COURT OF APPEAL FOR ONTARIO

CITATION: Alguire v. The Manufacturers Life Insurance Company
    (Manulife Financial), 2018 ONCA 202

DATE: 20180301

DOCKET: C62706

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

William Alguire

Plaintiff

(Appellant)

and

The
    Manufacturers Life Insurance Company

c.o.b. as Manulife Financial

Defendant

(Respondent)

Peter Griffin, Warren Rapoport and Aryan Ziaie, for the
    appellant

Robert Harrison and Chad Pilkington, for the respondent

Heard: January 9, 2018

On appeal from the judgment of Justice James F. Diamond of
    the Superior Court of Justice dated August 22, 2016, with reasons reported at
    2016 ONSC 5295 and from the costs order dated September 27, 2016.

Hourigan J.A.:

[1]

The appellant, William Alguire, appeals the decision of the trial
    judge dismissing his claim for declaratory and other relief related to a policy
    of insurance issued by the respondent, The Manufacturers Life Insurance Company
    (Manulife).  Mr. Alguire also seeks leave to appeal the costs award ordered
    by the trial judge.

[2]

For the reasons that follow, I would dismiss both the appeal and
    the application for leave to appeal the costs award.

Background Facts

[3]

On June 3, 1982, Mr. Alguire met with an insurance broker and
    Manulife agent, Alan Elias, about obtaining a $5,000,000 key man insurance
    policy with large up front premiums in the early years of the policy and
    greatly reduced premiums thereafter. A short time later Mr. Alguire left on an
    extended holiday. In his absence, Mr. Elias contacted Manulife who prepared a
    special actuarial quote (the Quote) on June 14, 1982.

[4]

The Quote provided for the requested $5,000,000 in face amount
    coverage, with large premiums paid up front.  It also contained a guaranteed paid-up
    value table that provided for insurance coverage in the event of default. For
    example, if Mr. Alguire defaulted on the policy at age 65, the paid-up value at
    that point would have totalled $2,680,000 and he would have been entitled to
    coverage in that amount. The trial judge found that Mr. Elias accepted the Quote
    on behalf of Mr. Alguire, and a policy was issued on July 21, 1982 (the
    Policy).

[5]

Mr. Alguire and Mr. Elias met again in mid-August 1982. Mr.
    Alguire denied that he saw the Quote during that meeting. There was no evidence
    from Mr. Elias, who had passed away. His file did not contain notes of what
    occurred at the meeting. Mr. Alguire testified that he was advised of and
    directed to a table of non-forfeiture values on page 3 of the Policy, which set
    out the paid-up values on various anniversary dates. Starting on its fifteenth anniversary,
    the Policys paid-up value exceeds the $5,000,000 in face amount coverage. When
    these proceedings started, the Policys paid-up value was $13,400,000.

[6]

The figures in the table of non-forfeiture values on page 3 of
    the Policy are the same as the table of guaranteed paid-up values in the Quote,
    save for the fact that the values on page 3 are per $1,000 of the face amount coverage
    and the values from the Quote are per $5,000 of the face amount coverage.

[7]

Mr. Alguires position at trial was that he had asked that the Policy
    be specifically designed to ensure that the value of the death benefit grew
    over the course of his life.  He submitted that the Policy provided him with
    immediate $5,000,000 coverage together with inflation protection over the long
    term. According to him, the paid-up values on page 3 of the Policy reflect his
    request for inflation protection.

[8]

Mr. Alguire commenced an action seeking, among other things, an
    order requiring Manulife to honour the terms of the Policy as written
    particularly on page 3. Manulife took the position that Mr. Alguire never made
    a request for inflation protection. It submitted that the values on page 3 of
    the Policy were clearly created in error. Manulife brought a cross-application
    seeking rectification of the Policy.

[9]

The trial judge dismissed the action after an 18-day trial. He found
    that the values on page 3 were set out in error, and reflected a common
    mistake, as the Policy did not accurately reflect the agreement of the parties.
    He specifically found that Mr. Alguire never requested inflation protection. He
    ordered that the Policy be rectified to reflect the agreement of the parties that
    the paid-up values on page 3 were per $5,000 of the face amount coverage. He also
    rejected Mr. Alguires submission that Manulifes request for rectification was
    barred by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.

[10]

The
    trial judge ordered substantial indemnity costs against Mr. Alguire in the
    amount of $1,250,000. He found that this was one of those rare instances where
    a partys conduct ought to be chastised by the court through an award of costs
    on a higher scale. The impugned conduct was Mr. Alguires inflation protection submission,
    which the trial judge found lacked any air of reality. He rejected Mr.
    Alguires version of events, and equated the proceedings with gotcha
    litigation.

Issues

[11]

On appeal, Mr. Alguire does not challenge the trial judges credibility
    findings. He focuses on two issues: (i) the trial judge erred in finding that
    rectification was an available remedy; and (ii) even if rectification was
    available on the facts of this case, it was statute-barred by operation of the
Limitations
    Act
. In addition, he seeks leave to appeal the costs award on the basis
    that it is unreasonable and contrary to access to justice considerations. Each
    of these issues is considered below.

Analysis

(a)

Rectification

[12]

Rectification
    is an equitable doctrine that is available when it is clear that the parties
    written agreement does not accord with their actual agreement. In such
    circumstances, a court may rectify the agreement so that it gives effect to the
    parties true intentions:
Canada (Attorney General) v. Fairmont Hotels
,
    2016 SCC 56, [2016] 2 S.C.R. 720, at para. 12.

[13]

In
    the present case, Manulife argued that rectification was necessary to correct a
    common mistake. Such a mistake arises where
the
    parties, subscribe to an instrument under a
common

mistake
    that it accurately records the terms of their antecedent agreement:
Fairmont
, at para. 14. To obtain an order for rectification in
    these circumstances, Manulife was required to show, that the parties had
    reached a prior agreement whose terms are definite and ascertainable; that the
    agreement was still effective when the instrument was executed; that the
    instrument fails to record accurately that prior agreement; and that, if
    rectified as proposed, the instrument would carry out the agreement:
Fairmont
,
at para.
    14.

[14]

On
    appeal, Mr. Alguires primary submission on this issue is that there was an
    insufficient evidentiary basis at trial for concluding that the parties had
    entered into an antecedent agreement. In other words, it was not open to the
    trial judge on the evidentiary record to find that the agreement was definite
    and ascertainable. Accordingly, he argues that the remedy of rectification was
    not available. As part of this argument, Mr. Alguire submits that the trial
    judge erred in finding that Mr. Elias acted as his agent in securing the Policy.

[15]

I
    am unable to give effect to this submission. In my view, there was ample
    evidence to ground the trial judges conclusion that there was an antecedent
    agreement based on the Quote, which was for the issuance of a $5,000,000 key
    man insurance policy with no special provision for inflation protection.  I
    reach this conclusion for the following reasons.

[16]

First,
    this conclusion is consistent with Manulifes internal files, including various
    documents and notations made by its underwriting department that were based on
    a $5,000,000 policy and Mr. Alguires insurance application, which sought coverage
    in that amount. Manulife produced its entire application file, containing
    various documents and forms submitted by Mr. Alguire (through Mr. Elias) and
    reviewed by members of Manulifes underwriting and other processing
    departments. No document produced referenced inflation protection.

[17]

Second,
    the trial judges conclusion is supported by his finding that Mr. Elias
    accepted the Quote on behalf of Mr. Alguire. I see no error in the trial
    judges holding that Mr. Elias was acting as Mr. Alguires agent in securing
    and agreeing to the Quote. The jurisprudence is clear that an insurance agent
    may be a dual agent, acting for both the insured and the insurer:
Gilmore
    Farm Supply Inc. v. Waterloo Mutual Insurance Co.
, [1984] O.J. No. 222
    (H.C.), at paras. 31-32, varied on other grounds, [1984] O.J. No. 2431 (H.C.);
Farrant
    (Litigation Guardian of) v. Low
(1998), 77 A.C.W.S. (3d) 419 (Gen. Div.),
    at para. 49.

[18]

With
    regard to the agency issue, Mr. Alguires appeal counsel, Mr. Griffin, advanced
    a new argument not made to the trial judge that s. 199 of the
Insurance Act
,
    R.S.O. 1980, c. 218, which was in effect at the time the Policy was issued, operates
    as a legal bar to a finding that Mr. Elias acted as Mr. Alguires agent. That
    section provides:

No officer, agent or employee of an insurer and no
    person soliciting insurance, whether or not he is an agent of the insurer,
    shall, to the prejudice of the insured, be deemed to be the agent of the
    insured in respect of any question arising out of a contract.

[19]

I
    am not persuaded that s. 199 or its equivalent in the current
Insurance Act
,
R.S.O. 1990, c. I.8, being s. 222, assist the appellant in the circumstances of
    this case. It cannot be said that in securing the Quote, Mr. Elias was acting
    to the prejudice of Mr. Alguire. To the contrary, he was acting in accordance
    with his instructions. Mr. Elias actions could only be considered prejudicial
    to Mr. Alguire if Mr. Alguires evidence about wanting to secure inflation
    protection was accepted by the trial judge. It was not.

[20]

Third,
    the finding of an antecedent agreement is also consistent with the trial
    judges interpretation of Mr. Alguires affidavit evidence to the effect that
    Mr. Elias presented the Quote before he executed the Policy. Although Mr.
    Alguire submits that the trial judge misinterpreted that evidence, I am of the
    view that the trial judges interpretation was open to him.  By agreeing to the
    Policy, which was supposed to be consistent with the Quote, Mr. Alguire
    ratified Mr. Elias acceptance of the Quote.

[21]

Fourth,
    in considering whether there was sufficient evidence of an antecedent
    agreement, it is important to consider the trial judges rejection of Mr.
    Alguires testimony. There were two competing narratives at trial. Either the
    parties agreed to the terms of the Quote or they agreed to a policy that
    provided inflation protection. It was not Mr. Alguires position that he just
    accepted the Policy as presented without considering the paid-up values or
    their effect. The trial judge, who found that Mr. Alguire never requested inflation
    protection, rejected the inflation protection narrative.  That finding is not
    challenged on appeal. It follows that the true agreement between the parties
    was in accordance with the terms of the Quote.

[22]

In
    summary, because the trial judge found that the Quote was an antecedent
    agreement that contained the definite and ascertainable terms of the parties bargain,
    it was open to him to rectify the Policy to reflect the parties true
    intention.

(b)

Limitations Act

[23]

Mr.
    Alguire argues that rectification is a cause of action, not a defence, and is
    therefore subject to the two-year limitation period in s. 4 of the
Limitations
    Act
. According to Mr. Alguire, the limitation period commenced in 2007
    when an actuary at Manulife discovered the error, and thus rectification should
    not have been granted, as Manulife did not claim that relief until it issued
    its cross-application in 2013. He submits that policy considerations, including
    discouraging insurers from sleeping on their rights and avoiding leaving
    beneficiaries to litigate cases after the insured dies, further support
    dismissing the rectification claim.

[24]

I
    would not give effect to this ground of appeal. I conclude that the rectification
    relief sought by Manulife was not barred by the
Limitations Act
.
To
    properly analyze this ground of appeal, it is necessary to consider a number of
    issues.

[25]

The
    first issue is the nature of the right being asserted by Manulife. It takes the
    position on appeal that it is simply asserting a defence and that accordingly
    rectification is not subject to the
Limitations Act
.
I do not
    agree.

[26]

I
n my view, Manulifes request for rectification is a claim. It is
    more than just a denial of Mr. Alguires claim; it is an independent claim.
    Even if Mr. Alguire had not brought this proceeding, Manulife would have been
    entitled to bring an application seeking rectification of the Policy. Consequently,
    Manulifes request goes beyond a mere defence and qualifies as a claim
for rectification, which is equitable relief:
Fairmont
,
at
    para.12. The
Limitations Act
applies to equitable claims:
McConnell
    v. Huxtable
, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 48-49.

[27]

The
    next issue is whether Manulife can rely on s. 16(1)(a) of the
Limitations
    Act
, which provides that there is no limitation period in respect of
a proceeding for a declaration if no consequential relief is
    sought.

[28]

In the context of a limitation period analysis, declaratory relief
    should be narrowly construed so as to ensure that s. 16(1)(a) is not used as a
    means to circumvent applicable limitation periods:
Joarcam, LLC v.
    Plains Midstream Canada ULC
,
2013 ABCA 118,
90 Alta. L.R. (5th) 208,
at
    para. 7.

[29]

I conclude that this subsection is unavailable to Manulife in the
    circumstances of this case, as it is seeking consequential relief.  The remedy
    of rectification sought in this case has significant consequences for the
    parties and goes beyond clarifying the nature of a particular obligation. Mr.
    Alguire stands to receive significantly less money as a result of the rectification
    compared to what he argued he was entitled to on the Policys face.

[30]

The
    foregoing leads to the critical issue of when the limitation period for the
    rectification claim began to run. A claim is not discovered until a party
    knows, or reasonably ought to have known, that injury, loss, or damage caused
    or contributed to by an act or omission by the person against whom the claim is
    made has occurred:
Limitations Act
, ss. 5(1)(a)(i)-(iii) and 5(2). In
    this case, Manulifes internal discovery of the error in the Policy occurred in
    2007. Manulife, however, did not seek to rectify the Policy until after Mr. Alguire
    filed his application in 2012. The question thus arises as to when the injury,
    loss, or damage for the rectification claim occurred.

[31]

To
    answer this question regard must be had to the grounds asserted for
    rectification. In the present case, the trial judge determined that
    rectification was appropriate to remedy a common mistake.
On the
    evidence accepted by the trial judge that the mistake was common,  when Manulife
    discovered the error in 2007, it did not know that Mr. Alguire would seek to
    resile from the parties common understanding that the paid-up values were per
    $5,000 of the face amount coverage, not per $1,000 as mistakenly indicated in
    the Policy. In other words, until Mr. Alguire instituted his claim and sought
    to change what the parties had actually agreed to, he had not committed an act
    or omission causing or contributing to Manulifes injury, loss, or damage for
    purposes of the rectification claim.

[32]

As Manulife only knew that injury, loss, or damage occurred when Mr.
    Alguire sought a declaration that the erroneous paid-up values were correct,
    the claim for rectification was not made after the expiry of the limitation
    period and is not statute-barred.

[33]

Finally,
    Mr. Alguire raises policy considerations in support of his submission that the
    claim for rectification is statute-barred.  Those considerations cannot, in the
    circumstances of this case, drive the result.  The
Limitations Act
was
    designed to promote certainty in the analysis of when claims are statute-barred.
    The task of a reviewing court is to determine the applicable limitation period
    having regard to the legislation. A limitation period analysis is not a laches
    analysis where the courts investigation is driven by the equities of the
    situation.

[34]

In any event, the
Limitations Act
already requires
    parties to act diligently and not sleep on their rights. As noted above, a
    claim is discovered when a party knows,
or reasonably ought to have known
,
    that injury, loss, or damage caused or contributed to by an act or omission by
    the person against whom the claim is made has occurred:
Limitations Act
,
    ss. 5(1)(a)(i)-(iii) and 5(2). The fact that a claim is discovered when either
    a party knows or reasonably ought to have known of the claim means that parties
    cannot sit idly by and must instead act with due diligence in determining if
    they have a claim.
A claim, however, requires an act or omission
    of the person against whom it is made:
Limitations Act
, s. 5(1)(a)(iii). In this case, it is Mr. Alguires resiling from the
    parties intended agreement that grounds the rectification claim. Even though
    Manulife discovered the error in the paid-up values in the Policy in 2007, it
    did not know, and could not reasonably ought to have known, that Mr. Alguire
    would seek to resile from the parties intended agreement at some point in the
    future. Manulife therefore cannot be faulted for failing to act with due
    diligence.

[35]

For
    these reasons, I would reject this ground of appeal.

(c)

Costs Award

[36]

The test for leave to appeal a costs award is stringent. L
eave to appeal
will not be granted, save in obvious cases where the
    party seeking leave convinces the court that there are strong grounds upon
    which the appellate court could find that the judge erred in exercising his
    discretion:
Lauzon v. AXA Insurance (Canada)
,
2013 ONCA
    664, 235 A.C.W.S. (3d) 510, at para. 15;
Brad-Jay Investments Ltd. v.
    Szijjarto

(2006),

218 O.A.C. 315 (C.A.)
,
    at para. 21.

[37]

At
    trial, Manulife submitted that Mr. Alguires conduct was worthy of sanction and
    that it should be awarded its costs of the entire proceeding on a substantial
    indemnity basis. It argued that Mr. Alguires theory of the case was a scam
    to take advantage of a clerical error in the Policy. Further, Manulife
    submitted that Mr. Alguires allegations of a breach of the duty of good faith
    were akin to failed allegations of fraud or other serious misconduct.

[38]

The
    trial judge agreed with Manulife that this case was one of those rare instances
    where a partys conduct ought to be chastised by the court through a costs
    award on a higher scale. He found that Mr. Alguires story lacked any air of
    reality and that his version of events never took place. According to the trial
    judge, his decision went beyond the standard battle of credibility between
    parties.

[39]

In
    determining quantum, the trial judge acknowledged that he must take into account
    what is fair and reasonable, with a view to balancing compensation  for the
    successful party with the goal of fostering access to justice:
Boucher v.
    Public Accountants Council (Ontario)
(2004), 71 O.R. (3d) 291 (C.A.), at
    paras. 37-38. He noted that he should be wary of the negative impacts on access
    to justice that could result from substantial costs awards against individuals
    involved in proceedings against well-funded corporations. The trial judge
    excluded from the costs award the costs of a mid-trial motion brought by Manulife
    that Mr. Alguire successfully resisted. He also found that some of the hourly
    rates sought by Manulifes counsel were unreasonable. The $1,250,000 awarded
    marked a significant reduction from the amount sought in Manulifes bill of
    costs, being $2,270,160.

[40]

In
    my view, there is no basis to interfere with the costs award and accordingly I would
    deny leave to appeal.

[41]

The
    trial judge was entitled to consider Mr. Alguires conduct and determine
    whether it was worthy of sanction:
Davies v. Clarington (Municipality)
,
2009 ONCA 722, 100 O.R. (3d) 66, at para. 28. I see no error in his
    conclusion that this was an exceptional case where elevated costs were
    appropriate. As the trial judge rejected Mr. Alguires version of events, it
    follows that he concluded Mr. Alguire fabricated his testimony to fit his claim
    for the increased paid-up values found on page 3 of the Policy. The awarding of
    costs on a higher scale was therefore not, to use Mr. Griffins phrase, a case
    of piling on, but rather a response to conduct worthy of judicial sanction.

[42]

I
    also do not accept the submission that the costs award will have an adverse
    impact on access to justice. This is not a case of an earnest policyholder
    asserting a claim under an insurance policy in good faith. This is a case where
    Mr. Alguire has been found to have fabricated evidence. Obviously, cases
    brought in bad faith should be discouraged, if for no other reason than they
    waste court resources and delay legitimate cases from being heard. In awarding
    elevated costs, the trial judge sought to send a message that there are
    consequences to such behaviour. In so doing, he was protecting access to
    justice, not eroding it.

[43]

Finally,
    I see no error in the quantum of the costs awarded. The trial judge did not
    rubber stamp Manulifes bill of costs. He reviewed it carefully and made a
    substantial reduction. There is nothing to suggest that the quantum of costs
    awarded was tainted by an error in principle or plainly wrong. There is,
    therefore, no basis for appellate intervention with it.

Disposition

[44]

I
    would dismiss the appeal. The parties may make written submissions regarding
    the costs of the appeal. Manulife shall serve its costs submissions within 10
    days of the release of these reasons. Mr. Alguire shall have 10 days from the
    receipt of Manulifes costs submissions to respond. Manulife shall then have 5
    days to file reply submissions. All submissions shall be filed within 30 days
    of the date of the release of these reasons.

Released: K.F. March 1, 2018

C.W. Hourigan J.A.

I agree. K. Feldman J.A.

I agree. E.A. Cronk


COURT OF APPEAL FOR ONTARIO

CITATION: Alguire v. The Manufacturers Life Insurance Company
    (Manulife Financial), 2018 ONCA 280

DATE: 20180321

DOCKET: C62706

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

William Alguire

Plaintiff

(Appellant)

and

The
    Manufacturers Life Insurance Company

c.o.b. as Manulife Financial

Defendant

(Respondent)

Peter Griffin, Warren Rapoport and Aryan Ziaie, for the
    appellant

Robert Harrison and Chad Pilkington, for the respondent

Heard: January 9, 2018

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice dated August 22, 2016, with reasons reported
    at 2016 ONSC 5295 and from the costs order dated September 27, 2016.

COSTS ENDORSEMENT

[1]

We have reviewed the costs submissions filed by the parties. We do not
    see any basis for awarding costs on a substantial indemnity basis. The
    respondent is entitled to its costs of the appeal payable by the appellant on a
    partial indemnity basis, which we fix at $80,000, inclusive of disbursements
    and HST.

K.
    Feldman J.A.

E.A.
    Cronk J.A

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Barker v. Barker, 2018 ONCA 255

DATE: 20180320

DOCKET: C63938 and C63967

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Reginald Barker, Jean-Paul Belec, Eric Bethune
    (formerly Jean-Jacque Berthiaume), Joseph Bonner, William Brennan, Stephen
    Carson, Roy Dale, Maurice Desrochers by the Estate Trustee Lorraine Desrochers,
    Donald Everingham, John Finlayson, Robert Frost, Terry Ghetti, Robert Haberle,
    Bruce Hamill, Eldon Hardy, William Hawboldt, Danny A. Joanisse, Russ Johnson,
    Stanley Kierstead, Denis LePage, Christian Magee, Douglas McCaul, William A.
    McDougall, Brian Floyd McInnes, Allen McMann, Leeford Miller, James Motherall,
    Michael Roger Pinet, Edwin Sevels, Samuel Frederick Charles Shepherd and Shauna
    Taylor (formerly Vance H. Egglestone)

Plaintiffs (Respondents)

and

Elliott
    Thompson Barker, Gary J. Maier and

Her Majesty the Queen in
    Right of Ontario

Defendants (Appellants)

William D. Black and Sam Rogers, for the appellants
    Elliot Thompson Barker and Gary J. Maier

Sara Blake and Meagan Williams, for the appellant Her
    Majesty the Queen in Right of Ontario

Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi,
    for the respondents

Heard: March 13, 2018

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated June 1, 2017, with reasons reported at 2017
    ONSC 3397, 39 C.C.L.T. (4th) 89, and from the costs order, dated July 18, 2017,
    with reasons reported at 2017 ONSC 4350, 39 C.C.L.T. (4th) 140.

REASONS FOR DECISION

[1]

The appellants, Elliott Thompson Barker, Gary J.
    Maier and Her Majesty the Queen in Right of Ontario (the Crown), appeal from
    the June 1, 2017 order of the motions judge in which he:

a.

dismissed the appellants motions seeking to have the respondents
    action dismissed as statute-barred or barred by the doctrine of laches;

b.

granted the respondents partial summary judgment for breach of
    fiduciary duty; and

c.

ordered a trial or additional summary judgment motions to prove
    victimization, harm, causation of harm and quantification of damages.

The appellants also seek leave to
    appeal the motions judges costs order in favour of the respondents in the
    amount of $282,504.34.

[2]

The respondents were patients committed to the
    Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario, at
    various times between 1966 and 1983.  They were subjected to intensive therapy
    programmes designed in part by the appellant Dr. Barker for Oak Ridges Social
    Therapy Unit which he and the appellant Dr. Maier oversaw.

[3]

In 2000, one of the respondents commenced a
    proposed class action.  The claims included breach of fiduciary duty, battery,
    negligence and contravention of common law principles and international law
    norms relating to the use of torture and cruel, inhumane or degrading treatment
    and punishment.  The respondents have also alleged there was a lack of informed
    consent.

[4]

The pleading asserts that patients at Oak Ridge
    were forced to participate in experiments that involved both psychological and
    physical torture. Examples include: forcing a patient to sit in a space of
    approximately three square feet in which he would be allowed to move only four
    times during a four hour session; placing patients nude in a soundproof,
    windowless, continuously ventilated room, eight feet by ten feet, often cuffed
    to one another for periods
of
up to two weeks;
    and administering to patients combinations of hallucinogenic, delirium-producing,
    psychosis-producing or mind-altering drugs.

[5]

Certification of the class proceeding was denied
    in 2003 and, after an unsuccessful appeal, a motion was granted in 2006 to
    allow the action to continue as a multi-party proceeding.

[6]

The procedure underlying this appeal was
    unconventional. Although the issue of limitation periods had frequently been
    raised in the past, it had not been resolved.  Indeed as far back as 2001,
    Cumming J. had indicated that the limitation issue should be dealt with on a
    proper record.

[7]

On April 14 and May 6, 2016, the appellant
    physicians and the Crown brought motions for summary judgment asking that the
    action be dismissed on the basis that there was no genuine issue requiring a
    trial as the action was statute-barred due to the expiry of the applicable
    limitation period or alternatively, laches.  In support of their motions they
    relied on the pleadings and proceedings, a yet to be sworn affidavit of a law clerk,
    and the transcripts of the respondents examinations for discovery.

[8]

By endorsement dated May 10, 2016, the motions
    judge, who was managing the action, established a schedule for delivery of the
    appellants summary judgment material and a cross-motion to be brought by the
    respondents for summary judgment.

[9]

The motions judge amended the scheduling
    direction on October 28, 2016 to provide for, among other things, the extension
    of the date for delivery of the respondents cross-motion to November 28, 2016.
     The respondents never brought any such cross-motion for summary judgment, but
    did serve a motion record for summary trial on February 28, 2017.  That motion
    for summary trial was not before the motions judge and is not the subject matter
    of this appeal.

[10]

On December 5, 2016, the motions judge granted a
    further direction.  He scheduled the appellants summary judgment motions and
    stated that the record for the motions was now frozen.  He then wrote: The
    motion will be argued on the
assumption
that the
    defendants liability is established and the legal issue to be determined is
    whether any statutory limitation periods bar the plaintiffs claims (emphasis
    in original).  No one sought to attempt to appeal this direction.

[11]

The motions judge subsequently heard the appellants
    summary judgment motions.  In his written reasons for decision he noted that
    during the course of argument, he had advised the parties that he was of the
    view that there were four ways of deciding the motions.  He identified them as
    follows:

1)

grant the motions and dismiss the action;

2)

adjourn the motions for additional evidence on issues for which
    there were genuine issues requiring a trial, but which might be resolved by
    further summary judgment motion(s);

3)

dismiss the motions and reserve the limitations issue to trial; or

4)

dismiss the motions but grant a notional cross-motion by the
    respondents for partial summary judgment dismissing the limitations defence and
    ordering the action to proceed for a determination of the respondents claims.

[12]

However, while writing his reasons, the motions
    judge decided to resolve the motions on a fifth basis: he would grant a
    notional cross-motion by the respondents for a partial summary judgment of
    their claim for breach of fiduciary duty and order a trial or additional
    summary judgment motions to prove victimization, harm and causation of harm,
    and to quantify the individual respondents damages, if any.  He went on to
    conclude that the
Class Proceedings Act, 1992
, S.O. 1992, c. 6,
    suspended the running of any not already expired limitation periods.  When the
    proposed class action was commenced in 2000, the respondents claim for breach
    of fiduciary duty was extant and not subject to any limitation period at that
    time and thereafter.  There was no defence to the breach of fiduciary duty
    claim because the programmes designed by Dr. Barker and implemented by the physicians
    and other employees at Oak Ridge were torture and a degradation of human
    dignity.  It was an inexcusable breach of fiduciary duty for a physician to
    torture a patient.  The motions judge was also not persuaded that the equitable
    defence of laches should operate to bar the respondents claim for breach of
    fiduciary duty.

[13]

The parties were unable to agree on the content
    of the order and attended before the motions judge to settle the order.  The
    preamble to the signed order commences with: These motions for summary
    judgment, made by the Defendants for an order dismissing the action as
    statute-barred.  It lists the materials before the court as consisting of the
    pleadings, the Supplementary Motion Record of the Defendants, the Exhibits to
    the Transcripts of the Cross-Examination of Drs. Barker and Maier and a third
    staff member, facta, briefs of authorities, and certain earlier decisions in
    the action.

[14]

The Supplementary Motion Record only contained
    the appellants notices of motion and the parties pleadings.  The Exhibits
    referred to in the order were served in February 2017, after the motions judge
    froze the record, as part of the respondents motion for summary trial, which
    was not proceeding before him.

[15]

The appellants submit that they were denied
    procedural fairness and that partial summary judgment for breach of fiduciary
    duty ought not to have been granted to the respondents by the motions judge.

[16]

We agree.

[17]

In December, the motions judge had directed that
    the appellants motions proceed on the basis that liability was assumed.  Given
    this direction, the appellants could not have reasonably expected that partial
    summary judgment for breach of fiduciary duty would be granted.  At no time had
    the appellants conceded liability.  The appellants statements of defence
    disputed the allegations of what occurred and the nature of the respondents
    experience at Oak Ridge and the motions judge erred in concluding otherwise.  Moreover,
    the parties had not placed the evidentiary foundation for such an order before
    the motions judge.  Nor, based on the procedure established by the motions
    judge, would they have expected that they would be denied the opportunity to
    advance argument on whether any fiduciary duty was owed and if so, whether it
    was breached.

[18]

In addition, at the hearing of the motions themselves,
    the motions judge had outlined for the parties the potential avenues for
    disposition of the motions.  However, his fifth alternative of devising a
    notional cross-motion for partial summary judgment by the respondents for their
    claim of breach of fiduciary duty, which was never raised with the parties,
    amounted to a denial of procedural fairness.  The relief granted was
    inconsistent with the December direction and also denied the appellants the
    opportunity to file evidence and make submissions on the issue.

[19]

We therefore set aside paragraphs 2 and 3 of the
    June 1, 2017 order.

[20]

The appellants also submit that the motions
    judge erred in dismissing their motions and in concluding that the respondents
    claims were not statute-barred.  In oral submissions before this court, they
    submitted that, before the motions judge, they had proceeded to argue the
    motions as Rule 21 motions.

[21]

We cannot accept this submission.  First, it
    would appear from the directions, the appellants motions for summary judgment,
    the motions judges reasons and the order itself that the motions judge was
    responding to a motion for summary judgment, not a Rule 21 motion.  Indeed, the
    notices of motion, originally prepared prior to the December direction, were
    re-served and relied upon by the appellants for the purposes of the motions
    heard by the motions judge.  In their notices of motion, the appellants stated
    that the motions were for [s]ummary judgment dismissing this action as against
    the defendant physicians [and as against the Crown] on the basis there is no
    genuine issue requiring a trial as the action against them [and the Crown] is statute-barred
    or, in the alternative, is barred by the doctrine of laches.

[22]

As such, it was incumbent on the appellants as
    moving parties to show that there was no genuine issue requiring a trial.  We
    are not persuaded that the appellants met this burden.  The application of the
    limitation periods and the laches doctrine advanced by the appellants requires
    a characterization of the conduct of the appellants and the relationship
    between the parties.  The parties proceeded on the assumption that the
    appellants liability was established.  The respondents pleading included very
    serious allegations of torture and degradation of human dignity.   The motions
    judge, who has case managed the action for several years, concluded that the
    limitation period statutes do not encompass an action based on breach of
    fiduciary duty where the act of professional practice or experimentation is
    torture.  Indeed, when pressed in oral argument, counsel for the appellant
    physicians did not preclude the possibility that allegations of torture would
    not be captured by limitation statutes.

[23]

Based on the December procedure adopted by the
    parties and the court, the appellants failed to show that there was no genuine
    issue requiring a trial on the breach of fiduciary duty limitation and laches
    issues.  These issues do not simply engage questions of law; rather, they
    require factual determinations, on a proper record, on the nature and
    characterization of the appellants conduct and the relationship between the
    parties.

[24]

As for the causes of action other than breach of
    fiduciary duty (battery, negligence and breaches of common law and
    international norms), the appellants argue that it is implicit in the motions
    judges reasons that he decided the limitations issues in their favour.  In any
    event, they submit the record discloses such limitation periods have expired.
    We note, however, that paragraphs 29 and 30 of the motions judges reasons make
    it clear he did not fully analyze the respondents arguments in this regard,
    including arguments concerning the retroactive application of s. 16(1)(h.2) of
    the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B, mental incapacity,
    and the doctrine of discoverability.  Further, given the state of the record
    before us, we are of the view that the applicable limitations periods, if any, for
    the other causes of action are best dealt with at trial, along with the
    applicable limitation period, if any, for the breach of fiduciary duty claim.

[25]

Finally, while the Crown now relies on the
Proceedings
    Against the Crown Act
, R.S.O. 1990, c. P.27, its summary judgment motion
    was premised on assumed liability and expiry of applicable limitation periods.
    Moreover, the facta filed before the motions judge make no reference to that
    Act.  In the circumstances, we decline to consider this issue.

[26]

In summary, the motions judges order is varied
    to delete paragraphs two and three and the action is remitted for trial or
    summary trial as deemed appropriate to the Regional Senior Judge for the assignment
    of a trial judge.

[27]

This leaves the issue of costs.  As mentioned,
    the motions judge awarded the respondents costs of $282,504.34 on a partial
    indemnity scale.  This award included amounts for steps not directly related to
    the motions that were heard.  In our view, an award of $100,000 is fair and
    reasonable in the circumstances.  In this regard, we note that the appellant physicians
    took the position before the motions judge that their costs amounted to
    $65,836.  We substitute $100,000 for the amount awarded by the motions judge
    together with interest at the rate he awarded.

[28]

With respect to costs of the appeal, the parties
    agreed that the successful party should receive costs fixed in the amount of
    $25,000 all inclusive on a partial indemnity basis.  Although we have varied
    the motions judges order to delete paragraphs two and three, the respondents
    were substantially successful on appeal.  We therefore order costs to the
    respondents on a partial indemnity basis in the amount of $25,000 all inclusive.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: Benarroch v. Abitbol, 2018 ONCA 203

DATE: 20180301

DOCKET: M48651 (C64319)

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Alberto Benarroch

Applicant (Appellant)

and

Monique Abitbol, Carlos and Sara Abitbol, Jacob
    Benarroch, Louis R. Montello, HPI Administrative Services LLC, Hercules
    Products Inc., Turnberry Ts2 Corp., Miami Alone Products Corp. Plasticos
    Hercules CA, Productos Hercules, CA, Las Princesas Corp., and Rafael Benarroch

Respondent (Respondent)

Jaret Moldaver and Lindsay Konkol, for the moving party,
    Monique Abitbol

Daryl Gelgoot, for the responding party, Alberto
    Benarroch

Heard and released orally:  February 22, 2018

REASONS FOR DECISION

[1]

This a motion brought by the respondent to quash the appeal on the
    ground that the order under appeal is interlocutory and not final, meaning that
    this court has no jurisdiction to hear the appeal.

[2]

The order under appeal was made in the course of ongoing family law
    proceedings. The order requires that the appellant make certain payments,
    including monthly spousal and child support payments to the respondent.

[3]

Paragraph 7 of the order reads:

In the event that the Husband fails to comply with paragraph 5
    above, the Wife may move without further notice to the Husband to strike his
    pleadings involving all financial issues between the parties.

[4]

The appellant appeals essentially on the ground that he genuinely cannot
    pay the amounts ordered and that the effect of para. 7 is to deny him any
    opportunity to participate any further in the ongoing proceedings. Counsel for
    the appellant refers to this as a catch 22.

[5]

The appellants credibility in this litigation has been the subject of
    adverse comment. His asserted impecuniosity is strongly challenged by the
    respondent. In any event, even if the appellant is impecunious, that fact does
    not assist in determining the appropriate appellate forum. We agree with
    counsel for the moving party that the terms of the order requiring payments
    towards spousal and child support are interlocutory. A term like para. 7,
    directed at the consequence of non-compliance with the order, cannot alter the
    nature of the order: see
J.K. v. Ontario
,
2017 ONCA 332, at para. 18.

[6]

The order is interlocutory. The appeal is quashed. We do not reach the
    motion for security for costs.

[7]

In our view, it was plain and obvious on the authorities that this order
    was interlocutory and not appealable to this court. Counsel for the respondent
    put counsel for the appellant on notice of its position that this court had no
    jurisdiction shortly after the appeal was launched. This motion should not have
    been necessary. In our view, this is an appropriate case for costs on a
    substantial indemnity basis, both in respect of the motion and the appeal
    itself. We fix those costs at $22,000, inclusive of disbursements and relevant
    taxes.

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Bone Safety Signs, LLC v. Work Zone Safety Products
    Inc., 2018 ONCA 301

DATE: 20180326

DOCKET: C64183

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Bone Safety Signs, LLC

Plaintiff (Respondent)

and

Work Zone Safety
    Products Inc.

Defendant (Appellant)

Barry Yellin, for the appellant

Matthew Maurer, for the respondent

Heard and released orally:  March 22, 2018

On appeal from the judgment of Justice Patrick Monahan of
    the Superior Court of Justice, dated July 17, 2017 with reasons reported at 2017
    ONSC 4355.

REASONS FOR DECISION

[1]

The defendant appeals from the summary judgment granted by the motion
    judge that
awarded to the plaintiff the amount
    of Canadian dollars sufficient to purchase the sum of $47,301.92 (USD) together
    with interest and costs.

[2]

The appellant was a distributor of the respondents product. In late
    2015, the respondent notified the appellant that it would be increasing its
    prices effective May 1, 2016. In response, the appellant ordered a significant
    amount of product just before the price increase went into effect.  The
    respondent brought this action for payment and moved for summary judgment. The
    appellant defended the motion on the basis that the respondent had allegedly
    agreed to take back other unrelated product that had been ordered and paid for
    years before.  The appellant alleged that the respondent failed to do so and asserted
    a number of defences including an alleged failure to mitigate by the
    respondent.

[3]

The appellant also appeals against that portion of the costs award that
    granted costs to the respondent on a substantial indemnity basis from the date
    of its offer to settle.  The appellant asserts that the offer to settle did not
    comply with Rule 49 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

[4]

In terms of the main appeal, we find no merit to the appellants various
    complaints.  First, the motion judge correctly enunciated and properly applied
    the principles regarding when it is appropriate to grant summary judgment.  Second,
    the motion judge found that there was no factual foundation advanced by the
    appellant to support a defence of waiver.  Third, it is not clear to us how a
    duty to mitigate arises in the context of an action for goods sold and
    delivered.  However, even if such a duty did arise, the motion judge correctly
    concluded that there was, again, no factual foundation advanced by the
    appellant to support that contention.

[5]

Consequently, there is no basis for us to interfere with the summary
    judgement that was awarded.

[6]

In terms of the costs issue, the appellant contends that the offer to
    settle did not comply with Rule 49 because the offer provided for payment of
    $42,000 (USD) as opposed to providing for the payment of the amount of Canadian
    dollars required to purchase the foreign currency obligation.  Rule 49.02(1)
    allows a party to make an offer to settle on whatever terms it wishes.  The
    requirement under s. 121 of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 regarding foreign money obligations applies only to orders of the court
    for payment of those amounts. Further, even if the appellants contention was
    technically correct, r. 49.13 permits a court to consider any offer to settle
    made in writing in exercising its discretion with respect to costs.  Consequently,
    there is also no merit to the appellants complaint regarding the costs
    determination.

Conclusion

[7]

The appeal is dismissed. Costs are awarded to the respondent fixed in
    the amount of $8,000 inclusive of disbursements and HST, as per the agreement
    of counsel.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Borkowsky v. Hogg, 2018 ONCA 325

DATE: 20180329

DOCKET: C64274

Pepall, Brown and Trotter JJ.A.

BETWEEN

Cynthia
    Borkowsky,
CMS Holdings Inc., Arif Hirji, Selina Hirji,

Dr. Adam Natshen Medicine Professional Corporation,

Dr. Frank Papanikolaou Medicine Professional Corporation,

Dr. Chantelle Ung Medicine Professional Corporation, Chantelle
    Ung,

1281005 Ontario Inc.
, Nick Veronico,
Savoula Veronico, Shelley Murphy,

Katherine
    Stone and James Ashbridge

Plaintiffs

(Respondents)

and

Chris Hogg also known as Chris R. Hogg
,

Nabil
    Bader also known as Nabil A. Bader,
Glocap Management
    Inc.

and Strategic Alliance,
    FZE

Defendants

(Appellants)

Angela Assuras, for the appellants

Ron Aisenberg, for the respondents

Heard: March 27, 2018

On appeal from the judgment of Justice Gisele M. Miller of
    the Superior Court of Justice, dated August 8, 2017.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in this appeal.  The respondents lent funds to Glocap
    and they sued for the funds that were had and received by Glocap.  The motion
    judge correctly rejected the argument that the appellants could rely on their
    own failures to obtain any necessary approvals so as to deny their obligations
    to the respondents.

[2]

As for the guarantee issue, Hogg was the controlling shareholder of Glocap,
    signed each of the Loan Agreements and one of the Loan Amendment Agreements on
    behalf of Glocap.  As found by the motion judge, there was no evidence that
    Hogg did not consent and there was ample evidence in the record from which it
    could be inferred that he had consented.  It cannot be said that there was any
    unilateral alteration of risk.  Moreover, the motion judge also made a finding
    that Hogg had contracted out of the material alteration protection in the
    guarantees and we see no palpable and overriding error.

[3]

Lastly, the settlement of a related action did not allocate amounts for
    the claims of the 65 plaintiffs in that action.  In the within action, the respondents
    proved their entitlement to repayment of the funds advanced to Glocap and
    provided a formula for allocation of credit.  The burden was on the appellants
    to establish the quantum of the appropriate credit amount they sought and they
    failed to meet this burden.  They have no basis now to dispute that credit.

[4]

There was no need for a trial in this case and the motion judge
    correctly disposed of the action on the basis of a summary judgment.

[5]

The appeal is dismissed.  The appellants are to pay the respondents
    $12,000 on a partial indemnity scale inclusive of disbursements and applicable taxes.