



COURT OF APPEAL FOR ONTARIO

CITATION: Caffé Demetre Franchising Corp. v. 2249027 Ontario
    Inc., 2015 ONCA 258

DATE: 20150415

DOCKET: C58737

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

Caffé Demetre Franchising Corp.

Plaintiff (Defendant by Counterclaim)

and

2249027 Ontario Inc. and Waqar Khan

Defendants (Plaintiffs by Counterclaim)

AND BETWEEN

2249027 Ontario Inc. and Waqar Khan

Plaintiffs by Counterclaim

(Appellants)

and

Caffé Demetre Franchising Corp. and Gary Steven
    Theodore

Defendants to the Counterclaim

(Respondents)

David S. Altshuller, for the appellants

John H. McNair, for the respondents

Heard: October 31, 2014

On appeal from the order of Justice T. A. Heeney of the Superior
    Court of Justice, dated April 3, 2014.

Epstein J.A.:

OVERVIEW

[1]

The respondent, Caffé Demetre Franchising Corp., is the franchisor of a
    franchise system with a number of outlets in the Toronto area. The franchise
    specializes in freshly made desserts and ice cream. In 2011, the appellant,
    Waqar Khan, through his company, the appellant, 2249027 Ontario Inc., (collectively,
    the franchisees), purchased a Caffé Demetre franchise at 3280 Dufferin Street.

[2]

This is another case from the franchise world involving whether the
    franchisor met its disclosure obligations under the
Arthur Wishart Act
    (Franchise Disclosure)
,
2000
, S.O. 2000, c. 3. The issue in this
    appeal is narrow  whether the failure to disclose ongoing litigation commenced
    by the franchisor against a competing business constituted a material
    deficiency such that the franchisees were entitled to rescind the franchise
    agreement pursuant to s. 6(2) of the Act.

[3]

Approximately a year after the franchise was purchased in 2011, difficulties
    arose between the parties that led the franchisor to sue the franchisees
    claiming, among other things, a declaration that the franchise agreement was at
    an end and damages for breach of contract. The franchisees counterclaimed,
    adding the principal of the franchisor to the action, the respondent, Gary
    Theodore, and claiming rescission of the franchise agreement and repayment of
    amounts they had invested in the business.

[4]

The franchisees claim for rescission was based on alleged deficiencies
    in the disclosure document the franchisor had provided at the time of purchase.
    The franchisor moved for partial summary judgment seeking dismissal of the
    rescission claim.

[5]

The motion judge granted partial summary judgment and dismissed the
    claim for rescission. He held that it was in the interests of justice to deal
    with the issue of rescission summarily. He found that three of the four alleged
    disclosure omissions relied upon by the franchisees were not disclosure deficiencies
    at all. With respect to the fourth alleged omission, the motion judge concluded
    that while the franchisor should have disclosed the ongoing litigation in which
    it was involved, this omission failed to come anywhere close to the type of deficiency
    that entitled the franchisees to rescind the franchise agreement under s. 6(2)
    of the Act.

[6]

On appeal, the franchisees challenge the motion judges decision that the
    summary judgment procedure was appropriate in the circumstances as well as his
    conclusion that the undisclosed litigation did not entitle them to rescission
    under s. 6(2) of the Act.

[7]

I would dismiss the appeal. I see no reason to interfere with the motion
    judges exercise of discretion in dealing with the discrete issue of the
    franchisees rescission right by way of summary judgment. And I agree that there
    was nothing about the franchisors disclosure that afforded the franchisees the
    right to rescind the franchise agreement.

FACTUAL BACKGROUND

[8]

On May 16, 2011, the franchisees acquired from the previous franchisee a
    Caffé Demetre franchise that had been operating on Dufferin Street. On June 24,
    2011, the franchisees received a disclosure document from the franchisor.

[9]

On July 22, 2011, the franchisees executed the franchise agreement and
    started operating their new business.

[10]

Also
    on July 22, 2011, at the urging of other Caffé Demetre franchisees, the
    franchisor commenced an action against a former Caffé Demetre franchisee who
    was operating a competing business called Spin Dessert. The Spin Dessert operation
    was 7.5 km from the Dufferin Street Caffé Demetre location. While this lawsuit was
    started the same day as the franchisees entered into the franchise agreement, the
    litigation had been contemplated for some time, certainly prior to June 24,
    2011, when the franchisor provided the disclosure document to the franchisees.

[11]

By
    September 2011, the franchisees were aware of the Spin Dessert litigation. They
    did not express any concerns about it.  Spin Dessert went out of business in
    December 2012 and the action was settled.

[12]

In
    or around 2012, the franchisor decided to introduce a new up-scale menu. In the
    summer of 2012, in furtherance of this anticipated change the franchisor
    inspected various franchise outlets, including the franchisees Dufferin Street
    location. As a result of this inspection, the franchisor informed the
    franchisees that they were required to perform repairs that would cost between
    $40,000 and $50,000. The franchisor was entitled to make this request pursuant
    to a provision in the franchise agreement under which the franchisees agreed to
    refurbish and renovate the premises as required by the franchisor from time to
    time. The franchisees did not perform any of the work the franchisor requested.

[13]

In
    November 2012, the franchisor discovered that customer orders at the franchisees
    Dufferin Street location were cancelled at point of sale roughly three times
    more often than at other outlets. The franchisor asked the franchisees for
    information to help it understand this anomaly. The franchisees did not provide
    it. As a result, the franchisor inferred that the franchisees were concealing
    cash sales to reduce their franchise fees.

[14]

On
    December 12, 2012, the franchisor issued a notice of default to the franchisees
    for failure to improve the appearance of the location, and to provide financial
    statements and tax returns, both as required under the franchise agreement, and
    understating gross sales through excessive error/correct key entries. The
    franchisees did not respond. The franchisor therefore issued further default
    notices on March 8, 2013, and July 5, 2013.

[15]

Still
    the franchisees did nothing. The franchisor conducted another inspection of the
    Dufferin Street operation. This inspection disclosed further problems related
    to the franchisees procedures and the physical condition of the premises.

[16]

On
    July 19, 2013, the franchisees served a notice of rescission of the franchise
    agreement.

[17]

On
    August 2, 2013, the franchisor served notice of termination of the franchise
    agreement and directed the franchisees to vacate the premises in accordance
    with the post-termination obligations contained in the franchise agreement.

[18]

The
    franchisees claimed that the franchisors actions were illegal. The franchisees
    changed the locks of the Dufferin Street location, rebranded their operation,
    and continued under the trade name Sugarn Spice Café as a business in
    competition with the Caffé Demetre franchise system.

[19]

In
    August 2013, the franchisor commenced proceedings against the franchisees
    claiming termination of the franchise agreement and damages. In their statement
    of defence and counterclaim, the franchisees claimed that the franchise
    agreement was validly rescinded under s. 6(2) of the Act because the franchisor
    did not provide the disclosure mandated by the legislation.

[20]

In
    their pleadings the franchisees identified the following information that they
    say the franchisor was aware of at the time it signed the disclosure document and
    that it was obliged to but did not disclose:

1. The
    franchisor was involved in the Spin Dessert litigation.

2. The
    franchisor was contemplating implementing a policy prohibiting franchisees from
    taking a share of their employees tips (the Tip Out Policy).

3. The
    franchisor was contemplating altering the ice cream policy to make franchisee owner
    principals directly responsible for preparing the ice cream (the Ice Cream
    Manufacturing Policy).

4. The
    Dufferin Street location would require extensive remodelling and renovations
    that would cost in excess of $50,000 (the Remodeling and Renovations).

[21]

The
    franchisor brought a motion for partial summary judgment seeking a declaration
    that the franchisees were not entitled to rescission.

THE STATUTORY FRAMEWORK

[22]

Section
    5 of the Act sets out a franchisors disclosure obligations. It requires that a
    franchisor provide a franchise disclosure document to a prospective franchisee
    no fewer than 14 days before the earlier of the signing by the prospective
    franchisee of the franchise agreement and the payment of any consideration by
    the franchisee relating to the franchise. Section 5 also governs, among other
    things, the means for delivery of the disclosure document, the requirements for
    disclosure of material changes, and the contents of the disclosure document.

[23]

Subsection
    5(4)(a) requires the franchisor to include in the disclosure document all material
    facts. The Act defines material fact broadly in s. 1(1) to include any
    information about the business, operations, capital or control of the
    franchisor or the franchise system that would reasonably be expected to have a
    significant effect on the value or price of the franchise to be granted or the
    decision to acquire the franchise.

[24]

Regulations
    under the Act provide further details of the disclosure the Act mandates. Relevant
    to the issues here, s. 2 of O. Reg. 581/00 provides that every disclosure
    document shall contain:

5. A statement, including a description of details, indicating
    whether the franchisor, the franchisors associate or a director, general
    partner or officer of the franchisor has been found liable in a civil action of
    misrepresentation, unfair or deceptive business practices or violating a law
    that regulates franchises or businesses, including a failure to provide proper
    disclosure to a franchisee,
or if a civil action
    involving such allegations is pending against the person
. [Emphasis
    added.]

[25]

Section
    6 of the Act provides the consequences for failing to strictly comply with the
    requirements set out in s. 5 and the regulations. These consequences include
    rights of rescission and compensation. Section 6 provides two separate time
    periods within which the franchisee can rescind:

6. (1) A franchisee may rescind the franchise agreement,
    without penalty or obligation, no later than 60 days after receiving the
    disclosure document, if the franchisor failed to provide the disclosure
    document or a statement of material change within the time required by section
    5 or if the contents of the disclosure document did not meet the requirements
    of section 5.

(2) A franchisee may rescind the franchise agreement, without
    penalty or obligation, no later than two years after entering into the
    franchise agreement if the franchisor never provided the disclosure document.

[26]

As
    mentioned above, the franchisees seek to rescind the franchise agreement by
    relying on s. 6(2) of the Act.

REASONS OF THE SUMMARY JUDGMENT MOTION JUDGE

The Test for Summary Judgment

[27]

The
    motion judge applied the test from
Hryniak v. Mauldin
, 2014 SCC 7, [2014]
    1 S.C.R. 87, and held that he had the evidence required to fairly and justly
    adjudicate on the rescission issue in a timely, affordable, and proportionate manner.
    He found that the material relied on by the franchisor on the summary judgment
    motion consisted of documents, the franchisees pleadings, uncontested facts,
    and admissions made by the franchisee Khan on cross-examination. The motion
    judge determined that his only task was to apply those facts to the applicable
    law to determine whether the franchisees had a right to rescission. In these
    circumstances he did not have to make use of any of the new fact-finding powers
    under ss. 20.04(2.1) or (2.2) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194.

[28]

The
    motion judge acknowledged that in
Hryniak
the Supreme Court cautioned
    against deciding an issue on summary judgment when a trial will be required in
    any event. However, at para. 49 of his reasons, he found that if the
    rescission claim is dismissed, the landscape for resolution will be
    fundamentally altered and the prospects for avoiding a lengthy trial greatly
    enhanced. Finally, the motion judge observed that because the facts were essentially
    undisputed, there was no risk of inconsistent findings.

Standard
    for Rescission for Non-disclosure Under s. 6(2) of the Act

[29]

Relying
    on
4287975 Canada Inc. v. Imvescor Restaurants Inc.
, 2009 ONCA 308, 98
    O.R. (3d) 187, the motion judge observed that the test for rescission under s.
    6(2) of the Act for failure to provide a disclosure document must be
    distinguished from the test under s. 6(1) of the Act for rescission where the
    contents of the disclosure document did not meet the requirements of section
    5.  The motion judge then cited this courts decision in
6792341 Canada
    Inc. v. Dollar It Ltd.
, 2009 ONCA 385, 95 O.R. (3d) 291, for the proposition
    that where there are stark and material deficiencies in the disclosure
    document, the document cannot be considered a disclosure document at all and a
    franchisee may have a right of rescission under s. 6(2).

The Spin Dessert Litigation

[30]

In
    dealing with the franchisors failure to disclose the Spin Dessert litigation,
    the motion judge expressed his view, at para. 26, that because the litigation
    was not a potential liability but rather a proactive measure for the benefit of
    the franchisees, it is difficult to see how the existence of this litigation
    could have a significant effect on the price to be paid by the franchisor, as
    required by the definition of material fact.

[31]

Nevertheless,
    the motion judge held that the litigation did meet the definition of material
    fact and should have been disclosed. But the motion judge reasoned that while the
    failure to disclose the litigation was a content deficiency that would give
    rise to rescission rights under s. 6(1) if identified within 60 days of signing
    the franchise agreement, it was not a stark and material deficiency.

[32]

The
    motion judge concluded that the lack of disclosure of the Spin Dessert
    litigation failed to come close to the type of deficiency that amounts, in law,
    to no disclosure at all and the franchisees were not, therefore, entitled to
    rescission under s. 6(2) of the Act.

The Tip Out Policy

[33]

In
    August of 2012, the franchisor announced a new policy that prohibited franchisees
    from keeping a portion of their employees gratuities. This policy was in
    response to proposed legislation that would prohibit employers from taking a
    share of tips.

[34]

The
    motion judge held that the franchisors policy of prohibiting franchisees from
    collecting a portion of their employees tips did not constitute a material
    fact. He found that the policy was not contemplated by the franchisor until
    June of 2012 and was not implemented until 14 months after the disclosure
    document was delivered. Its omission could not, therefore, constitute a material
    fact that should have been disclosed. The motion judge also noted that, [a]s a
    practical matter, the change in policy had no impact on the profitability of
    the Dufferin Street location, as the franchisees refused to enforce the policy.

The Ice Cream Manufacturing Policy

[35]

The
    franchisor, as a result of a concern about the consistency of the ice cream
    made at the various franchise locations, announced a policy change on February
    1, 2013, requiring that franchisee owner principals assume sole responsibility
    for ice cream production at their own restaurants.

[36]

The
    franchisees considered the policy to be unreasonable and refused to implement
    it.

[37]

Similar
    to his reaction to the Tip Out Policy, the motion judge held that the Ice Cream
    Manufacturing Policy could not be a deficiency in disclosure in the light of the
    20-month period between the delivery of the disclosure document and the implementation
    of the policy. He again noted that the policy had no financial impact on the
    franchisees because they refused to implement it.

The Remodelling and Renovations

[38]

The
    motion judge noted that the Remodelling and Renovations sought by the
    franchisor did not arise until 14 months after delivery of the disclosure
    document. Again, this issue, as with the Tip Out Policy and the Ice Cream
    Manufacturing Policy, could not be said to be a material fact that should have
    been in the disclosure document. Further, the fact that repairs or renovations
    may have been needed in June 2011 did not constitute a material fact because
    it could not have had a significant effect on the price to be paid for the
    franchise. The motion judge reasoned that because the vendor of the premises
    had an obligation under the agreement of purchase and sale to do renovations as
    required by the franchisor, any required repairs or renovations were
    cost-neutral to the franchisees.

Motion
    Judges Conclusion

[39]

Based
    on his analysis of the franchisees four complaints about disclosure, the
    motion judge concluded that the franchisees had no right to rescind the
    franchise agreement under s. 6(2) of the Act and dismissed the claim for
    rescission.

ISSUES

[40]

On
    appeal, the franchisees submit that:

(1)

the motion judge erred in
    concluding that the claim for rescission advanced in the counterclaim could be
    determined by way of summary judgment; and

(2)

the motion judge misapprehended
    the evidence and otherwise erred in finding that the failure to disclose the
    existence of the Spin Dessert litigation did not give rise to rescission rights
    under s. 6(2) of the Act.

ANALYSIS

1.

Did
    the motion judge err in concluding that the claim for rescission advanced in
    the counterclaim could be determined by way of summary judgment?

[41]

The
    franchisees submit that it was not in the interests of justice to determine the
    rescission claim on summary judgment as other matters between the parties
    arising out of the franchise investment, including a claim for damages for
    misrepresentation under s. 7 of the Act, are proceeding to trial in any event.
    While the motion judge determined that the s. 6 rescission issue turned on
    undisputed facts, his findings that three of the four alleged disclosure
    deficiencies are not material facts essentially forecloses the s. 7 claim
    with respect to those deficiencies or creates a risk of inconsistent findings.

[42]

I
    do not agree.

[43]

I
    start with the franchisees argument that their s. 7 claim will be affected by
    the results of the partial summary judgment.

[44]

Section
    7 of the Act gives a franchisee a statutory claim for damages where a
    franchisee suffers a loss because of a misrepresentation contained in a
    disclosure document. The franchisees counterclaim does not appear to advance
    such a claim. The pleadings make no reference to s. 7 of the Act. And the
    pleadings contains but one reference to damages for misrepresentation  a bald
    reference in the prayer for relief.

[45]

This
    pleadings deficiency notwithstanding, I agree with the motion judges conclusion,
    at para. 48, that there is no risk of inconsistent findings of fact as the
    facts are essentially undisputed. Further, on appeal, the franchisees do not
    challenge the motion judges findings with respect to the three alleged deficiencies.
    And the motion judge found the Spin Dessert litigation to be a material fact,
    leaving the franchisees free to pursue a claim for misrepresentation on the
    basis of this omission.

[46]

I
    also agree with the motion judge that using the summary judgment mechanism to
    deal with the discrete matter of the franchisees right to rescission was an
    expeditious and effective approach to resolving an important issue. The motion
    judge was mindful of the shift in culture (see para. 43 of his reasons)
    mandated by the Supreme Courts decision in
Hryniak
and was motivated
    to benefit the parties by narrowing their dispute and increasing the odds of
    settlement. As the Supreme Court noted in
Hryniak
, at para. 60, 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.

[47]

I
    see no reason to interfere with the motion judges discretionary decision to
    determine the discrete issue of rescission by way of summary judgment. I would
    therefore not give effect to this ground of appeal. See
2240802 Ontario
    Inc. v. Springdale Pizza Depot Ltd.
, 2015 ONCA 236, at para. 35.

2.

Did
    the motion judge misapprehend the evidence and otherwise err in finding that
    the failure to disclose the existence of the Spin Dessert litigation did not
    give rise to rescission rights under s. 6(2) of the Act?

[48]

The
    focus of this appeal is on the motion judges view that while the franchisors
    failure to identify the Spin Dessert litigation in the disclosure document was a
    deficiency, it was not an egregious one, leading him to conclude that the
    franchisees were not entitled to rescission under s. 6(2) of the Act.

[49]

The
    franchisees submit that it was unreasonable for the motion judge to infer that
    the Spin Dessert litigation had no impact on their decision to purchase the
    franchise or on the price they agreed to pay for the Dufferin Street franchise
    outlet. They argue that it was clear that Spin Dessert was a significant
    potential threat to the Caffé Demetre franchise system.

[50]

The
    franchisees also submit that the motion judge further erred by finding that the
    franchisees failure to complain about the litigation is relevant to whether
    the existence of the litigation could reasonably be expected to have affected
    their purchase decision.

[51]

Again,
    I do not agree.

[52]

The
    battle lines over the failure to disclose the Spin Dessert litigation were
    drawn around two questions. First, is the Spin Dessert litigation a material
    fact that had to be disclosed? Second, if the Spin Dessert litigation is a
    material fact, was the failure to disclose it a disclosure defect so egregious
    as to amount to no disclosure at all under s. 6(2) of the Act?

[53]

I
    start with whether the franchisors were required to disclose the Spin Dessert
    litigation. Since there is nothing in the Act or in the regulations that
    expressly specify that this type of information must be contained in the
    disclosure document, the question is whether the Spin Dessert litigation falls
    within the definition of a material fact in the sense of being information
    about the business, operations, capital or control of the franchisor or franchisors
    associate, or about the franchise system, that would reasonably be expected to
    have a significant effect on the value or price of the franchise to be granted
    or the decision to acquire the franchise, as contemplated by s. 1(1) of the
    Act.

[54]

While
    I say that neither the Act nor the regulations require reference to this type
    of litigation to be included in the disclosure document, I do note that s. 2(5)
    of O. Reg. 581/00 identifies a category of litigation that must be disclosed.
    Understandably, what must be disclosed is litigation
against
the
    franchisor or those associated with the franchisor based on claims of unfair or
    deceptive business practices, or violating a law that regulates franchises or
    businesses. I am not suggesting that s. 2 of the regulations should be
    interpreted as indicating that only the type of legal proceeding that falls
    within this description qualifies as a material fact that must be disclosed
    pursuant to s. 5 of the Act.  However, in my view, the type of litigation that
    must be disclosed pursuant to s. 2(5) does inform the fact-specific analysis of
    whether the litigation in issue is material.

[55]

The
    motion judges reasoning and ultimate conclusion that, while the Spin Dessert
    litigation was a material fact, the failure to disclose it did not grant the
    franchisees a right to rescission under s. 6(2) of the Act, appear in paras. 41
    and 42 of his decision, where he wrote:

[41] To recap the above analysis, I conclude that of the four
    material facts that the defendants allege should have been disclosed, three
    of them can be dismissed for the reasons given. The only one that meets the
    definition of a material fact is the existence of the Spin Desserts litigation.
    I accept that if a franchisor is involved in ongoing litigation, this should be
    disclosed to prospective franchisees: see
2240802 Ontario Inc. v.
    Springdale Pizza
, 2013 ONSC 7288 (S.C.J.) at para. 48. To that extent, the
    disclosure document was deficient. However, as was made clear in
Imvescor
,
    above, a content deficiency only gives rise to rescission under s. 6(1). It is
    only where there are stark and material deficiencies in the disclosure document
    that a court may conclude that it amounts to no disclosure at all. The sweeping
    remedy of rescission is restricted to instances of a complete failure to
    provide a disclosure document.

[42] As already noted, the Spin Desserts lawsuit was a
protective measure taken by the franchisor, at the
request of and for the benefit of the franchisees. It did not constitute a
    potential liability that might attach to the franchise system as a whole. Given
    the distance between the competing outlet and the subject premises, there is no
    basis for inferring that it could have had any economic impact on the [franchisees]
    operation, nor is there any evidence that it did so. The [franchisees] were
    aware of this litigation by September of 2011, but did not raise it as a
    concern until their Statement of Defence and Counterclaim was filed on
    September 24, 2013. If it had been a material fact that could reasonably be
    expected to have a significant impact on the price the defendants paid for the
    franchise, one would have expected them to have complained when, or shortly
    after, they found out about it.

[56]

As
    the above passages demonstrate, notwithstanding his observations about the
    nature of the litigation at para. 42, the motion judge relied on the Superior
    Courts decision in
2240802 Ontario Inc. v. Springdale Pizza,
2013
    ONSC 7288 (CanLII), for the proposition that if a franchisor is involved in
    ongoing litigation, this should be disclosed to prospective franchisees. In
    other words, the motion judge held that any litigation involving a franchisor
    amounts to a material fact  no matter what the nature and circumstances of the
    litigation might be. Since the Spin Desserts litigation was not disclosed, the
    disclosure document was deficient.

[57]

With
    respect, in my view the Superior Courts
Springdale
decision does not
    stand for the proposition identified by the motion judge. The litigation at
    issue in
Springdale
fell precisely within the type of litigation
    described in s. 2(5) of O. Reg. 581/00.

[58]

The
    Spin Dessert litigation does not come within this category.

[59]

Ongoing
    or prospective litigation involving the franchisor is not, by definition, a
    material fact. Of course, the litigation must be disclosed if it falls within
    the description contained in s. 2(5) of the regulations. But if the litigation
    in issue does not fall within that description, then whether it is a material
    fact, as contemplated by the Act, will be a question of fact determined on a
    case-by-case basis. Because the analysis is highly fact-specific, no
    bright-line rule can be articulated.

[60]

In
    the light of the motion judges unassailable observations about the Spin Dessert
    litigation, excerpted above  that it was a protective measure taken by the
    franchisor at the request of and for the benefit of the franchisees, did not
    constitute a potential liability that might attach to the franchise system and would
    not financially impact the Dufferin Street Caffé Demetre outlet - I am of the
    view that the lawsuit was not a material fact.

[61]

It
    follows that the disclosure document was not deficient by reason of the
    franchisors failure to reference the litigation.

[62]

It
    goes without saying that even if the failure to mention the Spin Dessert
    litigation amounted to a disclosure deficiency, I am also of the view that it
    was not sufficiently significant that the franchisees were entitled to
    rescission beyond the 60-day period provided for in s. 6(1).

[63]

On
    this record, I do not see how failing to mention the Spin Dessert litigation 
    litigation commenced against a competing business for the purpose of protecting
    the interests of the franchisees  effectively deprived the franchisees of the
    opportunity to make a properly informed decision to invest in the Caffé Demetre
    franchise: see
Dollar It
, at para. 35. I agree with the motion judge
    that the omission of the Spin Dessert litigation from the franchisors
    disclosure document falls well short of putting the document into the category
    of no disclosure at all as contemplated by s. 6(2) of the Act.

DISPOSITION

[64]

For
    these reasons, I would dismiss the appeal. In accordance with the parties
    agreement, I would award the respondents their costs fixed in the amount of $8,500,
    including disbursements and applicable taxes.

Released: April 15, 2015 (DD)

Gloria
    Epstein J.A.

I
    agree David Doherty J.A.

I
    agree M. Tulloch J.A.


