ONTARIO COURT OF APPEAL SUMMARIES (JANUARY 15 – JANUARY 19, 2018)

Below are this week’s summaries of the civil decisions of the Court of Appeal.

While there were several civil decisions released by the Court of Appeal this week, they were, for the most part, procedural in nature. Topics covered included striking pleadings in the family law context, vexatious litigants, insolvency, wills and estates, and debtor-creditor.

Enjoy the weekend,

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents: 

Laurentian Bank of Canada v. Bernier, 2018 ONCA 23

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Orders, Setting Aside, Fresh Evidence, Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

Midland Resources Holding Limited v. Shtaif, 2018 ONCA 33

Keywords: Civil Procedure, Appeals, Applications for Reconsideration, Rules of Civil Procedure, Rule 59.06(2)(d)

Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Standing

Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32

Keywords: Civil Procedure, Vexatious Litigants, Self-Represented Litigants, Frivolous or Vexatious Actions, Summary Dismissal, Rules of Civil Procedure, r. 2.1.01(1), Gao v. Ontario WSIB, 2014 ONSC 6100, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Courts of Justice Act, s. 140, Re Lang Michener et al. v. Fabian et al. (1987) 59 O.R. (2d) 353 (H.C.)

Wouters v. Wouters, 2018 ONCA 26

Keywords: Family Law, Striking Pleadings, Breach of Court Orders, Natural Justice, Procedural Fairness, Self-Represented Litigants, Family Law Rules, Rules of Civil Procedure, Irregularities

Ali v. Fruci, 2018 ONCA 41

Keywords: Wills and Estates, Testamentary Capacity, Undue Influence

For Short Civil Decisions Click Here

For Criminal Decisions Click Here

Civil Decisions: 

Laurentian Bank of Canada v. Bernier, 2018 ONCA 23

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

Kevin Scullion, for the appellant

James M. Butson and Cristina Internicola, for the respondent

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Orders, Setting Aside, Fresh Evidence, Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

Facts:

The appellant was sued by the respondent bank for a shortfall when it repossessed and sold a motorcycle that had been purchased by her husband with financing provided by the bank. The respondent was named as co-defendant because the loan document bore her signature as guarantor of the loan. Her husband filed a statement of defence on behalf of both defendants, but neither contested the motion and the respondent was granted summary judgment. The respondent took steps to enforce the judgment debt and scheduled an examination of the appellant. The appellant failed to attend two examinations scheduled subsequently. The respondent then brought a motion to compel her attendance. The appellant did not attend and an order of costs was made. The appellant did not pay and has not paid any outstanding costs orders.

In January 2016, the appellant brought a motion to set aside the judgment and swore an affidavit alleging that her husband, who died in 2011, entered the contract to purchase the motorcycle and forged her signature. No supporting evidence was adduced.

Issue: Should the summary judgment be set aside in light of fresh evidence?

Holding: Appeal dismissed.

Reasoning:

No. The motion judge properly applied the test set out by the court in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670. On the motion, the appellant proffered no expert evidence to support her claim that her signature had been forged, nor did she provide an adequate explanation for her delay in moving to set aside the judgment. The motion judge found that the respondents would be prejudiced given the four-year delay in attempting to realize on the judgment. The onus was on the appellant to demonstrate that the order should be set aside. Ultimately, the motion judge was not satisfied that she met her burden. His discretionary decision is entitled to deference. Further, the appellant’s fresh evidence application was available when the motion was brought and it was incumbent on the appellant to produce it at that time.

Midland Resources Holding Limited v. Shtaif, 2018 ONCA 33

[Doherty, Brown and Roberts JJ.A.]

Counsel:

Michael Shtaif and Eugene Bokserman, in person

Symon Zucker, for the respondents Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin

Keywords: Civil Procedure, Appeals, Applications for Reconsideration, Rules of Civil Procedure, Rule 59.06(2)(d)

Facts:

By reasons released April 20, 2017, the court: (i) dismissed the appeal by Eugene Bokserman of the US$1.5 million judgment against him; and (ii) allowed, in part, the appeals by Michael Shtaif and Gregory Roberts, reducing the judgments against them to US$8.27 million.

Shtaif and Bokserman moved under rule 59.06(2)(d) of the Rules of Civil Procedure for a “reconsideration” of the court’s decision to maintain awards of damages against them. Rule 59.06(2)(d) states: “A party who seeks to … (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed.” The appellants contended that the trial judge “miscalculated” Midland’s damages as at June 20, 2006, by only considering the accruing loss at that date, without considering the accruing gain which, they contended, flowed from the closing of the Reef Energy transaction after that date. They argue that it was not fair or just for the court to rely on the trial judge’s miscalculation of damages in affirming the judgment in part.

Issues:

(1) Should the court reconsider the damages awarded against the appellants?

Holding: Appeal dismissed.

Reasoning:

(1) No. Shtaif and Bokserman are not simply pointing out a “mathematical oversight” in the trial judge’s damage calculation; they are advancing a theory of damages not argued on the appeal. In their appeal factum, the appellants identified seven grounds of appeal, none of which involved a claim that the trial judge miscalculated Midland’s damages as of June 20, 2006, by failing to take into account any post-June 20, 2006 gain. Although the appellants did submit the trial judge erred in finding Midland acted reasonably to mitigate its damages, the court did not give effect to that ground of appeal. Consequently, r. 59.06(2)(d) offers no basis for the court to “reconsider” its decision.

Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Robert J. Reynolds, for the moving party

Jillian Burford-Grinnell, for the respondent, Dixie Lee Ontario Ltd.

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Standing

Facts:

On January 23, 2017, Rasaiah J. granted partial summary judgment to Maria Struik (“Struik”).  She declared Dixie Lee Ontario Ltd. (“DLOL”) to be a guarantor of certain obligations and ordered it to pay Struik monthly amounts together with interest and costs. On March 1, 2017, DLOL served a notice of appeal after the time to appeal.

On March 3, 2017, Rasaiah J. granted a further order appointing Struik as the Receiver of all of the assets, undertaking and property (the “Property”) of DLOL with the power to take possession, control and manage the business of DLOL and, on notice to DLOL and Joseph Murano (the directing mind of DLOL), market and sell the Property.  All rights and remedies against DLOL, the Receiver, or affecting the Property were stayed.

DLOL sought an extension of time to serve and file the notice of appeal of the receivership order.  A chambers judge of the Court of Appeal granted the extension by order dated August 1, 2017. It is not clear if the receivership order was brought to the attention of the chambers judge. Struik brought this motion before a panel to review the order of the chambers judge.

Issues:

(1) Should the order of the chambers judge extending the time to appeal be set aside?

Holding: Motion granted.

Reasoning:

(1) Yes. The thrust of the notice of appeal is that Struik breached and repudiated the contract relating to the guarantee, thereby releasing DLOL from the guarantee. In lengthy and detailed reasons, Rasaiah J. expressly addressed this issue noting that the language of the guarantee precluded such defences and claims. Other than disagreeing with the order, no specific error could be identified by the appellant.

Moreover, the justice of the case is not served by permitting the appeal to proceed.   Although not raised by either party, given the terms of the receivership order, the party purporting to resist the motion and to proceed with the appeal of the January 23, 2017 judgment, namely DLOL, has no status independent of the receiver to do so.

Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32

[Pepall, Benotto and Paciocco JJ.A.]

Counsel:

Rory Adrian Van Sluytman, acting in person

M Williams and J Glick, for the respondent, the Attorney General of Ontario (C63372, C63373, C63380 and C64065)

J W Clow and M J Hudswell, for the respondent, the District Municipality of Muskoka (C63372 and C63373)

L Crowell, for the respondents, Orillia Soldiers’ Memorial Hospital (C63375) and Muskoka Algonquin Healthcare (C63377)

K Kalogiros and B Mattalo, for the respondent, Dr. Anthony Denning Shearing (C63376)

P D Duda, for the respondent, Muskoka-Parry Sound Community Mental Health Service (C63378)

Ian S. Epstein and Zack Garcia, for the respondent, Lake Country Community Legal Clinic (C63380)

M Abraham, for the respondent, Legal Aid Ontario (C63380)

H Sheikh, for the respondent, the Attorney General of Canada

P Sibenik and W Wong for the respondent, Legislative Assembly of Ontario (C63380)

Keywords: Civil Procedure, Vexatious Litigants, Self-Represented Litigants, Frivolous or Vexatious Actions, Summary Dismissal, Rules of Civil Procedure, r. 2.1.01(1), Gao v. Ontario WSIB, 2014 ONSC 6100, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Courts of Justice Act, s. 140, Re Lang Michener et al. v. Fabian et al. (1987) 59 O.R. (2d) 353 (H.C.)

Facts:

The appellant, Mr. Van Sluytman, brought eight appeals before the Court of Appeal. Seven appeals concerned orders made by the Superior Court of Justice under the summary procedure provided for in Rule 2.1.01(1) dismissing actions brought by the appellant on the basis that they were frivolous or vexatious (the “Rule 2.1.01 Orders”).  The eighth appeal was an appeal of an application that had been brought by the Attorney General of Ontario, wherein the appellant was declared a vexatious litigant under s. 140 of the Courts of Justice Act (the “Vexatious Litigant Order”).

The appellant’s claims in the actions giving rise to the Rule 2.1.01 Orders related generally to his numerous complaints about his interactions, over many years, with various government agencies, law enforcement officials, and mental health care and medical personnel in Ontario. For each of the R. 2.1.01 Orders, the reviewing judge considered the governing principles concerning the exercise of the court’s discretionary authority under R. 2.1.01 as set out in such leading authorities as Gao v. Ontario WSIB, 2014 ONSC 6100, Gao v. Ontario WSIB, 2014 ONSC 6497 and Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733. It was found that each action’s statement of claim exhibited many of the hallmarks of pleadings in vexatious actions and, in each case, the reviewing judge concluded that the appellant’s pleading: (i) failed to advance a clear or legitimate cause of action; (ii) was replete with the type of grandiose claims that characterize vexatious actions; and/or (iii) in some instances, asserted one or more claims that were barred by the expiry of a governing limitation period. Accordingly, the actions were dismissed pursuant to Rule 2.1.01.

Issues:

(1) Did the reviewing judge err in ordering the Rule 2.1.01 Orders on the basis of drafting deficiencies in the appellant’s pleadings?

(2) Did the reviewing judge err in ordering the Rule 2.1.01 Orders in light of the appellant’s allegation that government authorities failed to provide him with directions regarding how to proceed with an action in compliance with the Rules of Civil Procedure?

(3) Did the reviewing judge err in ordering the Rule 2.1.01 Orders in light of the alleged absence of any notice given to the appellant, as required by R. 2.1.01(3)1?

(4) With respect to the Vexatious Litigant Order, did the application judge err in declaring the appellant a vexatious litigant pursuant to s. 140 of the Court of Justice Act?

Holding: Appeals dismissed.

Reasoning:

(1) No. Having considered the appellant’s pleadings in each proceeding, the Court of Appeal agreed with the reviewing judges that they fell far short of meeting the pleadings requirements applicable to all litigants.  Further, they failed to advance any justiciable cause of action. On this ground alone, it was open to the reviewing judges to dismiss the appellant’s actions using R. 2.1.01(1).

In light of the Court of Appeal’s conclusions, it did not consider whether the expiry of a limitation period may be relied upon as an independent basis on which to dismiss an action under R. 2.1.01(1).

(2) No. The involved government authorities were not obliged at law to furnish directions to the appellant, a self-represented litigant, on how to frame and plead his claims against the respondents.  The Rules of Civil Procedure provide detailed and clear procedures for the commencement of proceedings and delineate the requisite and permissible contents of pleadings. The appellant was obliged to comply with the Rules of Civil Procedure, but failed to do so.

(3) No. Although it is not entirely clear whether notice was given in all seven actions, it was evident that notice was given in the action before Di Luca J. and in at least two of the actions before Wood J., who had dealt with six of the appellant’s actions concurrently.  Moreover, in oral submissions, the appellant conceded that he may have had received notice in one or two of the actions. It is clear that notice was directed to be given and was given in at least some of the actions. Even if the appellant did not receive notice under R. 2.1.01 to make submissions, the Court held that no prejudice or injustice would in any event arise given that the outcome would have been unaffected by submissions.

(4) No. The Court of Appeal reached a similar conclusion regarding the appellant’s appeal from the Vexatious Litigant Order, finding that this discretionary order was amply justified. The application judge concluded that the various actions commenced by the appellant are a classic reflection of many of the characteristics outlined in Re Lang Michener et al. v. Fabian et al. (1987) 59 O.R. (2d) 353 (H.C.) (a case that describes many of the salient characteristics of vexatious proceedings).

Wouters v. Wouters, 2018 ONCA 26

[Simmons, Cronk and Paciocco JJ.A.]

Counsel:

Suzor, for the appellant
G. McFadyen, for the respondent

Keywords: Family Law, Striking Pleadings, Breach of Court Orders, Natural Justice, Procedural Fairness, Self-Represented Litigants, Family Law Rules, Rules of Civil Procedure, Irregularities

Facts:

On November 22, 2016, the wife brought a motion returnable on December 8, 2016 seeking, among other things, an order striking the husband’s pleadings for failing to comply with various court orders. In the same motion, the wife also asked for an order rectifying the overpayment of support of $53,996.19 by setting it off against support payments of $77,371.10, which she asserted had been paid from her share of funds held in trust.

On December 12, 2016, the husband brought a motion returnable December 15, 2016, seeking a payout of $50,000 from the proceeds of sale of the farm property held in trust by the wife’s counsel. On December 15, 2016, the husband brought a motion returnable December 22, 2016, requesting leave to call oral evidence from his accountant on his motion for an accounting.

On December 22, 2016, the motion judge granted leave to the husband to call oral evidence from his accountant. This December 2016 order was, in part, subject to the accountant providing a letter to the wife’s counsel by January 20, 2017, outlining his intended evidence. However neither the motion judge’s handwritten endorsement, nor a typed transcription, included the requirement that the accountant’s letter go to the wife’s counsel.

The motion judge struck the husband’s pleadings noting that the continuing record consisted of 12 volumes and disclosed that 16 judges had been involved in the case. He observed that the wife’s affidavit set out many examples of the husband’s effort to stand in the way of the progress of the application and acts to the disadvantage of the wife. He also noted that the husband breached four orders.

Issues:

(1) Did the motion judge err in striking the husband’s pleading?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The motion judge’s rulings adversely affected the appellant’s ability to respond to the wife’s motion to strike.

The motion judge denied the husband the opportunity to call oral evidence from his accountant because the appellant had not delivered the accountant’s letter as required by the terms of the December 2016 order. However, in making this ruling, the judge never grasped nor entertained the husband’s point that the handwritten endorsement of the December 2016 order did not say that the letter should have been sent to the wife’s counsel. Had the motion judge grasped the husband’s position, it may have been possible to receive the accountant’s evidence by affording the wife’s experienced counsel an opportunity to review the accountant’s letter that the appellant asserted he had filed with the trial coordinator.

The second ruling to strike the appellant’s reply factum on the basis that it did not comply with the Family Law Rules also adversely affected the appellant’s position because the motion judge failed to turn his mind as to whether the reply factum contained any material that could properly be considered on any of the motions before the court for the husband’s benefit. Although the Family Law Rules and the Rules of Civil Procedure are designed, at least in part, to ensure procedural orderliness and efficiency, they are not so rigid or inflexible as to preclude the court from examining non-compliant documents submitted by self-represented litigants to ensure that any properly admissible portions are received. If the husband delivered documents in advance of the motion hearing to comply with outstanding undertakings or court orders, he should not have been precluded from demonstrating compliance because he did not file an affidavit in response to the motion to strike. If the documents or responses were included in his reply factum, that demonstrated pre-hearing compliance.

Also the motion judge was wrong to conclude that the records reveal a consistent effort by the wife’s counsel to pursue outstanding disclosure or to get this matter on for trial. The records reveal that the wife and the wife’s counsel also contributed to the delay.

Finally, in the context of not having a full picture of the husband’s position on the motion to strike, the motion judge failed to properly consider whether any lesser remedy would suffice. It is a well-established principle in family law that pleadings should be struck only in exceptional circumstances and where no other remedy would suffice. Before striking pleadings, a court should consider the availability of any alternate remedy and the importance and materiality of any items not produced.

Ali v. Fruci, 2018 ONCA 41

[Strathy C.J.O., Hourigan and Miller JJ.A.]

Counsel:

C McClelland, for the appellant

R Budgell and L Thompson, for Mary Fruci

K Garland, for Robert David Willis

Keywords: Wills and Estates, Testamentary Capacity, Undue Influence

Facts:

The appellant, Lorilee Ali, appeals the judgment of the trial judge dismissing her action seeking to have certain wills of Florence Louisa Blackburn declared invalid. Ms. Ali was the great-niece of Ms. Blackburn, who died in June 2007. Over the course of a five-year period between 1998 and 2003, Ms. Blackburn executed three wills and two codicils. In Ms. Blackburn’s 1998 will and two codicils executed in 1999, Ms. Ali was an estate trustee and the residual beneficiary. In wills created in 2000 and 2003, Ms. Ali was neither estate trustee nor beneficiary. Instead, in the 2000 will the respondents Mary Fruci and Robert Willis were beneficiaries and were respectively the estate trustee and alternate estate trustee. Pursuant to the 2003 will, Ms. Fruci was the residual beneficiary and Mr. Willis was the estate trustee. Mr. Willis was also entitled to the transfer of Ms. Blackburn’s home upon her death. Ms. Ali commenced an action seeking to invalidate the 2000 and 2003 wills on the basis of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence. On appeal, Ms. Ali submits that the trial judge misapprehended the medical evidence regarding the issue of Ms. Blackburn’s testamentary capacity. Further, she submits that the trial judge erred in failing to distinguish between Ms. Blackburn’s capacity to manage property and financial affairs and her testamentary capacity.

Issues:

(1) Did the trial judge err in the analysis?

Holding:

Appeal dismissed.

Reasoning:

(1) In considering the issue of testamentary capacity, the trial judge carefully and thoroughly examined the evidence, including the evidence of Ms. Blackburn’s doctor and other professional witnesses who testified as to her capacity. His conclusion that Ms. Blackburn had testamentary capacity was fully supported by the evidence. There was no error in the trial judge making reference to Ms. Blackburn’s capacity to manage her property and financial affairs in his analysis of her testamentary capacity. That was relevant evidence that he was entitled to rely upon. The trial judge identified the correct legal test for testamentary capacity and properly applied it to the evidence.

Short Civil Decisions:

J.K. v. Ontario, 2018 ONCA 20

[Hoy A.C.J.O., Huscroft and Paciocco JJ.A.]

Counsel:

Tamara D. Barclay and Jonathan Sydor for the appellant, Her Majesty the Queen in right of the Province of Ontario

Kirk Baert and James Sayce for the respondent plaintiff, J.K.

Kirk Boggs for the respondents Banyan Community Services Inc. et al.

No one for the respondent Casatta Ltd.

Keywords: Costs Endorsement, Amendment of Pleadings

Dunn v. Dunn, 2018 ONCA 28

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Andreus Snelius, for the appellant

Kevin Caspersz, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Consent Orders

Trade Capital Finance Corp. v. Cook, 2018 ONCA 27

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Peter Carey, for the appellant

Brendan Wong, for the respondents

Keywords: Civil Procedure, Mareva Injunctions, Writs of Seizure and Sale

772067 Ontario Limited v. Victoria Strong Manufacturing Corporation, 2018 ONCA 36

[Laskin, Trotter and Fairburn JJ.A.]

Counsel:

Paul Starkman, for the appellant

Clifford Cole, for the respondents

Keywords:Real Property, Commercial Leases, Commercial Tenancies Act, s. 19

Sultan v. Hurst, 2018 ONCA 37

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Jillian van Allen, for the appellant

Jeffrey Goit, for the respondent

Keywords: Civil Procedure, Service, Validation, Rules of Civil Procedure, r. 14.08

Lord v. Clearspring Spectrum Holdings L.P., 2018 ONCA 38

[Doherty, Benotto and Miller JJ.A.]

Counsel:

Arthur Hamilton and Jed Blackburn, for the appellants

Robert Staley, Alan Gardner and William Burtolin for the respondents

Keywords: Costs Endorsement

St. James No. 1 Inc. v. VanderWindt, 2018 ONCA 44

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Justin Nasseri, for the appellant

Daniell Bartley, for the respondents

Keywords: Real Property, Municipal Law, Heritage Buildings, Ontario Heritage Act, s. 34

Criminal Decisions:

R v. Bebonang, 2018 ONCA 30

[Laskin, Cronk and Fairburn JJ.A.]

Counsel:

Paula Rochman, for the appellant

Amy Alyea, for the respondent

Keywords: Criminal Law, Attempted Murder, Aggravated Assault, Mens Rea, Evidence, Character Evidence, Criminal Code, s. 753

R v. Hasiu, 2018 ONCA 24

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:

Eva Taché-Green, for the appellant

Jennifer Conroy, for the respondent

Keywords: Criminal Law, Drug Trafficking, Sentencing, Corrections and Conditional Release Act, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, Jurisdiction, Functus Officio, Nunc pro tunc, , R. v. Krouglov, 2017 ONCA 197, R. v. Malicia (2006), 82 O.R. (3d) 772 (C.A.)

R v. Hofsteede, 2018 ONCA 31

[Rouleau, Watt and Brown JJ.A.]

Counsel:

Lauren Binhammer, for the appellant

Althea Francis, for the respondent

Keywords: Criminal Law, Drug Trafficking, Sentencing, Repeat Offender

R v. Shahcheraghi, 2018 ONCA 29

[Rouleau, Watt, Brown JJ.A.]

Counsel:

Catriona Verner, for the appellant

Frank Au, for the respondent

Keywords: Criminal Law, Assault, Criminal Code, ss. 268 & 686, R. v. Lohrer, 2004 SCC 80

R v. Zagrodskyi, 2018 ONCA 34

[Laskin, Trotter and Fairburn JJ.A.]

Counsel:

Matthew Gourlay and Reem Zaia, for the appellant

Nancy Dennison, for the respondent

Keywords: Criminal Law, Domestic Abuse, Sexual Assault, Evidence, Immigration Law, Immigration and Refugee Protection Act

R v. Al-Kazragy, 2018 ONCA 40

[Feldman, Fairburn and Nordheimer JJ.A.]

Counsel:

Erika Chozik, for the appellant Payam Khastou

Naomi Lutes, for the appellant, Mohammad Al-Kazragy

Richard Posner and Lance Beechener, for the appellant Arash Arashvand

Elise Nakelsky and Peter Scrutton, for the respondent Crown

Keywords: Criminal Law, First & Second Degree Murder, Charge to Jury, Inconsistent Verdicts,  R. v. Pittiman, 2006 SCC 9, R. v. Catton, 2015 ONCA 13, R. v. White, 2011 SCC 13, R. v. Villaroman, 2016 SCC 33

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ONTARIO COURT OF APPEAL SUMMARIES (JANUARY 8 – JANUARY 12, 2018)

Below are this week’s summaries of the civil decisions of the Court of Appeal.

Congratulations to our very own Bill Anderson for succeeding on the main issues in our client’s appeal in Nemeth v. Hatch Ltd., 2018 ONCA 7. In this Employment law decision, the Court of Appeal found that it is not necessary to include an explicit stipulation in a termination clause of an employment agreement in order to displace the common law, as long as the intention is clear from the words used. Additionally, the Court of Appeal found that silence in a termination clause concerning an employee’s entitlement to severance pay does not denote an intention to contract out of the Employment Standards Act.

In Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12, the court enforced an arbitration clause in an insurance policy and stayed an action brought in Ontario in favour of arbitration in London, England.  The “Action Against Insurer” clause stipulating the address for service of process on Lloyd’s of London in Canada was found not to constitute an alternative dispute resolution clause. It was found to effectively be an address for service clause, which would include service of a notice of arbitration to be held in London.

Other topics include a review of the “Real and Substantial Connection Test” in Sgromo v. Scott., the Family law case of Lavie v. Lavie, in which the court reviewed the law relating to the imputing of income for the purposes of calculating support, and Brown v. Canada, which was a Charter damages case for unlawful detention of an illegal immigrant for the purpose of deportation.

Finally, I would like to invite all of our readers to attend the CLE that my partner, Lea Nebel and I will be chairing featuring the top Court of Appeal decisions of the year. Justice Epstein will be making the keynote address. The CLE has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street to take place on Monday, February 26, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda for further details and to register.

There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion. The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the “appropriate means” analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for the parties on that matter, Allan Sternberg, Daniella Murynka and Michael Girard, will be our panelists. The law in this area is continuing to evolve. The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs’ personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society’s efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. Counsel for the class plaintiffs, Peter Waldmann, will be joined on our panel by Bevin Shores and Audrey P. Ramsay, who are involved with the OBA and the Law Society working groups looking at this issue.

Enjoy the weekend,

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents:

Nemeth v. Hatch Ltd., 2018 ONCA 7

Keywords: Employment Law, Termination Without Cause, Termination Clauses, Notice Employment Standards Act, 2000, S.O. 2000, c. 41, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986,Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158

Sgromo v. Scott, 2018 ONCA 5

Keywords: Contracts, Civil Procedure, Jurisdiction, Real and Substantial Connection, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Lavie v. Lavie, 2018 ONCA 10

Keywords: Family law, Spousal Support, Child Support, Imputing Income, Underemployment, Federal Child Support Guidelines, Section 19(1)(a), Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.)

Union Gas Limited v. Norwich (Township), 2018 ONCA 11

Keywords: Municipal Law, Public Utilities, Contracts, Drainage Act, R.S.O. 1990, c. D.17, Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531

Brown v. Canada (Public Safety), 2018 ONCA 14

Keywords: Constitutional Law, Unlawful Detention, Habeas Corpus, Immigration Law, Deportation, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Charter Remedies, Canadian Charter of Rights and Freedoms, ss. 7, 9, 12 and 24

Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12

Keywords: Contracts, Arbitration Clauses, Civil Procedure, Stays in Favour of Arbitration, International Commercial Arbitration Act, R.S.O. 1990 c. I.9, UNCITRAL Model Law

Toronto (Police Service) v. L.D., 2018 ONCA 17

Keywords: Administrative Law, Professions, Discipline Proceedings, Police, Certiorari, Appeals, Jurisdiction, Constitutional Law, Constitution Act, 1867, Division of Powers, Criminal Law, Police Services Act, R.S.O. 1990, c. P. 15, Youth Criminal Justice Act, S.C. 2002, c.1,  Courts of Justice Act, R.S.O. 1990, c. C.43,  R. v. Parker, 2011 ONCA 819, Criminal Code, Part XXVI.

For Short Civil Decisions Click Here.

For Criminal Decisions Click Here.

Civil Decisions:

Nemeth v. Hatch Ltd., 2018 ONCA 7

[Sharpe, Benotto and Roberts JJ.A.]

Counsel: 

DN Persaud and S Pope, for the appellant

William D. Anderson, for the respondent

Keywords: Employment Law, Termination Without Cause, Termination Clauses, Notice Employment Standards Act, 2000, S.O. 2000, c. 41, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986,Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158

Facts:

The appellant appeals from the dismissal of his action for damages arising out of the termination of his employment without cause, following his motion for summary judgment. The appellant was employed by the defendant for just over 19 years when his employment was terminated. The defendant gave the appellant 8 weeks’ notice of termination, paid him 19.42 weeks’ salary as severance pay, and continued his benefits, including his pension benefits, during the 8-week notice period. This was consistent with the appellant’s minimum entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), and reflected the respondent’s interpretation of the termination clause in the appellant’s employment contract. The termination clause provided that “the notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation.”

The appellant appeals on three grounds (1) That the appellant retained his rights to common law notice because the termination clause does not contain express language excluding entitlements under the common law; (2) the termination is void under s. 5(1) of the ESA because it purports to contract out of the appellant’s statutory entitlements to severance pay by absence of reference; and (3) the motion judge erred in failing to consider the appellant’s alternative argument that he is entitled to one week’s notice for every year of employment under the termination clause, with the result that he should have received 19 weeks’ notice.

Issues:

(1) Is it necessary to include an explicit stipulation in a termination clause in order to displace the common law?

(2) Is the termination clause void because it purports to contract out of the ESA?

(3) Does the termination clause entitle the appellant to 19 weeks’ notice of termination of his employment?

Holding:

Appeal allowed, in part.

Reasoning:

(1) No. The well-established presumption is that on termination, an employee is entitled to common law notice. However, in accordance with the Supreme Court of Canada decision in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, this presumption may be rebutted if the contract of employment “clearly specifies some other period of notice, whether expressly or impliedly”, provided that it meets the minimum entitlements prescribed under the ESA. In accordance with Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, the intention to displace an employee’s common law notice entitlement must be clearly and unambiguously expressed in the contractual language used by the parties.  The need for clarity does not mean that the parties must use a specific phrase or particular formula, or state literally that “the parties have agreed to limit an employee’s common law rights on termination”. It suffices that the parties’ intention to displace an employee’s common law notice rights can be readily gleaned from the language agreed to by the parties. Here, in accordance with Matchinger, the clause clearly “specifies some other period of notice” and, accordingly, this ground of appeal was dismissed.

(2) No. Silence of the termination clause concerning the appellant’s entitlement to severance pay does not denote an intention to contract out of the ESA.

(3) Yes. The motion judge did not consider this argument, however even if the motion judge had considered it, the Court of Appeal is of the view that the clause gives rise to two possible interpretations: one that would limit the appellant’s notice entitlement to the minimum prescribed by the ESA; the other that would not. Pursuant to the decision in Wood, when presented with a termination clause that could reasonably be interpreted in more than one way “courts should prefer the interpretation that gives the greater benefit to the employee”. The second sentence of the termination clause provides that the appellant is entitled to receive one week’s notice for every year of service. It is not limited by the subordinate clause following the preposition “with”. Rather, the words “a minimum of four weeks or the notice required by the applicable labour legislation” prescribe the minimum floor of the appellant’s notice entitlement under the agreement, in order that the notice provision of “one week per year of service” does not run afoul of the minimum requirements of the ESA. There is no language restricting the appellant’s entitlements to only the minimum notice period under the ESA. Therefore this ground of appeal was allowed and the appellant was entitled to receive 19 weeks’ notice.

Sgromo v. Scott, 2018 ONCA 5

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

A Challis and A Fletcher, for Leonard Gregory Scott and Eureka Inventions LLC

P Henein and K Byers, for the respondents Bestway (USA), Inc., Bestway (Hong Kong) International Ltd., Bestway Inflatables & Material Corp. (Shanghai), and Patrizio Fumagali

J Lester and W Mouck, for the respondent Bail Hotline Bail Bonds, Inc.

P Choe, for the respondents Polygroup International, Polygroup Limited, Polygroup Services N.A., Inc., Ricky Tong, William Kaufmann, Scott Hershock, Lewis Cheng, Elmer Cheng, and Paul Cheng

D Zulianello and K Commisso, for the respondent Imperial Toy LLC, Peter Tiger, and Art Hirsch Pietro Sgromo, acting in person on his own behalf and on behalf of the appellant, Wide Eyes Marketing Ltd.

Keywords: Contracts, Civil Procedure, Jurisdiction, Real and Substantial Connection, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Facts:

The appellant, Peter Anthony Sgromo (“Mr. Sgromo”), brought four related actions arising out of various dealings with the respondents as a consultant. During the period of time at issue in his lawsuits – roughly 2001 to 2016 – Mr. Sgromo lived in the United States. The actions of the various respondents of which he complains all took place in the United States, almost entirely in California. Mr. Sgromo currently resides in Ontario.

The respondents brought motions to dismiss or stay the appellants’ actions, principally on the ground that an Ontario court had no jurisdiction over his claims because there is no real and substantial connection between his litigation and this province. In each action, the motion judge granted the motion and stayed the action brought by Mr. Sgromo (and, where applicable, Wide Eyes).

Issues:

(1) Did Mr. Sgromo enter into a consulting contract with Imperial Toy at the Toronto airport, thus giving Ontario jurisdiction over his claim against that company?

(2) Did Mr. Sgromo enter into a consulting contract with Bestway at the Toronto airport, thus giving Ontario jurisdiction over Mr. Sgromo’s claim in his litigation against Mr. Scott and the Bestway companies?

(3) Were some of the respondents carrying on business in Ontario, thus satisfying one of the presumptive connecting factors for jurisdiction under the principles set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda?

Holding: Appeal dismissed.

Reasoning:

Ontario Courts have no jurisdiction over Mr. Sgromo’s claims.

(1) and (2) No. The Court dealt with the first two issues — two work visa applications made by Imperial Toy and Bestway at the Toronto airport to Homeland Security, whose authorization Mr. Sgromo required to work in the United States as their consultant. Neither application was a contract. Any consulting arrangement or other business relationship between the parties took place in California. The two visa applications made at the Toronto airport do not establish a real and substantial connection to Ontario.

(3) No. Mr. Sgromo submits that because the products of some of the respondents were advertised, marketed, and distributed in Ontario, the respondents were in substance carrying on business here. The respondents acknowledge that under Van Breda, carrying on business in Ontario is a presumptive factor establishing a real and substantial connection to this province.

The Court noted, however, that in Van Breda, LeBel J. emphasized that even active advertising in Ontario would not be enough to establish that a defendant was carrying on business here.

Lavie v. Lavie, 2018 ONCA 10

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

K Lavie, acting in person

C A Torry, for the respondent

Keywords: Family law, Spousal Support, Child Support, Imputing Income, Underemployment, Federal Child Support Guidelines, Section 19(1)(a), Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.)

Facts:

The appellant, Kevin Lavie, appeals from the trial judge’s decision dealing with division of property, as well as spousal and child support following marriage breakdown. Following their separation, the parties agreed on joint custody with the children spending equal time with both parents. Tanya worked as a teacher from 1998 to 2004. She left teaching after her second child was born. The parties agreed at that point that Tanya would not return to her teaching career so she could be more available to the children. In 2006, Tanya began operating Balls of Fun (BOF), a child play center. Based on the evidence of the expert evaluator, the trial judge determined Tanya’s personal income from BOF to be $15,000 in 2009. Kevin worked as an editor for a television show, but was terminated in 2012. The trial judge determined that Kevin’s income for 2012 was $77,923.

In his judgment, the trial judge rejected Kevin’s position that he was entitled to an equalization payment of $64,915.97, and a post-separation adjustment payment of $52,669.16. Based on his assessment of the evidence, he concluded that Tanya was to make an equalization payment of $5,380.27, and that Kevin was to make a post-separation adjustment payment to Tanya of $1,440. The trial judge also ordered Kevin to pay retroactive child and spousal support of $714 and $691 per month respectively commencing November 1, 2009. With respect to Tanya, the trial judge declined to impute income equal to a teacher’s salary. Instead, based on the fact that the parties had agreed that Tanya should not return to teaching, he found that she was not intentionally underemployed. He therefore accepted the evaluator’s opinion that her estimated income at the time of separation was $15,000.

The judge ordered the set-off amount of child support and then added to this an amount of spousal support payable to Tanya to achieve equal net disposable incomes between the parties. This was reflected in the amount of support awarded. Given the uncertainty of Kevin’s employment prospects, the trial judge also provided that Kevin could seek to have the spousal support issue reconsidered in 2017 without the need to establish a material change in circumstances.

Issues:

(1) Did the trial judge give the appellant a fair hearing?

(2) Did the trial judge err in his treatment of the BOF shareholder loan?

(3) Did the trial judge err by imputing income to the appellant but not the respondent?

(4) Should the fresh evidence be considered?

Holding: Appeal allowed, in part.

Reasoning:

(1) No, there is no basis for concluding that Kevin was not afforded a fair hearing. The trial judge gave him considerable assistance as a self-represented party. At the outset of the hearing, the trial judge provided him with the Superior Court of Justice memorandum on trial procedures. He was not prevented from presenting any relevant evidence.

(2) No. The expert evidence at trial was that BOF’s value to Tanya was $55,000 in total, which included the value of the shareholder loan. The expert explained that, given the amount of bank debt and the payment obligations of BOF for rent, employees, and the like, $55,000 was all that could be salvaged by Tanya if she sought to dispose of BOF. The Court deferred to the trial judge’s acceptance of this expert evidence.

(3) Yes. The trial judge rejected Kevin’s submission that income should be imputed to Tanya. He found that because Tanya was not intentionally underemployed, there was no basis to impute income to her as Tanya and Kevin had made a joint decision that Tanya would primarily care for the children. Section 19(1)(a) of the Federal Child Support Guidelines permits the court to impute additional income where a spouse is intentionally underemployed. As per Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.), in order to find intentional underemployment and to impute income to a parent, there is no need to find a specific intent to evade child support obligations. The trial judge erred by concluding that Tanya was not intentionally underemployed. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. From the time she chose to start BOF and to earn $15,000 per year rather than the over $70,000 per year Tanya would have earned returning to teaching, she was intentionally underemployed.

Section 19(1)(a) also provides that the court must consider if such intentional under-employment is “required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse”. The trial judge found that the decision for Tanya to start BOF did not rise to the level of a “requirement” for the purpose of s. 19(1)(a). The trial judge ought to have concluded that s. 19(1)(a) was engaged in this case. Where s. 19(1)(a) is engaged, the court retains discretion to decide whether, and if so, how much, income to impute to the under-employed spouse. When imputing income based on intentional under- employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered include age, education, experience, skills and health of the parent. The judge’s finding that Tanya’s decision not to return to her teaching position and to work on building up BOF was made jointly by the parties. That alone, however, did not justify imputing $70,000 in additional income to Kevin and no additional income to Tanya.

At the time of the trial, the parties were sharing parenting responsibilities equally such that the children could only directly benefit from Tanya’s extra time at home while staying with her. For the other half of the time, they would benefit equally from Kevin’s ability to work fewer hours. Kevin may also have chosen to support building a business that he could ultimately benefit from, but after separation, he could no longer benefit from the business’ growth. Taking all of this into account, it was appropriate to either impute additional income to both parties or to neither of them.

The Court held that while Kevin was still employed, no additional income should be imputed to Tanya. Once Kevin became unintentionally unemployed, it was not appropriate to impute to him his former full salary while at the same time imputing no additional income to Tanya. After this period, the court imputed income of $70,000 to both parties such that they are deemed to be earning the same amount, so no spousal or child support was owed.

The court varied the original judgment to provide that as of January 1, 2013, there was no spousal or child support owing by either party. The court also modified the provision that Kevin can bring a review of spousal support after October 5, 2017, to provide that either party may bring a review of spousal or child support based on any relevant change in circumstances since trial. The parties need not meet the threshold of a material change in circumstances. A qualifying change would include that either party now has a stronger claim for child or spousal support based on bona fide but unsuccessful efforts to secure employment income beyond that earned at trial.

Kevin raised a number of additional grounds of appeal. These were based on the trial judge’s factual findings, and were entitled to deference.

(4) No. The fresh evidence would not have affected the outcome of the trial. To the extent that it involves changes in circumstances since the trial, the fresh evidence is best considered on a future motion to vary the support obligations.

Union Gas Limited v. Norwich (Township), 2018 ONCA 11

[LaForme, Pepall and van Rensburg JJ.A.]

Counsel:

C Smith and E Sherkey, for the appellant

R Aburto and J Polowin, for the respondent

P Tunley, for the intervener, Ontario Energy Board

Keywords: Municipal Law, Public Utilities, Contracts, Drainage Act, R.S.O. 1990, c. D.17, Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531

Facts:

This appeal concerns a dispute between a utility and a rural municipality over the sharing of the utility’s costs to relocate parts of a gas pipeline as a result of the rural municipality’s construction of certain drainage works. The disposition of the appeal requires the court to consider the terms of a franchise agreement dated September 28, 2004 between the parties (the “Franchise Agreement”), and provisions of the Drainage Act, R.S.O. 1990, c. D.17 (the “Act”).

Union Gas Limited (“Union”) asserts that The Corporation of the Township of Norwich (“Norwich”) is required to pay Union 35% of its costs to relocate a gas pipeline necessitated by certain drainage works, in accordance with the Franchise Agreement. Norwich argues that Union should assume the full cost of relocation, as its engineer directed, under s. 26 of the Act.

The application judge held that the cost to relocate gas works when a drain is constructed under the Act is an increase in the cost of “drainage works”, and therefore subject to s. 26 of the Act, which provides for the utility to assume the entirety of the increased cost of drainage works caused by the existence of the public utility’s works. He held that the cost-sharing provisions of the Franchise Agreement did not “trump and hold priority over” s. 26 of the Act. Union appealed the application judge’s decision.

Issues:

(1) Did the application judge err in interpreting s. 26 of the Act to apply to the cost of relocating gas works?

(2) Did the application judge err in concluding that the Act overrides the cost-sharing provisions of the Franchise Agreement?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in its interpretation of Seidel v. Telus Communications Inc., 2011 SCC 15 as standing for a general principle that “no mere contract inter partes can take away that which the law has conferred”. The court stated that there is no such general principle, and the application judge was not correct in his interpretation of what was said, or quoted from, in Seidel. Accordingly, the application judge, informed by this error, did not consider whether the Franchise Agreement cost-sharing provisions applied to the parties’ dispute.

The court explained that the correct approach to analyzing the interplay between the Franchise Agreement and the Act was as follows:

  1. to consider whether the Act wouldprohibit contracting out of s. 26, and whether it would be contrary to public policy to recognize an agreement that does so; and
  2. to interpret the Franchise Agreement itself, to determine whether there is anything in the contract that would take the parties out of the cost-sharing mechanism to which they have agreed, in the case of drainage works undertaken under the Act.

Regarding the first issue, the question is whether the Act expressly, or by necessary implication, would prohibit a utility and a municipality from arriving at their own agreement respecting the sharing of costs, where the construction of the drainage works requires the relocation of a pipeline. The court held that there is nothing in the legislative scheme that would preclude such a cost-sharing agreement in circumstances where the utility is required by the municipality to alter its pipeline to accommodate drainage works. Enforcement of the parties’ contractual cost-sharing agreement would not undermine the detailed procedures set out in the Act for the proposal, planning and approval of drainage works, and the sharing of the municipality’s own costs.

(2) Yes. In terms of the second issue of whether the Franchise Agreement applies to the current dispute, the court held that there is nothing in the Franchise Agreement that would exclude drainage works from “municipal works”, or that would remove from its cost-sharing provisions the drainage works undertaken by Norwich in this case. The Franchise Agreement describes the cost-sharing mechanism in clear language and it unambiguously applies when a municipality requests relocation of a gas system to accommodate any municipal works. Accordingly, the Franchise Agreement would override Norwich’s by-law approving the engineer’s report to the extent it purported to assess Union for the entire cost of relocating its pipeline.

Brown v. Canada (Public Safety), 2018 ONCA 14

[Simmons, Rouleau and Brown JJ.A.]

Counsel:

J M Vecina and J Will, for the appellant

B Assan, M Anderson and M Mathieu, for the respondents

Keywords: Constitutional Law, Unlawful Detention, Habeas Corpus, Immigration Law, Deportation, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Charter Remedies, Canadian Charter of Rights and Freedoms, ss. 7, 9, 12 and 24

Facts:

Prior to being deported to Jamaica, the appellant, Mr. Brown, was detained for the purpose of removal in a maximum security institution for five years. He brought a habeas corpus application and sought damages under s. 24(1) of the Canadian Charter of Rights and Freedoms as a remedy for the breach of his ss. 7, 9 and 12 Charter rights. Because he was deported before the application was decided, the habeas corpus portion of the application was dismissed as moot. He nonetheless proceeded with the Charter damages aspect of the application, maintaining that prior to being deported, the detention he suffered was cruel, unusual, arbitrary and indefinite. His application for Charter damages was dismissed. He appeals that dismissal, arguing that the application judge erred.

Issues:

(1) Did the application judge err in finding that there was no breach of ss. 7 and 9 of the Charter?

(2) Did the application judge err in finding that there was no breach of s. 12 of the Charter?

Holding: Appeal dismissed

Reasoning:

(1) No. After considering all of the evidence, the application judge concluded that the detention had not become unlawful. The Immigration Division had made the fact-driven determination that Mr. Brown constituted a flight risk as well as a danger to the public. These determinations are entitled to deference. Pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, there is a statutory process for continuous and regular reviews by the Immigration Division every 30 days in a quasi-judicial process recognized by the courts as being procedurally fair. There are also provisions for oversight by the Federal Court. Additionally, multiple factors warranted Mr. Brown’s detention. As a result, the deprivation of liberty was in compliance with the principles of fundamental justice and justified in the circumstances. Section 9 of the Charter had also been respected because the legislative criterion for detention had been met. Mr. Brown’s detention was for the valid purpose of removal. He could not be removed earlier because Jamaica had to issue a travel document.

(2) No. The application judge’s determination that the Immigration Division process for review of Mr. Brown’s detention was fair and lawful ought not to be disturbed. Nor should his findings that there had been no lack of diligence on the part of the CBSA in effecting Mr. Brown’s removal and that the delays, although lengthy, were largely beyond their control. The application judge also considered and rejected Mr. Brown’s submission that he did not receive adequate treatment of his mental health issues while in detention. These findings were well supported by the record.

Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12

[Doherty, LaForme, and Miller JJ.A.]

Counsel:

R Morris and John Mather for the appellants

A D’Silva and M Walli for the respondent

Keywords: Contracts, Arbitration Clauses, Civil Procedure, Stays in Favour of Arbitration, International Commercial Arbitration Act, R.S.O. 1990 c. I.9, UNCITRAL Model Law

Facts:

The respondents entered into an agreement with the appellants which provided that the respondents would provide “trade credit” insurance on the appellant’s factored accounts. This agreement was made up of an underlying base policy and a “Schedule” which sets out terms specific to the policy and which included certain “endorsements”. The base policy contained a clause providing that any dispute arising in connection with the contract shall be referred to and finally resolved by arbitration in London, UK.

One of the endorsements contained in the “Schedule” contained an “Action Against Insurer” provision which set out that any action to enforce the obligations of the Underwriters may validly be served upon the Attorney In Fact in Canada for Lloyd’s Underwriters in Montreal. All of the endorsements state that they prevail over any conflicting wording in the underlying policy.

The appellants made several claims for loss under the policy and ultimately commenced an action against the Insurers in Ontario for losses under the insurance contract. The respondents brought a motion to stay the appellant’s action in accordance with the clause contained in the base policy providing for arbitration. The motion judge refused to stay the action. In his view, both the arbitration clause and the “Action Against Insurer” clause provided for alternative, optional methods of dispute resolution.

Issues:

(1) Did the motion judge conclude that the policy provided for a dual-track dispute resolution process contrary to the objective terms of the agreement by failing to apply the correct principles of contractual interpretation?

(2) Did the motion judge err in not applying the legal test for a stay under the International Commercial Arbitration Act and the UNCITRAL Model Law?

Holding: Appeal allowed.

Reasoning:

(1) Yes.  The approach in Ontario is that in cases where the “existence or validity of the arbitration agreement” is not clear  it is preferable for the arbitrator to decide the issue: Dalimpex Ltd. v. Janicki, (2003), 64 O.R. (3d) 737 (Ont. C.A.), at paras. 21-22.

Although the motion judge expressed the correct legal principles, it was unnecessary and an error for him to “widen” the meaning to the Action Against Insurer endorsement clause and turn it into an alternative dispute resolution provision in order to give it effect. The plain language of the clause can be given meaningful effect without conflicting with the mandatory language of the arbitration clause, thereby giving effect to all of the terms of the insurance policy.

The word “action” and the word “defendant”, does not necessarily refer to a civil action. They can also be used in reference to arbitration proceedings. Also, Action Against Insurer clause does not specify where or how claims to enforce obligations under the agreements are to be determined. This derogates from the argument that the clause was an alternate dispute resolution provision.

The Action Against Insurer endorsement does not clearly provide for an alternative right of the insured to commence a domestic action against the Insurers. It is arguably a service of suit clause. As a result, it cannot be said that the arbitration provision was clearly inoperative on the facts of this case.

(2) Yes. To the extent that the motion judge held that arbitration must be the sole method of dispute resolution agreed to between the parties in order to attract the operation of the UNCITRAL Model Law, doing so was wrong in law. The Model Law is not restricted in its application to international commercial agreements that provide for arbitration as the sole method of dispute resolution. An agreement by the parties to submit certain, but not all disputes in a contract to arbitration does attract its application.

The Model Law may even apply to an arbitration agreement if the right of arbitration is merely optional. If the parties agree that arbitration is an optional method of dispute resolution, and one of the parties chooses to commence arbitration, there is no reason why art. 8 of the Model Law should not apply to stay any duplicative court actions in Ontario. Since, after electing to commence an arbitration, the parties agreed to respect that choice, at that point it may be said that the parties have agreed to submit the dispute to arbitration.

Toronto (Police Service) v. L.D., 2018 ONCA 17

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

G Glickman, for the appellant, Chief of Police Toronto Police Service

No one appearing for the respondent L.D

J Mulcahy, for the respondent, Steven Mignardi

J Stewart and M Birdsell, for the intervener Justice for Children and Youth

M Saksznajder and C Goncalves, for the intervener, Office of the Independent Police Review Director

M Bojanowska, for the intervener, Criminal Lawyers’ Association

D Krick, for the Attorney General (Ontario) (written submissions only, by invitation of the Court)

Keywords: Administrative Law, Professions, Discipline Proceedings, Police, Certiorari, Appeals, Jurisdiction, Constitutional Law, Constitution Act, 1867, Division of Powers, Criminal Law, Police Services Act, R.S.O. 1990, c. P. 15, Youth Criminal Justice Act, S.C. 2002, c.1,  Courts of Justice Act, R.S.O. 1990, c. C.43,  R. v. Parker, 2011 ONCA 819, Criminal Code, Part XXVI.

Facts:

Constable Steven Mignardi of the Toronto Police Service (“TPS”) was charged under the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”) with discreditable conduct in relation to the alleged assault of L.D., a young person who had been arrested by the TPS. The matter has been referred to a disciplinary hearing. In the context of this administrative proceeding, the TPS brought an application for an order under s. 119(1)(s) of the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”) allowing access to the police records from the evening in question. Constable Mignardi brought a cross-application under ss. 119(1)(s) and 123 of the YCJA for access to records in the TPS’ possession relating to additional incidents where L.D. was investigated, detained, arrested, convicted, and/or prosecuted. Cohen J., of the Ontario Court of Justice (sitting as a youth justice court judge under the YCJA) released her decision dismissing both the TPS and Mignardi applications. Both the TPS and Constable Mignardi appealed the youth court judge’s decision to the Superior Court of Justice. The TPS cited s. 40(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) as the basis for the appeal. The appeal was heard by Morgan J. of the Superior Court of Justice, who allowed the appeal and ordered that the records sought by Mignardi be produced. Although the appeal judge did not expressly address the records sought by the TPS in its appeal, those records were included in the records sought by Constable Mignardi. The TPS appealed the Superior Court judge’s decision to the Court of Appeal under s. 6(1)(b) of the CJA. During the hearing, the court raised the issue of the jurisdiction of the Superior Court judge to hear an appeal from the decision of the youth court judge.

Issues:

(1) Does s. 40(1) of the CJA support an appeal to the Superior Court of Justice from a decision of a youth court judge made under the YCJA?

(2) Is there another route to appeal or review a decision of a youth court judge to the Superior Court of Justice?

(3) Should the Court of Appeal decide the appeal?

Holding: The Court declined to hear the appeal and set aside the decision of the Superior Court of Justice.

Reasoning:

(1) No. Section 40(1) of the CJA provides “If no provision is made concerning an appeal from an order of the Ontario Court of Justice, an appeal lies to the Superior Court of Justice.” TPS conceded that its appeal of the youth justice court’s decision to the Superior Court grounded in s. 40(1) of the CJA was misconceived in light the decision in R. v. Parker, 2011 ONCA 819. In Parker, the appellant (Parker) applied to the Ontario Court of Justice for the return of marijuana plants that had been seized under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) . The application was dismissed and the appellant appealed to the Superior Court of Justice. The Superior Court judge held that he could hear the appeal under s. 40(1) of the CJA. He dismissed the appeal and Parker appealed again. The Court of Appeal found “While the interplay between federal and provincial jurisdictions in drug cases can be problematic, we are satisfied that the correct characterization of a s. 24 application is that it flows out of Parliament’s criminal law power. Accordingly, provincial rights of appeal have no application.”

The question was, therefore, whether the YCJA, like the CDSA, is a federal law anchored in s. 91(27) of the Constitution Act, 1867. This question has been definitively answered in the affirmative, pursuant to earlier jurisprudence. It follows that provincial legislation such as s. 40(1) of the CJA cannot create an appeal right from an order made under the YCJA.

(2) Yes. The appellant and respondent jointly submitted that there is a route to review a decision of a youth court judge relating to the records provisions of the YCJA. The route is an application for certiorari brought under Part XXVI of the Criminal Code before a judge of the Superior Court of Justice. This submission accords with the decision in Parker and thus it was accepted. Section 784 of the Criminal Code provides a right to appeal a decision granting or refusing certiorari to the Court of Appeal.

(3) No. In Parker, the Court of Appeal, having determined that the proper route to review the Ontario Court of Justice judge’s decision was a certiorari application to a Superior Court judge, went on to hear and determine the appeal from the Superior Court judge’s decision on the merits. That Court found “There is little, if any, disadvantage to a party seeking to review a [CDSA] s. 24 order having to apply for certiorari rather than proceeding by way of appeal. In this province, the reviewing court is the same, the Superior Court of Justice. The grounds of review are also the same and, one advantage to a party is that an appeal lies to this court as of right.” The Court of Appeal acknowledged that, pursuant to Parker, it had the jurisdiction to treat the appeal decision as a decision made on an application for certiorari, and to determine the appeal on the merits. However, Justice MacPherson declined to do so. The Court found that the issues and surrounding circumstances were sufficiently different from those in Parker to justify a more cautious result. In Parker, the Superior Court upheld the decision of the Court of first instance. Here, in contrast the Superior Court quashed the decision. Had the appeal been brought properly as an application for certiorari, Justice Morgan could only have quashed Justice Cohen’s decision and ordered access to the records if he found that she had exceeded her jurisdiction in denying access, or if her reasons had disclosed an error of law on the face of the record. His reasons, however, did not consider either of those bases and the Court of Appeal cannot, therefore, properly review his decision to determine if he erred in law. The court therefore set aside the Superior Court’s decision, with the parties being free to go back to the Superior Court on an application for certiorari.

Short Civil Decisions

Ramadhin v. New Venture Group Inc., 2018 ONCA 6

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

A D Powell and A Ahmad, for the appellant Bakshish Mand

D Zacks and T Walker, for the respondent

Keywords: Appeal Book Endorsement, Real Property, Mortgages, Enforcement, Power of Sale, Torts, Negligence, Realtors, Improvident Sale, Limitation Periods

Toronto-Dominion Bank v. Froom,  2018 ONCA 15

[Simmons, Lauwers and Pardu JJ.A.]

Counsel:

A Froom, in person by videoconference

T J Burke, for the respondent

Kewywords: Costs Endorsement

Fenwick v. Concierge Auctions, ULC, 2018 ONCA 18

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

R G Slaght and P Healy, for the appellant

J E Schatz and S Azzopardi, for the respondent

Keywords: Costs Endorsement

Marshall v. Marshall, 2018 ONCA 25

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

F Leitch, Q.C., for the appellant

M Kropp, for the respondent

Keywords: Family Law, Property, Presumption of Resulting Trust

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2018 ONCA 21

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

P J Pape, for the appellant

M A Davis and R Macdonald, for the respondent

Keywords: Costs Endorsement

Criminal Decisions

R v. Brown (Publication Ban), 2018 ONCA 9  

[Trotter J.A. (In Chambers)]

Counsel:

P J.I. Alexander, for the applicant

A Hotke, for the respondent

Keywords: Criminal Law, Application to Appoint Counsel, Criminal Code, s. 684, Lack of Sufficient Means, Desirability in the Interests of Justice, R v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.)

R v. Ipeelee, 2018 ONCA 13  

[Doherty, LaForme and van Rensburg JJ.A.]

Counsel:

F J O’Connor, for the appellant

A Baiasu, for the respondent

Keywords: Criminal Law, Sentencing, R v. Grant, 2016 ONCA 639

R v. Telesford (Publicaton Ban), 2018 ONCA 19

[Laskin, Trotter and Fairburn JJ.A.]

Counsel:

M J Mattis, for the appellant

M Townsend, for the respondent

Keywords: Criminal Law, Indirect or Circumstantial Evidence, Crown Witnesses

R v. Youssef, 2018 ONCA 16

[Laskin, Feldman and Blair JJ.A.]

Counsel:

R Litkowski, for the appellant

K Rawluk, for the respondent

Keywords: Criminal Law, Robbery, Identity, R v. Villaroman, 2016 SCC 33

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

ONTARIO COURT OF APPEAL SUMMARIES (January 1 – January 5, 2018)

Good afternoon and Happy New Year!

It was another quiet holiday week at the Court of Appeal.

In Stokker v. Storoschuk, 2018 ONCA 2, the Court reaffirmed the proper legal test in Nissar v. Toronto Transit Commission, 2013 ONCA 361 for restoring an action that has been administratively dismissed for delay.

In Vancise v. Canada (Attorney General), 2018 ONCA 3, the appellant was compensated by the federal government under the Health of Animals Act for the loss of his cattle that were infected with anaplasmosis after he had imported infected cattle from the US.  The appellant then commenced an action against the government in negligence for not guarding against the importation of anaplasmosis. The motion judge dismissed the action on the basis that it was barred by s. 9 of the Crown Liability and Proceedings Act, which bars actions against the federal government when it has already provided compensation under a government program. The Court of Appeal upheld the motion judge’s decision.

Wishing everyone a warm and safe weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

 

Table of Contents

Stokker v. Storoschuk, 2018 ONCA 2

Keywords: Civil Procedure, Administrative Dismissal for Delay, Rules of Civil Procedure, Rule 48.11(b), 48.14, Nissar v. Toronto Transit Commission, 2013 ONCA 36, Gill v. Khindria, 2016 ONSC 5057

Vancise v. Canada (Attorney General), 2018 ONCA 3

Keywords:  Torts, Negligence, Crown Liability, Bar Against Double Recovery, Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, Section 9, Health of Animals Act, S.C. 1990, c. 21, Sections 51 and 53

For Criminal and Ontario Review Board Decisions Click Here.

 

Civil Decisions

Stokker v. Storoschuk, 2018 ONCA 2

[Laskin, Huscroft and Paciocco JJ.A.]

Counsel:

James Lawson, for the appellant

Christopher Lee, for the respondents

Keywords: Civil Procedure, Administrative Dismissal for Delay, Rules of Civil Procedure, Rule 48.11(b), 48.14, Nissar v. Toronto Transit Commission, 2013 ONCA 36, Gill v. Khindria, 2016 ONSC 5057

Facts:

Beginning in 2005, Mr. Stokker and Ms. Storoschuk were in a romantic relationship. Throughout their relationship, the parties were involved in a number of business transactions. Disagreements emerged over land and money. In 2007, Mr. Stokker, the appellant, sued the respondents, Ms. Storoschuk and her corporation, 1641516 Ontario Inc. Since then, the appellant’s lawsuit has languished. It was dismissed administratively twice for delay and then reinstated on consent. Three court-ordered timetables imposed on the appellant were not met.

In December 2015 the action had, once again, been removed from the list. The respondents, unaware of this, brought a motion under rule 48.14 of the Rules of Civil Procedure to have the appellant’s action dismissed for delay. The motion was adjourned for a short time. On the return date, March 17, 2016, the appellant was not called upon to show cause as to why his action should not be dismissed. Instead, the parties agreed to a fourth timetable, as well as a consent order under r. 48.14(4). The timetable set out a series of completion dates that the appellant would have to meet to ready the matter for trial. Clause 3 of the order provided that, “pursuant to Rule 48.14(1), the Registrar shall dismiss this action for delay with costs unless the action has been restored to the trial list on or before August 18, 2016.”

The appellant was late in performing some of the steps in the fourth timetable, but managed to complete the required tasks and to bring a rule 48.11(b) motion to reinstate the action before the August 18, 2016 deadline. The respondents opposed the motion, but the master reinstated the action to the trial list. The respondents appealed to a single judge of the Superior Court of Justice and the appeal was allowed. The appellant now comes before the Court of Appeal, arguing that the appeal judge erred in law in allowing the appeal.

Issues:

(1) Did the appeal judge err in allowing the appeal?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The parties agree that each level of court applied the proper legal test for restoring an action. In Nissar v. Toronto Transit Commission, 2013 ONCA 361, at para. 31, the court said: “The applicable test is conjunctive: a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation, and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.”

The appeal judge held that the master erred in applying the first leg of the test by not considering the overall delay from the inception of the litigation. However, in the court’s view, the master was correct to give focus to the period following the March 17, 2016 consent order and timetable. Where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation.

As was held in Gill v. Khindria, 2016 ONSC 5057, on a rule 48.11 motion, the court should only consider delay subsequent to a consent order withdrawing a motion to dismiss. The master did not err, therefore, in focusing on the period after the r. 48.14(4) consent order was made. Indeed, in this case there was no delay subsequent to the order, as the appellant had met the imposed deadline of August 18, 2016. The master was therefore correct to reinstate the action to the trial list. The order reinstating the action should not have been set aside.

Vancise v. Canada (Attorney General), 2018 ONCA 3

[Pepall, Benotto and Paciocco JJ.A.]

Counsel:

Teplitsky, for the appellant
W. Wright, for the respondents

Keywords:  Torts, Negligence, Crown Liability, Bar Against Double Recovery, Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, Section 9, Health of Animals Act, S.C. 1990, c. 21, Sections 51 and 53

Facts:

In 1996, the appellant imported four cattle from the United States which were later discovered to be infected with anaplasmosis. At the time, the Canadian government’s policy was to destroy any animals infected with anaplasmosis. Upon discovery of the condition of the four imported animals, the original herd was quarantined at the appellant’s farm by order of the respondents as an “infected place”. During quarantine, seven other cattle became infected and were destroyed. The rest were treated.

Under ss. 51 and 53 of the Health of Animals Act, the Minister exercised discretion to compensate the appellant for the value of the destroyed animals and the costs of eradication treatment for his herd.

In 2012, the appellant commenced the action that is the subject of this appeal against the respondents pleading negligence in not guarding against the importation of animals infected with anaplasmosis and in imposing inadequate quarantine on his farm. The respondent was granted a motion for summary judgment dismissing the appellant’s action on the basis that it was barred by s. 9 of the Crown Liability and Proceedings Act. The appellant appeals the decision of the motion judge.

Issues:

(1) Does Section 9 of the Crown Liability and Proceedings Act apply to bar the appellant’s action?

Holding:

Appeal dismissed.

Reasoning:

(1) Yes. Section 9 is not only a bar on double recovery. Its effect is to prevent actions for recovery where a government scheme has already provided a form of compensation in relation to the death, injury, damage or loss relied on in the action. This is so even where different heads of compensation are claimed. It also bars compensation that arises from “the same factual basis as the action”. The appellant has already been compensated by the respondents under ss. 51 and 53 of the Health of Animals Act.

Criminal Decisions

R v. Short, 2018 ONCA 1

[Hoy A.C.J.O., Doherty and Feldman JJ.A.]

Counsel:

Michael Dineen, Jennifer Micallef and Kristen Allen, for the appellant

Roger A. Pinnock, for the respondent

Keywords: Criminal Law, First Degree Murder, Third Party Suspects, Demeanour Evidence, Opinion Evidence, Hearsay, Appeal Allowed

R v. D.L.T., 2018 ONCA 4

[Sharpe, Watt and Roberts JJ.A.]

Counsel:

Yoni Rahamim, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Unlawful Confinement, Appeal Dismissed

R v. Nur, 2018 ONCA 8

[Sharpe, Watt and Roberts JJ.A.]

Counsel:

Yoni Rahamim, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Manslaughter, Evidence, Post-Offence Conduct, R. v. Hall, 2010 ONCA 724, Appeal Dismissed

 

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

 

ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 25 – DECEMBER 29, 2017)

Good afternoon,

As expected, it was a quiet week at the Court of Appeal, with only two substantive civil decisions released.

In Mazgaj v. Profitable Plots (Canada) Ltd, the Court upheld the motion judge’s decision refusing to set aside a default judgment, finding that the appellant had failed to establish that personal and financial difficulties prevented him from defending the action. In the other decision, 790668 Ontario Inc. v. D’Andrea Management Inc., the Court upheld the trial judge’s decision in a case involving alleged oppression and the clean hands doctrine.

Wishing everyone a happy, healthy and prosperous New Year!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents 

Mazgaj v. Profitable Plots (Canada) Ltd., 2017 ONCA 1020

Keywords: Civil Procedure, Default Judgments, Setting Aside, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

790668 Ontario Inc. v. D’Andrea Management Inc., 2017 ONCA 1019

Keywords: Corporations, Oppression, Equitable Remedies, Clean Hands Doctrine, Conspiracy, Costs, Rules of Civil Procedure, Rule 49

For Short Civil Decisions Click Here.

For Criminal and Ontario Review Board Decisions Click Here.

Civil Decisions
Mazgaj v. Profitable Plots (Canada) Ltd., 2017 ONCA 1020

[Pepall, van Rensburg and Trotter JJ.A.]

Counsel:

E Babayev, for the appellant

H Albrecht, for the respondent

Keywords: Civil Procedure, Default Judgments, Setting Aside, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Facts:

The appellant was personally served with the Statement of Claim on March 5, 2014. He took no steps to defend the action and was noted in default on August 1, 2014. After an undefended trial, the respondent was successful in his claim for fraudulent misrepresentation jointly against the appellant and his co-defendant, Douglas William Chaddock. The appellant was first made aware of this judgment on September 15, 2016, when he received the Notice of Examination compelling his attendance for an examination in aid of execution. A motion to set aside the default judgment was booked for November 10, 2016, but heard on January 12, 2017, after the respondent requested an adjournment. After applying the principles in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the motion judge refused to set aside the default judgment. The appellant, Daniel Strumos, appeals from the order dismissing his motion to set aside a default judgment that was granted to the respondent, Tadeusz Mazgaj.

Issues:

(1) Did the motion judge err in finding that the appellant consciously decided not to participate in the action?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellant took the position that he was in difficult personal and financial circumstances that affected his ability to defend the claim at the time it was issued. However, as the motion judge observed, the appellant was not forthcoming in providing information to support his position. The appellant was unresponsive on a number of important issues on his cross-examination. The motion judge found that the appellant failed to establish that stress prevented him from defending the action. She noted that the appellant appeared on a Small Claims court action in 2015.

The motion judge also rejected the appellant’s claim that he relied on Chaddock to defend the action. Moreover, as Justice LeMay observed, the appellant and Chaddock were subject to proceedings before the Ontario Securities Commission in relation to the same fraudulent scheme underlying this action. The appellant defended those proceedings.

790668 Ontario Inc. v. D’Andrea Management Inc., 2017 ONCA 1019

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

William V. Sasso and Nicholas J. Cartel, for the appellants

Jonathan F. Lancaster, for the respondents 1476335 Ontario Inc. and Aldo Rotondi

Harry van Bavel, for the respondent Libro Financial Group

Richard B. Swan and Hartlee Zucker, for the respondents D’Andrea Management Inc. and Rick D’Andrea

Keywords: Corporations, Oppression, Equitable Remedies, Clean Hands Doctrine, Conspiracy, Costs, Rules of Civil Procedure, Rule 49

Facts:

The appellants, 790668 Ontario Inc., are minority shareholders in a family-owned company, D’Andrea Management Inc. (“DMI”). DMI was used as an investment vehicle by the D’Andrea/Frezza family to acquire a commercial property. The respondent, Daney D’Andrea was the director of DMI and oversaw the purchase, development, and management of the property. The appellants alleged that through a series of transactions, Daney diverted interests in the property to his benefit and that these transactions were oppressive to their interests. The appellants also alleged a conspiracy between several of the respondents to allow DMI to default on a mortgage so that a company that Daney controlled could take assignment of the power of sale under the mortgage and sell the property.

The appellants appeal the dismissal of their claims and seek leave to appeal costs. The respondents, 1476335 Ontario Inc. and Aldo Rotondi, cross-appeal a portion of the cost award.

Issues:

  1. Did the trial judge misapply the clean hands doctrine as it applies to the oppression remedy?
  2. Did the trial judge err in finding that the appellants had suffered no damages with respect to the conspiracy claim arising out of the sale of the property?
  3. Did the trial judge err on the amount of costs awarded?

Holding: Appeal dismissed, cross-appeal allowed in part.

Reasoning:

The Court held that the trial judge made findings of fact that were supported by the evidence and that the appellants showed no misapprehension of fact or error of law.

1. No. With respect to the oppression remedy, the trial judge noted that because the oppression remedy is an equitable remedy, it was necessary to consider the conduct of both the defendants and the appellants in the circumstances. She concluded that Peter and Onorio refused to agree to discharge the second mortgage in an attempt to gain leverage over DMI and Daney, in order to renegotiate the original 1994 shareholders’ agreement and reduce or eliminate the debt that Peter owed to DMI. The trial judge was entitled to consider and make findings based on the appellants’ conduct since the court will not reward claims in equity by those who come with unclean hands.

2. No. With respect to conspiracy, the trial judge concluded that no unlawful conspiracy was made out on the evidence. The alleged conspiracy was an agreement that Libro assist Daney in making DMI default on the mortgage, enabling Libro to proceed by way of power of sale against the property and for Daney to be assigned that power of sale. The trial judge concluded that there had been no proof of damages and the court saw no error in this regard.

3. Regarding the cross appeal, the cross-appellants submitted that the trial judge did not order solicitor and client costs from the date of the offer under the misunderstanding that the offer was not open at the date of trial. The court found that it was open at the date of trial. Accordingly, as the offer made complied with Rule 49, the court allowed the cross-appeal by making an adjustment to the costs payable to the cross-appellants.

Short Civil Decisions

1162251 Ontario Limited v. 833960 Ontario Limited (M-Plan Consulting), 2017 ONCA 1025

[Strathy, C.J.O., Doherty and Roberts JJ.A.]

Counsel:
Ronald G. Slaght and Patrick Healy, for the appellant

Sean Zeitz, for the respondent

Keywords: Endorsement, Costs, Appeal Dismissed

York Condominium Corporation No. 366 v. Li, 2017 ONCA 1021

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:
Ronald Lachmansingh and Tyler Murray, for the appellant

Antoni Casalinuovo, for the respondent

Keywords: Endorsement, Appeal Dismissed

Criminal and Ontario Review Board Decisions

R. v. Evariste, 2017 ONCA 1023

[Sharpe, Roberts and Fairburn JJ.A.]

Counsel:
Breana Vandebeek, for the appellant

Michael Perlin and Jennifer Epstein, for the respondent

Keywords: Criminal Law, Dangerous Driving, Obstruction of Justice, Evidence, Jury Charges, Appeal Dismissed

R. v. Frickey, 2017 ONCA 1024

[Sharpe, Watt and Roberts JJ.A.]

Counsel:
Erec Rolfe, for the appellant

Jennifer McKee, for the respondent

Keywords: Criminal Law, Dangerous Driving, Sentencing, Driving Prohibition, Appeal Dismissed

Esgin (Re), 2017 ONCA 1022

[Sharpe, Watt and Roberts JJ.A.]

Counsel:
Anita Szigeti, for the appellant, Burhan Esgin

Andrew Cappell, for the respondent, the Attorney General of Ontario

Gavin MacKenzie, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Conditional Discharges, Detention Orders, Appeal Dismissed

Muthulingam (Re), 2017 ONCA 1026

[Sharpe, Watt and Roberts JJ.A.]

Counsel:
Jonathan Fernandes, for the appellant, Ramanan Muthulingam

Susan Magotiaux, for the respondent, the Attorney General of Ontario

Logan Crowell, for the respondent, Ontario Shores

Keywords: Ontario Review Board, Threat to Public Safety, Evidence, Evidence Act, R.S.O. 1990, c. E.23, ss. 14, R. v. Albright¸ [1987] 2 S.C.R. 383, Appeal Dismissed

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 18 – DECEMBER 22, 2017)

Good evening,

This was a busy week for the Court of Appeal. Topics covered included family law, wrongful dismissal, wills and estates, insurance coverage, tort liability of employees, workplace safety, police liability, limitation periods, conditional discharges from bankruptcy and costs against non-parties.

The Court’s 101-page decision in Weyerhaeuser Company Limited v. Ontario (Attorney General) involved a Director’s Order issued by the Ontario Ministry of the Environment requiring the respondents to perform remedial work on an abandoned mercury waste disposal site near Dryden, Ontario. The respondents took the position that they enjoyed the benefit of an indemnity provided by the Government of Ontario to earlier owners of the facility. They contended that Ontario was obligated to indemnify them for any costs incurred to comply with the Director’s Order. The motion judge granted summary judgment to the respondents, holding both were entitled to be indemnified by Ontario for the costs they had incurred and might incur as a result of the Director’s Order. The Court allowed Ontario’s appeal in part, setting aside the dismissal of its summary judgment motion, granting summary judgment dismissing the claim by one of the respondents (Resolute), and directing a final adjudication by the court below on the issue of what, if any, rights the other respondent, Weyerhaeuser, possessed as assignee of the indemnity at the time the Director’s Order was made in 2011. Justice Laskin would have gone further. He would have allowed Ontario’s appeal in full and would have dismissed Weyerhaeuser’s claim, finding that it could not enforce the indemnity.

In the 93-page corporate restructuring decision in Ernst & Young Inc. v. Essar Global Fund Limited, the Court upheld the trial judge’s finding that the conduct of the appellants was oppressive and the remedy he had fashioned to cure the oppression. The Court set out the factors under which a monitor appointed under the CCAA can be a complainant for the purposes of bringing an oppression application under the CBCA.

Merry Christmas to everyone celebrating.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents 

Fogel v. Chiriatti, 2017 ONCA 1000

Keywords: Family Law, Custody, Division of Property, Matrimonial Home, Child Support, Federal Child Support Guidelines, ss.7,  Costs

Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004

Keywords: Employment Law, Wrongful Dismissal, Severance Pay, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Limitation Periods, Employment Standards Act, 2000, S.O. 2000, c. 41, Ontario Human Rights Code, RSO 1990, c. H19, Occupational Health and Safety Act, RSO 1990, c.O.1, r. 21.01(1)(b), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Jones v. Friedman, 2006 CarswellOnt 120 (C.A.)

Perri v. Perri, 2017 ONCA 1001

Keywords: Family Law, Spousal Support, Lump-Sum Support, Compensatory Claims, Economic Hardship, Spousal Support Advisory Guidelines, Divorce Act, , R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(6)(a) and (c), Standard of Review

Quest Management Services Inc. v. Quest Management Systems, 2017 ONCA 999

Keywords: Civil Procedure, Injunctions, Undertaking as to Damages, Costs,  Liability for Costs, Non-Parties, Corporations, Officers, Directors and Shareholders

Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006

Keywords: Employment Law, Workplace Safety, Provincial Offences, Strict Liability Offences, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Paragraph 25(2)(h), Industrial Establishments Regulation, Statutory Interpretation, R. v. Brampton Brick (2004), 189 OAC 44 (C.A.)

Sirois v. Weston, 2017 ONCA 1002

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Cole v. RBC Dominion Securities Inc., 2017 ONCA 1009

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 173(1)(o), Discharge from Bankruptcy, Conditions, Surplus Income

Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007

Keywords: Environmental Law, Environmental Contamination, Liability, Director’s Clean-Up Orders, Environmental Protection Act, R.S.O. 1990, c. E.19, Contracts, Indemnities, Contractual Interpretation, Factual Matrix, National Trust Co. v. Mead, [1990] 2 S.C.R. 410,  Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561,  Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19

Ernst & Young Inc. v. Essar Global Fund Limited, 2017 ONCA 1014

Keywords: Corporations, Oppression, “Complainant”, Derivative Actions, Canada Business Corporations Act, Sections 238 and 241, Bankruptcy and Insolvency, Companies’ Creditors Arrangement Act

Stekar v. Wilcox, 2017 ONCA 1010

Keywords: Wills & Estates, Testamentary Capacity, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Fresh Evidence

Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2017 ONCA 1011

Keywords: Insurance law, Coverage, Bankers Comprehensive Crime, Professional Indemnity and Directors’ and Officers’ Liability,,  Contractual Interpretation Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254, Civil Procedure, Summary Judgment, Procedural Fairness

Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017

Keywords: Torts, Negligence, Personal Liability of Employees Acting in the Course of Their Employment, London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299

For Short Civil Decisions Click Here.

For Long Civil Decisions Click Here.  

Civil Decisions

Fogel v. Chiriatti, 2017 ONCA 1000

[MacPherson, Pepall and Paciocco JJ.A.]

Counsel:

Anthony Di Battista, for the appellant

Grant Gold, for the respondent

Keywords: Family Law, Custody, Division of Property, Matrimonial Home, Child Support, Federal Child Support Guidelines, ss.7,  Costs

Facts:

The parties cohabited for 14 years and separated in May 2014. They have one child. At the time of trial, the respondent was 36 years of age, the appellant was 53, and their son was nine. The appellant appeals from the judgment of Backhouse J. granting the respondent sole custody of the parties’ son. He also appeals from the trial judge’s matrimonial home valuation, division of the notional proceeds of sale, and treatment of the parties’ chattels. Lastly, he seeks leave to appeal the $125,000 costs award made in favour of the respondent.

Issues:

(1) Did the trial judge err in granting the respondent sole custody of the parties’ child?

(2) Did the trial judge err in her determination as to the valuation of the matrimonial home?

(3) Did the trial judge improperly permit the respondent an adjustment resulting from the respondent’s $100,000 payment towards the matrimonial property?

(4) Did the trial judge err in ordering that an amount reflecting ten years of child support and s. 7 expenses under the Federal Child Support Guidelines be secured to the respondent as a fund from the appellant’s share of the notional house proceeds?

(5) Did the trial judge make an error when calculating child support arrears?

(6) Did the trial judge err in neglecting to address the division of chattels despite being asked to do so?

(7) Did the trial judge err in her discretionary costs award?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. The trial judge found the appellant to be lacking in any credibility and, in contrast, accepted the evidence of the respondent. This determination was open to the trial judge to make. Fundamentally, the appellant failed to put his son’s best interests ahead of his own. The trial judge did not make a determination on the necessity of either a psychoeducational assessment or a tooth extraction. Rather, she used the appellant’s refusal to agree as evidence that he put his conflict with the appellant ahead of the needs of his son. She relied not only on the evidence of the respondent, but on that of two independent witnesses as well. She found that the respondent is the better parent and better suited to make decisions for the child.

The finding that the appellant is an important part of his son’s life and his consent to exclusive possession of the matrimonial home did not preclude the granting of custody to the appellant. The trial judge properly applied the best interests of the child test and concluded that those interests were best met by a custodial order in favour of the respondent. This was not an appropriate case for joint custody. The respondent provided a stable environment and had been the primary parent both before and after separation. Significantly, the parties acknowledged that they could not communicate on substantive issues relating to their son. The trial judge’s reasons were well supported by the facts, and her decision was discretionary in nature and entitled to deference.

(2) No. The trial judge considered the evidence of the two real property valuation experts put forward by the parties and preferred the opinion of the respondent’s expert over that of the appellant. The trial judge did not substitute her opinion for that of the experts. Rather, she weighed the evidence about the value of the home with the expert evidence regarding a comparable property and the impact of a swimming pool. She accepted the opinion of value proffered by the respondent’s expert, which she was entitled to do.

(3) No. The appellant argued that the consent order of Wilson J. finalized the apportionment of the respective shares of the home and the $100,000 was credited to the respondent at paragraph 3(a) of the consent order. In oral argument, he conceded that the adjustment could have been made by Wilson J. but not by the trial judge; by that time, it was too late.  Paragraph 3(a) of Justice Wilson’s order provided that the respondent was to receive $100,000, being the prepayment of the mortgage paid by the respondent out of funds she received from an inheritance, from the average of the two appraised values of the property as at May 30, 2014. The mortgage, line of credit, and notional real estate commission of four percent were also to be deducted from the average of the appraised values. Justice Wilson then provided that the balance was to be notionally divided between the parties, however, they each would be entitled to seek further adjustment from the other’s respective notional share of the proceeds subject to proper documentary proof. At trial, the respondent called expert evidence on an additional adjustment of $40,951. The trial judge accepted this expert evidence and ordered the adjustment. Based on the language of Wilson J.’s order, further adjustments were permissible.

(4) No. The appellant submitted that the trial judge failed to give proper reasons, awarded security in spite of the fact that the appellant’s support payments were up to date prior to trial, and that he had contributed $8,000 to his son’s private school fees. He argued she also failed to consider the appellant’s evidence at trial that he would pay support. He complains that he is unable to benefit from any present value or any future increase in value of the $211,560 that is secured by the order. The appellant had paid no child support since separating from the respondent in May 2014 other than some private school and camp fees. He also stopped paying support contrary to the terms of an order to which he had consented after only three months, and failed to pay outstanding private school fees and s. 7 expenses despite being ordered to do so. It was only when the parties attended a court conference immediately before the trial that he made a payment on account of child support arrears and outstanding school fees. The evidence of non-compliance supported the trial judge’s conclusion that there was no likelihood that the appellant would pay child support or s. 7 expenses in the future, and that security in the form of a fund was required. Given that the order was for security (as opposed to a lump sum payment), the appellant’s remaining arguments had no merit.

(5) Yes. The error was only noticed by the parties on January 17, 2017, when the motion for security for costs for the appeal was brought. The court ordered Paragraph 8 of the judgment amended by deleting the sum of $33,731 and substituting the sum of $18,575 ($33,731 less $15,156 = $18,575).

(6) No. The trial judge considered the four financial statements filed by the appellant. The appellant’s itemization of chattels was only included in one of the four financial statements. The trial judge found that there was little documentation to support who had paid for the items claimed by the appellant, what had been paid, or current values. On the basis of the evidence before her, it was open to the trial judge to disallow this claim.

(7) No. She properly considered the relevant factors set out in the Family Law Rules. Although the respondent sought full indemnity costs of approximately $237,000, the trial judge reduced the claim to $125,000. She was entitled to do so, and her costs award was owed considerable deference.

Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004

[Hourigan and Brown JJ.A. and Himel J. (ad hoc)]

Counsel:

Rodney Godard and Ioana Vacaru, for the appellant

Anita Lanary and Eric Florjancic, for the respondents

Keywords: Employment Law, Wrongful Dismissal, Severance Pay, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Limitation Periods, Employment Standards Act, 2000, S.O. 2000, c. 41, Ontario Human Rights Code, RSO 1990, c. H19, Occupational Health and Safety Act, RSO 1990, c.O.1, r. 21.01(1)(b), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Jones v. Friedman, 2006 CarswellOnt 120 (C.A.)

Facts:

The appellant, Dan Bailey, sued his former employer, the respondent, Milo-Food & Agricultural Infrastructure & Services Inc. (“Milo-FAIS”) and its President and CEO, the respondent, Geetu Pathak (“Ms. Pathak”) for wrongful dismissal, severance pay pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, emotional upset and mental distress, and breach of the Ontario Human Rights Code, RSO 1990, c. H19 and the Occupational Health and Safety Act, RSO 1990, c.O.1.

The respondents moved to strike the statement of claim pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the ground that it disclosed no reasonable cause of action and was statute barred.

The appellant was a long term employee of Milo-FAIS and its predecessor company. By letter dated March 7, 2013, Ms. Pathak advised the appellant that Milo-FAIS could “no longer sustain the costs of his position” and proposed two options for his exit from employment. He rejected that offer. By letter dated March 18, 2013, the appellant was advised that his service prior to Milo-FAIS was not recognized and that his employment would end two years hence, on March 22, 2015. The appellant worked for Milo-FAIS until March 22, 2015. He commenced his action on December 21, 2015.

The motion judge granted the respondents’ motion to strike in respect of the appellant’s severance pay and wrongful dismissal claims. He dismissed the respondents’ motion to strike in respect of the appellant’s other claims.

Issues:

  1. Did the motion judge err in concluding that the appellant’s cause of action for wrongful dismissal arose on the date he was provided notice and not on the last day he worked for Milo-FAIS?
  2. Did the motion judge err in finding that the appellant’s claim for severance pay was barred by the limitation period?
  3. Did the motion judge err in dismissing the balance of the respondent’s motion to strike?

Holding:  Appeal allowed, in part.

Reasoning:

  1. No. The Court did not give effect to the appellant’s submission that the motion judge’s interpretation of Jones v. Friedman, 2006 CarswellOnt 120 (C.A.) was misplaced and that he erred by conflating actual dismissal with notice of future dismissal. The Court held that Jones stands for the principle that a cause of action for wrongful dismissal arises on the date of notice of termination. Thus, the motion judge made no error in his reliance on that case or in striking the wrongful dismissal claim.
  2. Yes. The Court accepted the appellant’s novel and credible argument based on ss. 11(5), 63(1)(a), 64(1) and 65(1) of the Employment Standards Actthat until employment is completed, the claim for severance pay does not crystalize. The Court noted that there was no authority submitted by the parties that is contrary to this argument. It also did not accept the respondent’s submission that it is plain and obvious that s. 63(1)(e) of the Employment Standards Actapplies as opposed to s. 63(1)(a) as submitted by the appellant.
  3. No. In the statement of claim, it was alleged that the appellant was subjected to conduct which caused him emotional upset, mental suffering, and which breached his rights under the Human Rights Code and the Occupational Health and Safety Act throughout and until the end of the notice period. For the purpose of a r. 21.01(2)(b) motion, the court stated that these facts must be presumed to be true. The court noted that these claims arguably arise from a continuing cause of action that predates the notice of termination, rather than a series of independent torts. As such, the motion judge was correct to dismiss the motion to strike these claims, since they were “entangled with factual issues.”

Perri v. Perri, 2017 ONCA 1001

[Pepall, Lauwers and Pardu JJ.A.]

Counsel:

A Kania, for the appellant

K Cunningham and A McBean, for the respondent

Keywords: Family Law, Spousal Support, Lump-Sum Support, Compensatory Claims, Economic Hardship, Spousal Support Advisory Guidelines, Divorce Act, , R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(6)(a) and (c), Standard of Review

Facts:

This was a 22 year marriage. The parties had two children. The older daughter was no longer a child of the marriage within the meaning of the Divorce Act at the time of trial, but was living with her mother (the respondent). Just two or three weeks before trial, the son moved from his mother’s home to reside with his father (the appellant). He was 19 years old at the time of trial. He was halfway through completing a three-year community college program. The wife was earning about $63,300 a year as a legal secretary. The husband’s annual income was about $100,000. The wife was 49 years old at the time of trial. The husband is the same age as the wife.

The application judge found that the wife was entitled to spousal support on a compensatory basis. He found that she had suffered economic hardship from the breakdown of the marriage. At the hearing, both parties said they preferred a lump-sum spousal support order rather than periodic payments. There was a high degree of animosity between the parties. The application judge accepted that a clean break would be appropriate. He calculated the support payment according to the mid-point of the Spousal Support Advisory Guidelines (“SSAGs”) amount, $1,194.00 per month, and selected a ten-year duration for the support payment, to arrive at a lump sum spousal support order of $143,280 – which he indicated was to be adjusted for tax consequences. The application judge declined to make any order that the son continued to be a child of the marriage. The son had only moved to his father’s home within a few weeks of the trial. The application judge indicated that there were many unanswered questions about the son.

Issues:

(1) Did the application judge err by awarding the wife compensatory spousal support?

(2) Did the application judge err by failing to recognize that the wife was obliged to contribute support for the son?

Holding: Appeal allowed, in part.

Reasons:

The standard of review of spousal support decisions is deferential. As the court observed in Halliwell v. Halliwell, 2017 ONCA 349, at para. 88, “[a]ppellate courts should not interfere with support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong”.

(1) No. The application judge specifically found that after separation, the husband enjoyed much the same standard of living that he had before separation, but that the same was not true for the wife. The Divorce Act, ss. 15.2(6)(a) and (c), mandate consideration of not only economic disadvantage flowing from the marriage, but also economic disadvantage flowing from the breakdown of the marriage. The application judge’s order was not simply an award based on the disparity of the parties’ incomes. It was also a recognition of a 22-year marriage during which the parties had two children.

(2) No. Given that the son had moved into his father’s home within a few weeks of the trial, and the absence of full information about the son’s circumstances, the application judge did not err by refusing to treat the son as a child of the marriage for the purposes of calculating spousal support. More information was required to make a finding that the son was a child of the marriage. The application judge did not foreclose consideration of this issue. He indicated that the issue of whether the son was still a child of the marriage could “be revived with a proper evidentiary record.” Neither party attempted to do so.

Notwithstanding the dismissal of the appeal on the main issues, the court varied the order below as to the amount of support payable to take into account of tax considerations, the security for the support ordered, and the removal of the obligation for ongoing disclosure.

Quest Management Services Inc. v. Quest Management Systems, 2017 ONCA 999

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

David A. Schatzker, for the appellant

Bayo Odutola, for respondents

Keywords: Civil Procedure, Injunctions, Undertaking as to Damages, Costs,  Liability for Costs, Non-Parties, Corporations, Officers, Directors and Shareholders

Facts:

The motion judge awarded costs against Peter Merrill (“Merrill”), a non-party, the sole shareholder, president and director of Quest Management Systems Inc. (“Quest”), a plaintiff in this action. He did so because he found that the plaintiffs’ action was an abuse of process and that Quest had provided a “fraudulent” undertaking to the court on its application for an interlocutory injunction.

The motion judge found that the evidence established that Merrill was the sole shareholder and president of Quest, that Quest had suffered losses of approximately $36,000 in 2013 and $25,000 in 2012, had negative shareholder equity for the three years 2012-2014 and had assets of less than $800. He found that the undertaking given by Merrill on behalf of Quest was a fraudulent misrepresentation as to Quest’s means to satisfy a damage award and justified an award of costs against Merrill personally in order to prevent the administration of justice from being brought into disrepute.

Issues:

(1) Did the motion judge err in principle by awarding costs against the appellant (a non-party)?

Holding: Appeal allowed.

Reasoning:

(1)  Yes. Costs may be ordered against a non-party principal of a corporation but only in exceptional circumstances (including fraud or gross misconduct in the instigation or conduct of litigation) if the principal commits an abuse of process. But costs should not be awarded simply because the principal directed the operations of the corporation. There was no evidence in this case of the requisite “exceptional circumstances”, and the motion judge erred in principle in awarding costs against the appellant. For these reasons, the appeal was allowed and the order of the motion judge was set aside, as was the order with respect to costs of the motion.

Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:

W Wilson, for the appellant

J Warning, for the respondent

Keywords: Employment Law, Workplace Safety, Provincial Offences, Strict Liability Offences, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Paragraph 25(2)(h), Industrial Establishments Regulation, Statutory Interpretation, R. v. Brampton Brick (2004), 189 OAC 44 (C.A.)

Facts:

Martin Vryenhoek died when he fell from a temporary welding platform while working at the factory of his employer, the respondent Quinton Steel. The welding mask used by the deceased was made of “speed glass” which was clear and allowed forward vision, but became opaque once welding began in order to provide eye protection. He would move along the platform by walking sideways, slowly, and would know that he had reached the end of the platform only by feeling the tip of the A-frame with his foot. . No guardrails were installed. Quinton Steel was charged under s. 25(2)(a) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) with failing to inform, instruct and supervise a worker to protect the health or safety of the worker, and under s. 25(2)(h) with failing to take “every precaution reasonable in the circumstances for the protection of a worker”. The Crown alleged that the respondent “failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform”. Both charges were dismissed following trial before a justice of the peace. The Crown did not appeal dismissal of the charge under s. 25(2)(a). The Crown appealed dismissal of the count under s. 25(2)(h), but the appeal was dismissed by a summary appeal conviction judge. The Crown appeals again and submits that the trial justice erred in law by failing to adjudicate the s. 25(2)(h) charge as laid, arguing that the trial justice did not make the findings of fact necessary to determine whether it was reasonable to require that guardrails be installed on the platform Vryenhoek used while welding.

Issues:

(1) Did the justice of the peace err in failing to find that the respondent had violated section 25(2)(h) of the OHSA.

Holding:

Appeal allowed.

Reasoning:

(1) The OHSA is public welfare legislation. It is specifically designed to protect workers and, as such, it must be interpreted generously, not narrowly or technically, in order to allow it to achieve this purpose. The respondent’s factory is an industrial establishment as defined in the OHSA and the Industrial Establishments Regulation applies to it. Section 25(1) of the OHSA refers specifically to the regulations and imposes a duty on employers to ensure that the measures and procedures prescribed by the regulations are carried out. But s. 25(1) does not exhaust employers’ duties under the OHSA. Section 25(2)(h) provides: Without limiting the strict duty imposed by subsection (1), an employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker. Section 25(2)(h) establishes a duty that is “even more sweeping” than s. 25(1). It is more sweeping because it does not depend on the existence of a specific regulation prescribing or proscribing particular conduct.

The OHSA is for the most part a strict liability regime. The Crown is required to prove only the actus reus of the offence beyond a reasonable doubt. If the Crown succeeds in doing so, an employer can avoid liability only by establishing, on a balance of probabilities, that it acted with due diligence in seeking to avoid the event that occurred. The Crown was not required to establish a failure to comply with any of the regulations in order to prove that s. 25(2)(h) had been violated. Instead, the Crown was required to prove that the installation of guardrails was a reasonable precaution in the circumstances of this workplace in order to protect a worker and that the respondent failed to install the guardrails. This was the actus reus of the offence.

There is no question that the respondent did not install guardrails on the temporary platform from which Vryenhoek fell. The trial justice’s finding to the contrary has no support in the record and was not defended by the respondent. As per R. v. Brampton Brick (2004), 189 OAC 44 (C.A.), the surrounding circumstances are an element of the offence under s. 25(2)(h) that must be considered before it can be concluded that a precaution not taken was reasonable. In order to apply s. 25(2)(h), the trial justice had to consider all of the relevant circumstances including the nature of the workplace, the work being performed by Vryenhoek, the equipment he was using, and the manner in which he was performing the work. Vryenhoek was welding while moving from side-to-side across a temporary platform; he was wearing a welding helmet that afforded him only limited sight and could not see the end of the platform from which he fell to his death. The question for the trial justice was whether the installation of guardrails on the A-frame platform was a reasonable precaution in these circumstances. The trial justice did not answer this question. Instead, he concluded that s. 25(2)(h) of the OHSA was not violated because the respondent had not violated any provision of the regulations, and s. 25(2)(h) could not be used to extend an employer’s duties beyond those set out in the regulations. The focus of the trial justice’s reasons was on the relationship between the statutory requirement and the regulations. He concluded that the respondent could not be convicted of violating s. 25(2)(h) because the regulations had not been violated. This conclusion is incorrect. Section 25(1) of the OHSA requires employers to ensure that the measures and procedures prescribed by the regulations are carried out. But employers are required to comply with s. 25(2)(h) as well as s. 25(1), and the application of s. 25(2)(h) does not depend on compliance with any of the regulations.

Regulations cannot “occupy the field” by displacing statutory authority. Section 25(2)(h) specifically requires that employers take every precaution reasonable in the circumstances for the protection of a worker, that duty is not varied or limited by the existence of specific regulations. Certainty is an important aspect of the rule of law; parties should be able to ascertain what the law requires in order that they can arrange their affairs in compliance with its demands, but prescriptive certainty is not required in the context of regulatory offences such as s. 25(2)(h). That section establishes a standard, rather than a rule, the requirements of which are tailored to suit particular circumstances. Employers must take every precaution reasonable in the circumstances in order to protect workers. Reasonableness is a well-known legal concept that is interpreted and applied in a wide variety of legal contexts. Its use in s 25(2)(h) does not give rise to intolerable uncertainty.

Sirois v. Weston, 2017 ONCA 1002

[Feldman, Fairburn and Nordheimer JJ.A.]

Counsel:

Christopher S. Spiteri & John MacDonell, for the appellants

Aaron Postelnik, for the respondent, Tanya Lemcke

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Facts:

The plaintiffs appeal from the summary judgment that dismissed the plaintiffs’ claim against the defendant on the basis that the two-year limitation period had expired prior to the claim being instituted against the respondent. The appellants purchased a rural property as a retirement place in late 2009. In early 2010, they became aware that a company had an option to purchase an adjoining property upon which the company intended to build a solar farm. The option had been registered on title to the adjoining property one day after the appellants had signed their agreement of purchase and sale. The appellants say that they would not have purchased the property had they known about the option that the solar farm company had to purchase the adjoining lands. As a result of this information, the appellants first attempted to prevent the construction of the solar farm. They failed in those efforts. Construction of the solar farm began in February 2013. The appellants asked the respondent, late in 2012, to provide them with an opinion regarding the value of the property at that time. The respondent provided that opinion in December 2012, which stated that the value of the property had declined significantly given the impending construction of the solar farm.

The appellants commenced their action on November 30, 2011. The appellants did not include the respondent as a defendant. It was not until October 2013 that the appellants sought leave to amend their statement of claim to add the respondent as a defendant. Leave was granted on November 1, 2013, and the statement of claim was amended to add the respondent as a defendant on November 30, 2013. In response to the motion for summary judgment, the appellants argued that the limitation period did not begin to run until February 2013 when the construction of the solar farm actually commenced. Up until that point, the appellants say that they did not know that they had suffered actual damage arising from the potential solar farm.

The motion judge rejected the appellants’ position, concluding that the Plaintiffs discovered their cause of action against Ms. Lemcke by February 2010. Although the extent of the damages was still unknown, they knew at that time that they had suffered damage, but chose to wait to bring the action.

Issues:

(1) Did the motion judge err in granting summary judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No.  By at least February 2010, the appellants knew about the possible construction of the solar farm on the property adjacent to theirs. They expressly said that they would not have purchased their property if they had had this knowledge before the closing. They also knew at that time that the value of their property would be negatively impacted. The court endorsed the decision of LaForme J.A. in Hamilton (City) v. Metcalfe & Mansfield Capital Corporation that the plaintiff suffers damage sufficient to complete the cause of action when they enter into the transaction, not when the loss is monetized into a specific amount.

The contention that the appellants did not know they had a cause of action until damage occurred when the construction of the solar farm commenced in February 2013, is contradicted by the fact that they commenced the action originally in November 2011 against both the vendor and the appellants’ real estate lawyer, based on the same factual foundation and complaint that is now alleged against the respondent.

The appellants’ reliance on the Court of Appeal’s decision in Butera v. Chown, Cairns LLP, was found to be misplaced. The expiration of the limitation period as it related to the sole defendant was precisely the type of discrete issue that could be separated from the other claims in the action and “dealt with expeditiously and in a cost effective manner.

Cole v. RBC Dominion Securities Inc., 2017 ONCA 1009

[Pepall Benotto and Paciocco JJ.A.]

Counsel:

Hari Nesathurai and Glen Perinot for the appellant, Henry Cole

Jeremy Devereaux and Danny Urquhart for the respondent, RBC Dominion Securities Inc

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 173(1)(o), Discharge from Bankruptcy, Conditions, Surplus Income

Facts:

While in bankruptcy, the appellant had a surplus monthly income of $12,500, but failed to make any surplus income payments. The appellant applied for a discharge from bankruptcy. The registrar in bankruptcy ordered that (1) as a condition of his discharge, the appellant pay $284,346 to the Trustee as surplus income to October 2015, payable at a rate of $5,000 per month; (2) as a condition of his discharge, the appellant pay an additional $5,000 per month to the Trustee for a further six years for a total additional payment of $360,000; and (3) the appellant’s discharge from bankruptcy be suspended for two years. The appellant’s appeal of the order was dismissed by Wilton-Siegel J.  The appellant now appeals from that order.

Issues:

(1) Did the court below err in dismissing the appellant’s appeal of the registrar’s order?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The judge below read the registrar’s reasons in their totality and was readily able to discern her intention and meaning. The judge’s decision to uphold the registrar’s order was reasonable because the registrar’s order was discretionary in nature and there was ample evidence to support her decision. Discharge from bankruptcy pursuant to s. 172 of the Bankruptcy and Insolvency Act, provides that on proof of any of the facts referred to in s. 173, the court shall require the bankrupt, as a condition of discharge, to pay monies or comply with such other terms as the court may direct. The registrar found that the facts referred to in s. 173(1)(o) had been established in this case: The appellant had failed to provide information to enable the Trustee to calculate surplus income.

Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007

[Laskin, Lauwers and Brown JJ.A.]

Counsel:

Leonard Marsello, Tamara Barclay, and Nansy Ghobrial, for the appellant, Her Majesty the Queen as represented by the Ministry of the Attorney General

Christopher Bredt, Markus Kremer, and Alannah Fotheringham for the respondent, Weyerhaeuser Company Limited

Crawford Smith and Jeremy Opolsky, for the respondent, Resolute FP Canada Inc.

Keywords: Environmental Law, Environmental Contamination, Liability, Director’s Clean-Up Orders, Environmental Protection Act, R.S.O. 1990, c. E.19, Contracts, Indemnities, Contractual Interpretation, Factual Matrix, National Trust Co. v. Mead, [1990] 2 S.C.R. 410,  Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561,  Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19

Facts:

On August 25, 2011, the Ontario Ministry of the Environment issued a Director’s Order requiring the respondents, Weyerhaeuser Company Limited and Resolute FP Canada Inc., to perform remedial work on an abandoned mercury waste disposal site near Dryden, Ontario. The respondents are two of the previous owners of the site.

Weyerhaeuser and Resolute took the position that they enjoyed the benefit of a December 1985 indemnity provided by the Government of Ontario to earlier owners of the Dryden pulp and paper facility, including the waste disposal site. As a result, they contended Ontario was obligated to indemnify them for any costs incurred to comply with the Director’s Order.

Ontario denied the 1985 indemnity had any such effect. It took the position the indemnity only covered third party claims resulting from mercury spills emanating from the Dryden property, not the regulatory compliance costs incurred by the owners of the waste disposal site. This litigation ensued.

All parties moved for summary judgment, raising two issues: (i) whether the indemnity covers the costs of complying with the Director’s Order; and (ii) if it does, whether Weyerhaeuser and Resolute are entitled to its benefit.

The motion judge granted summary judgment in favour of Weyerhaeuser and Resolute, holding both were entitled to be indemnified by Ontario for the costs, losses, expenses, liabilities or obligations they had incurred and might incur as a result of the Director’s Order.

As set out in further detail below, the court concluded (in a 101 page decision, Laskin J. dissenting) that the motion judge did not err in finding that the 1985 indemnity covered the costs of complying with the Director’s Order. That said, the court concluded that the motion judge erred in finding that the respondents are entitled to claim indemnification under the indemnity. The court allowed Ontario’s appeal in respect of Resolute: the motion judge erred in finding Resolute enjoyed the benefit of the indemnity as a successor of Great Lakes. Thus, the court granted judgment in favour of Ontario dismissing Resolute’s claim.

As to Weyerhaeuser, the court allowed Ontario’s appeal in part, set aside the dismissal of its summary judgment motion, granted a declaration that Bowater Pulp and Paper Canada Inc. (a corporate predecessor to Resolute) assigned the full benefit of the indemnity to Weyerhaeuser under a 1998 asset purchase agreement, and directed a final adjudication by the court below on the issue of what, if any, rights Weyerhaeuser possessed as assignee of the indemnity at the time the Director’s Order was made in 2011. Justice Laskin would have allowed Ontario’s appeal in full, determining that Weyerhaeuser could not enforce the indemnity.

Chronology of Events

In the 1960s, the Dryden Paper Company Limited (“Dryden Paper”) owned and operated a pulp and paper mill in Dryden, Ontario. In 1971 Dryden Paper constructed a waste disposal site (“WDS”) on lands it owned to serve as a burial site for mercury-contaminated waste from the chlor-alkali plant. From 1971 to 1981, eight concrete cells were buried at the WDS. The cells contained stabilized mercury contaminated sludge, as well as mercury contaminated rubble and equipment from the demolished chlor-alkali plant.

In 1976, Dryden Paper and Dryden Chemicals amalgamated to form Reed Ltd. (“Reed”).

In 1979, Great Lakes purchased Reed. Ontario agreed to limit the combined liability of Great Lakes and Reed for any environmental damages caused by Reed prior to Great Lakes’ purchase of the Dryden operations to $15 million.

Between 1980 and 1984, the Governments of Canada and Ontario engaged in mediation with the Islington and Grassy Narrows First Nations to address the problems caused by the mercury discharge. Great Lakes was reluctant to contribute to any settlement payment unless it obtained releases from liability.

The indemnities required by s. 2.4(a) of the Memorandum of Agreement (“MOA”) from Ontario to Great Lakes and Reed in respect of the “issues” were contained in a scheduled document to the settlement’s December 16, 1985 Escrow Agreement entitled, “Ontario Indemnity,” which was signed by Ontario, Great Lakes, Reed, and Reed International P.L.C. (“Ontario Indemnity”). The interpretation of this indemnity lies at the heart of this litigation.

The post-1985 corporate history of Great Lakes is complex. For the purposes of this appeal, it suffices to note that in 1998, Great Lakes became Bowater, which in turn in 2010 became part of Abitibi-Consolidated Inc., which in 2012 became the respondent, Resolute.

In August 1998, Weyerhaeuser entered into an agreement with Bowater to purchase certain assets used in the Dryden pulp and paper business. Severance of the WDS property from the rest of the Dryden realty could not be obtained before closing of the agreement. As a result, severance of the WDS property ultimately was obtained about two years later, at which time Weyerhaeuser reconveyed the WDS to Bowater on August 25, 2000.

Weyerhaeuser sold the Dryden paper plant to Domtar Inc. in 2007.

In April 2009, AbitibiBowater Inc. and certain related companies, including the owner of the WDS, Bowater filed for protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”).

The Director’s Order made clear that the named parties were not relived from complying with any other applicable order or with future orders issued in accordance with the EPA, as circumstances might require.

Weyerhaeuser filed a notice of appeal to the Environmental Review Tribunal seeking to revoke or amend the Director’s Order. Weyerhaeuser commenced this action against Ontario in May 2013.

Issues:

(1) Does the Ontario Indemnity cover the costs of complying with the Director’s Order?

(2) Do the Respondents enjoy the benefit of the Ontario Indemnity?

(3) Did the motion judge err in holding Weyerhaeuser was an assignee of the Ontario Indemnity?

(4) Is Weyerhaeuser entitled to claim indemnification under the Ontario Indemnity for the costs of complying with the Director’s Order?

(5) Did the motion judge err in holding Weyerhaeuser was a “successor” under the Ontario Indemnity?

(6) Does Resolute enjoy the benefit of the Ontario Indemnity?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge did not err in law, or commit a palpable and overriding error on any question of mixed fact and law or question of fact, in arriving at his conclusion that the Ontario Indemnity entitled an indemnitee to be indemnified for the costs, losses, expenses, liabilities, or obligations it incurred or might incur as a result of the Director’s Order.

There was no legal error in the motion judge’s statement that the interpretation of a contract should start with the language of the contract. The plain meaning of the words in a contract is the logical place to start the contractual interpretation exercise. The decision-maker must always turn his or her mind to the factual matrix when interpreting a contract and the motion judge’s reasons disclose he did so.

The motion judge also did not err in law by ignoring the true nature of an indemnity. The language of an indemnity is appropriately read more broadly than covering simply claims by third parties (TransCanada Pipelines Ltd. v. Potter Station Power Ltd. Partnership (2002), 35 B.L.R. (3d) 62). The motion judge held the Ontario Indemnity contained clear and unambiguous language covering losses caused by the first party indemnitor.

Finally, the motion judge’s interpretation of the Ontario indemnity did not result in an unlawful fettering of legislative discretion. The Province has not sought by legislation to relieve itself from the financial obligations it assumed voluntarily in the Ontario Indemnity. Absent such legislation, Ontario remains bound by the terms of the deal it struck.

(2) No. Whether Weyerhaeuser or Resolute enjoy the benefit of the Ontario Indemnity turns on the determination of the second issue of contractual interpretation raised in this appeal: the meaning of the enurement clause in s. 6 of the Ontario Indemnity.

(3) The degree of specificity used by parties to identify assigned assets is a matter of negotiation and choice. Here, the parties chose to use general language to describe the “purchased assets’, including assigned contracts.

(4) The incomplete appeal record regarding the 2007 Domtar transaction is insufficient to permit the Court of Appeal to exercise its fact-finding powers under ss. 134(1) and (4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to determine that issue.

(5) The motion judge erred in his application of Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561 to the interpretation of the enurement clause in the Ontario Indemnity. With respect, he failed to explain how the facts in this case, which differ so materially from those in Brown, could support an interpretation of the word “successor” in reference to a corporation as meaning something other than a corporate successor.

(6) The Court held that Ontario never formally conceded that Resolute, as the corporate successor of Great Lakes, had the benefit of the Ontario Indemnity. When Bowater assigned the full benefit of the Ontario Indemnity to Weyerhaeuser under the 1998 APA, it did not retain any right relating to the indemnity that it could pass on down the corporate family tree to a successor corporation. Accordingly, Resolute has no legal interest in the Ontario Indemnity upon which it can assert a claim against Ontario.

Dissent [Laskin J.A.]

(1)No. Justice Laskin concluded that the motion judge’s interpretation reflects both errors of law and is unreasonable. Properly interpreted, the 1985 Indemnity covers only pollution claims brought by third parties against the respondents. It does not indemnify the respondents for the costs of complying with the Director’s Order.

Holding: Appeal allowed.

Ernst & Young Inc. v. Essar Global Fund Limited, 2017 ONCA 1014

[Blair, Pepall and van Rensburg JJ.A.]

Counsel:

Patricia D.S. Jackson, Andrew D. Gray, Jeremy Opolsky, Alexandra Shelley and Davida Shiff, for the appellants Essar Global Fund Limited, New Trinity Coal, Inc., Essar Ports Algoma Holding Inc., Essar Ports Canada Holding Inc., Algoma Port Holding Company Inc., Port of Algoma Inc., and Essar Steel Limited

Clifton P. Prophet, Nicholas Kluge and Delna Contractor, for the respondent Ernst & Young Inc. in its capacity as Monitor of Essar Steel Algoma Inc. et al.

Eliot N. Kolers and Patrick Corney, for the respondent Essar Steel Algoma Inc.

Peter H. Griffin, Monique Jilesen and Kim Nusbaum, for the appellants GIP Primus, L.P. and Brightwood Loan Services LLC

Keywords: Corporations, Oppression, “Complainant”, Derivative Actions, Canada Business Corporations Act, Sections 238 and 241, Bankruptcy and Insolvency, Companies’ Creditors Arrangement Act

Facts:

Algoma owns steel production operations and, in late 2013, was faced with a liquidity crisis. It is owned by the parent company, Essar Global, through its subsidiaries. Its investments are managed by Essar Capital. On September 26, 2016, Newbould J. granted an order authorizing the Monitor appointed under the Companies’ Creditors Arrangement Act (“CCAA”) to commence and continue proceedings under s. 241 of the Canada Business Corporations Act (“CBCA”) for oppression against Algoma’s parent, the appellant Essar Global Fund Limited (“Essar Global”), and the remaining appellants, other companies owned directly or indirectly by Essar Global (the “Essar Group”). The action arose in the context of a recapitalization of Algoma and a transaction between Algoma and Port of Algoma Inc. (“Portco”), two companies indirectly owned by Essar Global, in which Algoma’s port facilities in Sault Ste. Marie (the “Port”) were conveyed to Portco (the “Port Transaction”).

The trial judge found the Port Transaction and other conduct of Essar Global to be oppressive and granted a remedy that was designed to address that oppression. Essar Global and some of the members of the Essar Group, together with GIP, appeal from that judgment. The appellants advance a number of arguments, many of them factual, in support of their appeal. The appellants’ two principal legal submissions are first, that the Monitor lacked standing to bring an oppression claim and second, that the alleged harm was to Algoma and that therefore the appropriate redress was a derivative action.

Issues:

(1) Did the Monitor lack standing to be a complainant under s. 238 of the CBCA?

(2) Could the claim of the Monitor only be brought as a derivative action under s. 239 of the CBCA rather than an oppression action under s. 241 of the CBCA?

(3) Did the trial judge err in his analysis of reasonable expectations?

(4)Did the trial judge err in his analysis of wrongful conduct and harm?

(5)Did the trial judge err in tailoring a remedy?

(6) Was there procedural unfairness?

(7) Should the fresh evidence be admitted?

(8) Should leave to appeal costs be granted to GIP and the costs award varied?

Holding: Appeal dismissed.

Reasoning:

(1) No. The Court found that a monitor can be a complainant under the CBCA and should have been made one in this instance, however that will only occur on rare occasions. Factors a CCAA supervising judge should consider when exercising discretion as to whether a monitor should be authorized to be a complainant include whether:

(i) there is a prima facie case that merits an oppression action or application;

(ii) the proposed action or application itself has a restructuring purpose, that is to              say, materially advances or removes an impediment to a restructuring; and

(iii) any other stakeholder is better placed to be a complainant.

These factors are not exhaustive, and none of them is necessarily dispositive; they are simply factors to consider. In the circumstances that presented themselves here, the CCAA supervising judge was justified in providing authorization. A prima facie case had been established; the Monitor had reviewed and reported to the court on related party transactions; the oppression action served to remove an insurmountable obstacle to the restructuring; and the Monitor could efficiently advance an oppression claim, representing a conglomeration of stakeholders, namely the pensioners, retirees, employees, and trade creditors, who were not organized as a group and who were all similarly affected by the alleged oppressive conduct.

(2) No. There will be circumstances in which a stakeholder suffers harm in the stakeholder’s capacity as stakeholder, from the same wrongful conduct that causes harm to the corporation. Where the harm alleged was solely harm to the corporation, the case falls into an overlapping category. The question is whether the impugned conduct is “oppressive” and, if so, whether the stakeholder has suffered harm in its capacity as a stakeholder as a result of that conduct.

(3) No. There was evidence of subjective expectations before the trial judge. The trial judge also drew reasonable inferences from the evidence and circumstances that existed at Algoma in 2014 in support of the expectations relied upon by the Monitor, as he was entitled to do. The trial judge also correctly noted that, due to the fact-specific nature of the inquiry into reasonable expectations, not all listed factors must be satisfied in any particular case. There was conflicting evidence before the trial judge and it was for the trial judge to weigh the evidence and make factual findings. Based on the record before him, those factual findings were available to him.

(4) No. The trial judge recognized that the trade creditors, employees, pensioners and retirees were not parties to, nor did they play any role in, the amended Plan of Arrangement proceedings. The trial judge did not make his finding of wrongful conduct based on Essar Global’s breach of the Equity Commitment Letter. Rather, he found that the totality of Essar Global’s conduct regarding the Recapitalization and Port Transaction satisfied the wrongful conduct requirement. Taken in context, the trial judge made no error in his treatment of the release in favour of Essar Global.

While the reasons of the trial judge on Essar Global’s cash contribution are admittedly confusing, having regard to the record before him and reading the reasons as a whole, the Court was not persuaded that the trial judge misunderstood Essar Global’s contribution to the recapitalization. Indeed, the causal connection between Essar Global’s equity commitment and the Port Transaction is a factual matter and the trial judge’s factual finding was supported by the evidence.

The trial judge also correctly described the business judgment rule. However, the Court made two additional points with respect to the business judgment rule. First, the rule shields business decisions from court intervention only where they are made prudently and in good faith. Second, the rule’s protection is available only to the extent that the Board of Directors’ actions actually evidence their business judgment.

The Court held that it is a contrivance for Essar Global to impugn the trial judge’s conclusion regarding the business judgment rule on the basis that an independent committee was not required. Although it is true that an independent committee was not legally or technically required, the Board’s decision not to strike one, in the circumstances surrounding the restructuring transactions, spoke volumes. The totality of the evidence supported the Board’s lack of good faith, and rendered the business judgment rule inapplicable.

(5) No. Trial judges have broad latitude to fashion oppression remedies based on the facts before them. The trial judge properly identified the need to avoid an overly broad remedy and varying the transaction as he did was one such way. The trial judge’s remedy removes Portco’s control rights and, after GIP is paid, restores the Port to the ownership of Algoma. If GIP becomes the equity owner of Portco, its consent will be required to any change of control.  Unlike a damages award, the remedy was responsive to the oppressive conduct. Further, the remedy granted preserves the security GIP had bargained for and therefore GIP has not suffered any prejudice as a result of the remedy. Finally, regarding the issue of set-off, the Court noted that Newbould J.’s subsequent ruling is a full answer to GIP’s arguments on this point, and ensures that GIP will not suffer any prejudice as a result of the remedy granted in response to Essar Global’s oppressive conduct.

(6) No. The trial judge was the supervising CCAA judge and deeply acquainted with the facts of the restructuring. Of necessity, and on agreement of all parties to the oppression action, the timelines for pleadings, productions, and examinations were truncated. Additionally, no party objected at trial that the process had been procedurally unfair. Given the context and the complexity of the dispute, the pleadings were not as clear as they might have been in a less abbreviated schedule.  That said, on a review of the record, the Court was not persuaded that there was any procedural unfairness with respect to the claims or that the appellants did not know the case they had to meet.

(7) No. In both its original and its amended statement of claim, the Monitor alleged that representatives of Essar Global were members of Algoma’s Board and exercised de facto control over Algoma, such that they made decisions for the benefit of Essar Global while unfairly disregarding the interests of Algoma’s stakeholders. Essar Global cannot claim to have been caught by surprise by the issue of the Board’s independence being in play. The fresh evidence could have been obtained with reasonable diligence prior to trial. Regardless, the evidence would not have affected the result at trial, and is not conclusive of any issue on appeal.

(8) No. The Court held that there was no basis on which to interfere with the costs award of the trial judge as there was no error in principle in the trial judge’s exercise of discretion.

Stekar v. Wilcox, 2017 ONCA 1010

[Simmons, Cronk and Paciocco JJ.A.]

Counsel:

M A Klaiman, for the appellant

P E Trudelle, for the respondent

Keywords: Wills & Estates, Testamentary Capacity, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Fresh Evidence

Facts:

Following the trial of an issue over the course of a six-day hearing, the trial judge granted a declaration that the Will of Jerrald McNamara (the “Deceased”) dated May 21, 2012 (the “2012 Will”), not be admitted to probate, dismissed the appellant’s probate application, and awarded costs in favour of the respondent (Wilcox) in the total amount of $100,000, payable by the appellant and Frank Stekar and Guilio D’Ambrosi, jointly and severally. The appellant appeals from the denial of probate for the 2012 Will.

Issues:

(1) Did the trial judge err in determining that there were suspicious circumstances surrounding the preparation and execution of the 2012 Will?

(2) Did the trial judge err in applying the test for testamentary capacity and in finding that the Deceased lacked testamentary capacity at the time of the execution of the 2012 Will?

(4) Did the trial judge err in holding that the Deceased had no knowledge of and failed to approve the contents of the 2012 Will?

Holding: Appeal dismissed.

Reasons:

(1) No. At the appeal hearing, the appellant conceded that although some of the circumstances cited by the trial judge may not have been suspicious, others were. As a result, the appellant did not press his challenge to the trial judge’s finding of suspicious circumstances. Suspicious circumstances present included the fact that the Deceased provided for a radical change from his previous will, that the 2012 Will was typed despite the deceased not owning a computer, and that in the days prior to the making of the 2012 Will the deceased had made various contradictory statements regarding the identity of the intended beneficiaries. The circumstances present in this case, which are firmly anchored in the evidentiary record, strongly support the trial judge’s finding of suspicious circumstances surrounding the 2012 Will.  This key finding is unassailable.

(2) No. The trial judge held, correctly, that the appellant bore the burden of proving the Deceased’s testamentary capacity.  The presumption of testamentary capacity otherwise applicable was displaced by the suspicious circumstances regarding the preparation and execution of the 2012 Will.  It therefore fell to the appellant, as a matter of law, to establish the Deceased’s testamentary capacity, as well as his knowledge and approval of the 2012 Will: see for example, Vout v. Hay, [1995] 2 S.C.R. 876.

There was evidence at trial that in the two months prior to the making of the 2012 Will, the Deceased was involuntarily hospitalized for a lengthy period (about six or seven weeks) during which he suffered from hallucinations, delusions and confusion and was confined to a psychiatric ward.  On his discharge from hospital on April 20, 2012, he continued to suffer from what medical personnel described as “shakable” delusions.  In other words, the Deceased’s delusional state, while not intractable, persisted following his discharge from hospital.  Further, on June 1, 2012, just ten days after the execution of the 2012 Will, the appellant was re-admitted to hospital while exhibiting confusion and reduced alertness. On this evidence, which was fully canvassed by the trial judge, there can be no sustainable suggestion that the Deceased’s testamentary capacity was free from doubt at the time of the execution of the 2012 Will. The trial judge was entitled to conclude that his medical condition, including his delusional state and any personality disorder from which he may have suffered, clearly bore on his mental health and, hence, on the question of his testamentary capacity. Moreover, the trial judge’s reasons confirm that he was alert to the test for testamentary capacity and that he properly applied it to the facts of this case.

(3) No. The trial judge did not find, as a fact, that the Deceased lacked knowledge of and failed to approve the contents of the 2012 Will. Rather, he held that the appellant fell short of meeting his clear burden to establish such knowledge and approval. This conclusion was inescapable on the record at trial.  Specifically, it was supported by: i) the fact that the testamentary dispositions under the 2012 Will were completely at odds with the Deceased’s testamentary intentions as communicated to his treating physician and various friends in the 60 days prior to the execution of the 2012 Will, as well as with the provisions of the 1999 Will; ii) the fact that the 1999 Will was handwritten by the Deceased himself, whereas he could not have prepared the typed 2012 Will; iii) the absence of any evidence at trial regarding the instructions for or the preparation of the 2012 Will; and iv) the absence of any evidence from Joy Vassal, who was present when the 2012 Will was executed and stamped and signed it.

The fresh evidence that the appellant seeks to tender on appeal does not alter the conclusions set out above.

Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2017 ONCA 1011

[Simmons, Brown and Fairburn JJ.A.]

Counsel:

Gary H. Luftspring and Sam R. Sasso, for the appellants London Underwriters and Axis

Jamieson Halfnight and Anne Juntunen, for the appellants Chubb Insurance Company of Canada and Liberty Mutual Insurance Company

Christopher Reain and Clarence Lui, for the appellant Arch Insurance Company and Arch insurance Canada Ltd.

Peter Greene and David Vaillancourt, for the appellant AIG Insurance Company of Canada and/or AIG Commercial Insurance Company of Canada and/or AIG Excess Liability Insurance International Limited

William Blakeney and Thomas Galligan, for the appellants, XL Insurance company PLC and/or XL Insurance Limited, Endurance Speciality Insurance Ltd., Houston Casualty Company and Markel Bermuda Limited and/or Max Bermuda Ltd.

Eric A. Dolden and Gerry J. Gill, for the appellants Allied World Assurance Company Ltd.

William G. Scott and Housep Afarian, for the respondent TD Bank, N.A.

Keywords: Insurance law, Coverage, Bankers Comprehensive Crime, Professional Indemnity and Directors’ and Officers’ Liability,,  Contractual Interpretation Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254, Civil Procedure, Summary Judgment, Procedural Fairness

Facts:

The issues on appeal relate to a partial summary judgment granted in relation to an insurance policy. TD Bank, N.A. (the “Bank”) is a named insured under a “Bankers Comprehensive Crime, Professional Indemnity and Directors’ and Officers’ Liability Programme” (the “insurance policy”) issued by the appellants, a syndicate of insurers (the “insurers”). The insurance policy is divided into two parts. The second part provides directors and officers liability coverage. The first part is divided into two sections: a financial institutions bond (“fidelity coverage”, for, among other things, claims involving employee dishonesty) and a financial institutions professional liability policy (“professional liability coverage”, for, among other things, claims involving errors or omissions by the financial institution).

A Florida lawyer and customer of the Bank ran a Ponzi scheme involving the fraudulent sale of non-existing interests in structured settlements supposedly handled by his law firm. Substantial funds placed by investors in the scheme flowed through the law firm’s accounts at the Bank. After the scheme collapsed, about 19 investor groups sued the Bank. One investor group obtained judgment against the Bank based on claims for fraudulent misrepresentations by Bank employees and conduct by Bank employees that aided and abetted the fraudster.

Following that judgment, the Bank settled the other investor claims. The Bank then sought indemnity under both the professional liability coverage and fidelity coverage sections of the insurance policy for amounts paid to the investor groups. The appellants have denied coverage under both sections. In this action, the Bank seeks a declaration that it is entitled to indemnity under the professional liability section of the insurance policy for loss relating to the Ponzi scheme and damages for breach of contract in the amount of $300,000,000, the amount of the available coverage. Further, to the extent that coverage is excluded under that section of the policy, the Bank seeks a declaration that it is entitled to indemnity and damages under the fidelity coverage section of the policy. The Bank brought a motion for partial summary judgment while documentary production was underway and prior to oral discovery. In its motion, the Bank sought a declaration concerning the interpretation of one element of the preamble to the fidelity coverage section of the insurance policy. The interpretation sought related to the conduct of one former employee in relation to three of the investor groups.

The motion judge granted partial summary judgment. He declared that the Bank “sustained ‘direct financial loss’ within the meaning of the second paragraph of Section One (A) of the Policy regarding at least some of the funds deposited [in the law firm’s] accounts at [the Bank] by [three of the investor groups].” The insurers appeal from the partial summary judgment.

Issues:

(1) Did the motion judge err in granting partial summary judgment?

Holding: Appeal allowed.

Reasoning:

Yes. In granting partial summary judgment, the motion judge made four material errors, rendering the judgment fundamentally flawed.

The first error was failing to properly interpret Rule 20 insofar as the bank’s motion did not seek judgment on all or part of any of the claims set out in the prayer for relief in its Statement of Claim.

The second error was failing to interpret the policy as a whole. The motion judge ignored the fundamental principle of contractual interpretation that a provision in a contract must be interpreted in light of the contract as a whole: Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24

The third error was adopting a theory of liability not advanced by the parties. The motion judge adopted a theory not pleaded or advanced by the parties (that the Bank held the funds deposited by investors into the law firm’s accounts as a constructive trustee). This was procedurally unfair.

The fourth error was misconstruing the relief sought by the appellants. In determining this was an appropriate case in which to grant partial summary judgment, the motion judge relied on his view that the insurers were asking him to grant reverse summary judgment – in other words, to hold that the Bank did not suffer “a direct financial loss” – and thus were effectively acknowledging that this was an appropriate case for summary judgment. This finding was also procedurally unfair.

Cumulatively, the errors identified resulted in the motion judge granting partial summary judgment of a kind not available under Rule 20, following a procedurally unfair motion process, which was characterized by the motion judge ignoring a fundamental principle of contractual interpretation.

Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

G Mackenzie, B Mackenzie and D Strelshik for the appellant

B Roti, for the respondents

Keywords: Torts, Negligence, Personal Liability of Employees Acting in the Course of Their Employment, London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299

Facts:

The appellant Abigail Sataur pleaded that she was injured when a barista at a Starbucks store in Brampton poured scalding hot water on her hands. Through her Litigation Guardian, Ms. Sataur sued Starbucks, the barista (Jane Doe) and the manager of the store, Danielle Bovenberg, for negligence. She has alleged that each of the two individual defendants owed her a duty of care and that each was personally liable for breaching their duty.  On a motion brought by Starbucks, the motion judge struck the Statement of Claim against the individual defendants on the grounds that it did not disclose a reasonable cause of action and that suing the individual defendants amounted to an abuse of process.

Issues:

(1) Did the motion Judge err in law in striking the Statement of Claim against both individual defendants?

Holding:

Appeal allowed.

Reasoning:

(1) The motion judge found that “the general rule remains that employees are not liable for what they do within the scope of their authority and on behalf of their corporation”. This is not the case. As per London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299 “It has always been accepted that a plaintiff has the right to sue the person who was negligent, regardless of whether the employee was working for someone else or not.”

Further, the motion judge also held that the pleading against the individual defendants was an abuse of process because they were named parties solely to obtain discovery. The Court of Appeal found, however, that it is not an abuse of process to bring a lawsuit against individual defendants for the purpose of obtaining discovery from them, if the plaintiff has pleaded a proper cause of action against those individual defendants. Therefore since there was a proper cause of action, it was not an abuse of process to bring an action for this purpose.

Short Civil Decisions

Chavdarova v. The Staffing Exchange, 2017 ONCA 996

[Hourigan and Brown JJ.A. and Himel J.]

Counsel:

Lyudmila Chavdarova, for the appellant

Michael Polvere, for the respondent

Keywords: Appeal Book Endorsement, Failure to Comply with Pre-Trial Order, Evidence, Damages, Appeal Allowed

Toronto-Dominion Bank v. Froom, 2017 ONCA 998

[Simmons, Lauwers and Pardu JJ.A.]

Counsel:

Arthur Froom, in person by videoconference

Todd J. Burke, for the respondent

Keywords: Contract Law, Administrative Dismissal, Jurisdiction

Whitfield v. Whitfield, 2017 ONCA 995

[Hourigan, Brown JJ.A. and Himel J.]

Counsel:

Dr. Anges Whitfield, appearing in person

Matthew Gourlay, for the respondent, Bryan Whitfield

Keywords: Torts, Sexual Assault, Defamation, Jurisdiction

Lee v. McGhee, 2017 ONCA 997

[Hourigan, Brown JJ.A. and Himel J.]

Counsel:

Robin Brown, for the moving party

Byeongheon Lee, appearing in person

Keywords: Human Rights Law, Discrimination, Motion to Dismiss, Ontario Human Rights Code, s. 46.1(2), Courts of Justice Act, s. 134(3)

Pitney v. Toronto (Police Services Board), 2017 ONCA 1005

[Doherty, Benotto and Miller JJ.A.]

Counsel:

Linda Pitney, appearing in-person

Carole Tovell, appearing in-person

Rebecca Bush and Kathryn Shani, for the respondents

Keywords: Torts, Police Liability, Summary Judgment

1079268 Ontario Inc. v. GoodLife Fitness Centres Inc., 2017 ONCA 1012

[Cronk, Rouleau and Huscroft JJ.A.]

Counsel:

John K. Downing and Brian Whitwham, for the appellant

Kevin D. Sherkin, Elizabeth Barrass and Carmine Scalzi, for the respondent

Keywords: Real Property, Commercial Leases, Costs

1268223 Ontario Limited v. Fung Estate, 2017 ONCA 1003

[Feldman, Fairburn and Nordheimer JJ.A.]

Counsel:

Eduardo F. Lam, for the appellant

Justin M. Jakubiak & Sara Hickey, for the respondent

Keywords: Estates Law, Family Law, Property, Gift, McNamee v. McNamee

Lord v. Clearspring Spectrum Holdings L.P., 2017 ONCA 1016

[Doherty, Benotto and Miller JJ.A.]

Counsel:

Arthur Hamilton and Jed Blackburn, for the appellants

Robert Staley, Alan Gardner and William Bortolin for the respondents

Keywords: Contracts, Interpretation, Arbitration Clauses, Oppression

Dashti v. Moghimi, 2017 ONCA 1018

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

Veena Pohani, for the appellant

Joel Etienne and Naila Waheed, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Matrimonial Home, Family Law Act, s. 5(6)

Criminal Decisions

 R v. M.R., 2017 ONCA 985

[Simmons, Lauwers and Pardu JJ.A]

Counsel:

Mark Halfyard, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Assault, Sentencing, Conditional Discharge

R v. Sanchez, 2017 ONCA 994

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:

David M. Humphrey and Jill D. Makepeace, for the appellant

Christine Tier, for the respondent

Keywords: Criminal Law, Assault, Sexual Assault, Sexual Interference

R v. Hassan, 2017 ONCA 1008

[Epstein J.A.]

Counsel:

Colin Wood, for the applicant

Jeanette Gevikoglu, for the respondent

Keywords: Criminal Law, Drug Trafficking, Sentencing, Bail, Criminal Code, s. 679(4)

R v. Marshall, 2017 ONCA 1013

[Juriansz, Pepall and Trotter JJ.A.]

Counsel:

Alison Craig, for the appellant

Deborah Krick, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Jury Charge

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 11- DECEMBER 15, 2017)

Good evening,

Below are this week’s summaries of the civil decisions of the Court of Appeal.

There were two decisions of note this week. The first was Willowbrook Nurseries Inc. v. Royal Bank of Canada. In this decision the Court of Appeal ruled on the extent of the duty of good faith in contracts established by the Supreme Court in Bhasin v. Hrynewas applied to the commercial lending context. Due to the seasonal nature of the debtor’s business, the lender would allow the debtor to exceed its line of credit each winter. However, in 2007, the debtor failed to pay back the excess debt and the lender refused to allow the debtor to advance even further funds the following winter. The Court of Appeal ruled that in these circumstances, the lender was not required to lend more money than it wanted to or had previously agreed to lend.

The second was 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club). This decision involved a review of when a landlord is entitled to distrain (for arrears of rent but not after terminating a lease), and what a landlard may distrain (chattels, but not trade fixtures, unless those trade fixtures are severed from the land before the lease is terminated).

Other topics covered this week included testamentary capacity, negligent misrepresentation, WSIB collateral benefits in MVA context, a boundary dispute and exemption from seizure of property under the Indian Act in a repair and storage lien context.

Happy Chanukah to all who are celebrating.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Western Troy Capital Resources Inc. v. Genivar Inc., 2017 ONCA 971

Keywords: Torts, Negligent Misrepresentation, Damages

Wilken v. Sun Life Assurance Company, 2017 ONCA 975

Keywords: Torts, MVA, SABs, Collateral Benefits, WSIB

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974

Keywords: Contract Law, Breach of Contract, Banking Law, Commercial Lending, Duty of Good Faith, Thermo King Corp. v. Provincial Bank of Canada (1981), 34 O.R. (2d) 369 (C.A.), Bhasin v. Hrynew, 2014 SCC 71

Frohlich v. Ferraro, 2017 ONCA 978

Keywords: Property Law, Boundary Dispute, Trespass, Easements, Riparian Rights, Fresh Evidence

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980

Keywords: Real Property, Commercial Leasing,  Distraint, Chattels, Trade Fixtures, Abandonment, Torts, Conversion, Damages, Waiver of Tort, Exemplary and Punitive Damages

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

Keywords: Civil Procedure, Appeals, Jurisdiction, Criminal Law, Search Warrants, Solicitor-client privilege, Litigation privilege, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 (1) (b)

Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992

Keywords: Aboriginal Law, Property Law, Exemption from Seizure, Indian Act R.S.C., 1985, c. I-5, s. 89(1), Repair and Storage Liens Act, R.S.O. 1990, C. R.25

Sweetnam v. Williamson Estate, 2017 ONCA 991

Keywords: Wills & Estates, Testamentary Capacity, Costs

For Short Civil Decisions Click Here

For Criminal Decisions Click Here

Civil Decisions

Western Troy Capital Resources Inc. v. Genivar Inc., 2017 ONCA 971

[Sharpe, Epstein and van Rensburg JJ.A.]

Counsel

J Erskine and K. Surko, for the appellant
H B Borlack and S. Barbier, for the respondent, Genivar Inc.

Keywords: Torts, Negligent Misrepresentation, Damages

Facts:

The appellant retained the respondent, an engineering consulting firm, to conduct a feasibility study to evaluate the amount of mineral resources and economic viability of developing a property at MacLeod Lake in Northern Quebec.

The trial judge found that but for the respondent’s negligent misrepresentation to the appellant, the appellant would have terminated its project sooner and was thereby entitled to compensation for unnecessary expenses incurred.

The trial judge found that the resource estimate provided by the respondent should have been finalized at least one year and maybe as much as two years earlier than was actually done. The trial judge awarded $1.25 million to the appellant.

Issues:

(1) Did the trial judge err in his damages assessment?

Holding:

Appeal dismissed.

Reasoning:

(1) No. When the reasons of the trial judge are read as a whole, the trial judge provided an adequate explanation, firmly grounded in evidence, for why he rejected the approach advocated by the appellant and accepted the respondent’s position that not all the expenses claimed by the appellant would have been avoided if a timely resources estimate had been provided. His assessment is therefore not vulnerable to review by the Court of Appeal on the applicable standard of review.

The trial judge noted that there were several matters bearing upon the damages assessment that were “speculative” when the evidence was considered as a whole. The first speculation was how much earlier the work could have been done. The second speculation was what expenses the appellant would have incurred regardless of the resource estimate having been completed in a timely manner. The third area of uncertainty was how the appellant would have acted upon receipt of a timely feasibility study.

The court accepted that based on the evidence there was a significant element of judgment required to assess damages in this case. The court rejected the appellant’s submission that the calculation of damages could only have been accomplished on an invoice by invoice basis. The appellant failed to persuade the court that the trial judge ignored relevant evidence or that he made any palpable or overriding error of law that would justify intervention with his decision.

Wilken v. Sun Life Assurance Company, 2017 ONCA 975

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Douglas M. Bryce, for the appellant

Stephen H. Shantz, for the respondent

Keywords: Torts, MVA, SABs, Collateral Benefits, WSIB

Facts:

The appellant is claiming payment of long-term disability (“LTD”) benefits from the respondent. The appellant was injured in a motor vehicle accident while working and started collecting Workplace Safety and Insurance Board (“WSIB”) benefits before retroactively re-electing to proceed with a tort action against the other driver involved in the accident. The appellant seeks to distinguish the court’s decision in Richer v. Manulife Financial (“Richer”).

Issues: Is the appellant’s claim to payment of LTD benefits from the respondent distinguishable from Richer?

Holding: Appeal dismissed.

Reasoning:

No. The LTD policy in this case is different than that in Richer in that it provides that the insurer can subtract from the LTD payment any payment or benefit for which the insured is “eligible” under the Workers’ Compensation Act or similar law. However, the motion judge on the respondent’s summary judgment motion provided detailed reasons for finding “there are no meaningful or relevant distinctions between the Richer case and the situation before me”. The Court of Appeal adopted the motion judge’s reasons and conclusions.

Having concluded the insurer was entitled to an “offset”, the motion judge dismissed the appellant’s claim for benefits during the period November 26, 2012 to August 23, 2014, because the WSIB benefits for which the appellant was eligible exceeded the amount of the benefit that would have been payable under the LTD policy. The motion judge also dismissed the appellant’s claim for the period August 23, 2014 to June 1, 2015. On the record, the motion judge was entitled to infer that the WSIB would have continued to pay the appellant benefits at the “for loss of earnings” level but for his noncompliance with the WT plan. The deduction of “full loss of earnings” benefits results in an LTD benefit of “nil” for this period as well.

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Paul J. Pape, for the appellant

Milton A. Davis and Rob Macdonald, for the respondent

Keywords: Contract Law, Breach of Contract, Banking Law, Commercial Lending, Duty of Good Faith, Thermo King Corp. v. Provincial Bank of Canada (1981), 34 O.R. (2d) 369 (C.A.), Bhasin v. Hrynew, 2014 SCC 71

Facts:

Willowbrook Nurseries Inc. (“Willowbrook”) needed to borrow more money from its banker, Royal Bank of Canada (“RBC”).  RBC began lending to Willowbrook through a line of credit, demand loan, various mortgages, and a corporate credit card in January 2005. To satisfy Willowbrook’s seasonal financing needs, RBC would agree to a temporary accommodation request (“TAR”) that allowed Willowbrook to temporarily exceed its $2.75 million line of credit each winter. However, through the spring and summer of 2008, Willowbrook did not fully repay the $1.25 million worth of TAR that RBC extended in the winter of 2007, despite three extensions of time to do so (“2007 TAR”). Nonetheless, Willowbrook submitted an additional $1.2 million TAR following the completion of its fiscal 2008 financial statements on October 14, 2008 (“2008 TAR”) along with a debt restructuring and separate $500,000 term loan request. Approval of these requests would have meant that RBC would have been lending more than ever before to Willowbrook. Willowbrook was approaching the limits of its agreed upon credit, had no immediate prospect of significant revenue, and faced the expenses of planting for a new season.

On November 26, 2008, a RBC risk manager refused Willowbrook’s 2008 TAR, restructuring request, and term loan request. Instead, the risk manager transferred Willowbrook’s account into Special Loans and Advisory Services (“Special Loans”) on December 5, 2008. RBC outlined its concerns and requirements by letter dated December 8, 2008. It expressed concern about Willowbrook’s working capital, liquidity, and increased inventory levels. RBC noted the outstanding 2007 TAR and Willowbrook’s forecast that it would need $500,000 more to carry it through to April of the following year. RBC said it would continue to provide interim financing to allow Willowbrook to revise its business plan and to address the bank’s concerns.

RBC’s refusal to immediately lend more money meant that Willowbrook could not pay its suppliers on time and had to lay off employees. RBC demanded more financial information from Willowbrook and proposed to increase banking fees and interest charges. It wanted up-to-date appraisals of the real property securing Willowbrook’s debt. It proposed to engage an accounting consultant to review Willowbrook’s financial position, at Willowbrook’s expense. RBC asked for cash flow projections and indicated that “an appropriate temporary overdraft accommodation limit will be established upon our review and acceptance of your cash flow projections.”

Willowbrook scrambled to provide the requested information. Willowbrook’s accountant wrote to RBC requesting that Willowbrook be removed from the special loans program, or in the alternative, a reasonable period of time to seek alternative financing. RBC was not prepared to remove Willowbrook from Special Loans but agreed to Willowbrook’s request for time to find alternative financing and provided 60 days to do so. Ultimately, all of Willowbrook’s debt to RBC was discharged upon refinancing by another bank in April 2009.

Willowbrook brought an action against RBC for breach of its obligation to perform the lending agreement in good faith. Willowbrook argued at trial that RBC’s refusal to lend new money and its decision to subject Willowbrook to Special Loans treatment amounted to a change in the prevailing course of lending conduct and required reasonable notice. It argued at trial that the Special Loans treatment amounted to a de facto demand for payment without notice. Willowbrook’s action was dismissed. Willowbrook appealed.

Issues:

(1) Did the trial judge err in holding that RBC acted in bad faith by refusing to lend new money without notice?

(2) Did the trial judge err in holding that RBC acted in bad faith by moving Willowbrook’s accounts into Special Loans?

(3) Did the trial judge err in holding that RBC exercised its contractual discretionary power in an objectively unreasonable manner and therefore acted in bad faith?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge’s decision about whether RBC acted in bad faith is a question of mixed fact and law. It is owed deference absent an extricable error of law. As the Court of Appeal held in Thermo King Corp. v. Provincial Bank of Canada, a bank has a duty to give a customer reasonable notice of a change in the prevailing course of conduct with respect to overdraft lending. As discussed in Thermo King, a bank’s duty to give reasonable notice of a change to a prevailing course of overdraft lending conduct existed at common law well before the Supreme Court’s decision in Bhasin v Hrynew. There is no question that a prevailing course of lending conduct existed between the parties in this case. The conduct consisted of Willowbrook making a TAR each winter and paying it down the following year before presenting another TAR. It was Willowbrook that sought to change the prevailing course of lending conduct. It had not repaid the 2007 TAR, contrary to previous practice, and wanted an additional 2008 TAR. Willowbrook had exhausted its existing credit and it wanted more.

RBC was not obliged to accede to Willowbrook’s requests, especially since Willowbrook’s requests would have resulted in RBC lending $500,000 more than it had ever lent to Willowbrook before. RBC had little time to assess the request for more money after receiving the recent year-end financial statements. Willowbrook had run out of money by exhausting its credit limit at a time when it would have little revenue and substantial expenses. Bhasin does not require a lender in these circumstances to lend new money.

(2) No. The parties agreed that RBC’s power to move an account into Special Loans was a discretionary power provided for by the lending contract. Willowbrook concedes that RBC did not violate any express term of the lending contracts in doing so. The principle of good faith performance of contractual obligations does not extend so far as to require RBC to subjugate its own financial interests by extending additional credit that it does not want to advance. There is no basis to hold that any other particular aspect of the Special Loans treatment was unreasonable or undertaken in bad faith, or that RBC had to give notice before reacting as it did to Willowbrook’s changed circumstances and request for additional credit.

(3) No. RBC made a choice to refuse to lend Willowbrook more money beyond limits to which each had previously agreed. When Willowbrook suggested that the parties end their banking relationship, RBC gave Willowbrook more time than it asked for to make those arrangements. It is inapt to subject a bank’s decision whether to lend substantial new credit to an existing customer who is at the end of their credit limit to an objective reasonableness analysis. The choice of whether to lend new money is at heart, a subjective business decision to be made by a bank. These decisions may be based on factors unrelated to a particular customer and should not be assessed by a court, after the fact, for objective fiscal prudence. The trial judge identified some reasons why RBC might have decided to exercise its discretion to move Willowbrook’s accounts into Special Loans. He ultimately found that RBC’s decision was neither arbitrary nor capricious and was not in bad faith. There was no palpable or overriding error in these factual findings.

Frohlich v. Ferraro, 2017 ONCA 978

[Hourigan and Brown JJ.A. and Himel J. (ad hoc)]

Counsel:

Edward Oldfield and Christian Ferraro, for the appellants

James Bennett and Christopher Clemmer, for the respondent

Keywords: Property Law, Boundary Dispute, Trespass, Easements, Riparian Rights, Fresh Evidence

Facts:

This appeal concerns a property dispute between two cottage owners. At trial, the court declared that the appellants, John and Diane Ferraro, had entered and trespassed onto the dry land portion of the respondent’s water lot. A permanent injunction was issued restraining the appellants from entering upon any part of the respondent’s property not covered by water. The appellants’ counterclaim for an easement over that land was dismissed.

Issues:

(1) Did the trial judge err in failing to consider the issues of riparian rights and accretion, the high water mark, and the intentions of the original sub-dividers?

(2)Did the trial judge err in failing to provide sufficient reasons?

(3)Did the trial judge err in failing to find on the evidence that an easement had been established?

Holding: Appeal dismissed.

Reasoning:

(1)No. The issues of riparian rights (either the appellants’ or the Crown’s), accretion, the high water mark and the intentions of the original sub-dividers were not argued at trial. The Court declined to grant leave to admit the proposed fresh evidence as it was tendered in support of these new arguments.

(2)No. The court was not satisfied that the trial judge failed to provide sufficient reasons on any relevant issue

(3)No. The court found no error in the trial judge’s analysis and held that he correctly applied the law to the facts he found and ruled against the appellants.

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

A Landry, for the appellants

O Thomas, for the respondents

Keywords: Real Property, Commercial Leasing,  Distraint, Chattels, Trade Fixtures, Abandonment, Torts, Conversion, Damages, Waiver of Tort, Exemplary and Punitive Damages

Facts:

Hydeaway Golf Club, incorporated as 375445 Ontario Limited, and Nicholas Panasiuk Jr. (collectively, the appellant) leased land to Performance Plus Golf Academy and D & D Electric, incorporated as 2105582 Ontario Ltd. and 627496 Ontario Ltd. (collectively, the respondent), in fall 2006 under an oral agreement. The respondent constructed and operated a driving range on the leased land. The respondent fell into arrears of rent and the appellant terminated the lease on December 6, 2007. The respondent sought damages for the appellant’s unlawful distraint and conversion of its trade fixtures and chattels. The trial judge held that all of the claimed assets were trade fixtures and that the appellant was liable to the respondent for compensatory and exemplary damages. On appeal, the appellant argues that the trial judge erred by finding liability for conversion, and in any event, the damage award was excessive.

Issues:

(1) Did the trial judge err by classifying certain assets as trade fixtures or chattels, as opposed to fixtures or leasehold improvements?

(2) Did the trial judge err by holding that the appellant unlawfully distrained the respondent’s trade fixtures or chattels?

(3) Did the trial judge err by failing to consider whether the respondent had abandoned its chattels?

(4) Did the trial judge err by awarding exemplary damages in addition to compensatory damages?

Holding: Appeal allowed in part.

Reasons:

(1) No. This case concerns the fate of fixtures upon termination of a lease. The general rule is that fixtures remain with the land following the end of a tenancy; but not all fixtures fall within this rule. Trade fixtures are assets that are affixed to leased premises by a tenant for trade or commercial purposes. Courts have consistently held that tenants are presumptively allowed to remove trade fixtures at the end of a tenancy so long as the removal does not materially damage the premises: 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308, at para. 31, affirmed (1998), 40 O.R. (3d) 481 (C.A.).

Importantly, as the Court of Appeal held in Bank of Nova Scotia v. Mitz (1979), 106 D.L.R. (3d) 534, at p. 538 (Ont. C.A.), 1979 CarswellOnt 741, at para. 11, there is a distinction in the analysis depending on whether the attempted removal of the disputed asset occurs in the context of a lease versus the sale of real property. In the context of a lease, there appears to be a presumption that a tenant would not have an objective intent to affix an asset on a permanent basis such that it would become part of the real property at the end of the lease: Bank of Nova Scotia, at pp. 538-39. In other words, the object of annexation is presumptively not one of permanence. The determination of whether an asset is a fixture or trade fixture upon termination of a lease is highly fact specific.

In this case, the trial judge applied the three requisite elements of the legal test for a trade fixture: (i) whether the asset is affixed to the ground by the tenant; (ii) whether the asset is used for the purpose of a trade or commerce; and (iii) whether the asset can be removed without material damage to the premises. Only element (iii) was in question at trial. The trial judge found the Structural Assets could be removed without damage to the premises at para. 29 of his reasons. The trial judge was entitled to reject the appellant’s evidence regarding material damage that might result if the Structural Assets were removed. Indeed, there was evidence the appellant removed the barrier poles and nets at a later date without material damage.

Moreover, the appellant’s alternative argument that the Structural Assets were actually leasehold improvements has no merit. The Structural Assets cannot be simultaneously both trade fixtures and leasehold improvements. The test for whether an asset is a leasehold improvement is the same as the test for whether an asset is a fixture: Caledonia Service, at para. 14. There must be a sufficient degree and object of annexation such that the assets become part of the land. In this sense, a true “fixture” is the same as a leasehold improvement in the context of leases.

(2) No. Contemporary Canadian courts have held that s. 41 of the Commercial Tenancies Act (“CTA”) allows a landlord to distrain an overholding tenant’s chattels within six months following the end or determination of a lease. It does not change the common law rule that a landlord cannot distrain tenant chattels, regardless of timing, if the landlord terminates or forfeits the lease. In any event, the appellant cannot rely entirely on s. 41 of the CTA because this case involves trade fixtures. The Court of Appeal made clear that trade fixtures, while they remain affixed to the land, are never subject to the landlord’s remedy of distress in 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1998), 40 O.R. (3d) 481, at pp. 487-88 (C.A.), 1998 CarswellOnt 2937, at paras. 13-15, affirming (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308. Trade fixtures may only be distrained when they have been severed from the land and resume their nature as chattels.

(3) No. Abandonment is a defence to conversion. It occurs when there is a “giving up, a total desertion, and absolute relinquishment” of one’s interest in chattels: Simpson v. Gowers (1981), 121 D.L.R. (3d) 709,  at p. 711 (Ont. C.A.). The party alleging abandonment bears the onus of proving, on a balance of probabilities, an objective intent to abandon the chattels. The determination of whether there is a sufficient intent to abandon is a question of fact governed by factors such as the length of time, nature of the chattels, conduct of the parties, and context of the case: 1083994 Ontario Inc. v. Kotsopoulos, 2012 ONCA 143, at paras. 17-18. Here, the respondent attempted to either negotiate a sale of his assets to the appellant or a time he could retrieve them. The respondent’s lawyer sent letters shortly after the termination of the lease indicating the respondent intended to remove the chattels. The respondent attempted to retrieve the chattels multiple times, each time being thwarted by the appellant. Accordingly, there were no facts to suggest abandonment of chattels or trade fixtures in the instant case.

With respect to the trade fixtures, the appellant argued that a tenant may not remove them after a lease ends and the tenant has given up possession. However, there are exceptions to the appellant’s otherwise correct articulation of the general time limit in which a tenant may remove trade fixtures. One such exception is where a lease is for an uncertain term or where the landlord’s actions create the circumstance that the tenant had insufficient time to remove its trade fixtures. In this case, the appellant terminated the lease with 10 days’ notice in this case. The appellant also prevented the respondent from removing the disputed assets on December 6, 2007 by calling the OPP. Accordingly, the respondent did not abandon its trade fixtures and was entitled to return to the premises to remove them within a reasonable time following the end of the lease and after it vacated the premises.

(4) Yes. Conversion is a strict liability tort. If established, a tortfeasor will be forced to purchase the converted asset from the plaintiff. The general measure of damages is the market value of the converted asset as of the date of conversion: Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al. (1978), [1979] 1 S.C.R. 633, at p. 652. Nevertheless, the general measure of damages for intentional proprietary torts, such as conversion, may be substituted in certain circumstances. One such circumstance is known as “waiver of tort”. Waiver of tort allows a plaintiff to claim disgorgement damages based on the tortfeasor’s gain or benefit, instead of compensatory damages based on the loss suffered. However, a plaintiff cannot claim both.

The trial judge’s reasons do not provide any basis for an award of punitive or disgorgement damages. The trial judge did not find that the conversion was malicious or high-handed in a manner constituting a marked departure from ordinary standards of decent behaviour. Rather, the record shows that the appellant had an honest belief that the Structural Assets did in fact become part of the land and should have remained with the land. The trial judge should not have awarded the additional $80,000 in “exemplary” damages, and that portion of the judgment was set aside.

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

[Juriansz J.A. (In Chambers)]

Counsel:

Richard H. Shekter, for the moving parties

John Patton, for the responding parties

Erin Dann, for the Special Referee

Keywords: Civil Procedure, Appeals, Jurisdiction, Criminal Law, Search Warrants, Solicitor-client privilege, Litigation privilege, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 (1) (b)

Facts:

The motion is characterized as a motion for directions. The moving parties seek “an Order for directions with respect to the proper route of appeal in this matter”. The moving parties filed their notice of appeal on October 25, 2017. Thereafter, a question arose as to whether the court had jurisdiction to hear the appeal. The appeal is from the decision of a judge of the Superior Court of Justice ruling on issues of solicitor-client privilege and litigation privilege over a variety of documents and audio files seized by the Ontario Provincial Police during the execution of Criminal Code search warrants. The moving parties’ factum sets out a detailed argument as to why the Court of Appeal has jurisdiction over what they submit is an appeal from the decision of a single judge of the Superior Court in a civil matter. The factum concludes “…that the Court of Appeal has the jurisdiction to hear the appeal of this matter pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.”

However, the opposing view is that the proceeding before the Superior Court judge was criminal in nature. If that is the case there would be no statutory appeal to the Court of Appeal. The only appeal route available to the moving parties would appear to be pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, with leave.

Issues:

(1) Does the Court of Appeal have jurisdiction to hear this appeal?

Holding: Motion adjourned.

Reasoning:

(1)  Questions of whether an appeal lies within the jurisdiction of the Court of Appeal must be decided by a three-judge panel of the court. The statutory and rules-based framework that defines the court’s jurisdiction, along with the court’s own practice directions, indicates that a single judge has no power to decide whether an appeal is within the jurisdiction of this court (citing RREF II BHB IV Portofino, LLC v. Portofino Corp., 2015 ONCA 906, at para. 6). The motion was adjourned to be heard by a panel.

Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992

[Hourigan and Brown JJ.A. and Himel J.]

Keywords: Aboriginal Law, Property Law, Exemption from Seizure, Indian Act R.S.C., 1985, c. I-5, s. 89(1), Repair and Storage Liens Act, R.S.O. 1990, C. R.25

Facts:

Vehicles owned by Ontario residents and insured by the respondent were involved in accidents or stolen. After the accidents or thefts, ownership transferred to the respondent. The vehicles were towed and stored by the appellants, who are towing companies owned by members of the Six Nations of Grand River Indian Reserve, Brant County. All of the businesses are located within the boundaries of Six Nations. Most of the vehicles were towed and stored at the request of Six Nations police.

There was a dispute among the parties regarding towing and storage fees. The respondent brought applications under the Repair and Storage Liens Act (RSLA) in Small Claims Court to permit it to retrieve the vehicles in exchange for payment of money into court to the credit of any actions by the appellants for their fees. The appellants refused to release the vehicles. They brought an application seeking declaratory relief to the effect that ss. 23 and 24 of the RSLA are not available to the respondent. They argued that they acquired a property interest in the vehicles and, pursuant to s. 89(1) of the Indian Act, the vehicles are exempt from execution or seizure.

The application judge held that the RSLA is a provincial law of general application, and dismissed the appellants’ application for exemption. He ordered the appellants to immediately release the vehicles to the respondent.

Issue: Does s. 89(1) of the Indian Act prevent the respondent from exercising its rights under the RSLA?

Holding: Appeal dismissed.

Reasoning: No. Section 89(1) of the Indian Act reads as follows:

89(1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

The Court of Appeal determined that s. 89(1) of the Indian Act only protects against seizure from creditors or the Crown. In Mohawk Council of Akwesane v. Toews, the Federal Court notes that the purpose of the exemptions in s. 89 was to protect the entitlements of Indians to their reserve land and to ensure it was not eroded by the government’s ability to tax or creditors to seize. In this case, the respondent is a debtor not a creditor. Therefore, the exemption does not apply.

Sweetnam v. Williamson Estate, 2017 ONCA 991

[Hourigan, Brown JJ.A. and Himel J. (ad hoc)]

Counsel

Cherniak, I. Hull and D. So, for the appellant, Dianne Lesage
S. Graham, for the respondent/cross-appellant, Terry Dooley
B. Donovan and G. Sidlofsky, for the respondent, Star Sweetnam

Keywords: Wills & Estates, Testamentary Capacity, Costs

Facts:

Following a seizure on July 20, 2010, the deceased was diagnosed with brain cancer. He made two wills on separate dates leaving different portions of his estate to different persons under each. The trial judge heard evidence of a number of witnesses and found that the testator lacked testamentary capacity at the time he made these two wills.

Issues:

(1) Did the trial judge err in holding that the testator lacked testamentary capacity?

(2) Should leave be granted to the estate trustee to appeal the award of costs?

Holding: Appeal dismissed. Motion for leave to appeal costs dismissed.

Reasoning:

(1) No. The trial judge applied the test for testamentary capacity as outlined in the leading jurisprudence. He concluded that the testator was not aware of the nature and extent of his assets at the time he made the wills, did not remember the person he might be expected to benefit under his will and did not understand the nature of the claims that may be made by persons he was excluding. He found that the dispositions were affected by delusions. He articulated those delusions in his reasons. There were no palpable errors of fact. The inferences drawn were reasonably supported by evidence. There was no error in the analysis or application of the law by the court below.

(2) No. In estate matters, a court may order an estate trustee to pay costs personally if the estate trustee has acted unreasonably or in substance for his or her own benefit rather than the benefit of the estate. The trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider settlement offers that were less than the results obtained. They also took unreasonable positions, such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There was no reason to interfere with the exercise of discretion of the trial judge regarding costs.

Short Civil Decisions

McGregor v. Peel Children’s Aid Society, 2017 ONCA 976

[Strathy C.J.O., Juriansz and Huscroft JJ.A]

Counsel:

M Tubie, for the appellant

F Fischer, for the respondents Robertson House, Christine Steele and Tracy Severiano
Keywords: Civil Procedure, Settlements, Enforcement

El-Khodr v. Lackie, 2017 ONCA 984

[Doherty, MacFarland and Rouleau JJ.A]

Counsel:

B A Percival and  J W Gibson, for the appellants

J Y Obagi and E A Quigley, for the respondent
Keywords: Torts, MVA, Collateral Benefits, Costs, Partial Indemnity

Calvise v. Tripemco Burlington Insurance Group Limited, 2017 ONCA 989

[Hourigan, Brown JJ.A., and Himel J. (ad hoc)]

Counsel:

R D Gregoria, for the appellant

S Gleave and S Sells, for the respondent
Keywords: Contracts, Restrictive Covenants, Non-Solicitation, Non-Interference, Summary Judgment

Toronto-Dominion Bank v. Tang, 2017 ONCA 990

[Simmons, Lauwers and Pardu JJ.A.]

Counsel:

No one appearing for the appellants

J Kukla, for the respondent

H Du, for Aping Co. Ltd
Keywords: Appeal book Endorsement

United Kingdom v. Elabd, 2017 ONCA 983

[Feldman, Fairburn and Nordheimer JJ.A]

Counsel:

L Ramchandran, for the applicant

H Graham, for the respondent
Keywords: Appeal book Endorsement

Criminal Decisions

 R v. Butters, 2017 ONCA 973

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

J Shanmuganathan and E Dann, for the appellant

I Bell, for the respondent
Keywords: Criminal Law, Possession, Crack Cocaine, Sentencing, Immigration, R. v. Pham, 2013 SCC 15

R v. Jagga, 2017 ONCA 977

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

G Zaman, for the appellant

A Jagga, as self-represented
Keywords: Criminal Law, Weapons Prohibition Order

R v. W.V., 2017 ONCA 979

[Pepall, Lauwers and Pardu JJ.A]

Counsel:

M J Venturi, for the appellant

N Dennison, for the respondent
Keywords: Publication Ban, Criminal Law, Sexual Interference, Evidence, Credibility

R v. McCartney, 2017 ONCA 981

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

M Halfyard and B Vandebeek, for the appellant

M Bernstein, for the respondent
Keywords: Criminal Law, Second Degree Murder, Aggravated Assault, Self-Defence, Closing Address, Jury Trials, Misleading the Jury, Jury Instructions

R v. Adam, 2017 ONCA 988

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

M Dineen, for the applicant

R Young, for the respondent
Keywords: Criminal Law, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, Morin Analysis, Fraud

R v. Bentley, 2017 ONCA 982

[Feldman, Tulloch and Benotto JJ.A]

Counsel:

K Wilson, for the appellant

J Belton, for the respondent
Keywords: Criminal Law, Controlled Drug and Substances Act, S.C. 1996, c. 19, Marihuana Production, Sentencing, Mandatory Minimum

R v. R.O., 2017 ONCA 987 (Publication Ban)

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

R Diniz, for the appellant

C Harper, for the respondent

Keywords: Criminal Law, Criminal Harassment, Sentencing, Reasonable Apprehension of Bias

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 4 – DECEMBER 8, 2017)

Good afternoon/evening.
 
Before we get to this week’s summaries of the civil decisions of the Court of Appeal for Ontario, I would like to invite all of our readers to attend the CLE that my partner, Lea Nebel and I will be chairing featuring the top Court of Appeal decisions of the year. The CLE  has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street on January 11, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda and further details here.
 
There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion. The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the “appropriate means” analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for one of the parties on that matter, Allan Sternberg and Daniella Murynka, will be our panelists. The law in this area is continuing to evolve, with another decision released this week (discussed below) that moves the needle even further in the direction of extending the limitation period. The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs’ personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society’s efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. We hope you can join us.
 
And now, onto this week’s summaries. In a 2-1 decision in Winmill v. Woodstock (Police Services Board), the court further extended the “appropriate means” aspect of discoverability under the Limitations Act, 2002. The court determined that the two-year limitation period for a claim for the tort of battery against the police was not discoverable until the plaintiff was acquitted of a criminal charge of assault against the officer. In setting aside the lower court’s summary judgment dismissing the claim as out of time, the court reasoned that until the criminal proceeding determined whether the plaintiff had been guilty of assaulting the officer, it was not yet clear that commencing a civil claim against the officer for battery was the legally “appropriate means” for addressing the wrong. This adds to a growing body of case law in which the court has been signalling to the bar that parties should not be too quick to commence claims when there are other proceedings underway that could determine or at least greatly impact a civil proceeding. The problem, however, is that “appropriate means” is an evolving but still ambiguous concept that is open to interpretation. This is evident from the fact that Justice Huscroft dissented and would have dismissed the appeal.
 
In Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), the chambers motion judge applied the recent decision of the court in Yaiguage v. Chevron Corp. to deny security for costs in a case that probably would have resulted in security for costs before Yaiguage was released. The Chinese Publications decision was not public interest litigation and the merits of the appeal were weak. However, the court found that the City had sought security for costs in order to bring an end the case. The difficulty with relying on that ground to deny security for costs is that the possibility of ending the case is always a reason to bring such a motion. The law of security for costs continues to shift in favour of plaintiffs/appellants. I think what the court is signalling with both this decision and the Winmill decision is that the paramount consideration will always be an adjudication of the case on the merits when that is reasonably possible.
 
Other topics covered this week included the calculation of damages for the breach of an APS for a commercial property, child abduction, a  boundary dispute, more limitation period decisions, a jury verdict in the MVA context, employment law and motions to extend the  time to appeal.
 
John Polyzogopoulos
Blaney McMurtry LLP
Tel: 416 593 2953

 

Table of Contents:

Civil Cases:

Paschel v. Paschel, 2017 ONCA 972

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Weaver v. Anderson, 2017 ONCA 964

Keywords: Real Property, Boundary Dispute

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

Keywords: Employment Law, Wrongful Dismissal

Drakoulakos v. Stirpe, 2017 ONCA 957

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Maracle III v. Miracle, 2017 ONCA 950

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Su v. Lam, 2017 ONCA 952

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Thomson v. Durham (Police Services Board), 2017 ONCA 958

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Samra v. 7544405 Canada Inc., 2017 ONCA 953

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Li v. Li, 2017 ONCA 942

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Criminal & Ontario Board Decisions and Short Endorsements

Civil Decisions:

Paschel v. Paschel, 2017 ONCA 972

[Pardu J.A. (In Chambers)]

Counsel:

Farrah Hudani, for the moving party

Sheila Gibb, for the responding party

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Facts:

The moving party, Brittany Justine Paschel, is the mother of Cayvan Bain Paschel and Kazhem Hain Paschel (both children are under the age of two). The responding party is their father. The mother moves for a stay pending appeal of Trimble J.’s Order requiring the return of these two children to their habitual residence in Tennessee, U.S.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89 (entered into force December 1, 1983).

On July 31, 2017, the mother took the two children from their home in Tennessee to her mother’s home in Mississauga, Ontario without the father’s knowledge or consent. The father commenced an application, which was heard on October 30, 2017, for the return of the children. The mother opposed the father’s application. She said they lived a nomadic lifestyle in the United States and that the children had no habitual residence. She also said that the return of the children to the place of habitual residence would expose the children to a grave risk of physical or psychological harm, or otherwise place the children in an intolerable situation within the terms of Article 13(b) of the Hague Convention. The mother asked for a trial, however, the application judge concluded that he could decide the issues on the basis of the written record, which was substantial. The application judge concluded that the children’s habitual residence was in Tennessee, and that ordering the return of the children to Tennessee would not expose the children to a risk of harm of the nature contemplated by the Hague Convention.

Both parents have counsel in Tennessee. Moreover, there is a custody hearing, with oral evidence, set for January 23, 2018 in Tennessee. What makes this case different is the fact that the mother cannot return to the United States. When she came back into Canada with her children, she told American immigration authorities that she had been illegally living in the United States. As a result, she is now subject to a 20-year prohibition against entering the United States. To make matters more complicated, the father has a dated criminal record that bars him from entering Canada.

Issues:

(1) Should the court grant the mother’s motion for a stay pending appeal of Trimble J.’s Order requiring the return of the children to Tennessee?

Holding: Motion dismissed.

Reasoning:

(1)  No. Based on the evidence before him, the application judge’s conclusion that the children were habitually resident in Tennessee was reasonable and amply supported by the record. The application judge’s decision to decide this case on the basis of the written record, the 19 affidavits filed before him, rather than to direct a trial of the issues was a discretionary decision that is entitled to deference. While a trial of some issues may be necessary in some cases, some form of summary procedure is the norm, as this court pointed out in Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.):

The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure.

The trial judge analyzed the conflicting affidavits. He was not satisfied that the mother had satisfied her burden of proving that return of the children would subject them to grave harm. There is no reason to believe that the Tennessee courts will not make a custody decision on the basis of the best interests of the children, including terms about the location of their residence. A trial on the merits, in January 2018, in the country where the children are habitually resident, as opposed to prolonged jurisdictional wrangling, is in the best interests of the children. There is no reason to believe that the mother will not be able to fully participate in the trial by giving her evidence by video transmission if necessary. In making a decision about the best interests of the children, custody, access and the place of residence of the children, the court was confident the Tennessee court will endeavor to get as full an account as possible from both parents.

The mother should not be allowed to frustrate the goals of the Hague Convention by unilaterally attempting to create a new status quo outside the country of the children’s habitual residence. The court is not persuaded that the interests of justice require a stay of the order requiring the return of the children to their habitual residence jurisdiction.

Weaver v. Anderson, 2017 ONCA 964

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel J. Wyjad, for the appellants
Andrew Mae, for the respondent

Keywords: Real Property, Boundary Dispute

Facts:

The appellants, Karen and William Weaver, assert that the application judge made palpable and overriding errors in establishing the boundary line between their property and the respondent’s, Gordon Anderson.

Issues:

(1) Did the application judge misinterpret the field notes of an earlier surveyor, White?

(2) Did the application judge fail to give proper consideration to White’s plan of the property, which identified the lot line in a location other than the fence?

(3) Did the application judge fail to apply proper legal principles in establishing the boundary?

Holding:  Appeal dismissed.

Reasoning:

(1) No. As the application judge observed, the surveyor’s notes were “cryptic”, but they were open to the interpretation the judge gave them – that a former owner of the respondent’s lot had identified the fence as the boundary between the appellants’ property and the respondent’s. The court saw no error in the application judge’s interpretation of the surveyor’s field notes.

(2) No.  The application judge found, on the basis of the evidence before him, that White erred in not using the fence line and that the fence line was the best evidence of the boundary. The court held that these findings of fact were open to the trial judge on the basis of the evidence that he accepted.

(3) No. The court held that there was both an evidentiary basis and a legal basis for the application judge’s acceptance of the fence line as the more reliable evidence of the boundary compared to White’s boundary line.

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

[van Rensburg J.A. (In Chambers)]

Counsel:

Qiang Li Cao, in person for the appellant
D Boghosian and M Fish, for the respondents

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

Facts:

There were two motions before the court – a motion by the appellant (“CPCL”) for an order setting aside the Registrar’s order dismissing its appeal for delay, and a motion by the respondents (the “City”) for security for costs. At the hearing of the motions, the City consented to the order setting aside the Registrar’s dismissal, which was irregular, but sought an order requiring the appellant to provide security for costs as a term of the order setting aside the dismissal.

The appellant’s action arose from the termination of a contract for the supply of Chinese-language materials to the Markham Public Library. The appellant was the successful bidder and entered into a contract with the City. It commenced an action alleging that the City improperly terminated the contract and sought specific performance of the contract and damages. The City defended and asserted a counterclaim.

The action was dismissed by Kristjanson J. on a summary judgment motion. She awarded costs of $50,000 to the City for the motion and action. The counterclaim was withdrawn during the course of the hearing of the summary judgment motion. CPCL appeals the dismissal of its action and the costs award. Pursuant to Rules 61.01(a) and 56.01(d), the City seeks security for costs in the amount of costs already awarded in its favour ($50,000) as well as $20,000 in security for costs of the appeal, arguing that the appeal is frivolous and vexatious and that the appellant is a corporation without sufficient assets in Ontario to pay the costs of the appeal.

Issues:

(1) Is the appeal frivolous and vexatious, thereby warranting security for costs under Rule 61.06(1)(a)?

(2) Should security for costs be awarded on the basis that the appellant is a corporation without assets in Ontario sufficient to pay costs, pursuant to Rule 56.01(d)?

Holding: Motion dismissed.

Reasons:

(1) No. To find that an appeal is “frivolous and vexatious” there must be something that supports the conclusion that the appeal is “vexatious” in the sense that it is taken to annoy or embarrass the respondent or has been conducted in a vexatious manner: York University v. Markicevic, 2017 ONCA 651 (in chambers), at paras. 19, 32 and 36. Mr. Cao of the CPCL has been pursuing the appeal with diligence and in the sincere belief that there was no justification for the termination of the contract. While he may be adopting other methods that are harassing to the City to achieve his overall objective, this conduct alone does not make his appeal vexatious. The City does not meet the test for security for costs under r. 61.06(1)(a).

(2) No. The City underemphasizes the impact of the panel’s decision in Yaiguage v. Chevron Corp., 2017 ONCA 741. It clearly signals that, while factors such as impecuniosity and merit continue to be relevant in determining whether security for the costs of an appeal should be granted, each case turns on its own facts, guided by the overriding interests of justice. With regards to impecuniosity, evidence indicates that Mr. Cao’s sole source of income was the contract that was terminated, and that he has ongoing financial problems. Although he is the registered co-owner of a house with his son, his interest is 30% and the house is heavily mortgaged. Moreover, there is no evidence that Beijing Publications and Distributions Group (“BPDG”) is a related company, or that it could be expected to fund the appeal. Mr. Cao provided evidence of CPCL’s impecuniosity as well as his own. CPCL (with the City’s consent) has been represented by Mr. Cao, and not by legal counsel, so there is no necessary inference that someone is funding the litigation. The City did not cross-examine Mr. Cao on his finances or the ability of CPCL to raise money. It is unreasonable to suggest, as the City does here, that Mr. Cao was obliged to provide evidence that no friend or family member could lend him money to fund an order for security for costs in CPCL’s appeal.

With regards to the merits of the appeal, the appeal appears to have little chance of success. However, the Court was satisfied that the order for security for costs sought by the City, even if its costs in the Superior Court were not included, would effectively bring an end to the appeal and that this, as well as the attempt to recover the costs already awarded in its favour, is the City’s motivation in seeking the order.

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

Michael A. Katzman and Jessica R. Hewlett, for the appellants
Geoffrey D.E. Adair, Q.C., and Gordon McGuire, for the respondent

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Facts:

The appellants appeal from the judgment granted in favour of the respondent, DHMK Properties Inc., following a motion for summary judgment on the issue of damages. Effective January 30, 2013, the appellant, Mund Real Estate Group Inc., entered into an agreement of purchase and sale with DHMK to purchase DHMK’s commercial property for the amount of $5,300,000. The agreement provided for the following warranty in paragraph 2:

“The Vendor warrants that the reports of revenue and operating expenses to be given to the purchaser are true and correct in all respects, and the property will have a net cash flow prior to debt service (“the Net Income”) of not less than $441,925.00”.

The agreement also permitted Mund to conduct due diligence inquiries and to terminate the agreement by the “Notice Date”, which the parties subsequently agreed was June 13, 2013. The transaction was scheduled to close at the end of June 2013.

Mund did not terminate the agreement before the notice date. Instead, Mund took the position that it would only close the transaction with a substantial abatement of the purchase price, alleging that the net income from the property was materially less than the amount warranted in the agreement. DHMK did not agree to close the transaction on this basis. Mund brought an application for specific performance of the agreement with an abatement of the purchase price. In response, DHMK instigated an application for damages incurred as a result of the failed transaction. The applications were heard by Justice Brian O’Marra, who found that Mund had breached the agreement of purchase and sale by failing to close without the abatement of the purchase price. He found that Mund had the option of either terminating the agreement by the notice date or closing and suing on the warranty. He ordered the forfeiture to DHMK of Mund’s $100,000 deposit, costs, and an assessment of the issue of DHMK’s damages from the failed transaction.

The appellants abandoned their appeal from O’Marra J.’s judgment in August 2014. The assessment of damages was heard by the motion judge. He found that the damages were the difference between the agreed upon price of the contract ($5.3 million) and market value of the land in August 2014 ($4.27 million). He did not discount the $5.3 million for the vendor’s potential liability under the warranty. Nor did he explain why he chose August 2014 – the date the appeal from O’Marra J. was abandoned – as opposed to the date of closing.

Issues:

(1) Did the motion judge err in failing to take into account the effect of DHMK’s warranty of the net income from the property when calculating DHMK’s loss of bargain from the failed transaction?

(2) Did the motion judge err in choosing August 2014 as the date for the valuation of the property for the purpose of calculating DHMK’s loss of bargain?

Holding: Appeal allowed.

Reasoning:

(1)  Yes. It is common ground that in assessing DHMK’s damages arising from Mund’s breach of the agreement of purchase and sale, DHMK is entitled to be put, as far as damages permit, into the same economic position that it would have occupied had the transaction closed, subject to DHMK’s duty to mitigate its damages: Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, at para. 26.  Although correctly referencing this principle at para. 47 of his reasons, the motion judge erred in failing to apply it. Specifically, the motion judge erred by finding that because Mund breached the agreement, Mund’s potential claim for damages for DHMK’s breach of warranty need not be considered. Notwithstanding Mund’s repudiation of the agreement, DHMK’s prospective warranty obligations as embodied in the agreement are relevant, and are to be taken into account in the assessment of damages: Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440, at p. 455. As O’Marra J. stated, Mund had the option of closing the transaction and suing for breach of DHMK’s warranty concerning the net income from the property. It is not seriously contested that had the transaction closed, Mund would have sued for breach of the warranty. The motion judge should have taken this factor into account in his assessment of DHMK’s damages.

(2) Yes. The motion judge erred by selecting August 2014 as the date for assessing the value of the property for the purpose of calculating DHMK’s loss of bargain without providing any analysis or reasons on this issue. The absence of reasons precludes meaningful appellate review. The choice of the August 2014 date departs from the general principle noted by the motion judge at para. 50 of his reasons that “the proper date for taking the market value should be the time fixed for closing”. Although there is judicial discretion to select another date than the closing date, the difficulty here is that the basis for the motion judge’s exercise of that discretion is not explained and the difference in the market valuation dates materially affects the assessment of DHMK’s damages. The difference in dates amounts to a substantial variance in damages of some $230,000: the June 2013 appraised value of the property as at the date of closing is $4,500,000; whereas the appraised value of the property, over a year later, in August 2014 is $4,270,000.

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

[Laskin, Feldman and Juriansz JJ.A.]

Counsel:

K Arvai, for the appellant
C Paliare and T Lie, for the respondent

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Facts:

The Appellant, Montepeque, was involved in a car accident as a result of another driver, who was never identified. She suffered injuries to her neck, shoulders, back and right knee. As the other driver was never identified, Montepeque claimed under s. 5 of the Ontario Automobile Policy and OPCF 44R Family Protection Coverage. She sued her own car insurer, the respondent, State Farm, for damages under the unidentified motorist coverage in her car insurance policy. The action was tried before a jury. The first question that the jury was asked to answer was the central question on the issue of liability. This question read: “Did the negligence of an unidentified driver cause or contribute to the accident that occurred on November 23, 2008?” The jury answered “no”. Montepeque’s action was therefore dismissed. The jury had, however, answered “yes” to question 9, which asked whether Montepeque’s evidence of the “involvement” of an unidentified automobile was corroborated. Montepeque appealed claiming that the answers to these questions were inconsistent, the trial judge erred in her charge to the jury, and that the conduct of State Farm’s counsel at trial was inappropriate.

Issues:

  • Should the verdict be set aside because the jury’s answers to questions 1 and 9 were inconsistent?
  • Did the trial judge err in her charge to the jury on the grounds that:
  • It did not properly charge the jury on the standard of care in an emergency situation;
  • It did not properly charge the jury on the burden of proof; and
  • It was unbalanced and unfair.
  • Did the conduct of counsel for State Farm during the trial warrant the Court of Appeal’s intervention?

Holding: Appeal dismissed

Reasoning:

  • Under s. 5.2.1 of the Ontario Automobile Policy, an insured claimant has “a legal right to recover as damages from the owner or driver of an uninsured automobile” an amount ”up to the limits in this Section.” Section 5.7.1.1 limits coverage to “the minimum limits for automobile liability insurance in the jurisdiction in which the accident happens”, which in Ontario is $200,000. Section 3 of OPCF 44R provides an insured claimant with excess coverage for an amount over $200,000, up to the amount that the claimant is legally entitled to recover from a driver or owner of an “unidentified automobile”. In order to receive the excess coverage amount from one’s insurer, the claimant must meet an additional evidentiary requirement. The claimant’s “own evidence of the involvement” of the unidentified automobile “must be corroborated by other material evidence”. OPCF 44R defines “other material evidence” to mean either “independent witness evidence” or “physical evidence indicating the involvement of an unidentified automobile”.  At trial, Montepeque claimed an amount against State Farm that was available to her only through her excess coverage policy under OPCF 44R. Question 9 was not originally included in the jury charge. In a post-charge conference with the trial judge, Montepeque’s counsel asked for a new question, which addressed the additional evidentiary requirement of OPCF 44R, to be added to the list of questions for the jury to answer. The Jury answered yes to this question.

In a civil case, an appellate court has a very limited right to set aside the verdict of a jury for unreasonableness. Where the trial judge’s charge is fair and accurate, and correctly states the applicable law, the jury’s verdict will be set aside only where it is so unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. By its answer to question 9 the jury must have rejected State Farm’s contention that there was no unidentified car, and instead concluded that an unidentified car was there and was “involved” in the incident. But by its answer to question 1, the jury must have disbelieved Montepeque’s evidence that the unidentified car crossed the centre line, and thus concluded that the car’s driver was not negligent. Those two conclusions are not inconsistent; they are reconcilable. Questions 1 and 9 address different issues. Question 1 asks whether Montepeque proved on a balance of probabilities that the driver of the unidentified car caused the accident by crossing the center line. Question 9 does not deal with Montepeque’s onus of proof or with causation. It simply asks whether there was corroboration for Montepeque’s evidence of the “involvement” of an unidentified car. Thus this ground of appeal was dismissed.

  • The trial judge gave counsel a draft of her charge and invited comments on it before she gave it to the jury. Of the three concerns about the charge now raised on appeal, Montepeque’s trial counsel raised only the first concern with the trial judge, and seemed satisfied with the way the trial judge resolved his concern. In a civil case, the failure to object at trial is usually fatal on appeal because it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted. An appellate court can still give effect to an objection to an aspect of a trial judge’s jury charge raised for the first time on appeal, but only if not giving effect to the objection would cause a miscarriage of justice. Further, as per Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), “[t]he trial judge’s charge did not need to be perfect. Absent an error that amounts to a substantial wrong or a miscarriage of justice, or circumstances where the interests of justice otherwise so require, a new trial will not be ordered.”
  • With respect to the standard of care Montepeque submits that, because she was facing an emergency situation when she saw the oncoming unidentified car, the trial judge should have instructed the jury that Montepeque could not be expected to act as she might in calmer circumstances. The Trial Judge’s draft charge read “[A driver] must take proper precautions to guard against risks, which might reasonably be anticipated to arise from time to time as she proceeds on her way.” Montepeque’s counsel specifically objected to the phrase “from time to time”, as to him it did not capture the emergency nature of the situation facing his client. The Trial Judge then removed that phrase, as requested. The Court of Appeal saw no error in the charge, it captured Montepeque’s duty in an emergency situation by stressing that she was not held to a standard of perfection, and was only obliged to guard against risks that she might reasonably anticipate would arise.
  • By crossing the center line of a road, a driver breaches s. 148(1) of Highway Traffic Act. A driver who breaches s. 148(1) is prima facie negligent and bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care. The trial judge charged the jury that Montepeque had the burden of establishing on a balance of probabilities that the negligence of the driver of the unidentified car caused her injuries. However, he trial judge did not expressly charge the jury on the shifting onus applicable to a driver who has breached the Highway Traffic Act. It would have been preferable for the trial judge to have expressly charged the jury on the shifting burden of proof. But that instruction was not asked for at trial and the trial judge’s actual instruction conveyed the essence of the parties’ positions. Therefore this ground of appeal was dismissed.
  • Montepeque submited that the trial judge’s charge did not review the evidence and positions of the parties in a fair and balanced way. The Court of Appeal disagreed. Moreover, counsel for Montepeque had the opportunity both before and after the charge was given to comment on the summary of the evidence on liability. He had one minor objection to the trial judge’s failure to include a piece of evidence. He did not suggest that the summary was unfair or unbalanced. Therefore this ground of appeal was dismissed as well.
  • Montepeque argued that the conduct of State Farm’s counsel at trial was inappropriate. Combined with the jury’s findings, Montepeque argues that counsel’s conduct created an appearance of unfairness warranting appellate intervention. The Court of Appeal did not accept this argument. Montepeque’s allegations are based on (1) humorous remarks to the jury at the elevator lobby; (2) humorous remarks during the cross-examination of Montepeque’s witness; and (3) misrepresentations witnesses made in the presence of the jury. With respect to ground (1) the issue was brought up at trial and, as a result, the trial judge added to her charge to the jury a specific direction that the jury decide the case solely on the evidence, not on the conduct of the lawyers, this was adequate and resolves ground (2) as well. With respect to the third ground, while the statements should have been made in the absence of the jury, the trial judge found that the statements did not in any way prejudice Montepeque. The Court of Appeal agreed. Accordingly, this ground of appeal was also dismissed.

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

Kevin A. Egan, for the appellant
David S. Thompson, for the respondent

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Facts:
The appellant, Robert Winmill, appeals from the decision of Mitchell J. of the Superior Court of Justice dismissing, on a motion, the appellant’s claim for battery against the respondents and various police officers as statute barred by virtue of s.4 of the Limitations Act, 2002 (“LA”). The central issue is when the appellant discovered his potential claim in battery against the respondents. Resolution of this issue focused on the interpretation of s. 5(1)(a)(iv) of the LA, and in particular on when the appellant knew that a legal proceeding would be “an appropriate means to seek to remedy” the alleged battery against him.

There was an altercation at the appellant’s home between the appellant and one of his sons. The appellant’s wife called the police. According to the appellant’s Statement of Claim, several officers from the Woodstock Police Service arrived at his home. According to the appellant, Constables Dopf and Campbell entered the home and confronted him in the living room. Constable Dopf initiated unnecessary and aggressive physical contact with him. Constable Campbell joined in. The two constables forced the appellant to the ground and struck the appellant in the back and head with knee strikes and punches. In the process, the constables handcuffed the appellant in such an aggressive manner that he suffered cuts and bruises to his arms. The appellant was taken to the police station. He was charged with assaulting Constable Dopf and resisting arrest. He was not charged with any offence relating to the altercation with his son. On February 17, 2016, the appellant was acquitted of both charges by Graham J. of the Ontario Court of Justice.

On June 2, 2016, the appellant filed a Notice of Action against the respondents, signalling that he would be seeking damages for negligent investigation and assault. This occurred two years and one day after the alleged battery had taken place.

On June 22, 2016, the appellant filed a Statement of Claim sounding in the tort of battery, abuse of authority as police officers, and negligence in the discharge of police duties. On September 16, 2016, the respondents filed a Notice of Motion seeking to dismiss the action because the relevant limitation period had expired. On February 24, 2017, Gorman J. of the Superior Court of Justice made a consent order permitting the appellant to make factual allegations to support a claim for negligent investigation. On March 24, 2017, the respondents filed an Amended Notice of Motion seeking an order that “[t]he limitation period for the Plaintiff’s claim for damages arising from assault or battery has expired”. The respondents did not say that the appellant’s claim grounded in negligent investigation was statute-barred.

The respondents’ motion was argued on April 3, 2017. The appellant resisted a limitation period expiration date of June 1, 2016 (two years after the alleged battery) on three bases – discoverability; inability to commence an action because he was in custody and/or the courthouse was closed on June 1, 2016; and incapacity to commence a proceeding because of a physical, mental or psychological condition. The motion judge rejected the appellant’s arguments and granted the defendant’s motion, finding that the claim for battery was barred by the limitation period. The limitation period for the tort of negligent investigation began to run on February 17, 2016 (the date Mr. Winmill was found not guilty) and, therefore, the plaintiff’s claim for negligent investigation was unaffected and could continue. The appellant appeals from the motion judge’s decision.

Issues:

(1) Did the motion judge err by concluding that the appellant’s claim in battery against the respondents was not made inside the two-year limitation period prescribed by s. 4 of the LA?

Holding: Appeal allowed, Huscroft  J.A. dissenting.

Reasoning (per MacPherson J.A., writing for the majority):

(1) Yes. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts. The appeal turned on s. 5(1)(a) of the LA, which states that a claim is discovered on the earlier of the day on which the person with the claim first knew (i) that the injury, loss or damage had occurred; (ii) that the injury, loss or damage was caused by or contributed to by an act or omission; (iii) that the act or omission was that of the person against whom the claim is made, and; (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. The crucial issue was the fourth factor, which is whether the appellant knew on June 1, 2016, that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him. The motion judge answered this question in the affirmative.

The word “appropriate” means “legally appropriate”. Further, determining whether a limitation period applies does not simply consist of comparing the date of injury and date of initiation of legal proceeding and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. Additionally, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim.

With respect to the motion judge’s conclusion that the appellant’s battery claim was outside (by one day) the two-year limitation period prescribed by s. 4 of the LA, the motion judge erred for three reasons. First, the appellant’s negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. The appellant’s Amended Statement of Claim shows how inextricably intertwined the two alleged torts are.

Second, given the specific factual setting of this case, and bearing in mind the circumstances of the person with the claim, it made sense for the appellant to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The court determined, relying on Brown v. Baum, that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents. Third, and overlapping with the second reason, Chimienti v. Windsor (City) suggests that the appellant was justified in waiting for the verdict in his criminal trial before commencing a civil claim against the respondents. For these reasons, the discoverability date for the appellant’s battery claim was the same as the discoverability date for his negligent investigation claim.

The appeal was allowed, the order of the motion judge was set aside, and the appellant’s battery claim against the respondents was permitted to proceed to trial.

Reasoning (per Huscroft  J.A., writing in dissent):

On June 1, 2014, the appellant knew that he had suffered an injury, knew how the injury was caused, knew who he alleged had caused his injury, and knew that a legal proceeding would be an appropriate means to seek redress. He failed to bring his claim by June 1, 2016, and his claim is now barred by operation of the LA. In Markel Insurance Company of Canada v. ING Insurance Company, Sharpe J.A. explained that “appropriate” under s. 5(1)(a)(iv) of the Act must mean “legally appropriate”, and, at para. 34, admonished against giving the term a broad meaning.

The cases relied upon by the majority are distinguishable. An action in Brown v. Baum was not “appropriate” at the time of the injury because the defendant surgeon was providing further treatment in an attempt to rectify the harm he was alleged to have caused in the initial surgery. There was no alternative means of resolving the appellant’s allegations in this case, nor were the defendants in a position to rectify the harm they were alleged to have caused. Chimienti v. Windsor is distinguishable because it concerned claims of negligent and malicious investigation – claims that depended on the completion of the relevant criminal proceedings on which they were based. The claim of battery in this case did not. Although the appellant also seeks to advance a claim for negligent investigation, it is a separate tort to which a separate limitation period applies. A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common circumstances. Nor can a claimant delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings.

In this case the appellant decided, for tactical reasons, not to bring his battery action until after the criminal proceedings against him had concluded. That was an improvident decision, and Huscroft J.A. argued that the court has no discretionary power to relieve against the consequences of it, whether the appellant’s claim is a day late or year late. In his view, the motion judge made no errors. The battery claim was late. He would have dismissed the appeal.

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

[Strathy, C.J.O, Juriansz and Huscroft JJ.A]

Counsel:

Howard Markowitz, for the appellant
Maurice J. Neirinck, for the respondent

Keywords: Employment Law, Wrongful Dismissal

Facts:

This is an appeal from the trial judge’s decision dismissing the appellant’s action for wrongful dismissal.

The appellant, Peter Chhina, worked for Commercial Spring & Tool Company Ltd. for over 21 years, rising to the position of general manager of its heat treating division. He reported to Gurmail Gill, the General Manager of Operations.

The trial judge found that the appellant quit his employment on January 22, 2010.  She rejected the appellant’s evidence that he had taken a leave of absence to wind up his father’s estate in India.

Issues:

(1) Did the trial judge err in finding that the appellant quit his employment on January 22, 2010, and was not wrongfully dismissed?

Holding:  Appeal dismissed.

Reasoning:

No. The Court held that the trial judge was entitled to accept Gurmail Gill’s evidence that the appellant had resigned, and this evidence was not challenged by the appellant in cross-examination. This conclusion was also supported by circumstantial evidence that was not contested.

Drakoulakos v. Stirpe, 2017 ONCA 957

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel Zacks and Robert Drake, for the appellants
Ronald Bohm, for the respondents

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Facts:

This is an appeal from summary judgment dismissing the appellant’s action for a declaration that his daughter holds assets in a numbered company in trust for him. The other respondents are the daughter’s husband and the company.

In 1996, the appellant incorporated the company making his daughter the sole shareholder and conveying a taxi license to the company. In 2003, he conveyed a second taxi license to the company. The appellant alleges the company was intended to hold the taxi licenses for tax purposes and the assets were meant to pass to his daughter only upon his death.

On the motion below, both parties proceeded on the basis that the claim related to a bare trust and that the limitation period was governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The respondents took the position the appellant discovered his claim by 2004 and no later than December 9, 2010. The appellant’s position on the motion was that his claim was discovered on December 9, 2010, and that a mental or psychological condition rendered him incapable of commencing an action within two years of that date.

The motion judge decided the case on a different basis than the parties had argued. First, he decided that the claim related to a resulting trust. Second, he decided that the appellant’s claim was known or ought to have been known in 2002.

The appellant argues, and counsel for the respondents properly concedes, that on the facts found by the motion judge, there is no limitation period for a claim against the trustee of a resulting trust for property still in the possession of the trustee. The two prerequisites for the application of the transitional provision in s. 24 (6) of the present Act are satisfied: there was no limitation period for such a claim under the former Act and the claim was discovered before January 1, 2004.

Issues:

(1) Did the motion judge err in finding that the limitation period applied to the appellant’s claim for property still in the possession of a trustee of a resulting trust?

Holding: Appeal allowed.

Reasoning:

Yes. It is appropriate and in the interests of justice that the court entertain the appellant’s argument. The appellant did not have the opportunity to advance the argument in the court below, his underlying claim is equitable in nature, the argument raises a pure question of law, the record provides a complete evidentiary basis for the determination of the argument, and there is no prejudice to the respondents.

Once the motion judge decided to proceed on a framework different from the one on which the parties had presented argument, he was obligated to apply the correct law to it. As noted, the parties agree that the correct law applicable to the facts found by the motion judge is that no limitation period applies to the appellant’s claim for property still in the possession of a trustee of a resulting trust.

Maracle III v. Miracle, 2017 ONCA 950

[Pardu J.A. (In Chambers)]

Counsel:

S Dewart and M Bélanger, for the moving parties
IJ Collins and G Bogue, for the responding party

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Facts:
The moving party, Andrew Clifford Maracle III, and the respondent, Sir Andrew Clifford Miracle, are son and father. These parties signed a partnership agreement to run a business selling cigarettes and gasoline. That agreement contained a mandatory arbitration clause. The father sued the son, alleging that the son had misappropriated the profits from the partnership. The father also sued Jasmin Johnson, also a moving party, the son’s wife, alleging that she signed cheques on the partnership’s account without having signing authority. Ms. Johnson was not party to the partnership agreement. The responding party alleged breach of fiduciary duty, conspiracy to defraud, and conversion. The responding party was successful at arbitration and a substantial award was made in his favour as against his son. The Arbitrator refused to make any findings in relation to the claim against Ms. Johnson as she was not a party to the partnership agreement. The moving parties submit that this was procedurally unfair.

The moving parties seek leave to extend the time to move for leave to appeal a decision of the Superior Court of Justice, confirming an arbitral award in favour of the responding party. The moving parties’ former counsel (not counsel on the appeal) mistakenly thought he had 30 days to serve a notice of motion seeking leave to appeal, rather than 15 days as prescribed by r. 61.03.1(3) of the Rules of Civil Procedure.

Issues:

(1) Should the motion to extend the time to appeal be granted?

Holding: Motion granted.

Reasoning:

(1) Yes. The applicable principles governing motion to extend are described in Reid v. College of Chiropractors, 2016 ONCA 779.  The governing principle is whether the “justice of the case” requires that an extension be given. The relevant considerations include: (a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal. The lack of merit alone can be a sufficient basis on which to deny an extension of time particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal.

The responding party conceded that the failure to meet the deadline occurred as a result of the error of the moving parties’ lawyer and that there is no prejudice flowing from that short delay. The responding party’s position was that the moving parties are unlikely to get leave to appeal. On that ground, it submitted that leave to extend the time to file a notice of motion for leave to appeal should be refused.

Section 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 provides that a court may set aside an arbitral award if a party was not treated fairly, or if the arbitration procedures did not comply with the Act. The son argues that he was prejudiced by the arbitrator’s refusal to consider the claims against Ms. Johnson. The court found that given the brevity of the delay, and the absence of prejudice, the interests of justice in this case require that the moving parties be given an opportunity to persuade the court that leave should be granted. Therefore the motion was allowed and the moving parties were given 10 days to file a motion for leave to appeal.

Su v. Lam, 2017 ONCA 952

[Pardu J.A. (In Chambers)]

Counsel:
Jian Su, self-represented
David M. Goodman, for the respondent

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Facts:
The appellant, Mr. Su, moves for an extension of time to appeal from an April 19, 2017 decision that dismissed his motion to set aside a consent order. The underlying consent order was made in 2009. It dismissed Mr. Su’s action against the respondent. Before the consent order was made, Mr. Su had been ordered to pay an outstanding costs award against him and a further $25,000 for security for costs. The respondent brought a motion to dismiss the action because of these outstanding orders. Mr. Su was represented by counsel at the time and his counsel consented to the dismissal of this action and the property claims in another related proceeding. By foregoing his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim, and he avoided the need to post security for costs and payment of the outstanding costs award.

Mr. Su moved to set aside this consent order seven or eight years after it was made, alleging fraud and subsequently discovered facts as justification. He argued that the estate trustee falsely represented there were estate assets remaining to satisfy Mr. Su’s potential claim. The motion judge found that the documentary production made to Mr. Su before the consent order was made, had it been carefully and properly examined, would have already revealed the fact that no estate assets remained. The motion judge found as a fact that Mr. Su was not provided with any incorrect or misleading information about the assets of the estate at the time he agreed to the consent order. He concluded that Mr. Su failed to prove that he was induced by fraud to agree to the consent order, and failed to demonstrate that there were any after-acquired facts or information that would warrant setting aside the consent order

Issues:

(1) Should an extension of time to appeal the motion be granted?

Holding: Motion dismissed.

Reasoning: 

(1) No. The test for determining whether to extend time to appeal is set out in Reid v. College of Chiropractors. The test was not met in this case. There was no evidence that Mr. Su formed the intention to appeal within the relevant time period. There was insufficient explanation for the delay in filing the notice of appeal. The subject matter of the proposed appeal related to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and the respondent (the executor of Ms. Lam’s estate) have now been engaged in litigation for nearly 13 years.

Mr. Su attempts to set aside a consent order made in February 2009, at a time when he was represented by counsel and when the consent order brought real advantages to him. As a result of the consent order, the respondent did not pursue its motion for security for costs or its motion to dismiss the action for non-payment of a costs order. The motion judge’s findings of fact about the absence of misrepresentation at the time of the consent order were not undermined by the material Mr. Su filed in support of his motion for leave to extend time to appeal. In large part, the filed materials cover many of the same grounds dealt with by the court in Mr. Su’s previous appeal. The justice of the case did not require an extension of time to appeal. The motion was dismissed with costs.

Thomson v. Durham (Police Services Board), 2017 ONCA 958

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:
Joshua Evans, for the appellants
Nadia Marotta, for the respondents

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Facts:

This is an appeal from an order, made on the respondents’ summary judgment motion, dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002.

The appellants, Nora Thompson and Peter King, submit that s. 4 of the Limitations Act does not apply to their action as it is a proceeding to enforce a court order. Section 16(1)(b) of the Limitations Act, 2002, provides there is no limitation period for the enforcement of a court order.

An order of disposition under s. 490(9) of the Criminal Code issued December 14, 2011 and revised June 27, 2012, ordered that specified items of property among property seized by the respondents from the appellants in 2010 be released to them, and the remaining property be forfeited to the Crown. The appellants picked up some items from the Police Services’ Property Bureau on November 20, 2012 and January 24, 2013, but on January 9, 2013, claimed some of that property was missing or damaged. On March 2, 2013, a lawyer representing the appellants threatened but did not commence a civil action in respect of the missing and damaged property. On May 24, 2014, all remaining property in the respondents’ possession was forfeited to the Crown in accordance with the order of disposition. The appellants commenced this action on November 4, 2015.

The respondents moved for summary judgment on the basis that the action was barred by s. 4 of the Limitations Act, 2002, because the appellants’ action was commenced more than two years after they knew that the property they claimed was missing or damaged. The motion was granted and the appellants have brought this appeal.

Issues:

(1) Did the motion judge err in dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002?

Holding:  Appeal dismissed.

Reasoning:

(1) No. The appellants submit that the motion judge erred by saying that the plaintiffs knew when they began the action that the defendants no longer had any of the seized property in their possession. They pleaded that they were aware that the order of June 27, 2012 could not actually be enforced.

The court held that the motion judge’s response was correct. When the appellants commenced their action on November 4, 2015, they already knew that all remaining property in the hands of the respondents had been forfeited to the Crown. Therefore, the motion judge reasoned that the true and actual object of the action could not have been to enforce the order for the return of the goods. Instead, she reasoned that the appellants started their action to claim for a new court order for monetary damages based on allegations of neglect or refusal to the return goods.

The Court agreed with the motion judge’s characterization of the appellants’ action and with her conclusion that it falls outside the scope of s. 16 (1) (b) of the Limitations Act, 2002.

Samra v. 7544405 Canada Inc., 2017 ONCA 953

[Watt, Pepall and Miller JJ.A.]

Counsel:
S Kemdirim, acting in person
MV Peters, for the respondent

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Facts:
Ms. Kemdirim and 7544405 Canada Inc. (“Kemdirim and 7544405”) seek to review the order of Roberts J.A. refusing to extend the time to file their earlier motion to review and set aside the July 20, 2016 order of Laforme J.A., and to grant a stay of his order and the summary judgment granted by Warkentin J. on March 14, 2016.

The genesis of these proceedings is the default of Kemdirim and 7544405 under two mortgages placed on several properties. George Samra obtained summary judgment against Kemdirim and 7544405 due to their default under the mortgages. He was also awarded costs fixed at $17,000. Kemdirim and 7544405 appealed. Samra moved, before Laforme J.A. for an order for security for costs, which was granted. Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an order to extend the time within which they could serve and file a motion to review the order of Laforme J.A., a stay of that order, and a stay of the summary judgment. Roberts J.A. granted an extension of time to post security and dismissed the remainder of the motion.

Issues:

(1) Should the order of Roberts J.A be reviewed?

Holding: Motion dismissed.

Reasoning:

(1) No. Kemdirim and 7544405 admit default under the mortgages, although they query the precise amounts of the default. The evidence before the judge on the motion for summary judgment revealed no genuine issue requiring a trial. Laforme J.A ordered security for costs because he was of the view that the appeal was without merit and that Kemdirim and 7544405, already in default under the mortgages, lacked the means to pay the costs of an unsuccessful appeal. Roberts J.A., whose order refusing an extension of time Kemdirim and 7544405 ask the court to review, dismissed the motion on two grounds. The first, echoing what the first chambers judge said, was that the appeal was wholly without merit, thus frivolous and vexatious. The second was that the justice of the case did not warrant the order sought. Therefore the motion was dismissed.

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:
K Alexander and K Stone, for the appellant
S D McAleese and K L Meehan, for the respondents

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Facts:
On July 24, 2007 the appellant (Nufrio) received notice of fundamental changes to his employment contract with the respondents (Allstate Insurance). He was given working notice up to September 1, 2009. He accepted the notice.

In October 2008, the respondents sought to impose immediate changes to the employment relationship by requiring the appellant to close his neighbourhood office and move to an Allstate operated office by November 1, 2008. The appellant refused, insisting on operating under the previous agreements during the notice period. These agreements were the Allstate Agent Compensation Agreement (the 830 agreement) and the Neighbourhood Office Agent Amendment (the NOA). His refusal led to his termination for cause on November 6, 2008.

The trial judge found that the appellant was properly terminated for cause on November 6, 2008. In her view, the respondents had the right to impose the new terms of employment, since the appellant had been given reasonable notice of the changes.

Issues:

(1) Did the trial judge err by not addressing the question of whether the change in location, including the change to the business model under the NOA, could be made unilaterally by the respondents during the working notice period?

Holding: Appeal allowed in part.

Reasons:

(1) Yes. The proposed relocation was more than a geographic relocation of the appellant’s office. It was a fundamental change to the business model that had been agreed to under the NOA. The appellant was entitled to continue to operate in accordance with the 830 agreement and the NOA during the period of working notice to September 1, 2009, as had been set out in the respondent’s July 2007 letter. The NOA precluded the respondents from unilaterally imposing the changes during the period of working notice.

Li v. Li, 2017 ONCA 942

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Shawna Sosnovich and Christopher Statham, for the appellant

  1. David Marks, Q.C. and Corey Bergstein, for the respondents

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Facts:

This is an appeal from the dismissal of a motion for summary judgment brought by the appellants, Yao Chao Li (defendants to the action). The appellant had sought to end an action on the basis of a previously dismissed lawsuit brought by the respondent, Yao Wei Li, against the appellant in India relating to the same cause of action.

The appellant invoked the doctrines of res judicata and abuse of process in aid of the summary judgment motion, but relied primarily on a provision of the Indian Civil Procedure Code, Order 23, Rule 1(4), that provides a substantive right to prevent attempts at re-litigating claims that are dismissed as abandoned, without the leave of an Indian court. The parties agreed that this Indian law applied, and that leave had not been obtained in this case.

The motion judge denied the motion, disposing of the res judicata and abuse of process defences and ordering that the matter be re-listed for trial. The key factor in each of the motion judge’s rulings was that the respondent had never been served in the Indian action, and no disposition had ever been made on the merits of the respondent’s claim.

Issues:

(1) Did the motion judge err in denying the motion for summary judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellant has not demonstrated that the motion judge erred in his treatment of Order 23, Rule 1(4) of the Indian Civil Procedure Code. The onus was on the appellant to establish the foreign rule of law it sought to rely upon. The motion judge accepted the respondent’s expert’s interpretation of an Indian decision, Dalmia Cement (Bharat) v Uthandi alias Peria Uthandi AIR 2005 MAD 457, holding that Order 23, Rule 1(4) does not operate where a suit is “dismissed as not pressed” before the opposing party has been served. In the absence of evidence establishing the meaning of the term “dismissed as not pressed”, the motion judge was not persuaded that the respondent’s suit would be caught by the rule, given that the appellant had never been served.

The court held that there was no basis for finding that the motion judge erred in not applying the doctrines of res judicata or abuse of process. As stated, the Indian lawsuit terminated without the appellant ever having been served with the action. The motion judge made no error in finding that the Ontario suit would not involve re-litigation, or an abuse of Ontario’s civil processes.

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:
JA Keefe, B Halfin, and J-R Cohen, for the Appellant
DW Glaholt and MA Valo, for the Respondent

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Facts:
Arbitration arose out of a project for the construction of a slurry pipeline from a nickel mine in Madagascar. The Appellant, Consolidated Contractors, was the contractor and the Respondent, Ambatovy Minerals, tendered the project. The contract for the project contained a three stage dispute resolution process.  A party who did not accept the second stage of internal adjudication could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (ICAA), which incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the “Model Law”). In that event, the arbitration was to take place in Ontario, in accordance with Ontario law. The contract provided that the arbitration procedure was to be governed by the International Chamber of Commerce (“ICC”) Rules of Arbitration.

The Appellant claimed that the Respondent had breached the contract, causing delays and additional costs. It claimed: an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work it claimed to have performed. The Respondent suggested that the dispute go directly to arbitration, by-passing adjudication, and the Appellant agreed. The Respondent defended the Appellant’s claims and asserted a counterclaim for liquidated damages due to the Appellant’s failure to complete the project on time. It also counterclaimed for additional costs caused by the Appellant’s failure to properly complete its work. The Appellant agreed that the Respondent’s claim for liquidated damages could proceed directly to arbitration, but argued against the inclusion of the other counterclaims, which were ultimately included. The Tribunal issued its final award, it awarded the Appellant $7 million of its $91 million claim, and the Respondent $25 million for its counterclaims. At the Superior Court, the Appellant challenged the Tribunal’s award in four respects: (a) the Tribunal had no jurisdiction to deal with some of the Respondent’s counterclaims; (b) the Tribunal failed to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent; (c) the Tribunal denied the Appellant procedural fairness in its disposition of two claims and its award of costs; and (d) part of the Award was made in breach of Ontario public policy. The Application Judge dismissed the challenge, and the Appellant appealed.

Issues:

  • Did the Tribunal have jurisdiction to deal with the counterclaims?
  • Did the Tribunal err in failing to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent?
  • Did the Tribunal deny the Appellant procedural fairness in respect of:
  • Its ruling on retention monies;
  • Its ruling on Hydro Seeding work done; and
  • Its cost award to the Respondent?
  • Did the Tribunal’s award offend Ontario public policy?

Holding: Appeal dismissed.

Reasoning:

Prior to exploring the issues, the Court of Appeal undertook a review of judicial intervention under the Model Law. In Ontario, the Model Law has been given force of law by the ICAA. Article 5 of the Model Law states “In matters governed by this Law, no court shall intervene except where so provided in this Law.” Article 34 identifies the circumstances under which an international commercial arbitral award can be set aside by a domestic court. These grounds are narrow. They are: (a) incapacity of a party or legal invalidity of the agreement; Page: 7 (b) absence of notice or an opportunity to present the party’s case (i.e. procedural unfairness); (c) absence of jurisdiction; (d) non-compliance with the arbitration agreement concerning the tribunal’s composition or procedure; (e) non-arbitrability of the dispute; and (f) a conflict between the award and domestic public policy.   The standard to be applied by a reviewing court depends on the specific Model Law grounds on which the appeal is based.

  • Pursuant to Article 34(2)(a)(iii), the standard of review for questions of jurisdiction is correctness.

The Respondent’s counterclaims were fully pleaded and defended in the arbitration. Evidence was adduced by both parties on the substance of the claims. It was left to the Tribunal to determine whether it had jurisdiction to address them and it determined that it did. The Tribunal found that “the parties to a complex construction contract may be presumed, when making it, to agree that any disputes that may arise will be resolved in an efficient manner.” This intention was reflected, it said, in the parties’ agreement that the Appellant’s claims could go directly to arbitration, by-passing adjudication. It concluded that the parties’ agreement reflected a common intention that disputes would be dealt with at the same time by the same tribunal when there was “sufficient connection” between the disputes to enable them to be dealt with efficiently. This applied to the Respondent’s counterclaims.

The Appellant argued that it is immaterial that the issues were fully pleaded before the Tribunal, it argued that the Tribunal’s jurisdiction is purely consensual and that the parties never consented to the counterclaims being arbitrated. The Court of Appeal rejected this submission. Article 34(2)(a)(iii) requires the court to consider whether the award deals with a “dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration”. To answer this question, the Court must consider the contractual provisions with respect to arbitration, the submission to arbitration, the agreed terms of reference of the arbitrators and the arbitral award. The terms of the contract conferred jurisdiction on the Tribunal to decide questions of fact and law necessary to determine the issues and to rule on the parties’ requests for relief. The Tribunal found that “a claim that was so connected to a claim of the other party that it should be decided at the same time” could proceed to arbitration without passing through the contractual dispute resolution process. The Respondent’s counterclaims were clearly the proper subject of arbitration under the contract. The only question was when they would be arbitrated. It was open to the Tribunal to find that the pre-arbitration dispute resolution process did not apply to claims of one party that were closely connected to the claims already submitted to arbitration by the other party. This is not to say that every dispute submitted to arbitration will necessarily draw in counterclaims. It will depend, as in this case, on the contractual intention of the parties as determined by all the surrounding circumstances. Nor will it permit a party initiating an arbitration to completely ignore pre-arbitration dispute resolution requirements.

  • The Appellant sought a 36-day extension of time and US$482,480 for costs allegedly due to delays caused by the Respondent’s failure to deliver materials and to complete work required to enable the Appellant to complete its own work on the pipeline. The Tribunal granted an 18-day extension, resulting in a corresponding reduction of the Respondent’s claim for liquidated damages. But it did not specifically address the Appellant’s claim for damages caused by the delay. It gave no reasons for dismissing the Appellant’s claim under this head.  As per Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608, at p. 621 (Gen. Div.)  “The failure to give reasons, although less helpful to the parties, is not on its own a ground for refusing to enforce an award.” There is nothing in the Model Law that requires the Tribunal to give reasons, although it is unquestionably desirable that it do so. The Court of Appeal therefore dismissed this ground of appeal.
  • Article 34(2)(a)(ii) permits a challenge to an arbitral award based on procedural unfairness where a party has not received proper notice of the proceedings “or was otherwise unable to present his case.” Pursuant to Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), to justify setting aside an award for reasons of fairness or natural justice, the conduct of the Tribunal “must be sufficiently serious to offend our most basic notions of morality and justice”  and “judicial intervention for alleged violations of the due process requirements of the Model Law will be warranted only when the Tribunal’s conduct is so serious that it cannot be condoned under the law of the enforcing State.”

The Appellant submitted that it was denied procedural fairness in relation to 3 claims: (a) Retention Monies; (b) Hydro-Seeding; and (c) Costs.

  • Under the project contract, the Respondent made regular progress payments to the Appellant as construction proceeded. The Respondent was contractually entitled to retain 5% of the amount of each of these interim progress payments (the “Retention Monies”). The first half of the Retention Monies was to be paid out by the Respondent’s engineer when a “Taking-Over Certificate” was issued for the works. The remaining half was to be released on the expiry of the “Defects Notification Period.” With respect to the first half of the retention monies, the Tribunal found that the Engineer had acted reasonably in not releasing those monies, given the extent of the Appellant’s defective work. Additionally, the Tribunal found that the expiry of the Defects Notification Period (which triggered the payment of the second half of the retention monies) should be extended, because the Appellant had failed to properly perform the contract.

The Respondent’s counterclaims formed the basis of the Tribunal’s conclusion that the Appellant had legal and financial responsibility for its defective work, and the contract permitted the withholding of the retention monies until the defects were remedied. The Appellant asserted that the Tribunal breached its own procedural order and denied the Appellant procedural fairness by disposing of its claims based solely on the Respondent’s reply submissions, to which it had no opportunity to reply. The Court of Appeal rejected this submission; the issue of the Retention Monies was bound up In the Appellant’s liability for the Respondent’s counterclaims and the ability of the Respondent’s engineer to refuse payment of the Retention Monies when there were unsatisfied defect claims. The Tribunal relied on a contractual term that permitted the Respondent to withhold the Retention Monies until the Appellant cured the defects in its work. The Appellant was aware of this provision and addressed it in its submissions to the Tribunal. The Appellant was therefore not prevented from presenting its case on this issue and therefore not denied procedural fairness.

  • This was a claim by the Respondent for US$7.64 million for the cost of “redoing” defective restoration work (topsoil and seeding) over the completed pipeline. The contract required the Respondent to give notice of its complaint to the Appellant and give it an opportunity to remedy the defective work. The Appellant argued before the Tribunal that the Respondent was not entitled to assert this claim because it had gone ahead and performed the work without giving the Appellant proper notice and an opportunity to correct the problem. The Tribunal found otherwise. It found that although the Respondent had not observed the “contractual niceties”, the evidence established that the Appellant had accepted and almost acquiesced in the Respondent’s use of another contractor to redo the Appellant’s work.

Before the Application Judge and in the Court of Appeal, the Appellant claimed that in resolving this issue against it, the Tribunal developed its own “novel theory” of constructive notice and denied procedural fairness by failing to give notice of that theory and an opportunity to respond to it. The Application Judge rejection this submission and found that this was a complaint about arbitral fact-finding, under the guise of a procedural fairness argument. The Court of Appeal agreed with the Application Judge’s reasons.

  • Although success was somewhat divided, the Tribunal concluded that the Respondent should be regarded as the successful party and was entitled to recover the costs of the arbitration. Pursuant to The ICC Rules of Arbitration, the Tribunal has discretion with respect to costs. Article 37(5) of those Rules (now Article 38(5)) states that “in making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.” While it is true that the Tribunal initially noted the parties’ proposal that costs should be proportionate, it concluded that the Appellant had succeeded on only four claims, only two of which required evidence. The Respondent, on the other hand, had succeeded in defeating all the Appellant’s main claims and also succeeded on its counterclaims. Thus the Appellant was not denied procedural fairness on this issue.
  • The Appellant claimed that a portion of the Tribunal’s award offended public policy because it was a penalty. The court may set aside an arbitral award under Article 34(2)(b)(ii) if it is in conflict with the public policy of the state. The leading case under this provision is Schreter, which states that “The concept of imposing our public policy on foreign awards is to guard against enforcement of an award which offends our local principles of justice and fairness in a fundamental way, and in a way which the parties could attribute to the fact that the award was made in another jurisdiction where the procedural or substantive rules diverge markedly from our own, or where there was ignorance or corruption on the part of the tribunal which could not be seen to be tolerated or condoned by our courts.” The Tribunal’s award does not come close to meeting this test, and accordingly, this ground of appeal was rejected.

Criminal & Ontario Board Decisions and Short Endorsements:

GM Textiles v. Sidhu, 2017 ONCA 969

[Hoy A.C.J.O., Doherty and Feldman JJ.A.]

Counsel:
Lockyer, for the appellant
S. Zucker and M. L. Somo, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Rules of Civil Procedure, r. 60.11(8)

R v. Esseghaier, 2017 ONCA 970

[Watt J.A. (In Chambers)]

Counsel:
MacKinnon, for the moving party, Canadian Broadcasting Corporation
E. Dann, amicus curiae in relation to the responding party, Chiheb Esseghaier, and agent for responding party, Raed Jaser
Nicholas Devlin, for the responding party, Attorney General of Canada

Keywords: Criminal Law, Endorsement, Sealing Orders, “Open Court” Principle, Canadian Charter of Rights and Freedom, Section 2(b), Freedom of Expression, Dagenais/Mentuck Test

R v. G.H., 2017 ONCA 965

[Watt, Epstein and Brown JJ.A.]

Counsel:
Moustacalis, for the Appellant G.H.
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Burden of Proof, Reasons for Decision

Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., 2017 ONCA 955

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Sabharwal, for the appellant
No one appearing for the respondent

Keywords: Endorsement, Appeal Abandoned

Hussain v. Royal Bank of Canada, 2017 ONCA 956

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Hussain, in person
A. Jackson, for the respondent

Keywords: Endorsement, Debtor-Creditor, Summary Judgment

R v. Damassia, 2017 ONCA 954

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Halfyard and B. Vandebeek, for the appellant
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Canadian Charter of Rights and Freedom, Section 10(b), Evidence, Credibility

R v. Enotie, 2017 ONCA 966

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Arbogast, for the appellant
K. Rawluk, for the respondent

Keywords: Criminal Law, Carjacking, Similar Fact Evidence, Jury Instructions

R v. Pettipas-Lizak, 2017 ONCA 963

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Hotke, for the appellant
N. Gorham, for the respondent

Keywords: Criminal Law, Firearms Offences, Directed Verdict, Circumstantial Evidence, Credibility

Ohenhen (Re) v. C60572, 2017 ONCA 960

[Strathy, C.J.O., Doherty and Roberts JJ.A.]

Counsel:
Szigeti and J. R. Presser, for the appellant
A. Alyea, for the respondent, the Attorney General of Ontario
M. Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Canadian Charter of Rights and Freedoms, Section 24(1), Charter Remedies, Not Criminally Responsible

R v. Mayrhofer-Lima, 2017 ONCA 949

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
M. Garg, for the appellant
P. B. Norton, for the respondent

Keywords: Criminal Law, Summary Conviction, Canadian Charter of Rights and Freedoms, s.10

R v. Moore, 2017 ONCA 940

[Strathy C.J.O., Doherty and Trotter JJ.A.]

Counsel:
Hicks and J. Zita, for the appellant
K. Papadopoulos, for the respondent

Keywords: Criminal Law, Vetrovec warning, R v. W.(D.). [1991] 1 S.C.R. 742, Jury Instructions, Evidence, Re-Examination, Sentencing

Vethanantham (Re), 2017 ONCA 941

[Simmons, van Rensburg and Nordheimer JJ.A.]

Counsel:
Fernandes, for Anton Vethanantham
M. Fawcett, for the Attorney General of Ontario
B. Walker-Renshaw, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Conditional Discharge

King (Re), 2017 ONCA 945

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Davies, for the appellant
D. Bonnet, for the Attorney General of Ontario
J. Dagher, for the Person in Charge of the Brockville Mental Health Centre

Keywords: Endorsement, Ontario Review Board, Conditional Discharge

R v. Boachie, 2017 ONCA 944

[Laskin and Pepall JJ.A. and Gans J. (ad hoc)]

Counsel:
Zegers, for the appellant
H. Amarshi, for the Respondent

Keywords: Endorsement, Criminal Law

R v. Chen, 2017 ONCA 946

[Simmons, van Rensburg and Brown JJ.A.]

Counsel:
Chozik and C. Pakosh, for the appellant
K. Wilson and K. Gill, for the Respondent

Keywords: Criminal Law, Immigration Law, Marijuana Growth Operation, Conspiracy, Fresh Evidence, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Conflict of Interest, Sentencing

R c. Fawaz, 2017 ONCA 943

[Les Juges Rouleau, Benotto et Roberts]

Counsel:
Mainville, acovate de service
R. Visca, pour L’intimée

Keywords: Endorsement, Criminal Law, Adjournment

JVJ Consulting Inc. v. Barnell, 2017 ONCA 937

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Barnwell, for the appellant
R. Gosbee, for the respondent

Keywords: Endorsement, Adjournment

R v. Bridgman, 2017 ONCA 940

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:
Furgiuele and C. Barbisan, for the appellant
B. G. Puddington, for the respondent

Keywords: Criminal Law, Possession, Evidence, Admissions, Text Messages, Hearsay, Reliability, Necessity, Original Circumstantial Evidence, Jury Instructions

R v. Christiansen, 2017 ONCA 941

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
Wilkinson, for the appellant
J.D. Sutton and C. Reccord, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Trafficking, Controlled Drugs and Substances Act, Section 11, General Warrants, Jury Instructions