CITATION: Dean v. 3150 Hawthorne Road Ltd., 2023 ONSC 3576

DIVISONAL COURT FILE NO.: DC-22-2725

DATE: 2023/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ELLIES R.S.J., SACHS AND GIBSON JJ.

BETWEEN:

ANNABELLE RETA HAZEL DEAN, AUSTIN JOSEPH ERNEST MACDONALD, CODY JESSE JASON DEAN, (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), KELLY JEAN ANNABELLE MACDONALD (by her litigation guardian, ANNABELLE RETA HAZEL DEAN), COOPER BARRY JAMES MACDONALD (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), BOWEN JEREMY MATTHEW DEAN MELARKAY (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), and CALVIN MARK AUSTIN MACDONALD (by his litigation guardian, ANNABELLE RETA HAZEL DEAN)

Applicants

– and –

3150 HAWTHORNE ROAD LIMITED

Respondent

Michael Switzer, for the Applicants

Ashlee Barber, for the Respondent

HEARD: At Ottawa on June 1, 2023, via videoconference

REASONS FOR DECISION

Ellies R.S.J.:

OVERVIEW

[1] The applicants seek judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal ("the Tribunal"). The Tribunal held that the applicants are precluded from suing the respondent ("Hawthorne") for personal injuries sustained by Annabelle Reta Hazel Dean at her workplace because both her own employer and Hawthorne are Schedule 1 employers under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. ("the Act"). The applicants challenge the Tribunal's decision and a subsequent reconsideration decision affirming the decision on the basis that both were unreasonable.

[2] For the following reasons, I would dismiss the application.

BACKGROUND

[3] Hawthorne owns a building located at 3150 Hawthorne Road in Ottawa, which it leases to Orleans Fresh Fruit Company ("Orleans"). Orleans is the sole tenant of the building, which houses Orleans' head office, warehouse, and other facilities pertinent to its operations as a fresh fruit and vegetable wholesaler. However, Orleans and Hawthorne are closely related companies and Hawthorne also has its head office in the building.

[4] Ms. Dean was an employee of Orleans. On December 5, 2016, she sustained serious personal injuries when she slipped and fell on her way back into her place of employment after having a cigarette outside in an area designated by her employer for that purpose. Following the accident, Orleans completed a claim for benefits under the Act on Ms. Dean's behalf. The Workplace Safety and Insurance Board ("the Board") accepted the claim and began to pay benefits to Ms. Dean.

[5] Later, Ms. Dean elected to commence a civil action against Hawthorne. Hawthorne's insurer applied to the Tribunal on Hawthorne's behalf for a declaration that Hawthorne was a Schedule 1 employer. Under the Act, the employee of a Schedule 1 employer cannot sue her own or any other Schedule 1 employer in respect of injuries sustained by the employee while the employee is in the course of her employment.

[6] There was no issue before the Tribunal that Ms. Dean was an employee of Orleans and that Orleans was a Schedule 1 employer. The issues before the Tribunal, therefore, were:

(1) whether Hawthorne was an employer;

(2) if so, whether Hawthorne was a Schedule 1 employer; and

(3) whether the injuries were sustained by Ms. Dean in the course of her employment.

[7] The Tribunal answered all three questions in the affirmative.

ISSUES

[8] The applicants contend that the Tribunal's decision was unreasonable because:

(1) it failed to take into account Hawthorne’s own position that it did not consider itself a Schedule 1 employer, a position that the Board has never challenged;

(2) the evidence before the Tribunal from the one witness who testified on behalf of Hawthorne did not support the Tribunal's finding that Hawthorne employed workers;

(3) the Tribunal’s finding that Ms. Dean’s injuries were sustained in the course of her employment was contrary to previous Tribunal decisions; and

(4) the Tribunal failed to give Ms. Dean the "benefit of the doubt", as required by the Act, before depriving her of her right to sue.

[9] As I will explain, I am unable to accept any of these submissions.

ANALYSIS

[10] As the applicants acknowledge, the standard of review of the Tribunal's decision is reasonableness. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, the Supreme Court of Canada made it clear that, in conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible, and justified.

[11] Reviewed against this standard, the Tribunal's decision was not only reasonable, but well-reasoned.

Hawthorne's Status as a Schedule 1 Employer

[12] The applicants rely on Vavilov as analyzed by this court in Morningstar v. WSIAT, 2021 ONSC 5576, at para. 43, in connection with all four issues raised in the present case. They contend that the Tribunal:

(i) made logical flaws in its reasoning;

(ii) failed to account for evidence to justify its decision in light of the factual matrix of the case;

(iii) failed to meaningfully grapple with the applicants' key arguments in the case;

(iv) took an approach to the interpretation of the Act that was inconsistent with the context and purpose of the legislation; and

(v) failed to consider the significant consequences to the applicants of its findings.

[13] With respect to the Tribunal's decision that Hawthorne is a Schedule 1 employer, the applicants submit that the Tribunal failed to consider Hawthorne's own position and that of the Board that Hawthorne is not a Schedule 1 employer. This submission fails for two principal reasons.

[14] First, there is no evidence that the Board has ever determined the status of Hawthorne as an employer. The most that can be said is that it has not yet required Hawthorne to be registered as such.

[15] Second, as the Tribunal correctly pointed out, where an employer's business activities are compulsorily covered in Schedule 1, it is considered to fall under the schedule even if it is not registered with the Board as such at the time of the accident: see, for example, Decision No. 334/07, 2007 ONWSIAT 570; Decision No. 2410/11, 2012 ONWSIAT 803; Decision No. 1504/12, 2013 ONWSIAT 1913; and Decision No. 1003/13, 2014 ONWSIAT 1114. The views of Hawthorne and the Board are immaterial: Decision No. 2410/11, at para. 52.

[16] It is important to understand that, while the Board has exclusive jurisdiction under s. 118(2) of the Act to determine whether an employer is a Schedule 1 employer, the Tribunal has exclusive jurisdiction under s. 31 of the Act to determine whether a worker's right to sue has been taken away. Further, under s. 123 of the Act, where the Board's determination of an employer's status as a Schedule 1 employer is challenged, the Tribunal has the power to make a final determination of the issue in that context, as well. The Tribunal was not required, therefore, to reconcile its decision with the views of Hawthorne or the Board.

[17] The Tribunal's task, instead, was to review the evidence as it related to Hawthorne's business activities and to determine whether those activities fell within Schedule 1 regardless of the view taken by either Hawthorne or the Board on the issue. This is exactly what the Tribunal went on to do after referring to the decisions of the Tribunal set out above.

[18] The Tribunal considered the evidence of M.H., Hawthorne's office manager, who testified that Hawthorne was a landlord. M.H. gave evidence that, in addition to the building occupied by Orleans, Hawthorne owned the adjacent property, which it leased to two tenants who were completely unrelated to Hawthorne. She testified that, with respect to both properties, Hawthorne was responsible for maintaining and repairing the buildings, the lawn, and the parking lots. Her evidence was that, although Hawthorne maintained the buildings, the tenants were responsible for maintaining their own leased premises.

[19] The Tribunal considered and rejected an argument by the applicants that, by requiring Orleans to pay for the costs of maintaining its own premises, Hawthorne could not be considered a landlord under Item 14 of Class 1 – Other Services of Schedule 1, in particular "operation of a building rented wholly or partly for manufacturing, retailing, wholesaling or warehousing". The Tribunal held that, contrary to the submissions made on behalf of the applicants, Orleans was not contractually responsible for all of the operating costs of the building it leased because Hawthorne continued to be responsible for any necessary repairs to the building, among other things. In any event, the Tribunal held that, having regard to the Board's Employer Classification Manual "Operators of Non-residential Buildings", which included property management companies employing maintenance help, Hawthorne was a Schedule 1 employer.

[20] There was nothing unreasonable in either the result or the reasoning that led the Tribunal to this conclusion. The Tribunal's decision on this issue was internally coherent and its analysis was a rational one, defensible on the facts and the law: Vavilov, at paras. 81-86. For this reason, I would dismiss this ground of review.

Whether Hawthorne Employed Workers

[21] By virtue of the definition of "employer" in s. 2(1) of the Act, a Schedule 1 employer must employ at least one worker. The applicants submit that the Tribunal's finding that Hawthorne employed any workers was unreasonable in light of the evidence, the Board's policies, and the law. Again, however, I am unable to agree.

[22] As the applicants concede, the Tribunal properly considered the leading Supreme Court of Canada case, as well as the relevant Board policies relating to employees versus independent contractors. In the leading case of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at para. 47, Major J. wrote on behalf of the Supreme Court:

Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations… The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks. [Citations omitted.]

[23] In addition to considering this very paragraph from Sagaz, the Tribunal considered the Board's policy entitled "Workers and Independent Contractors". At para. 44 of her decision, the Vice-chair wrote:

In essence, Sagaz and the Board’s policy state that one must look at the totality of the relationship between the parties, rather than any one specific criterion in determining whether a person is a worker or an independent operator. Factors to consider in determining whether a person is a worker or independent operator include:

• an examination of the degree of control that the individual is subject to in doing the work;

• ownership of tools and/or equipment;

• the opportunity that the individual has to make a profit or suffer a loss in doing the work; and

• whether the person is part of the employer’s organization or operating his or her own separate business.

[24] Against this legal backdrop, the Tribunal considered M.H.'s testimony that she worked for both Hawthorne and Orleans, but that she was paid by Orleans; that her hours of work were not fixed; that she worked approximately 40 to 50 hours per week; that she split her time working for Hawthorne and Orleans on an "as needed" basis; that her tasks could be assigned to or, alternatively, determined by her; and that she reported to M. (the president) and J.M. (the general manager).

[25] The Tribunal also considered M.H.'s evidence about the duties of the other people who worked for Hawthorne, including M., J.M., and J.R.H. (the president's wife). M.H. testified that J.M. was responsible for repairs and maintenance to the buildings and that J.R.H. was responsible for coordinating "anything to do with her husband, M.": Decision, at para. 48. Importantly, the Tribunal acknowledged that, of the four people who worked for Hawthorne, only J.R.H. was on Hawthorne's payroll. The others were all paid by Orleans.

[26] Because she did not have as much evidence about J.M.'s duties as those of M.H. and J.R.H, the Vice-chair focused her analysis on the latter two workers. After considering the evidence, she concluded that, based on the totality of the circumstances, both M.H. and J.R.H. were workers covered under s. 28(1) of the Act as employees of Hawthorne.

[27] The applicants contend that the Vice-chair failed to deal with a number of aspects of the evidence in arriving at her conclusion, which rendered her decision unreasonable. In particular, they maintain that the Tribunal failed to deal with the evidence:

• that there was no employment contract between Hawthorne and either M.H. or J.R.H.;

• that M.H. received no training from Hawthorne;

• that there was no breakdown of the hours that M.H. worked for Hawthorne versus Orleans, meaning that there could be long periods of time where she did no work for Hawthorne; and

• that the tasks that M.H. and J.R.H. might be assigned were assigned by employees of Orleans and not Hawthorne.

[28] The applicants also submit that the Tribunal's decision on the evidence it did consider was unreasonable in light of the evidence that M.H. and J.R.H.:

• did not have to follow instructions on when, where, or how to complete their work for Hawthorne;

• were free to use their own methods in completing their work for Hawthorne;

• could choose their own hours of work;

• did not work solely for Hawthorne;

• worked only sporadically for Hawthorne;

• were paid by Orleans and not Hawthorne; and

• used tools and equipment supplied by Orleans.

[29] Finally, the applicants submit that the Tribunal misinterpreted the jurisprudence as it relates to the prospect of profit or loss and that it misinterpreted the Board's policy as it relates to J.R.H., arguing that she could not be a worker unless an application for coverage under the Act had been made specifically with respect to her because she was the president's wife.

[30] As I will explain, none of these arguments have any merit. I will deal first with the submissions regarding both the evidence the Tribunal considered and the evidence the applicants allege it did not consider. I will then deal with the submission that the Tribunal misinterpreted the law and the Board's policies.

[31] I begin with the observation that a decision maker need not refer to all of the evidence; it is presumed to have considered it all: Mustapha v. Canada (Citizenship and Immigration), 2022 FC 622, at para. 10; Decision No. 1332/20R, 2022 ONWSIAT 458, at para. 19. The onus of demonstrating that the decision maker failed to consider all of the evidence rests with the applicants. They have not satisfied that onus here because the evidence the applicants allege the Tribunal failed to consider is of such little probative value that it could not, taken alone or in combination, have affected the Tribunal's reasoning process or its outcome. There is thus nothing from which to infer that the Tribunal failed to consider it.

[32] The fact that a small, four-person operation such as Hawthorne did not have written employment contracts in place is neither surprising nor particularly probative. The same is true for the fact that M.H. was not trained by Hawthorne. M.H. was responsible for accounting, banking, insurance, and dealing with lawyers. Of these four tasks, only the accounting required any particular training and there would be nothing surprising if M.H. came to Hawthorne already having received that training. As to the remaining tasks, M.H. began working for Hawthorne in 2007 and it is impossible to accept that she did not receive at least some job-specific training in the 14 years that followed.

[33] With respect to the applicants' submissions that both M.H. and J.R.H. chose their own hours, worked as they felt they needed to for each of Hawthorne and Orleans, and were free to choose their own methods, all of these facts are consistent with the evidence that both M.H. and J.R.H. occupied positions of responsibility within the operations of Hawthorne. Theirs were not positions on an assembly line; they were responsible for different aspects of the management of the company. The Tribunal considered all of this evidence, but also considered the evidence that M.H. and J.R.H. were assigned tasks and were required to meet deadlines. At para. 52, the Vice-chair wrote:

Although [M.H.] and [J.R.H.] had some autonomy over the order of the tasks they completed and flexibility in terms of their work hours, they were required to meet deadlines and also deal with tasks that arose on an as needed basis. They were assigned tasks from [M.], and [M.H.] reported to [M.] and [J.M.].

[34] The Tribunal also considered the fact that Orleans, and not Hawthorne, paid M.H. and supplied both M.H. and J.R.H. with the tools and equipment they needed to do their jobs. With respect to who paid the workers, the Tribunal wrote, at para. 51:

I acknowledge that only [J.R.H.] was on Hawthorne’s payroll and [M.H.] was paid through [Orlean's] payroll. However, given the overlap between the principals of Hawthorne and [Orleans], I am not persuaded this signifies that [M.H.] was not paid for the work she did for Hawthorne, or that this is somehow indicative of an independent operator status. There was no evidence to suggest that either [M.H.] or [J.R.H.] were performing their administrative duties as a person in business on their own account.

[35] There was nothing unreasonable in the Tribunal concluding in the circumstances of this case that M.H. worked for Hawthorne notwithstanding that she was paid by Orleans or took direction from people who were paid by Orleans. As the Tribunal pointed out, there was significant overlap in the duties performed by all four workers for each company. In any event, the evidence was that J.R.H. was paid by Hawthorne. As the applicants concede, an employer need only employ one worker to qualify as a Schedule 1 employer and, on the basis of the evidence that J.R.H. was paid by Hawthorne and worked for both Hawthorne and Orleans, there is no question that J.R.H. worked for Hawthorne.

[36] As for the issue of tools, with respect, the applicants' submission that the use of tools supplied by Orleans was evidence that M.H. and J.R.H. were independent contractors demonstrates a fundamental misunderstanding of the meaning of the term "independent contractor". As the Supreme Court of Canada made clear in the excerpt set out above from Sagaz, and as the Tribunal clearly understood based on the excerpt from her reasons also set out above, an independent contractor is in business for herself, not for another employer. The Tribunal was correct, therefore, in concluding that the supply of tools and equipment by Orleans was not evidence that either worker was an independent contractor.

[37] For these reasons, the Tribunal's conclusion that M.H. and J.R.H. were employed by Hawthorne was justified in terms of the facts. I turn now to the law and Board policies.

[38] The applicants submit that the Tribunal misinterpreted the law regarding the distinction between employees and independent contractors as it relates to a worker's opportunity for profit. They submit that, because it is possible that there were long periods of time where M.H. might not do any work for Hawthorne (versus Orleans), it was unreasonable for the Tribunal to conclude that M.H. stood no chance for profit or loss. I cannot accept this argument. In essence, the argument is that an employee can make a profit every time she fails to do enough work to justify her salary. With respect, this is absurd.

[39] The applicants also submit that the Tribunal failed to properly apply the Board's policy as it related to J.R.H. The applicants submit that, according to Board policy, owners of businesses employing workers are not automatically deemed to be employees and must apply specifically for coverage under the Act. The applicants contend that J.R.H. was "equivalent to an owner" because she was married to the president of Hawthorne and that the Tribunal's decision that J.R.H. was an employee was unreasonable in the absence of evidence that she had applied for such coverage.

[40] This argument is also entirely without merit. There is no evidence upon which the Tribunal could have concluded that J.R.H. had any ownership interest in the business and, contrary to the applicants' submission, being married to an owner is not the same as being one.

[41] For the foregoing reasons, I would dismiss the applicants' arguments as they relate to this issue.

Whether Dean was in the Course of Her Employment When She Was Injured

[42] In concluding that Ms. Dean was injured during the course of her employment, the Tribunal considered three Board policy documents. By virtue of these policies, an accident occurring at a worker's fixed place of employment, during a worker's fixed hours of employment, and while engaged in work-related duties or activities reasonably incidental to those duties is generally deemed to be an accident occurring in the course of the worker's employment. Having regard to the Board's policy on the issue of what comprises an employer's premises, the Tribunal concluded that Ms. Dean's accident occurred on her employer's premises because the area where she slipped and fell was within the control of Orleans pursuant to the lease it had with Hawthorne.

[43] The Tribunal then turned to the question of whether the activity in which Ms. Dean was engaged at the time of her fall took her out of the course of her employment, even though the accident occurred on the employer's premises and during Ms. Dean's hours of employment. The Tribunal noted that, according to the evidence, Ms. Dean had finished her cigarette and was walking back into the building at 3150 Hawthorne when she fell. Pointing out that "Ms. Dean was on a paid break during her regular work hours, at a set time specified by her employer, in a break/smoking area designated by her own employer on its own premises", the Tribunal concluded that Ms. Dean was engaged in an activity reasonably incidental to her employment and was, therefore, injured during the course of her employment: Decision, at para. 69.

[44] The applicants submit that the Tribunal's conclusion that Ms. Dean was injured in the course of her employment was unreasonable in light of the earlier decision of Tribunal in Decision No. 1008/16, 2016 ONWSIAT 2069. In Decision No. 1008/16, the worker injured his knee when he attempted to swat some bees while he was smoking a cigarette just outside the front doors of his employer's building. The appeal panel found that the worker had gone outside to walk a client to his car and had stopped to talk to some co-workers at the time of the accident. Based on this finding, the panel held that the worker was injured in the course of his employment, allowed the appeal in part, and granted the worker benefits under the Act. At para. 46 of Decision 1008/16, the panel wrote:

We further find that while the worker was smoking at the time of the injury, the smoking itself was not the primary purpose for his presence outside the office building and thus does not preclude, in this instance alone, him from initial entitlement. However, had the worker been outside for the primary purpose of smoking (i.e. engaged in what the Panel finds is a wholly personal activity unrelated to the worker's work duties) we would [have] rejected the worker's claim. The Panel does not accept Mr. Cirillo's submission … that smoking is as much a personal need as eating or toileting. The Panel sees a clear and wide distinction between a personal need (e.g. eating, toileting) and a personal activity (e.g. smoking) and our decision in this appeal ought not to be seen as supporting the view that smoking is a personal need. While it is true that the accident employer was aware the smoking activity and did provide an ashtray, the Panel finds that this situation is distinct from those where the accident employer actively encourages employees to participate in activities on the accident employer's premises that could result in injury (e.g. company sports teams). The accident employer provided the ashtray in an effort [to] discourage the throwing [of] cigarette butts on the ground, not as a means to encourage smoking.

[45] The applicants contend the Tribunal in Decision 1008/16 determined that injuries sustained while smoking outside of an employer's premises are not sustained during the course of the worker's employment. The applicants also relied on this decision before the Tribunal. After setting out the above excerpt, however, the Vice-chair distinguished the decision.

[46] The applicants submit that the earlier decision was not distinguishable. I disagree. As the Tribunal pointed out, in Decision No. 1008/16, the employee was not outside during a break, was not walking back from a designated smoking area, and was smoking at the time of his accident.

[47] I would add that, because the panel's decision in Decision 1008/16 turned on the fact that the injured worker was not outside for the purpose of smoking at the time of the accident, what it had to say about smoking as a personal activity was obiter. As the Tribunal in the present case pointed out, both Board policy and Tribunal decisions have held differently. The Board policy entitled "Accident in the Course of Employment" provides that "engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment" and numerous Tribunal decisions have held that a brief interlude of personal activity such as getting a coffee, food, or even having a cigarette is activity reasonably incidental to employment: Decision No. 1786/06, 2006 ONWSIAT 2616; Decision No. 2619/17, 2017 ONWSIAT 2760; Decision No. 2177/18, 2020 ONWSIAT 605; and Decision No. 562/20, 2020 ONWSIAT 1239.

[48] Because the Tribunal's decision that Ms. Dean was injured while in the course of her employment was justified on the facts and on the basis of previous Tribunal decisions, I would reject the applicant's submission that it was unreasonable and dismiss this ground of review.

Whether Dean was Entitled to "The Benefit of the Doubt"

[49] Finally, the applicants submit that the Tribunal's decision was unreasonable because it failed to consider the consequences of its decision when it failed to apply the "benefit of the doubt" principle set out in s. 124(2) of the Act.

[50] However, as the Tribunal correctly pointed out, by its own wording, s. 124(2) of the Act only applies to a person claiming benefits under the Act, not to those seeking to avoid having to claim benefits. The relevant portions of the section read:

124 (1) The Appeals Tribunal shall make its decision based upon the merits and justice of a case and it is not bound by legal precedent.

(2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [Emphasis added.]

[51] In any event, even if the benefit of the doubt principle applied in right to sue applications, it would only apply where it was not practical to decide an issue because of the equal weight of the evidence relating to that issue. That is not the case here. As the Tribunal's reasons ably demonstrate, this was not a close call.

CONCLUSION

[52] For all of these reasons, I conclude that the Tribunal's decision was transparent, intelligible, and justified. I would, therefore, dismiss the application.

COSTS

[53] The parties agreed prior to the hearing that neither would seek costs, regardless of the outcome. However, at the conclusion of the hearing, counsel for the applicants advised that his clients would seek to be reimbursed the costs of the transcripts that they obtained and filed on the application if the application is allowed. Counsel for the respondent was unable to agree because she was unable to obtain instructions before the application was heard.

[54] Given the result and the prior agreement, I would not order any costs.

Ellies R.S.J.

I agree _______________________________

Sachs J.

I agree _______________________________

Gibson J.

Released: June 15, 2023

CITATION: Dean v. 3150 Hawthorne Road Limited, 2023 ONSC 3576

DIVISONAL COURT FILE NO.: DC-22-2725

DATE: 2023/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

ANNABELLE RETA HAZEL DEAN, AUSTIN JOSEPH ERNEST MACDONALD, CODY JESSE JASON DEAN, (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), KELLY JEAN ANNABELLE MACDONALD (by her litigation guardian, ANNABELLE RETA HAZEL DEAN), COOPER BARRY JAMES MACDONALD (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), BOWEN JEREMY MATTHEW DEAN MELARKAY (by his litigation guardian, ANNABELLE RETA HAZEL DEAN), and CALVIN MARK AUSTIN MACDONALD (by his litigation guardian, ANNABELLE RETA HAZEL DEAN)

Applicants

– and –

3150 HAWTHORNE ROAD LIMITED

Respondent

REASONS FOR DECISION

M.G. Ellies R.S.J.

Released: June 15, 2023