Court File and Parties
COURT FILE NOs.: 32-2632453 and 32-2769965 DATE: 20241105
Superior Court of Justice - Ontario
RE: In the Matter of the Consumer Proposal for Christine Ramgulam-Rafiq In the Matter of the Bankruptcy of Kishen Vicky Doon
BEFORE: Associate Justice Rappos
COUNSEL: Julian Binavince, for Christine Ramgulam-Rafiq Murad Ali Khan, for Kishen Vicky Doon Gregory Gryguc, for M.A. (plaintiff in Court File No. CV-21-00660619-0000) Trina DeSa, for C.S. et al (plaintiffs in Court File No. CV-21-00659830-0000) Ilan Kibel, representative of BDO Canada Limited
HEARD: June 14, 2024 (via videoconference)
Reasons for Decision
Overview
[1] 25518891 Ontario Inc. (the “Company”) owned and operated the Raydiance Sun and Med Spa from 2017 to 2020. Christine Ramgulam-Rafiq was the manager of the Spa. She is also one of two directors of the Company. Kishen Vicky Doon is the spouse of Ms. Ramgulam-Rafiq. He worked at the Spa.
[2] On April 17 2019, Mr. Doon was charged with, among other things, voyeurism under subsection 162(1)(a) of the Criminal Code. The York Regional Police contacted a number of the Spa’s customers and informed them that Mr. Doon had taken photos/videos of them while they were nude or in the process of dressing/undressing in the tanning bed rooms. The incidents allegedly occurred between September 2018 and April 2019. A cellphone owned by the Company was used to take the photos/videos.
[3] On December 17, 2020, Mr. Doon pled guilty to one charge of voyeurism, and received a conditional sentence of five months and 29 days and one year probation. Mr. Doon says he entered the plea due to concerns over the potential length of incarceration, deportation consequences, legal costs, and his deteriorating health.
[4] In April 2021, two actions were commenced against Ms. Ramgulam-Rafiq, Mr. Doon, the Company, and others. In the actions, the plaintiffs seek damages for, among other things, assault and battery, breach of trust, intrusion upon seclusion, and negligence.
[5] Ms. Ramgulam-Rafiq says that she had no firsthand knowledge of the acts of voyeurism. Her knowledge of the issue is based on information the police provided to her and knowledge she obtained during Mr. Doon’s criminal proceeding.
[6] Neither Ms. Ramgulam-Rafiq nor Mr. Doon has delivered a statement of defence in the actions to date. Ms. Ramgulam-Rafiq believes that Mr. Doon did not commit the criminal acts, and that an individual who rented out a tanning bed room engaged in the acts. Ms. Ramgulam-Rafiq says that Mr. Doon denies recording the plaintiffs in her affidavit. Mr. Doon does not deny engaging in the acts in his affidavit.
[7] Ms. Ramgulam-Rafiq filed a consumer proposal on March 19, 2020, and BDO Canada Limited was appointed as administrator. On September 28, 2021, Mr. Doon filed an assignment in bankruptcy and BDO was appointed as trustee.
[8] The moving party plaintiffs bring motions for orders lifting the stays of proceedings as against Ms. Ramgulam-Rafiq and Mr. Doon pursuant to section 69.4 of the Bankruptcy and Insolvency Act (the “BIA”). The moving parties argue that they will be materially prejudiced if the stays are not lifted and they are not permitted to continue with their actions.
[9] Ms. Ramgulam-Rafiq and Mr. Doon argue that the stays should not be lifted, as there are no sound reasons to lift the stay.
[10] BDO in its capacity as Trustee and Administrator did not take a position on the motions.
[11] For the reasons that follow, I find that there are sound reasons to lift the stays of proceedings. As a result, the motions are granted.
Legal Principles
[12] One of the central purposes of the BIA is to encourage the rehabilitation of an “honest but unfortunate” debtor and permit his or her reintegration into society by obtaining a discharge from the continued burden of financial obligations that cannot be met. [1]
[13] Another purpose is to provide for the orderly and fair distribution of the property of the bankrupt amongst his or her creditors. The stay provisions are designed to prevent proceedings by a creditor that might give the creditor an advantage over other creditors. [2]
[14] Section 69.2(1) of the BIA provides that on the filing of a consumer proposal, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution, or other proceedings, for the recovery of a claim provable in bankruptcy. Subsection 69.3(1) provides for the same stay of proceedings upon the bankruptcy of a debtor.
[15] The stay provisions are subject to section 69.4 of the BIA. That section provides that a creditor who is affected by the stay may apply to the court for a declaration that the stay provision no longer operates in respect of the creditor, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied (a) that the creditor is likely to be materially prejudiced by the continued operation of the stay, or (b) that it is equitable on other grounds to make such a declaration.
[16] Lifting the stay is far from a routine matter. The onus is on the moving parties to establish a basis for the order within the meaning of section 69.4. [3] The role of the court is to ensure that there are “sound reasons”, consistent with the scheme of the BIA, to relieve against the stay. [4]
[17] There is a long history of decisions in Ontario that detail what may be considered to be sound reasons to lift the stay. In the seminal decision of Re Advocate Mines Limited, Registrar Ferron set out the following reasons to lift the stay, among others:
(a) Actions in which the bankrupt is a necessary party for the complete adjudication of the matters at issue involving other parties; (b) Actions in respect of a contingent or unliquidated debt, the proof of which and valuation has that degree of complexity which makes the summary procedure prescribed by the BIA inappropriate; and (c) Actions against the bankrupt for a debt to which a discharge would not be a defence. [5]
[18] The moving parties are not required to establish that they have a prima facie case against Ms. Ramgulam-Rafiq and Mr. Doon. However, the court may consider the merits of the action where relevant to the issue of whether there are sound reasons for lifting the stay. It will be difficult to find that there are sound reasons for lifting the stay where it is apparent that the action has little prospect of success. [6]
[19] The moving parties need only plead specific facts that show that there are sound reasons to lift the stay, such as a set of facts, which if believed, would fall within claims that are not released upon discharge under section 178(1) of the BIA. [7]
[20] The threshold for the moving parties to meet has been described as being a low one. However, the onus on a plaintiff will depend, in part, on the extent to which a defendant adduces evidence that the action in question is frivolous, vexatious or has little chance of success. In that case, a court may need to have regard to the nature and the strength of the plaintiff’s evidence concerning the merits of the action. [8]
[21] With respect to section 178(1) of the BIA, it sets out certain categories of debts that are not released by the discharge of a bankrupt. They are exceptions to the overriding principle that a debtor is released from his or debts upon discharge pursuant to section 178(2).
[22] It has been said that the exceptions contained in section 178(1) represent the types of claims that society considers to be of a quality which outweighs any possible benefit to society in the bankrupt being released of those obligations. [9]
[23] The language of section 178(1) does not necessarily correspond to legal causes of action. The categories are ways of characterizing existing liabilities so as to trigger the underlying policy rationale for allowing those liabilities to survive discharge from bankruptcy, regardless of the legal basis for that liability. [10]
[24] The role of the court is to examine the pleadings and any other “contextual facts” on the record to determine whether the liability is properly characterized as falling within any of the listed categories. The language of section 178 need not be explicitly used in the pleadings, but the facts alleged must clearly suggest that the liability falls under that provision. [11]
Analysis
Ramgulam-Rafiq and Doon are necessary parties for the complete adjudication of the matters at issue involving other parties
[25] The moving parties argue that Ms. Ramgulam-Rafiq and Mr. Doon are necessary parties for the complete adjudication of the matters at issue, which involves other defendants.
[26] In the first action commenced by the plaintiff identified as M.A., the defendants are Ms. Ramgulam-Rafiq, Mr. Doon, the Company, Mary Rafiq (the other director of the Company), and the corporate landlord. In the second action commenced by 13 plaintiffs, the defendants are Ms. Ramgulam-Rafiq, Mr. Doon, the Company, Mary Rafiq, and the former owner of the Spa.
[27] The plaintiff M.A. seeks damages against all defendants for the tort of assault and battery, breach of trust, intrusion upon seclusion, the tort of public disclosure of private facts, and negligence. The 13 plaintiffs seek damages for negligence and intrusion upon seclusion, and allege that the Defendants other than Mr. Doon (i) were reckless and are liable, either directly or vicariously, for breach of privacy; and (ii) were negligent in their failures to prevent voyeurism.
[28] The 13 plaintiffs allege that some or all of the defendants knew or ought to have known of Mr. Doon’s voyeuristic tendencies, and chose to ignore or failed to take any sufficient steps to prevent the acts from occurring.
[29] The plaintiffs argue that the participation of Ms. Ramgulam-Rafiq and Mr. Doon in the discovery and trial process is necessary for the complete adjudication of the claims as against all of the defendants.
[30] Mr. Doon’s submissions did not go into more detail than to provide a simple recitation that he was not a necessary party. Ms. Ramgulam-Rafiq argues that she is not a necessary party to the actions on the basis that a necessary party is someone whose involvement is more than just to contribute relevant evidence, and she can only be a necessary party if the plaintiffs have an actual cause of action as against her. In support of this position, Ms. Ramgulam-Rafiq relies on cases that have considered rules of practice to add/join a party to a proceeding as a necessary party.
[31] Ms. Ramgulam-Rafiq has not directed me to any case law that provides that the principles for joining a party to an action are to be applied on a lift stay motion. To the contrary, in Burke v Red Barn at Mattick’s Ltd. (“Red Barn”), the British Columbia Supreme Court held that the discovery obligations inherent in the bankrupt’s participation as a party to the proposed class action claim as against him and his employer resulted in the bankrupt being a necessary party for the purposes of lifting the stay. [12]
[32] In my view, the decisions cited by Ms. Ramgulam-Rafiq are not applicable. I find that a party is necessary for the purposes of a lift stay motion where, without their evidence and involvement in the actions, the plaintiffs would not be able to fairly prove their claims against other defendants. In these actions, the plaintiffs seek relief against the Company. The involvement in the action and the evidence of Ms. Ramgulam-Rafiq will absolutely be necessary to permit the plaintiffs to pursue the Company, as Ms. Ramgulam-Rafiq was the operating mind of the Company according to her evidence. With respect to Mr. Doon, given that it is his actions that serve as the foundation of the claims, his participation is necessary to permit the plaintiffs to pursue their claims to hold the other defendants liable for damages.
[33] As a result, I find that this ground weighs in favour of lifting the stays.
The summary claim procedure under the BIA would be inappropriate for the claims of the plaintiffs
[34] The BIA provides that the Trustee is required to examine every proof of claim, and determine whether any contingent or unliquidated claim is a provable claim. If the Trustee determines that it is a provable claim, the Trustee is required to value the claim. [13]
[35] The plaintiffs argue that the summary evaluation procedure under the BIA is an inappropriate mechanism to determine quantum of damages in a complex case. They rely on the Red Barn decision. In that case, a class action had been proposed against a bankrupt for breach of privacy involving the non-consensual capture of explicit images in a workplace washroom. Justice MacKenzie concluded that the summary valuation process under the BIA was inappropriate for such a case. [14] The plaintiffs also rely on 304260 Ontario Ltd., where Registrar Nettie held that an unliquidated claim founded in conspiracy and other torts are not amenable to quantification under the BIA procedure. [15]
[36] I agree with the plaintiffs’ submissions on this issue. Deciding whether Ms. Ramgulam-Rafiq and/or Mr. Doon are liable for negligence or intrusion upon seclusion and, if so, assessing an appropriate quantum of damages, goes far beyond the summary claim procedure provided for under the BIA.
[37] As a result, I find that this ground weighs in favour of lifting the stays.
Actions for a Debt to which a Discharge would not be a Defence
[38] The majority of the written and oral argument was focused on whether the claims of the plaintiffs are of a nature that would be captured under section 178(1) of the BIA and not be released upon discharge.
[39] The plaintiffs rely on the following provisions of section 178(1):
(a.1)(i) any award of damages by a court in civil proceedings in respect of bodily harm intentionally inflicted, or sexual assault; (d) any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity…; (e) any debt or liability resulting from obtaining property or services by false pretenses or fraudulent misrepresentation.
Section 178(a.1)(i) - Doon
[40] Under section 178(a.1)(i), the claim must arise from an act done with specific intent to injure (as opposed to an intentional act that incidentally results in injury). [16] The requisite intention can be proved directly or it can be reasonably inferred from the facts. [17] Without the intentional infliction of harm the section does not apply. [18] Bodily harm includes psychological harm. [19]
[41] In the Red Barn case, the British Columbia Supreme Court concluded that the non-consensual taking of explicit images of a person constituted “bodily harm intentionally inflicted” under subsection 178(1)(a.1)(i). [20]
[42] In my view the Red Barn decision is on point with respect to Mr. Doon. He was charged and plead guilty to voyeurism under the Criminal Code. This constitutes bodily harm intentionally inflicted, and thus the plaintiffs’ claims if proven are debts that may not be released on Mr. Doon’s discharge under subsection 178(1)(a.1)(i).
[43] As a result, I find that this ground weighs in favour of lifting the stays as against Mr. Doon.
Section 178(a.1)(i) - Ramgulam-Rafiq
[44] The plaintiffs allege that the same finding should be made with respect to Ms. Ramgulam-Rafiq. They argue that Ms. Ramgulam-Rafiq knew about Mr. Doon’s voyeurism, and that Ms. Ramgulam-Rafiq intended to cause harm to the plaintiffs through Mr. Doon. The plaintiffs rely on the New Brunswick Court of Appeal’s decision in Martin v. Martin. [21]
[45] In that case, Lucien obtained a judgment against Zoël for serious personal injuries as a result of the intentional tort of battery. Zoël’s three brothers were found jointly and severally liable for damages as joint tortfeasors, although they did not assault Lucien. [22] The brothers witnessed the assault and were held to be “trespassers and aggressors” and had been acting “in concert for a common end”. [23] All three brothers filed assignments in bankruptcy and were discharged. Lucien applied for a declaration that they were not released from the liability. [24] The New Brunswick Court of Appeal concluded that Zoël’s intention to harm Lucien could be imputed to all three brothers as much as to Zoël who carried out the common design on their behalf, and held that the three brothers were not released from liability on the judgment. [25]
[46] Ms. Ramgulam-Rafiq argues that the Martin case is distinguishable, since the statements of claim contain no allegations that she acted in a “concerted action to a common end” with respect to the voyeurism or that she intended to cause harm to the plaintiffs. Ms. Ramgulam-Rafiq relies on her affidavit where she states that she had no knowledge of the recordings, so she could not have acted in concert to a common end. She also argues that there is potentially a limitations issue for the plaintiffs.
[47] Ms. Ramgulam-Rafiq also says that the plaintiffs do not allege that she was a voyeur, only that she recklessly failed to protect the privacy of the plaintiffs. Ms. Ramgulam-Rafiq relies on the Ontario Court of Appeal’s decision in Owsianik v. Equifax Canada Co. [26], where it held that the tort of inclusion upon seclusion is an intentional tort, which requires that the defendant engaged in the proscribed conduct with a specified state of mind. [27] The Court of Appeal also held that the defendant must either intend that the conduct which constitutes the intrusion will intrude upon the plaintiffs’ privacy, or the defendant must be reckless that the conduct will have that effect. If the defendant does not engage in conduct that amounts to an invasion of privacy, the defendant’s recklessness with respect to the consequences of some other conduct cannot fix the defendant with liability for invading the plaintiffs’ privacy. [28]
[48] In considering the arguments of the plaintiffs and Ms. Ramgulam-Rafiq, it is necessary to carefully review the pleadings.
[49] In the claim commenced by the 13 plaintiffs, they allege that Ms. Ramgulam-Rafiq: (i) negligently failed to take reasonable precautions to safeguard their privacy; (ii) was reckless in not taking any or sufficient safeguards to protect the plaintiffs’ privacy; (iii) knew or ought to have known of Doon’s acts of voyeurism but either chose to ignore it or failed to take any or sufficient steps to prevent the acts from continuing; (iv) is vicariously liable for Mr. Doon’s breach of the plaintiffs’ privacy, given that he was operating as an employee of the Spa and her actions created and enhanced the risk of Mr. Doon’s voyeurism.
[50] In the claim commenced by M.A., she alleges that the court should pierce the corporate veil and find Ms. Ramgulam-Rafiq personally liable for the damages caused by the Company to the plaintiff. She also alleges that Ms. Ramgulam-Rafiq’s actions/conduct were highly offensive and egregious and therefore warrants an award of aggravated and punitive damages.
[51] Having reviewed the statements of claim and considered the cases relied on by the parties, I accept the submissions made by Ms. Ramgulam-Rafiq. Her evidence is that she had no knowledge of the voyeurism that occurred at the Spa. Ms. Ramgulam-Rafiq was not cross-examined on her affidavit by the plaintiffs. The plaintiffs have also not led any evidence that contradicts Ms. Ramgulam-Rafiq’s statement, other than asking the court to draw an inference due to the fact that she is married to Mr. Doon and was at the Spa all of the time.
[52] The statements of claim do not allege that Ms. Ramgulam-Rafiq intentionally intended to harm the plaintiffs through Mr. Doon’s voyeurism. They also do not claim that she was acting in concert with a common end with Mr. Doon, which distinguishes this case from the facts in Martin v. Martin. When one drills down on the claims, it is clear that the real allegations against Ms. Ramgulam-Rafiq are grounded in negligence. As the Court of Appeal noted in Owsianik v. Equifax Canada Co., negligence cannot morph or be transformed into an intentional tort. [29]
[53] In my view, the claims do not plead facts that, if they are to be believed, provide for liability as against Ms. Ramgulam-Rafiq for bodily harm intentionally inflicted, or sexual assault.
[54] With respect to the claims of vicarious liability, it is not clear based on the materials before me how the Company would be held vicariously liable for the tort of inclusion upon seclusion, given the need for actual intent. Mr. Doon was not an officer, director or directing mind of the Company. I do not see how Mr. Doon’s intent could be imputed upon the Company, either directly or vicariously.
[55] Even if a court was to find the Company was vicariously liable, it would also have to take the next step to pierce the corporate veil and put that liability on Ms. Ramgulam-Rafiq as a director of the Company. The plaintiffs have put forward no authority that suggests that such an outcome would be possible with respect to an intentional tort such as intrusion upon seclusion.
[56] Based on the pleadings and Ms. Ramgulam-Rafiq’s evidence, in my view the plaintiffs have little chance of success in having a court find that Ms. Ramgulam-Rafiq is liable for intrusion upon seclusion, since they have not alleged that she engaged in the specific conduct of voyeurism, which is necessary for this intentional tort. Recklessness is only relevant if the defendant was reckless that her conduct will have the effect of the intrusion of the privacy of the plaintiffs. Again, no such claims were made by the plaintiffs in their statements of claim.
[57] As a result, I find that this ground does not weigh in favour of lifting the stays as against Ms. Ramgulam-Rafiq.
Section 178(1)(d)
[58] The plaintiff M.A. refers to this section in her factum. However, no time was spent during submissions regarding the potential applicability of this section to the claims of the plaintiffs.
[59] In my view, this section has no application, as it is with respect to actions of a person while “acting in a fiduciary capacity”. None of the plaintiffs have argued or alleged that they were in a fiduciary relationship with Ms. Ramgulam-Rafiq.
[60] As a result, it is not necessary to consider this issue any further with respect to whether the stays should be lifted.
Section 178(1)(e)
[61] The plaintiffs argue that their claims also constitute debts or liabilities resulting from obtaining property or service by false pretenses or fraudulent misrepresentation.
[62] The core content of the phrases “false pretenses” and “fraudulent misrepresentation” is deceitful statements. [30] They may be made verbally, or by a non-disclosure of material facts through blameworthy or strategic silence. [31]
[63] This section does not require the debtor to have been convicted of the offence of false pretenses under the Criminal Code. The section also does not require the moving party to show facts sufficient to prove that the debtor would be criminally convicted if charged. [32]
[64] In Red Barn, Justice MacKenzie held that if the individual’s conduct (recording the plaintiffs while they changed in the washroom) was proven, it would constitute obtaining property by false pretenses, since the individual silently perpetuated the false pretense that the washroom offered privacy, and had the plaintiffs known the recording device was there, it was reasonable to infer they would not have removed their clothing and there would have been no resulting explicit images. [33]
[65] In my view, this holding equally applies to Mr. Doon. He has been convicted of voyeurism and was in possession of images and videos that were taken at the Spa. He silently perpetuated the false pretense that the tanning bed rooms offered privacy for the plaintiffs to remove their clothing.
[66] As a result, I find that this ground weighs in favour of lifting the stays as against Mr. Doon.
[67] The plaintiffs make the same arguments with respect to Ms. Ramgulam-Rafiq. Again, her evidence is that she was not aware of the recordings until she was informed by the police. The plaintiffs have tendered no evidence to the contrary. I do not see any prospect of success for the plaintiffs on obtaining an order that Ms. Ramgulam-Rafiq obtained property or service by false pretenses or fraudulent misrepresentation based on the pleadings and the evidence before the Court.
[68] As a result, I find that this ground does not weigh in favour of lifting the stays as against Ms. Ramgulam-Rafiq.
Disposition and Costs
[69] For the reasons set out above, I find that there are sound reasons to lift the stay of proceedings with respect to Mr. Doon. As a result, the plaintiffs’ motions against Mr. Doon are hereby granted.
[70] With respect to Ms. Ramgulam-Rafiq, there are factors that weigh in favour of there being sound reasons to lift the stay, and factors that do not. Overall, in considering all of the arguments of the parties, I am of the view that there are sound reasons to lift the stay as against Ms. Ramgulam-Rafiq, and that the plaintiffs would be materially prejudiced if they were unable to continue their claims against her.
[71] As a result, the plaintiffs’ motions against Ms. Ramgulam-Rafiq are hereby granted.
[72] I note that my views that there is little prospect of success for the plaintiffs to obtain judgments against Ms. Ramgulam-Rafiq that would survive discharge under section 178(1) of the BIA does not mean that such claims cannot be pursued by the plaintiffs in the actions. A lift stay motion before an Associate Judge sitting as a Registrar in Bankruptcy is not the place or time for a declaration to be issued that a claim does not fall within section 178(1). I leave it to a motion or trial judge to make such a determination.
[73] With respect to costs, I strongly urge the parties to come to an agreement. If they are unable to do so, they may contact the Bankruptcy Court Office for directions.
Associate Justice Rappos DATE: November 5, 2024
Cited Authorities
[1] Simone v. Daley [“Simone”], para. 27. [https://www.canlii.org/en/on/onca/doc/1999/1999canlii3208/1999canlii3208.html] [2] Lloyd W. Houlden, Geoffrey B. Morawetz, and Janis P. Sarra, The 2022 Annotated Bankruptcy and Insolvency Act (Toronto, Thomson Reuters: 2022), F§144 – Stay of Proceedings: Unsecured Creditors. [3] Re Ma, 24 C.B.R. (4th) 68 [“Ma”], para. 2. [https://www.canlii.org/en/on/onca/doc/2001/2001canlii24076/2001canlii24076.html] [4] Ibid. [5] Re Advocate Mines Limited, 52 C.B.R. (N.S.) 277, 1984 CarswellOnt 156 (ON SC), paras. 2-7. [6] Re Ma, paras. 2-3. [7] Re Ieluzzi, 2012 ONSC 3447, para. 10. [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3447/2012onsc3447.html] [8] Re: In the Matter of the Proposal of Rajneesh Mathur, 2018 ONSC 4425, para. 16. [https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4425/2018onsc4425.html] [9] Simone, para. 30, citing Jerrard v. Peacock (1985), 57 C.B.R. (N.S.) 54 (Alta. Master). [https://www.canlii.org/en/ab/abqb/doc/1985/1985canlii1148/1985canlii1148.html] [10] H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, para. 45. [https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca256/2015bcca256.html] [11] Ibid., para. 47. [12] Burke v Red Barn at Mattick’s Ltd., 2019 BCSC 69 [“Red Barn”], para. 46. [https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc69/2019bcsc69.html] [13] Subsections 135(1) and (1.1), BIA. [14] Red Barn, para. 46. [15] 304260 Ontario Ltd., Re, paras. 5 and 13. [https://www.canlii.org/en/on/onsc/doc/2006/2006canlii37963/2006canlii37963.html] [16] Dickerson v. 1610396 Ontario Inc. (Carey’s Pub & Grill), 2013 ONCA 653, para. 18. [https://www.canlii.org/en/on/onca/doc/2013/2013onca653/2013onca653.html] [17] Ibid., para. 32. [18] Ibid., para. 39. [19] Re David Ronald Fitzpatrick, 2017 ONSC 2342, para. 4. [https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2342/2017onsc2342.html] [20] Red Barn, paras. 28, 35 and 36. [21] Martin v. Martin, 2005 NBCA 10 [“Martin”]. [https://www.canlii.org/en/nb/nbca/doc/2005/2005nbca10/2005nbca10.html] [22] Ibid., para. 1. [23] Ibid., para. 15. [24] Ibid., para. 3. [25] Ibid., paras. 18 and 19. [26] Owsianik v. Equifax Canada Co., 2022 ONCA 813. [https://www.canlii.org/en/on/onca/doc/2022/2022onca813/2022onca813.html] [27] Ibid., para. 53. [28] Ibid., para. 59. [29] Ibid., para. 71. [30] Buland Empire Development Inc. v. Quinto Shoes Imports Ltd., para. 14. [https://www.canlii.org/en/on/onca/doc/1999/1999canlii1345/1999canlii1345.html] [31] Altera Moneta Corp. v. Highway King Transport Ltd., 2016 BCSC 771, paras. 32-33. [https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc771/2016bcsc771.html] [32] Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, para. 28. [https://www.canlii.org/en/on/onca/doc/2021/2021onca925/2021onca925.html] [33] Red Barn, paras. 39-43.