COURT OF APPEAL FOR ONTARIO

CITATION: Dermann v. Baker, 2019 ONCA 584

DATE: 20190710

DOCKET: C65169

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Ashley Dermann

Appellant

and

Daniel Baker and Graham Baker

Respondents

Daniel Roncari, for the appellant

Daniel Reisler, for the respondents

Heard: July 3, 2019

On appeal from the judgment of Justice Thomas Lofchik of
    the Superior Court of Justice and costs ordered on March 9, 2018.

REASONS FOR DECISION

A.

Introduction

[1]

The appellant, Ashley Dermann, was a passenger in a car that was
    involved in a collision with a second car owned by Graham Baker and driven by
    Daniel Baker (the respondents). The appellant brought a tort action against the
    respondents for physical and psychological injuries she sustained as a result
    of the collision. The respondents admitted that they were liable, but disputed
    the extent of her injuries.

[2]

Shortly before the trial was originally scheduled to begin, the respondents
    requested an adjournment. In return, they agreed to pay a $20,000 non-refundable
    advance on the appellants recovery in addition to $5,000 for costs thrown
    away. A motion judge made an order to that effect.

[3]

A large body of medical evidence was introduced by the parties at trial.
    In the end, the jury awarded the appellant $50,000 in non-pecuniary damages.
    The trial judge reduced this amount by a $37,983.33 statutory deductible
    pursuant to s. 267.5(7) of the
Insurance Act
, RSO 1990, c I.8. Because
    the net amount of $12,016.67 was less than the $20,000 already paid in advance,
    the trial judge entered a $nil judgment for the appellant and ordered her to
    pay $61,801.56 in costs.

[4]

The appellant appeals against the judgment based on several procedural
    irregularities she argues occurred during trial and requests a new trial. She
    also seeks leave to appeal against the costs imposed. For reasons explained
    below, we dismiss the appeal against the judgment. We also grant leave to
    appeal against costs, but dismiss the costs appeal.

B.

Issues

(1)

Qualification of Expert Witnesses

[5]

The appellant submits that the trial judge erred in qualifying as
    experts certain witnesses called by the respondents.

[6]

At trial, the respondents sought to lead opinion evidence from Dr.
    Howard Weinberg, Dr. Peter Diakow, and Dr. Allan Kopyto. The appellant objected
    to all three witnesses on the basis that the requirements of r. 53.03 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, had not been complied with.
    That rule requires a party intending to call an expert witness to timely file
    the experts report containing certain information. Years before trial, Drs.
    Weinberg, Diakow, and Kopyto had each examined the appellant and prepared medical
    assessment reports for use by the appellants statutory accident benefits (SABS)
    insurance provider. Although the appellant had received these reports, she
    contended that they did not satisfy the r. 53.03 requirement.

[7]

The trial judge rejected the appellants objection. He considered that
    r. 53.03 was designed for expert witnesses engaged by a party to prepare a
    report for the purposes of litigation. The trial judge held that the witnesses
    called by the respondents were not in that category and could provide expert
    opinion evidence within the confines of their reports.

[8]

During Dr. Kopytos cross-examination, the appellants counsel reviewed
    with him the appellants complaints about pain in her back, shoulders, and
    neck, noting that she avoided certain physical activities such as bending and
    lifting. Counsel asked the witness whether such restrictions would affect the
    appellants ability to work as a personal support worker. In response, Dr.
    Kopyto expressed uncertainty. During re-examination, the following exchange
    occurred between Dr. Kopyto and the respondents counsel:

Q. You were asked in cross-examination if restrictions in
    bending and lifting would make it difficult for her to do the job of a PSW.
    When you saw her back in July of 2012, did you find that she was unable to
    work?

A. Well, I wasnt asked that question.

Q. But you were asked in cross-examination, so Im asking you
    now. Based on your physical examination, what you reported on  recorded and
    reported on in your report, is there any indication there that she was disabled
    from working?

...

A. Theres no indication that she couldnt work, if thats your
    question.

[9]

On appeal, the appellant submits that, because the respondents did not comply
    with r. 53.03, Drs. Weinberg, Diakow, and Kopyto should not have been qualified
    as experts. The appellant also submits that Dr. Kopytos evidence veered
    impermissibly outside the confines of his report when he gave opinion evidence
    about her ability to work.

[10]

In
    our view, the trial judge correctly found that r. 53.03 did not apply to the
    witnesses called by the respondents. In
Westerhof v. Gee Estate
, 2015
    ONCA 206, 124 OR (3d) 721, this court observed that the rule only applies to a
    specific class of expert witnesses; namely, those who are engaged by or on
    behalf of a party to provide opinion evidence in relation to a proceeding:
Westerhof
,
    at para. 81. Experts retained by a non-party to the litigation, like a SABS
    insurance provider, do not belong to this class and are instead considered non-party
    experts:
Westerhof
, at para. 6. Rule 53.03 does not apply to
    non-party experts as long as their opinions are limited to those formed based
    on observations made for a purpose other than litigation:
Westerhof
, at
    paras. 62-64.

[11]

In
    this case, the three witnesses called by the respondents were clearly non-party
    experts. Subject to the trial judges discretion, they were entitled to give
    expert opinion evidence within the confines of observations they made to
    prepare medical assessment reports for the SABS insurance provider. As long as
    the witnesses remained within those confines, they could be qualified as
    experts without compliance with r. 53.03.

[12]

In
    our view, Dr. Kopytos evidence did not impermissibly go beyond the scope of testimony
    for a non-party expert during direct examination. It was the appellants
    counsel who invited additional evidence by asking the witness about the
    appellants ability to work as a personal support worker. Under these
    circumstances, the respondents were entitled to ask further questions of the
    witness on re-examination in order to clarify that issue. Regardless of whether
    Dr. Kopytos evidence on re-examination went beyond the scope of his report, we
    are of the view that it was proper.

(2)

Charge to the Jury

[13]

The
    appellant takes issue with three aspects of the trial judges charge to the
    jury. First, she argues that, because the fact of her insured status was
    mentioned by several witnesses, the trial judge should have instructed the jury
    not to consider collateral benefits when determining the quantum of damages. Second,
    the appellant submits that the trial judges failure to recount part of her
    family doctors evidence on her good state of health about four months before
    the collision made the charge unfair and deficient. Third, she submits that the
    trial judge misstated the evidence when he referred to a diagnostic imaging
    report as the first time there are any real physical symptoms of anything
    unusual going on with the neck and back.

[14]

We
    do not give effect to these submissions. A trial judges charge in a civil
    trial is not reviewed on a standard of perfection, and a new trial will not be
    ordered even when there is misdirection unless the error leads to substantial
    wrong or miscarriage of justice:
Berthiaume-Palmer v. Borgundvaag
, 2010
    ONCA 470, 273 O.A.C. 397, at paras. 16-17. Moreover, a trial judge is not
    required to review all of the facts in a civil jury trial, and the charge
    should be evaluated within the greater context of the trial, including the
    counsels addresses:
Berthiaume-Palmer
, at paras. 14-15.
[1]

[15]

In
    this case, although there were sporadic references to the appellants insured
    status, such references were often made in conjunction with evidence that the
    insurance coverage was limited or that certain treatments were not approved. Having
    heard all of this conflicting evidence, the trial judge was best positioned to
    determine whether an instruction about collateral benefits was necessary or
    potentially confusing in these circumstances. As this court noted in
Samms
    v. Moolla
, 2019 ONCA 220, at para. 90, [p]rovided those discretionary
    calls are in compliance with the law and the charge as a whole is balanced and
    provides the jury with the necessary tools to properly decide the live issues
    before them, deference must be shown.

[16]

The
    trial judges failure to recount a particular aspect of the evidence favourable
    to the appellant did not render the charge as a whole deficient. He provided a
    balanced charge and repeatedly instructed the jury that they were the sole
    judges of fact and that it was their recollection of the evidence that
    mattered.

[17]

While
    his comment was inelegantly put, the trial judges remark that the diagnostic
    imaging results were the first real physical symptoms meant that the images
    were the first objective evidence of those symptoms. We are satisfied that the
    jury would have understood the judges meaning, and while he could have
    clarified his comment, his failure to do so does not constitute an error in the
    context of the entire charge.

(3)

Costs Appeal

[18]

The
    appellant submits that the application judge erred in his costs assessment
    because he declined to give effect to the cost consequences of an offer to
    settle under r. 49.10(2). However, we are of the view that the rule was
    inapplicable to the circumstances of this case.

[19]

By
    way of background, on October 20, 2017, the respondents made an offer to settle
    this action for $150,000. This offer was never accepted. On November 16, 2017,
    a consent order was issued adjourning the trial because of the respondents
    counsels unavailability. The order provided that:

1. The Defendant shall pay $5000 to the
    Plaintiff for costs thrown away  payable forthwith.

2. A $20,000 advance to be paid by the
    Defendant to the Plaintiff. Cheque to be made out to the [Plaintiff] directly.

[20]

As
    noted above, the jury returned a verdict of $50,000, which was reduced to
    $12,016.67 due to the application of a statutory deductible. The trial judge
    entered a judgment of $nil after further reducing that amount by the $20,000
    advance payment. He ordered costs against the appellant, whom he considered to
    be in the same position as if the action had been dismissed.

[21]

On
    appeal, the appellant concedes that the trial judge entered the correct judgment
    amount. Section 120 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    provides that a plaintiff who receives a payment from a defendant releases the
    defendant from liability to the extent of that payment, and will only be
    entitled to a reduced judgment:

Advance payments

120
(1) If a defendant makes a payment to a
    plaintiff who is or alleges to be entitled to recover from the defendant, the
    payment constitutes, to the extent of the payment, a release by the plaintiff
    or the plaintiffs personal representative of any claim that the plaintiff or
    the plaintiffs personal representative or any person claiming through or under
    the plaintiff or by virtue of Part V of the Family Law Act may have against the
    defendant.

Payment to be taken into account

(3) The court shall adjudicate upon the matter first
    without reference to the payment but, in giving judgment, the payment shall be
    taken into account and the plaintiff shall only be entitled to judgment for the
    net amount, if any.
[2]

[22]

Nevertheless,
    the appellant submits that the trial judge should not have considered the
    advance payment in his costs analysis. She argues that, in spite of the $nil
    judgment, she was successful against the respondents because she obtained a
    verdict greater than the statutory deductible. The appellant acknowledges that,
    even before deducting the advance payment, her recovery was less than the
    respondents offer to settle. As a result, she relies on r. 49.10(2) for the
    position that she is entitled to be partially indemnified for costs she
    incurred until the date of the respondents offer to settle and that the
    respondents are only entitled to be indemnified for costs they incurred after
    that date.

[23]

We
    do not accept this submission. Under r. 49.10(2), the costs consequences
    flowing from a defendants offer to settle depend on the judgment obtained, not
    other amounts received during the litigation. If the plaintiff obtains a
    judgment less favourable than the defendants offer, the plaintiff is
    indemnified for costs incurred until the date of the offer and the defendant
    for costs incurred subsequently. The rule provides:

Defendants Offer

49.10(2)
Where an offer to settle,

(a) is made by a defendant at least seven days
    before the commencement of the hearing;

(b) is not withdrawn and does not expire before
    the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as
    or less favourable than the terms of the offer to settle, the plaintiff is
    entitled to partial indemnity costs to the date the offer was served and the
    defendant is entitled to partial indemnity costs from that date, unless the
    court orders otherwise.

[24]

As
    this court noted in
S & A Strasser Ltd. v. Richmond Hill (Town)
(1990), 1 O.R. (3d) 243, at p. 245, this rule has no application where the
    plaintiff does not recover any judgment.

[25]

In
    this case, the appellant obtained a $nil judgment. It was therefore not an
    error for the trial judge to consider the appellant to be in the same position
    for costs purposes as she would have been had the action been dismissed: see
Hibbs
    v Billings
, [1994] OJ No 3106 (C.J.), at para. 7. Therefore, in our view
    the trial judge did not err in his costs analysis.

C.

Disposition

[26]

We
    dismiss the appeal against judgment, grant leave to appeal against the costs
    award, and dismiss that appeal. We also order costs of the appeal payable by
    the appellant to the respondents in the agreed-upon all-inclusive sum of
    $15,000.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.

[1]

In this case, we note that the parties did not file a
    transcript of the closing addresses.

[2]

Similar provisions can be found in
Insurance Act
,
    R.S.O. 1990, c. I.8, s. 256.


COURT OF APPEAL
    FOR ONTARIO

CITATION: English v. Manulife Financial Corporation, 2019
    ONCA 612

DATE: 20190719

DOCKET: C65872

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Elisabeth English

Plaintiff (Appellant)

and

Manulife Financial Corporation

Defendant (Respondent)

Arthur Zeilikman, for the appellant

Gordon Jermane, for the respondent

Heard: March 25, 2019

On appeal from the order of Justice Mark L. Edwards of
    the Superior Court of Justice, dated August 31, 2018.

Benotto J.A.:

[1]

Elisabeth English had been working as a Senior
    Customer Relationship Manager for Standard Life Insurance (Standard Life) for
    nine years when it was acquired by Manulife Financial Corporation (Manulife).

[2]

Manulife announced the implementation of a new
    computer system. Upon learning this news, the appellant, who was then in her
    early 60s contemplated early retirement to eliminate the need to train on a new
    system near the end of her career. She gave her supervisor a letter indicating
    that she would retire at the end of the year. He said that she could change her
    mind. A few weeks later, Manulife announced that it was no longer converting to
    the new computer system, so the appellant decided to stay. Manulife took the
    position that she had retired. The appellant sued for wrongful dismissal.

[3]

The appellants action was dismissed following a
    motion for summary judgment. The motion judge
held that,
if he was wrong in finding that the appellant was not wrongfully dismissed,
the appropriate notice period would be 12 months.

[4]

I would allow the appeal and grant judgment to
    the appellant for 12 months salary in lieu of notice.

FACTS

[5]

Ms. English began working for Standard Life in 2006. Her job was to
    provide services to pension clients. In July 2015, Standard Life was acquired
    by Manulife. At that time the appellant was a Senior Customer Relationship
    Manager earning approximately $128,000. She was 64 years old.

[6]

Shortly after the acquisition, Manulife announced that it would be
    converting to a new computer system. This led Ms. English, then close to
    retirement age, to consider retiring early. She was concerned about her ability
    to learn a new system, and about the cost to Manulife of retraining an employee
    so close to retirement. She met with her supervisor, Clive Ramnath, on
    September 22, 2016, and told him that as a result of the new system, she would
    retire early. He asked her if she was sure and she said, not totally.

[7]

She handed him a retirement letter she had typed herself:

Dear Clive,

This will serve formal notice that I will be retiring effective
    December 31, 2016.

I have enjoyed working at Standard Life/Manulife for the past
    10 years very much, and want to thank you very much for all your support during
    my tenure.

I especially want to express my gratitude for all your support
    and understanding during my very difficult times in 2012 and again in 2015.

I will entertain a part-time position, two or three days per
    week, should be possible (sic), but I understand if it is not.

Again thank you so much for everything.

Sincerely,

Elisabeth English

[8]

In examination for discovery, the appellant deposed that Mr. Ramnath
    told her that if she changed her mind, she could rescind the notice of
    retirement. In an affidavit filed in support of the summary judgment motion,
    Mr. Ramnath said he did not say that she could rescind the Notice of
    Retirement. However, when later examined for discovery, he admitted that he had
    offered Ms. English an opportunity to reconsider and to rescind the resignation.
    The exchange is as follows:

[Q]: Just to go back to your meeting with Elisabeth when she
    tendered her notice of resignation to you, September 22, you told her that she
    could rescind her notice of resignation if she changed her mind?

[A]: I asked her if she was sure at that point in time.

[Q]: Did you tell her that, If you change your mind, you can
    rescind it or reconsider it?

[A]: At that point in time, yes.

[Q]: September 22nd?

[A]: Yes.

[9]

Shortly thereafter Mr. Ramnath announced Ms. Englishs impending
    retirement at a staff meeting with her consent.

[10]

Less
    than three weeks later, on October 11, 2016, Manulife announced that it would
    not be proceeding with the computer conversion. The next day Ms. English spoke
    to Mr. Ramnath. She told him that because Manulife was not proceeding with the
    computer conversion, she was withdrawing her notice. He did not say there was
    any difficulty with this, but simply acknowledged the withdrawal of her notice.
    The appellant continued working and took her planned one week vacation on
    November 4, 2016

[11]

Mr.
    Ramnath advised the human resources department at Manulife about Ms. Englishs
    rescission of her retirement notice and asked for instructions. The response
    did not come for about a month.

[12]

On
    November 25, 2016, Mr. Ramnath advised Ms. English by telephone that Manulife would
    not recognize a rescission of the notice.

[13]

Ms.
    English immediately responded by letter, and stated:

Dear Clive,

Re: My pending retirement

Our telephone conversation earlier today caught me totally by
    surprise when you indicated that Manulife was honouring my request to retire
    31/12/2016.

You will recall that when I handed my notice to you in
    September, you asked me whether I was sure to which I answered not totally.
    You then told me that I can always rescind it if I changed my mind.

My primary reason for considering 2016 rather tha[n] 2017 was
    being informed by Manulife that they intended to convert our clients and
    retrain us on Manulifes computer systems. With conversion of systems having
    been announced to us as Manulifes plan, I saw no benefit to either Manulife or
    me to get trained on a whole new system given that my retirement was imminent.

Upon subsequent reflection and having gone through numerous
    client conversions and staff retrainings in my career, I considered I would
    save Manulife and myself the time and effort to train me only to have me retire
    at the end of 2017.

Following the announcement of October 11
th
regarding
    the halt of conversion, I reconsidered my situation and decided to rescind my
    notice, as you offered.

I came to you on October 12
th
and asked whether you
    had done anything with my letter to which you responded, no, and I then told
    you that given that were not proceeding with conversion, I will continue with
    my original plan to retire at the end of 2017. You did not indicate in any way
    that this would be a problem. Therefore, I have been, for the past six weeks,
    under the assumption that everything was OK.

Now, subsequent to my return from vacation, suddenly on November
    25
th
all has changed and I dont understand.

It is still my plan to work to the
    end of 2017.

[14]

On December 1, 2016 Mr. Ramnath emailed her to say that Manulife was
    honouring her retirement notice. On December 12, 2016 she was told not to
    come back to work.

DECISION BELOW

[15]

The
    appellant commenced an action for wrongful dismissal against Manulife. The
    parties, through their counsel agreed that a summary judgment motion would be
    the appropriate way to resolve the action.

[16]

The
    motion judge defined the issue as follows:

The Plaintiffs motion raises the
    legal question of whether an employee who has resigned her position of
    employment by way of a notice of retirement may later rescind her written
    notice of retirement.

[17]

By
    framing the issue in this way, the motion judge embarked upon an analysis of
    two divergent lines of jurisprudence dealing with the ability of an employee to
    rescind a notice of resignation. He concluded that the appellants notice of
    retirement was accepted by Manulife and Manulife did not need to show that it
    had relied on the notice to its detriment. On this basis, the motion judge held
    that the appellant had in fact resigned, and therefore had not been wrongfully
    dismissed.

[18]

He
    also determined, for purposes of appeal, that the appellant would be entitled
    to 12 months pay in lieu of notice if she was wrongfully dismissed.

ISSUE

[19]

I
    see the issue differently from the motion judge. In my view the threshold
    question concerns the legal effect of the events of September 22, 2016.

ANALYSIS

[20]

The
    motion judge concluded that the appellants September 22, 2016 letter
    constituted a clear and unequivocal resignation.

[21]

As
    I will explain, this was an error. Her resignation notice was equivocal given
    the circumstances in which she presented it to Manulife, and she was entitled
    to withdraw it.

[22]

When
    the appellant gave Mr. Ramnath her retirement letter, she told him that she was
    not entirely sure she wanted to retire. The impetus for her letter was the
    computer conversion. She was told by Mr. Ramnath that she could change her
    mind. Mr. Ramnath admitted this under oath. Within three weeks the computer
    conversion was cancelled. The day after the cancellation was announced, the
    appellant told Mr. Ramnath that she had changed her mind. He did not indicate
    that there was a problem with this.

[23]

These
    facts do not support a clear and unequivocal resignation. On the contrary, they
    demonstrate that the appellant was equivocal when giving her resignation notice,
    and that her equivocation was condoned by Manulife through the actions of Mr.
    Ramnath.

[24]

When
    Manulife cancelled the computer conversion within three weeks of her September
    22, 2016 conversation with Mr. Ramnath, the basis for the appellants
    resignation disappeared. The appellant moved promptly to tell him that, as
    discussed, she was not going to retire. Mr. Ramnath acknowledged her decision and
    did not tell her it was a problem.

[25]

Manulife
    is bound by Mr. Ramnaths promise to the appellant that she could change her
    mind. She did so within three weeks and her change of mind was not challenged.

[26]

Since
    the appellant did not in fact resign, her termination on December 12, 2016 was
    a wrongful dismissal.

[27]

The
    matter was appropriately determined by summary judgment at first instance and
    may be disposed of on appeal without an oral hearing. I say this for four
    reasons.

[28]

First,
    the facts are not complicated. In light of Mr. Ramnaths admission in
    examination for discovery about what he said to the appellant on September 22,
    2016, I do not see a credibility issue that must be determined.

[29]

Second,
    the parties agreed that summary judgment was appropriate. In that regard, this
    court is in the same position as was the motion judge to decide the case on its
    merits, as no
viva voce
evidence was received.

[30]

Third,
    wrongful dismissal claims are usually well-suited for disposition by way of
    summary judgment. As this court said in
Arnone v. Best Theratronics Ltd.
,
    2015 ONCA 63, 329 O.A.C. 284, at para. 12:

a straight-forward claim for wrongful
    dismissal without cause, such as the present one, strikes me as the type of
    case usually amenable to a Rule 20 summary judgment motion.

[31]

Fourth, there is the issue of proportionality. The amount in
    issue, while significant for the appellant, must to a certain extent, impact
    the choice of process. See the
Rules of Civil Procedure,
R.R.O. 1990, Reg. 194, r. 1.04(1.1):

In applying these rules, the court shall make orders and give directions
    that are
proportionate
to the importance and complexity of the issues,
and
    to the amount involved
, in the proceeding. [Emphasis added.]

[32]

The
    motion judge determined that for purposes of appeal, he would fix the damages
    at 12 months salary in lieu of notice. I would accept that determination.

CONCLUSION

[33]

I
    would allow the appeal and award damages in accordance with the motion judges
    assessment.

[34]

In
    light of my conclusion, it is unnecessary to address the issue of whether and
    in what circumstances an unequivocal notice of resignation may be rescinded by
    an employee.

[35]

Neither
    party sought costs, and none are awarded.

Released: MLB JUL 19 2019

M.L. Benotto J.A.

I agree. P. Lauwers J.A.

I agree. David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Environs Wholesale Nursery LTD. v. Environs
    Landscape Contracting LTD., 2019 ONCA 547

DATE: 20190702

DOCKET: C65136

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Environs Wholesale Nursery LTD., Walter Carey
    Grierson and Timothy Holmes

Plaintiffs
(Respondents)

and

Environs Landscape Contracting LTD., Robert
    George Everest
, Premium Business Brokers Inc., (O/A Sunbelt Business
    Brokers Premium) and Robert Lea Shawn Mitchell

Defendants
(
Appellants
)

AND BETWEEN

Environs Landscape Contracting LTD. and Robert
    George Everest

Plaintiffs by Counterclaim (Appellants)

and

Environs Wholesale Nursery LTD., Walter Carey
    Grierson and Timothy Holmes

Defendants to the Counterclaim (Respondents)

Chris G. Paliare and Tina H. Lie, for the appellants

Gavin MacKenzie and Brooke MacKenzie, for the
    respondents

Heard: May 14, 2019

On appeal from the order of Justice James W. Sloan of the
    Superior Court of Justice, dated February 22, 2018, with reasons reported at
    2018 ONSC 1130.

Paciocco J.A.:

OVERVIEW

[1]

The appellants, Environs Landscape Contracting Ltd., and its officer and
    director, Robert George Everest, appeal a partial summary judgment order that
    they are liable for breach of contractual warranty and/or negligent
    representation to the respondents, Environs Wholesale Nursery Ltd., and its
    officers and directors Walter Carey Grierson and Timothy Holmes. That liability
    finding arose from an Asset Purchase Agreement [the APA] relating to the sale
    of tree farm assets to the respondents. Attached to the APA was a tree
    inventory produced by the appellants, which contained inaccurate facts.

[2]

For the reasons that follow, I would allow the appeal and set aside the
    partial summary judgment on the liability issue. I would substitute an order
    dismissing the respondents action for breach of contract and negligent
    misrepresentation.

THE MATERIAL FACTS

A.

The ASSET purchase And the dispute

[3]

The corporate appellant operated a commercial tree farm [the business]
    in the vicinity of the Town of St. Williams in Norfolk County. Mr. Everest
    owned personally some of the land on which the business operated. The decision
    was made to sell the business assets, including the land owned by both appellants,
    as well as the buildings, tree inventory, equipment and goodwill.

[4]

The respondents expressed interest in acquiring the business assets that
    the appellants were selling.

[5]

On July 10, 2012, the appellants accepted a conditional offer from the respondents
    to purchase the business assets. The conditional offer provided for a due
    diligence period during which the respondents were entitled to inspect the
    business assets and declare the offer to be null and void if not satisfied. The
    parties agree that the respondents were provided with unlimited access to the
    business, for inspection.

[6]

To assist the respondents in their inspection, the appellants provided a
    tree inventory, dated July 16, 2012, setting out what the appellants believed
    to be the type, size and location of the saleable trees.

[7]

The respondents availed themselves of access to the business, attending
    with an arborist. The arborist could have spent as much time as he wished
    examining the plant stock, but only spent one and a half to two hours
    inspecting the trees.

[8]

Ultimately, through the APA dated October 5, 2012, the parties agreed to
    go ahead with the business asset sale. The total purchase price was $5,500,000.
    An Allocation of the Purchase Price had been prepared on August 30, 2012. The
    value of the land and buildings was allocated at $4,525,000, the Personal
    Property (Assets) at $295,000, and the Plant Inventory (In Ground) at
    $680,000.

[9]

The tree inventory was attached to the APA, and noted 236,341 saleable
    trees on the business property.

[10]

The
    $5,500,000 purchase closed pursuant to the APA, with all but $1,000,000 being
    paid on closing. A promissory note was provided for the balance to be paid with
    four instalments, each to be made on the anniversary of the APA.

[11]

When
    the second instalment was about to fall due in October 2014, the respondents indicated
    that they were not going to pay. When the respondents conducted a post-closing count
    of saleable trees, they concluded that there were 83,106 fewer saleable trees
    than were represented in the tree inventory. The respondents contended that
    this shortfall was a breach of a material representation made by the appellants
    in the APA. On October 3, 2014, the respondents issued a Notice of Action. A Statement
    of Claim followed soon after, seeking $5,000,000 in damages. The bulk of the
    damages related to the tree shortfall.

[12]

The
    appellants defended the claim, and also counter-claimed against the respondents
    for breach of the promissory note for the remaining balance of $872,000. The
    individual respondents were sued in that counter-claim as personal guarantors
    of the promissory note.

[13]

This
    litigation came before a motion judge after each party moved for summary
    judgment.

[14]

On
    February 22, 2018, the motion judge granted summary judgment against the
    appellants on the issue of liability relating to their breach of contractual
    warranty and/or negligent representation arising from the tree shortfall. Although
    satisfied that there were significantly less trees sold than the Purchasers
    had bargained for, because the precise shortfall could not be ascertained in
    the summary judgment motion the motion judge ordered that the action would proceed
    on the damages issue. That trial has not yet been conducted.

[15]

The
    motion judge also granted summary judgment to the appellants for breach of the
    promissory note, but stayed that judgment pending final resolution of the
    respondents action in the event a set-off is required.

[16]

Initially
    in this appeal, the appellants challenged both the liability finding and the
    stay of the promissory note obtained through their counter-claim. The appeal of
    the stay has since been abandoned on consent, and only the appeal from the
    liability finding relating to the tree shortfall is now before us. I will
    therefore summarize only that part of the motion judges decision. Before doing
    so, I will set out the APA provisions that were the focus of the argument, as
    well as the parties arguments relating to the proper interpretation of that
    agreement.

B.

THE Material APA PROVISIONS

[17]

To
    begin, Article 3 contains Representations and Warranties provisions. The
    material sections from Article 3 are as follows:

3.1 Representations and Warranties of the
    Vendor.
As a material inducement to the Purchasers entering into this
    Agreement and completing the transactions contemplated by this Agreement and
    acknowledging that the Purchaser is entering into this Agreement in reliance
    upon the representations and warranties of the Vendors set out in this Section
    3.1, the Vendors, jointly and severally represent and warrant to the Purchaser
    as follows:

(10)
Personal Property
. Schedule 3.1(10)
    lists each item of Personal Property. No Personal Property is in the possession
    of a third party or is on consignment. The Purchaser acknowledges and agrees
    that it has satisfied themselves as to each item of Personal Property being in
    good operating condition and repair, ordinary wear and tear excepted, and is
    suitable and adequate for the purpose for which it is being used.

(13)
Inventories
. The Purchasers
    acknowledge and agree that through the due diligence process they have
    satisfied themselves as to the quantity and quality of all plant material,
    which has been inspected by the Purchasers own consultant.

(29)
Full Disclosure
. To the best of the
    Vendors knowledge and belief (i) none of the foregoing representations and
    warranties and no document furnished by or on behalf of the Vendors to the
    Purchaser in connection with the negotiation of the transactions contemplated
    by this Agreement contains any untrue statement of a material fact or omits to
    state any material fact necessary to make any such statement or representation
    not misleading to a prospective purchaser of the Business and the Purchased
    Assets seeking full information as to the Business and all of the Purchased
    Assets; and (ii) there are no facts not disclosed in this Agreement which, if
    learned by the Purchaser, might reasonably be expected to materially diminish
    the Purchasers evaluation of the value of the Purchased Assets or the Business
    or of the profitability of the Business or which, if learned by the Purchaser,
    might reasonably be expected to deter the Purchaser from completing the
    transactions contemplated by this Agreement on the terms of this Agreement.

3.2.

Representations and
    Warranties of the Purchaser
. The purchaser represents and warrants to
    the Vendors as follows:

(6)
Due Diligence Investigation
. The
    Purchaser has conducted and completed its investigation of the Vendors, the
    Business and the Purchased Assets and the Purchaser has been satisfied, in its
    sole discretion, in all respects with the results of such investigation and has
    determined, in its sole discretion, to proceed with the transactions contemplated
    by this Agreement.

3.4. No Waiver
. Except where in this
    Agreement the Purchaser has expressly acknowledged and/or agreed to a
    limitation or qualification, no investigations, inspections, surveys or tests
    made by or on behalf of the Purchaser at any time shall affect, mitigate,
    waive, diminish the scope of or otherwise affect any representation or warranty
    made by the Vendors in or pursuant to this Agreement.

[18]

Section
    1.7 of Article 1 defines the vendors knowledge as follows:

1.7 Knowledge
. Where any
    representation, warranty or other statement in this Agreement is expressed to
    be made by the Vendors to its knowledge or is otherwise expressed to be limited
    in scope to facts or matters known to the Vendors or of which the Vendors is
    aware, it shall mean such knowledge as is actually known to Everest or which
    would have or should have come to the attention of Everest and/or the officers
    of Environs who have overall responsibility for or knowledge of the matters
    relevant to such statement.

[19]

Section
    6.2.(a) of Article 6, addressing Indemnification, states:

6.2 Indemnity by the Vendors.
The Vendors shall jointly and severally indemnify
    the Purchasers Indemnified Parties and save them fully harmless against, and
    will reimburse or compensate them for, any Damages arising from, in connection
    with or related in any manner whatsoever to:

(a) any incorrectness in or breach of any
    representation or warranty of the Vendors contained in this Agreement or in any
    other agreement, certificate or instrument executed and delivered pursuant to
    this Agreement.

For greater certainty and without limiting the
    generality of the provisions of Sections 6.2(a) and (b), the indemnity provided
    for in Sections 6.2(b) through (h) shall extend to any Damages arising from any
    act, omission or state of facts that occurred or existed prior to the Closing
    Time, and whether or not disclosed in any Schedule to this Agreement. Except
    where in this Agreement the Purchaser has expressly acknowledged and/or agreed
    to a limitation or qualification, the rights to indemnification of the
    Purchasers Indemnified Parties under this Section 6.2 shall apply
    notwithstanding any inspection or inquiries made by or on behalf of any of the
    Purchasers Indemnified Parties, or any knowledge acquired or capable of being
    acquired by any of the Purchasers Indemnified Parties or facts actually known
    to any of the Purchasers Indemnified Parties (whether before or after the
    execution and delivery of this Agreement and whether before or after Closing).
    The waiver of any condition based upon the accuracy of any representation and
    warranty or the performance of any covenant shall not affect the right to
    indemnification, reimbursement or other remedy based upon such representation,
    warranty or covenant.

[20]

Article
    7 contains Covenants provisions. The following is of relevance:

7.1 Investigation.
During the Interim Period, the Vendors shall give,
    or cause to be given, to the Purchaser and its Representatives including
    representatives of the Purchasers lenders full access during normal business
    hours to the Business and the Purchased Assets, including the Books and
    Records, the Contracts, the Property Documents and the Real Property to conduct
    such investigations, inspections, surveys or tests thereof and of the financial
    and legal condition of the Business and the Purchased Assets as the Purchaser
    deems necessary or desirable to familiarize itself with the Business and the
    Purchased Assets. Without limiting the generality of the foregoing, the
    Purchaser shall be permitted complete access during normal business hours to
    all documents relating to information scheduled or required to be disclosed under
    this Agreement and to the Employees. Such investigations, inspections, surveys
    and tests shall be carried out during normal business hours and without undue
    interference with the operations of the Business and the Vendors shall
    co-operate fully in facilitating such investigations, inspections, surveys and
    tests and shall furnish copies of all such documents and materials relating to
    such matters as may be reasonably requested by or on behalf of the Purchaser.
    The Vendors shall execute and deliver any authorizations required to permit
    such investigations, inspections, surveys and tests.

[21]

Section
    10.8 of Article 10 is an Entire Agreement clause:

10.8 Entire Agreement.
This
    Agreement constitutes the entire agreement between the Parties pertaining to
    the subject matter of this Agreement and supersedes all prior agreements,
    understandings, negotiations and discussions, whether oral or written,
    (including that letter of intent between the Parties dated July 10, 2012, as
    amended). There are no conditions, representations, warranties, obligations or
    other agreements between the Parties in connection with the subject matter of
    this Agreement (whether oral or written, express or implied, statutory or
    otherwise) except as explicitly set out in this Agreement.

[22]

There
    are also two definitions in s. 1.1 of Article 1 that are material:

Purchased Assets
means the
    following properties, assets, interests and rights of the vendors which are
    Related to the Business, and which, for greater certainty excludes the Excluded
    Assets:

(a)     the Real Property;

(b)     the Personal Property;

(c)      the Inventories;

Inventories
means all inventories
    of stock-in-trade and merchandise including materials, supplies  and including
    those inventories set out in Schedule 3.1(10)

[23]

Finally,
    s. 1.10 of Article 1 provides that the Schedules and Exhibits [are] attached
    to and incorporated in this Agreement by reference and deemed to be part
    hereof. Listed within the Schedules is 3.1(10) Personal Property. .

[24]

In
    fact, there are two schedules to the APA that are titled 3.1(10) Personal
    Property. The first is a four page list of computers and equipment, under the
    heading Schedule 3.1(10) Personal Property, prepared July 9, 2012. The second
    is the tree inventory already introduced, titled Schedule 3.1(10) Personal
    Property and sub-titled Environs Wholesale Nursery Plant Inventory Prepared
    July 16, 2012.

C.

THe Material Arguments Summarized

[25]

The
    heart of the respondents claim is that the tree inventory, having been
    attached as Schedule 3.1(10), is a s. 3.1 representation or warranty that there
    were 236,341 saleable trees included in the business assets. They say they
    relied on that representation by the appellants, as the recital in s. 3.1
    confirms. Since the appellants agreed in s. 6.2 to indemnify the respondents for
    any incorrectness in or breach of any representation or warranty, they are
    liable for the shortfall in the represented number of saleable trees.

[26]

The
    respondents also argue that either the delivery of the inaccurate tree
    inventory during the due diligence period, or its inclusion as Schedule 3.1(10)
    in the APA, or both, constituted actionable negligent misrepresentation.

[27]

The
    appellants argue that no representation or warranty about the number of trees
    was made. Schedule 3.1(10) contains no representations or warranties. It simply
    describes the trees that the appellants believed to be included in the asset
    sale, as contemplated by the s. 1.1 purchased assets definition. The
    representation or warranty that is described in s. 3.1(10) relates solely to
    the operating condition and repair of the equipment listed within the July 9,
    2012 Schedule.

[28]

The
    appellants argue that if the parties intended to include a representation or warranty
    relating to the quality and quantity of the tree inventory, that would have
    been done in s. 3.1(13), the provision that deals directly with the the
    quantity and quality of all plant material. Yet there is no representation or warranty
    expressed there, and no schedule attached to this provision where such a representation
    or warranty could be found.

[29]

The
    appellants further contend that to manufacture an unstated representation or
    warranty relating to the quantity and quality of trees would render s. 3.1(13)
    meaningless. This provision represents the respondents acknowledgement and
    agreement that they used the due diligence process, with the assistance of their
    own consultant, to satisfy themselves as to the quantity and quality of all
    plant material. The respondents also represented in s. 3.2(6) that they
    conducted and completed the due diligence investigation that was agreed to, and
    ha[ve] been satisfied in [their] sole discretion  to proceed with the
    transaction.

[30]

The
    appellants also contend that a representation or warranty of the number of
    trees on the business property could not reasonably have been contemplated by
    the parties, because it is practically impossible to physically count all of
    the trees, and saleability is too subjective an evaluation to permit objectively
    accurate counts to be conducted.

[31]

The
    appellants also argue that any representations or warranties in the APA are
    satisfied by the qualifier in s. 3.1(29): they are made to the best of the
    Vendors knowledge and belief. The appellants honestly believed that the
    estimate in the tree inventory was as accurate as possible. This should prevent
    a finding of liability for any innocent misrepresentation that may have
    occurred, under the authority of
Beatty v. Wei
, 2018 ONCA 479, 429
    D.L.R. (4th) 63, at para. 55.

[32]

Finally,
    the appellants argue that the law of negligent misrepresentation cannot
    properly be relied upon. Any pre-contractual representations have little role
    to play. The terms of the contract set out the material representations. The
    entire agreement clause also prevents reliance on representations not contained
    in the contract:
Beatty
, at paras 34-36.

[33]

In
    reply, the respondents argue that s. 3.4 provides that no investigation or
    inspection is to be construed as a waiver of representations made in the
    agreement.

[34]

In
    any event, pursuant to the authority of
Golden Hill

Ventures Ltd.
    v. Kemess Mines Inc.
, 2002 BCSC 1460, 7 B.C.L.R. (4th) 1, and
Opron
    Construction Co. v. Alberta
(1994), 151 A.R. 241 (Q.B.), a full
    investigation clause cannot be relied upon to defeat a representation where the
    investigation provided for is not practical or economically feasible. That was
    true in this case. The representation as to the number of trees could not
    practically or economically be fully investigated.

D.

THE SUMMARY JUDGMENT DECISION

[35]

The
    motion judge concluded that it is difficult to see how [Schedule 3.1(10)] could
    not be at least a representation if not a warranty, and that the number of
    trees represented was inaccurate. He described a warranty as a promise to
    indemnify a promisee if a proposition of fact that the promisor has made is not
    true. A warranty therefore relieves the promisee of the duty to ascertain that
    fact for themselves. A representation is an express or implied statement of
    fact which is influential in bringing about the agreement:
Anne of Green
    Gables Licencing Authority Inc. v. Avonlea Traditions
, [2000] O.T.C. 133
    (S.C.), at para. 203.

[36]

Presumably
    since liability would follow from characterizing the tree inventory as either a
    warranty or representation, and a statement of fact cannot realistically be a
    warranty unless it amounts to a representation, the motion judge rested content
    with finding that this was a lesser form of factual assurance. It was at least
    a representation if not a warranty.

[37]

Technically,
    his order finding the appellants liable for breach of contractual warranty is
    not supported by his findings, as he did not make a breach of warranty finding,
    only that there was at least a representation. But this is of no moment. As I
    say, the same outcome would have followed had he worded the order to base liability
    on the breach of the representation he found.

[38]

The
    motion judges reasoning supporting this contractual liability conclusion is
    simple. He offered six reasons that led him there:

(1)

The appellants position that the
    plant inventory is not a representation would render Schedule 3.1(10)
    essentially meaningless;

(2)

Since Schedule 3.1(10) is part of
    the APA, it is difficult to see how it could not be at least a representation;

(3)

The most important information
    for the Purchasers to receive, before deciding whether or not to purchase the
    nursery, would have been the number of saleable trees contained on the farms;

(4)

The only reason that the
    information with respect to the number of trees and their in-ground value were
    given to the Purchasers by the Vendors, was to induce the Purchasers to buy the
    nursery;

(5)

The respondents were not put on
    notice of two material facts, contrary to s. 3.1(29), that it was difficult
    and likely practically impossible to get an accurate number of trees, and that
    they should spend the time and/or money to do a much more thorough assessment;
    and

(6)

A full investigation would not be
    practical or economically feasible, making it inappropriate to rely on the full
    investigation clause in s. 3.2(6).

[39]

On
    this basis, the motion judge granted summary judgment against the appellants on
    the issue of liability for breach of contractual warranty and/or negligent
    representation.

ISSUES

[40]

The
    appellants raise three grounds of appeal:

A.

The motion judge erred
    in finding that the APA contained at least a representation respecting the
    number of saleable trees;

B.

The motion judge erred
    in finding liability despite the qualifier in s. 3.1(29) that any representations
    or warranties are to the best of [the appellants] knowledge and belief; and

C.

The motion judge erred
    in finding liability for negligent misrepresentation.

ANALYSIS

A.

THE MOTION JUDGE ERRED IN FINDING THAT THE APA CONTAINED A
    REPRESENTATION RESPECTING THE NUMBER OF SALEABLE TREES

[41]

In
    my view, the motion judges conclusion that the APA contained a representation
    as to the number of saleable trees cannot stand, notwithstanding the principles
    in
Sattva Capital Corp
. v.
Creston Moly Corp.
, 2014 SCC 53,
    [2014] 2 S.C.R. 633, and the reticence that is called for in finding extricable
    errors of law on appeal. With respect, the motion judges finding is predicated
    on an extricable legal error, and is tainted by palpable and overriding error.
    This makes it inappropriate to accept the respondents invitation to defer to
    the motion judges interpretation of the APA.

[42]

As
    I will explain, the motion judge committed an extricable error of law by
    failing to apply the principles of contractual interpretation to s. 3.1(13). I
    will reproduce that provision here to assist in that explanation:

3.1(13)
Inventories
. The Purchasers
    acknowledge and agree that through the due diligence process they have
    satisfied themselves as to the quantity and quality of all plant material,
    which has been inspected by the Purchasers own consultant.

[43]

It
    is apparent that, on its face, the sole subject that s. 3.1(13) addresses is
    the quantity and quality of all plant material. In other words, s. 3.1(13)
    pertains to the tree inventory  the very dispute at issue. It was the
    centrepiece of the appellants submissions. Although the motion judge
    recognized that s. 3.1(13) was the subject of argument, nowhere did he address
    those arguments. He should have done so.

[44]

To
    be clear, I do not rest my conclusion that the motion judge committed
    extricable legal error on the inadequacy of his reasons
per se
. As I
    say, the extricable legal error arising from the failure to contend with s. 3.1(13)
    is that the motion judge failed to apply the principles of contractual
    interpretation. He did not determine what this material provision meant in the
    contract as a whole, and assigned it no meaning. In discharging the
    responsibility to interpret a contract, a judge must interpret a contract as a
    whole and  accord an interpretation to the contested provisions that assigns
    meaning to each and avoids rendering one or more of them ineffective:
Deslaurier
    Custom Cabinets Inc. v. 1728106 Ontario Inc.
, 2016 ONCA 246, 130 O.R. (3d)
    418, at para. 54, leave to appeal refused, [2016] S.C.C.A. No. 249;
Trade
    Finance Solutions Inc. v Equinox Global Ltd.
, 2018 ONCA 12, 420 D.L.R.
    (4th) 273, at paras. 34-49;
Actuate Canada Corp. v. Symcor Services Inc.
,
    2016 ONCA 217, 347 O.A.C. 155, at para. 51. Here, the motion judge did not do
    so.

[45]

The
    respondents submit that the APA is inherently contradictory, requiring some
    provisions to prevail over others. In my view, this is no answer to the motion
    judges failure to assign s. 3.1(13) meaning. The motion judge should have grappled
    with the meaning of s. 3.1(13). Had he done so, it may have become apparent to
    him that there is an available and sensible way to read the provisions together,
    while giving meaning to the tree inventory as well as meaning to all other
    terms.

[46]

Specifically,
    the tree inventory is included in the APA to serve the Inventories and
    Purchased Assets definitions in s. 1.1. The latter offers a list of purchased
    assets including the Inventories; the former is defined as including those
    inventories set out in Schedule 3.1(10). The tree inventory therefore has
    meaning in further defining the Inventories and Purchased Assets, whether or
    not it amounts to a representation or warranty.

[47]

Although
    the tree inventory is specific as to the number, location and species of trees
    that are listed as purchased assets, when the tree inventory is read with the
    APA as a whole, it is clear that it is not a representation or warranty.
    Instead, the mechanism contemplated to protect the respondents expectations
    regarding the number of trees is the due diligence inspection.

[48]

The
    plain language of s. 3.1(13) drives this conclusion. It communicates without
    ambiguity the agreement of the respondents that they are satisfied with the
    quantity and quality of all plant material. It reconfirms that the respondents used
    the due diligence process they represented in s. 3.2(6) to having conducted and
    completed, and that they had the assistance of their own consultant. In my
    view, this leaves the respondents no room for subsequent claims, such as the one
    advanced here, that they relied on or were influenced into entering the
    agreement by the details of the tree inventory.

[49]

Indeed,
    in the face of the ordinary and clear meaning of s. 3.1(13), it is not possible,
    in my view, to divine an implied representation from either s. 3.1(10) itself,
    or from the listing of trees found in Schedule 3.1(10). Such an implied
    representation would hopelessly conflict with s. 3.1(13).

[50]

I
    do not accept the respondents argument that s. 3.4 removes any potential
    conflict, by stating that no investigation or inspection is to be construed as
    a waiver of representations made in the agreement. This argument begs the
    question of whether there was a representation in the first place. There was
    not.

[51]

Moreover,
    s. 3.4 opens with the phrase, Except where in this Agreement the Purchaser has
    expressly acknowledged and or agreed to a limitation or qualification. In s.
    3.1(13), the respondents expressly agreed that they had satisfied themselves as
    to the quantity and quality of all plant material. This would take s. 3.1(13)
    out of s. 3.4, in any event.

[52]

The
    only way to arrive at the conclusion reached by the motion judge is to ignore
    s. 3.1(13) and fail to give it meaning. In my view, in doing so the motion
    judge committed an extricable legal error.

[53]

The
    appellants also submit that the motion judge again erred in law in relying upon
Golden Hill
and
Opron
to hold that the inspection provisions
    - ss. 3.1(10) and 3.1(13) - could not be relied upon, because there was no
    practical or economically feasible means for the Purchasers to conduct an
    independent examination.  I agree that the motion judge erred in relying on
    this line of authority.

[54]

These
    decisions hold that full investigation clauses in
construction
    contracts
 including terms acknowledging that full inspection has been
    done  cannot be relied upon against a tenderer to defeat a representation, unless
    there is a practical reality to the independent investigation that is
    contemplated. These cases do not purport to hold that full investigation
    clauses must be treated the same way in simple agreements of purchase and sale.

[55]

However,
    we need not consider whether the same principles nonetheless apply to simple
    agreements of purchase and sale, because the motion judge committed palpable
    and overriding error in finding inspection to be impractical or economically unfeasible
    in this case.

[56]

The
    only evidence presented by the respondents relating to the practicality of
    conducting an inspection was the singular statement in Mr. Griersons and Mr.
    Holmes affidavit: [i]t was not practical to investigate all 500 acres of farm
    land or perform a count of the individual trees for the purpose of performing
    our due diligence. Even assuming it to be true that it is not possible to
    count all of the individual trees, this does not establish that it was not
    practical or economically feasible for the respondents to conduct their
    inspection. The independent examination contemplated by the parties was the respondents
    entitlement to investigate the quantity and quality of all plant material, and
    walk away from the transaction if not satisfied. There was no evidence that the
    respondents could not use means
other than an individual
    tree count
to determine this.

[57]

Indeed,
    the conclusion that an inability to count the trees makes it impractical and
    economically unfeasible to conduct an independent examination creates an intolerable
    paradox in the logic of the decision. The respondents entire action was
    predicated upon their claim that the tree inventory in Schedule 3.1(10) is a
    literal representation of the number of saleable trees. A finding that it is not
    practical to achieve such a count is inconsistent with the integrity of this claim,
    and supports the appellants argument that a warranty or representation of the
    number of saleable trees could not reasonably have been intended.

[58]

The
    respondents also came to the motion judge with a tree count of their own,
    purporting to identify the specific number of trees actually on the property,
    which they were clearly representing to be accurate enough to ground the
    damages award they were seeking. Although no satisfactory evidence was
    presented as to how this was achieved, it did not lie in the respondents mouths
    to contend that there was no practical way to conduct the very investigation
    they ultimately claimed to have conducted.

[59]

The
    motion judge therefore committed palpable error in finding that there was no
    practical or economically feasible means for the Purchasers to conduct an
    independent examination. There was no evidence to support that finding, and
    this holding is inconsistent with the case the respondents presented. This
    error was clearly overriding, since it was the motion judges only available
    explanation for disregarding the inspection provisions of the APA.

[60]

In
    my view, the motion judges additional finding, that the appellants should have
    told the respondents it was impossible to generate an accurate number of
    saleable trees, is also problematic. The respondents agreed in the APA to
    satisfy themselves with respect to the tree inventory, and represented in the
    APA that they had investigated and were prepared to close. Indeed, the
    respondents acknowledge that they knew before closing that it was impractical
    for them to count all of the individual trees during the three month due
    diligence period. If the risk of a discrepancy between the precise number of
    trees and the tree inventory mattered to the respondents, their remedy was to
    walk way, not to close and then seek damages for misrepresentation.

[61]

I
    am also troubled by the motion judges conclusion that the quality and quantity
    of saleable trees would be the most important information for the respondents to
    have received. That conclusion may find some abstract, intuitive support in the
    fact that this was the purchase of a working tree farm. However, I have
    significant reservations about whether that conclusion can reasonably be
    squared with the fact that in the agreed upon Allocation of the Purchase Price,
    the trees were valued at only $680,000, and the fact that the respondents arborist
    was only on site for a single afternoon of the protracted due diligence period.
    Since it is unnecessary to the resolution of this case, I need not decide
    whether this finding is a palpable and overriding error.

[62]

In
    sum, the motion judge committed an extricable error of law and palpable and
    overriding error in finding that the appellants breached a representation made
    in the tree inventory. There was no such representation.

B.

THE MOTION JUDGE ERRED IN FINDING LIABILITY DESPITE THE BEST OF [THE
    APPELLANTS] KNOWLEDGE AND BELIEF CLAUSE

[63]

The
    appellants submit that s. 3.1(29) and the definition of Knowledge in s. 1.7
    make clear that a contractual breach cannot be based on an inaccurate
    representation made to the best of [the appellants] knowledge and belief. The
    respondents argue, to the contrary, that s. 6.2(a) provides a right of
    indemnification for any incorrect representation, even if innocently made. Given
    the findings I have just made, it is unnecessary to resolve this issue.

C.

THE MOTION JUDGE ERRED IN FINDING A NEGLIGENT MISPREPRESENTATION

[64]

The
    respondents did not resist the appeal of the motion judges alternate finding
    of liability based on negligent misrepresentation. This was appropriate. With
    respect, it is clear that the motion judge erred.

[65]

First,
    the motion judges negligent misrepresentation finding is accompanied by no
    analysis. It is not clear whether that finding is premised on pre-contractual representations
    made during the negotiations, or arises from a belief that breach of a
    contractual representation automatically sustains a negligent misrepresentation
    tort claim.

[66]

Second,
    neither theory of liability can succeed. The respondents cannot do an end run
    around a finding that the tree inventory is not a contractual representation by
    contending that the tree inventory contained in the contract is nonetheless a
    tortious misrepresentation. The entire agreement clause in s. 10.8 ensures that
    the same is true of any pre-contractual misrepresentations that may have been
    made.

[67]

I
    would therefore set aside the finding of negligent misrepresentation.

HOLDING

[68]

In
    my view, the motion judges summary judgment that the appellants are liable for
    breach of contractual warranty and/or negligent representation must be set
    aside. I would allow the appeal from that order.

[69]

I
    would substitute an order dismissing the respondents action. In my view, we
    are equipped to make that determination, and it is the only proper outcome.

[70]

I
    would award combined costs on the appeal to the appellants in the agreed upon
    amount of $18,000, inclusive of HST and disbursements.

[71]

I
    would also reverse the March 16, 2018 costs order made by the motion judge, and
    award combined costs in the summary judgment motion to Landscape and Everest in
    the amount of $81,469.10 inclusive of HST and disbursements.

Released: KF July 2, 2019

David
    M. Paciocco J.A.

I agree.
K. Feldman
    J.A.

I agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Farah v. Mohamed, 2019 ONCA 620

DATE: 20190722

DOCKET: C66662

Hoy A.C.J.O., Trotter
    and Jamal JJ.A.

BETWEEN

Farhiyo Tahlil Farah

Applicant

(Respondent)

and

Dahir Mohamed

Respondent

(Appellant)

Julius Omward, for the appellant

Erika M. Young, for the respondent

Heard: July 18, 2019

On appeal from the order of Justice M.T. Linhares De
    Sousa of Superior Court of Justice on February 28, 2019.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow. These are our reasons.

[2]

The father appeals from the dismissal of his appeal from four family law
    orders relating to the custody and access of the three children of the marriage:
    (1) the interim order of Scully J. (December 22, 2010); (2) the interim and
    final consent order of Jones J. (December 20, 2011); (3) the final order of Murray
    J. (July 17, 2015); and (4) the order of Finlayson J. denying the fathers
    motion to change the order of Murray J. (January 15, 2018).

[3]

In the proceedings before Jones J., the father consented to an order
    awarding custody of the children to the mother, with unsupervised access by the
    father. On a motion by the mother, Murray J. amended the order of Jones J. by ordering
    that access by the father be supervised. On the fathers motion to change,
    brought two and half years later, Finlayson J. essentially maintained the
    Murray J. order. Both Murray J. and Finlayson J. were concerned with the
    fathers conduct in bad-mouthing the mother in the presence of the children,
    and with the sporadic nature of the fathers visits with the children.

[4]

The appeal from these orders was scheduled to be heard on November 20,
    2018. The father sought and was granted an adjournment. The father was told to order
    the transcripts from all four proceedings. When the appeal was to be argued on
    February 28, 2019, the father had failed to obtain all of the required
    transcripts. Counsel appearing for the father told the appeal judge that the
    circumstances beyond the fathers control prevented him from acquiring the
    missing transcripts. The appeal judge asked whether the father wanted an
    adjournment. After some equivocation, counsel requested an adjournment.
    However, the father insisted on proceeding in the absence of the missing
    transcripts. As the appeal judge ruled:

The [father] is not seeking an adjournment. The [father] has
    not provided the full transcripts as requested to do so in my endorsement of
    November 20, 2018. As a result, a complete record for this appeal has not been
    advanced nor completed.
Based on the material before me, I conclude that the
    appeal has no merit and is therefore dismissed
. [Emphasis added.]

[5]

The appeal judge ordered that the father pay the mothers costs in the
    amount of $2,500.

[6]

The father appeals on the basis that he was denied procedural fairness,
    arguing that the appeal should have been adjourned so that transcripts could be
    obtained. Moreover, he complains that the reasons of the appeal judge do not
    explain why she considered the appeal to have no merit. We reject both
    arguments.

[7]

Although it would have been open to the appeal judge to have adjourned
    the appeal once again, and it would appear that she was prepared to do so, the
    father wished to proceed without complying with the appeal judges previous
    direction to obtain transcripts. It is not open to the father to now argue that
    the appeal judge should have granted a further adjournment to give him another
    opportunity to obtain these materials.

[8]

The father asserts that the appeal judge failed to give sufficient
    reasons for her decision to dismiss the appeal. This ground was not raised in
    his Notice of Appeal. Nevertheless, as the appeal judge explained, based on the
    materials before her, the appeal had no merit. There was no basis to disturb
    the custodial/access arrangements reflected in the order of Murray J.,
    confirmed by Finlayson J. The father does not contend that the appeal judge
    erred in reaching this conclusion.

[9]

The appeal is dismissed. The father will pay costs in the amount of
    $2,000, inclusive of disbursements and taxes, to Legal Aid Ontario.

Alexandra Hoy A.C.J.O.

G.T.
    Trotter J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Global Fund Holdings, Corp. v. Hines, 2019 ONCA 621

DATE: 20190722

DOCKET: C66116

Hoy A.C.J.O., Trotter
    and Jamal JJ.A.

BETWEEN

Global Fund Holdings, Corp.

Plaintiff

(Respondent)

and

Kenneth Hines

Defendant

(Appellant)

Evan Moore, for the appellant

Lisa Corne, for the respondent

Heard: July 17, 2019

On appeal from the order of Justice Peter J. Cavanagh of
    the Superior Court of Justice, dated October 1, 2018.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow. These are our reasons.

[2]

This appeal arises from an order enforcing a Settlement Agreement in the
    amount of USD $200,000.

[3]

In the underlying action, Global Fund Holdings, Corp. (Global) sued Kenneth
    Hines (Hines), alleging that, on the basis of Hines fraud and false
    pretences, Global advanced USD $500,000 to him in order to purchase shares in a
    Panamanian company. It was an alleged sham.

[4]

After the parties commenced settlement negotiations, Hines learned that
    Global had caused criminal charges to be brought against him in Panama. The
    prosecutor in Panama sent a detention order (equivalent to an arrest warrant in
    Canada) to the National Police of Panama and the National Migration Service of
    Panama. As a result of these charges, the following condition was included in
    the Settlement Agreement that was ultimately entered into:

10.     Upon receipt of a
written confirmation from the prosecutor
    in Panama, which confirms that the desist of the pretension of the punitive
    claim has been duly filed at the Panama Penalty Court of Law and that all
    charges

against Hines
, LS2027, or the Board of Directors of LS2027
    for any matters arising from the dealings with, or complaints made by, Global,
    Inspirata, Trade Finance Solutions, or Michael Weingarten, and any of their
    related companies, subsidiaries, employees, officers, directors, assigns, or
    representatives, as the case may be,
are dismissed or withdrawn
, Hines
    hereby irrevocably instructs PDC to pay the sum of USD $200,000 to Global.
    [Emphasis added.]

PDC is the acronym for the Ontario law firm of
    Prouse, Dash & Crouch, LLP.

[5]

Counsel for Global provided documentation to Hines counsel from the Panama
    Court to prove that the criminal action against Hines was declared as
    extinguished. Relying on the precise wording of paragraph 10, Hines insisted
    on written confirmation from the prosecutor in Panama. On July 30, 2018,
    counsel for Global sent an email to Hines counsel attaching written
    confirmation from the Prosecutor of Panama that no criminal charges were being proceeded
    with against Hines. Global demanded payment of the USD $200,000.

[6]

Hines resisted again, this time because of the existence of the
    outstanding detention order/arrest warrant. According to evidence filed on the
    motion, the declaration of the Panama Court had not been sent to the National
    Police of Panama or the National Migration Service of Panama. Consequently,
    Hines was at risk of arrest if he entered Panama. On this basis, he claimed
    that the condition in paragraph 10 of the Settlement Agreement had not been
    satisfied.

[7]

The motion judge approached the interpretation of paragraph 10 of the
    Settlement Agreement with the goal of discerning the objective intentions of
    the parties: see
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at paras. 50-55. He concluded that the condition was
    satisfied when the prosecutor in Panama provided written confirmation that the
    charges against Hines were at an end. The motion judge said, in part:

There is no language in paragraph 10 that provides for an
    additional condition that Global must take steps to ensure that the Panama Courts
    withdrawal of charges is communicated by it to Panamas National Police or
    National Immigration Service.

When I consider the surrounding circumstances that existed at
    the time of the execution of the Settlement Agreement, I am unable to conclude
    that there is any evidence of such circumstances that should cause me to
    deviate from the text of paragraph 10 of the Settlement Agreement and introduce
    an additional condition that would require Global to take steps to ensure that
    any arrest warrant that was issued in relation to the charges had been
    withdrawn.

[8]

Based on this interpretation, the motion judge made an order enforcing
    the Settlement Agreement. Moreover, he declined to exercise any residual
    discretion not to enforce the Settlement Agreement because of the outstanding detention
    order/arrest warrant.

[9]

The appellant submits that the motion judge misapprehended the evidence
    thereby giving rise to a palpable and overriding error in his interpretation of
    the Settlement Agreement. It is his position that based on his evidence filed
    on the motion, he always contemplated, and it was important to him that, in
    addition to the charges being discontinued against him, there be no detention
    order/arrest warrant outstanding. He asserted that he would never have signed
    the Settlement Agreement had he been aware that this was not the case.

[10]

When
    Hines entered into the Settlement Agreement, he was represented by counsel,
    both in Canada and Panama. The existence of the detention order/arrest warrant
    was known at the time. He asserts that it was common ground between the parties
    that the criminal charges encompassed the detention order/arrest warrant. The
    motion judge rejected this interpretation, noting that there is no reference to
    this document in the Settlement Agreement. It may have been open to Hines to
    insist on a version of paragraph 10 that addressed the detention order/arrest
    warrant. He did not. Moreover, Hines grievance stems from what appears to be
    an administrative glitch in terms of one Panamanian agency communicating
    information to other agencies. In all of the circumstances, we are of the view
    that the motion judge committed no error in interpreting the Settlement
    Agreement in the manner that he did. His decision is entitled to deference on
    appeal:
Sattva
, at para. 52.

[11]

This
    ground of appeal is dismissed.

[12]

The
    appellant brings a motion to adduce fresh evidence. Some of this evidence was
    available at the time that the motion judge made his decision. It could have
    been obtained with due diligence. For this reason, it is inadmissible: see
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759, at p. 775 and
Sengmueller v.
    Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at pp. 210-211.

[13]

The
    rest of the purported fresh evidence consists of letters from the Panama Court
    to the National Police of Panama or the National Migration Service of Panama informing
    those agencies of the termination of the proceedings against Hines that were
    sent after the motion judge made his decision. In this sense, the evidence
    might be considered fresh because it did not exist at the time of the motion.
    However, this aspect of the fresh evidence application must fail because the
    evidence does not bear upon a decisive or potentially decisive issue on the
    motion and cannot, when taken with the other evidence adduced [on the motion],
    be expected to have affected the result:
Palmer
, at p. 775. In short,
    whether the agencies had already been informed that the prosecution of Hines
    was at an end was irrelevant to the motion judges interpretation of the
    Settlement Agreement.

[14]

The
    application to adduce fresh evidence is dismissed.

[15]

The
    appeal is dismissed. The respondent is entitled to its costs in the amount of $13,000,
    inclusive of taxes and disbursements.

Alexandra Hoy A.C.J.O.

G.T.
    Trotter J.A.

M.
    Jamal J.A.