself constitutes irreparable
    harm. As deposed by one of her trial counsel, Christopher Missiuna, the
    appellant has never waivered from her desire to exercise her substantive right
    to have this matter be heard by a jury.

[54]

I am not persuaded by this submission. Although
    the right to a civil jury trial is a substantive right, it is a qualified, not
    absolute, right, and is subject to removal where justice to the parties will be
    better served by the discharge of the jury. As this court stated in
Cowles
,
    at para. 38, neither party has an unfettered right to determine the mode of
    trial.

[55]

If a stay is not granted and the trial proceeds
    next week, the appellant will have her defence adjudicated by a single judge,
    instead of a judge and jury. Both a single judge and a jury labour under the
    same duty to do justice impartially and dispassionately, based on the evidence
    before them. The appellant has not explained, in specific functional terms,
    what litigation disadvantage she might suffer if her rights are adjudicated by
    an impartial and independent judge instead of by an impartial and independent
    jury. Absent evidence of such specific litigation disadvantage and given the
    qualified nature of the right to a civil jury trial, I do not regard the
    prospect of proceeding to trial before a judge alone as causing irreparable
    harm.

[56]

Second, the appellant argues that if a stay is
    not granted and the trial proceeds, her appeal before this court will be
    rendered moot, causing her irreparable harm.

[57]

Certainly, irreparable harm may arise where the
    failure to grant a stay may render an appeal moot:
Thomson v. Alberta
    (Transportation and Safety Board)
, 2003 ABCA 322, 233 D.L.R. (4th) 562, at
    paras. 19-21. However, I do not regard this case as one where that
    consideration plays a role.

[58]

The record discloses that the appellants
    decision to appeal the Order to this court, instead of seeking leave to appeal
    from the Divisional Court, was a tactical decision. It is apparent that prior
    to filing her notice of appeal in this court, appellants counsel were aware of
    the panel decision in
Belende
that held an order striking out a jury
    notice is interlocutory in nature. One of her counsel, Mr. Guillaume, was
    counsel on the
Belende
case.

[59]

As well, through her pending motion to state a
    special case before this court, the appellant acknowledges that she seeks to
    jump over any lower levels of appeal since, in her view, the issue of the
    entitlement to a civil jury trial is one of province-wide importance that
    requires consideration by this court. As her counsel put it in oral argument,
    her appeal ultimately will end up in our court, so it makes more sense to deal
    with it here and now.

[60]

Given the weight of authority that an order striking out a civil
    jury notice is interlocutory in nature, it was open to the appellant to move
    for leave to appeal the Order to the Divisional Court in a timely fashion and,
    in the context of that motion, seek a stay of the Order: r. 63.02(1)(b).
    Instead, the appellant has adopted the higher-risk strategy of appealing to
    this court. An appellant may take such a calculated risk. But, in those
    circumstances, I do not think it open to the appellant to argue that the
    possible mootness of her appeal to this court amounts to irreparable harm.

[61]

Third, Mr. Missiuna deposes that if a stay is
    not granted, it would be a waste of judicial resources to start or hold an
    entire eight-week non-jury civil trial starting on October 5, 2020, and during
    the time period that the trial takes place or after the trial has been completed,
    to have the Defendants appeal on the striking of the jury heard and determined
    in favour of the Defendant. According to Mr. Missuna, it is likely that
    hundreds of thousands of dollars in legal costs would have been incurred by
    doing an eight-week civil non-jury trial before the appeal is heard.

[62]

I regard this contention as speculative and the
    prospect of losing hundreds of thousands of dollars in legal costs as remote.

[63]

For these reasons, I conclude that that the
    appellant has not demonstrated that she will suffer irreparable harm if a stay
    is not granted.

VI.     THIRD COMPONENT: BALANCE OF
    CONVENIENCE

[64]

The final component of the
RJR-MacDonald
stay test requires a determination of which of the two parties will suffer the
    greater harm from the granting or refusal of the stay, pending a decision on
    the merits: at p. 342. The harm which might be suffered by the respondent is
    dealt with at this stage of the analysis:
RJR-MacDonald
, at p. 341. The
    factors which must be considered in assessing the balance of inconvenience are
    numerous and will vary in each individual case.

[65]

The appellant submits that the balance of
    convenience favours preserving the
status quo
of the parties
    agreement last year to proceed to trial before a judge and jury.

[66]

The difficulty with the appellants submission
    is that it ignores the impact that the COVID-19 pandemic has had on the ability
    of the Central South Region of the Superior Court of Justice to offer civil
    jury trials during the balance of 2020. The evidence is undisputed that civil
    jury trials likely will not resume in the region for another 12 to 18 months.

[67]

In light of that very material change in
    circumstances, the respondent re-assessed his desire for a jury trial and moved
    to strike out the jury notices so that a trial could take place. That was an
    understandable decision for a plaintiff to make who was injured a decade ago
    and whose action has yet to come to trial. By the time the October 5, 2020
    trial date for a jury trial was set in November 2019, this action had
    languished in the civil justice system for far too long. For the plaintiff to
    wait a further 12 to 18 months for a civil jury trial to have his claim
    adjudicated would result in an unconscionable delay that should not be
    countenanced by our civil justice system.

[68]

Nor do I accede to the appellants argument that
    the balance of convenience favours staying the Order so that an appellate court
    can figure out a province-wide solution to the challenges that the pandemic has
    imposed on the ability of certain regions of the Superior Court of Justice to
    offer civil jury trials.

[69]

In addition to the decision of the motion judge,
    the parties have referred to four other recent decisions involving motions to
    strike out civil jury notices. Three are decisions of judges in the East
    Region:
Louis v. Poitras
, 2020 ONSC 5301;
Coban v. Declare
,
    2020 ONSC 5580; and
Higashi v. Chiarot
, 2020 ONSC 5523. In all three
    cases, the jury notices were struck out, in large part because it was not known
    when civil jury trials would resume in the East Region. In
Higashi
,
    the motion judge left it open for the parties to return before him if it became
    known when a jury trial might occur before the action proceeded to a judge
    alone trial. In
Coban
, the jury notice was struck but the trial was adjourned
    for six months to enable the defendant to obtain further responding medical
    reports.

[70]

A different result was reached in the fourth
    case, out of the Toronto Region,
Jiang v. Toronto Transit Commission
,
    2020 ONSC 5727. In that case, Justice D. Wilson refused to strike the jury
    notice because Toronto is offering civil jury trials: at para. 8.

[71]

The appellant submits that the cases display
    conflicting decisions among lower Court Judges as to the correct approach to
    be taken, which favours this court: granting a stay of the Order; by-passing
    the normal leave motion process to the Divisional Court or Court of Appeal;
    stating a special case; hearing from parties to other cases, as well as
    intervenors; and coming up with a province-wide solution to the issue of COVID-19s
    effect on civil jury trials.

[72]

I reject that submission for three reasons.

[73]

First, the focus of this stay motion must be on
    the rights of the parties to this action.

[74]

Second, the pandemic may well have subsided by
    the time the appellants lengthy proposed court-based provincial solution
    process reached a conclusion.

[75]

Third, the resources available for civil jury
    trials vary from region to region in this province. I do not regard the cases
    referred to by counsel as conflicting in principle. Instead, they reflect the
    exercise of judicial discretion in differing circumstances. I do not see it to
    be the role of this court to interfere with or micro-manage the diligent
    efforts of various Regional Senior Justices of the Superior Court of Justice to
    juggle and prioritize the allocation of their resources during this extraordinary
    time.

[76]

For these reasons, I conclude that the balance
    of convenience overwhelmingly favours not granting a stay of the Order and
    allowing the trial of this far-too-old action to proceed.

VI. THE
    OVERARCHING CONSIDERATION: IS IT IN THE INTERESTS OF JUSTICE TO GRANT A STAY?

[77]

I have concluded that all three components of
    the
RJR-MacDonald
test favour refusing to grant a stay. That
    conclusion is reinforced by a holistic consideration of the three components in
    light of the overarching consideration of whether it is in the interests of
    justice to grant a stay.

[78]

This action is long overdue for trial,
    concerning as it does events that took place 10 years ago. The parties are
    ready for trial and have been for some time. COVID-19 came out of left-field
    and upset the trial courts scheduling apple cart. But the Central South Region
    can make a judge available this coming Monday to try this personal injury case.
    If not tried then, the record shows that it will likely be over a year before
    the matter can return before a civil jury. That would be an unconscionable wait.
    The qualified right to a civil jury trial cannot dictate such a result, as it would
    be completely contrary to the interests of justice. Consequently, I dismiss the
    appellants motion for a stay of the Order.

VII.    DISPOSITION

[79]

For the reasons set out above, the motion for a
    stay of the Order is dismissed.

[80]

If the parties are unable to agree upon the
    costs of the motion, they may file brief written cost submissions, together
    with bills of costs, within 21 days of the release of these reasons.

David Brown J.A.

[1]
Although Google translates la convocation du jury as the jury
    summons, the official French version of the
Rules of Civil Procedure
translates jury notice as la convocation du jury.

[2]
Section
    26(1)(c) of the
Judicature Act
, R.S.O. 1960, c. 197 stated an appeal lay
    to the Court of Appeal from any judgment, order or decision of a judge in
    chambers in regard to a matter or practice or procedure that affects the
    ultimate rights of any party, and, subject to the rules, from any other
    judgment, order or decision of a judge in chambers in regard to a matter of
    practice or procedure. Section 26(1)(c) was repealed in 1971 by
An Act to
    amend The Judicature Act
, S.O. 1971, c. 57, s. 3.

[3]

Rule 398 at the time
Such
was decided.

[4]

In
Such
, at p. 195, this court stated that no review
    of an order made under r. 400 of the
Rules of Practice
striking out a
    jury notice was possible unless another judge of the High Court had granted
    leave.


COURT OF APPEAL FOR ONTARIO

CITATION: Bernard v. Fuhgeh, 2020 ONCA 620

DATE: 20201001

DOCKET: M51686 (M51272)

Paciocco J.A.

BETWEEN

Marie Marielle Edith Bernard

Applicant (Responding Party)

and

William Ndze Fuhgeh

Respondent (Moving Party)

William Ndze Fuhgeh, acting in person

Marie Marielle Edith Bernard, acting in
    person

Heard: in writing

On appeal from the order of Justice Frederick
    L. Myers of the Divisional Court, dated January 13, 2020, with reasons reported
    at 2020 ONSC 2876.

COSTS ENDORSEMENT

[1]

Costs are awarded to the respondent in the
    amount of $768.40, inclusive of disbursements and all applicable taxes.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bilotta v. Booth, 2020 ONCA 658

DATE: 20201016

DOCKET: C67721

Huscroft, Zarnett and Coroza
    JJ.A.

BETWEEN

Carmine Bilotta and Rosina
    Bilotta

Applicants/Respondents by
    Counter-Application

(Respondents)

and

Kimberly June Booth and Donald
    James Booth

Respondents/Applicants by Counter-Application

(Appellants)

Christopher Lee, for the appellants

Julian Binavince, for the respondents

Heard: in writing

On appeal from the orders of Justice Howard
    Leibovich of the Superior Court of Justice, dated October 21, 2019, with
    reasons reported at 2019 ONSC 5956.

ADDENDUM

[1]

In our decision dated 25 August, 2020 the court resolved the amount of
    damages owed to the Booths as follows:

[28]    The Booths are entitled to damages
    representing the difference between the contract price and the amount they
    realized on resale of the house. The application judge found that difference to
    be $100,000. The $30,000 deposit is to be credited against that amount: see
Azzarello
    v. Shawqi
, 2019 ONCA 820, at paras. 49 to 55.

[2]

However, the court was not able to resolve the
    amount of consequential damages. The court stated:

[29]    The application judge made no findings concerning the
    Booths claim for consequential losses of $28,536.21 and it is not clear
    whether these losses are contested. I would encourage the parties to agree on
    the amount of consequential losses owing. If they cannot do so, they may make
    brief 3-5 page submissions, along with supporting documentation, to this court
    by September 18, 2020.

[3]

The Booths filed documentation establishing consequential losses of
    $28,536.64. The Bilottas acknowledge that the amounts claimed are reasonable.
    The parties were not asked for submissions concerning the damages calculation set
    out in paragraph 28 of the August 25, 2020 decision and there is no basis for
    the court to revisit it.

[4]

Accordingly, the Bilottas shall pay $28,536.
64
in addition to the damages set out in paragraph 28
    of the August 25, 2020 decision,

together with pre-judgment interest from
    July 20, 2018
.

[5]

Counsel advised the court that they have reached an agreement on costs.
    Accordingly, there is no order as to costs.

Grant Huscroft J.A.

B. Zarnett J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chaba v. Khan, 2020 ONCA 643

DATE: 20201016

DOCKET: C67094

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Sam Chaba

Plaintiff (Respondent)

and

Muhammad Aslam Khan

Defendant (Appellant)

AND BETWEEN

Swat Emeraldmine and Marketing
    Inc.

Plaintiff by Counterclaim (Appellant)

and

Surinder Chaba a.k.a. Sam
    Chaba
, Monica Goyal and Jonathan MacKenzie

Defendants to the Counterclaim (
Respondent
)

Muhammad Aslam Khan, for the appellants

Richard H. Parker, Q.C., for the
    respondent

Heard: In writing

On appeal from the judgment of Justice Grant
    R. Dow of the Superior Court of Justice, dated May 22, 2019, with reasons reported
    at 2019 ONSC 2093, and from the costs order, dated January 16, 2020, with
    reasons reported at 2020 ONSC 154.

REASONS FOR DECISION

[1]

The appellants  Muhammad Khan (Khan), a
    lawyer, and Swat Emeraldmine and Marketing Inc., a corporation to which Khan assigned
    his interest in this litigation  appeal from the order of the trial judge
    dismissing Khans counterclaim against the respondent, Sam Chaba (Chaba). The
    counterclaim sought damages for fraudulent misrepresentation and inducing
    breach of contract arising from refinancing a residential property owned by
    Nicanor and Irene Posadas (the Posadas). The appellants also seek leave to
    appeal the trial judges costs order.

[2]

For the reasons that follow, the appeal is dismissed.
    Leave to appeal costs is granted but the costs appeal is dismissed.

Background

[3]

In 2012, the Posadas bought a house, financed
    partly with an $80,000 loan from Khan. Because the Posadas did not make their
    monthly payments on the loan, their debt to Khan grew with interest to over
    $100,000. Khan registered the debt as a charge on the property and later obtained
    an order for possession. A notice of sale was issued to be effective June 24,
    2014, but the sale was stayed on a temporary basis by order of Mew J. on June
    23, 2014. Chaba, a mortgage broker, became involved and tried to arrange for
    mortgage financing for the Posadas, whose debt to Khan had now grown to about
    $160,000. Khan and the Posadas agreed to settle the debt (the first
    settlement) on the basis that the Posadas would pay Khan $115,000, with costs
    of the motion to stay the sale proceedings to be fixed or assessed by the
    court.

[4]

In a schedule to the settlement agreement for
    the first settlement, dated August 28, 2014, the Posadas signed a promissory
    note for $115,000 in favour of Khan. Chaba also signed the promissory note as guarantor.

[5]

The trial judge rejected Chabas evidence that Khan
    told him he was signing only as a witness and not as guarantor. He found Chaba
    admitted that it was my mistake he did not read what he signed before
    signing.

[6]

On August 29, 2014, Khan and the Posadas
    appeared before Perell J. and advised that they had reached a settlement.
    Accordingly, Perell J. dismissed the Posadas pending motion to stay the sale
    proceedings and ordered the Posadas to pay $9,000 in costs as contemplated
    under the first settlement.

[7]

Chaba continued to seek financing for the Posadas,
    but disputed his role as guarantor and the costs award. He and the Posadas sued
    Khan for fraudulent misrepresentation, claiming $2 million and $1 million
    respectively. Khan and the Posadas ultimately agreed to settle the actions
on the basis that
the Posadas would pay Khan $140,000
    (the second settlement). Khan also offered to settle with Chaba on the basis
    that he would be relieved of his obligations as guarantor, though Chaba claims he
    was not aware of this offer at the time. Khan counterclaimed against Chaba,
    alleging that Chabas fraudulent misrepresentation induced him to enter into first
    settlement with the Posadas, and alleging that Chaba later induced breach of
    contract by undermining that settlement.

[8]

Chaba and the appellants each moved for summary
    judgment. At the hearing, Chaba acknowledged he had suffered no damages and that
    Khan had settled his claims with the Posadas, rendering the guarantee issue
    moot. Chabas claim against Khan was thus dismissed. However, the court found
    Chaba raised genuine issues requiring a trial regarding Khans counterclaim and
    ordered those claims to proceed to trial. The costs of Chabas dismissed action
    were reserved to the trial judge hearing Khans counterclaim.

The trial judges decisions

[9]

The trial judge dismissed Khans counterclaim
    against Chaba. He concluded Khan had not established Chaba was liable for either
    fraudulent misrepresentation or inducing breach of contract. He also held
    Khans second settlement with the Posadas relieved Chaba of any obligation as
    guarantor for the Posadas debt.

[10]

The trial judge ordered Chaba to pay Khan costs for
    the main action of $20,000, and ordered Khan to pay Chaba costs for the
    counterclaim of $18,000, for net costs to Khan of $2,000.

[11]

The appellants now appeal the order dismissing
    the counterclaim and seek leave to appeal the costs order.

Discussion

[12]

The appellants raise at least 14 grounds of
    appeal, some of which contain multiple issues.

[13]

In our view, the trial judge made no error of
    law, and his findings after the three-day trial of the counterclaim must be
    accorded
appellate deference
.

[14]

The grounds of appeal can be addressed under six
    topics.

[15]

First, the trial judge made no error in
    dismissing the claim for fraudulent misrepresentation. He correctly cited the elements
    of fraudulent misrepresentation from
Mariani v. Lemstra
(2004), 246
    D.L.R. (4th) 489 (Ont. C.A.), at para. 12, leave to appeal refused, [2004]
    S.C.C.A. No. 355:

(1) that the
    defendant made a false representation of fact; (2) that the
defendant
knew the statement was
    false or was reckless as to its truth; (3) that the defendant made the
representation
with the intention that it would be acted upon by the
    plaintiff; (4) that the plaintiff relied upon the statement; and (5) that the
    plaintiff suffered damage as a result.

[16]

The trial judge was entitled to conclude on the
    evidence before him that the appellants failed to establish that Chaba made any
    false or reckless representation inducing Khan to enter the first settlement
    with the Posadas. The trial judge stated that he heard no evidence from either
    Mr. Khan or Mr. Chaba that would satisfy this tort. He also concluded that the
    terms of the Settlement Agreement vitiates any tangible claim that Mr. Chaba
    represented anything to Mr. Khan that Mr. Chaba knew to be false or
    reckless and that Mr. Khan would rely on or act on to his detriment. These
    findings were all open to the trial judge on the evidence before him. There is
    no basis for this court to intervene.

[17]

Second, the trial judge made no error in
    dismissing the claim for inducing breach of contract. He correctly noted that
    to succeed on this claim, Khan had to establish the four elements identified by
    this court in
Drouillard v. Cogeco Cable Inc.
, 2007 ONCA 322, 86 O.R.
    (3d) 431, at para. 26: (1) Khan had a valid and enforceable contract with the
    Posadas; (2) Chaba was aware of the existence of this contract; (3) Chaba
    intended to and did procure the breach of the contract; and (4) because of the
    breach, Khan suffered damages.

[18]

The trial judge stated there was no dispute
    about the first two elements. The dispute related to the third element, which
    the trial judge found Khan had failed to establish:

At issue is whether Mr. Chaba intended to
    procure the breach of [the first settlement]. It was in Mr. Chabas best
    interest (a payment of the commission associated with the refinancing) to have
    the Settlement Agreement fulfilled. There was no evidence from the most likely
    source to indicate the contrary, being the Posadas, that Mr. Chaba said or did
    anything to undermine or deter payment of the agreed upon amount to Mr. Khan.
    Again, one would have expected if that were so, it would have been dealt with
    in the settlement achieved with the Posadas or Mr. Khan in June, 2016 and
presented at this trial
.

[19]

The trial judge was entitled to make these
    findings and draw these inferences based on the evidence before him. This court
    has no basis to intervene.

[20]

After discussing the damages Khan alleged he
    suffered as a result of Chabas action, the trial judge remarked that the real
    source of Khans woes was that his intended source of funds for his loan to the
    Posadas did not clear his bank, as a result of which Khan used funds from his
    trust account, which he later repaid, to make the loan to the Posadas. The
    trial judge wrote, [Khan] failed to ensure the funds to cover the $80,000.00
    were either certified before it was deposited or cleared before the $80,000.00
    was forwarded to the Posadas. This simple, logical safeguard to the source of
    Mr. Khans problem undermines any legal wrong having been committed against him
    by Mr. Chaba. However, the trial judge did not rely on Khans failure to
    employ [t]his simple, logical safeguard in dismissing Khans counterclaim
    against Chaba. As we have discussed, he concluded that Khan had not established
    Chaba was liable for either fraudulent misrepresentation or inducing breach of
    contract, and there is no basis to intervene with those conclusions.

[21]

Third, the trial judge made no error in
    dismissing the claim to enforce Chabas guarantee. He accepted that a lender
    may have separate claims against both the borrower and their guarantor, but found
    it was not a term of Khans settlement with the Posadas
that
he could pursue Chaba. The trial judge concluded that
    payment of the debt in its entirety was agreed upon. He found Khan agreed to
    accept $140,000.00 (presumably) in full satisfaction of the debt owed to him by
    the Posadas.

[22]

These conclusions of the trial judge  which arose
    from his interpretation of the guarantee within the context of the first and
    second settlements and the other evidence before the court
are all entitled to appellate deference
. Again, this
    court has no basis to intervene.

[23]

Fourth, there is no merit to the appellants assertion
    that the trial approached the evidence unfairly by applying differential
    standards of scrutiny. As noted in
R. v. Sahdev
, 2017 ONCA 900, 356
    C.C.C. (3d) 137, at para. 59, which the appellants cite, [t]he argument usually
    fails. This is because
credibility findings are the
    province of the trial judge and attract a very high degree of deference on
    appeal; and appellate courts invariably view this argument with skepticism,
    seeing it as a veiled invitation to reassess the trial judge's credibility
    determinations: at para. 59, citing
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. To succeed, the
    appellants must identify something clear in the trial judges reasons or the
    record indicating that a different standard of scrutiny was applied and
    something sufficiently significant to displace the deference due to a trial
    judges credibility assessments:
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

[24]

Here, the appellants have not met this standard.
    The trial judge conducted a fair trial and approached the evidence in a
    balanced way, accepting the appellants evidence on some points but rejecting
    it on others.

[25]

Fifth, there is no merit to the appellants contention
    that the trial judges interventions gave rise to a reasonable apprehension of
    bias. The appellants assert that the trial judge intervened with massive
    questions (204) during final submissions of Appellants [trial] counsel that
    made him nervous and unable to properly represent. He could not follow his
    script and cover all the issues before the court. However, the trial judges
    questions involved nothing more than the usual back-and-forth between the court
    and trial counsel. The trial judge advised the appellants trial counsel (not
    Khan) of his concerns as the argument unfolded, and trial counsel attempted to
    address them. A few examples suffice. At one point, trial counsel stated: Your
    Honour  your question is really pertinent and Im relishing them. During
    another exchange, trial counsel remarked: Your Honours observations are
    exactly on point. Towards the close of trial counsels submissions, the trial
    judge asked him how much more time he needed, to which he responded: Your
    Honour, about 10 minutes but I have totally enjoyed your questioning. Trial counsel
    then summed up and told the court that he relied on the relevant evidence and his
    factum. He concluded: Thank you very much for Your Honours observations and
    all of which is respectfully submitted.

[26]

Nothing in the trial judges questions or comments
    give rise to a reasonable apprehension of bias, assessed from the perspective
    of a reasonable observer present throughout the trial: see
R. v. Ibrahim
, 2019 ONCA 631, 147 O.R.
    (3d) 272, at paras. 96-98.

[27]

Finally, we see no basis to interfere with the
    trial judges costs ruling. The trial judge fixed Khans substantial indemnity costs
    for the summary judgment motion at $20,000. He also fixed Chabas partial
    indemnity costs for the counterclaim at $18,000. Setting off these amounts
    against each other, the trial judge awarded Khan net costs of $2,000.

[28]

Because the respondent consents to leave to
    appeal from the costs order, we would grant leave to appeal. However, we do not
    disturb the costs order.

[29]

A costs award should be set aside on appeal
    only if the trial judge has made an error in principle or if the costs award
    is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004]
    1 S.C.R. 303, at para. 27.

[30]

The appellants have not met this stringent test.
    The appellants say the trial judge erred in principle by reducing the 122 docketed
    hours (including over 50 by Khan) by 25% and by setting the value of Khans docketed
    time to $50 per hour for representing himself. They note the Law Societys fee
    schedule for a lawyer of 12-20 years experience is $325 per hour. However, in
    fixing costs the trial judge did not apply an arithmetical formula of
    multiplying an hourly rate by the number of hours. Instead, he exercised
    discretion under s. 131 of the
Courts of Justice Act
to fix an amount
    that was fair and reasonable for the unsuccessful party to pay, citing
Boucher
    v. Public Accountants Council for Province of Ontario
(2004), 71 O.R. (3d)
    291 (C.A.), at para. 26. The appellants have shown no error in this exercise of
    discretion. We see no basis to intervene.

Disposition

[31]

The appeal is dismissed. Leave to appeal costs
    is granted but the costs appeal is dismissed.

[32]

If the parties cannot resolve
the issue of
costs of the appeal, the respondent may
    file a bill of costs and up to three pages of written submissions within 10 days
    of this decision, and the appellants may file a bill of costs and up to three
    pages of written submissions within 15 days of this decision.

Doherty
    J.A.

Alexandra
    Hoy J.A.

M.
    Jamal
J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cooper v. Book, 2020 ONCA 683

DATE: 20201026

DOCKET: C67597

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Charles F. Cooper

Plaintiff (Appellant)

and

Ira Edward Book

Defendant (Respondent)

W. Gerald Punnett, for the appellant

Michael Zalev and Rhea Kamin, for the
    respondent

Heard and released orally by
    videoconference: October 23, 2020

On appeal from the order of Justice Michael
    R. Gibson of the Superior Court of Justice, dated September 17, 2019.

REASONS FOR DECISION

[1]

The appellant has not complied with two
    last-chance orders dated May 14 and August 6, 2019, concerning disclosure
    obligations and payment of outstanding costs. The August order included consent
    to dismissal of the appellants action with costs if he did not comply with
    that order.

[2]

There is no dispute that the appellant has not
    complied. Nor does the appellant identify any errors that would allow this
    court to intervene: see
Starland Contracting Inc. v. 1581518 Ontario Ltd.
,
2009 CanLII 30449 (ON SCDC).

[3]

The appeal is dismissed. The respondent is
    entitled to costs in the agreed amount of $6,000 all inclusive, payable
    forthwith.

Grant Huscroft
    J.A.

I.V.B.
    Nordheimer J.A.

A. Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Elbasiouni v. Brampton (City),
    2020 ONCA 628

DATE: 20201002

DOCKET: M51783 (C65017 and C67931)

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Ahmed Elbasiouni a.k.a. Ahmed
    Elbassiouni

Applicant

and

The Corporation of the City of
    Brampton

Respondent

Ahmed Elbasiouni, acting in person (with
    the assistance of Mohamed Elbassiouni)
[1]

Charles A. Painter for the respondent
    The Corporation of the City of Brampton in C65017

Barnet H. Kussner, for the respondent,
    The Corporation of the City of Brampton in C67931

Heard and released orally:
    September 25, 2020

REASONS FOR DECISION

[1]

There are three matters listed for hearing
    today: (a) an appeal from an order declaring the appellant a vexatious litigant;
    (b) an application to adjourn that appeal; and (c) a Rule 2.1 application to
    dismiss an appeal from an order refusing to grant leave to take a step in
    litigation, which leave application was necessitated by the vexatious litigant
    order.

[2]

The appellant seeks an adjournment of his appeal
    from the vexatious litigant order. He does so because an application to appoint
    a guardian for his property and care is being pursued in the Superior Court of
    Justice. Notably, the Superior Court has already heard and dismissed an
    application seeking the appointment of a litigation guardian on the appellants
    behalf.

[3]

The information placed before this court on the
    adjournment application includes additional evidence, beyond what was available
    to the court that heard the application for a litigation guardian. In specific,
    this additional information now includes a psychiatrists report that addresses
    the perceived psychiatric status of the appellant. That report has only very
    recently been authored.

[4]

The timing of this late-breaking new information
    is very troubling to this court. In part, we say this bearing in mind the
    findings of the application judge who dismissed the litigation guardian
    application. Specifically, he noted that the application to have a litigation
    guardian appointed was motivated by a desire for delay. Even so, we note that
    the respondent fairly acknowledges that the new psychiatric report, despite
    troubling aspects, cannot be ignored by this court.

[5]

In these circumstances, we are prepared to grant
    a brief adjournment so that the new application for a guardian for property and
    care may be pursued. This must be done with all diligence. We will adjourn for
    no more than 60 days to permit sufficient time for that application to be heard
    and decided in the Superior Court of Justice. This panel will remain seized of
    this matter. The parties will keep the court advised as to the progress of that
    application. There will be no further materials filed in this court without
    leave of the court. Both the Rule 2.1 application and the appeal C65017 will be
    heard at a date to be fixed by this court.

[6]

The costs of this adjournment application
    and todays appearance will be dealt with at that time.

Fairburn
    A.C.J.O.

B.W.
    Miller J.A.
B. Zarnett J.A.

[1]

The appellants brother, Mr. Elbassiouni, is a lawyer. While
    not the lawyer of record for this matter, Mr. Elbassiouni gave submissions on
    behalf of his brother with the panels permission and his brothers consent.


COURT OF APPEAL FOR ONTARIO

CITATION: Estates Associates Inc. v. 1645112 Ontario Ltd.,
    2020 ONCA 640

DATE: 20201009

DOCKET: M51428 (C67652)

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

BETWEEN

Estates Associates Inc.

Plaintiff (Appellant/Moving Party)

and

1645112 Ontario Ltd., 1793411 Ontario Ltd.,
    Ronald McCowan
    and Bryon C. Cohen

Defendants (Respondents/Responding Parties)

Musharraf Iqbal, acting in person for the moving party

David N. Vaillancourt, for the responding party, Bryon
    C. Cohen

Amandeep S. Dhillon, for the responding parties, 1645112
    Ontario Ltd., 1793411 Ontario Ltd., and Ronald McCowan

Heard: October 5, 2020 by video conference

REASONS FOR DECISION

[1]

The moving party, Estates Associates Inc. (Estates), represented by
    its principal, Mr. Iqbal, seeks to set aside or vary the order of a judge of
    this court requiring that it post security for costs of the responding parties
    in the amount of $100,000 each.

[2]

The litigation is more than 10 years old and relates to events that
    occurred 11 to 12 years ago. Estates made claims for fraud, negligent
    misrepresentation, conspiracy, and breach of contract against the purchaser,
    Ronald McCowan and his companies (collectively, McCowan), in connection with
    the sale of a property. Estates also claims against the defendant, Bryon C. Cohen
    (Cohen), for allegedly negligent legal services.

[3]

The action was tried over the course of three weeks in 2019 and reasons
    were released in November 2019, dismissing the claim. The trial judge
    subsequently awarded costs of $150,000 to McCowan and $175,000 to Cohen.

[4]

Estates has appealed the trial judgment to this court.

[5]

Rule 61.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, permits this court to order security for the costs of an appeal on
    several grounds, including (a) where there is good reason to believe that the
    appeal is frivolous and vexatious and that the appellant has insufficient
    assets in Ontario to pay the costs of the appeal; (b) where an order for
    security for costs could be made under r. 56.01; or (c) where, for other good
    reason, security for costs should be ordered.

[6]

The motion judges order for security for costs rests on two
    foundations: first, a finding that the merits of the appeal are very much in
    doubt; and second, a finding that Estates failed to establish that, despite its
    apparent impecuniosity, it did not have access to funds.

[7]

The motion judges order is discretionary and is entitled to deference:
Yaiguaje
    v. Chevron Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 20. Estates
    has demonstrated neither an error of law nor an error in principle in the
    exercise of the motion judges discretion.

[8]

While the appeal may not be frivolous or vexatious, it appears to have a
    very low prospect of success. The trial judgment is fact-driven, and reflects
    the trial judges rejection of much of Mr. Iqbals evidence and her acceptance
    of the responding parties evidence.

[9]

While there was little doubt that Estates had no assets, the motion
    judge properly considered whether Estates had established that it did not have access
    to funds and would not be able to pay security for costs. There was evidence
    that Estates had funded its litigation at various times by retaining several
    different lawyers, retaining an expert witness, and paying for the costs of the
    trial transcripts. There was also evidence that Mr. Iqbal had received funds in
    2018 amounting to approximately $275,000. In the face of this evidence, Estates
    had an obligation to lead evidence that not only showed that it was without
    assets, but that it also had no access to funds. Estates failed to do so, and
    the motion judge properly considered this failure in concluding that security
    for costs could be awarded.

[10]

On
    this motion, Mr. Iqbal sought to adduce fresh evidence that while he received
    $275,000 in 2018 from another party in a separate litigation, those funds have
    since been disbursed. This evidence is not fresh because it was available at
    the time of the motion.

[11]

In
    any event, this evidence, when considered in light of Estates ability to
    finance this litigation over the years, does not demonstrate that the motion
    judge erred in law or in principle.

[12]

The
    motion is dismissed, with costs to McCowan and Cohen, in the amount of $2,500
    each, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

David Brown J.A.

Grant Huscroft J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Franmed Consultants (1993) Inc. v.
    Medcan Health Management Inc., 2020 ONCA 687

DATE: 20201029

DOCKET: C67989

Doherty, Paciocco and Coroza
    JJ.A.

BETWEEN

Franmed
    Consultants (1993) Inc.
, 1852421 Alberta ULC and
    Dr. Robert Francis

Plaintiffs (
Appellant
)

and

Medcan
    Health Management Inc.
, Shaun Francis, Andrew
    Carragher, Paige Francis, Edwin F. Hawken, Urban Joseph, Beau Laskey, Thomas P.
    Reeves, Owen Rogers and Craig Shepherd

Defendants (
Respondent
)

AND BETWEEN

Medcan Health Management Inc.

Plaintiff by
    Counterclaim

and

Franmed Consultants (1993) Inc.,
    Dr. Robert Francis and Leonard Goodman

Defendants by
    Counterclaim

Ronald B. Moldaver, Q.C., for the
    appellant

Fredrick R. Schumann, for the
    respondent

Heard: October 14, 2020 by
    video conference

On appeal
    from the order of Justice Barbara A. Conway of the Superior Court of Justice,
    dated January 16, 2020.

REASONS FOR DECISION

[1]

The appellant, Franmed Consultants (1993) Inc. (Franmed),
    appeals from the motion judges decision to dismiss its action against the
    respondent, Medcan Health Management Inc. (Medcan), under r. 20 of the
Rules
    of Civil Procedure
, R.R.O. 1990. Reg. 194. Franmed also applies for leave
    to appeal the motion judges costs award to Medcan in the amount of $100,000
    for the action and the motion. At the conclusion of the oral hearing, we
    dismissed the appellants appeal and application for leave to appeal costs with
    reasons to follow. These are our reasons.

[2]

Dr. Robert Francis is the owner and sole
    shareholder of Franmed. He operates a medical practice called the Chairmans
    Plan through Franmed, in a space leased by Medcan.

[3]

Dr. Francis is also the founder of Medcan. He
    controlled Medcan until 2016, when his son, Shaun Francis, acquired joint
    control of the company.

[4]

From the 1990s until 2019, Medcan made annual
    payments to Franmed. The payments increased over time and, by 2018, Medcan was
    paying Franmed $1.2 million per year. Dr. Francis claimed that these were
    payments for services that Franmed provided to Medcan.

[5]

In 2018, Medcans board of directors assembled
    an independent committee to examine the relationship between Dr. Francis,
    Franmed and Medcan. On September 12, 2018, Shaun, on behalf of the board, sent
    a letter to Dr. Francis notifying him that Medcan would pay Franmed $1.2
    million annually for two more years until September 2020, when the payments
    would cease. Dr. Francis did not accept this arrangement. By January of 2019,
    the board determined that Dr. Francis was a risk to Medcans reputation
    because of his erratic behaviour and that the payments to Franmed should be
    discontinued.

[6]

Franmed brought an action against Medcan for
    damages arising from breach of contract. Franmed argues that it had a
    longstanding contract with Medcan of indeterminate duration which required
    Medcan to make the payments it had been making to Franmed over the years.
    Franmed further argues Medcan breached the agreement when it purported to
    terminate it. Franmed submits damages are the appropriate remedy in the
    circumstances as they now exist between the parties. Franmed fixes those
    damages at the equivalent of reasonable notice were the agreement capable of
    termination. Franmed submits that seven years constitutes reasonable notice.

[7]

Medcan defended the action and issued a
    counterclaim. The actions became the subject matter of two summary judgment
    motions heard together by the motion judge. After carefully examining the evidence,
    the motion judge held that the documentary evidence did not support the
    existence of a contract or define any terms of the alleged contract. She found
    that the only reference to an oral agreement was in the September 12, 2018
    letter sent by Shaun. However, this referenced Medcans willingness to make an
    additional two years of payment to Franmed; in her view, the letter did not
    refer to or support the existence of any ongoing obligation of Medcan to make
    annual payments to Franmed. The motion judge concluded that while Medcan
    historically made payments to Franmed, there was no contract that required it
    to do so in perpetuity. Accordingly, the motion judge dismissed Franmeds
    action.

[8]

On appeal, Franmed argues that the motion
    judges conclusion that there was no contract is unreasonable. It contends that
    the documents before the motion judge, including Shauns letter of September 12,
    2018, draft term sheets used in negotiations when Medcan attempted to purchase
    the Chairmans Plan from Franmed, financial statements, and Dr. Francis
    affidavit evidence point to the existence of a contract.

[9]

We do not accept this submission. The core issue
    on the motion was whether a contract existed between Franmed and Medcan, and
    the motion judges decision is entitled to deference.

[10]

In our view, the motion judges decision rested
    on inferences and findings that were clearly open to her and reasonable on the
    evidence adduced on the motion. There is no basis to interfere with the motion
    judges conclusion that there was no contract.

[11]

The motion judges finding that there was no
    contract is fatal to Franmeds other arguments in relation to oppression and
    relief from forfeiture. These arguments are predicated on the existence of a
    contract.

[12]

Turning to Franmeds application for leave to
    appeal the costs awarded below, the motion judge made several costs orders.
    First, she awarded Medcan costs for the action and the motion in the amount of
    $100,000. Second, she ordered Franmed to pay costs in the amount of $30,000
    that were fixed by a different judge on a previous motion and made payable in
    the cause. Third, she awarded Shaun Francis costs for the action and the motion
    in the amount of $30,000. Finally, she ordered Franmed to pay costs in the
    amount of $5,000 that were agreed to between the parties in respect of a
    previous motion argued before a different judge.

[13]

Franmed seeks leave to appeal only the costs
    order of $100,000 for the action and the motion. Franmeds complaint is that
    the quantum ordered was excessive.

[14]

We see nothing in this submission, and no basis
    for disturbing the motion judges discretionary costs order.

[15]

Accordingly, we dismiss the appeal and refuse
    leave to appeal costs. Medcan is entitled to costs of the appeal fixed in the
    agreed upon amount of $8,500, inclusive of disbursements and applicable taxes.

Doherty
    J.A.

David
    M. Paciocco J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2020 ONCA 619

DATE: 20201002

DOCKET: C67781

Tulloch, Paciocco and Harvison
    Young JJ.A.

IN THE MATTER OF:  Matthew Gibson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen Gehl, for the appellant

Chloe Hendrie
, for the Attorney General
    of Ontario

Michele Warner, Person in Charge of Centre
    for Addiction and Mental Health

Heard: August 18, 2020 by
    video conference

On appeal from the disposition of the
    Ontario Review Board dated September 17, 2019, with reasons dated October 21,
    2019.

REASONS FOR DECISION

[1]

The appellant, Matthew Gibson, appeals the order of the Ontario Review
    Board (the Board), dated September 17, 2019, following his annual review
    hearing. The Board ordered the continuation of a conditional discharge and
    declined to grant an absolute discharge as the appellant sought. The appellant
    argues that the Boards decision was unreasonable and that there is no evidence
    to support the conclusion that he continues to pose a significant risk to the
    safety of the public. He asks to have the Boards decision set aside and seeks
    an absolute discharge.

Background Facts

[2]

At the age of 15, Mr. Gibson suffered a serious closed head injury as a
    passenger in a motorcycle accident. During his 20s, he began to experience
    delusions. He has since been diagnosed with schizophrenia. In recent years,
    when the appellant is on anti-psychotic medication and not abusing substances,
    his mental state is stable and his delusions appear to be encased in the past.
    However, when the appellants mental condition deteriorates because he is not
    on medication and/or he is abusing substances, his delusions expand to
    incorporate others in his present environment, such as
neighbours
,
    other patients, or members of his treatment team.

[3]

In addition to schizophrenia, the appellant suffers from a long-standing
    cannabis use disorder. He believes that it is the only thing that alleviates
    his chronic pain. As the hospital reports indicate, cannabis in itself may
    precipitate psychosis, especially in people with a psychotic illness like the
    appellants. Various clinicians have observed that the appellants cannabis use
    can lead to the deterioration of his mental status. It can increase his
    irritability and make his mood more labile. Cannabis worsens his psychosis and
    delusional preoccupations.

(1)

The index offence

[4]

The appellant has been subject to the jurisdiction of the Board since he
    was found not criminally responsible on account of mental disorder of breach of
    probation in 2006. He was 36 years old at the time. The probation in issue had
    been imposed as a sentence following Mr. Gibsons conviction on charges of
    criminal harassment, assault with a weapon and possession of weapons dangerous
    relating to his
neighbour
and his daughters. The
    appellant believed that the
neighbours

teenaged daughters were involved in a conspiracy to ruin his
    life and had raped him two years earlier. He left threatening letters addressed
    to the girls on their family car. When he was subsequently approached by the
    girls father about the letters, the appellant threatened him with an 11-inch
    knife, saying dont fuck with me. The presiding judge suspended the passing
    of sentence and imposed a probation order that included a term prohibiting him
    from contacting the
neighbours
.

[5]

The index offence took place two weeks after the probation order was
    imposed. It followed a series of incidents which culminated with the appellant
    standing on his lawn, yelling in a fit of rage and shouting obscenities about
    the
neighbour
and his daughter. He was not taking any
    anti-psychotic medication at the time.

(2)

The 2019 disposition

[6]

The evidence before the Board included the hospital report, Dr. Naidoos
    testimony, the appellants testimony and a four-page handwritten letter the
    appellant wrote to the Board.

[7]

Dr. Naidoo testified that the appellant has a continuing, fixed
    conviction that he is not mentally ill. Without oversight from the Board, Dr.
    Naidoo concluded that it is highly likely that the appellant would stop his
    medication and become increasingly symptomatic. The appellants mental status
    has deteriorated during the latest reporting period. His paranoia has
    intensified and he has had beliefs about intruders entering his home and
    stealing family belongings. Dr. Naidoo stated that there was evidence that the
    appellant made efforts to conceal his cannabis use by diluting his urine
    samples. There was also evidence that he was non-compliant with his medication.

[8]

Dr. Naidoo testified that all the risk factors that were present at the
    appellants last review hearing have persisted in the current reporting period:
    the appellant continues to show no insight into his illness or into his
    potential for violence; the appellant remains incapable of consenting to
    treatment; and the appellant still experiences active delusional thinking and
    beliefs of persecution. Dr. Naidoos opinion was that the appellants
    persecutory beliefs were more concerning because they have expanded to
    include novel stimuli and subjects, specifically his
neighbours
.

[9]

Dr. Naidoo also testified that two additional risk factors arose during
    the reporting period: the appellant used cannabis on multiple occasions and the
    appellant had difficulty with rule adherence, specifically with respect to
    hiding substance use from staff and non-compliance with his medication on several
    occasions.

[10]

The
    appellant was voluntarily admitted to the hospital on two occasions during the reporting
    period:

·

Admission #1 (June 11  25, 2019):

This
    admission occurred after hospital staff became concerned about the appellant
    tampering with urine samples and consuming cannabis. Before his admission, the
    appellant left increasingly intense voicemails for Dr. Naidoo and another
    member of his treatment team. He was tearful and sad about being in the
    forensic system and expressed concerns about his neighbours making threats and
    intruders entering his home and stealing his belongings. The appellant consumed
    cannabis and alcohol on the day he was admitted. He was prescribed Risperidone,
    an oral anti-psychotic, which caused his mood to settle and his paranoid
    ideations to decrease.

·

Admission #2 (July 12  August 7, 2019):

The
    appellant was readmitted a few weeks later after his treatment team noticed his
    increasing instability. In the intervening period, the appellant used cannabis
    and his sisters Tylenol 3s. His urine screens were negative for Risperidone. Dr.
    Naidoo believed that the appellant was taking the Risperidone to
some
degree
    but was not fully compliant with his medication. The appellant was placed on a
    higher dosage of Risperidone.

[11]

Dr.
    Naidoo testified that the frequency of the appellants voicemails decreased
    following the second hospitalization, but that he continued to have concerns
    about the appellants cannabis use, tampered urine samples and overall
    decompensation post-discharge.

[12]

The
    appellant testified that he had been misdiagnosed and mistreated, and that the
    authorities failed him by not investigating his claims. He stated that, if
    absolutely discharged, he would like to get off the needle, but would
    continue to take pill medication. He provided the Board with a handwritten
    statement. According to the Board, its contents demonstrate that Mr. Gibson
    still firmly holds the paranoid beliefs that gave rise to the commission of the
    index offences.

[13]

The
    Board accepted Dr. Naidoos evidence and the evidence in the Report that the
    appellant remained a significant threat to the safety of the public. The Board
    concluded that the appellant would likely discontinue treatment if discharged,
    which could cause his delusions to intensify, and as a result, he would engage
    in psychologically or physically harmful criminal behaviour. The Board stated
    that [t]his conclusion isnot speculative but represents the only reasonable
    conclusion on the evidence before us. An absolute discharge was therefore not
    available.

[14]

The
    Board found that the increased reporting period requested by the Hospital and
    the Crown was not necessary or appropriate because the appellant had complied
    with the Hospitals requests to attend. The monthly reporting period was
    maintained, as were the existing conditions on the conditional discharge, save
    for an amended residential term that included Waterloo, Hamilton, or Toronto.
    The Board also ordered the appellants requested transfer to the Centre for Addiction
    and Mental Health and expressed hope that the transfer could yield positive
    change for the appellant and the public.

(3)

Standard of Review

[15]

There
    is no dispute that the applicable standard of review is reasonableness.  A
    reasonable decision is one that, having regard to the reasoning process and the
    outcome of the decision, properly reflects an internally coherent and rational
    chain of analysis that is justified in relation to the facts and law:
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441
    D.L.R. (4th) 1.

Analysis

[16]

The
    Board applied the correct legal test pursuant to s. 672.54 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. It considered whether there was evidence to
    support the hospitals submission that the appellant presented a significant
    risk according to
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, and it considered the least onerous
    disposition necessary to manage that risk.

[17]

The
    heart of the appellants argument is that there was no evidence to support the
    finding of significant risk and therefore this finding is unreasonable as it cannot
    be justified in fact and/or law. The appellant states that there is no evidence
    that he has acted in a criminal way since the index offence. He also states
    that there is no evidence that his use of marijuana causes a deterioration of
    his mental state, or that his marijuana use triggers violent or criminal
behaviour
. We do not agree.

[18]

To
    begin with, the Board carefully considered the evidence before it. The hospital
    report was comprised largely of Dr. Naidoos evidence, who has been Mr.
    Gibsons treating psychiatrist for a number of years.

[19]

The
    Boards decision is rational, transparent and coherent. The Boards analysis
    was clear and grounded in the record and Dr. Naidoos evidence. The Board
    relied on evidence that the appellants persecutory delusions persist, and that
    there were heightened risk concerns not present at last years hearing.

[20]

The
    appellant submits that the most recent psychological harm inflicted by the
    appellant was the index offence, despite the fact that he has been living in
    the community (under the jurisdiction of the Board) since 2010.

[21]

The
    absence of violence  is relevant to, but not determinative of, the question of
    significant threat. Evidence of lack of insight into mental illness and
    concerns about discontinuing medication and substance abuse can also support a
    finding of significant risk:
Krist (Re)
, 2019 ONCA 802, at para. 15.

[22]

Those
    factors existed here, notwithstanding the appellants lack of violence.  Dr.
    Naidoos evidence was that an absolute discharge was not available due to the
    risk of the appellant discontinuing his medication. The Boards finding that this
    was likely to occur was well grounded in the evidence.

[23]

This
    case is distinguishable from
Ferguson (Re)
, 2010 ONCA 810, 264 C.C.C.
    (3d) 451. In
Ferguson
, the expert was uncertain as to whether the
    appellant posed a significant threat to the public. The appellants psychiatric
    history and the nature of the index offences did not suggest that the appellant
    posed a significant threat to the public. As a result, the record could not
    reasonably support a finding that the appellant posed a significant threat to
    the public: at paras. 40-44.

[24]

In
    this case, there was ample evidence to support the Boards significant threat
    finding. This finding was not speculative or unsubstantiated:
Winko
at
    para. 57. There was evidence of the future risk of harm in the event of an absolute
    discharge: the appellant would stop medication and would start substance abuse.
    His persecutory delusions would worsen such that he would be likely to engage
    in criminal
behaviour
causing serious psychological or
    physical harm. In addition, we note that the Boards refusal to increase the
    frequency of the appellants reporting requirements as the hospital requested
    shows that the Board was alive to the need to make the least onerous
    disposition necessary to manage the risk to public safety.

Disposition

[25]

The
    Boards decision was reasonable. The appeal is dismissed.

M.H.
    Tulloch J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Groves v. UTS Consultants Inc.,
    2020 ONCA 630

DATE: 20201002

DOCKET: C67641

Juriansz, Hourigan and Thorburn
    JJ.A.

BETWEEN

Wayne Groves

Plaintiff

(Respondent)

and

UTS
    Consultants Inc.

Defendant

(Appellant)

Casey M. Dockendorff and Giovanna Di
    Sauro, for the appellant

Kumail Karimjee and Mika Imai, for the
    respondent

Heard: September 28, 2020

On
    appeal from the judgment of Justice Sandra Nishikawa of the Superior Court of
    Justice dated September 27, 2019, with reasons reported at 2019 ONSC 5605

REASONS FOR DECISION

(1)

Introduction

[1]

This is an appeal from a judgment granting the
    respondents motion for summary judgment in his action for wrongful dismissal.

[2]

The appellant raises several grounds of appeal,
    primarily arguing that the motion judge made extricable errors of law in her
    analysis of the appellant's employment contract. We are not persuaded that
    appellate intervention is warranted. Accordingly, for the reasons that follow,
    the appeal is dismissed.

(2)

Background

[3]

In November 2014, the respondent, Wayne Groves,
    executed a commercial agreement to sell the shares of 1223099 Ontario Limited
    o/a UTS Consultants ("122") to the appellant, UTS Consultants Inc.
    ("UTS"). Before the transaction, Mr. Groves had been a shareholder,
    officer, and director of 122 for many years.

[4]

Under the terms of the share sale, Mr. Groves signed
    a resignation stating that he resigned as an officer and director of 122. Mr.
    Groves also executed a release in connection with the transaction. On the same
    day, Mr. Groves entered into an employment agreement with UTS.

[5]

On September 26, 2017, UTS terminated Mr. Groves
    without cause. Mr. Groves commenced an action for wrongful dismissal and
    brought a motion for summary judgment in that action. UTS brought a
    cross-motion for summary judgment.

[6]

In granting Mr. Groves summary judgment motion,
    the motion judge found that he resigned as an officer and director of 122, but
    never resigned as an employee. She further found that both the termination
    provision in the employment contract and the release were void because they breached
Employment Standards Act, 2000
, S.O. 2000, c. 41, (
ESA
).
    The motion judge concluded that a reasonable notice period was 24 months and
    that Mr. Groves was entitled to damages, including bonus pay, which was an
    integral part of his compensation.

(3)

Grounds of Appeal

[7]

UTS raises the following grounds of appeal:

(a)

The motion judge erred by failing to interpret
    the resignation, release, and employment contract in the context of the share
    sale;

(b)

The motion judge erred in finding that Mr.
    Groves had not resigned as an employee of 122;

(c)

The motion judge erred in her interpretation of
    the release;

(d)

The motion judge erred in her conclusion that a
    reasonable notice period was 24 months; and

(e)

The motion judge erred in including bonus
    payments as part of the entitlements to which Mr. Groves would be entitled
    throughout the notice period.

(4)

Analysis

[8]

Before analyzing the grounds of appeal, it is
    essential to consider the applicable standard of review. Issues of contractual
    interpretation of non-standard form contracts of the sort at issue in this
    appeal are generally questions of mixed fact and law and are reviewable on the
    standard of palpable and overriding error. Only extricable questions of law are
    reviewed on a correctness standard:
Sattva Capital Corp. v. Creston Moly
    Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52.

[9]

An extricable question of law includes the
    application of an incorrect principle, the failure to consider a required
    element of a legal test, or the failure to consider a relevant factor. In
Sattva
,
    the Supreme Court directed courts of appeal to be cautious in identifying
    extricable questions of law in disputes over contractual interpretation. The
    court recognized that it is often difficult to extricate a legal issue from the
    factual matrix, and in such cases, the alleged error is a question of mixed
    fact and law:
Sattva
, at paras. 53-54.

[10]

Many of UTS arguments advanced on this appeal
    endeavour to categorize the motion judges findings of mixed fact and law as
    extricable errors of law, in an attempt to have this court review the alleged
    errors on a correctness standard.

(a)

Commercial Context

[11]

UTS principal argument is that the motion judge
    made an extricable error in law by failing to interpret Mr. Groves employment
    contract in the context of the commercial agreement between the parties.  UTS submits
    that the motion judge erred in applying the principles enunciated in
Wood
    v. Deeley
, 2017 ONCA 158, 134 O.R. (3d) 481, without considering that the
    factual matrix at hand, being a commercial transaction, differs from a typical
    employment contract.

[12]

Relying on the Supreme Courts decision in
Payette
    v. Guay Inc.
, 2013 SCC 45, [2013] 3 S.C.R. 95, a case about the
    enforceability of a non-competition clause, UTS argues that the motion judge
    should have interpreted Mr. Groves employment contract according to the
    intention of the parties as part of their commercial transaction.

[13]

This argument is not persuasive. A fair reading
    of the motion judge's reasons makes plain that she repeatedly averted to the
    share transaction and took into account the factual matrix in her analysis. To
    the extent that UTS is advancing an argument that in the context of a
    commercial contract, the
ESA
provisions do not apply, we disagree.
    There is nothing in the
ESA
that indicates that it is inapplicable in employment
    relationships connected to commercial transactions.

(b)

Resignation

[14]

UTS submits that the motion judge erred in fact
    in finding that Mr. Groves resigned as a director and president of 122 but not
    as an employee. UTS further submits that the motion judge's failure to apply
    this court's decision in
Cosentino v. Sherwood Dash Inc.
, 2014 ONCA
    843, constituted an extricable error of law. We do not accept these
    submissions.

[15]

The motion judges finding that Mr. Groves did
    not resign was well rooted in the evidence, including an admission by UTS
    affiant on cross-examination that Mr. Groves did not resign.

[16]

We also see no error in the motion judges
    finding that
Cosentino
is distinguishable on the basis that, in that
    case, the share purchase agreement contemplated continued employment only if
    requested by the purchaser and then only for one month.

[17]

Given these conclusions, it is unnecessary to
    consider Mr. Groves alternative argument that s. 65(2) of the
ESA
renders the issue of resignation irrelevant.

(c)

Release

[18]

UTS position is that the motion judge erred in
    her consideration of the release. Specifically, it is submitted that the motion
    judge failed to properly construe the document as releasing only Mr. Groves common
    law entitlements and not his
ESA
rights. Further, UTS argues that the
    motion judge erred in law in not following
Kerzner v. American Iron &
    Metal Company Inc.
, 2018 ONCA 989, leave to appeal to S.C.C. refused, 38503
    (May 23, 2019), where this court set aside a waiver of
ESA
rights but
    did not interfere with the release of common law rights.

[19]

We note that UTS position on this issue has
    changed on appeal. Previously it submitted that the parties intended for Mr.
    Groves to waive all of his claims arising from his termination under the
    release, including
ESA
claims. Now it asserts that the release was
    intended to waive common law claims only.

[20]

Leaving aside the issue of the inconsistency in UTS
    position, this ground of appeal is fully answered by the motion judges finding
    at paragraph 66 of her reasons, where she states:

In
Kerzner
, however, the release did
    not specifically waive the employees
ESA
entitlements. In this case,
    the language of the release is broader than the provision in
Kerzner
.
    The release states that it releases and discharges "any claims" for
    "termination or severance pay" which are not common law entitlements,
    but rather entitlements under the
ESA
. Given that this violates the
ESA
,
    it is null and void for all purposes:
Cormier
, at paras. 87-88.

[21]

This was a finding of mixed fact and law that
    was open to the motion judge. We see no basis for appellate interference and
    would therefore dismiss this ground of appeal.

(d)

Notice Period

[22]

This submission may be dealt with summarily.
    Given our conclusions on the other grounds of appeal, Mr. Groves was not
    limited to notice based only on his post-sale employment period.  Therefore, we
    see no error in the motion judge's conclusion that Mr. Groves, as a 65-year-old
    with over 25 years of service, was entitled to a notice period of 24 months'
    notice.

(e)

Bonus

[23]

The motion judge awarded Mr. Groves damages for
    a pro-rata bonus for the period in 2017 when he was employed and for lost
    bonuses during the notice period from September 26, 2017 to September 26, 2019.

[24]

In so doing, the motion judge applied the
    two-step process mandated by
Paquette v. TeraGo Networks Inc.
, 2016
    ONCA 618, 352 O.A.C. 1 to determine whether an employee is entitled to
    compensation for a bonus. She first found that Mr. Groves had a common law
    entitlement to a bonus and then concluded that nothing in the bonus plan
    removed that common law entitlement.

[25]

With regard to the common law entitlement, UTS
    submits that there was no evidence that the parties entered into a bonus plan
    after 2015. We disagree. There was ample evidence to support the motion judges
    finding that the bonus plan continued beyond 2015, including Mr. Groves
    termination letter drafted by UTS, which references a bonus program during
    2017.

[26]

We also see no error in the motion judge's
    finding that the bonus was an integral part of Mr. Groves compensation. The
    evidence established that the bonus was 30 percent of his salary and was an
    incentive to ensure that Mr. Groves remained with and grew the business.

[27]

Regarding whether the terms of the plan
    disentitled Mr. Groves to a bonus, this was an issue of mixed fact and law. We
    are not satisfied that the motion judge made a palpable and overriding error in
    her analysis.

(5)

Disposition

[28]

The appeal is dismissed. Consistent with the
    parties agreement, UTS shall pay Mr. Groves his costs of the appeal in the
    all-inclusive sum of $15,000.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

J.A. Thorburn J.A.