DIVISIONAL COURT FILE NO.: 646/15
LTB FILE NO. TSL 17126-11/ 26309-12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Gordon, Kiteley and Wilton-Siegel JJ.
BETWEEN:
Toronto Community Housing Corp.
Landlord/Respondent in Appeal
– and –
Francine Zelsman
Tenant/Appellant
Christine Henderin, for the Landlord/Respondent
Joseph Kary, for the Tenant/Appellant
HEARD: June 7, 2017
KITELEY J.
1This is an appeal by the tenant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) from two orders of the Landlord and Tenant Board (“Board”): the order dated September 24, 2015 terminating the appellant’s tenancy unless the tenant paid $25,000 representing rent arrears up to the limit of the Board’s monetary jurisdiction; and the order dated October 28, 2015 denying the tenant’s request for a review of the September 24, 2015 order.
2The appellant asks for an order setting aside the decisions of the Board. The respondent asks that the appeal be dismissed with costs payable on a partial indemnity scale. For the reasons that follow, the appeal is dismissed.
Background
3Toronto Community Housing Corporation (“TCHC”) is a residential landlord that provides a mix of subsidized rental accommodation in accordance with the Housing Services Act, 2011, S.O. 2011, c.6, Sched. 1 (“HSA”) namely affordable rental accommodation in accordance with agreements with the City of Toronto and unsubsidized market rate accommodation.
4The affordable market program is distinguished from the rent-geared-to-income housing subsidy (“RGI”). The affordable market program is not administered under the HSA and the rent is set at or below average market rent.
5The appellant was approved for RGI subsidy for a one bedroom unit at 389 Church Street and on or about December 9, 2010, the Appellant entered into and signed a lease agreement for that unit pursuant to which the Appellant was required to pay rent and utilities totalling $139 per month.
6Shortly after signing the lease and before moving in, the appellant requested a transfer from the Church Street unit after seeing notices of an e-coli breakout at the building. The appellant sought the assistance of her MPP to request a transfer to another TCHC building.
7TCHC agreed to assist the appellant in her search for another unit within its portfolio that would meet the appellant’s medical needs. Barry Thomas, the Operating Unit Manager for TCHC met with the appellant to view vacant units. One of the units was a 2 bedroom unit at 1 Oak Street. Mr. Thomas advised the appellant that it was not an RGI unit but an affordable market unit and that she would not qualify for this unit on her own.
8The appellant wanted to transfer from the Church Street unit to the Oak Street Unit as she thought it met her needs. She suggested that she would have her daughter sign the lease in order to qualify for the Oak Street unit. The parties agreed that the appellant’s daughter would be named as a tenant on the lease. On December 17, 2010, TCHC and the appellant entered into a lease agreement for unit 407 at 1 Oak Street as an affordable market rent unit in the amount of $1063 for rent and $43 for utilities for a total of $1106 per month commencing January 31, 2011. The appellant’s daughter did not sign the lease at the time or subsequently. The appellant took possession almost immediately.
9The appellant was involved in a law suit in which she was suing an insurance company. The evidence is not clear whether she raised it before or immediately after she took possession, but there is evidence that she asserted that arrears of market rent would be paid out of the proceeds of that proceeding. In a letter dated June 20, 2011, her lawyer confirmed in writing to TCHC that she would arrange for the appellant to sign an irrevocable direction to ensure that any proceeds were paid to the lawyer so that the lawyer would pay TCHC directly for the arrears of rent. There is no evidence that any proceeds were paid by the insurance company.
10After the appellant moved in, TCHC Tenant Services Coordinator sent a letter to her dated February 8, 2011 on which the appellant relies in asserting her claim to estoppel:
. . . Your tenancy has been unique since you were moved into a unit which was designated market rent but you should be in a subsidized unit (also known as rent-geared-to-income). Under a subsidized rental plan, you should be paying $152.00 per month ($109 based on ODSP for one person and $43.00 for utilities).
However, as your unit is not designated as rent geared to income, the rent is set at a flat $1,106 per month.
What we need to do is convert your apartment into a subsidized unit by taking a rent-geared-to-income unit and switching it with yours. This means you would remain in your unit but the ratio of market and rent-geared-to-income units would remain the same according to the Social Housing Reform Act.
For now, therefore, you need to pay rent for January and February 2011 ($152.00 x 2 months = $304.00) and we are working on getting the unit switched over. . . .
11TCHC subsequently informed the appellant that the Oak Street Unit could not be converted and that it remained at the affordable market rate set out in the lease agreement.
Landlord’s Application for possession
12TCHC issued Form N4 Notice to End a Tenancy Early for Non-payment of Rent dated April 18, 2011 which indicated that the appellant was in arrears of rent for the months of January to and including April 2011 in the amount of $4,424. There is no evidence on behalf of TCHC as to the date when the appellant was informed in writing that the Oak Street Unit could not be converted. However, based on the issuance of the Form N4 Notice, it is a clear inference that it was before April 18, 2011.
13On June 17, 2011 TCHC filed Form L-1 Application to Evict a Tenant for Non-payment of Rent and to Collect Rent which indicated that the appellant was in arrears of rent for the months of January to and including June 2011 in the amount of $6,636.
14The appellant responded by applying for an order determining that the landlord had collected or retained money illegally; harassed, obstructed, coerced, threatened or interfered with the tenant; substantially interfered with her reasonable enjoyment of the unit; withheld or deliberately interfered with the reasonable supply of a vital service and other claims.
15The combined applications were heard on August 29, 2012, October 12, 2012, December 12, 2012, March 6, 2013, October 1, 2013, January 22, 2014, July 23, 2014 and October 17, 2014. At the hearing on January 9, 20151 the appellant asked the Board to allow her to withdraw her application which the Board ordered pursuant to s. 200(4) of the RTA. The final day of the hearing was July 21, 2015.
16After hearing closing submissions and before rendering her decision, the adjudicator reconvened the hearing on September 11, 2015 to focus on whether the tenant had received annual notices of rent increase.
The Decision dated September 24, 2015
17The main issues in dispute were whether there was a valid lease agreement in place and whether rent charged pursuant to that lease and subsequent rent increases were lawful.
18On September 24, 2015, the Board issued a decision in which the Board noted that the matter had been before the Board approximately 17 times; the hearing had been adjourned many times at the request of the tenant; the tenant asked to withdraw her application and it was withdrawn; the landlord abandoned the claim in excess of $25,000 pursuant to s. 207(1) of the RTA. The Tribunal noted that the tenant did not dispute that she was in arrears of rent. However, she took the position that she was in a rent-geared-to-income unit and the rent should be $152 per month.
19The Board held as follows:
- The dispute between the parties is about the monthly rent. Section 203 of the Residential Tenancies Act, 2006 (the ‘Act’) states:
The Board shall not make determinations or review decisions concerning,
(a) eligibility for rent-geared-to-income assistance as defined in section 38 of the Housing Services Act, 2011 or the amount of geared-to-income rent payable under that Act; or
(b) eligibility for, or the amount of, any prescribed form of housing assistance.
If the Tenant disputed her eligibility for or the amount of rent, her remedy would have been to exercise her rights under the Housing Services Act, 2011. It was not clear whether the Tenant has done so. There was evidence before me that in February 2011 the Tenant was advised that her unit was market rent but the Landlord was working to convert the unit to a subsidized RGI unit. The unit was not converted and the Tenant was advised that the unit remained at market rent.
If the Tenant did not pursue her remedies with respect to the Housing Services Act, 2011, that is her choice but it does not give the Board jurisdiction it would otherwise not have.
Section 203 is an absolute bar to doing what the Tenant wants: namely, declaring the Tenant’s unit to be RGI. It is not. She signed a lease for a market rent unit. It has never been approved as a rent-geared-to-income unit. The Tenant must live by that choice.
Although the Board has no jurisdiction to determine the amount of rent-geared-to-income, it must determine the amount of rent owing on an arrears application.
20The Board accepted and relied on the evidence on behalf of TCHC as to annual rent increases and at paragraphs 17 to 21, the Board decided that the rent charged for the period ending September 30, 2015 was $65,985 less payments the appellant had made in the amount of $5,831 plus costs incurred by TCHC in filing the application of $170 with the appellant owing $60,324. At paragraph 22 the Board noted that it had jurisdiction up to $25,000 and accordingly made an order that the appellant pay $25,000.
21As required, the Board considered all of the disclosed circumstances and found that, pursuant to s. 83(1)(b), it would not be unfair to the landlord to postpone the eviction until November 30, 2015.
The Review Order dated October 28, 2015
22On behalf of the appellant, Mr. Kary filed a Request to Review an Order in which he listed the errors made by the adjudicator as follows:
(a) she failed to adjudicate on a question properly before her – whether or not the landlord made a binding representation that she should be paying RGI rent – because the adjudicator misinterpreted s. 203 of the RTA;
(b) she failed to consider relevant evidence under s. 82 of the RTA;
(c) she misinterpreted the rules concerning deemed service [i.e. s. 191] leading to an unjust legal proposition that a notice can be valid and binding even though there is no effective service of the notice.
23In the Review Order dated October 28, 2015, the Member held that she was not satisfied that there was a serious error in the order or that a serious error occurred in the proceedings; that the Board’s interpretations of s.191(1) and s.203 were not unreasonable; that an interpretation of law will only be disturbed upon review if found to be unreasonable. The Member denied the request to review and confirmed the order.
Appeal
24The Notice of Appeal is dated November 30, 2015 in which Mr. Kary set out five grounds of appeal. The Supplementary Notice of Appeal is dated September 21, 2016 and it refers to four further grounds including the assertion that the adjudicator erred in failing to find that the landlord was estopped from charging the rent claimed, due to representations made by it to the tenant that she should pay a substantially lower monthly rent.
25As a result of the filing of the appeal, the order for possession was stayed.
26At the hearing, counsel for the TCHC provided a supplementary affidavit sworn June 6, 2017 indicating that the arrears of rent at the current rate of $1,232 per month totalled $84,011. While Mr. Kary objected to the filing of that supplementary affidavit, the court ought to have current information with respect to the outstanding rent. There is no prejudice to the appellant because the jurisdiction of the Board does not exceed $25,000.
Issues in the appeal
27Based on his factum and submissions, Mr. Kary identified the issues as follows:
(a) whether the respondent is estopped from enforcing the rent set out in the Lease Agreement originally in the amount of $1106 per month after making representations to the appellant that she could pay a lower rent and that the appellant relied upon when moving into the unit;
(b) whether the rent was lawfully increased;
(c) whether the Board had the power to determine what rent should be paid;
(d) whether the Board erred in holding that s. 191 of the RTA deems notice of document to be validly served if delivered by mail;
(e) whether the Board abdicated its jurisdiction when it applied an overly deferential standard of review to the order dated September 24, 2015.
28The first four of those relate to the decision of the Board dated September 24, 2015 and the fifth relates to the Review Order. The issue of estoppel is key to the appeal.
Jurisdiction and Standard of Review
29Pursuant to s. 210(1) of the RTA, a statutory right of appeal lies from a decision of the Board on questions of law. The Court of Appeal has held that the Board is charged with administering a specialized adjudicative regime for resolving disputes with which it has particular familiarity, when it is interpreting its “home statute” or making determinations with respect to its core functions, and as such, the deferential standard of reasonableness applies to its decisions.2
30In Dunsmuir v. New Brunswick3 the Supreme Court held that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
31Questions of sufficiency of evidence or credibility, being questions of mixed fact and law, are not reviewable on appeal.4
Analysis
A. Whether the respondent is estopped from enforcing the rent set out in the Lease Agreement originally in the amount of $1106 per month after making representations to the appellant that she could pay a lower rent and that the appellant relied upon when moving into the unit and
C. Whether the Board had the power to determine what rent should be paid
32As indicated in paragraph 32 of the factum, the appellant takes the position that “the landlord told her what to pay, she took the apartment on that basis, she was told after she moved in to pay the reduced rent, and the landlord cannot retroactively increase the rent by 600% more than four months after she moved in”.
33The Supreme Court summarized the elements of promissory estoppel as follows:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position.5
34In Re Med-Chem Health Care Inc.6 Swinton J. held that there must be a clear and unequivocal promise or assurance that strict legal rights will not be relied upon, an intention to affect legal relations, and reliance on the promise or assurance.
35In Deloitte & Touche LLP7 Hood J. held at paragraph 24 that the “promise” on which the plaintiff relied was so unclear that it could not have affected the legal relationship between the parties. At paragraph 30, he observed that it was not a “final and irrevocable promise”.
36Applying those principles, I reject this ground of appeal for these reasons.
37First, the issue of estoppel was not raised before the Board. Mr. Kary conceded that there was nothing in the decision of the Board that identified promissory estoppel as an issue. He suggested that the Board “talked around it” in paragraphs 4 and 5 quoted above. Mr. Kary also referred to the evidence as follows:
(a) pages 37 – 46 of the transcript of the hearing on August 29, 2012 which contains the evidence of the Manager for TCHC on the subject of the letter dated February 8, 2011. At page 47, the Board member pointed out the lease dated December 17, 2010 and the letter dated February 8, 2011 and she asked “which takes precedence?” The Board granted an adjournment so that TCHC could search for and produce any relevant emails.
(b) page 82 of the transcript of the hearing on January 9, 2015 in which the agent for TCHC reiterated the point made in October 2013 which was that the Board should find that the letter dated February 8, 2011 “does not trump a lease and that the, the contract is the lease agreement and that’s what she’s bound by, and that letter that’s sent does not trump the lease”.
38None of the passages referred to by Mr. Kary demonstrate that the issue of promissory estoppel was before the Board at any point in the 17 days of hearings. The appellant is precluded from asserting a fresh legal position in this court absent an evidentiary record.
39In reply submissions, Mr. Kary pointed out that in her factum8 counsel for TCHC appeared to acquiesce that estoppel had been an issue before the Board. However, in her oral submissions counsel had taken the position that the issue had not been before the Board. I agree that those paragraphs might suggest acquiescence but her oral submission takes precedence, particularly given Mr. Kary’s concession that the most that could be argued is that the Board “talked around it”.
40Second, because it was not raised before the Board there is a limited evidentiary record on which this court could make its own findings as to reliance and change in position. Counsel asserts that the appellant relied on the promise or assurance when she moved in. However, contrary to the articulation of the evidence referred to in paragraph 32 above, the uncontradicted evidence is that she entered a lease agreement based on market rent and she moved in and took possession months before the letter dated February 8, 2011. Furthermore, there is no evidence that she altered her position as a result of the letter. The limited evidence does not support the appellant’s assertion of estoppel.
41Third, the letter dated February 8, 2011 does not contain a clear and unequivocal representation. The most that can be said is that TCHC indicated that it would try to convert the unit in which she was living to an RGI unit and that in the immediate two months she should pay rent as if it were an RGI unit. As indicated above, the ongoing communications about the law suit and the letter from her lawyer dated June 10, 2011 ( presented after the Form N4 and before the Form L-1) make it clear that the appellant was aware that the letter dated February 8, 2011 was not a clear and unequivocal representation. The letter dated February 8, 2011 cannot be relied on as a promise that estops the respondent from relying on the terms of the lease agreement dated December 17, 2010.
42Fourth, while the issue of the amount of rent to be paid by the Tenant was before the Board, that does not mean that there was an obligation on the Board to characterize and analyze the position taken by the Tenant as promissory estoppel. The Board is expected to be familiar with its own statute. But in the circumstances of this case, the Board is not expected to consider whether a dispute about the amount of rent should be analyzed in the context of contract law. The Tenant did have an agent acting for her for much of the hearing, including on the days that the issue of the amount of rent was considered. The Board is not expected to go beyond whatever legal assistance the Tenant had and raise whether the facts as discussed (the lease agreement vs. the letter dated February 8, 2011) should be analyzed in a different legal context.
43Fifth, the Board’s determination that the Lease Agreement dated December 17, 2010 was valid is a decision of mixed fact and law which is not reviewable on appeal.
44I am not persuaded that the Board erred in law in failing to hold that the TCHC was estopped from seeking enforcement of the lease agreement dated December 17, 2010.
45The related issue is the application of s. 203. At paragraphs 4-7 of the decision referred to above, the Board held that it had no jurisdiction to make determinations concerning eligibility for rent-geared-to-income assistance. And at paragraph 8 the Board held that its jurisdiction was to determine the amount of rent owing pursuant to the valid Lease Agreement. That is a correct interpretation of s. 203. I am not persuaded that the Board erred in law in coming to those conclusions.
B. Whether the rent was lawfully increased and
D. Whether the Board erred in holding that s. 191 of the RTA deems a notice or document to be validly served if delivered by mail
46As indicated at paragraph 35 of the factum, the appellant takes the position that the lawful rent for the first rental period under a new tenancy agreement is the rent first charged to the tenant which counsel argued was $152 as indicated in the letter dated February 8, 2011.
47Having found that the tenant had entered into a lease for a market rent unit at $1106 per month, the Board held that pursuant to s. 113, the lawful rent was $1106 per month. That was a determination of mixed fact and law which is not reviewable on appeal. In any event, that determination is consistent with the evidence. I am not persuaded that the Board erred in law in finding that the lawful rent was $1106 per month.
48There is a related issue as to whether TCHC served notice of rent increases. As indicated above, after closing submissions and before rendering her decision, the Board reconvened the hearing to hear evidence on that issue. The Tenant gave evidence that she had not received the notices. The evidence on behalf of TCHC was that the notices had been given out to a third party mailing service.
49The Board held as follows:
The issue of service is not whether the Tenant received the notices. Rather, the issue is whether the Landlord served them.
Subsection 191(1) of the Act says that a document like a notice of rent increase “is sufficiently given to a person” by way of a number of permissible methods including many methods other than personal service. Some of those permissible methods are listed in the Act and some can be found in the Board’s Rules. What subsection 191(1) means is that a [sic] long as someone like the Landlord in this case sends the document to the Tenant by one of the permissible methods, then under the Act the Tenant has been served whether she actually received the document or not because it was “sufficiently given” if served in accordance with section 191.
This interpretation of subsection 191(1) is supported by the other provisions of the section. Subsection 191(3) says when a notice is served by mail (which is a permissible method of service) it is deemed to have been received five days after mailing. Clearly, it is not unknown for individuals not to receive things that are mailed to them but under subsection 191(3), as long as it was mailed the recipient is deemed to have received it. Subsection 191(2) says that when a notice is not given in accordance with one of the permissible methods it “shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period”. In other words the only time the Landlord has to establish the Tenant actually received the notice of termination is when it fails to use one of the methods of service that are permissible under the Act and Rules. As such, the Landlord does not have to establish the notice was received if properly served.
Given the testimony of ME, I find it more likely than not, the Landlord served the Notices of Rent Increase for 2013, 2014 and 2015. I would also note that it was the Tenant who produce the NORI dated December 21, 2011, the notice saying that the rent had decreased. That is consistent with the Landlord’s evidence of mailing.
50Those paragraphs reflect the analysis by the Board of sections of its home statute and rules. I am not persuaded that the Board erred in law in the interpretation of s. 191. Furthermore, the decision as to service of the notices in this case was a decision of mixed fact and law which is not reviewable on appeal.
E. Whether the Board abdicated its jurisdiction when it applied an overly deferential standard of review to the order dated September 24, 2015
51Rule 29 provides that a party to an order may file a written request to review and must provide “sufficient information to support a preliminary finding that the order or decision may contain a serious error or that a serious error may have occurred in the proceedings”. Unless the Member determines that the order may contain a serious error or that a serious error may have occurred in the proceedings, the Member shall deny the review request without a hearing. The Board’s Interpretation Guideline 8 – Review of an Order, sets out the factors that the Board will consider when assessing whether there has been a “serious error”.
52The Board conducted a preliminary review of the review request without a hearing and denied the request with these reasons:
Regarding section 191, the Member set out her reasoning in some detail, concluding that a party need not prove that a document was actually received unless it is served by a means other than those permitted by the Act and the Board Rules. If the Board is satisfied the document, in this case, notices of rent increase, was served by one of the permitted means, then it has been sufficiently given”. This is a reasonable interpretation of section 191(1) and (2).
Similarly, it was not unreasonable of the Member to conclude on the basis of section 203 of the Act, which provides that the Board shall not make determinations or review decisions concerning eligibility for or the amount of geared-to-income rent, that the Board was without jurisdiction to determine whether the Tenant was entitled to geared-to-income rent.
An interpretation of law will only be disturbed upon review if it is found to be unreasonable.
I am unable to conclude that the Member’s interpretation of either provision is unreasonable.
53The appellant takes the position that the Board has established a standard of review so deferential that review is often a pointless exercise, so that the right of review at the Board is often narrower than the right of review on an appeal to the Divisional Court.
54As the respondent pointed out, the Board’s Interpretation Guideline 8 includes the following factor:
. . . the Board will not normally review a reasonable interpretation of the statute by a Member, even if the interpretation differs from that of the reviewing member.
55The Review Order demonstrates the application of rule 29 and the Interpretation Guideline. I am not persuaded that the Board erred in law in denying the review request.
Conclusion
56The decision of the Board meets the standard contemplated in Dunsmuir in that it reflects justification, transparency and intelligibility and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. I am not persuaded that the Board erred in law and accordingly the appeal must be dismissed.
57At paragraph 28 of the decision, the Board exercised its discretion pursuant to s. 83(1)(b) of the RTA and directed that the Tenant move by November 30, 2015, or roughly 60 days after receipt of the decision. If the appeal is dismissed, Mr. Kary asked that the court extend the appellant’s possession for 6 months. On behalf of TCHC, counsel observed that the appellant has had possession for almost 6 years and that 60 days would again be reasonable.
58The appellant has had the benefit of possession for almost 24 months since the decision was released. I am not persuaded that the Board error in postponing the eviction for 60 days and accordingly, a similar disposition will apply to this decision.
Costs
59At the conclusion of submissions the court reserved decision but called on counsel for submissions as to costs. Mr. Kary provided a bill of costs that included 91.7 hours at $375 per hour for total fees of $34,387.50 plus approximately $450 in disbursements along with HST in the amount of $45.28 for a total of $39,361.75. Mr. Kary asked for partial indemnity costs at 60% of his hourly rate. If so, 60% of $375 is $225 x 91.7 = $20,632.50 plus disbursements and HST.
60Ms. Henderin provided a bill of costs that reflected 25 hours at a partial indemnity rate of $135 and an actual rate of $225. The total fees at the partial indemnity rate were $3,375 and, with disbursements and attendance fee, the total was $3,933.90.
61The appellant has not been successful and accordingly the respondent is entitled to costs on a partial indemnity basis. The bill of costs provided on behalf of TCHC is reasonable and proportionate to the issues in the case.
ORDER TO GO AS FOLLOWS:
62The appeal is dismissed.
63If the tenant does not vacate the unit on or before October 31, 2017, then starting November 1, 2017 the landlord may file the order of the court with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
64Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord, on or after November 1, 2017.
65Counsel for the respondent may take out this order without approval by counsel for the appellant as to form and content.
66The appellant shall pay partial indemnity costs to the respondent in the amount of $3,933.90.
Kiteley J.
I agree _______________________________
R. Gordon R.S.J.
I agree _______________________________
Wilton-Siegel J.
Released: September 08, 2017
CITATION: Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289
DIVISIONAL COURT FILE NO.: 646/15
DATE: 20170908
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Toronto Community Housing Corp.
Landlord/Respondent in appeal
And
Francine Zelsman
Tenant/Appellant
REASONS FOR JUDGMENT
Released: September 08, 2017
Footnotes
- Page 62 of the transcript
- First Ontario Realty Corporation v. Deng, 2011 ONCA 54 at paras. 16-22.
- [2008] 1 S.C.R. at paras. 49, 51-64
- Canada (Director of Investigation & Research) v. Southam Inc. [1997] 1 S.C.R. at para. 35
- Maracle v. Travellers Indemnity Company of Canada 1991 58 (SCC), [1991] 2 S.C.R. 50 at para. 13
- [2000] O.J. No. 4009 at para 7
- Deloitte & Touche LLP v. Kuiper, 2015 ONSC 7770
- paragraphs 10 and 17-19