



COURT OF APPEAL FOR ONTARIO

CITATION: Maurice v. Alles, 2016 ONCA 287

DATE: 20160421

DOCKET: C60269

Epstein, van Rensburg and Hourigan JJ.A.

BETWEEN

Robert Maurice

Applicant (Appellant)

and

Lorraine Alles, Diane Pomorski, Carol MacDonald,
    Donald Maurice, George Alles and Kirby-Maurice Company Limited

AND BETWEEN

Lorraine Alles, Diane Pomorski, Carold MacDonald,
    and Donald Maurice

Applicants (Respondents)

and

Robert Maurice

Respondents (Respondents)

Peter Griffin and Nadia Campion, for the appellant

Richard Worsfold, for the respondents

Heard: November 10, 2015

On appeal from the order of Justice Laurence A. Pattillo
    of the Superior Court of Justice, dated March 13, 2015, with reasons reported
    at 2015 ONSC 1671.

Hourigan J.A.:

A.

Overview

[1]

This appeal of the order of the motion judge
    dismissing an oppression remedy claim on a motion for summary judgment raises
    two issues. First, is summary judgment available in the context of an
    application as opposed to an action? Second, does the two-year limitation
    period in the
Limitations Act, 2002
, S.O. 2002, c. 24, apply to
    oppression remedy claims and, in particular, to claims of ongoing oppressive
    conduct?

[2]

For the reasons that follow, I am of the view
    that a motion for summary judgment under Rule 20 is not available to adjudicate
    issues raised on an application under Rule 14 of the
Rules of Civil
    Procedure
unless the application is converted into an action. However, as
    I will go on to explain, the use of Rule 20 in the circumstances of this case
    was merely a procedural defect and thus I would not interfere with the motion
    judges decision on this basis.

[3]

An oppression remedy claim must be commenced
    within two years of the discovery of a potential claim. The alleged oppressive
    conduct in this case is not ongoing. However, where, as here, a party engages
    in conduct that is in furtherance of, or based upon, earlier oppressive
    conduct, this is a new cause of action because it is new oppressive conduct.

[4]

For this reason, I conclude that the motion
    judge erred in dismissing the appellants oppression claim as statute barred. I
    would allow the appeal and order that the oppression remedy claim proceed as a trial.

B.

Background Facts

[5]

The appellant and the individual respondents are
    siblings except for George Alles, who is the husband of Lorraine Alles.
    Starting in the 1950s, their late father, Mr. Maurice, owned an interest in
    Television Antenna & Service Co. (Tasco) through his holding company
    Kirby-Maurice Company Limited (Kirby-Maurice). Marlba Investments Limited
    (Marlba) owned the land on which Tasco operated. Marlba, in turn, was owned
    equally by Kirby-Maurice and another holding company owned by their fathers
    business partner, Mike Sayer.

[6]

Mr. Maurice restructured Tasco in the late
    1970s. He gave equal interests in Tasco to each of his six children and Mr.
    Sayers six children, preserving voting control for his family by causing the
    issuance of 54 percent of Tascos voting preferred shares to Kirby-Maurice.

[7]

In the early 1990s, litigation between the
    Maurice and Sayer families concerning Tasco and Marlba concluded with a
    settlement agreement that provided for the ownership structure of the two
    companies. It also specified that both families would enter into unanimous
    shareholder agreements (USAs) to govern the business and affairs of each
    company. The appellant and his siblings were parties to this settlement
    agreement.

[8]

Those USAs were never executed. The parties,
    however, governed themselves according to provisions set out in the settlement
    agreement, which were to be contained in the USAs. Those provisions included a
    prohibition on the transfer of shares in either Tasco or Marlba except between
    members of the same family, a shareholders right to require the corporation to
    repurchase their common shares for cancellation at fair value, and a right of
    first refusal with respect to the shares sought to be repurchased by the
    corporation.

[9]

The Maurice siblings, who were each 20 percent
    owners of Kirby-Maurice, later entered into a USA concerning their interests in
    that company (the Kirby-Maurice USA). The Kirby-Maurice USA provided, among
    other things, for a share sale procedure. Critical to this appeal were
    provisions requiring a shareholder selling their shares in Tasco and Marlba to
    also sell, at a fair value to be determined by a valuator, his or her shares in
    Kirby-Maurice.

[10]

On May 13, 1996, the appellant exercised his
    right to sell his shares in Tasco and Marlba. In accordance with the terms of
    the Kirby-Maurice USA, the appellant offered to sell his shares in
    Kirby-Maurice at the same time. The sale of the appellants shares in Tasco and
    Marlba did not close until March 23, 2007, almost 11 years after he first
    exercised his right under the settlement agreement. When it did, the appellant
    received a total of $2,275,000 for his shares; $1,966,700 for his shares in
    Tasco and $308,300 for his shares in Marlba, based on the July 31, 2005
    valuation completed by PricewaterhouseCoopers.

[11]

Negotiations between the respondents and a prospective
    purchaser ultimately led to Tasco and Marlba shareholders (including the
    respondent siblings and Kirby-Maurice) receiving a letter of intent from a
    third party with an interest in acquiring their shares in June 2007. The
    appellant, who was no longer a shareholder of Tasco or Marlba, first learned of
    the potential purchase in October 2007. He expressed his view that
    Kirby-Maurices 54 percent of the voting preferred shares in Tasco should fetch
    a premium given that they represented control of the company.

[12]

In the meantime, although he had offered his
    shares in Kirby-Maurice for sale, the appellant remained a shareholder and
    director of Kirby-Maurice. He received notice of a Kirby-Maurice shareholders
    meeting scheduled for July 25, 2008 to discuss a proposed sale of
    Kirby-Maurices shares in Tasco and Marlba. At the meeting, the appellant was
    advised of the following: his siblings had sold their shares in Tasco and
    Marlba; the purchaser was a numbered company; the owner of that company was
    unknown; Kirby-Maurices preferred shares in Tasco were being sold for
    redemption at face value; and Kirby-Maurices nominees to Tasco and Marlbas
    boards of directors were resigning.

[13]

The appellant opposed the sale. He argued that
    proceeding without the unanimous consent of the shareholders would breach the
    Kirby-Maurice USA and that his siblings should obtain a valuation before
    selling their shares in Tasco and Marlba. After the appellant left the meeting,
    his siblings approved the sale of Kirby-Maurices shares in Tasco and Marlba.

[14]

Since the meeting of July 25, 2008, the
    appellant has requested a valuation of his shares in Kirby-Maurice and, on
    numerous occasions, requested information relating to how Kirby-Maurices
    preferred shares in Tasco were valued for the purposes of their sale. These
    requests have been either ignored or refused by his siblings.

[15]

In 2013, the appellants siblings brought an
    application for the appointment of a valuator to value the issued and
    outstanding shares of Kirby-Maurice. The appellant commenced a
    cross-application against his siblings, George Alles, and Kirby-Maurice,
    alleging breach of both the settlement agreement and the Kirby-Maurice USA, and
    seeking relief under the oppression remedy section of the
Business
    Corporations Act
, R.S.O. 1990, c. B.16 (OBCA) arising out of the sale of
    Kirby-Maurices shares in Tasco and Marlba.

[16]

In 2014, the appellant received a copy of the
    share purchase agreement for the sale of the respondents and Kirby-Maurices
    shares in Tasco and Marlba, dated August 1, 2008, as part of the respondents
    disclosure. The appellant also learned the following:

·

negotiations over the sale lasted more than a
    year;

·

the purchase price increased over the course of
    the negotiations;

·

each sibling shareholder received $2,980,025 for
    their shares in Tasco and Marlba; and

·

the issue whether Kirby-Maurices preferred
    shares in Tasco should be valued at more than face value was considered.

C.

Decision Below

[17]

Pursuant to an order of Newbould J., dated
    October 1, 2013, the cross-application was to be determined as a mini-trial
    before the application to appoint a valuator. The respondents brought a motion
    for summary judgment to dismiss the claims in the cross-application as being
    statute barred and for the valuators appointment. The appellant brought a
    motion requiring the respondents to reimburse Kirby-Maurice for legal fees the
    corporation paid on the respondents behalf in connection with the ongoing
    disputes with the appellant from 2008 onward.

[18]

On the motion and cross-motion, the respondents
    argued that the appellants claims all related to the sale by Kirby-Maurice of
    its shares in Tasco. The respondents argued that the appellant discovered the
    claims as of July 25, 2008, the date of the shareholders meeting when the
    appellant learned of the respondents sales of their own shares and the
    proposed sale of Kirby-Maurices shares in Tasco and Marlba. As the
    cross-application was commenced more than two years after the claims were
    discovered, the claims were out of time. The appellant argued that his claims
    were not barred since the oppressive conduct was ongoing.

[19]

With respect to the appellants claims for
    breach of the settlement agreement and the Kirby-Maurice USA, the motion judge
    found that the appellant was aware of these breaches as of July 25, 2008.
    Accordingly, he held that the breach of contract claims were statute barred.

[20]

The motion judge found that the appellant was
    similarly aware of the facts giving rise to the oppression claims related to
    the Kirby-Maurice USA as of July 25, 2008. Consequently, those claims were also
    statute barred. At para. 54 of his reasons, the motion judge relied on
Fracassi
    v. Cascioli
, 2011 ONSC 178, for the proposition that pursuant to the
Limitations
    Act
, the applicable limitation period for an oppression claim begins two
    years after the day on which the claim for oppression was discovered.

[21]

The motion judge held that even if the
    oppression is ongoing, such continuation does not operate to extend the
    limitation period beyond the time of two years from discovery. In this regard,
    the motion judge distinguished
Waxman v. Waxman
(2004), 186 O.A.C. 201
    (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291 and
Metcalfe v. Anobile
,
    2010 ONSC 5087, 77 B.L.R. (4th) 293, on the basis that, while those cases
    referred to the ongoing nature of the conduct to defeat a limitation period,
    it is discoverability that is the key factor in determining when the
    limitation period begins to run.

[22]

As the appellant only learned of his oppression
    claim for legal fees paid by Kirby-Maurice through information produced by the
    respondents in 2014, the motion judge held that this claim was not statute
    barred. However, this payment of legal fees by Kirby-Maurice would only be
    oppressive to the appellant if Kirby-Maurice did not have sufficient funds to
    purchase the appellants shares at the price determined by the valuator. The
    motion judge granted the respondents motion for the valuators appointment.

D.

Issues

[23]

Although the notice of appeal referenced the
    dismissal of the appellants breach of contract and oppression remedy claims,
    the appellant limited his argument in both his factum and oral submissions to
    the dismissal of the oppression remedy claim. For the purposes of the appeal, therefore,
    the issues to be determined are whether the motion judge erred in:

(i) granting
    summary judgment in the context of an application; and

(ii) finding that the limitation period applicable to the
    appellants oppression remedy claim had expired.

E.

Analysis

(i
)       Summary
    Judgment in an Application

[24]

Counsel for the appellant raised with the panel
    at the hearing of the appeal the issue of whether a motion for summary judgment
    is an available procedure in the context of an application. He admitted that
    this was an issue that came to him shortly before the hearing of the appeal and
    that it was not raised before the motion judge or in the materials originally
    filed on this appeal.

[25]

Generally, a party who has participated in a
    process in the court below without complaint cannot object to that process on
    appeal:
Harris v. Leikin Group Inc.
, 2014 ONCA 479, 120 O.R. (3d) 508,
    at para. 53; see also
Marshall v. Watson Wyatt & Co.
(2002), 57
    O.R. (3d) 813 (C.A.), at paras. 14-15. I nonetheless think it is important to
    address the issue of the availability of a summary judgment motion on an
    application under Rule 14,  especially given the increased prevalence and
    importance of summary judgment motions since the Supreme Court of Canadas
    decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[26]

The parties have brought one relevant decision
    to our attention. In
Essex Condominium Corp. No. 5 v. Rose-ville Community
    Center Assn
. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.), Pomerance J. held
    that summary judgment was not available in the context of an application to
    wind up a corporation under the
Corporations Act
, R.S.O. 1990, c.
    C.38.

[27]

Similarly, in
Ravikovich v. College of
    Physicians & Surgeons (Ontario)
, 2010 CarswellOnt 6643 (S.C.), Ferrier
    J. concluded that

summary judgment is not available in a judicial review
    application because the remedy is only available for actions and an action is a
    proceeding that is not an application.

[28]

I agree with the analysis of the issue in both
    cases, although I reach a different result on the facts of this case.

[29]

The starting point in the analysis is the
    language of Rule 20.  It is clear that the rule contemplates that it will be
    used in the context of an action and not an application. The rule specifies
    that a motion for summary judgment is available to a plaintiff after the
    delivery of the statement of defenc
e
 on all or part of the claim in
    the statement of claim. Similarly, a defendant may move for summary
    judgment to dismiss all or part of the claim in the statement of claim.

[30]

The emphasized terms are defined in r. 1.03 and
    it is plain that they apply in the context of an action and not an application.
    A plaintiff is defined as a person who commences an action and a defendant is
    a person against whom an action is commenced. An action is a proceeding that
    is not an application and includes a proceeding commenced by, among other
    things, a statement of claim.

[31]

There is no reference in the text of Rule 20 to
    an applicant, who is defined in r. 1.03 as a person who makes an application
    or to a respondent

who is defined in r. 1.03 as a person against whom an
    application is made or an appeal is brought, as the circumstances require.  Nor
    does the summary judgment rule mention a notice of application, which is the
    originating process for an application.

[32]

The drafters of the summary judgment rule made a
    deliberate choice to restrict its availability to actions. There is a valid
    policy rationale for this restriction. Summary judgment is a simplified
    procedure, designed to determine all or part of an action in a summary manner,
    in order to reduce expense and preserve court resources. An application is also
    a summary process. Its use is restricted, pursuant to r. 14.05(3), to
    situations where an application is permitted under the
Rules

or
    in cases where certain enumerated relief is claimed. Evidence is generally
    supplied through affidavits and cross-examinations conducted out of court.
    Where there is conflicting evidence that requires credibility determinations on
    central issues, the application must be converted to an action: see
Baker
    v. Chrysler Canada Ltd
.
(1998), 38 O.R. (3d) 729 (S.C.). If a
    proceeding is capable of being resolved as an application, it should be, as
    that is the most expeditious and least expensive determination of the
    proceeding on its merits. There is no utility in layering on to this summary
    process another summary process.

[33]

This is not a situation, as the respondents
    submit, where there is a lacuna in the
Rules
and the court is required
    to utilize r. 1.04 to interpret Rule 20 as if it applied to applications under
    Rule 14. Rule 38.10(1)(b) empowers a judge to order that all or part of an
    application proceed to trial. Pursuant to rr. 38.10(2) and (3), where the application
    judge orders that all or part of an application should proceed to trial, the
    proceeding is thereafter treated as an action in respect of the issues to be
    tried subject to the directions in the order directing a trial. The practical
    effect of r. 38.10 is that the summary judgment vehicle in Rule 20 will be
    available to resolve the issues in a Rule 14 application after the application
    is converted by judicial order into an action.

[34]

With this analysis in mind, I turn to a
    consideration of whether the summary judgment rule was available to the parties
    and the court below. Newbould J. made an order that the claims of oppression
    and breach of contract should be determined through a mini-trial. Although Newbould
    J.s order did not explicitly direct that the application proceed to trial, he
    had authority to make such an order pursuant to r. 38.l0(1)(b).

[35]

Considering that neither party objected to the
    use of the summary judgment procedure and that both fully participated in the
    motion, any error in disposing of the limitation period issue by way of a
    motion for summary judgment was merely a procedural defect that caused no
    prejudice to the parties. Thus, I would not interfere with the motion judges
    decision on the procedural basis raised by the appellant in oral argument.


(ii)     Limitation Period

(a)      Positions of the
    Parties

[36]

There is a division in the case law regarding
    the applicability of the general two-year limitation period prescribed by s. 4
    of the
Limitations Act, 2002
, to cases of ongoing oppression. The
    positions of the parties on this appeal reflect this division.

[37]

The appellant submits that in the
Waxman

and
Metcalfe

decisions referenced above, the courts
    recognized a judges remedial discretion to permit a claim commenced more than
    two years after its discovery if there is an ongoing fact situation of
    continuing oppressive conduct.

[38]

In
Waxman
, this court affirmed the
    trial judges decision to allow an oppression claim to proceed even though the
    plaintiff was aware of the facts giving rise to at least some of the claims
    many years before he commenced his action. Notwithstanding that knowledge, the
    court found, at para. 536, that [t]he trial judge exercised her discretion to
    apply her broad remedial authority to the pattern of oppressive conduct that
    started in 1979. In doing so she neither abused her discretion nor ran afoul of
    any legislative limitation period.

[39]

In
Metcalfe
, a case distinguished by
    the motion judge with facts very similar to the present appeal, the applicant
    commenced an oppression application on August 7, 2008, more than five years
    after he began seeking information about his shareholdings. Citing
Waxman
,
    the court held that no statutory limitation period was applicable and, in any
    event, the claim was not statute barred as the oppression continued until at
    least March 5, 2007 when the applicant finally obtained some of the information
    he sought.

[40]

The respondents submit that
Waxman

is
    distinguishable on the basis that it was
decided under
    the former
Limitations Act
, R.S.O. 1990, c. L.15. According to this
    courts decision in
Joseph v. Paramount Canadas Wonderland
,
2008 ONCA 469, 90 O.R. (3d) 401, the common law discretion to extend a
    limitation period by applying the doctrine of special circumstances no longer
    exists under the new legislation.  Rather, s. 4 makes clear that a
    two-year limitation period applies unless the
Limitations Act, 2002
,
provides otherwise.

[41]

Pepall J. followed the
Joseph
decision
    in
Fracassi
. Having found that oppression claims are caught by the
    two-year limitation period under the
Limitations Act, 2002
, Pepall J.
    concluded that the limitation defence asserted by the defendants succeeded in
    part. She also found that
limitation periods apply to
    ongoing oppressive conduct, reasoning that limitation periods begin when
    the cause of action arises, not when it is remedied, at para. 273.

[42]

The respondents cite

a

number of
    Ontario Superior Court decisions where
Fracassi
has been followed:
Reinhart
    v. VIXS Systems Inc
.
, 2011 ONSC 5349,
Paul v. 1433295 Ontario
    Limited
, 2013 ONSC 7002, 120 O.R. 339, revd on other grounds 2015 ONSC
    3588,

Sterling Waterhouse Inc. v. LMC Endocrinology Centres (Toronto)
    Ltd
.
, 2015 ONSC 3987, revd on other grounds 2015 ONCA 645, and

Solar
    Harvest Co. v. Dominion Citrus Ltd.
, 2015 ONSC 1315, 39 B.L.R. (5th)
    141. In all of those cases, the courts held that the two-year limitation period
    applies to oppression remedy claims under the OBCA.

(b) Applicable Limitation Period

[43]

In my view, an oppression remedy claim under the
    OBCA is subject to the general two-year limitation period prescribed by s. 4 of
    the
Limitations Act, 2002
. Oppression is not listed under s. 16 as a
    claim to which no limitation period applies, nor is it exempted under s. 19 of
    the legislation. Special circumstances are also not available to extend the
    limitation period.

[44]

In the present case, the respondents act of
    selling their common shares in Tasco and Marlba would not qualify as oppressive
    conduct
per se
.
The potential oppressive conduct that arises
    from this transaction is twofold. The first is the failure of the respondents
    to provide the appellant with the requested information regarding the
    transaction. Second, the transaction itself may qualify as actionable
    oppression if it adversely impacted the value of the appellants shareholding
    in Kirby-Maurice.

[45]

The appellant had knowledge in July 2008 that
    the respondents were selling their common shares in Tasco and Marlba, that the
    Tasco preferred shares held by Kirby-Maurice would be sold for redemption at
    face value ($1.20 per share), and that the respondents were not disclosing the
    information regarding the valuation of their shares and any potential impact of
    the sale on the value of the appellants shares in Kirby-Maurice.

[46]

The appellant had an obligation to commence a
    claim based on the respondents failure to produce the information regarding
    the share transaction within two years of his discovery that they would not
    produce it to him.  It is not open to this court, as was suggested by the
    appellant, to look behind his non-action and excuse it based on the fact that
    this was a family business or that he had a reasonable expectation that the
    information would eventually be produced. Such an approach would effectively
    mark the return of the special circumstances doctrine, which has no application
    under the current limitations regime.

[47]

Had the appellant taken steps pursuant to the
    oppression remedy to protect his rights based on the non-disclosure, he would
    have also been in a position to determine whether he had a potential claim with
    respect to the respondents share sale. He then could have potentially
    commenced a claim seeking compensation or other related relief.

[48]

I am also of the view that this is not a case
    where there is ongoing oppressive conduct. The sale was a singular event that
    occurred many years ago. The refusal to produce documents was made known to the
    appellant in 2008. It is true that no production was made until this proceeding
    was commenced, but the continuous refusal to produce documents does not operate
    to extend the limitation period any more than a refusal to pay an outstanding
    amount in a collection action extends the limitation period until payment is
    received. As previously mentioned,
limitation periods
    begin when the cause of action arises, not when it is remedied:
Fracassi
,
    at para. 273.


[49]

Courts must be careful not to convert singular
    oppressive acts into ongoing oppression claims in an effort to extend
    limitation periods. To do so would

create a special rule for oppression
    remedy claims.

[50]

Despite the foregoing, in my view, the motion
    judge erred in law in concluding that the appellants oppression claim was out
    of time. Another discrete potentially oppressive act occurred when the
    respondent siblings commenced their application on May 13, 2013 for an order
    appointing a valuator to determine the fair value of the appellants shares in
    Kirby-Maurice.

[51]

In that application, there was no reference to
    the circumstances surrounding the disposal of the Tasco preferred shares and
    what impact it had on the value of the appellants Kirby-Maurice shares. Nor
    was there any production of the documents related to the share sale until they
    were produced as part of the respondents disclosure on the cross-application
    following the decision of Newbould J. The sibling respondents were in effect
    seeking a valuation process and payout to the appellant that did not take into
    account their earlier alleged oppressive conduct.

[52]

A party that engages in a series of oppressive
    acts can always make the argument that it is all part of the same corporate
    malfeasance and that the limitation period begins to run with the discovery of
    the first oppressive act. In analyzing that conduct, courts must have regard to
    the remedial nature of the oppression remedy and the fact that any threatened
    or actual conduct that is oppressive, or unfairly prejudicial to, or unfairly
    disregards the interests of any complainant can constitute a discrete claim of
    oppression. The oppression remedy section of the OBCA is drafted in the
    broadest possible terms to respond to the broadest range of corporate
    malfeasance.

[53]

Where the motion judge erred was in failing to
    carefully scrutinize the respondents conduct to determine whether there were
    any discrete acts of oppression within the two-year period prior to the
    commencement of the cross-application. In my view, the sibling respondents
    committed a new act of alleged oppressive conduct when they brought their
    application and attempted to rely upon their previous alleged oppressive
    conduct as part of the share valuation.

[54]

The practical effect of the motion judges
    reasoning is that where a party is alleged to have acted in an oppressive
    manner and no oppression remedy application is commenced as a consequence, he
    or she is free to take additional oppressive steps in furtherance of, or based
    upon, the initial oppressive conduct. That reasoning is contrary to the broad
    purposive interpretation that must be afforded this statutory cause of action:
    see
BCE Inc. v. 1976 Debentureholders
, 2008 SCC 69, [2008] 3 S.C.R.
    560, at para. 58;
Rea v. Wildeboer
, 2015 ONCA 373, 126 O.R. (3d) 178,
    at para. 33; and
Unique Broadband Systems, Inc. (Re)
, 2014 ONCA 538,
    121 O.R. (3d) 81, at para. 107.

[55]

The value of the Tasco preferred shares is
    central to the valuation of the appellants shares in Kirby-Maurice. The
    determination of the oppression allegations is an important part of the
    valuation process and that is why Newbould J. ordered a mini-trial on those
    allegations. In order to determine whether there is actionable oppression, the
    court is required to analyze whether there was oppression as a consequence of
    the respondents share sale and, if so, whether there is oppression now by
    reason of the respondents reliance on their previous misconduct. Therefore,
    the motion judge erred in dismissing the oppression remedy claim as statute
    barred.

F.       DISPOSITION

[56]

I would allow the appeal and set aside the order
    for summary judgment dismissing the appellants oppression remedy claim. I
    would direct that the parties proceed to a trial on the allegation that the
    share sale transaction executed by the respondents was oppressive, or unfairly
    prejudicial to, or unfairly disregarded the appellants interest in obtaining
    fair value for his shares in Kirby-Maurice. This trial shall be determined
    prior to the valuation of the appellants shares in Kirby-Maurice.

[57]

After the hearing of the appeal, the parties
    advised that they have reached an agreement on costs, which they will provide
    to the court once our decision has been rendered.  They may do so now.

Released: April 21, 2016 GE

C.W.
    Hourigan J.A.

I
    agree Gloria Epstein J.A.

I
    agree K. van Rensburg J.A.


