COURT FILE NO.: C-89-17

DATE: 20230117

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan Holtzhauer and Kim Melcher Plaintiffs

– and –

Michelle Yvette Zilinski, Anthony Homer Peck and Intact Insurance Company of Canada Defendants

COUNSEL: Darcy W. Romaine, for the Plaintiff Ryan Holtzhauer David Murray, for the Defendant Intact Insurance Company of Canada Todd M. Wasserman, for His Majesty the King in right of the Province of Ontario as represented by the Ministry of Public and Business Service Delivery

HEARD: September 13, 14, 15, 16, 19 and 23, 2022

Justice D.A. Broad

Background

[1] In these Reasons, parties and witnesses may be referred to by their given names in the interest of brevity and clarity. No disrespect is intended by so doing.

[2] The plaintiff, Ryan Holtzhauer (“Ryan”), was a pedestrian travelling on Highway 7 near County Road 32 in the City of Guelph on June 30, 2009 when he was struck by a vehicle driven by the defendant, Anthony Homer Peck (“Anthony”). Anthony was an unlicensed operator of an uninsured vehicle. Ryan was seriously injured in the accident and was hospitalized.

[3] By Statement of Claim issued January 28, 2010, Ryan brought an action against Anthony claiming damages for the injuries he sustained in the accident which he claimed was caused by Anthony’s negligence.

[4] Ryan also claimed that the defendant, Intact Insurance Company of Canada (“Intact”), should be held liable in the event that Anthony is found to be underinsured or uninsured, and/or the limit of his policy of insurance is inadequate to meet the claims against him.

[5] There is no dispute that on the date of the accident, Kim Melcher (“Kim”) was the named insured on the Intact policy.

[6] Kim claimed as a plaintiff in the action pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 for damages for loss of care, guidance and companionship of Ryan and for housekeeping and home maintenance activities which she was required to do as a consequence of the injuries sustained by Ryan in the accident.

[7] Anthony was noted in default on May 5, 2010.

[8] The action was subsequently administratively dismissed for delay. Ryan obtained an order setting aside the administrative dismissal. Kim did not move to set aside the administrative dismissal of her claim, and accordingly, she did not participate in the trial.

Issues for Determination

[9] Ryan and Kim are the natural parents of a child, Carter, born April 28, 2006. They never married.

[10] Ryan’s claims against Intact are advanced pursuant to the uninsured provisions of the automobile insurance policy issued by Intact to the named insured Kim, and/or the Family Protection Coverage Endorsement under the Ontario Policy Change Form 44R (the “OPCF 44R”) attached to the Intact policy.

[11] By virtue of s. 265(2) of the Insurance Act, uninsured automobile coverage extends to a “person insured under the contract” which, in respect of a claim for bodily injuries, includes under subparagraph (c)(ii)(B) “the insured and his or her spouse … while not the occupant of an automobile … who is struck by an uninsured or unidentified automobile.”

[12] For the purposes of s. 265(2), “spouse” is defined in s. 224(1) of the Insurance Act as follows:

“spouse” means either of two persons who,

(a) are married to each other.

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act. or

(c) have lived together in a conjugal relationship outside marriage,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the parents of a child.

[13] In the OPCF 44R Endorsement, “insured person” is stated at s. 1.6(a)(iii) to include “the named insured and his or her spouse … while … not an occupant of an automobile who is struck by an automobile.” Section 1.10 of the Endorsement defines “spouse” in the identical fashion to s. 224(1) of the Insurance Act as including either of two persons who have lived together in a conjugal relationship outside marriage in a relationship of some permanence if they are the natural or adoptive parents of a child.

[14] There is no dispute that the Intact policy was in force on the date of the accident and that the OPCF 44R Endorsement applied.

[15] Thus, coverage under the Intact policy extends to Ryan in respect of both the uninsured coverage afforded by s. 265(1) of the Insurance Act and the underinsured coverage afforded by the OPCF 44R Endorsement if he fell within the definition of “spouse” in relation to the named insured Kim on the date of the accident.

[16] Following the accident, Ryan applied to Intact for payment of Statutory Accident Benefits as the “spouse” of the named insured Kim. The definition of “spouse” in s. 1.3 of the standard Ontario Automobile Policy (“OAP1”) in force at the time of the accident was identical to that in s. 224(1) of the Insurance Act. Therefore, to be entitled to claim Statutory Accident Benefits, Ryan was required on the date of the accident to have lived together with Kim in a conjugal relationship of some permanence.

[17] In connection with Ryan’s application for Statutory Accident Benefits, Intact carried out an investigation of whether Ryan was a “spouse” of the named insured Kim. The Intact Accident Benefits adjuster, Dagmar Ladouceur, obtained a Statutory Declaration from Ryan and a written statement from Kim. Ms. Ladouceur determined that Ryan met the definition of “spouse” and was therefore entitled to Statutory Accident Benefits.

[18] In the event that Ryan is found to be not entitled to coverage under the Intact policy by virtue of the uninsured automobile coverage under the Insurance Act or the underinsured coverage under the OPCF 44R Endorsement, he is entitled to make a claim for payment from the motor vehicle accident claims fund (the “Fund”) established by virtue of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 (the “MVACA”) currently administered by the Ministry of Public and Business Service Delivery, subject to the applicable limit established by the MVACA.

[19] The remaining parties to the proceeding, namely Ryan, Intact and the Fund, have agreed on the question of damages. They also agreed that the question of whether Ryan qualifies for recovery under the Intact policy pursuant to the uninsured or underinsured coverage described above or whether he is limited to recourse against the Fund proceed to trial on a bifurcated basis.

[20] The determination of the issue to be tried depends on whether Ryan is able to discharge his onus of proving, on a balance of probabilities, that on the date of the accident, he was a “spouse” of the named insured Kim under the definition referred to above—specifically, whether on that date, Ryan and Kim had “lived together in a conjugal relationship … of some permanence.”

Positions of the Parties

[21] Ryan asserts that on the date of the accident, he came within the definition of “spouse” for the purposes of the Intact policy by virtue of his relationship with Kim.

[22] The position taken by the Fund, which called no evidence at trial, is aligned with that of Ryan—that Ryan and Kim were spouses for the purposes of the Intact policy on the date of the accident.

[23] Moreover, Ryan and the Fund both submit that approval by Intact of Ryan’s application for Statutory Accident Benefits under the Intact policy is sufficient to dispose of the question in their favour. They point to the definition of “insured” in s. 224(1) of the Insurance Act which provides that:

“insured” means a person insured by a contract whether named or not and includes every person who is entitled to statutory accident benefits under the contract whether or not described therein as an insured person

[24] Intact takes the position that Ryan has not satisfied his onus of showing that, on the date of the accident, he and Kim had “lived together in a conjugal relationship … of some permanence.” Moreover, Intact argues that its approval of Ryan’s application for Statutory Accident Benefits is not determinative of the question of whether he was an “insured” under the Intact policy or was the “spouse” of Kim as of the date of the accident for the purposes of the uninsured and underinsured provisions of the policy.

[25] Although Intact does not dispute that Ryan and Kim previously lived together in a conjugal relationship of some permanence, it argues that on the date of the accident, they had ceased living in a conjugal relationship and therefore Ryan did not come within the definition of “spouse” for the purposes of uninsured and underinsured coverage of the Intact policy.

[26] In support of this position, counsel for Intact relies upon certain statements that Ryan made to the Guelph Police Service (“GPS”) on February 17 and March 22, 2009 respectively and to Family and Children’s Services of Guelph and Wellington County (“FCS”) personnel on September 9, 2008, which suggested that his relationship with Kim had ended some time previously.

Evidence of the Plaintiff

Testimony of Ryan Holtzhauer

[27] Ryan was adopted as a newborn in 1983 by Barbara Smith (“Barbara”) and her former husband, Ron Holtzhauer (“Ron”). After Barbara and Ron separated in 1987, Ryan lived primarily with Ron. At age 14, Ryan began to reside primarily with Barbara at her residence at 36 Sleeman Avenue in Guelph.

[28] Ryan acknowledged that he had a learning disability and experienced emotional issues as a child and was enrolled in counselling for a long period of time. He described his relationship with his adoptive father Ron as “tough” with many conflicts and disagreements. He left high school part way through grade 9 and never graduated. While in school, he was prone to getting involved in fights and was often suspended from school following verbal conflicts with teachers and staff. In general, Ryan admitted that he had difficulty controlling his anger and responded to conflicts by yelling.

[29] After Ryan left high school, he was initially employed doing grass cutting and landscaping, gradually acquiring contracts of his own. In 1999 or 2000, he started his own business under the name “Cutrite,” performing grass cutting, tree removal, snowplowing and small landscape jobs. He resided with his mother during this time.

[30] Ryan met Kim in late August or early September 2005 when he was 22 years old. At that time, Kim worked at a fast-food restaurant in Guelph. As the relationship progressed, Kim began staying over with Ryan at Sleeman Avenue, gradually increasing to 2 to 4 nights per week. Although Kim resided in Kitchener, she began spending half the time with Ryan at his mother’s residence on Sleeman Avenue as it was closer to her work in Guelph.

[31] Kim became pregnant in the fall of 2005, and Carter was born two and a half months prematurely on April 28, 2006. During her pregnancy, Kim began living full time with Ryan at his mother’s residence.

[32] Ryan described his relationship with Kim as “good” during the pregnancy. In preparation for Carter’s birth, they purchased a crib, car seat, clothing and other baby supplies together.

[33] Prior to Carter’s birth, Ryan and Kim occasionally got into arguments. Ryan stated that they were each very competitive and assertive and would “butt heads” with each other.

[34] Kim had to be flown to Kingston, Ontario for Carter’s premature birth, and Ryan went to Kingston to be with them. Carter remained at the hospital in Kingston for two months. Ryan and Kim drove frequently to Kingston to visit him. Carter was eventually transferred to a hospital in Kitchener and was discharged from there. Ryan described his relationship with Kim after they brought Carter home as “great” and that he felt “on cloud nine.” He stated that he loved Kim.

[35] After Carter’s birth in April 2006, Ryan, Kim and Carter continued to reside full time with Barbara at the Sleeman Avenue residence. Ryan and Kim cared for Carter together as a couple and resided in the same bedroom, with Carter in an adjacent bedroom. Kim stayed home with Carter until shortly after her maternity leave ran out.

[36] Ryan continued operating his business cutting lawns and performing landscaping in the summer months and snowplowing in the winter. Although Ryan and Kim purchased their own food, they did not pay rent to Barbara with the exception of a six-month period after Ryan had experienced a good month snowplowing at Christmas.

[37] In the fall of 2006, Kim began to work with Ryan in his business, initially doing snowplowing and then performing grass cutting, gardening and landscaping work on a full-time basis beginning in spring of 2007.

[38] Ryan described an incident which he said took place on November 9, 2006. He and Kim got into an argument in the parking lot of a Tim Horton’s restaurant which resulted in the police being called and Ryan being arrested. After he was released, Ryan returned to the Sleeman residence and resumed his relationship with Kim. They slept together in the same bedroom and experienced what Ryan described as an “amazing” first Christmas with Carter.

[39] On cross-examination, Ryan acknowledged that, to his recollection, he was charged with dangerous operation of a motor vehicle arising from the November 9, 2006 incident. He also acknowledged that prior to November 2006, a “no-contact” order was in place between himself and Kim. The no-contact order was in place for one or two weeks before Kim arranged with the Crown Attorney to have it dropped.

[40] Ryan testified that during and after 2007, he and Kim engaged in verbal arguments which resulted in police and Family Services being called. He stated that the fights were always about the business and money.

[41] In June or July 2008, Ryan and Kim were not getting along and were arguing more frequently. Following a verbal altercation over money in early July 2008, Kim left to live with friends in Hamilton, Ontario. Ryan stated that a week after Kim moved out, the two of them resumed “hanging out again.” He travelled to Hamilton to be with her, and she travelled to Guelph to be with him.

[42] In cross-examination, Ryan acknowledged that in July 2008 he and Kim fought over the assets of their business. Ryan also explained that Kim relocated to Hamilton as they “just needed a break” due to persistent arguments and disagreements, and they each thought it best that they take time apart from each other. During Kim’s stay in Hamilton, they remained in continuous contact and had discussions about making a fresh start in Waterloo. They slept together when they visited each other in either Hamilton or Guelph.

[43] In late September or early October 2008, Kim moved with Carter from Hamilton to an apartment on Silverbirch Road in Waterloo. Shortly thereafter, Ryan moved from his mother’s residence to the Silverbirch apartment to live with them. Ryan closed down his business in Guelph and began working with Kim in a landscaping business that she started in Waterloo under the name “Elmridge.” Ryan testified that he and Kim slept together and maintained a sexual relationship.

[44] Kim looked after the bookkeeping for the business and maintained a bank account for receipts and payment of expenses. Ryan did not have a bank account of his own but had the use of Kim’s bank card to access her account when he needed to do so. All of the household bills were paid from Kim’s account.

[45] Ryan described an incident in February 2009 which involved the police. He was waiting for Kim to drop Carter off at his mother’s residence. Kim had dressed Carter in a raincoat rather than a winter coat and they engaged in an argument about it which led to Ryan calling the police. Ryan stated that he was in Guelph to attend healthcare appointments in connection with a shoulder injury he sustained in an accident in January.

[46] When cross-examined about the incident, Ryan disagreed with the suggestion of Intact’s counsel that he called police to have Kim removed from the Sleeman residence because she refused to leave after he declined to give Carter to her. Rather, he maintained that the incident was precipitated by Kim dropping Carter off without a proper winter coat. He called the police so that her behavior would be documented. He denied telling police that he and Kim were separated or that they were involved in an ongoing custody dispute.

[47] Ryan also denied any recollection of telling police that he and Kim were involved in ongoing civil cases respecting the dissolution of their former business, that his lawyer was working on a formal agreement respecting custody of Carter, and that he and Kim had previously been involved in an intimate relationship but were no longer living together, having separated about a year earlier.

[48] Ryan stated that in February 2009, he was serving an intermittent sentence at a correctional facility in Mimico, Ontario. Kim drove him to Mimico on Friday afternoons and picked him up on Monday mornings. Kim dropped Carter off with Barbara in Guelph, so that Kim could look after the snowplowing for the business over the weekend.

[49] Ryan testified that in March 2009, he and Kim were still fighting. However, they continued working together during February and March 2009 and until the date of the accident on June 30, 2009. Ryan did not have a driver’s license during this time and Kim would drive the truck with the trailer to and from worksites.

[50] In cross-examination, Ryan also acknowledged that the GPS attended at the Sleeman residence on March 20, 2009 to respond to a call he placed. He agreed that Kim came to the residence to drop Carter off for him to take care of him, but he refused because he had recently undergone surgery to his arm and was not in a position to care for Carter. An altercation broke out between them. Kim ultimately left, and Ryan contacted the police. Ryan stated that he “possibly” told the police officer that he and Kim previously had a lawn care and snow removal business together and were still working on dividing up the assets.

[51] Ryan professed that he did not recall offering to give baby clothes to Kim because she was pregnant with another man’s child. However, he stated “if that’s what’s said then I would have to believe it as being true. I just do not recall any of that information.”

[52] On the evening of the accident on June 30, 2009, Ryan was waiting for Kim and Carter in Guelph when he learned that Kim was having an issue with the truck which had broken down. Ryan was walking towards Kitchener/Waterloo to help her when he was struck by a vehicle on Woodlawn Road. He has no memory of the accident itself. He remembers that he had been walking to return home to the Silverbirch apartment. His memory of being in hospital in Hamilton was very brief, “almost like a flashback.”

[53] Kim cared for Ryan following his release from hospital and his return to the Silverbirch apartment. She assisted him with his hygiene, including showering and shaving. She fed him, helped to get him dressed, and assisted with his medications, among other tasks. He described her as his “at-home nurse.” During this time, they continued sleeping in the same room in the same bed.

[54] On July 27, 2009, Ryan applied for Statutory Accident Benefits under the Intact policy and checked off on the application that he was applying under “my spouse’s policy.” He confirmed that his application was approved and he received payment of Statutory Accident Benefits from Intact.

[55] Ryan testified that he and Kim moved with Carter from the Silverbirch apartment in 2010 to an apartment on Luella Street in Kitchener where they resided for less than one year. They then moved to an apartment on “Bluevale” and separated in late 2011 when Ryan moved to Guelph and Kim moved in with her mother. Ryan stated that he and Kim were “falling on hard times” at that time and were still arguing. However, they continued to work together in the Elmridge business.

[56] One or two months later, Ryan and Kim moved back together into Barbara’s residence on Sleeman where they remained for approximately one year. In late 2013, Ryan moved to a house in the hamlet of Marden, at which point Kim and Ryan shut down the Elmridge business. Ryan stated he and Kim finally ended their relationship in 2016.

[57] Ryan testified that from September 2008 until the date of the accident on June 30, 2009, he and Kim lived continuously at the Silverbirch apartment with the exception of an occasional night or two when they were apart following an argument. He stated that they had a “roller-coaster ride relationship” but would always get back together.

[58] Ryan testified that during the month prior to the accident on June 30, 2009, Ryan was living with Kim at the Silverbirch apartment and all of his belongings were there. He was sleeping with Kim and their relationship remained sexual and emotional. He stated that he still loved Kim at that time and never stopped loving her up to the time of the accident.

[59] Ryan stated that during the entire time he was with Kim, he maintained his mother’s residence on Sleeman as his mailing address because, with the frequency with which he and Kim moved, he wanted to maintain a set mailing address that would not be subject to change.

[60] In cross-examination, Ryan denied that he contacted police on September 17, 2009 to complain that Kim had attended at the Sleeman residence to claim a share of some insurance money he had received and to take possession of a vehicle registered in her name. He also denied contacting FCS on September 21, 2009 to explain why he had called the police on September 17, 2009 and to advise that he intended to seek sole custody of Carter and that he and Kim had lived together with his mother until a year previously.

[61] Ryan also denied any recollection of the following incidents put to him by counsel for Intact:

a. October 20, 2009 – his having advised FCS that Kim was not allowed on his mother Barbara’s property and that this had been the case for the previous year; and

b. May 21, 2010 - his attending at the home of Kim’s new boyfriend and yelling towards the house.

Testimony of Barbara Smith

[62] Barbara testified at length respecting her observations of the formation of Ryan’s relationship with Kim and its duration and characteristics. Barbara regarded Ryan, Kim and Carter as a family. They spent a lot of time going to parks and fishing with Carter. Ryan gave Kim a diamond engagement ring.

[63] Barbara testified that she believed Ryan and Kim were committed to each other at the time of the accident on June 30, 2009. They were engaged to be married, had a child, and were living and working together. Barbara confirmed that on the date of the accident, Ryan and Kim were still living at Silverbirch.

[64] Barbara described Ryan and Kim’s relationship in 2007 and 2008 as “volatile.” They engaged in a lot of yelling, screaming and cursing at each other. When this occurred, neighbours would often call the police, and due to the presence of a child in the home, the police would frequently call Family Services. When Ryan and Kim got into these fights, typically one of them, usually Ryan, would leave for a few hours or would sometimes stay overnight someplace else. However, after these brief separations, they would get back together at Sleeman Avenue.

[65] Barbara initially testified that after Ryan, Kim, and Carter moved to Silverbirch, Ryan never moved back to live with her prior to the accident on June 30, 2009, except for the odd night or two when Ryan would return if he and Kim had an argument. On these occasions, Ryan would not bring his belongings, just what he was wearing, and would go right back to live with Kim afterward.

[66] While Ryan and Kim resided together at Silverbirch, Barbara described their relationship as consisting of “good days and arguing days,” but they always seemed to be working for an income and covering their expenses.

[67] During the three months prior to the accident, Barbara attended once or twice a week at Silverbirch to pick Carter up, often for the weekend, and would drop him off afterwards.

[68] During those three months, Ryan would occasionally drop by Barbara’s residence to say hello before visiting friends in her neighbourhood. On the evening of the accident, Ryan had dropped in briefly before advising her that he had to leave.

[69] Barbara confirmed that on February 17, 2009, a Guelph police officer had attended her home on Sleeman Avenue to address a dispute between Ryan and Kim over custody of Carter. She stated that Ryan and Kim were arguing a lot for one or two weeks during that month. Contrary to her testimony in chief, Barbara acknowledged that Ryan was living with her at Sleeman for about two weeks in February 2009. She apologized for misstating this in her testimony in chief, explaining that Ryan and Kim were constantly arguing and she was unable to recall how frequently police came to her home. She maintained that after the February incident, Ryan and Kim resided together until the date of the accident.

[70] Barbara professed to be unaware that Ryan reported to the police that he and Kim had been separated for approximately one year. When asked whether she had any explanation if there was evidence suggesting that Ryan had said this to police, she responded that Ryan tended to “embellish” the situation. He was angry on the date the police attended because Kim had dropped Carter off without a winter coat.

[71] At 11:30 PM on June 30, 2009, Barbara was contacted by the police who informed her that Ryan had been struck by a vehicle and was at the Guelph General Hospital. She attended at the hospital until Ryan was transferred to Hamilton General Hospital. Kim and Carter attended at the Hamilton General Hospital. She observed Ryan and Kim talking softly and Kim laying down on the bed beside him to cuddle him.

[72] Upon his eventual release from Hamilton General Hospital, Ryan informed Barbara that he was returning to the Silverbirch apartment in Waterloo to be with Kim and Carter. Barbara told Ryan that she was prepared to take care of him at her Sleeman Avenue residence because it would be calm and peaceful and was on one level without stairs. However, Ryan informed her that “he was going home to Kim and Carter.” Kim took care of Ryan during his recovery at the Silverbirch apartment.

[73] Barbara described Ryan and Kim’s relationship during the year following the accident as “up and down a lot. Lots of good times and lots of arguments.” Ryan occasionally came to her place for a night but went back to Kim the following day.

[74] Overall, Barbara described Ryan and Kim as both “very volatile.” Although they knew how to “push each other’s buttons” and embellish things to play the victim, they still kept returning to live together. She maintained that she was not mistaken about Ryan and Kim living together because “I lived through it and it was hell at times” especially because her grandson Carter was present in the home with them.

Testimony of Dagmar Ladouceur

[75] Ms. Dagmar Ladouceur, the Intact adjuster responsible for handling Ryan’s Accident Benefits file from August 2009 to 2017, was called as an adverse party witness by Ryan’s counsel. On consent of counsel for Intact, Ryan’s counsel was granted leave to cross-examine Ms. Ladouceur.

[76] Ms. Ladouceur had 14 years experience as an Accident Benefits adjuster at the time of Ryan’s application for Statutory Accident Benefits in 2009.

[77] Ms. Ladouceur agreed that the only way for Ryan to qualify for Statutory Accident Benefits would be if he was determined to be a spouse of the policyholder Kim. She also agreed that the Intact policy issued to Kim was a valid policy of insurance at the time of the loss.

[78] Upon receipt of Ryan’s application for Statutory Accident Benefits, Ms. Ladouceur had several tools at her disposal as the adjuster to assist in reaching a determination on whether Ryan was an insured person under the policy. One tool was to request Ryan to submit a Statutory Declaration whereby he would answer a series of questions posed by her under oath or affirmation. Ms. Ladouceur confirmed that Ryan provided her with a completed Statutory Declaration.

[79] Ms. Ladouceur acknowledged that another available tool was to have Ryan submit to an oral examination under oath or affirmation, however, she did not pursue this.

[80] Ms. Ladouceur did give instructions for a written statement to be obtained from Kim. The statement was four pages long and addressed a lengthy list of issues that the adjuster who took the statement reviewed with Kim.

[81] Ms. Ladouceur confirmed that her role as the Intact Accident Benefits adjuster was to satisfy herself that at the time of the loss, Ryan and Kim were in a conjugal relationship of some permanence, given that they had a child together. In this respect, the only information she had was derived from Ryan’s Statutory Declaration and Kim’s written statement. Based on the information disclosed in those documents, she made the determination that Ryan met the definition of “spouse” and was therefore entitled to Statutory Accident Benefits. She also confirmed that Intact paid Statutory Accident Benefits to Ryan, including attendant care benefits.

[82] In the course of her handling the file, Ms. Ladouceur received a number of medical reports and records which described Ryan’s injuries and the circumstances of his life. At no point during that process did she ever retract her decision that he was entitled to Accident Benefits.

[83] As the Accident Benefits adjuster, Ms. Ladouceur never had access to the companion tort file for Ryan that would have existed at Intact. It was company policy to keep clients’ Accident Benefits and the tort files separate in order to maintain client confidentiality, and no communication was permitted between the adjusters handling the respective files.

[84] There was no evidence that Ms. Ladouceur ever had access to the GPS and FCS files referred to above and described below which were obtained by Intact counsel in advance of trial in this proceeding.

Evidence of Intact

[85] The only evidence called by the defendant, Intact, consisted of various redacted reports obtained from the GPS and FCS.

[86] Following submissions by counsel, the court ruled on the admissibility of the GPS and FCS reports as business records pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. 23 and the common law business records exception to the hearsay rule. For oral reasons given, I ruled as follows:

(a) on consent, statements attributed to Ryan in the GPS and FCS records are admissible as statements against interest made by him to police and to FCS personnel;

(b) the records are admissible in respect of statements made by Kim only for the fact that she contacted or communicated with police or with FCS personnel;

(c) the records are not admissible for the truth of any factual statements made by Kim to police or to FCS personnel;

(d) the records are not admissible in respect of opinions, impressions, summaries or recommendations of police or FCS personnel; and

(e) the records are admissible in respect of the results of independent factual investigations made by police or FCS personnel stemming from reports communicated to them by Ryan and Kim, provided such results are relevant to the issues to be determined at the trial.

[87] Counsel agreed upon specific redactions to be made to the GPS and FCS reports to conform with the ruling and the redacted records were entered collectively as an exhibit, which comprised Intact’s case.

[88] The pertinent passages from the redacted GPS records may be summarized as follows:

(a) February 17, 2009

Ryan contacted the GPS to advise that his ex-girlfriend Kim was outside his residence and refusing to leave. He was requesting that police attend to have her removed from the property. GPS attended at the residence at 36 Sleeman Avenue and spoke with the two involved parties.

In speaking to the police, Ryan advised that the incident was a result of him being unwilling to hand over custody of his son. He advised that on Tuesday, February 10, 2009, Kim dropped the son off at the Sleeman residence knowing that Ryan was serving an intermittent sentence and would be in custody at a facility in Mimico, Ontario on the weekend. Ryan stated that Kim had simply dropped their son off and left him in an awkward position where he was forced to find someone to watch his son over the weekend at the last minute.

Ryan also explained to police that there were ongoing civil issues between the parties over the business they once owned together. He advised that he was currently undergoing the process of civil litigation in order to get money and property back and was also in the process of having a formal child custody agreement drawn up.

(b) March 22, 2009

On March 20, 2009, Guelph police attended at 36 Sleeman Avenue for a report of a domestic dispute. The complainant Ryan was having problems with his “ex” Kim. They had been in a common law relationship for approximately three years, had one child together, and had since ended their relationship in June 2008. They had a snow-plow and landscaping business together and still had not straightened out tools, equipment and money issues in relation to their separation. Ryan advised that the ongoing issues had yet to be dealt with in civil court.

Kim had attended at the Sleeman residence and wanted to drop Carter off for Ryan to care for him, but Ryan was unable to do so because he just had serious shoulder surgery and could not move his arm. Kim also wanted lawnmowers and tools that she claimed were hers from the business, however, Ryan’s mother was on the scene and advised that they were hers. Ryan stated that he recently learned that Kim was newly pregnant with another man and willingly gave Kim several items of baby clothes.

[89] The pertinent passages from the FCS reports may be summarized as follows:

(a) August 8, 2006 – On August 7, 2006, at approximately 8:00 PM, GPS responded to a domestic dispute at a Tim Horton’s parking lot on Imperial Road in Guelph. One of the parties was noted to be Ryan. The name of the other party was redacted;

(b) February 23, 2006 – FCS worker received a call from Ryan at 1:30 AM reporting that his girlfriend Kim was five months pregnant and drinking regularly. Ryan said that Kim lived in Kitchener but he did not know the address or phone number;

(c) September 9, 2008 – FCS received a call from Constable Dave Anderson of the GPS reporting that Ryan called police because his ex-girlfriend was banging on the door. She was at Ryan’s place to pick up Carter. Ryan explained to police that Carter had been left with him for the past three weeks. Ryan lives with his mother, who is his surety;

(d) September 17, 2009 – FCS received a call from Constable McBride of GPS advising that he attended Ryan’s home after Ryan called the police. Ryan said that he and Kim had gotten into a verbal altercation at his home. Ryan had just come into some insurance money. Kim wanted some money and the vehicle that is in her name;

(e) October 8, 2009 – FCS received a call from Ryan. Ryan stated that he called because Kim is not allowed on his mom’s property and that is why police were called. “Any time she comes, call police, since last year when lost license.” Ryan said that he and Kim lived with Barbara until a year ago. Kim dropped [redacted] off with Ryan on Monday. Ryan sees [redacted] every week and is filing for sole custody of [redacted]. [Redacted] has daycare he goes to when with dad;

(f) May 26, 2010 – FCS received a report from the Waterloo Regional Police Service advising that Kim had contacted them. Police spoke with Ryan by telephone. Ryan got into a yelling match [redacted]. Ryan said that the only reason he went to [redacted] was because Kim called and asked him to bring [redacted] to her;

(g) May 30, 2010 – FCS received a call from Ryan to advise that he had [redacted] for access this weekend. Ryan reported that he and Kim broke up about two months earlier and Ryan went to get some belongings out of their joint vehicle about three weeks ago. Ryan advised Kim is now dating [redacted].

Discussion

[90] As noted by Glustein J. in Wawanesa Mutual Insurance Co. v Unica Insurance Inc., 2021 ONSC 4266, at para. 74, the leading authority addressing the question of what constitutes a “conjugal relationship” is M. v. H., [1999] 2 S.C.R. 3, 62 C.R.R. (2d) 1, wherein Cory and Iacobucci JJ. stated, at paras. 59-60:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely.

[91] As exemplified by the authorities cited by the parties, much of the jurisprudence dealing with the definition of “spouse” in the automobile insurance context comprises arbitral decisions in relation to priority disputes among insurers. Recent Superior Court of Justice decisions on the issue have been appeals from arbitral decisions on such priority disputes: see e.g. ING Insurance Co. of Canada v. Co-Operators Insurance Co., 2013 ONSC 4885, per Leitch, J.; Royal & Sun Alliance Insurance Co. of Canada v. Desjardins Insurance Group, 2018 ONSC 4284, per Morgan J.; Intact Insurance Company v. The Dominion of Canada General Insurance Company, 2020 ONSC 7982, per Lemay J.; Wawanesa v. Unica).

[92] In relation to the question of the meaning to be applied to the phrase “live together,” Lemay J. in Intact v. Dominion, at para. 73 declined to apply the following passage at para. 51 of Leitch J.’s earlier decision in ING v. Co-Operators:

While I note that Molodowich makes clear that the fact that one party continues to maintain a separate residence does not preclude a finding that parties are living together in a conjugal relationship, it is difficult to accept that Jason and Amy "lived together" for the purpose of the spousal definition under the Act for the three-year period leading up to the accident. [Emphasis added.]

[93] Lemay J. declined to apply the underlined passage from ING on three bases:

1. the decision in ING did not consider the different statutory regimes;

2. the conclusion expressed is obiter; and

3. the conclusion must be considered in its entirety, including observations of Leitch J. at para. 50 of ING that suggest a narrower interpretation of the definition of spouse would be appropriate.

[94] Instead, Lemay J. followed the reasoning of Morgan J. in Royal & Sun Alliance, noting at paras. 75(a) and (b) that two significant principles emerged from that decision:

(a) The interpretation of spouse under the Insurance Act is different than the interpretation of spouse under the family law statutes.

(b) “Live together in a conjugal relationship” needs to be interpreted with regard to the clear meaning of the two phrases. All of the words need to be given meaning. “Live together” means living in the same residence.

[95] Specifically, Lemay J. adopted the following passage from Royal & Sun Alliance, at para. 27, wherein Morgan J. drew a distinction between the interpretation of “spouse” in the insurance context and the family law context:

Unlike the Family Law Act, the Insurance Act provides automatic benefits to spouses regardless of need. It therefore requires a context-specific approach of its own. More specifically, the insurance context contains no imperative to deviate from the ordinary understanding of what it means for two persons to "live together". In the family law sense of the term, where dependency is crucial to the spousal support context, persons can "live together" — i.e. live interdependent lives — but maintain separate physical residences. In most non-family law contexts, and particularly in the insurance law context of automatic benefits without a broad sociological foundation on which to base those benefits, people who "live together" can be considered spouses, but only if they do so in the normal sense of those words and for the requisite period of time.

[96] In adopting the foregoing passage, Lemay J. found that “lived together” has a plain and ordinary meaning, namely, “occupy the same premises.”

[97] It is important to note that Royal & Sun Alliance and Intact v. Dominion were both concerned with the first branch of the definition of “spouse” at s. 224(1)(c) of the Insurance Act which applies only to unmarried parties without children. In these cases, the definition imposes both a temporal and a continuity requirement - that the parties “have lived together in a conjugal relationship outside marriage, continuously for a period of not less than three years.” By contrast, in respect of parties with one or more children, there is no temporal requirement and no requirement that the parties have lived together continuously. All that is required is that they “have lived together in a relationship of some permanence.”

[98] No Superior Court cases were cited by counsel, nor has the court discovered any in its own review, which have considered the question of whether, under the second branch of the definition of “spouse” in s. 224(1)(c) of the Insurance Act, the two persons must be residing under the same roof to be found to be “living together in a conjugal relationship.”

[99] A line of arbitral jurisprudence has suggested that it is not necessary in all cases that two persons who have a child together maintain the same residence to be found to be living together in a conjugal relationship.

[100] In Re: Aviva Canada Inc. and TD Insurance Co., 2020 CarswellOnt 4387, Arbitrator Shari L. Novick observed at para. 30 that there are competing lines of authority regarding whether the “living together” part of the phrase should be interpreted literally under the first branch of the definition requiring a couple to have lived together in a conjugal relationship for a period of not less than three years. She referred to Morgan J.’s decision in Royal & Sun Alliance in which he took the literal view and contrasted it with ING in which Leitch J. observed that the fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship. Parenthetically, it is noted that Arbitrator Novick’s decision in Re: Aviva Canada Inc. and TD Insurance Co. was released approximately nine months prior to the release of Lemay J.’s decision in Intact v. Dominion.

[101] Arbitrator Novick observed at para. 31 that arbitrators who have decided cases under the second branch of the test pertaining to parties with children have generally found that the fact that a couple has maintained separate residences does not disqualify them from meeting the definition of “spouse” if the evidence otherwise satisfies the requirements that the relationship was conjugal and could be described as a relationship of “some permanence.”

[102] Arbitrator Novick concluded that, under the second branch of the definition of “spouse” in reference to parents of children, “lived together” does not require habitation under one roof in all cases, but rather a more holistic approach is to be applied, stating at para. 34:

In my view, the above authorities establish that the phrase "have lived together in a conjugal relationship" should be interpreted as a whole, rather than broken down into constituent parts. When analysing a relationship between parents of a child in order to determine whether it satisfies the requirement for conjugality and the vague measure of having "some permanence", I find that a more holistic approach is called for. My view is that the finder of fact must examine the couple's actions and routines against the accepted indicia of a close relationship, and determine whether the level of commitment displayed rises to that of spouses.

[103] The definitions of “spouse” found in the two branches are quite distinct. As noted, both a temporal and a continuity requirement are applied under the first branch. The requirements on persons with children are significantly relaxed – stipulating only that the persons be in a conjugal relationship of some permanence.

[104] The policy reason behind distinguishing between persons with children and without children in this fashion is not manifested in the legislation itself. In my view, it cannot be rooted in the question of the commitment between the couple under consideration, as there is no reason to suggest that couples without children are generally any less committed to one another than couples with children.

[105] A possible explanation for the distinction between the two branches of the definition may relate to the question of need—that is, the relaxed definition which applies to parents may rest on a presumption, by no means universal, that parents with responsibilities for children may have a greater need for insurance protection if they are injured by an uninsured or underinsured driver than persons without children. It is acknowledged that this presumption only goes so far, as there is no requirement that the parties’ child or children be dependent on them or even be minors for the second branch of the definition to apply.

[106] In my view, the reasoning and findings of Morgan J. in Royal & Sun Alliance v. Desjardins followed by Lemay J. in Intact v. Dominion, each of which dealt only with the first branch of the definition relating to persons without children, do not compel the application of the same strict and literal interpretation in cases involving persons with children to whom the more relaxed requirements of the second branch apply.

[107] I find the approach taken by Arbitrator Novick in Re: Aviva Canada Inc. and TD Insurance Co. favouring a holistic approach to be persuasive in reference to the application of the second branch of the definition of “spouse.” Thus, in the case at bar, since Ryan and Kim were parents of a child, their living under the same roof during the time leading up to the date of the accident is not a precondition to a finding that Ryan was a “spouse” and thus entitled to claim under the Intact policy. As observed by Arbitrator Novick, what is required is an examination of their activities and routines against the accepted indicia of a close relationship to determine whether the level of commitment displayed rises to that of “spouses.”

[108] In my view, there is no question that Ryan and Kim did live together in a conjugal relationship of some permanence for a considerable time during their relationship. I did not understand counsel for Intact to dispute this. Ryan’s evidence, supported by that of Barbara, was that he and Kim resided together sharing a bedroom in Barbara’s home in a sexual and emotional relationship from some time during Kim’s pregnancy in the fall of 2005 and continued following Carter’s birth in April 2006. They remained together sharing a bedroom in a sexual and emotional relationship, with brief interruptions when one of them left, most often Ryan, for a day or more following arguments. In the fall of 2006, there was an incident between them which led to police involvement and the imposition of a “no-contact order” on Ryan which Kim arranged to have lifted after one or two weeks. However, following brief separations, they always got back together until June or July 2008 when Kim left to reside with friends in Hamilton.

[109] While they were living in Barbara’s home from the fall of 2005 to the early summer of 2008, Ryan and Kim worked together in the landscaping and snow-plowing business that had been started by Ryan before he met Kim. They pooled the income from the business they operated together and both drew on the business income to support themselves and Carter.

[110] I find that, following Kim’s relocation to Hamilton in June or July of 2008, Ryan and Kim maintained their emotional and sexual relationship. Ryan testified that he and Kim parted because they “needed a break” following a period of frequent arguments, virtually all of them about the business and money. He also stated that they continued to see each other frequently, visiting back and forth between Guelph and Hamilton, and began making plans for a “fresh start” in Waterloo. Ryan’s evidence respecting the nature of the relationship during the time that Kim was in Hamilton was not challenged or undermined on cross-examination.

[111] I find that during Kim’s temporary relocation to Hamilton in the summer of 2008, Ryan and Kim continued to live together in a conjugal relationship of some permanence, albeit not under the same roof. The evidence of Ryan and Barbara was consistent that Ryan moved to Kim’s apartment on Silverbirch in Waterloo in the fall of 2008 to resume physical cohabitation under one roof. I find that their relationship continued to be volatile, involving frequent short separations. Until at least February 2009, they always got back together and resumed cohabitation. There is no evidence that either of them formed an intention to terminate their conjugal relationship before then, and indeed, Ryan’s evidence was to the contrary and Kim was not called to testify.

[112] I find that the most helpful and instructive case, and one which is factually comparable to the case at bar, on the question of what circumstances must be present to bring a conjugal relationship to an end in the context of the second branch of the definition of “spouse” is that of Certas Direct Insurance Company v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance (unreported) - a decision of Scott M. Densem, Arbitrator, released April 17, 2018.

[113] In Certas, the Statutory Accident Benefits claimant (“JL”) was struck by an unidentified automobile while riding his bicycle and was injured. He submitted a claim for Statutory Accident Benefits to the insurer Certas which had issued a standard motor vehicle liability policy which provided Accident Benefits coverage to LM. At the time of the accident, JL and LM were the natural parents of a child born approximately 27 months prior to the accident.

[114] In order to be entitled to Statutory Accident Benefits under LM’s policy, JL had to meet the definition of “spouse” set out in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, the applicable part of which, since the parties were parents, was identical to the second branch of the definition of “spouse” under consideration in the case at bar, namely, “have lived together in a conjugal relationship outside marriage … in a relationship of some permanence.”

[115] The relationship between JL and LM was marked with considerable difficulty and hardship, largely caused by JL’s substance use. JL’s addiction troubles were marked by frequent and sometimes lengthy separations from LM and their child while he underwent treatment or lived on the street or other places, including jail, following relapses.

[116] The insurer Certas conceded that JL and LM were spouses for accident benefits purposes from August 1, 2013 (the birth of their child) until the beginning of April 2014 when JL began a drug rehabilitation program in Windsor, Ontario, some 19 months prior to the accident.

[117] Arbitrator Densem found at p. 18 that from the early beginnings of the parties’ relationship in 2011 until the accident, no matter how bad things became because of JL’s substance use, neither of them said or did anything to indicate that she or he had given up on the relationship, or to indicate a “settled intention” to end it permanently. In characterizing the test for termination of a conjugal relationship outside of marriage in this fashion, Arbitrator Densem made reference to the Ontario Court of Appeal decision in Re Sanderson and Russell (1979), 24 O.R. (2d) 429, 99 D.L.R. (3d) 713 (Ont. C.A.), a family law case, in which Morden J.A., writing for the panel, observed:

Without in any way attempting to be detailed or comprehensive, it could be said that such a relationship has come to an end when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.

[118] At p. 19, Arbitrator Densem stated that “each relationship must be considered in the context of the parameters for the relationship that the parties involved have established for themselves, and not be measured against some type of ‘normal’ or ‘standard’ spousal relationship.”

[119] I agree with this statement.

[120] Arbitrator Densem carried out a comprehensive review of the evidence which is not pertinent to the issues to be determined in the case at bar. What is significant is his observation at p. 43 that “it is relevant to consider how JL and LM reacted to the accident - not to speculate about whether they could have revived an expired relationship absent the accident, but as part of the totality of the evidence bearing on whether they still had a spousal relationship when the accident occurred.”

[121] The evidence indicated that LM immediately responded, without hesitation, to the call from the hospital on the day of the accident to go to JL and that she contacted JL’s family to go with her. LM willingly engaged in discussions with Children’s Aid about allowing JL to begin living with her and the child after the accident despite his drug addiction.

[122] Arbitrator Densem at p. 45 stated that these were not actions of a person who considered her relationship with the former spouse to be at an end, but rather, demonstrated a spousal level of caring, compassion and concern. LM’s response to the accident was evidence that she saw it as creating an unexpected opportunity to repair her damaged relationship with JL and that it could possibly be normalized with some more effort on both of their parts.

[123] Arbitrator Densem found, on the facts of the case, that neither party regarded the relationship as being at an end nor, by his or her conduct, demonstrated in a convincing manner that this particular state of mind was a settled one. JL was therefore found to be a “spouse” according to the second branch of the definition.

[124] In the case at bar, I likewise find that at the time of the accident, neither Ryan nor Kim regarded the relationship as being at an end nor, by his or her conduct, demonstrated in a convincing manner that that state of mind was a settled one. Therefore, their conjugal relationship had not ended prior to the accident on June 30, 2009.

[125] There is no question that Ryan told police in February and again in March 2009 that Kim was his “ex,” even going so far as to state that they had been separated since June 2008 (when Kim moved to Hamilton). However, these statements—which were recorded by police after being summoned by Ryan to the Sleeman residence—were isolated statements which lacked the full context including that Ryan and Kim’s relationship, almost from its inception, was marked not only by volatility, conflict and anger, but also by a pattern of temporary separations and subsequent reconciliations. Whenever they fought and separated, they always went back to each other and resumed their sexual, emotional and business relationship. The significance and reliability of Ryan’s statements to police is also mitigated by Barbara’s observation that when Ryan was angry, he tended to “embellish.”

[126] I do not find Ryan’s statement to FCS on September 9, 2008, in which he described her as his “ex-girlfriend,” supports a finding that Ryan regarded his relationship with Kim at that time to be at an end and a convincing demonstration that that state of mind was a settled one. The two were living in separate cities at the time (Kim having moved to live with a friend in Hamilton for a few months during this time) and a colloquial reference to Kim as his “ex-girlfriend” may have been expected and is not of significance when considering the totality of the evidence.

[127] Although Barbara acknowledged that she had been mistaken with respect to the length of time that Ryan was apart from Kim and living with her at the Sleeman residence in February 2009, conceding that he was there for about two weeks, I am not satisfied that her revised estimate was necessarily accurate—the period could very well have been longer. However, that does not necessarily detract from a finding that at the time of the accident four months later Ryan and Kim were in a conjugal relationship.

[128] Ryan testified that for the month prior to the accident, he was living with Kim at Silverbirch and their relationship remained sexual and emotional. He stated that he loved her at that time. On the evening of the accident, Ryan was walking a long distance from Guelph to Waterloo to help Kim with difficulties she was having with the truck which had broken down. This was not the conduct of a person who had formed a settled intention not to continue the relationship.

[129] In her testimony, Barbara confirmed that, during the period preceding the accident, which she stated comprised three months, Ryan was living with Kim at Silverbirch. Barbara knew this because she attended regularly at the apartment to pick Carter up and drop him off afterwards.

[130] Intact led no evidence to contradict Ryan’s and Barbara’s evidence in this respect, and their evidence was not significantly undermined on cross-examination.

[131] Although I have found that living under the same roof is not a sine qua non for a finding that parties were living together in a conjugal relationship of some permanence, even if I am wrong in that conclusion, I find on a balance of probabilities that Ryan and Kim were in fact living together under the same roof at the apartment on Silverbirch for at least one month immediately prior to the accident.

[132] Moreover, as was found in Certas, Ryan and Kim’s reaction to the accident and the serious injuries that Ryan sustained was “part of the totality of the evidence bearing on whether they still had a spousal relationship when the accident occurred.” Kim’s attending immediately at the hospital in Hamilton, her demonstration of affection and concern exemplified by her getting into Ryan’s hospital bed and cuddling with him, and her acceptance of responsibility to care for all of his needs, including his hygiene, food and medical/rehabilitative requirements, during his recovery at the Silverbirch apartment rather than leaving that to Barbara who was prepared to take it on, are not the behaviours and attitudes of the person who had formed a settled intention to bring the relationship to an end.

[133] Ryan’s acceptance of Kim’s care and assistance, rather than accepting Barbara’s offer to care for him, also demonstrates his intention to maintain the spousal relationship with Kim.

Determination

[134] For the foregoing reasons, I find that on the date of the accident, Ryan met the definition of “spouse” applicable to the uninsured and underinsured coverages under the Intact policy.

[135] In light of this finding, it is not necessary to make a determination of whether Ryan is entitled to uninsured and underinsured coverage under the Intact policy by virtue of having been approved by Intact for Statutory Accident Benefits and having received payment of Accident Benefits.

[136] As indicated previously, the parties agreed prior to trial on damages, however, the details were not disclosed to the court.

[137] I find that Ryan is entitled to judgment against Intact for the amount of the damages agreed to, plus applicable pre-judgment interest as agreed. The action against the Fund shall be dismissed.

Settling the judgment and costs

[138] Counsel for the parties advised that, following receipt of the court’s determination on the question of whether Ryan is entitled to coverage for his damages pursuant to the uninsured and underinsured provisions of the Intact policy, they will communicate to the court their proposal with respect to next steps, whether that be by a further attendance in-person or by videoconference to make submissions concerning the terms of the judgment to be issued, or by delivery of a draft consent judgment for approval.

[139] Counsel for the parties are directed to be in contact with the Trial Coordinator at Kitchener to advise whether they request a further attendance in-person or by videoconference to settle the terms of the judgment and/or to make oral submissions with respect to costs. The parties are strongly urged to settle the issue of costs. If the parties are unable to do so and have agreed to make written submissions on costs, I will issue directions respecting the delivery of written costs submissions.

D.A. Broad, J.

Released: January 17 2023