COURT OF APPEAL FOR ONTARIO

CITATION: Delco Automation Inc. v. Carlo's Electric Limited,
    2016 ONCA 591

DATE: 20160727

DOCKET: C59834

Feldman, Gillese and Brown JJ.A.

BETWEEN

Delco Automation Inc.

Plaintiff
    (Respondent/

Appellant by way of cross-appeal)

and

Carlos Electric Limited and Carlo Fornasier

Defendants
    (Appellants/

Respondents by way of cross-appeal)

AND BETWEEN

DOCKET: C59835

Delco Automation Inc.

Plaintiff (Respondent)

and

Carlos Electric Limited

Defendant (Appellant)

Stephen Schwartz, for the appellants/respondents by way
    of cross-appeal

James L. MacGillivray, for the respondent/appellant by
    way of cross-appeal

Heard: March 22-23, 2016

On appeal from the judgment of Justice G. Patrick Smith
    of the Superior Court of Justice dated December 10, 2014 with reasons reported
    at 2014 ONSC 7157.

Brown J.A.:

I.

OVERVIEW

[1]

These appeals concern a dispute over the scope of work the parties agreed
    to in their contracts for construction projects at two correctional
    institutions and issues relating to the performance of those contracts.

[2]

The appellant, Carlos Electric Limited (CEL), is an electrical
    contracting company whose principal is the individual appellant, Carlo Fornasier.
    The respondent, Delco Automation Inc. (Delco), is an engineering firm
    specializing in systems integration.

[3]

Correctional facilities require integrated security systems (ISS) that
    allow security officers to control an entire security system from one or more
    touch screens located throughout the facility. In an ISS, a central computer is
    linked to controllers that send electronic messages to control field devices,
    such as cameras, speakers, and door locks. Field devices are connected to
    controllers by wires contained in protective conduits running throughout the
    system. One of the final steps in installing an ISS is the termination of the
    wire, which is the connection of the wire at the head end, or controller, to
    each field device, allowing electronic messages to pass back and forth from the
    device to the central command centre.

[4]

The disputes between the parties concern ISS work at two correctional
    facilities.  On the first project, the Greater Toronto Area Youth Centre in
    Brampton (the Brampton Project), Delco contracted with the general contractor
    to provide systems integration work. Delco hired CEL as an electrical sub-contractor.
    Delco claimed CEL was required to supply and install wiring inside and outside
    the perimeter of the buildings. CEL disagreed. Delco had to retain other firms
    to complete the work. Delco claimed damages for CELs failure to perform the
    work; CEL counterclaimed for monies due under the contract.

[5]

The second project was at the Collins Bay Correctional Institution (the
    Collins Bay Project). CEL secured the contract for certain electrical work.
    CEL, in turn, sub-contracted with Delco to provide the system integration work.
    Delco took the position that the contract required CEL to perform the work of
    terminating the field devices. CEL disagreed. Delco performed the termination
    work under protest and sued CEL for the cost of the work.

[6]

As the trial judge noted, the issues in both actions were similar as
    they involved a determination of the scope of work agreed to by the parties
    under their contracts for each project.

[7]

On the Brampton Project, the trial judge found CEL had contracted to
    supply and install the inside and outside perimeter wire, CEL had breached the
    contract, and the trial judge awarded Delco damages of $443,103.10. The trial
    judge dismissed CELs counterclaim.

[8]

On the Collins Bay Project, the trial judge found CEL breached the
    contract by refusing to perform the termination work. The trial judge awarded
    damages of $487,941.63 against CEL, as well as against Mr. Fornasier on the
    basis that he had assented to, or acquiesced in, CELs breach of the trust
    provisions contained in ss. 8 and 13 of the
Construction Lien Act
,
    R.S.O. 1990, c. C.30 (the
CLA
). However, the trial judge refused
    Delcos request to declare that the judgment against Mr. Fornasier survived
    bankruptcy pursuant to s. 178(d) of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B-3
.

[9]

In relation to the Brampton Project, CEL appeals the trial judges award
    of damages, the quantum of damages, and the dismissal of its counterclaim. In
    relation to the Collins Bay Project, CEL appeals the award of damages, Mr.
    Fornasier appeals the trial judges order in relation to his liability under
    the
CLA
, and Delco cross-appeals the trial judges finding that Mr.
    Fornasiers liability did not survive his bankruptcy.

[10]

I would dismiss both appeals by CEL, allow the appeal of Mr. Fornasier
    in respect of his personal liability under s. 13 of the
CLA
, and
    dismiss Delcos cross-appeal in the Collins Bay Project action.

II.

STANDARD OF REVIEW

[11]

Most of the grounds of appeal advanced by CEL involve either issues of
    contractual interpretation or specific findings of fact made by the trial
    judge, especially regarding what terms the contracts contained. The former are
    reviewable on the deferential standard set out in
Sattva Capital Corp. v.
    Creston Molly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52;
Heritage
    Capital Corp. v. Equitable Trust Co.
, 2016 SCC 19, [2016] S.C.J. No. 19,
    at para. 21. The latter can only be set aside on appellate review by
    demonstrating the trial judge made a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

III.

THE BRAMPTON PROJECT (C59835)

The issues

[12]

CEL submits the trial judge erred in: (a) concluding the scope of work
    agreed upon by the parties included the supply and installation of wiring inside
    and outside the perimeter of the buildings; (b) finding Delco had reasonably
    mitigated its damages; (c) allowing Delco to recover certain damage claims; and
    (d) dismissing CELs counterclaim.

(a)      The scope of work

[13]

CEL submits the trial judge made three errors in concluding CEL had
    breached the contract by failing to install and supply the wiring:

(i)

He found the parties had agreed on the scope
    of work under the contract, when the evidence showed they had not;

(ii)

He ignored the evidence of CELs expert, Andre
    Miksys; and

(iii)

He improperly drew an adverse inference
    against CEL on the basis that it had lost and destroyed material documents.

The evidence and the trial judges findings of fact

[14]

The scope of work dispute turned on whether the parties had agreed CEL
    would supply and install the wiring for the project and perform work outside
    the perimeter of the buildings. At trial, certain facts about the negotiations
    between the parties on the scope of work were not in dispute:

(i)

Delco sent a Scope of Work (SOW) document
    to CEL shortly before the December 8, 2006 bid date that showed the electrical
    contractor would supply and install wiring inside and outside the perimeter of
    the buildings;

(ii)

CEL provided Delco with an oral quote on
    December 8, 2006 for $624,950;

(iii)

When Delco learned, in March 2007, that it
    had been awarded the contract, it contacted CEL to confirm its bid was still
    good; in response, CEL provided, on March 22, 2007, a written quote that included
    the supply and installation of wiring;

(iv)

On July 26, 2007 Delco emailed CEL that the general
    contractor had accepted Delcos proposal to use CEL and told CEL to treat the
    email as a Letter of Intent to proceed based on your Quotation dated March 22,
    2007; and

(v)

CEL started to work on the Brampton Project
    before Delco issued a purchase order for the work on November 28, 2007. The
    Purchase Order stated it was based on the scope of work identified in Delcos
    December 2006 SOW, which included the installation of the wiring. CEL
    immediately objected to the scope of work included in the purchase order.

[15]

However, the trial judge was faced with other, conflicting evidence about
    whether CEL had agreed to supply and install wiring:

(i)

In its statement of defence, CEL pleaded it did
    not possess Delcos SOW when it made its bid in December 2006, a position Mr. Fornasier
    recorded on his mark-up of the November 2007 purchase order. However, at trial Mr.
    Fornasier admitted CEL had received the SOW, but had not paid it much attention
    before making its quote to Delco;

(ii)

CEL relied on two documents to support its position
    that it had not agreed to supply and install wiring: (i) a December 8, 2006
    quote for $864,800, and (ii) a March 23, 2007 quote purporting to correct and
    remove the inclusion of wiring from its quote of the previous day. Delco
    witnesses testified they did not receive either document. Delco submitted CEL
    had fabricated the documents; and

(iii)

CEL contended that in an August 1, 2007 email
    Mr. Fornasier had stated work outside the perimeter of the building was not
    included in its quotation. Delco led evidence that it understood the email referred
    to underground duct bank work, not wiring.

[16]

The trial judge reviewed the conflicting evidence at some length and noted
    credibility was central to determining the issue. The trial judge gave several
    reasons for preferring Delcos evidence:

(i)

He accepted the evidence of Delcos expert
    that CEL could have quoted on supplying wire for the project without referring
    to Delcos SOW because CEL had the information it required to do so in other
    project documents in its possession;

(ii)

CEL witnesses testified that after making an
    oral quote to Delco, they followed up by sending a written quotation to Delco
    and two other bidding system integrators on December 8, 2006. However, the
    trial judge noted CEL did not lead any evidence from those integrators to
    counter Delcos allegation that CEL had fabricated the written quotation;

(iii)

The trial judge regarded CELs position that
    the reference to c/w wiring in the March 22, 2007 quote sent to Delco was a
    mistake as neither credible nor plausible;

(iv)

Delco had produced its fax logs for the
    period and they supported its position that it had not received the December 8,
    2006 and March 23, 2007 documents CEL contended it had sent; and

(v)

CEL did not produce its fax logs and certain
    other documents. The trial judge held CELs evidence that many or most of its
    records were lost during a computer upgrade was not believable.

Analysis

[17]

The trial judge was faced with conflicting evidence about the course of
    negotiations between the parties concerning the scope of work contained in
    their contract for the Brampton Project. It is clear from his reasons the trial
    judge accepted Delcos evidence that the contracts scope of work required CEL
    to supply and install the wiring and perform outside the perimeter work, as confirmed
    by CELs written quote of March 22, 2007.

[18]

In the course of reaching that conclusion, the trial judge rejected the
    evidence of the CEL witnesses that they had sent other quotes to Delco which
    excluded the supply and installation of wiring. One finding made by the trial
    judge was that CEL deliberately destroyed hard copy files and/or concealed
    documentation that was unfavourable to their case: para. 101. CEL submits the
    trial judge erred in reaching that conclusion because Delco did not plead the spoliation
    of documents and only raised the issue at trial. Further, CEL contends the
    trial judge erred in using a finding of spoliation to draw adverse inferences
    about the credibility of CELs witnesses.

[19]

With respect, that submission takes too narrow a view of the trial
    judges reasons. When they are read as a whole, it is apparent he gave several
    reasons for preferring the documentation adduced by Delco: (i) whereas Delco
    had produced its fax logs for the period, CEL had not; (ii) notwithstanding the
    parties were in a dispute over the scope of work by the time of the November
    2007 purchase order, Mr. Fornasier testified CEL had shredded most of its
    project file within a few years after the projects completion, with the result
    CEL could not establish it had sent its contested documentation to Delco; (iii)
    it was open to CEL to adduce evidence from other integrators in support of its
    assertion that it had sent a written December 8, 2006 quote both to them and to
    Delco, but it did not; and (iv) having listened to the explanations of the CEL
    witnesses that the March 22, 2007 quotation that included the wiring work in
    the scope of work was a mistake, he rejected their explanation as neither
    credible nor plausible. That evidence provided ample support for the trial
    judges findings about which documents CEL had or had not sent to Delco and the
    agreed upon scope of work under the contract.

[20]

Finally, I would not accept CELs submission that the trial judge failed
    to consider the evidence of its expert, Mr. Miksys, of Dejabe Construction
    Services.

[21]

Mr. Miksyss report focused on whether Delcos December 2006 SOW formed
    part of the Brampton Projects Contract Documents, in the sense that the SOW
    was prepared by the Project architect or engineer. He opined it did not, and concluded
    CEL was not required to refer to it in its quotes. The trial judge considered
    the evidence of Mr. Miksys: para. 35. However, as he was entitled to do, the
    trial judge preferred and relied on other evidence in concluding the parties
    had agreed to a scope of work that included the supply and installation of wiring.

(b)      Mitigation
    of damages

[22]

At the end of July 2008, the parties met to discuss several items in
    dispute concerning the Brampton Project, including the supply and installation
    of wiring. Delco insisted CEL perform the wiring work; CEL refused. However, by
    email dated August 6, 2008, CEL offered to quote on the installation of wiring as
    an extra as long as Delco provided certain drawings.

[23]

Delco responded on August 18, 2008, reiterating CEL had agreed on March
    22, 2007 to supply and install the wiring and, if it failed to do so, Delco
    would seek to recover from CEL any costs Delco incurred to do the work.

[24]

CEL argues that since Delco did not give it the opportunity to quote on the
    disputed work, it acted unreasonably in retaining third parties to perform the
    work. Accordingly, the trial judge erred in finding Delco acted reasonably to
    mitigate its damages.

[25]

Although a plaintiff is entitled to recover damages for the losses it
    suffers from the defendants breach of contract, the extent of those losses may
    depend upon whether it has taken reasonable steps to avoid their accumulation:
Michaels
    v. Red Deer College
(1975), 57 D.L.R. (3d) 386 (S.C.C.), at p. 390. Where,
    after the breach of a commercial contract, a defendant makes an offer to the
    plaintiff that would reduce the losses incurred, the plaintiff is generally
    required to accept a reasonable offer by way of mitigating its damages.
    However, it is always a question of fact whether it is reasonable for the
    plaintiff not to accept the breaching defendants offer:
Payzu Ltd. v.
    Saunders
, [1919] 2 K.B. 581 (C.A.), at p. 589;
Nashville Contractors
    Ltd. v. Middleton
, [1984] O.J. No. 99 (C.A.).

[26]

In the present case, the trial judge found Delco acted reasonably in not
    accepting CELs offer to quote, in part because it had lost confidence in CEL:
    paras. 108 and 110. The trial judge also found CEL had adduced no evidence that
    it would have charged less for the disputed work than what Delco ended up
    paying third parties to complete the work: para. 109. Those findings were open
    to the trial judge on the record before him. Accordingly, I see no basis to
    interfere with his conclusion that Delco had reasonably mitigated its damages.

(c)      Particular
    damage claims

[27]

CEL submits the trial judge erred in allowing Delco to recover damages
    for certain claims: (i) the cost of releasing a labour and material bond; (ii)
    the costs of an audit to ascertain the amount of conduit CEL had installed;
    (iii) overhead and profit on additional labour hours; and (iv) the additional costs
    of supplying and installing masts.

[28]

The trial judge found: (i) the bond premium was justified because CEL
    had acted unreasonably; (ii) the audit costs were reasonably necessary; (iii)
    the overhead and profit costs were standard in the industry; and (iv) the masts
    fell within the scope of work CEL had contracted to perform. CEL has not
    demonstrated any palpable or overriding error in respect of any of those
    findings. I would not give effect to this ground of appeal.

(d)      Counterclaim

[29]

CEL counterclaimed for some work it had performed outside the perimeter
    of the buildings that it contended was an extra to the contract. The trial
    judge found the work performed outside the perimeter fell within the contracts
    scope of work and dismissed the counterclaim. CEL acknowledges that if this
    court does not interfere with the trial judges conclusion on the scope of
    work, this ground of appeal fails. Given that I see no error in the trial
    judges conclusion on the scope of work, I would dismiss CELs appeal in
    respect of its counterclaim.

(e)      Summary

[30]

For the reasons set out above, I would dismiss CELs appeal in the
    Brampton Project action.

IV.

THE COLLINS BAY PROJECT (C59834)

A.

The issues

[31]

CEL engaged Delco as a sub-contractor to perform systems
    integration work on the Collins Bay Project. CEL submits the trial judge erred
in finding the scope of work in the contract did not
    require Delco to perform the task of terminating the field devices. In addition,
    Mr. Fornasier submits it was an error for the trial judge to hold him jointly
    liable with CEL for damages to Delco on the basis that he was liable under s.
    13(1) of the
CLA
for CELs
    breach of its trust obligations under s. 8 of the Act.

B.

The scope of work

[32]

CEL submits the June 15, 2005 purchase order it issued to Delco was the
    best evidence of the scope of work agreed to by the parties for the Collins Bay
    Project and therefore the trial judge erred in holding the purchase order did
    not delineate the scope of work between them. I would not accept this
    submission.

[33]

The trial judge was faced with a situation in which there was no
    document signed by both parties setting out the terms of their agreement. In
    those circumstances, he was required to review all the evidence  both
    documentary and testimonial  to determine, on a balance of probabilities,
    whether the parties reached an agreement on the scope of work and, if they did,
    the terms of that agreement.

[34]

As in the case of the Brampton Project, the trial judge was faced with
    conflicting evidence from the parties about the terms of the scope of work for
    the Collins Bay Project. Prior to the close of tenders in early January 2005,
    Delco had sent several versions of a scope of work document to CEL (and to
    eight other electrical contractors who were bidding on the project) that
    specified the electrical contractor would be responsible for terminating the
    field devices (the SOW). Before the close of tenders, Delco provided CEL with
    two price quotes for the work described in the SOW. Delcos evidence was that
    the deal it struck with CEL for the work just before the close of tenders was
    based on CEL accepting Delcos proposed SOW.

[35]

Mr. Fornasier testified that before the close of tenders he spoke with Grant
    Lagimodiere at Delco to advise that CEL would only work with the company if Delco
    supplied and installed a complete ISS, including the termination of field
    devices. Mr. Lagimodiere denied the conversations took place.

[36]

The parties met in May 2005, after the general contractor informed CEL
    it had accepted CELs bid. The CEL witnesses testified the scope of work was
    discussed at the meeting, with Delco responsible for the termination work. Mr.
    Lagimodiere denied any such discussion had taken place.

[37]

Finally, on June 15, 2005, CEL issued a purchase order to Delco to
    supply and install fixed point alarm system, door control and card access
    system, CATV system, PA communication system, CCTV system and guard tour
    system. The document did not indicate whether it included termination work.

[38]

Delco began to work on the Collins Bay Project. A dispute about the
    scope of work did not arise until May 2006, when CEL told Delco it was required
    to perform the termination work. Delco did so, but under protest.

[39]

The trial judge preferred the evidence of Delco and concluded the scope
    of work for Collins Bay Project did not require Delco to perform termination
    services. He noted the evidence from both parties was consistent on a key
    point: the terms of the contract were finalized before the close of tenders in
    January 2005, several months before CEL issued its purchase order. After
    considering the contents of Delcos SOW and CELs purchase order, as well as the
    circumstances surrounding their creation and issuance, the trial judge concluded
    Delcos documents more reliably described the scope of work.

[40]

The trial judge gave several reasons for this conclusion: (i) the Delco
    documents explicitly dealt with the division of work between the integrator and
    electrical contractor, whereas the purchase order did not; (ii) three
    witnesses, including a CEL employee, Thierry Segers, testified the scope of
    work was that set out in Delcos SOW; (iii) it was inconceivable that Mr. Fornasier
    would not have documented any discussed changes to the scope of work before the
    close of tenders; and (iv) CEL performed work that should have been done by
    Delco according to its own purchase order, indicating the parties did not
    consider the work described in the purchase order accurately reflected their
    agreement.

[41]

The appellant submits the trial judge misapprehended the evidence of Thierry
    Segers concerning his discussions with Delco prior to the close of tenders. I
    do not agree. The trial judges reasons accurately summarize Mr. Segers
    evidence on cross-examination that Delcos reduced price quotations were based
    on Delcos SOW that had been emailed to CEL: para. 146. He then accurately
    summarizes Mr. Segers evidence in chief about his understanding of the
    parties respective work responsibilities: para. 164. The trial judge held the
    best evidence about the terms of the contract was found in Delcos SOW, which was
    supported by the evidence of Delcos witnesses and Mr. Segers. That conclusion
    was open to the trial judge to make in light of Mr. Segers evidence.

[42]

The trial judge considered the relevant evidence, made findings of
    credibility, and explained why he preferred Delcos evidence over that of CEL.
    The appellant has not demonstrated that the trial judge made any palpable or
    overriding error in concluding the terms of the scope of work agreed to by the
    parties did not require Delco to perform the termination work. I see no basis
    upon which to interfere with that finding or the trial judges further
    conclusion that CEL breached the agreement by refusing to undertake the
    termination work.

C.

Construction Lien Act
breach of trust

[43]

Under s. 8(1) of the
CLA,
all amounts received by a contractor
    on account of the contract price of an improvement constitute a trust fund for
    the benefit of sub-contractors and other persons who have supplied services or
    materials to the improvement who are owed amounts by the contractor. Section
    8(2) prohibits a trustee contractor from appropriating or converting any part
    of the fund to the contractors own use, or to any use inconsistent with the
    trust, until all sub-contractors are paid all amounts owed to them by the
    contractor related to the improvement. Any officer, director or person who has
    effective control of a corporation is liable, under s. 13(1), for the
    corporations breach of trust if the person
assents to, or
    acquiesces in, conduct that he or she knows or reasonably ought to know amounts
    to breach of trust.

[44]

The trial judge found CEL failed to protect or pay to Delco trust funds
    relating to the Collins Bay Project. As well, he found that Mr. Fornasier,
    CELs principal, knew or reasonably ought to have known that CELs withholding of
    funds from Delco amounted to a breach of trust by CEL.

[45]

CEL submits the trial judge erred in making those findings because Delco
    did not call evidence about whether the general contractor, Bondfield, had paid
    funds to CEL that CEL then failed to pay to Delco.

[46]

A plaintiff alleging a breach of the s. 8 trust bears the initial onus of
    proving the existence of the trust by showing the contractor received monies on
    account of its contract for the project and the plaintiff supplied services or
    materials to the improvement. The onus then shifts to the contractor to show
    its payment of trust funds complied with the
CLA
:
Emco Corp. v.
    Ontario Trenchless Construction Ltd.
(2007), 65 C.L.R. (3d) 33 (Ont.
    S.C.), at para. 9. The party seeking to attach liability to the individual
    director or officer must demonstrate the elements required by s. 13(1):
Belmont
    Concrete Finishing Co. v. Marshall
, 2012 ONCA 585, 15 C.L.R. (4th) 1, at
    para. 10.

[47]

The evidence before the trial judge on this issue was brief: Mr. Fornasier
    admitted the general contractor, Bondfield, paid CEL for the work specified in their
    contract; CEL was not able to obtain from Bondfield any additional funds for
    the termination work that Delco claimed was an extra; and CEL paid Delco all
    the money it received from Bondfield in connection with the Delco SOW. In sum,
    the evidence showed CEL paid to Delco all funds it received from the general
    contractor for the work covered by the sub-contract between CEL and Delco.

[48]

The trial judges reasons do not explain the basis for his findings of a
    breach of trust under s. 8(2) of the
CLA
or Mr. Fornasiers personal
    liability under s. 13(1). In my view, although the funds received by CEL from
    Bondfield were impressed with a trust pursuant to s. 8(1) of the
CLA
,
    the evidence did not amount to Delco demonstrating, on a balance of
    probabilities, that Mr. Fornasier had assented to, or acquiesced in, conduct
    that he knew, or reasonably ought to have known, amounted to a breach of trust
    by CEL.

[49]

Consequently, I would allow Mr. Fornasiers appeal in respect of his
    personal liability under s. 13 of the
CLA
. It follows that I would
    dismiss Delcos cross-appeal from the refusal of the trial judge to grant a
    declaration that the judgment against Mr. Fornasier survives a bankruptcy pursuant
    to s. 178(d) of the
Bankruptcy and Insolvency Act
.

V.

DISPOSITION

[50]

For the reasons set out above, I would dismiss the appeals of CEL. I
    would allow the appeal of Carlo Fornasier and would set aside the judgment against
    him in the Collins Bay Project action.  I would dismiss Delcos cross-appeal in
    the Collins Bay Project action.

[51]

At the hearing, counsel agreed the successful party on the appeals was
    entitled to costs of $21,000 for the Brampton Project appeal and $12,500 for
    the Collins Bay Project appeal, both inclusive of HST and disbursements.

[52]

As Delco was successful on the Brampton Project appeal, I would award it
    costs of $21,000.

[53]

On the Collins Bay Project appeal, Delco successfully resisted CELs
    appeal, but Mr. Fornasier succeeded on his appeal. Counsel advised they had not
    discussed the quantum of costs in the event only part of an appeal was allowed.
    In his notice of appeal, Mr. Fornasier did not seek costs. In those
    circumstances, I would award Delco costs of the appeal, but fixed at a reduced
    amount of $10,000, payable by CEL.

Released: KF (July 27, 2016)

David Brown J.A.

I agree K. Feldman J.A.

I agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dioguardi Tax Law v. The Law Society of Upper
    Canada, 2016 ONCA 531

DATE: 20160705

DOCKET: C60739

MacPherson, Simmons and Lauwers JJ.A.

BETWEEN

Dioguardi Tax Law, Philippe Joseph Mario
    Dioguardi and Paul Dioguardi

Applicants/Appellants on Appeal

and

The Law Society of Upper Canada and

The
    Attorney General of Ontario

Respondent/Respondents on Appeal

APPLICATION UNDER Rule
    14.05(3)(a), (b), (d), (g), and (h) of the
Rules of Civil Procedure

Melvyn L. Solman and Matthew Valitutti, for the
    applicants

Glen M. Stuart, for the respondent, The Law Society of
    Upper Canada

Sean Hanley and Hayley Pitcher, for the respondent,
    Attorney General for Ontario

Heard: June 29, 2016

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated June 9, 2015.

ENDORSEMENT

[1]

The appellant lawyers and law firm appeal the judgment of Belobaba J. of
    the Superior Court of Justice dated June 9, 2015 dismissing the appellants
    application for (1) an order protecting the confidentiality of solicitor-client
    privileged information of its clients who have lodged complaints against them;
    (2) an order declaring that the legislative scheme in the
Law Society Act
,
    R.S.O., 1990, c.L.8, related to the Law Society of Upper Canadas investigation
    powers violated the
Charter
ss. 7 and 8 rights of these
    clients/complainants; and (3) an order granting the appellants public interest
    standing to make the
Charter
arguments on behalf of all
    clients/complainants in Ontario, if necessary.

[2]

The application judge determined that the application was premature:

[1]      Absent exceptional circumstances, courts should not
    interfere with ongoing administrative processes until after they are completed
    or until the available effective remedies are exhausted.

...

[14]    In short, there is every good reason to allow the administrative
    process in this case to run its course.  The Law Society Tribunal should be
    allowed to decide at first instance whether the constitutional arguments
    advanced herein are well-founded and, in particular whether there is any room
    in the legislative design and policy of the Act for the specific client-focused
    protections being sought by the applicants. The Law Society Tribunal has the
    expertise and the experience to consider the applicants submissions and
    proposed reforms and make the required determinations at first instance.  And
    the court (should the matter get to court) would benefit greatly from this
    expert tribunals reasons and decision.

[3]

The appellants raise the same issues on this appeal that they advanced
    on the application.  At the appeal hearing, we called on the parties to address
    the issue of prematurity.

[4]

Our conclusion on this issue is simple: we agree with the application
    judges conclusion and with his reasons in support of the conclusion.

[5]

Since the application judges decision was released, the Supreme Court
    of Canada rendered decisions in
Canada (Attorney General) v. Chambre des
    notaires du Québec
, 2016 SCC 20, and
Canada (National Revenue) v.
    Thompson
, 2016 SCC 21.

[6]

The appellants were granted leave to file a supplementary factum after
    these decisions were released.  In their factum, the appellants assert that in
Thompson
the Supreme Court has articulated a clear directive to the courts to
    facilitate (para. 39) the requirement to ensure that the client is given the
    opportunity to protect his or her own solicitor-client privilege and that,
    therefore, an application direct to the superior court is the proper route for
    raising this issue.

[7]

We disagree. There is nothing in
Thompson
or
Chambre des
    Notaires
to suggest that the superior court (and this court) should
    determine the merits of their
Charter
challenge and obtain a remedy
    before exhausting their administrative remedies. The application judge was
    correct to follow the decisions in
Volochay v. College of Massage
    Therapists of Ontario
, (2012) 111 O.R. (3d) 561 (C.A.), at paras. 68-71,
    and
C.B. Powell Ltd. v. Canada
, [2010] F.C.J. No. 274 (C.A.), at para.
    32, on this issue.

[8]

The appellants also seek leave to appeal the application judges costs
    awards of $20,000 to the Law Society of Upper Canada and $30,000 to the
    Attorney General of Ontario.

[9]

We see no reason to interfere with these awards, especially against the
    backdrop of the appellants bill of costs of $100,000 for the application.

[10]

The appeal is dismissed.  The respondents Law Society of Upper Canada
    and Attorney General of Ontario are entitled to their costs of the appeal fixed
    at $12,500 and $7,500 respectively inclusive of disbursements and HST.

J.C. MacPherson J.A.

Janet
    Simmons J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Easson v. Blase, 2016 ONCA 604

DATE: 20160729

DOCKET: C61154

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

BETWEEN

Larissa Louise Easson

Applicant (Respondent in Appeal)

and

Friedrich Rudolf Blase

Respondent (Appellant in Appeal)

Stephen Grant and Jenna Preston, for the appellant

Larissa Easson, appearing in person

Heard:  July 21, 2016

On appeal from the order of Justice McWatt of the Superior
    Court of Justice, dated September 18, 2015.

ENDORSEMENT

Overview

[1]

This appeal arises out of a high-conflict dispute between parents
    regarding the residential schedule and parenting of their two children, now 12
    and 7 years old.

[2]

The parties separated on May 15, 2009. On May 14, 2012, on the eve of
    trial, the parents agreed on a comprehensive, final order (the Order)
    regarding the residential schedule and parenting of their children. Less than
    two years later, the father sought to vary the Order, among other things to
    provide that the children would reside with each parent on an alternate weeks
    basis and to remove the mothers decision-making authority.

[3]

Pursuant to s. 17(5) of the
Divorce Act
, R.S.C. 1985, c. 3 (2
nd
Supp.), the court cannot vary a custody order on the application of the parties
    in the absence of a change in the condition, means, needs or other
    circumstances of the child since the making of the order. There must be a
    material change in the circumstances of the child since the last custody order
    was made. A material change is one that altered the childs needs or the
    ability of the parents to meet those needs in a fundamental way: see
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed
    circumstances, the courts inquiry can proceed no further: see
Litman v.
    Sherman
, 2008 ONCA 485, 52 R.F.L. (6th) 239.

[4]

The trial judge heard the fathers motion over 12 days in 2015. She concluded
    that there had not been a material change in circumstances since the making of
    the Order and that she was therefore without jurisdiction to vary it. She found
    that the father holds unbridled hostility towards the mother and that the
    children have flourished in the mothers stable and continuous care.  She
    wrote, at para. 89:

I cannot and will not imagine what material change would
    justify changing the [Order]. The best interests of the children are already
    being served. The parallel parenting regime suggested by the father would serve
    only to undermine the childrens stability in the context of their parents
    unstable relationship.

[5]

The trial judge awarded costs in favour of the mother.

[6]

The father appeals the trial judges order dismissing his motion to vary
    the Order. He argues that the trial judge erred in finding that there had not
    been a material change in circumstances and that a week-about time sharing
    arrangement is not in the childrens best interests. He does not appeal the
    trial judges conclusion that the change regarding decision making sought by
    the father was not in the childrens best interests.

[7]

The mother seeks leave to adduce fresh evidence that the father has
    willfully not complied with the terms of the Order since the trial judge dismissed
    his motion, and argues that this court should dismiss his appeal on the basis
    of that non-compliance. In response, the father has filed an affidavit denying
    that he has not complied with the terms of the Order.

[8]

For the reasons that follow, we deny leave to admit the fresh evidence
    and dismiss the fathers appeal of the trial judges dismissal of his motion to
    vary the Order.

[9]

The trial judge awarded costs in favour of the mother. The father and
    mother had also sought leave to appeal and cross-appeal the trial judges costs
    order. However, at the hearing, the father and mother abandoned their appeal
    and cross-appeal of the costs order.

Fresh Evidence

[10]

While the mothers proposed fresh evidence is seemingly credible, it is
    untested and the father denies non-compliance. His affidavit consists of a
    short, blanket denial of his non-compliance with the Order, but he only
    received the mothers materials a few days before the hearing of the appeal, on
    return from a vacation with the children. It is not the role of this court to
    make credibility findings.  In the circumstances, the mothers proposed fresh
    evidence, disputed as it is by the father, could not ground the dismissal of
    his appeal. Therefore, we decline to admit it and proceed to deal with the
    fathers appeal on the merits.

No Material Change in Circumstances

[11]

The father advances two arguments. First, he renews the argument
    rejected by the trial judge that the mother implicitly acknowledged that there
    had been a material change in circumstances when, in the course of the trial,
    she agreed to vary the Order by extending his alternating week access by one
    day. Second, he argues that the trial judge failed to consider the changed
    circumstances of his employment. He submits that as a result of a change in his
    workplace arrangements since the Order was made, he travels less and is now
    available to assume a greater parenting role.

[12]

We reject these arguments.

[13]

The fathers first argument is rooted in what the trial judge describes
    at para. 8 of her reasons:

[The mother] asked for a dismissal of the motion until I
    inquired, partly into the evidence of the father, whether there was any way the
    parties might agree on a variation of the Order. She changed her position to
    give the father more time than the present Thursday after school to Sundays at
    6:00 p.m. every other weekend. She proposed:

An Order that the childrens residential arrangements shall
    be altered such that their alternating week access with father commences
    Wednesday a.m. and ends on Monday a.m. when [the father] shall take the
    children to school

[14]

The father submits that, once a parent makes a concession, the other
    parent may be relieved of demonstrating a material change in circumstances.
    However, he concedes that this would not be the result of just any concession.
    According to him, the more that is conceded, the more likely that the
    concession will constitute an acknowledgement of a material change. And, he
    says, the one-day increase in his access during the school year was a
    sufficiently significant concession on the part of the mother to constitute an
    acknowledgment that there had been a material change in circumstances.  As a
    result of that one-day increase, the children are in the residential care of
    the father five days out of fourteen during the school year and approximately
    one-half of the time during holidays.

[15]

The mother made a concession, essentially consenting to part of what the
    father sought. A final order can be varied on the consent of the parties, in
    the absence of a material change in circumstances.

[16]

Furthermore, in this case the Order contemplated that the parties would
    mediate extensions of access time for the father, short of a new parenting
    regime. In the past, the parties have agreed through mediation to extend the
    fathers access time. The change agreed to by the mother during the course of
    the trial was a change of the type contemplated by the Order. We do not agree
    that the mothers concession was an acknowledgment of a material change in
    circumstances.

[17]

Moreover, the fathers broad position that a concession of this kind is
    an acknowledgment of a material change in circumstances risks creating a
    disincentive to parents to agree to make concessions and therefore risks
    increasing litigation.

[18]

As to the fathers second argument, the trial judge considered the
    fathers work arrangements. She determined that there was no evidence that the
    fathers ability to meet the needs of the children had materially changed since
    the date of the Order as a result of his changing his employment. She found
    that the father controlled his own travel schedule at the time of the Order and
    that the two jobs, before and now, are very similar. That finding was clearly
    open to her on the record and there is no basis to interfere with it.

Best Interests of the Children

[19]

Our conclusion that there is no basis to interfere with the trial
    judges finding that there was no material change in circumstances since the
    Order was made is dispositive of this appeal. It is unnecessary for us to address
    the fathers argument that the trial judge erred in finding that the existing
    parenting arrangement serves the best interests of the children.

Disposition

[20]

We deny leave to admit the fresh evidence and dismiss the appeal.  We
    urge the parties to resolve the issue of costs of the appeal.  If they are
    unable to do so, they may provide brief submissions to the court within 30
    days.

Alexandra
    Hoy A.C.J.O.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ferencz v. Vissers, 2016 ONCA 552

DATE: 20160711

DOCKET: C61861

Rouleau, Hourigan and Pardu JJ.A.

IN THE MATTER OF an application under subsection 32(1) of
    the
Health Care Consent Act, 1996
, S.O. 1996 c. 2, Schedule A

BETWEEN

Dr. Joseph Ferencz

Appellant

and

Ian Vissers

Respondent

Janice Blackburn, for the appellant

Russell W. Browne, for the respondent

Heard: July 4, 2016

On appeal from the order of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated February 9, 2016, allowing an appeal from
    the decision of the Consent and Capacity Board, dated March 20, 2015.

ENDORSEMENT

[1]

The appellant, Dr. Joseph Ferencz, appeals from
    an order setting aside a decision of the Consent and Capacity Board,
    determining that the respondent, Ian Vissers, was incapable with respect to medical
    treatment, within the meaning of s. 4(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A
.

A.

Facts

[2]

The respondents attending physician, Dr. Usha
    Parthasarathi, determined that the respondent was incapable of consenting to, or
    refusing, specified medications and blood testing, and served him with a Form
    33 under the
Mental Health Act
, R.S.O. 1990,
    c. M.7. The respondent applied to the Consent and Capacity Board to review the
    finding of incapacity.

[3]

Under s. 75(2) of the
Health Care Consent Act, 1996
,
a
    hearing must be convened within seven days after the Board receives a patients
    form requesting that the Board review a finding of incapacity.

[4]

At the outset of the hearing before the Board, the
    appellant advised the Board that Dr. Parthasarathi was on vacation, and that he
    was covering for her on the psychiatric unit. The appellant had been the attending
    physician for the respondent years earlier. Neither the respondent nor his
    counsel objected to the absence of Dr. Parthasarathi. She had made detailed
    clinical notes, which the appellant submitted at the hearing. He testified that
    he agreed with her opinion that the respondent was incapable of consenting to
    treatment.

[5]

The three-person panel of the Board unanimously
    confirmed the finding of the respondents treatment incapacity.

[6]

The respondent appealed to the Superior Court of
    Justice and raised the issue of procedural fairness for the first time on
    appeal. The appeal judge ordered a new hearing on the basis that the Board should
    have had the respondents current attending physician before it to give testimony.

[7]

The appellant now appeals that order.

B.

Analysis

(1)

Did the appeal judge err in holding that
    fairness required that the respondents attending physician give oral evidence
    at the hearing?

[8]

The appeal judge found that fairness required
    that the attending physician give evidence before the Board:

While I acknowledge that Mr. Vissers counsel
    made neither complaint nor objection to Dr. Ferenczs role (when asked if there
    were any preliminary issues), an objection is now being raised on Mr. Vissers
    behalf. This entire process is about him. The decision is one that is of
    fundamental importance to him. He should thus have the opportunity to hear what
    the doctor who actually found him incapable currently would say, and be in a
    position to ask her questions through counsel.

I find that the preliminary concern about the
    absence of Mr. Vissers current treating physician causes me to find that the
    matter should be sent back to the Board for a hearing
de novo
at a date and time when Dr. Parthasarathi is available to give
    testimony.

[9]

In our view, the appeal judge erred in setting
    aside the decision of the Board on a basis raised for the first time on appeal.
    See
M.M. v. De Souza
,
    2016 ONCA 155, at para. 25. The hearing might well have unfolded in a different
    fashion or been adjourned for a short time had the objection to the evidence of
    Dr. Ferencz been raised at that time, but it was not.

[10]

Furthermore, before the Board, the burden of proof
    rests with the health care practitioner to prove incapacity on a balance of
    probabilities. If the Board is at any time unsatisfied with the evidence of a
    health care practitioner because he or she is not knowledgeable enough about
    the patient, it may conclude that the statutory presumption of capacity under
    the
Health Care Consent Act, 1996
has not been displaced. That did not occur in this case. The Board
    was in the best position to weigh the evidence of Dr. Ferencz, knowing
    that he was not the physician who signed the Form 33.

(2)

Was the Boards decision reasonable?

[11]

Section 4(1) of the
Health Care Consent Act, 1996
describes
    the elements of capacity as follows:

A person is capable with respect to a treatment,
    admission to a care facility or a personal assistance service if the person is
    able to understand the information that is relevant to making a decision about
    the treatment, admission or personal assistance service, as the case may be,
    and able to appreciate the reasonably foreseeable consequences of a decision or
    lack of decision.

[12]

The respondent was detained as a result of a
    verdict that he was not criminally responsible on account of mental disorder on
    a charge of uttering threats to cause death. He has a long history of mental
    illness and has been diagnosed with schizophrenia. The Board reviewed his
    medical history and condition and concluded, citing the correct test from
Starson v. Swayze
, 2003 SCC 32, [2003]
    1 S.C.R. 722, that the respondent was unable to appreciate the reasonably
    foreseeable consequences of a decision or lack of a decision regarding the
    treatment proposed.

[13]

As the Board noted, the court held in
Starson
, at para. 79
:

[A] patient is not required to describe his mental condition as
    an illness, or to otherwise characterize the condition in negative terms. Nor
    is a patient required to agree with the attending physicians opinion regarding
    the cause of that condition. Nonetheless, if the patients condition results in
    him being unable to recognize that he is affected by its manifestations, he
    will be unable to apply the relevant information to his circumstances, and
    unable to appreciate the consequences of his decision.

[14]

In the present case, there was an ample basis in the record before the
    Board to enable it to conclude that the respondent was incapable with respect
    to the proposed treatment. The Boards decision was reasonable.

[15]

Accordingly, the decision of the appeal judge is set aside, and in its
    place there will be an order confirming the decision of the Board of March 20,
    2015, determining that the respondent was incapable with respect to the
    proposed treatment as of the date of the hearing.

[16]

There will be no order as to costs.

Paul Rouleau J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Foley v. St. Marys (Town), 2016 ONCA 528

DATE: 20160704

DOCKET: C61268

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Lynn Foley and Colleen Foley

Applicants

(Appellants)

and

The Corporation of the Town of St. Marys

Respondent

(Respondent)

Martha Cook, for the appellants

Timothy J. Hill, Eileen P. Costello and Meghan A. Cowan,
    for the respondent

Heard: June 13, 2016

On appeal from the judgment of Justice D.R. Aston of the
    Superior Court of Justice, dated October 9, 2015.

ENDORSEMENT

Background

[1]

This appeal concerns a municipal heritage designation of a landmark
    commercial property located in the downtown core of St. Marys, Ontario.

[2]

In 1884, a two-storey brick and stone commercial building with a clock
    tower was constructed at 135 Queen Street East in St. Marys for a local
    jeweller. For over a century, the building was home to the family jewellery
    shop. In keeping with its purpose, the shops interior contained walnut
    showcases, counters, mirrors and a tall wall clock. These interior features are
    stated to be original and some are referenced in an 1884 St. Marys newspaper
    article.

[3]

In 2004, the appellants, Lynn Foley and Colleen Foley, purchased the
    property from the family jewellers and leased it until 2010.

[4]

In the fall of 2007, the respondent, the Corporation of the Town of St.
    Marys (the Town), wrote to the appellants to introduce the possibility of a heritage
    designation. The Town subsequently contacted them to ask whether they had an
    interest in having the property designated as a heritage building, as it was
    unique and historic. The Town representative spoke about the heritage
    designation possibility with Mr. Foley, who advised that he was not interested
    in participating in the process. The Town later advised that they planned to
    proceed without the appellants support.

[5]

By letter dated January 4, 2008, the Town attempted to provide formal
    written notice to the appellants of its intention to pass a bylaw designating
    the building as a heritage building. Although the street address was correct,
    the last number in the appellants postal code was not (the correct number was
    9 instead of 7). Despite the fact that the notice was not returned to the Town,
    the appellants say that they never received it.

[6]

The appellants did admit to seeing the Towns notice of intent to designate
    that was published in the newspaper in accordance with the provisions of the
Ontario
    Heritage Act
, R.S.O. 1990, c. O. 18 (the
OHA
). The Town did not
    receive any objections to the designation.

[7]

On February 27, 2008, the Town passed bylaw No. 14-2008, which
    designated the appellants property a heritage building. The designation
    included the original exterior and interior heritage attributes. The latter
    consisted of the walnut showcases, counters, mirrors and the wall clock. The Town
    wrote to the appellants on March 5, 2008 advising them of the designation. The
    designation was also reported in the local newspaper, on March 8, 2008.

[8]

In August 2009, the appellants successfully applied for, and received,
    municipal heritage funding from the Town based on the heritage designation. In
    their application, the appellants noted that the property was the one building
    in St. Marys that had remained virtually unchanged, both inside and out since
    1884.

[9]

The appellants again successfully applied for additional heritage
    funding from the Town in October 2009. In total, the appellants received
    $13,000 from the Town, a significant sum for St. Marys in this regard.

[10]

On December 2, 2009, the Town registered the heritage designation bylaw
    on title to the appellants property in accordance with the provisions of the
OHA
.

[11]

In early 2010, Mr. Foley attended a Town council meeting where he was
    presented with a designation plaque, which noted the buildings unique original
    exterior and interior features.

[12]

While the buildings features were in keeping with its 19
th
and 20
th
century purpose as a jewellery store, they proved not to be
    so popular in June 2010, when the appellants listed the property for sale. The
    appellants received little interest from their listing and placed the blame on the
    heritage designation of the interior features.

[13]

Correspondence ensued between the appellants and the Town. On September
    6, 2013, the appellants solicitor wrote to the Town complaining that his
    clients had not received the Towns correspondence enclosing the original
    notice of intention to designate and that they were unaware that the Town had
    intended to designate items of personal property.

Notice of Application

[14]

Ultimately, the appellants commenced court proceedings and issued a
    notice of application on March 30, 2015. The notice of application was styled
    as an: APPLICATION UNDER section 273 (1) of the
Municipal Act, 2001
,
    S.O. 2001, c. 25.

[15]

The appellants applied for an order quashing the bylaw for illegality
    and, in the alternative, severing those parts of the bylaw that purported to
    designate the interior features, fixtures and chattels of the building. They
    also sought interlocutory injunctive relief and damages for unlawful
    interference.

[16]

The notice of application stated that:

[P]ursuant to s. 273 (1) of the
Municipal Act, 2001
,
    S.O. 2001, c. 25 as amended, this Honourable Court may quash a by-law of a
    municipality in whole or in part for illegality.

[17]

In addition to s. 273 of the
Municipal Act, 2001
, the
    appellants also relied on s. 101 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43;
rr. 14, 38 and 39
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194; and ss. 26,
    29, 32 and 33 of the
OHA
.

Application Judges Decision

[18]

The application judge dismissed the application. Given the error in the
    postal code, he concluded that the Town could not meet its onus of proving that
    notice was properly given under s. 67 of the
OHA
. However, he found
    that the appellants had actual notice of the notice of designation and failure
    to strictly comply with s. 67 of the
OHA
rendered the designating
    bylaw voidable, and not void
ab initio
as argued by the appellants.

[19]

He then held that the one year limitation period in s. 273(5) of the
Municipal
    Act, 2001
was dispositive of the application to quash. He therefore
    dismissed the application, including the alternative claim to quash the bylaw
    in part by severing all reference to the interior features from the
    designation.

[20]

Having dismissed the application, the application judge stated that
    during the course of submissions, counsel for both sides requested that he
    address the scope of the designation. He acceded to the request. He then concluded
    that the Towns authority to designate was limited to real property including fixtures,
    but  that the walnut showcase, counters, mirrors, and the wall clock, were fixtures.

[21]

The appellants argue that the application judge erred in finding that the
    heritage designation was not void
ab initio
given the lack of notice
    and for concluding that the interior features were fixtures, rather than
    chattels, and that they were therefore real property.

Analysis

[22]

The relevant provisions of the
Municipal Act, 2001
are ss.
    273(1) and (5). They state:

273(1)   Upon the application of any person, the Superior Court
    of Justice may quash a by-law of a municipality in whole or in part for illegality.

(5)          An application to quash
    a by-law in whole or in part, subject to section 415, shall be made within one
    year after the passing of the by-law.

[23]

The application judges conclusion that the one year limitation period
    was dispositive of the appellants application was fully supported by the
    record. The bylaw was passed on February 27, 2008 and the notice of application
    was issued on March 30, 2015.

[24]

The record clearly established that the appellants had knowledge of the
    heritage designation. As noted by the application judge, the appellants concede
    that they were aware of the Towns intention to designate the property as early
    as 2007. They were aware of the notice of intention to pass the bylaw that was
    published in the local newspaper in January 2008. In 2009, they twice applied
    for, and twice received, municipal heritage funding based on the designation
    and in February 2010, at a public meeting, they received a designation plaque
    which referenced both the exterior and interior features of the building. The
    bylaw was also registered on title in 2009. The application judge found that
    they were aware of the designating bylaw (and its specifics) no later than
    August 2009, almost six years before the bringing of the application.

[25]

The application judges conclusion was also fully supported by the law. In
    reaching his determination, he relied on
Re Clements & Toronto
,
[1960] O.R. 18 (C.A.). That decision
    dealt with a largely similar predecessor provision of the
Municipal Act,
    2001
and an application to quash.  A lower court had quashed a bylaw on
    the basis that it was void
ab initio
. Relying on the limitation period
    in the
Municipal Act
, this court overturned the decision due to the
    failure of the applicant to bring the notice of application within one year
    after the passing of the bylaw. It did so notwithstanding the finding that the
    bylaw was void
ab initio
.

[26]

The cases relied upon by the appellants differ from the case under
    appeal. First,
Las Vegas Strip Ltd. v. Toronto (City)
(1996), 30 O.R. (3d) 286 (Ct. J. (Gen. Div.)), affd
    on other grounds (1997) 32 O.R. (3d) 651
, did not involve a request
    for the statutory remedy of quashing a bylaw under the
Municipal Act,
but
    a request for declaratory relief.  As Sharpe J. (as he then was) noted, at
    para. 12, it is clear on the authorities that s. 138 [s. 273(5)s predecessor]
    has no application to a proceeding such as the present for declaratory relief.
    Only cases that sought the statutory remedy of quashing the bylaw pursuant to the
Municipal Act
were caught by the statutory one year limitation.

[27]

Secondly,
Gray v. Oshawa (City)
, [1971] 3 O.R. 112 (H. Ct. J.),
    revd on other grounds [1972] 2 O.R. 856, an expropriation case, similarly
    involved a request for declaratory relief. The trial judge noted that the
    action did not seek to quash the bylaw and therefore the statutory one year
    limitation period was inapplicable.

[28]

To summarize, a party may commence proceedings to quash a bylaw under s.
    273 of the
Municipal Act, 2001
by way of application. Such a
    proceeding is captured by the statutory one year limitation period. Alternatively,
    a party may commence an application or an action for declaratory relief. Such a
    proceeding is distinct from the statutory remedy of quashing a bylaw under s.
    273, and as such, is not captured by the one year limitation period.

[29]

Here, there is no question that this proceeding was framed as an
    application to quash under s. 273 of the
Municipal Act, 2001
. Both the
    title of the proceedings and the enumerated grounds support this conclusion. Accordingly,
    the one year limitation provision applies.

[30]

Moreover, this is not simply a technical analysis. On an application, a
    party need only respond to the case asserted against it. Had declaratory relief
    been sought, a different strategy may have ensued, including the development of
    a more detailed record and a request for a trial of the issue.

[31]

The limitation period contained in s. 273(5) of the
Municipal Act,
    2001
also disposes of the request to quash the bylaw in part by severing
    those portions of the bylaw that purport to designate the interior features.

[32]

The application judge was correct in dismissing the application in full
    on the basis of the limitation period. There is therefore no need to address
    his findings on the scope of the designation.

Disposition

[33]

For these reasons, the appeal is dismissed. As agreed, the appellants
    shall pay the respondent $11,000 in costs, inclusive of disbursements and
    applicable tax.

S.E. Pepall J.A.

M. Tulloch J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Galota v. Festival Hall Developments Limited, 2016
    ONCA 585

DATE: 20160721

DOCKET: C61253

Laskin, Gillese and Roberts JJ.A.

BETWEEN

Maria Galota

Plaintiff (Respondent)

and

Festival Hall Developments
    Limited
, Walter Rosati and Louis Yam Man Chu

Defendants (
Appellant
)

Jay Skukowski and Alex Reyes, for the appellant

William G. Scott and Barbara Opalinski, for the
    respondent

Heard: May 17, 2016

On appeal from the judgment of Justice David L. Corbett
    of the Superior Court of Justice, dated October 6, 2015, with reasons reported
    at 2015 ONSC 6177.

Laskin
    J.A.:

A.

Overview

[1]

On this appeal we must answer a single question: did the motion judge
    err by finding that the claim of the respondent Maria Galota against the
    appellant Festival Hall was not discoverable until three and a half years after
    the accident in which she was injured?

[2]

On May 13, 2006, Ms. Galota broke her right arm when she fell off an elevated
    dance floor at Republik Nightclub. The nightclub was located in a building in
    downtown Toronto. Republik was a tenant in the building; Festival Hall was the
    landlord and owner.

[3]

Ms. Galota retained a lawyer immediately after her accident and, in December
    2007, sued Republik for damages for negligence. She claimed that she was
    injured by the unsafe condition of the dance floor. She alleged that the raised
    dance floor was not equipped with appropriate barriers or handrails, was not
    properly lit, and did not have appropriate traction. She did not initially sue
    Festival Hall.

[4]

The claim against Republik was an insured claim and Republiks insurer,
    Leeds Insurance Company Ltd., appointed an adjuster. The adjuster investigated
    the claim and was in contact with Ms. Galotas lawyer. Republik defended the
    action and in May 2008, two years after the accident, delivered a statement of defence.
    Neither the adjuster nor Republik in its defence alleged that Festival Hall or
    any other party was responsible for Ms. Galotas injuries.

[5]

On November 11, 2009, a representative of Republik was examined for
    discovery. Ms. Galotas lawyer then learned for the first time that before
    opening, Republik had extensively renovated the nightclub, including the dance
    floor from which Ms. Galota fell, and that Festival Hall may have had some
    involvement in the renovations.

[6]

Unfortunately for Ms. Galota, Republik Nightclub closed in March 2009.
    Then, in March 2011, Ms. Galotas lawyer learned that Republiks insurer Leeds
    became insolvent. On November 10, 2011, a day less than two years from the
    examination for discovery of Republik and five and a half years after her
    accident, Ms. Galota sued Festival Hall for negligence as an occupier of the
    nightclub.

[7]

Festival Hall moved for summary judgment to dismiss the action on the
    ground that it was started more than two years after Ms. Galotas claim was
    discoverable, and so was barred by s. 4 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B. The motion judge had to decide when Ms. Galota
    ought to have known Festival Hall had any potential liability for the unsafe
    condition of the dance floor. Ms. Galota contended the date was the day Republiks
    representative was examined for discovery. Therefore, the two year limitation
    period ran from that date and her claim was not out of time. Festival Hall
    contended that if Ms. Galotas claim was not discoverable on the day of the
    accident, it was certainly discoverable well before the day Republik was
    examined for discovery had Ms. Galota investigated Festival Halls potential
    liability with reasonable diligence. As she did not do so, her action was out
    of time.

[8]

The motion judge sided with Ms. Galota. He made the following important
    finding at para. 23 of his reasons:

I conclude that the plaintiff was not put on notice of, and did
    not show a want of diligence in investigating the potential involvement of, the
    landlord in the design and construction of the elevated dance floor.

[9]

On appeal, Festival Hall makes two submissions. Its main submission is
    that the motion judge erred by finding Ms. Galota did not show a want of
    diligence because she took no steps at all to investigate a claim against
    Festival Hall until at least three and a half years after her accident. Ms.
    Galotas position is that the motion judges finding is a finding of fact,
    reasonably supported by the evidence, and thus entitled to deference on appeal.

[10]

Festival Halls secondary submission is that the motion judge erred by
    using his expanded powers on a motion for summary judgment to call for expert
    evidence on the standard of care of a solicitor prosecuting an occupiers
    liability claim. Ms. Galotas position is that Festival Hall did not object to
    the motion judges order for expert evidence.

[11]

On Festival Halls main submission, I agree with Ms. Galotas position.
    On its secondary submission, the expert evidence called was not material. The
    motion judge did not rely on it, beyond considering the possible investigative
    steps recommended by Festival Halls expert. Nor did either party in this
    court.

[12]

The motion judge did not err by finding that Ms. Galotas claim against
    Festival Hall was not discoverable until November 11, 2009. I would dismiss the
    appeal.

B.

The Issues

(1)

Did the motion judge err by finding that Ms. Galota did not show a want
    of diligence?

(a)

The
    Limitations Act, 2002

[13]

In most Ontario cases, including this one, an action must be started
    within two years of the day on which the claim was discovered. If it is not,
    the claim is barred by the statute:
Limitations Act, 2002
, s. 4.

[14]

Sections 5(1) and (2) set out the statutory scheme for determining when
    a claim is discovered:

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have
    known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is proved.

[15]

Three points about these provisions are relevant to the submissions on
    appeal:

·

Section 5(1)(b) codifies the common law rule of discoverability.
    If s. 5(1)(b) applies, the two year limitation period will run from a date
    later than the date the plaintiff was injured.

·

Under s. 5(1)(b), a plaintiff first ought to have known of the
    claim when the plaintiff has enough evidence or information to support an
    allegation of negligence, including facts about an act or omission that may
    give rise to a cause of action against a possible tortfeasor:
Zapfe v.
    Barns
(2003)
, 66 O.R. (3d)
    397 (C.A.), at paras. 32-33;
Burtch v. Barnes Estate
(2006), 80 O.R.
    (3d) 365, at para. 24. The plaintiff cannot delay the start of the limitation
    period until he or she knows with certainty that a defendants act or omission
    caused the injury or damage:
Longo v. MacLaren Art Centre Inc.
, 2014
    ONCA 526, 323 O.A.C. 246, at para. 44.

·

The rebuttable presumption in s. 5(2) means that a plaintiff has
    the onus of showing that the rule of discoverability in s. 5(1)(b) applies:
Fennell
    v. Deol
, 2016 ONCA 249, at para. 26.

(b)

The motion judges
    reasons

[16]

The motion judge found that Ms. Galota knew the matters specified in
    s. 5(1)(a)(i),(ii) and (iv) on the date of the accident or shortly after
    it occurred. She knew then that she was injured, that the design and construction
    of the elevated dance floor may have caused or contributed to her injury, and
    that an action for damages was an appropriate way to remedy her injury.

[17]

Thus the motion judge found that Ms. Galotas claim against Festival
    Hall turned on s. 5(1)(a)(iii) and s. 5(1)(b): when Ms. Galota first ought to
    have known that an act or omission by Festival Hall caused her injury. He
    correctly framed the issue he had to decide at para. 16 of his reasons:

So the limitations issue turns on factor iii): when did the plaintiff
    know, or when should she have known, that the hazardous condition of the
    elevated dance floor was a result of an act or omission by Festival Hall?

[18]

The motion judge resolved this issue at para. 23 of his reasons. He held
    that Ms. Galota did not know about Festival Halls involvement with the design
    and construction of the dance floor until her lawyer examined a representative
    of Republik for discovery on November 11, 2009.

I accept that the plaintiff did not know the terms of the lease
    or of any involvement by the landlord with the design and construction of the
    elevated dance floor before the examination for discovery of Republik in 2009.

[19]

The motion judge then considered s. 5(1)(b). He found that Ms. Galota
    first ought to have known Festival Halls act or omission caused or contributed
    to her injury on the date of the examination for discovery. Her claim against
    Festival Hall was therefore discoverable on November 11, 2009. Thus, the motion
    judge found Ms. Galota had rebutted the presumption in s. 5(2) of the Act.

I conclude that the plaintiff was not put on notice of, and did
    not show a want of diligence in investigating the potential involvement of, the
    landlord in the design and construction of the elevated dance floor. Thus I
    find that the plaintiff has defeated the presumption established in s. 5(2) in
    respect to factor iii), and thus that the limitations period as against
    Festival Hall began to run upon discovery of the tenant in 2009. It follows
    that the claims against Festival Hall, commenced less than two years later in
    2011, are not out of time. The motion for judgment is dismissed and it is
    ordered, on a final basis, that the plaintiffs claims against the defendant
    Festival Hall are not precluded by the
Limitations Act
.

(c)

Analysis

[20]

Festival Hall accepts that the motion judge correctly stated the test
    for determining when Ms. Galotas claim against Festival Hall was discoverable
    under s. 5(1)(b). It challenges his application of the test. Its simple
    submission is that the motion judge erred by finding Ms. Galota showed no want
    of diligence because she did nothing to investigate a claim against Festival
    Hall for at least three and half years after she was injured.

[21]

Festival Hall points out that in several cases this court has held that
    a plaintiff relying on s. 5(1)(b) has a positive duty to exercise reasonable
    diligence in investigating a claim of negligence against a defendant. That duty
    cannot be met, Festival Hall contends, when a plaintiff takes no steps at all. Had
    Ms. Galota acted with reasonable diligence she would have discovered her claim
    against Festival Hall well before November 2009. See, for example:
Zapfe; Soper
    v. Southcott
, [1998] O.J. No. 2799 (C.A.); and
Pepper v. Zellers Inc.
    (c.o.b. Zellers Pharmacy)
, [2006] O.J. No. 5042 (C.A.).

[22]

The motion judge accepted that as Ms. Galota was relying on s. 5(1)(b),
    she was obliged to investigate on a reasonable basis a claim against Festival
    Hall. He said at para. 17 of his reasons:

I agree with the plaintiff that it would be inappropriate to
    name landlords as defendants in every case of an occupiers liability claim
    against a tenant. On the other hand, to satisfy the third branch of the test
    under s. 5(1)(a), for the purposes of s. 5(1)(b) of the
Limitations
    Act
, the plaintiff must investigate on a reasonable basis with a view to
    determining the proper defendants to the claim. In this case, this would mean
    identifying the condition of the elevated dance floor as a basis for alleged
    liability and the persons apparently responsible for it. This requires a
    plaintiff to make reasonable investigation of her claim. It does not, however,
    require a pre-discovery discovery of an adverse party.

[23]

But the important point, implicit in this paragraph and expressly made
    by my colleague van Rensburg J.A. in
Fennell,

is that a plaintiffs failure to take
    reasonable steps to investigate a claim is not a stand-alone or independent
    ground to find a claim out of time. Instead, the reasonable steps a plaintiff
    ought to take is a relevant consideration in deciding when a claim is discoverable
    under s. 5(1)(b). Justice van Rensburg made this point at paras. 18 and 24 of
    her reasons in
Fennell
:

[18]    While due diligence is a factor that informs the
    analysis of when a claim ought to have reasonably been discovered, lack of due
    diligence is not a separate and independent reason for dismissing a plaintiffs
    claim as statute-barred.

[24]    Due diligence is part of the evaluation of s. 5(1)(b).
    In deciding when a person in the plaintiffs circumstances and with his
    abilities ought reasonably to have discovered the elements of the claim, it is
    relevant to consider what reasonable steps the plaintiff ought to have taken.
    Again, whether a party acts with due diligence is a relevant consideration, but
    it is not a separate basis for determining whether a limitation period has
    expired.

[24]

In substance, the motion judge found that there were no steps Ms. Galota
    reasonably ought to have taken that would have enabled her to discover her
    claim against Festival Hall before her lawyer examined a representative of
    Republik in November 2009. Some may view the motion judges finding to be
    questionable. But all these cases are very fact-specific. And the motion
    judges finding is a finding of fact, which in my opinion is well supported by
    the record, and therefore to which we should defer:
Burtch
, at para.
    22;
Longo
, at para. 38.

[25]

Together the following four considerations support the motion judges
    finding:

·

Ms. Galota sued the party occupying the premises and her claim
    was an insured claim.

·

No one alleged any other party was potentially liable.

·

Festival Halls potential liability as owner and landlord was not
    obvious.

·

The steps suggested by Festival Halls expert would not have
    alerted Ms. Galota to a claim.

(1)

Ms. Galota sued the party occupying the premises and her claim was an
    insured claim

[26]

First, Ms. Galota sued the tenant, the party in physical possession of
    and carrying on business at the premises where she fell and was injured.
    Republik was unquestionably an occupier under the
Occupiers Liability
    Act
. Moreover, Ms. Galotas claim was an insured claim. Republiks insurer
    responded to the claim and appointed an adjuster to investigate it. Ms. Galota
    and her lawyer had every reason to believe the insurer would settle her claim
    or pay any judgment she obtained after a trial. In this case, the need to
    pursue another party would hardly have seemed reasonable. Neither Ms. Galota
    nor her lawyer could be expected to foresee the rare occurrence of an insurance
    company becoming insolvent.

(2)

No one alleged any other party was potentially liable

[27]

Second, the insurers adjuster never suggested that Festival Hall or any
    other party was potentially liable for Ms. Galotas injury. Similarly, in its
    statement of defence, Republik did not allege Festival Hall bore any
    responsibility and Republik did not take third party proceedings against
    Festival Hall or anyone else. Indeed, before the examinations for discovery
    neither the adjuster nor Republik ever suggested there had been extensive
    renovations of the nightclub or that Festival Hall was involved in those
    renovations. I do not suggest either the insurer or Republik had any obligation
    to notify Ms. Galota about the potential liability of Festival Hall, but their
    failure to do so is a practical consideration supporting the motion judges
    finding. As Lauwers J. (as he was then) said in
Madrid v. Ivanhoe
,
    2010 ONSC 2235, 101 O.R. (3d) 553, at para. 17:

If Ivanhoe's insurance adjuster had advised the plaintiff that
    liability was being denied because another party was liable, then the
    plaintiff's duty to make further inquiries would have been triggered. But, on
    the actual facts of this case, a naked denial of liability should not trigger a
    duty on the plaintiff to make further inquiries.

(3)

Festival Halls potential liability as owner and landlord was not
    obvious

[28]

Third, Festival Hall was not an occupier of the premises it leased to
    Republik simply because it was the landlord and owner:
Musselman v. 875667
    Ontario Inc. (c.o.b. Cities Bistro)
, 2010 ONSC 3177, 93 C.L.R. (3d) 58,
    affd 2012 ONCA 41, 8 C.L.R. (4th) 163. Thus, Ms. Galota cannot be faulted for
    not having joined Festival Hall in her initial claim. On the day of the
    accident, Ms. Galota could not have known that an act or omission of Festival
    Hall caused or contributed to her injuries.

[29]

In oral argument, Festival Hall conceded that in an occupiers liability
    claim, a plaintiff is not always obliged to sue the landlord from the outset. Festival
    Hall argues, however, that Ms. Galota should have taken steps to investigate a
    possible claim against Festival Hall. But what steps? Festival Hall suggests
    two in particular: do a search of title to find out the owner of the building
    and obtain a copy of the lease.

[30]

Ms. Galotas lawyer did not search the title until long after it issued
    a claim against Republik. Perhaps he should have done so earlier. But learning
    that Festival Hall owned the building would not have alerted him to a potential
    claim against Festival Hall. As I have just said, Festival Hall did not become
    an occupier simply because it was the landlord and owner.

[31]

The lease between Republik and Festival Hall is undoubtedly an important
    document for determining whether Festival Hall was potentially liable as an
    occupier for Ms. Galotas injuries. Under ss. 1(a) and (b) of the
Occupiers
    Liability Act
, an occupier is either:

(a) a person who is in physical possession of
    premises, or

(b) a person who has responsibility for and control
    over the condition of premises or the activities there carried on, or control
    over persons allowed to enter the premises,

despite the fact that there is more than one
    occupier of the same premises; (occupant)

[32]

Festival Hall was not in physical possession of the premises it leased
    to Republik. Whether it had responsibility for and control over the condition
    of the premises depends on the terms of the lease.

[33]

Or, Festival Hall may have owed a duty to Ms. Galota under s. 8(1) of
    the statute, which specifically addresses a landlords obligation:

8. (1) Where premises are occupied or used by virtue
    of a tenancy under which the landlord is responsible for the maintenance or
    repair of the premises, it is the duty of the landlord to show towards any
    person or the property brought on the premises by those persons, the same duty
    of care in respect of dangers arising from any failure on the landlords part
    in carrying out the landlords responsibility as is required by this Act to be
    shown by an occupier of the premises.

[34]

Again, whether Festival Hall was responsible for the maintenance and
    repair of the leased premises depends on the terms of the lease. The lease,
    however, was not a public document. And Ms. Galota had no automatic ability to
    require Festival Hall to produce a copy of the lease before suing Festival
    Hall.

[35]

Ms. Galota could have obtained a copy of the lease from Republik as part
    of documentary production. Presumably, she and her lawyer could have obtained
    the lease before the examination for discovery of Republiks representative.
    But in 2011, Republiks former lawyer said he would not be providing a copy of
    the lease or anything else from the file because Republik was no longer a
    client. Ms. Galotas lawyer followed up with Festival Hall about his
    request for the lease in October 2013. Festival Hall did not deliver a copy of
    the lease until March 2014.

[36]

But even had Ms. Galota obtained the lease earlier, she could not
    reasonably have known she had a claim against Festival Hall until she married
    the terms of the lease to the facts that Republik extensively renovated the
    nightclub and dance floor before opening, that the renovations may not have
    complied with the
Building Code
, and that Festival Hall may have had
    some involvement in the renovations. These three facts, according to the sworn
    testimony of Ms. Galotas lawyer, which the motion judge was entitled to
    accept, she only learned on the discovery of Republiks representative.

[37]

As it turned out, the lease is a net lease, which means that Republik
    had the primary obligation to repair and maintain the leased premises. Whether
    Festival Hall had any obligation triggering its potential liability to Ms.
    Galota can only be decided at the trial of this action.

(4)

The steps suggested by Festival Halls expert would not have alerted Ms.
    Galota to a claim

[38]

Fourth, although the discoverability standard under s. 5(1)(b) is an
    objective standard  when ought the plaintiff have known  and although
    Festival Halls expert said a reasonably competent lawyer would have undertaken
    investigations Ms. Galotas lawyer did not undertake, the motion judge found,
    and was entitled to find, that these investigations would not have alerted
    Ms. Galota to a possible claim against Festival Hall.

[39]

The motion judge used the expanded powers available to a motion judge
    hearing a motion for summary judgment and ordered each side to provide expert
    evidence on the standard of care of a reasonably competent solicitor in occupiers
    liability claims. The motion judges order is a separate ground of appeal,
    which I will deal with shortly. James Regan gave expert opinion evidence for
    Ms. Galota and Richard Shekter gave expert opinion evidence for Festival Hall.
    Both are well-regarded and experienced advocates, with expertise in occupiers
    liability claims.

[40]

The motion judge did not mention Mr. Regans opinion evidence. He did,
    however, address Mr. Shekters opinion. Mr. Shekter said that a competent
    solicitor would have done five things, none of which Ms. Galotas lawyer did:

·

either attend or arrange for someone to attend at the nightclub
    to examine the premises generally or the elevated dance floor in particular

·

arrange for measurements or photographs of the scene in general
    or the dance floor in particular

·

retain the services of an engineer, building inspector, or
    contractor to determine if there were any
Building
    Code
or by-law restrictions or infractions relevant to the incident

·

request a copy of the lease

·

request information concerning the person(s) responsible for
    constructing the elevated dance floor

[41]

I have already dealt with the fourth item on Mr. Shekters list,
    requesting a copy of the lease. On the fifth item, I agree with the motion
    judge that those inquiries could only have been made of potential adverse
    parties.

[42]

The motion judge agreed, however, that a wise solicitor would have
    undertaken the first three items on the list to preserve evidence relevant to
    the claim. But he found that those investigations would not have disclosed the
    claim against Festival Hall. He wrote, at para. 20:

Preserving evidence of the condition of the elevated dance
    floor would not, itself, lead to discovery of information about the involvement
    of Festival Hall.  Only by inquiries of the tenant, or Festival Hall itself,
    could this information have come to light.

I see no basis to interfere with this finding. The
    motion judge made no palpable and overriding error.

[43]

For the four considerations I have discussed, I would not give effect to
    Festival Halls main submission on appeal.

(2)

Did the motion
    judge err in ordering expert evidence on the standard of care of a reasonably
    competent solicitor in an occupiers liability case?

[44]

Festival Hall submits that the motion judge erred in making this order
    because expert evidence is not needed to decide discoverability under s.
    5(1)(b) of the
Limitations Act, 2002,
and because the relevant date is
    when the plaintiff, not her solicitor, first ought to have known of a claim.

[45]

I agree expert evidence is not needed to decide when a claim is
    discoverable under s. 5(1)(b). Still, I find Festival Halls submission to be
    odd. It did not object to the motion judges order, the motion judge did not
    rely on Mr. Regans opinion, and Festival Hall sought to buttress its
    position on appeal by relying on Mr. Shekters opinion.

[46]

Nothing turns on the expert evidence. The motion judge did not rely on
    it for his decision, and nor do I. I would not give effect to Festival Halls
    submission.

C.

Conclusion

[47]

The motion judge did not err by finding that Ms. Galotas claim against
    Festival Hall was not discoverable under s. 5(1)(b) of the
Limitations Act,
    2002
until November 11, 2009, and that she had rebutted the presumption in
    s. 5(2). I would dismiss Festival Halls appeal with costs in the agreed on
    amount of $10,000 inclusive of disbursements and applicable taxes.

Released: (E.E.G.) July 21, 2016

John Laskin J.A.

I agree E.E. Gillese
    J.A.

I agree L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gibson v. Gibson, 2016 ONCA 545

DATE: 20160706

DOCKET: C61405

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Melanie Elaine Gibson

Respondent

and

Peter David Gibson

Appellant

Richard Parker, for the appellant

Robyn Switzer, for the respondent

Heard: July 5, 2016

On appeal from the order of Justice Sherrill M. Rogers of
    the Superior Court of Justice, dated November 2, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the order striking his motion to vary. He argues
    that he had insufficient notice of the motion date of October 14, 2015 and that
    the motion judge ought to have allowed the filing of his materials.

[2]

We would not give effect to these submissions. The date of the motion
    had been set well in advance and the appellant had ample time to file his
    materials had he so wished. The appellant has failed to pay the costs of the
    trial, the fine ordered because of his contempt and the equalization. He has
    also failed to comply with his disclosure obligations. In light of these
    circumstances, we consider the motion judges order to be fully justified.

[3]

We would however make one change to the motion judges order and delete
    the requirement in paragraph 2 that before he can bring a future motion to
    vary, he must prove that he has paid all support obligations up to January 1,
    2014. The ability to pay the support amount, including arrears is the very
    subject matter of the proposed motion to vary. Other than this variant to the
    order, the appeal is dismissed. Given divided success there will be no order as
    to costs.