Court of Appeal for Ontario
Date: 2018-07-25
Docket: C63305 and C63351
Judges: Doherty, Brown and Nordheimer JJ.A.
Parties
Between
David Schnarr, Plaintiff (Respondent)
and
Blue Mountain Resorts Limited, Defendant (Appellant)
AND BETWEEN
Elizabeth Woodhouse, Plaintiff (Appellant/Respondent by cross-appeal)
and
Snow Valley Resorts (1987) Ltd. aka Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350 Ontario Ltd., Defendants (Respondents/Appellants by cross-appeal)
Counsel
John A. Olah, for the appellant, Blue Mountain Resorts Limited
Edward Chadderton and Jeffrey Belesky, for the respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka Snow Valley (Barrie), Snow Valley Barried, Snow Valley Ski Resort, Snow Valley, and 717350 Ontario Ltd. (collectively, "Snow Valley")
Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for the respondent, David Schnarr and for the appellant/respondent by cross-appeal, Elizabeth Woodhouse
Hearing and Appeal
Heard: February 7-8, 2018
On appeal from: The orders of Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.
Addendum
[1] On March 28, 2018, this court released its decision allowing both appeals and the cross-appeal, setting aside the two orders below, and remitting the matters back to the Superior Court of Justice to proceed in accordance with this court's reasons.
[2] Subsequent to the release of our reasons, counsel advised in writing that certain issues had arisen with respect to taking out the formal orders. Specifically, three issues were of concern:
Whether the "no order as to costs" provision could incorporate both the parties and the interveners or whether they had to be dealt with separately.
Whether the court's conclusion regarding s. 93(2) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A should be reflected in the formal order.
Whether the court's conclusion regarding the effect of the respective waivers should be reflected in the formal order and, if so, how that conclusion should be worded.
[3] In terms of the first issue, we would agree with counsel that the "no order as to costs" can be reflected in the orders as relating to both the parties and to the interveners, but for a separate issue that we identify below. If all of the costs had been determined at the same time, a simple provision that there be no order for costs of the appeal either for or against any party including the interveners would suffice.
[4] The second and third issues can be dealt with together. The simple answer to those issues is that neither of these conclusions ought to be reflected in the formal order. A formal order reflects the ultimate disposition of a proceeding. It does not reflect the reasons for that disposition. Absent a request for a formal declaration, conclusions regarding issues raised in a proceeding ought not to be reflected in the formal order. For example, if a court concludes that the defendant was negligent and awards damages as a consequence, the formal order does not say that the defendant was negligent. It simply says that the defendant is ordered to pay to the plaintiff damages in a set amount.
[5] In this case, therefore, the formal order ought not to reflect the interpretation that this court applied to s. 93(2) nor should it reflect the conclusion that we reached regarding the applicability of the respective waivers. Those conclusions are reflected in our reasons and the parties can make submissions as to the consequences of those conclusions if, and when, necessary as the proceedings continue. Indeed, we note that counsel appear to be in agreement that it is open to the plaintiffs to make other arguments as to why they might not be bound by the waivers. All that the formal orders will record is that the appeals (and cross-appeal) were allowed and the matters remitted back to the Superior Court of Justice.
[6] The other issue regarding costs, that we alluded to above, arises from the draft orders submitted by counsel. On April 25, 2018, this court released its decision regarding costs as between the parties. Our March 28, 2018 reasons had dealt with costs as they related to the interveners. Our decision on costs is a determination separate and apart from the determination of the merits of the appeals (and cross-appeal). Counsel have drafted a single order incorporating both the date of the merits decision and the date of the costs decision. That is improper. Rather, what is required is for two formal orders to be taken out. The first order should deal with the merits, and the costs as they relate to the interveners, and the second order should deal with the issue of costs as they relate to the parties, with each order bearing the respective date when those decisions were released.
[7] With these directions, we assume that counsel will now be able to redraft the formal orders accordingly and have them taken out. However, if further issues remain, counsel can arrange an appointment with Justice Nordheimer to settle the orders.
"Doherty J.A."
"David Brown J.A."
"I.V.B. Nordheimer J.A."