ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-512941
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE TORONTO-DOMINION BANK
Plaintiff
– and –
RAMESH JOLLY, IRENE JOLLY, AARON FRANCIS JOLLY and MENORAH MANAGEMENT & INVESTMENTS INC.
Defendants
Michael R. Kestenberg, for the Plaintiff
Sean N. Zeitz, for the Defendants Ramesh Jolly and Irene Jolly
HEARD: September 18, 2015
M. D. FAIETA, j
REASONS FOR DECISION
INTRODUCTION
[1] The defendants Ramesh Jolly and Irene Jolly are spouses. At all material times Ramesh Jolly was the Executive Chairman of Makeup Artistry Stores Inc. (“MASI”) and Irene Jolly was the President of MASI.
[2] On December 3, 2013 the Jollys, on behalf of MASI, applied to the plaintiff (“TD”) for a line of credit. In support of the application Irene Jolly completed a Personal Financial Statement and Privacy Agreement (“PFS”). The PFS was signed by the Jollys. The Jollys listed their assets and liabilities on the PFS. Their net worth was shown as $320,000.00 on the PFS, comprised largely of the equity ($310,000.00) in their home.
[3] On December 23, 2013 the TD approved a line of credit (“LC”) for MASI in the amount of $500,000.00 based on, amongst other things, the delivery of a personal guarantee by the Jollys. Shortly thereafter, on March 19, 2014, MASI filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act. By that date TD had advanced $490,000.00 to MASI under the LC. MASI’s proposal was rejected and it was adjudged bankrupt on July 18, 2014.
[4] TD subsequently was advised that the Jollys took the position that they held their home in trust for their children at the time that they applied for the LC. The Jollys transferred their home to their son, the defendant Aaron Francis Jolly, on February 14, 2014 for no consideration. On July 9, 2014 Aaron sold the home for $1,618,000.00. The net proceeds of the sale were $6,886.00.
[5] TD commenced this action against the Jollys on September 26, 2014. Amongst other things TD claims damages for fraudulent and/or negligent misrepresentation in the amount of $522,000.00. TD settled with Aaron and agreed to dismiss the action against him without costs. The Jollys filed Assignments in bankruptcy on October 21, 2014. An Order lifting the stay of proceedings in this action as against the bankrupt Jollys was issued by this court on February 17, 2015.
[6] TD brings this motion for summary judgment on the basis of fraudulent misrepresentation. The Jollys submit that:
(1) given that TD seeks judgment on the basis of fraudulent misrepresentation, this motion for summary judgment should be dismissed and a trial should be held so that witnesses for both parties may testify;
(2) the requirements for an action in fraudulent misrepresentation have not been satisfied.
[7] For the reasons described below I have found that oral evidence is not required in order to fairly and justly determine this motion for summary judgment. I have awarded judgment to TD against the Jollys in the amount of $493,930.17, plus pre-judgment interest, post-judgment interest and costs of $25,000.00.
ANALYSIS
[8] This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure. The objective of Rule 20 is to promote access to justice by providing a streamlined and fair process which results in the just adjudication of a dispute.[^1]
[9] The following principles are applicable on this motion for summary judgment:
A plaintiff may, after the defendant has delivered a statement of defence, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim;[^2]
An affidavit for use on a motion for summary judgment may be made on information and belief but, on the hearing of the motion, the Court may draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of the contested facts;[^3]
A responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial;[^4]
Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried;[^5]
A Court shall grant summary judgment if the Court is satisfied that there is no “genuine issue requiring a trial” with respect to a claim;[^6]
- There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^7]
- A summary judgment process that does not give a judge confidence in his or her conclusions can never be a proportionate or fair way to resolve a dispute;[^8]
To determine whether there is a genuine issue requiring trial a Court may not only consider the documentary record but also it may exercise its enhanced fact-finding powers to weigh evidence, evaluate credibility and draw reasonable inferences unless such action would be contrary to the “interest of justice”.[^9]
On a motion for summary judgment the Court should first determine if there is a genuine issue requiring trial based only on the evidence before the Court without using the enhanced fact finding powers;[^10]
If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2). Such powers are presumptively available unless their use would be contrary to the interest of justice;[^11]
The use of such powers will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^12]
An assessment of the “interest of justice” requires a consideration of the consequences of the motion in the context of the litigation as a whole. If some of the claims against some of the parties will proceed to trial in any event, it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact;[^13]
If the Court cannot grant summary judgment, the Court should:
decide those issues that can be decided in accordance with the principles described above;
identify the additional steps that will be required to complete the record to enable the Court to decide any remaining issues;
in the absence of compelling reasons to the contrary, the Court should seize itself of the further steps required to bring the matter to a conclusion.[^14]
ISSUE #1: IS ORAL EVIDENCE REQUIRED?
[10] The Jollys submit that the interest of justice requires that they be called to testify so that the Court can observe the witnesses and so that counsel may ask questions that they may or may not have been addressed in their affidavits and transcripts from their examinations that were provided to the Court on this motion.
[11] The Jollys submit that “it is a longstanding and recognized principle that fraud is too serious a matter to be dealt with on a summary proceeding”.
[12] No such general principle exists in relation to summary judgment motions. The Jollys relied on Re Sher, [1999] O.J. No. 3978, at paras. 59-63, where the Court required oral evidence in order to decide an application to annul a bankrupt’s discharge from bankruptcy on the grounds that such discharge was obtained by fraud. The Court stated:
Fraud is too serious a matter to be dealt with on a summary proceeding such as an application for discharge except if the fraud has already been established.
In my opinion a motion with evidence by way of affidavits and transcripts of cross-examinations is an equally summary procedure. There is no opportunity for the court to see and assess the witnesses or for a witness to personally tell his version of the facts to the court.
In applying these principles it may not be necessary to require a viva-voce hearing. If the evidence of fraud is clear and cogent and the discharged bankrupt offers no evidence which, if believed, would excuse him, then the court may make a finding of fraud. That is not the case here. There is a clear dispute as to whether Nathan Sher executed the handwritten gift or transfer of his share of the condo more than 5 years prior to the bankruptcy. …
[13] The above principles do not govern summary judgment motions nor do they reflect the principles under Rule 20 that govern summary judgment motions. The often cited decision of the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 is a case where summary judgment was granted on the grounds of civil fraud. The Court found that the motions judge did not err in finding that the “interest of justice” did not preclude him from exercising the fact-finding powers under Rule 20.04(2.1).
[14] In Hryniak, at paras. 56-60, the Supreme Court of Canada addressed when it would be against the “interests of justice” for the above fact finding powers to be used on a summary judgment motion:
The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers - and the purpose of the amendments - would be frustrated.
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)
In practice, whether it is against the "interest of justice" to use the new fact-finding powers will often coincide with whether there is a "genuine issue requiring a trial". It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.
[15] In my view, there is no need for oral evidence under Rule 20.04(2.2) or a trial of this action in order to “fairly and justly” adjudicate the claim against the Jollys. The Jollys and TD’s Account Manager have been provided affidavits upon which they have been extensively cross-examined. In the circumstances, a trial would add little, if anything, other than delay and further expense. Given the available evidence, the “interest of justice” does not require that the Court’s powers to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence under Rule 20.04(2.1) be exercised only at trial.
ISSUE #2: ARE THE JOLLYS LIABLE IN FRADULENT MISREPRESENTATION?
[16] In Bruno Appliance and Furniture, Inc. v. Hryniak[^15] the Supreme Court of Canada summarized the four elements of the tort of civil fraud as follows:
(1) a false representation by the defendant;
(2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness);
(3) the false representation caused the plaintiff to act;
(4) the plaintiff’s actions resulted in a loss.
[17] The Jollys challenged the evidence in relation to each of the above elements and each element is considered below.
Did the Jollys make a false representation?
[18] On December 3, 2013 the Jollys applied to the TD for a line of credit on behalf of MASI. In support of this application, the Jollys provided the TD with a PFS.
[19] The PFS shows that their net worth was $320,000.00. Their total assets were shown to have a value of $1,660,000.00 comprised of $30,000.00 in cash; life insurance of $10,000.00; house: $1,600,000.00 and RRSPs (joint): $20,000.00. Their total liabilities were shown to have a value of $1,340,000.00 comprised of credit card debt of $50,000 and two mortgages of $1,290,000.00 in total.
[20] The first line of page 2 of the PFS states:
I represent and warrant that (a) I am the legal and beneficial owner of all of the assets shown above, or in Appendix “A” as the case may be….
[21] The Jollys’ house is shown on page 1 of the PFS as well as in Appendix “A”.
[22] However, in defending this action the Jolly took the position that they held the registered ownership and their children held the beneficial interest of their house. Paragraph 6 of their Statement of Defence states that in February 2014 they transferred their registered interest in the house to their children “…in their capacity as beneficial owners thereof…”
[23] The Jollys submit that they did not misrepresent their interest in their house to the TD. The Jollys submit that they did not read page 2 of the PFS and thus did not realize that they were representing that they were also the beneficial owners of their house. Their position lacks credibility for the reasons outlined in TD’s Factum:
They are both well-educated and they confirmed on cross-examination that they understood what they were signing;
Ramesh Jolly has a doctorate in nutrition and food science from Cornell University obtained in 1974;
Irene Jolly has a Master’s degree in microbiology from Cornell University that she also obtained in 1974;
The Jollys admitted on cross-examination that they knew they were personally liable if MASI did not pay the outstanding indebtedness;
Prior to applying for a LC from TD, MASI had applied on at least two separate occasions for loans from other financial institutions and guarantees may have been required;
The Jollys mortgaged their house on twelve separate occasions in recent years and completed net worth statements in connection therewith;
[24] Further, it is my view that page 1 of the PFS showed that, with the inclusion of their house, the Jollys’ “net worth” was $320,000.00. As a result, by including the equity or net worth of their house ($310,000.00) in the calculation of their overall net worth, it is my view that the Jollys were representing that they held the beneficial interest in their house.
[25] The Jollys also submit that as a matter of law they did not hold the house in trust for their children. They submit that the law requires that three certainties must exist for a trust to be recognized: (1) certainty of intention on the part of the settlors to create a trust; (2) certainty of the subject matter of the trust; (3) certainty of the object or persons intended to be the beneficiaries of the trust.[^16] In my view, the three certainties are satisfied by the solemn declaration described below which outlines their intention to create the trust, that their house was the subject matter of the trust and that their children were the intended beneficiaries of the trust.
[26] The Jollys signed a solemn declaration on February 13, 2014 which states that they never owned the beneficial interest in their house. The declaration states:
That all the monies and other consideration utilized in the acquisition of the land presently registered in the name of the trustees, Irene Jolly and Ramesh Jolly, were beneficially owned by our three children, Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly. The source of the funds was from Oei Hian Nio Liem, mother of Irene Jolly and mother-in-law of Ramesh Jolly. These funds were provided to use by Oei Hiang Nio Liem, to be used as a gift for the purchase of the said land in trust for our said three children, Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly.
That Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly are the beneficial owners of the said land and always has been since the 17th day of March, 2000.
That the trustee-transferor, Irene Jolly, obtained registered title to the property on the 17th day of March, 2000, pursuant to an Agreement of Purchase and Sale.
That title was subsequently transferred to Irene Jolly and Ramesh Jolly on the 25th day of February, 2011.
That…Irene Jolly and Ramesh Jolly were bare trustees and looked after and maintained the property for the benefit of the three beneficial owners, Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly.
That all obligations, including any mortgage obligations, responsibilities, acts or omissions pertaining to the land during the time it was or will be vested in…Irene Jolly and Ramesh Jolly were performed or omitted to be performed…as a gift to the beneficial owners.
That the trust arrangement between Irene Jolly and Ramesh Jolly as trustees and Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly was oral as Jennifer Reena Jolly, Aaron Francis Jolly and Shawn Christopher Jolly are the children of the trustees, Irene Jolly and Ramesh Jolly, and did not require written evidence of the trust arrangement.… [emphasis added]
[27] The Jollys submit that the trust had to be in writing in order to comply with section 9 of the Statute of Frauds, R.S.O. 1990, c. S. 19, which states:
- Subject to section 10, all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by a writing signed by the party who is by law enabled to declare such trust, or by his or her last will in writing, or else they are void and of no effect.
[28] In my view, the statutory declaration made by the Jollys provides the written manifestation and proof required by the Act of the trust created by the Jollys in respect of their house.
[29] In conclusion, it is my view that the Jollys falsely misrepresented to TD that they held the beneficial interest in their house.
Did the Jollys have some level of knowledge of the falsehood of the representation?
[30] To be liable in fraudulent misrepresentation the plaintiff must show that the Jollys knew that their statement was false or were reckless as to its truth.[^17]
[31] I am satisfied that Ramesh Jolly knew that the statement in the PFS that he and his wife owned the house and that it comprised part of his and his wife’s net worth was false.
[32] The Jollys house was listed as an asset on page 1 of the PFS. On cross-examination Mr. Jolly admitted that the heading “assets” on page 1 of the PFS related to things that he and his wife owned rather than things that were registered in their names.[^18]
[33] Mr. Jolly also stated that he could not recall whether he told the TD when he reviewed page 1 of the PFS that the net worth of his house should not be included as part of his and his wife’s net worth because they only held the house in trust. He further stated that nobody at TD asked him whether the house was held in trust.
[34] In my view, the above evidence shows that Mr. Jolly understood that his statements in the PFS suggested that he and his wife owned the beneficial interest in the house given that they attributed the net worth of their house to their net worth.
[35] Finally, Mr. Jolly states that the statement of net worth on page 1 of the PFS was only for the purpose of TD to obtain a credit score. In my view, that suggestion makes no sense. A credit score could be obtained from a credit reporting bureau simply with his written authorization. There is no need to provide a credit bureau with his net worth statement in order to obtain a credit score.
[36] Irene Jolly testified that she is the President of MASI and that she went to work every day to do MASI’s payroll and banking.[^19]
[37] Mrs. Jolly testified that she did not read any documents that she signed as she relied on her husband to confirm that any document that she signed, including the PFS, was true. Mrs. Jolly stated that she did specifically know why she signed the PFS. She states that she did not know that her husband was seeking a loan on behalf of MASI. However, she indicated that she knew that TD was relying on the truth of the statements in the documents that she signed.[^20]
[38] Irene Jolly testified that the house was purchased in 2000 with funds given to her by her mother. Mrs. Jolly did not know if she, her husband or her children owned the house, or whether she held the house in trust for her children.[^21]
[39] I find that Mrs. Jolly’s evidence lacks credibility. She is a well-educated businessperson. She is also President of MASI. I find it incredible that she would not read the documents that she signed or know whether she owned the house or held it in trust for her children.
[40] In any event, even if Mrs. Jolly did not know that the PFS falsely represented that she and her husband held the legal and beneficial interest in her house, I find that she was reckless in asserting that was the case by signing the PFS. She admitted that could have easily read the PFS but that it was her custom to sign documents without reading them.[^22] Mrs. Jolly could have read the PFS and could have made inquiries with her husband (or their solicitor or accountant if Mr. Jolly did not know the answer) to ascertain the truth of those statements. Instead, if her own evidence is accepted, she chose to recklessly sign the documents and misrepresent to TD that she and her husband had an ownership interest of $310,000.00 in their house.
Did the false representation cause the plaintiff to act?
[41] The affidavit of Rajeev Lamba, sworn on June 23, 2015, states that he was TD’s Account Manager for MASI. He states that:
The purpose of the PFS was to assess the credit risk involved in establishing a credit facility on behalf of MASI;[^23]
As security for the LOC, the TD would require that the Jollys provide guarantees and accordingly, the TD had to consider whether they had sufficient personal assets to make an equity injection in the business in the event of losses;[^24]
A review of a credit review completed by the TD at the time the credit facility was established confirms that the Jollys had acceptable credit ratings and conservative net financial worth to support the facilities provided; the credit review noted that the Jollys had a current combined current personal net worth of $320,000.00;[^25]
[42] The Jollys submit that the personal guarantee provided by the Jollys was one of 12 securities obtained by TD in relation to the LC and did not a determinative factor in granting the LC. However, there is no evidence to support this position. The evidence is to the contrary. Mr. Lamba states:
The TD would not have agreed to provide a credit facility but for the fact that the Jollys owned the house and there was significant equity in the house;[^26]
[43] In my view, the false representation in the PFS caused TD to grant the LC to MASI. Had the Jollys not owned a house with significant equity, then TD would not have granted the LC.
[44] In any event, it matters not whether the fraudulent misrepresentation was the sole inducement or one of several factors that contributed to TD’s decision. In Buccilli et al.v. Pillitter et al.,[^27] Justice Newbould stated:
An agreement induced by misrepresentation can be set aside if the representation was as to a material fact and reasonably relied on. This applies to a representation whether innocent, negligent or fraudulent.
It is necessary for a plaintiff to establish that the misrepresentation was a material inducement upon which the plaintiff relied. It is not necessary for a plaintiff to establish that the misrepresentation was the sole inducement for acting and it matters not if the misrepresentation was only one of several factors contributing to the plaintiff’s decision.[^28]
[45] Accordingly, it does not change the fact that TD relied upon the personal guarantee of the Jollys that were supported by a combined net worth of $320,000.00 even if the TD also required many other forms of security in order to support its decision to advance an LC of $500,000.00 to MASI.
Did the plaintiff’s action result in a loss?
[46] TD would not have advanced $490,000.00 if it had not granted the LC, which in turn was caused by the Jollys’ false misrepresentation to TD regarding their net worth.
Conclusions
[47] Despite Mr. Zeitz’s able submissions, TD has established its claim in fraudulent misrepresentation against the Jollys. Judgment in the amount of $493,930.17 plus pre-judgment and post-judgment interest is granted against the Jollys.
[48] TD claims costs in the amount of $43,861.51 on a partial indemnity basis. In the event that they would have been successful, the Jollys sought their costs of $19,993.60 on a partial indemnity basis. TD’s costs outline claims considerably more hours (104.8 hours) as compared to the Jollys’ claim for costs (47.9 hours). I order that the Jollys pay costs of $25,000.00 to TD in respect of this motion. This amount is fair and reasonable and within the reasonable expectations of the Jollys.
Mr. Justice M. D. Faieta
Released: September 23, 2015
COURT FILE NO.: CV-14-512941
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE TORONTO-DOMINION BANK
Plaintiff
– and –
RAMESH JOLLY, IRENE JOLLY, AARON FRANCIS JOLLY and MENORAH MANAGEMENT & INVESTMENTS INC.
Defendants
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: September 23, 2015
[^1]: Trotter v. Trotter, 2014 ONCA 841, (2014), 122 O.R. (3d) 625, para. 49. [^2]: Rule 20.01(1). [^3]: Rule 20.02(1). [^4]: Rule 20.02(2). [^5]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] S.C.J. No. 14, para. 1; Gold Leaf Garden Products Ltd. v. Pioneer Flowers Farm Ltd., [2015] O.J. No. 2601, para. 14 (C.A.). [^6]: Rule 20.04(2). [^7]: Hryniak, para. 49. [^8]: Hryniak, para. 50. [^9]: Hryniak, para. 44-45; Rules 20.04(2.1), (2.2) [^10]: Hryniak, para. 66. [^11]: Hryniak, para. 45. [^12]: Hryniak, para. 66. [^13]: Hryniak, para. 60. Baywood Homes Partnership et al. v. Haditaghi et al. (2014) 120 O.R. (3d) 438, 2014 ONCA 450, paras. 33-35. [^14]: Rule 20.05(2). Hryniak, paras. 74-79; Sweda Farms Ltd.v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, para. 33; aff’d [2014] O.J. No. 5815, 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97. [^15]: [2014] 1 S.C.R. 126, 2014 SCC 8, para. 21. [^16]: Hepburn v. Jannock Ltd. [2008] O.J. No. 62, paras. 99, 101; aff’d [2008] O.J.No. 5113 (C.A.). [^17]: Mariani v. Lemstra et al., 2004 CanLII 50592 (ON CA), 246 DLR (4th) 489; 27 CCLT (3d) 261; [2004] OJ No 4283 (QL); 39 CLR (3d) 71. [^18]: Cross-examination, questions 156-159. [^19]: Cross-examination, question 73-75. [^20]: Cross-examination, questions 31-49. [^21]: Cross-examination, questions 50-62. [^22]: Cross-examination, questions 119-121. [^23]: Affidavit of Rajeev Lamba, para. 3 [^24]: Affidavit of Rajeev Lamba, para. 3. [^25]: Affidavit of Rajeev Lamba, para. 11. [^26]: Affidavit of Rajeev Lamba, para. 8. [^27]: [2012] O.J. No. 5628, 2012 ONSC 6624; aff’d [2014] O.J. No. 2561, 2014 ONCA 432. [^28]: paras. 173, 174.