COURT OF APPEAL SUMMARIES (AUGUST 7 – 10)

Good afternoon.

There was only one case released by the Ontario Court of Appeal this week, Zando v Ali. At issue was the assessment of damages in a case of sexual assault by a physician. The appellant asserted that the trial judge had erred in establishing a range for damages for non-pecuniary damages, and erred in basing her award of punitive damages on the fact that the appellant had not been charged criminally.

The Court adopted the Nova Scotia Court of Appeal’s framework for determining damages in a civil sexual battery or assault case in Nova Scotia (Attorney General) v B.M.G. per Comwell J.A. (as he then was), and found that the trial judge had correctly established the range of damages and assessed the damages within that range.

With respect to the punitive damages award, the Court found that the trial judge’s decision to award punitive damages was based on the fact that the appellant’s conduct was morally reprehensible and should be punished and denounced, and on the fact that the appellant was not charged criminally (not solely on the fact that the appellant had not been charged criminally). The court confirmed that the fact that the appellant had not been punished criminally was a relevant factor for the trial judge to consider in her analysis.

Have a great weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

Zando v. Ali, 2018 ONCA 680

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

John Adair, for the appellant

Amandeep S Dhillon, for the respondent

Keywords: Torts, Sexual Assault, Battery, Assessment of Damages, Non-pecuniary Damages, Punitive Damages

Facts:

This is an appeal from an assessment of damages for sexual assault in a judge-alone trial.

The appellant, Dr. A, and the respondent, Dr. Z, are physicians who were friends and colleagues at the Sarnia General Hospital (the “Hospital”). Dr. Z commenced an action in December 2001 for damages against Dr. A, two other physicians, and the Hospital. Specifically, Dr. Z alleged that Dr. A had sexually assaulted her at her home on June 22, 1999, causing her to react negatively towards him in their shared workplace. Dr. Z also alleged that, as a result of her reaction to the assault, Dr. A instigated a campaign of harassment and discrimination at the Hospital in which the two other physicians participated. Shortly before trial, Dr. Z settled her claims against the two other physicians and the Hospital. Consequently, Dr. Z amended her statement of claim to remove all claims against the settling defendants and Dr. A, except for those relating to sexual assault.

The trial judge concluded that Dr. Z was sexually assaulted by Dr. A. Accordingly, the trial judge awarded damages as particularized as follows: general damages of $175,000, punitive damages of $25,000, pre-judgment interest of $155, 773.97, and costs of $325,000.

On appeal, Dr. A submitted that the trial judge made two (2) errors in principle with respect to non-pecuniary damages. Namely, he submitted that:

  • the range of damages selected by the trial judge (said by Dr. A to be between $144,000 and $290,000 for all cases of sexual assault) was unsuitable as it applied to cases of severe sexual assault involving repeated abuse and breaches of trust, which was not comparable to the present case; and
  • the trial judge failed to apportion responsibility for Dr. Z’s psychological injuries between Dr. A and the settling defendants, and instead attributed all such injuries to the sexual assault.

With respect to punitive damages, Dr. A submitted that the trial judge failed to analyze whether the non-pecuniary damages awarded for the sexual assault were sufficient to accomplish the goals of denunciation, deterrence and punishment. Moreover, Dr. A asserted that the trial judge erroneously assumed that punitive damages were required because he had not been charged criminally.

Issues:

(1) Did the trial judge err in assessing non-pecuniary damages?

(2) Did the trial judge err in awarding punitive damages?

Held: Appeal dismissed.

Reasoning:

(1) No. The court held that there was no reversible error in the trial judge’s determination of the non-pecuniary damages in this case.

With respect to the trial judge’s determination of the range of non-pecuniary damages, the court adopted the Nova Scotia Court of Appeal’s framework for determining damages in a civil sexual battery or assault case in Nova Scotia (Attorney General) v B.M.G. per Comwell J.A. (as he then was), and found that the trial judge correctly referred to the factors for assessing non-pecuniary damages for sexual assault as set out in Blackwater v. Plint, 2005 SCC 58. Furthermore, before making a determination, the trial judge considered the specific features of the assault in addition to the parties’ written submissions as to the damages that would be appropriate in the case at hand. Thus, in assessing the severity of the sexual assault, the court held that it was open to the trial judge to adopt the range that she did.

Regarding the alleged failure to apportion liability among Dr. A and the settling defendants,  the court found that the trial judge was aware of the fact Dr. Z had reached a settlement with the other defendants for her alleged harassment by them. However, the trial judge rejected the argument that Dr. Z’s psychological injuries were caused by the alleged harassment that was not before her. Instead, the focus of the trial judge was to determine damages for the sexual assault.

(2) No. Punitive damages are awarded when a defendant’s misconduct is so outrageous that such damages are rationally required to act as a deterrent. The court found that the trial judge’s decision to award punitive damages was based on the fact that Dr. A’s conduct in sexually assaulting Dr. Z was morally reprehensible and should be punished and denounced, and that Dr. A had not been punished criminally. The court held that the fact that Dr. A had not been punished criminally was a relevant factor to satisfy the court of the need for such damages as deterrence. However, it was not the reason that punitive damages were awarded.

Advertisements

COURT OF APPEAL SUMMARIES (JULY 30-AUGUST 3)

COURT OF APPEAL SUMMARIES (JULY 30-AUGUST 3)

Good afternoon.

There were only three substantive civil decisions released by the Ontario Court of Appeal this week.

In Ontario Medical Association v. Ontario (Information and Privacy Commissioner), the Toronto Star requested access to information from the Ministry of Health and Long-Term Care pursuant to the Freedom of Information and Protection of Privacy Act.  The newspaper wanted to know the names of the top 100 physician billers to OHIP and their area of specialty. The OMA resisted the request on the basis that the names of the doctors was “personal information”. The court upheld the Privacy Commissioner’s decision to release the information, finding it not to be “personal information”. In doing so, the court confirmed that administrative tribunals are not bound by stare decisis.

In a 2-1 decision in Janicek v Janicek (van Rensburg dissenting), the court upheld the application judge’s interpretation of a will that left it to the estate trustees to determine to whom a farm property should be sold.

In 58 Cardill Inc v Rathcliffe Holdings Limited, the court upheld the trial judge’s interpretation of a three-month interest prepayment provision in a mortgage that was enforced through a receiver. The mortgagee was not entitled to the three months’ interest.

There were also several criminal law decisions.

Please enjoy the long weekend.

 

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

Table of Contents

Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673

Keywords: Administrative Law, Stare Decisis, Privacy Law, Freedom of Information, Personal Information, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss 2, 21, Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8

Janicek v Janicek, 2018 ONCA 679

Keywords: Wills and Estates, Wills, Interpretation

58 Cardill Inc v Rathcliffe Holdings Limited, 2018 ONCA 672

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Interpretation, Early Repayment, Three Months’ Interest, Receiverships, Agency, Peat Marwick Ltd v Consumers’ Gas Co (1980), 29 OR (2d) 336, Sperry Inc v Canadian Imperial Bank of Commerce (1985), 50 OR (2d) 267

For criminal  decisions click here

Civil Decisions

Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673

[Hoy A.C.J.O., Rouleau and Benotto J.J.A.]

Counsel:

Joseph Colango and Jennifer Gold, for the Ontario Medical Association

Chris Dockrill, for Several Physicians Affected Directly By the Order

Linda Galessiere, for Affected Third Party Doctors

Paul Shabas, Iris Fischer and Skye Sepp, for T. B.

William Challis, for the Information and Privacy Commission of Ontario

Keywords: Administrative Law, Stare Decisis, Privacy Law, Freedom of Information, Personal Information, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss 2, 21, Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8

Facts:

A reporter for the Toronto Star requested access to information from the Ministry of Health and Long-Term Care (the “Ministry”) pursuant to the Freedom of Information and Protection of Privacy Act (the “Act”). She sought access to the names of the top 100 physician billers to the Ontario Health Insurance Program (“OHIP”) for the 2008 to 2012 fiscal years and a breakdown of the physicians’ medical specialties and the dollar amounts billed. An adjudicator assigned by the Information and Privacy Commissioner directed the Ministry to disclose the physicians’ names, the amounts billed and the physicians’ fields of specialization. The Ontario Medical Association and two groups of physicians appealed, arguing that a physician’s name is “personal information” and thereby exempt from disclosure by s. 21(1) of the Act.

In analyzing whether the records at issue constituted personal information, the Adjudicator applied the two-step test set out in Order PO-2225; Ontario (Rental Housing Tribunal): (1) In what context do the names of the individuals appear? (2) Is there something about the particular information at issue and, if disclosed, would reveal something of a personal nature about the individual?

At the first step, the Adjudicator determined that the context was the provision of medical services and that this was a professional activity because the submitting of bills to OHIP, and receiving payment, occurred in a context removed from the personal sphere. At the second step, the Adjudicator concluded that the information did not reveal something of a personal nature about the physicians. The payments were received in relation to a business and the amounts billed do not reflect actual personal income.

The appellants submit that the Adjudicator’s application of the test was unreasonable because: (i) he departed from long-standing IPCO decisions concluding that physicians’ names are personal information and therefore did not apply stare decisis; (ii) he failed to consider a report prepared for the Minister of Health and Long-Term Care (the “Cory Report”), which resulted in amendments to the Health Insurance Act; (iii) he failed to consider Charter values; and (iv) the presumption of prejudice in s. 21(3) of the Act makes it clear that disclosure of a name in conjunction with an individual’s finances is prohibited.

Issues:

Did the Adjudicator err in determining that the requested information did not constitute “personal information” within the meaning of s. 2(1) of the Act?

Holding: Appeal dismissed.

Reasoning:

No. Tribunals are not bound by stare decisis. The Adjudicator did not ignore the previous IPCO decisions but observed that there was a split and addressed this dichotomy. With respect to the Cory Report argument, this was put forth for the first time on appeal. It was not provided to the Adjudicator, nor argued before him. Regardless, it did not assist with the determination of the appeal. With respect to the Charter values argument, when it comes to interpreting a statute, Charter values are only considered in circumstances of “genuine ambiguity”. The Act is far from ambiguous and builds into it the balancing of access to information against the protection of privacy. The Court of Appeal dismissed the appellants’ last argument stating that billing information is not personal information as per s. 2(1) and it does not describe an individual’s finances or income.

Janicek v Janicek, 2018 ONCA 679

[Hoy ACJO, van Rensburg and Pardu JJA]

Counsel:

JD Skinner, for the appellant

G Charlton, for the respondents

Keywords: Wills and Estates, Wills, Interpretation

Facts:

The trustees of the estate of the testatrix brought an application for advice and directions with respect to the construction of her will dated August 12, 2011.

In para. 4(d) of her will, the testatrix directed that her Trustee obtain an appraisal as to the fair market value of the farm known as the “Home Farm” as at the date of her death, as soon as possible after the date of her death. The paragraph further provides that:

It is my wish that this home farm be kept within the Janicek family if possible. In accordance with that wish if any of my children, or a combination of the same, shall wish to purchase the said farm, they may do so at 75% of the appraised fair market value provided that they enter into an Agreement of Purchase and Sale with my Trustee within one year from my date of death with a closing date no longer than 60 days from the date of the Agreement of Purchase and Sale. In the event that none of my children, or combination of same, have agreed to purchase the said farm, within the prescribed time, the same shall be sold by my Trustee at a price to be determined by my Trustee in his sole and unfettered discretion. 

Paragraph 4(d) further provides that the proceeds are to be distributed to the children in the unequal shares set out in para. 4(d).

As of the first anniversary of the testatrix’s death, the trustees had received competing offers from four children to purchase the farm for 75% of its appraised value. The trustees and AJ had been willing to offer the purchase the farm in combination with the appellant, JJ, but the appellant wished to purchase the farm on his own. In the end, each of the four children submitted individual offers. The appellant is the only one of the children who farms full time for a living and had remained farming on the property since the death of the testatrix.

Because they were uncertain as to which offer to accept, the trustees did not conclude an Agreement of Purchase and Sale with any of the children within one year of the testatrix’s death and brought an application for advice and directions regarding the sale of the farm and for an order for vacant possession of the portion of the farm previously leased to the appellant.

The application judge found that the testatrix’s intention as to what should occur if there were competing offers from the children made within the prescribed time could not be ascertained. He ordered that the trustees are at liberty to sell the farm “to whomever they choose and at a price they determine, in their sole and unfettered discretion”. The application judge further ordered that the proceeds should be distributed among the children in unequal shares, as provided for in para. 4(d) of the will.  Finally, he ordered that the appellant was required to deliver vacant possession to the trustees.

The appellant appealed on three grounds.

Issues:

(1) Did the application judge err in finding that the trustees, AJ, and the appellant JJ had not concluded an agreement to purchase the farm together at 75 per cent of the appraised price in the form of the “Memorandum of Understanding” (“MOU”) signed after the proceedings were commenced?

(2) Did the application judge err in not finding that the trustees had acted unreasonably and therefore the appellant should be allowed to buy the farm?

(3) Did the application judge err in making the order in the face of frustration by the trustees of the sale to the appellant?

Holding: Appeal dismissed.

Reasoning (Majority):

(1) No. It is not clear that the appellant sought an order before the application judge requiring the sale of the farm in accordance with the MOU. In any event, the application judge essentially found that the MOU was an “agreement to agree” and that parties were unable to negotiate the remaining details of the MOU because the appellant reverted to his original position that he alone should be able to purchase and own the farm.

(2) No. The conduct of the appellant, and not that of the trustees, was the reason an agreement was not concluded.

(3) No. The appellant did not assert a claim that the trustees had breached their fiduciary duty for the alleged frustration. In any event, on this record, the majority was not persuaded that the trustees consulted with the other children for the purpose of frustrating the appellant’s objective of purchasing the farm. The will expressly contemplates that a combination of children may purchase the farm and does not give preference to the appellant.  It was reasonable and appropriate for the trustees to consult with the other children and not simply invite the appellant to submit an offer that complied with the will and conclude an agreement of purchase and sale with him.

Dissent (van Rensburg J):

(1) No. Agreed with majority.

(2) No. Agreed with majority.

(3) Yes. There are two fundamental problems with the application judge’s reasoning that van Rensburg J characterized as reversible errors.

The first is the application judge’s failure to address the appellant’s arguments and to resolve the question of whether the estate trustees attempted to frustrate the appellant’s purchase of the farm. The application judge did not give consideration to the appellant’s argument that the individual “competing offers” were advanced at the final hour only to frustrate his attempt to purchase the farm, and should not have been considered by the estate trustees, acting in accordance with their fiduciary duties. Instead, the application judge proceeded on the explicit assumption that there were competing offers that were validly made and in accordance with the will.

The second is that the application judge identified, but did not apply, the “armchair rule” (where the court considers indirect evidence relating to the surrounding circumstances at the time of execution of the will) to determine the testatrix’s intention if there were competing offers within a year of her death. It was important for the application judge to use the means at his disposal, including the evidence of surrounding circumstances, to attempt to give meaning to the first part of para. 4(d) of the will, before permitting the estate trustees to proceed with a sale in their discretion under the second part. This is especially the case given the wish of the testatrix for the farm to remain in the family.

There were other errors in the application judge’s recitation of the facts and analysis that, while not palpable and overriding, cast doubt on his disposition of the application:

– The application judge misidentified the competing offers as an offer by the appellant and an offer by the estate trustees and AJ jointly. There was no joint offer; the competition was between four individual offers.

– The application judge referred to a sale by the estate trustees at “a price to be determined by [them] in their sole and unfettered discretion” as a sale on the open market, and stated that it is only if a sale is “on the open market” that the proceeds would be shared in the percentages set out in para. 4(d). Para. 4(d) simply provides for the proceeds to be distributed to the children in the specified unequal shares; this provision would apply to any sale, whether or not at the discounted amount.

– It was an error for the application judge to decide the application based on an argument not raised by any party, that the first appraisal (for $1.3 million) was “invalid”. The estate trustees commissioned the first appraisal which valued the farm in December 2012, and not at the date of the testatrix’s death two months earlier. They obtained a second appraisal (for $1.7 million), not because of the incorrect date, but because they thought the first appraisal was too low, and they did not provide the second appraisal to the appellant until the one year had passed. There is nothing to suggest that the different appraisals depended on their effective dates two months apart. The estate trustees did not base their own offers on the second appraisal, and quite properly they did not argue on the application that the first appraisal was invalid.

58 Cardill Inc v Rathcliffe Holdings Limited, 2018 ONCA 672

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Robert Choi, for the appellant

Richard Worsfold, for the respondent

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Interpretation, Early Repayment, Three Months’ Interest, Receiverships, Agency, Peat Marwick Ltd v Consumers’ Gas Co (1980), 29 OR (2d) 336, Sperry Inc v Canadian Imperial Bank of Commerce (1985), 50 OR (2d) 267

Facts:

The appellant, Rathcliffe Holdings Limited (“Rathcliffe”), loaned money to the respondent, 58 Cardill Inc. (“Cardill”), secured by a mortgage on a development property (the “Mortgage”). Cardill defaulted on the loan. Rathcliffe appointed a receiver, who sold the property and paid part of the sale proceeds to Rathcliffe in full satisfaction of the debt, and included an extra three months’ interest on the outstanding principal due under the Mortgage.

Rathcliffe argued it was entitled to the three months’ interest pursuant to the following provision in the Mortgage: “The said Chargor covenants with the Chargee that in the event of non-payment of the principal amount at the time or times above provided in the mortgage then he shall not require the Chargee to accept payment of the said principal amount without first giving three months’ previous notice in writing, or paying a bonus equal to three months’ interest in advance on the said principal amount”. Following the payout of the Mortgage, Cardill was granted a declaration that Rathcliffe was not entitled to the three months’ interest and an order requiring Rathcliffe to pay the amount to Cardill. Rathcliffe appealed.

Issues:

Did the application judge err in interpreting the Three-Month Interest Provision?

Holding: Appeal dismissed.

Reasoning:

No, the application judge did not err in interpreting the Three-Month Interest Provision as one that is mortgagor-centric. The Court agreed with the application judge that the language of the Three-Month Interest Provision indicated that it is only when the Chargor seeks to require the Chargee to accept payment of the principal amount that the Chargor agrees either to pay the three months’ interest or give the three months’ notice. The application judge did not misunderstand the jurisprudence when he concluded that the receiver did not act as Cardill’s agent in paying out the Mortgage on the receiver’s sale. The general principle in similar situations is discussed in Peat Marwick Ltd v Consumers’ Gas Co (1980), 29 OR (2d) 336 at 344:

“[T]he receiver and manager […] is wearing two hats. When wearing one hat, he is the agent of the debtor company; when wearing the other, the agent of the debenture holder. In occupying the premises of the debtor and in carrying on the business, the receiver and manager acts as the agent of the debtor company. In realizing the security of the debenture holder […] he acts as the agent of the debenture holder, and thus is able to confer title on a purchaser free of encumbrance.”

The Court additionally upheld Sperry Inc v Canadian Imperial Bank of Commerce (1985) 50 OR (2d)  277: “It is only ‘in realizing’ that the receiver acts as the creditor’s agent – to give commercial efficacy to the security agreement […] so that title may be conferred on the purchaser free of encumbrance.” The receiver’s sale agreement with the third party purchaser required the conveyance of title to the purchaser free and clear of all encumbrances. To convert the charged asset, the receiver was required to discharge the Mortgage and had to pay Rathcliffe to complete the sale. The process of “realization” during which the receiver acted as Rathcliffe’s agent necessarily encompassed the discharge of the Mortgage by payment to the mortgagee.

The application judge did not err in his finding that the general principle set out in Peat Marwick was not displaced by the specific language of the Mortgage. He considered s. 5(1)(g) of the Mortgage, which described one of the powers of the receiver: “To execute and deliver to the purchaser of any part or parts of the charged lands, good and sufficient deeds for the same, the Receiver hereby being constituted the irrevocable attorney of the Chargor for the purpose of making such sale and executing such deed, and any such sale made as aforesaid shall be a perpetual bar both in law and equity against the Chargor, and all other persons claiming the said property […]”

The Court agreed with the application judge’s interpretation of that provision as one that “limits the appointment of the receiver as agent for the borrower to the specified purpose of ‘making such sale [of the Property] and executing such Deed [in relation thereto]’. This would not support the characterization of [the receiver] as agent for Cardill for the purpose of requesting pay-out of the Mortgage.”

Criminal Decisions

R v A.H., 2018 ONCA 677

[Feldman, Paciocco and Fairburn JJ.A]

Counsel:

Andrew Bigioni, for the appellant

Rebecca DeFilippis, for the respondent

Keywords: Criminal Law, Child Luring, Sentencing, Standard of Review, R. v Biniaris, R. v Feeney, [1997] 2 SCR 13, Criminal Code, ss 8, 172.1(1)(b)

R v Adamson, 2018 ONCA 678

[Watt, Brown & Huscroft JJ.A.]

Counsel:

Lance C. Beechener, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Attempted Murder, Jury Charges, Post-offence Conduct, R. v White, 2011 SCC 13, R. v Czibulka, 2011 ONCA 82

R v Lawrence, 2018 ONCA 676

[Benotto, Trotter and Paciocco JJ.A.]

Counsel:

Leston Everest Lawrence, acting in person

Erin Dann, appearing as duty counsel

Deborah Calderwood, for the respondent

Keywords: Criminal Law, Theft, Money Laundering, Breach of Trust by a Public Official, Restitution, Criminal Code, s 738(1)(a), R. v Castro, 2010 ONCA 718, R. v Wa, 2015 ONCA 117

R v Dell, 2018 ONCA 674

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

Brian A. Callender, for the appellant

John A. Neander, for the respondent

Keywords: Criminal Law, Child Pornography, Sentencing, Standard of Review, R. v Saikaley, 2017 ONCA 374, R. v M. (C.A.), [1996] 1 SCR 500

R v J.S., 2018 ONCA 675

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Roger A. Pinnock, for the respondent

Keywords: Criminal Law, Murder, Sentencing, Parole, Faint Hope Clause, Canadian Charter of Rights and Freedoms, ss 11(h) and 11(i), R. v Vaillancourt (1989), 49 CCC (3d) 544 (Ont. CA)

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 (JULY 23 – JULY 27, 2018)

Good afternoon.

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

In Gillham v. Lake of Bays (Township), a negligent construction case, the Court appears to have expanded the meaning of the “Appropriate Means” aspect of the discoverability test under section 5 of the Limitations Act, 2002. Up until now, the Court had interpreted “appropriate means” as “legally appropriate means” – if there is an alternative legal proceeding that can effectively determine the matter, the limitation period is suspended until the alternative legal proceeding runs its course. In this case, however, the Court appears to have interpreted “appropriate means” as permitting a plaintiff to take a “wait and see” approach before suing. It was not initially clear that there was anything more than trivial damage, and the plaintiff was entitled to “wait and see” by conducting further investigations to determine the extent of the damage before suing. This seems to conflate the issues of whether there is knowledge of damage with the issue of the appropriate means for seeking redress for that damage.

In 2212886 Ontario Inc. v. Obsidian Group Inc., a franchise rescission case, the Court set aside summary judgment granting the franchisee rescission damages of almost $1 million. While the motion judge properly identified the key factual issue, having found that the paper record was inadequate to resolve that issue because findings of credibility were required, the motion judge erred in deciding the credibility issue using the fact-finding powers under r. 20.04(2.1) without resorting to oral evidence. The Court confirmed that a motion judge’s discretion to use their fact-finding powers is entitled to deference, and reviewable on a standard of whether it would be contrary to the interests of justice to have used those powers. This seems analogous to the cases that look at whether there has been a denial of procedural or natural justice. If so, then the appeal is allowed and the normal standards of review (correctness or reasonableness/palpable and overriding error) are not applicable.

Other topics covered this week included mortgage enforcement, the enforcement of an indemnity under a commercial lease, jurisdiction and limitation periods in the labour law context, vexatious litigants, adjournments, settling orders, and extensions of time to appeal.

I hope everyone is enjoying the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

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

Table of Contents

Gillham v. Lake of Bays (Township), 2018 ONCA 667

Keywords: Breach of Contract, Construction, Negligence, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, s 5(1)(a)(iv),  Kudwah v Centennial Apartments, 2012 ONCA 777, 407 ETR Concession Company Limited v Day, 2016 ONCA 709, Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218

2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670

Keywords: Franchise Law, Rescission, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000 ss 6(2), Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Credibility, Fact-Finding Powers, Oral Evidence, Standard of Review, “Contrary to the Interests of Justice”, Hryniak v Mauldin, 2014 SCC 7, Baywood Homes Partnership v Haditaghi, 2014 ONCA 450, Choquette v Viczko, 2016 SKCA 52, Trotter Estate, 2014 ONCA 841, 1615540 Ontario Inc. (c.o.b. Healing Hands Massage Therapy Clinic) v Simon, 2016 ONCA 966, Rules of Civil Procedure, Rule 20.04(2.1), 20.04(2.2)

Carby-Samuels II v. Carby-Samuels, 2018 ONCA 664

Keywords: Civil Procedure, Vexatious Litigants, Summary Judgment, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43., s 140(3), Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931

Derakhshan v. Narula, 2018 ONCA 658

Keywords: Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, Rule 3.02

Romanko v. Aviva Canada Inc., 2018 ONCA 663

Keywords: Civil Procedure, Trials, Adjournments, Estrada v Estrada, 2016 ONCA 697

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 668

Keywords: Civil Procedure, Orders

Parc Downsview Park Inc. v. Penguin Properties Inc., 2018 ONCA 666

Keywords: Contracts, Real Property, Commercial Leases, Guarantees, Indemnities, Enforceability, Misrepresentation, Contractual Interpretation, Standard of Review, Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, Atos IT Solutions v Sapient Canada Inc, 2018 ONCA 374, Damages, Mitigation, Civil Procedure, Applications

1173928 Ontario Inc. v. 1463096 Ontario Inc., 2018 ONCA 669

Keywords: Real Property, Mortgages, Power of Sale, Notices of Sale, Conveyancing, Mortgages Act, RSO 1990, c M 40, s. 22 and 31, Conveyancing and Law of Property Act, RSO 1990, c C 34, s 41, Farrar v Farrars Ltd. (1888), 40 Ch D 395 (Eng C), Ostrander v. Niagara Helicopters Ltd. (1973), 1 O. (2d) 281 (HC), Commercial Leases, Commercial Tenancies Act, RSO 1990, c L7

United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671

Keywords: Employment Law, Labour Law, Civil Procedure, Jurisdiction, Limitation Periods, Representative Actions, Class Actions, Orders, Nunc Pro Tunc, Rules of Civil Procedure, Rules 10.01(f), 12.08, 21.01(1)(a), 21.01(1)(b), 21.01(3)(a), Weber v Ontario Hydro, [1995] 2 SCR 929, Ritchie v Canadian Airlines International Ltd (2001), 13 CPC (5th) 368, Logue Mechanical Services Ltd v UA, Local 787, [2016] OLRB Rep July/August 691, Class Proceedings Act, 2002, SO 1992 c 6,Canadian Imperial Bank of Commerce v Green, 2015 SCC 60, 1100997 Ontario Limited v North Elgin Centre Inc., 2016 ONCA 848, Lawrence v International Brotherhood of Electrical Workers, 2017 ONCA 321

For short civil decisions click here

For Ontario Review Board decisions click here

For criminal decisions click here

Civil Decisions

Gillham v. Lake of Bays (Township), 2018 ONCA 667

[Rouleau, Roberts and Fairburn JJ.A.]

Counsel:

David A Morin, for the appellants Stuart Zacharias, for the respondent, The Corporation of the Township of Lake of Bays

David Thompson, for the respondent, Royal Homes Limited

Keywords: Breach of Contract, Construction, Negligence, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, s 5(1)(a)(iv), Kudwah v Centennial Apartments, 2012 ONCA 777, 407 ETR Concession Company Limited v Day, 2016 ONCA 709, Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218

Facts:

The appellants’ action against the respondents arose out of alleged deficiencies in the construction of their prefabricated cottage. The appellants first noticed a problem with one of the deck piers in the summer of 2009. The appellants approached Royal Homes seeking warranty assistance. On Royal Homes’ recommendation, the appellants subsequently retained Trow Associates Inc., a structural engineering firm, to investigate. Trow did not suggest that the stone retaining wall was failing, nor that there were any construction issues with the stone retaining wall or the cottage foundation. JM, who built the retaining wall, told the appellants that they should just monitor the situation and “wait and see” if the stone retaining wall found its own level over the next year or two. As a result, the appellants took no further steps at that time.

The problems continued and the appellants retained Fowler Construction Company Ltd. to inspect the property in 2012. On July 30, 2012, Terraprobe delivered a report concluding that the stone retaining wall was failing and recommended that it be removed and reconstructed. When Fowler commenced the remedial work in 2013, it discovered that the cottage foundation and footings had also been constructed on loose soil.

The appellants commenced their action on October 21, 2013. The appellants alleged that the construction of the foundation of the cottage and the stone retaining wall was negligent because they were built on loose soil, which caused them to migrate down the slope of the property. The appellants pleaded that the Corporation of the Township of Lake of Bays was negligent in its oversight and approval of the construction of the cottage foundation and the stone retaining wall.

The respondents successfully moved for summary judgment of the appellants’ action against them on the basis that the applicable two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, (the “Act”), had expired. The motion judge concluded that the appellants knew or should have known in 2009 that there were some problems with the construction of their cottage, with or without the Trow report. The appellants appeal from the dismissal of their action.

Issue:

(1) Did the motion judge err by finding that the appellants’ claims were statute-barred because they were discoverable more than two years before the appellants issued their statement of claim?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge erred in his approach to the question of discoverability of the appellants’ claims and made palpable and overriding errors in his consideration of the evidence related to that question.

The motion judge was required to consider the provisions of s. 5(1) of the Act, in the light of the governing principles regarding discoverability. The overarching question in the discoverability analysis under s. 5 of the Act is whether the claimant knew or reasonably should have known, exercising reasonable diligence, the material facts stipulated under s. 5(1)(a) that give rise to a claim. Knowledge of the claim includes knowledge of the identity of a potential defendant, although it is not necessary for a claimant to know with certainty a potential defendant’s responsibility for an act or omission that caused or contributed to the loss. While neither the extent nor the type of loss need be known, the claimant must know that some non-trivial loss has occurred, and that a proceeding would be a legally appropriate means to seek to remedy it: Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 at para 34.

First, the court found the motion judge’s conclusions problematic because they contained a fundamental misapprehension of the expert reports and revealed a flawed discoverability analysis. The motion judge’s finding of discoverability was based on a fundamental misstatement of the Trow report. The motion judge also misapprehended the contents of the Terraprobe report as confirming the issues raised in the Trow report.  Finally, the motion judge erred by concluding that even without the Trow report, the appellants would have known that they had a claim against the defendants. However, there was no evidentiary basis for the appellants to reasonably suspect that there was anything wrong with the cottage or its foundation until receipt of the Terraprobe report.

Second, the court found that the motion judge erred in failing to undertake an analysis of the criterion under s. 5(1)(a)(iv) of the Act. The court cited Kudwah v Centennial Apartments, 2012 ONCA 777 at paragraph 2, for the proposition that “a court considering the limitation claim must address the specific requirements of s. 5 of the Act, particularly on the facts of this case, the requirement of s. 5(1)(a)(iv).” In considering whether the appellants knew or should have known that they had a claim, the court held that the motion judge had to go on to consider whether, having regard to the nature of the injury, loss or damage, the appellants knew or should have known that a proceeding would be an appropriate means to seek to remedy it. The court then identified that one recognized reason why the legislature added “appropriate means” as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation: 407 ETR Concession Company Limited v Day, 2016 ONCA 709. The court then concluded that the motion judge failed to consider “the specific factual or statutory setting” of the case before him and determine whether it was reasonable for the appellants not to immediately commence litigation but to “wait and see.”

Finally, the court found that the motion judge erred by failing to consider whether the appellants knew or reasonably could have known the material facts giving rise to their claim against the Township more than two years prior to the commencement of their action. It was not until Fowler started the remedial work in 2013 that it uncovered the foundation wall that had been approved by the Township and discovered that the cottage footings and foundation were negligently placed on the same loose soil and organic materials as were under the stone retaining wall. There is no evidence that these material facts informing a claim against the Township were known to, or reasonably discoverable by, the appellants in 2009.

2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670

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

Counsel:

Geoffrey Adair, for the appellants

Daniel MacKeigan and Cole Vegso, for the respondents

Keywords: Franchise Law, Rescission, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000 ss 6(2), Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Credibility, Fact-Finding Powers, Oral Evidence, Standard of Review, “Contrary to the Interests of Justice”, Hryniak v Mauldin, 2014 SCC 7, Baywood Homes Partnership v Haditaghi, 2014 ONCA 450, Choquette v Viczko, 2016 SKCA 52, Trotter Estate, 2014 ONCA 841, 1615540 Ontario Inc. (c.o.b. Healing Hands Massage Therapy Clinic) v Simon, 2016 ONCA 966, Rules of Civil Procedure, Rule 20.04(2.1), 20.04(2.2)

Facts:

This is an appeal from a partial summary judgment in litigation concerning a franchise dispute. The franchisee and its principals were granted rescission of the franchise agreement and damages against the franchisor and its director in the sum of $964,805.33. The counterclaim was dismissed.

The appellants are Obsidian Group Inc. (“Obsidian”), the franchisor for Crabby Joe’s Tap and Grill (“Crabby Joe’s”), Obsidian Inc., the franchisee’s sub-landlord, and GK (referred to by the motion judge as “G”), the sole director of both companies. The respondent 2212886 Ontario Inc. (“221”) is a franchisee that operated a Crabby Joe’s restaurant in Bradford, Ontario. 221 was incorporated by its principals, the other two respondents to this appeal, WP (“W”) and KP (“K”).

W and K communicated their interest in acquiring a Crabby Joe’s franchise in April 2009. In June 2009, they paid a deposit of $31,500 and they incorporated 221 in July 2009. Between September 2009 and May 2010, the parties, working together, identified a suitable location. On June 1, 2010, the franchisor provided a franchise disclosure document. On June 16, 2010, Obsidian and 221 entered into a franchise agreement. On September 7, 2010, they signed a new franchise agreement (the “replacement agreement”) that was substantially identical to the first agreement, as well as a franchise amending agreement (the “amending agreement”) to replace some of the standard terms for the benefit of the respondents.

The franchisee paid a total of $660,465 for the purchase of the franchise. The acquisition was financed in part by a small business loan from Royal Bank of Canada (“RBC”).

The respondents operated their Crabby Joe’s franchise from March 9, 2011, until they served notice of rescission of the franchise agreement and related agreements on September 5, 2012. They demanded payment of their rescission damages by letter dated September 18, 2012. The franchisor purported to terminate the franchise agreement and related agreements on September 18, 2012. The franchise was transferred to a third party in January 2013. The respondents were sued by RBC on their small business loan (the “RBC litigation”), resulting in judgment in June 2014 against 221 and the personal respondents.

There were two principal issues respecting liability. The first was whether the disclosure document provided by the franchisor in June 2010 was so materially deficient as to constitute no disclosure at all, giving rise to a right to rescission within two years of the execution of the franchise agreement under s. 6(2) and compensation under s. 6(6) of the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 (the “AWA”). The second liability issue was whether the two-year period ran from the date the parties first executed the franchise agreement, in which case the claim would be out of time, or from the date the parties executed a replacement agreement, in which case the claim was timely.

The respondents relied on a number of allegations of non-disclosure in support of their claim for rescission, only one of which was accepted by the motion judge. He concluded that the franchisor’s representative provided revenue projections in a meeting with the principals of the franchisee in May 2010, that the information was highly material, and that the failure to include the projections in the franchisor’s disclosure constituted “no disclosure”. The motion judge also concluded that since the franchisor insisted on a replacement agreement, the time for asserting the rescission rights under s. 6(2) of the AWA ran from the date of that agreement.

The appellants’ principal argument on appeal is that the motion judge erred in determining the central disputed factual issue on which liability depended (whether the earnings projection was shown to the respondents in May 2010), where the evidence was contradictory, and where the record did not permit such a determination to be made.

Issues:

(1) Did the motion judge err in his approach to summary judgment – by making determinations of credibility and findings on a key factual issue, where the evidence was contradictory, where the appellant’s deponent was not cross-examined, and without calling for or even considering the need for oral evidence?

(2) Did the motion judge err in his conclusion that the failure to provide the earnings projections in the disclosure document constituted “no disclosure” under s. 6(2) of the AWA?

(3) Did the motion judge err in failing to dismiss the claim for rescission because it was asserted more than two years after the original franchise agreement was signed?

(4) Did the motion judge err in his assessment of damages (essentially by including amounts for lease payments made by 221 to Obsidian Inc.)?

Holding: Appeal allowed.

Reasoning:

The court indicated that it was sufficient for the determination of this appeal to address only the first and third issues.

(1) Yes. The motion judge erred in granting summary judgment in this case.

(a) It was not in the interest of justice to determine the issues on summary judgment in this case without oral evidence.

Where, on the record, there appears to be a genuine issue requiring a trial, the motion judge may then consider whether the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2). The motion judge’s decision to exercise these powers is discretionary and attracts appellate deference “provided that their use is not against the interest of justice”: 1615540 Ontario Inc. (c.o.b. Healing Hands Massage Therapy Clinic) v Simon, 2016 ONCA 966, at para. 22.

In this case the motion judge concluded that the record did not permit him to make an order for summary judgment, and that there was a genuine issue for trial with respect to the May 2010 meeting. He then proceeded to invoke the “expanded” powers under (1.1) to determine the rescission claims by summary judgment. However, he did not consider the obvious need for oral evidence under (2.2).

In this case, a number of factors were relevant and ought to have been considered before the motion judge decided to use the “enhanced” powers absent oral evidence to determine the respondents’ rescission claims in a motion for summary judgment.

The motion judge ought to have determined whether, in these circumstances, it would have been appropriate, or indeed necessary, to hear oral evidence as he was entitled to require under r. 20.04(2.2). If credibility cannot be assessed on a written record, that should be a sign that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Here, the motion judge ought to have considered whether oral evidence on the key disputed factual issue would have enabled him to determine the rescission claims on this motion: see for example Hryniak v Mauldin, at para. 51; Choquette v Viczko, 2016 SKCA 52, at paras. 54-56.

(b) The motion judge could not, on this record, adequately resolve the credibility issues. The motion judge’s reasons for accepting W’s evidence on the key factual dispute and rejecting D’s, are not persuasive.

First, the concerns about D’s evidence that were identified by the motion judge were not sufficient to reject his evidence out of hand, especially where he had not been cross-examined. The motion judge characterized D’s evidence as “heavy on speculation” and “light on direct knowledge”. However, D was, as the motion judge observed, a very experienced member of the industry who sold or opened at least 1,000 franchises prior to this matter

The import of D’s evidence was that if he had prepared a business plan and sent it to RBC, he would have done so at the request of the respondents to assist them in obtaining financing. W’s own evidence confirmed that the appellants provided him and his wife with assistance in obtaining financing from RBC. The determination that the franchisor was involved in the financing – whether by helping the respondents to prepare a business plan, or by preparing the business plan in its entirety for submission to RBC – is not determinative of the central issue: whether the earnings projections that were ultimately included in the business plan were shown to W and K, as they alleged, before they signed the franchise agreement in June 2010.

Second, after rejecting D’s evidence, the motion judge did not critically assess the respondents’ evidence. The only mention of W’s evidence was in respect of the inconsistencies about when he first saw the business plan and earnings projections, and then to say that he accepted it. The Court has cautioned that in the summary judgment and mini-trial context, motion judges must take great care “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters”: Baywood Homes Partnership v Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

The motion judge’s treatment of the evidence, including his acceptance of W’s explanation for his inconsistencies, did not ensure that this key issue would be fairly resolved.

(2) Yes. The key and essential finding that there was non-disclosure which amounted to a breach of s. 6(2) of the AWA and justified rescission and damages ought not to have been made in the circumstances of this case. That finding could not be made on the basis of untested evidence, and without invoking at least the powers under Rule 20.04(2.2) to hear oral evidence

(3) No. The conflict in the evidence on this issue was not material. Whatever the motivation for the replacement agreement, it is undisputed that the request originated with the franchisor. There was nothing to suggest that there was any benefit to the franchisee in signing a replacement agreement in terms that were substantially identical to the original agreement. The motion judge rightly concluded that “[h]aving chosen to require the franchisees to sign and enter into a replacement agreement, the franchisor cannot now argue that an existing franchise agreement is already in place such that the protections afforded under s. 6(2) are already partially diluted.” In arriving at this decision, he properly considered the intent and consumer protection purpose of the AWA.

The motion judge’s decision on the effective date of the franchise agreement for the purpose of s. 6(2) is entirely reasonable and supported by the evidence. The court did not view the credibility issues identified earlier with respect to the earnings projections as in any way affecting the motion judge’s decision on this issue, or that oral evidence would have been required to determine it.

(4) Considering the resolution of the issues above, it was not necessary to consider the issue of damages.

Carby-Samuels II v. Carby-Samuels, 2018 ONCA 664

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

RSC II, acting in person

John E Summers, for the respondent

Keywords: Civil Procedure, Vexatious Litigants, Summary Judgment, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43., s 140(3), Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931

Facts:

The appellant, RCS, appeals (1) the judgment of the application judge granting his father, the respondent HCS, summary judgment dismissing the appellant’s claim against him; and (2) the order of the application judge declaring that the appellant had instituted vexatious proceedings and conducted proceedings in a vexatious manner, and prohibiting him from instituting a proceeding, directly or indirectly, in any court in Ontario without first obtaining leave under s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

The appellant argues that the court cannot declare a Canadian citizen vexatious “for seeking to ensure the well-being of his Mom as an expression of religious conscience as affirmed by the Charter”. He also argues that the court should find that there was a reasonable apprehension of bias because the application judge accepted his father’s assertions, failed to refer to evidence that he says supported his position, failed to grant an adjournment, and proceeded in the face of his intention to bring a motion for an order that she recuse herself. Further, he argues that the application judge erred in relying on an affidavit of an administrator working in the office of his father’s lawyer. Finally, he also challenges the authority of the lawyer to act on behalf of his father and asks that he be ordered to disclose his fees.

Issues:

(1) Did the application judge err in granting summary judgment dismissing the appellant’s claim?

(2) Did the application judge err in declaring that the appellant had instituted vexatious proceedings and conducted proceedings in a vexatious manner, and prohibiting him from instituting a proceeding, directly or indirectly, in any court in Ontario without first obtaining leave under s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is no basis for this court to interfere with the application judge’s order granting summary judgment dismissing the appellant’s action against his father, seeking an order permitting him to see his mother, who was 85 years of age at the time of the motion. The application judge correctly held that there is no basis for the court to make an order compelling a mentally competent adult (the father) to require another mentally competent adult (the mother) to interact with a third family member (the appellant).

(2) No. There is no basis to interfere with the application judge’s order declaring the appellant a vexatious litigant and prohibiting him from instituting any proceeding in Ontario without leave. The application judge provided thorough and compelling reasons. Further, there is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The test is whether a reasonable, informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the judge, whether consciously or unconsciously would not decide fairly: see Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, [2017] OJ No 6324, at para. 84. The appellant has not discharged the heavy burden of rebutting the strong presumption of judicial impartiality.

Derakhshan v. Narula, 2018 ONCA 658

[Hoy A.C.J.O., Rouleau and Benotto JJ.A.]

Counsel:

FD, acting in person

Ian Vallance, for the respondent

Keywords: Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, Rule 3.02

Facts:

FD brought a motion to set aside an order of the chambers judge, dismissing his motion for an order extending the time within which to serve and file a notice of appeal. The applicant represented himself during a 21-day trial which took place in the Family Court Branch of the Superior Court. He claimed retroactive spousal support, and asserted a constructive trust interest in the respondent’s assets on the basis of unjust enrichment or a joint family venture. The trial judge found that the parties had not been in a spousal relationship and dismissed FD’s claims. The judge also found that there was no evidence of unjust enrichment.

When the decision was released, it was emailed to FD, who was in Australia at the time. He made arrangements to rush back to Canada to deal with his proposed appeal. The applicant prepared a notice of appeal and served the respondent within the 30 days provided for in the Rules, on Friday, February 23. Unfortunately, he had attempted to file the materials with the Superior Court of Justice and not the Court of Appeal. As a result, his materials were rejected by the court office. When FD was informed of his error, he acquired the requisite forms and began to prepare a new notice of appeal. The following day, the applicant served this new notice of appeal on the respondent by email. This was 31 days following the release of the decision.

FD sought the respondent’s consent to the late filing, but this was refused. FD then prepared a motion for an order extending the time in which to file his notice of appeal. The chambers judge refused this motion based on three factors: prejudice to the respondent, the merits of the appeal and the justice of the case did not favour granting the extension.

Issue:

(1) Did the chambers judge err in dismissing the motion for the extension?

Holding: Motion granted.

Reasoning:

(1) Yes. The chambers judge erred in finding that there was prejudice to the respondent on the basis that her costs award was unlikely to be satisfied. This is not prejudice caused by delay. The delay was of only one day and the notice of appeal, albeit to the wrong court, had been served within the 30 days provided in the Rules.

The error in the chambers judge’s analysis of prejudice clearly factored into his exercise of discretion and as a result, no deference was owed to his decision. It would be unfair to deprive FD of his right of appeal in the circumstances. FD.is self-represented and the delay in serving the appeal materials addressed to the appropriate court was barely one day. There was clearly no prejudice to the respondent and the loss of the right to appeal is very significant to FD.

Romanko v. Aviva Canada Inc., 2018 ONCA 663

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

OR and NR, acting in person

Alan L Rachlin, for the respondents

Keywords: Civil Procedure, Trials, Adjournments, Estrada v Estrada, 2016 ONCA 697

Facts:

The appellants appeal the dismissal of their action against the respondents, which arose from a motor vehicle accident.

Issue:

(1) Did the trial judge err in not granting a further adjournment of the appellants’ jury trial?

Holding: Appeal dismissed.

Reasoning:

(1) No. The decision to grant an adjournment is a matter of judicial discretion. The scope of appellate review is whether the discretion was exercised judicially on proper principles (Estrada v Estrada, 2016 ONCA 697). The trial judge provided thorough reasons why she declined the request for a further adjournment. The trial judge highlighted the appellants’ history of delay, multiple changes of counsel, and failure to abide by court orders. The trial judge marked the trial peremptory but gave a further extension to the appellants to produce evidence. There is no basis to set the trial judge’s decision aside. Her discretion was exercised reasonably on proper principles, such as the interests of the parties and the administration of justice.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 668

[Doherty, Brown and Nordheimer JJ.A.]

Counsel:

John A Olah, for the appellant, Blue Mountain Resorts Limited

Edward Chadderton and Jeffrey Belesky, for the respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka Snow Valley (Barrie), Snow Valley Barried, Snow Valley Ski Resort, Snow Valley, and 717350 Ontario Ltd. (collectively, “Snow Valley”)

Paul J Pape, Shantona Chaudhury and Evan Rankin, for the respondent, DS and for the appellant/respondent by cross-appeal, EW

Keywords: Civil Procedure, Orders

Facts:

This is an appeal from the orders of Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

On March 28, 2018, the Court of Appeal released its decision allowing both appeals and the cross-appeal, setting aside the two orders below, and remitting the matters back to the Superior Court of Justice to proceed in accordance with the Court of Appeal’s reasons. Subsequent to the release of the Court’s reasons, counsel advised in writing that certain issues had arisen with respect to taking out the formal orders.

Issues:

(1) Should the “no order as to costs” provision incorporate both the parties and the interveners, or should this be dealt with separately?

(2) Should the court’s conclusion regarding s. 93(2) of the Consumer Protection Act, 2002, SO 2002, c 30, Sched A be reflected in the formal order?

(3) Should the court’s conclusion regarding the effect of the respective waivers be reflected in the formal order? If so, how should that conclusion be worded?

Holding: The Court gave directions on the wording of its orders.  

Reasoning:

(1) The Court agreed with counsel that the “no order as to costs” could be reflected in the orders as relating to both the parties and to the interveners, but for a separate issue that the Court identified below. If all of the costs had been determined at the same time, a simple provision that there be no order for costs of the appeal either for or against any party including the interveners would suffice.

(2) No. The Court found that the second and third issues could be dealt with together. The simple answer to those issues is that neither of these conclusions ought to be reflected in the formal order. A formal order reflects the ultimate disposition of a proceeding. It does not reflect the reasons for that disposition. Absent a request for a formal declaration, conclusions regarding issues raised in a proceeding ought not to be reflected in the formal order. For example, if a court concludes that the defendant was negligent and awards damages as a consequence, the formal order does not say that the defendant was negligent. It simply says that the defendant is ordered to pay to the plaintiff damages in a set amount.

In this case, the formal order ought not to reflect the interpretation that the Court applied to s. 93(2) Consumer Protection Act, nor should it reflect the conclusion reached regarding the applicability of the respective waivers. Those conclusions are reflected in the reasons and the parties could make submissions as to the consequences of those conclusions if necessary as the proceedings continue. Counsel was in agreement that it was open to the plaintiffs to make other arguments as to why they might not be bound by the waivers. All that the formal orders will record is that the appeals (and cross-appeal) were allowed and the matters remitted back to the Superior Court of Justice.

The other issue regarding costs alluded to above, arose from the draft orders submitted by counsel. The decision on costs is a determination separate and apart from the determination of the merits of the appeals (and cross-appeal). Counsel drafted a single order incorporating both the date of the merits decision and the date of the costs decision. That was improper. Rather, what was required was for two formal orders to be taken out. The first order should deal with the merits, and the costs as they related to the interveners, and the second order should deal with the issue of costs as they related to the parties, with each order bearing the respective date when those decisions were released.

Parc Downsview Park Inc. v. Penguin Properties Inc., 2018 ONCA 666

[van Rensburg, Brown and Miller JJ.A.]

Counsel:

Anne Posno and Robert Trenker, for the appellant/respondent by way of cross-appeal

Jonathan Lisus and Zain Naqi, for the respondent/appellant by way of cross-appeal

Keywords: Contracts, Real Property, Commercial Leases, Guarantees, Indemnities, Enforceability, Misrepresentation, Contractual Interpretation, Standard of Review, Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, Atos IT Solutions v Sapient Canada Inc, 2018 ONCA 374, Damages, Mitigation, Civil Procedure, Applications

Facts:

This appeal concerns the validity and scope of an indemnity given by the appellant (“Penguin”), to the respondent and cross-appellant (“PDP”). In 2010, PDP entered into a lease of premises as landlord with the National Squash Academy Inc. (the “Academy”) as the tenant. After the Academy defaulted on its obligations under the 2010 lease, PDP required that a guarantor be found to indemnify the rental obligations of the Academy under a new lease. MG, the principal of Penguin, was approach and agreed to “backstop” the obligations of the Academy under the lease. The lease and indemnity agreement (“Indemnity”) were executed in December 2012 and did not expire until August 31, 2020.

In September 2013, the Academy defaulted on its obligations under the lease to pay rent. After two years of unsuccessful negotiations, PDP delivered a termination notice to the Academy in October 2015. The Academy then made a voluntary assignment into bankruptcy in February 2016. In November 2016, PDP gave further notice of default to Penguin under the Indemnity. It then commenced this application seeking payment under the Indemnity of unpaid rent, future rent, and other costs and losses.

The application judge granted the application. He found that Penguin had breached the Indemnity and ordered it to pay PDP $788,603.45 “on account of amounts owing to [PDP] up to June 12, 2017 under the terms of the indemnity agreement.” Penguin appealed, asking the court to set aside the judgment and convert the application into an action. PDP cross-appealed, seeking to vary the judgment to include an order requiring Penguin to pay rent due from June 13, 2017 until August 31, 2020, less any rent it receives from new tenants during that period.

Issues:

(1) Is Penguin liable under the Indemnity?

(i) Did the application judge err by applying too rigorous a test in refusing to convert the application into a trial?

(ii) Did the application judge apply the wrong test to determine whether PDP made a negligent misrepresentation upon which Penguin relied to enter into the Indemnity?

(iii) Did the application judge err in finding that no representation had been made?

(2) What is the appropriate quantum owing under the Indemnity?

(i) Did the application judge err in finding Penguin responsible for restoration costs

(ii) Did the application judge err by failing to award PDP amounts for rent due under the Lease from June 12, 2017 until the end of the stated term of the Lease, on August 31, 2020?

Holding: Appeal dismissed. Cross-appeal allowed.

Reasoning:

(1) Yes. Justice Brown, writing for the majority of the court, concluded that there was a sound evidentiary basis for the application judge’s finding that Penguin had not established PDP made some collateral, pre-contractual representation which, if breached, would relieve it of its obligations under the Indemnity.

(i) No. The suitability of using an application, rather than an action, to decide a contractual dispute depends upon the specific facts of the case, including the nature and extent of any factual dispute. The issue in dispute was a narrow one: Had two employees of PDP made misrepresentations to MG upon which Penguin had relied in giving the Indemnity? Justice Brown saw no unfairness resulting from the application judge determining the contractual dispute by way of application instead of directing a trial. As well, an application provided an expeditious and cost-effective means to determine the dispute on its merits.

(ii) No. Justice Brown was not persuaded that the application judge applied an inaccurate summary of the legal principles applicable in the circumstances of this case. Penguin bore the burden of establishing who made a representation, when, where, and its content. The application judge required nothing more and was not persuaded that the evidence established an actionable misrepresentation.

(iii) No. Justice Brown found that the application judge’s findings were not tainted by any misapprehension of the evidence or palpable and overriding error. The application judge relied on the following evidence: (i) the parties were sophisticated; (ii) Penguin acknowledged that the representations it alleged were made orally and not in writing; (iii) there was not a single piece of correspondence produced by Penguin that referred to any of the oral representations asserted; (iv) clause 7 of the Indemnity stated it could “only be modified in writing, signed by both the Indemnifier and the Landlord”; (v) by its terms the Indemnity was “absolute and unconditional”; and (vi) on the issue of which party relied on whom, the Indemnity began with the language, “[i]n order to induce the Landlord to sign the agreement to lease between the Landlord and [the Academy] as Tenant …, the Indemnifier agrees with the Landlord that…” Accordingly, Penguin’s appeal from the judgment that it had breached the Indemnity was dismissed.

(2) PDP is entitled under the Indemnity to payment by Penguin for rent due during the period from June 12, 2017 until August 31, 2020, subject to the credit that clause 3 requires be given for rent obtained from a new tenant.

(i) No. The application judge held that the restoration costs were “costs incurred as a result of [the Academy’s] failure to pay rent” in accordance with Clause 1 of the Indemnity. Absent the existence of an extricable question of law or a palpable and overriding error, the application judge’s interpretation and application of the Indemnity is entitled to deference. To answer the question of whether the indemnity covered restoration costs, the application judge considered the events both before and after the Academy defaulted in paying rent, including its ultimate assignment in bankruptcy. Justice Brown concluded that the application judge made a reasonable interpretation and application of the Indemnity clause to the specific facts of this case.

Justice Brown did not accept Penguin’s alternative submission on this issue that the application judge erred in finding it liable for the full amount of restoration costs and legal fees. Justice Brown saw no reversible error in the application judge’s interpretation of the second part of clause 1 as covering the full amount of “any losses or costs” (emphasis added), not a pro rata share. The application judge’s interpretation was one reasonably available on the language of clause 1 of the Indemnity: Atos IT Solutions v Sapient Canada Inc, 2018 ONCA 374 at paras. 85-86. Penguins appeal was dismissed.

(ii) Yes. Justice Brown regarded the application judge’s conclusion that PDP was not entitled under the Indemnity to rent until the end of the term as a palpable and overriding error. In reaching this conclusion, Justice Brown regarded that the deferential standard of review applies because the question of whether PDP’s claim under the Indemnity is subject to an obligation to mitigate rental losses as a question of mixed fact and law. The resolution of the question primarily requires a consideration of the language of the Indemnity, read within the “factual matrix” of, amongst other matters, the circumstances surrounding the concurrent execution of the lease: Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, at para 47.

In paragraph 12 of his supplementary reasons, the application judge interpreted clause 3 of the Indemnity as disclosing no obligation on PDP to mitigate its rental losses. He then proceeded to depart from the plain language of the Indemnity’s provisions dealing with rent and incorrectly imported into his consideration of Penguin’s liability under the Indemnity the quite separate issue of any mitigation duties PDP might owe the Academy, as tenant, under the concurrently executed Lease. There was no language in the Indemnity that supported making such a link. Justice Brown concluded that by reading into the Indemnity a limitation on PDP’s entitlement that ran counter to the document’s plain language, that the application judge made a palpable and overriding error.

Justice Brown recognized the contrasting assessment of the factual matrix in which the Indemnity’s language must be interpreted between the majority and the dissent. He noted that the prior default by the Academy is a key element of the factual matrix in which the Indemnity arose. To interpret the language of the Indemnity as subjecting PDP to an implied duty to mitigate future rent would fail to give effect to that key aspect of the factual matrix. It could result in a situation where PDP is left holding the bag – a result contrary, in Justice Brown’s view, to the express language of the Indemnity.

Dissent

Justice van Rensburg did not agree with Justice Brown’s proposed disposition of the cross-appeal and would have dismissed the cross-appeal because the application judge’s determination of the claim for ongoing rent, as part of PDP’s claim under the Indemnity, revealed no reversible error.

Justice van Rensburg did not read the application judge as in any way saying that PDP’s obligation to mitigate its claim for rents under the Indemnity followed from the fact that it may have had an obligation to mitigate under the Lease vis-à-vis the tenant. She also regarded that there was nothing wrong with the application judge considering the terms of the Lease in his interpretation of the Indemnity, which provided for the indemnification of PDP for the tenant’s defaults under the Lease. She concluded that the application judge’s analysis gave effect to the whole of the Indemnity and his interpretation of the Indemnity was not contrary to its express language. Finally, Justice van Rensburg did not regard the obligation under the Indemnity to pay rent “throughout the Term as though the Early Termination had not occurred” as clear wording that ruled out a duty to mitigate.

1173928 Ontario Inc. v. 1463096 Ontario Inc., 2018 ONCA 669

[Lauwers, Benotto and Nordheimer JJ.A.]

Counsel:

Geoff R Hall and Anu Koshal, for the appellants

Peter M Callahan, for the respondents

Keywords: Real Property, Mortgages, Power of Sale, Notices of Sale, Conveyancing, Mortgages Act, RSO 1990, c M 40, s. 22 and 31, Conveyancing and Law of Property Act, RSO 1990, c C 34, s 41, Farrar v Farrars Ltd. (1888), 40 Ch D 395 (Eng C), Ostrander v. Niagara Helicopters Ltd. (1973), 1 O. (2d) 281 (HC), Commercial Leases, Commercial Tenancies Act, RSO 1990, c L7

Facts:

The appellant, RVA, operates a business known as “Nu-Co Plastics” in a building on a property at 34 Storey Street in Blenheim owned by the respondent corporation, 1463096 Ontario Inc. (“146”). The property was leased to RVA’s company, 1358329 Ontario Inc. (“135”). RVA also has two other companies: 1173928 Ontario Inc. (“117”) and 1732076 Ontario Limited (“173”).

In March 2008, the landlord, 146, defaulted in paying the mortgage held by Bayview Financial LP. On November 17, 2008, Bayview Financial issued a notice of sale to 146. The notice claimed the fully accelerated amount of $368,472.41 owed under the mortgage

On January 6, 2009, RVA through 117 borrowed $230,000 from Libro Credit Union Limited and purchased the mortgage from Bayview Financial for $360,705.12, which was the balance then owing under the mortgage. On that same date, 117 received an assignment of the mortgage, the guarantees, and related security including the attornment of rents and a Loan and Security Agreement.

Bayview Financial gave 146 notice of the assignment of the mortgage and related security. 117 registered the Assignment of Mortgage and Notice of Assignment of Leases and Rents on title to the property later in January 2009.

On January 12, 2009, 117 purported to terminate the existing lease and enter into a new lease on significantly more favourable terms in an effort to reduce the rental credit to which 146 was

On January 16, 2009, 146 responded by starting an application as landlord under section 20 of the Commercial Tenancies Act, RSO 1990, c L7, against RVA and 117 seeking payment of the outstanding rental arrears together with injunctive relief restraining 117 from enforcing the mortgage.

On March 4, 2009, 117 started the mortgage action that is the subject of this appeal. Within several days, 117 received but did not accept an offer to purchase the property for $250,000.

On October 1, 2009, acting as mortgagee selling under power of sale, 117 entered into an agreement of purchase and sale with itself as purchaser to acquire the property for a price of $210,000 plus unpaid municipal taxes of $29,327 (“First Sale”). 117 did not give 146 notice of the purported sale of the property.

The First Sale foundered on the basis that 117 did not have an interest in the mortgage entitling it to sell the property because it had earlier assigned the mortgage and related security to Libro Credit Union as security for its loan. The assignment was registered against title to the property in favour of Libro Credit Union on January 23, 2009.

On November 2, 2009, a month after the abortive First Sale, Hockin J heard 146’s Commercial Tenancies Act application. By judgment dated January 18, 2010, he granted an interim order relieving 117 from forfeiture of the lease for the property.

On May 27, 2010, Libro Credit Union re-assigned the mortgage back to 117 and took a general security agreement from 117 in its place, and 117 regained status to act under the mortgage as of that date.

The parties could not come to an agreement and so appeared again before Hockin J on August 16, 2010.  On August 20, 2010, he ordered 117 and RVA to pay the rental arrears owed under the lease for the period from January 1, 2007 to August 31, 2010, fixed in the amount of $240,000 as agreed by the parties.

On October 6, 2010, RVA made a second effort to acquire the property. Relying once again on Bayview Financial’s original notice of sale, 117 purported to convey the property to itself under power of sale for the purchase price of $210,000 (“Second Sale”).

On October 12, 2010, as the putative owner, 117 purported to convey the property in fee simple to 173 for the purchase price of $213,750 (“Third Sale”).

In the judgment under appeal, the trial judge held that the First Sale was invalid because Libro Credit Union – not 117 – owned the mortgage at the date of the purported transaction. The trial judge found that the Second Sale of the property by 117 to itself was invalid. She held that a mortgagee can legally transfer its security to itself, but only where it “can establish it acted in good faith and took reasonable precautions to obtain a proper price.” Because 117 did not acquire title to the property through the Second Sale, it was not the fee simple owner. This invalidated the Third Sale.

Accordingly, the trial judge dismissed the mortgage action for payment and possession brought against the respondents as mortgagors by 117 as assignee of the mortgage. She also granted judgment in the lease action in favour of 146, as landlord, against RVA, 135, and 173, jointly and severally.

Issues:

(1) Did the trial judge err in holding that the original notice of sale issued by Bayview Financial was invalid?

(2) Did the trial judge err in holding that the mortgagee, either Bayview Financial or later 117, failed to comply with section 22 of the Mortgages Act having the effect of invalidating the Second Sale and Third Sale?

Holding: Appeal dismissed. 

Reasoning:

(1) No.  While reluctant to agree with the trial judge that the errors in Bayview Financial’s notice of sale were fatal to its validity based on the standard of commercial reasonableness, there was no error in law.

The trial judge found the Bayview Financial notice of sale to be invalid under section 31 of the Mortgages Act on two grounds. First, the original notice of sale issued by Bayview Financial, upon which 117 relied throughout, was not “correct in all material aspects” when it was issued. The judge found that it did not reflect the correct amount needed to redeem the mortgage then, contrary to section 31 of the Mortgages Act.

There is a principle that partial payment of arrears owing under a mortgage does not lead automatically to the requirement of a new notice of sale. However, the Court rejected the appellants’ argument that the principle applies on the facts of this case.

The Court was also not persuaded that the appellants’ argument that any errors in the amounts claimed in the notice of sale did not materially affect 146’s ability to redeem and that 146 never attempted to do so. This argument is more related to the issue of getting proper mortgage statements under section 22 of the Mortgages Act.

The trial judge’s second finding was that a fresh notice of sale was required in this case because the flow of time and the stream of attorned rental payments changed the state of the accounts, increasingly rendering inaccurate the original notice of sale. Because a notice of sale is a point-in-time document, it does not become inaccurate with the flow of time. The accounts undoubtedly changed, but the usual process for addressing changes in accounts is by the mortgagor requesting a mortgage statement under section 22 of the Mortgages Act, not by requiring a fresh notice of sale.

The artificial staging of the issues brought about by RVA’s strategy suggests that it would not be wise to rule definitively on when, if ever, a fresh notice of sale is required, and the Court declined to do so.

(2) No. The trial judge correctly found that 117 failed to provide updated statements of account to 146 to reflect the reduction of the mortgage balance achieved through the attornment of rents, contrary to sections 22(2) and (3) of the Mortgages Act. As a result, both the Second Sale and the Third Sale were invalid because they were executed at a time when 117’s enforcement rights were statutorily suspended under section 22(3) of the Mortgages Act.

The purpose of section 22(1) of the Mortgages Act is to provide a mortgagor with access to relief from acceleration of the entire mortgage debt that came about because of the default. Section 22(2) works together with section 22(3). Where the mortgagee fails to answer a request for a mortgage statement within 15 days without reasonable excuse or answers it incompletely or incorrectly, then the mortgagee’s rights to enforce the mortgage, including the exercise of a power of sale or commencement of a mortgage action, is suspended until the mortgagee provides an accurate and complete mortgage statement.

The critical dates for determining the effect of section 22 of the Mortgages Act are (i) the date of the mortgagor’s request for a mortgage statement; (ii) the date of the mortgagee’s response; (iii) the date of a sale (the possibilities are October 6, 2010, the date of the purported Second Sale; or October 12, 2010, the date of the purported Third Sale); and (iv) the date of the commencement of a mortgage action by the mortgagee (March 4, 2009 at the earliest). Neither the dates of the purported sales nor the date on which 117 started the mortgage action figure into the decision.

After all of the legal wrangling, 117 gained full status on May 27, 2010 to enforce the mortgage and bring the action (and therefore to continue it). However, there were two outstanding requests to 117 for a mortgage statement that 117 had never answered:

  • On June 15, 2009, the respondent’s lawyer wrote to 117’s lawyers requesting a statement of the mortgage account and a notice of the interest rate adjustment, since it was a variable rate mortgage. They did not respond.
  • On January 19, 2010, the respondent’s lawyer wrote again to 117’s lawyers requesting a mortgage statement and an account of the rental money received by 117. No response was received.

Accordingly, this left the suspension under section 22 of the Mortgages Act in place, thereby invalidating both the Second Sale and Third Sale.

Although the issue is moot, in her discussion of whether 117 was legally entitled to sell the property to itself under the power of sale, the trial judge opened a door better left closed. In the Second Sale, 117 purported to sell the property to itself under power of sale. The appellants invoked section 41 of the Conveyancing and Law of Property Act:

A person may convey property to or vest property in the person in like manner as the person could have conveyed the property to or vested the property in another person.

The trial judge described this as a “general statutory provision” that is “subject to the more restrictive statutory provisions and common law principles imposed on mortgagees as transferors.” She identified one such limit in the common law: a mortgagee cannot sell to itself under a power of sale, citing Farrar v Farrars Ltd. (1888), 40 Ch D 395 (Eng CA).

However, the trial judge stated that the rule in Farrar gives rise to a presumption that “is rebuttable in certain circumstances.” The trial judge referred to Ostrander v. Niagara Helicopters Ltd. (1973), 1 O (2d) 281 (HC) and held that a mortgagee can transfer its security to itself where it “can establish it acted in good faith and took reasonable precautions to obtain a proper price.” The trial judge found that RVA could not rely on Ostrander because he had not acted in good faith and had not taken reasonable precautions to obtain a proper price for the property.

The trial judge had no basis upon which to apply the rebuttable presumption in Ostrander to the facts of this case. Ostrander does not stand for the proposition that the common law allows a mortgagee to sell under a power of sale to itself, nor for the proposition that a mortgagee can sell to a company that is owned by the mortgagee. Rather, it stands for the proposition that a party acting for the mortgagee can sell to a corporation in which that party has some interest, if it can rebut the presumption of an invalid sale by evidence that it took reasonable steps to obtain a proper price and acted in good faith. Ostrander does not apply to a mortgagee selling to itself under power of sale.

Even though section 41 of the Conveyancing and Law of Property Act was enacted (with slight differences) in 1933, there are no reported decisions in which an Ontario court has squarely considered its effect on the common law rule in Farrar in a mortgage action. Whether section 41 of the Conveyancing and Law of Property Act has overcome the rule in Farrar is an issue best left for another day.

United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671

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

Counsel:

Andrew J Hatnay, Demetrios Yiokaris and Amy Tang, for the appellants (C63620) and for the respondents (C63635)

Jeffrey E Goodman, Frank Cesario and Dianne Jozefacki, for the appellants (C63635) and for the respondents (C63620), Quality Meat Packers Holdings Limited, BNJ Cold Storage Inc., Two Tecumseh Street Inc., Tasty Chip (2008) Inc. and DS

Matthew P Gottlieb and Brad Vermeersch, for the appellants (C63620) and for the respondents (C63635), BS and Franklyn Bernard Company Limited

Kyla Mahar, for the respondent, 1581337 Ontario Inc.

Keywords: Employment Law, Labour Law, Civil Procedure, Jurisdiction, Limitation Periods, Representative Actions, Class Actions, Orders, Nunc Pro Tunc, Rules of Civil Procedure, Rules 10.01(f), 12.08, 21.01(1)(a), 21.01(1)(b), 21.01(3)(a), Weber v Ontario Hydro, [1995] 2 SCR 929, Ritchie v Canadian Airlines International Ltd (2001), 13 CPC (5th) 368, Logue Mechanical Services Ltd v UA, Local 787, [2016] OLRB Rep July/August 691, Class Proceedings Act, 2002, SO 1992 c 6,Canadian Imperial Bank of Commerce v Green, 2015 SCC 60, 1100997 Ontario Limited v North Elgin Centre Inc., 2016 ONCA 848, Lawrence v International Brotherhood of Electrical Workers, 2017 ONCA 321

Facts:

A family-owned meat processing business went bankrupt in 2014 and some 800 employees were terminated without notice or severance. Two separate actions were commenced: one by SC on behalf of the 700 or so unionized employees (the “Caetano” action), and the other by DA and AA on behalf of the 100 or so non-unionized employees (the “Abreu” action). The defendants in both actions were the bankrupt companies, other related family-owned businesses, and two individuals who together are all alleged to have been the common employer of the employees.

In response, the defendants filed two motions:

1) A motion that the Caetano action be stayed on the basis of jurisdiction pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure (the “jurisdiction motion”); and

2) Motions under rules 21.01(1)(a) & (b) of the Rules of Civil Procedure that the representative elements of both actions be struck because the claims of the individuals sought to be represented were time-barred and thus failed to disclosed a reasonable cause of action (the “limitations motion”).

The motion judge granted the jurisdiction motion because he was of the view that the wrongful dismissal of unionized employees is subject to the exclusive jurisdiction of the provincial labour relations regime. He also granted the limitation motion in the Caetano action.

SC appeals the decision on the Caetano jurisdiction motion. The defendants appeal the dismissal of the Abreu limitations motion.

Issues: 

SC Appeal

(1) Did the motion judge err in deciding that the Ontario Labour Relations Board (“OLRB”) has exclusive jurisdiction to determine the claims asserted in the Caetano action?

(2) Did the motion judge err in concluding that, in the alternative, the representative portions of the actions were statute-barred because a court order pursuant to rule 12.08 of the Rules of Civil Procedure was not obtained within two years of the dismissal of the unionized employees?

Defendants’ Appeal

(3) Did the motions judge err in concluding that the Abreu action was not statute-barred and could proceed?

Holding: SC appeal dismissed. AA and DA appeal allowed.

Reasoning:

(1) No. The motion judge was correct to conclude that he did not have jurisdiction over the Caetano proceeding and properly conducted the Weber v Ontario Hydro analysis. That analysis dictates that if the substance of the dispute is the interpretation, application, administration, or violation of the collective agreement, then the dispute falls within the exclusive jurisdiction of the labour arbitrator.

The core of the Caetano action is the wrongful dismissal and unpaid severance of unionized employees, claims which are all tied to the terms of the employees’ employment and governed by the collective agreement. The Ritchie decision cited by SC was not helpful because it involved a breach of contract that was not a collective or employment agreement. SC’s reliance on Logue was misplaced because, unlike in Logue, SC is not attempting to bypass the provisions of the Bankruptcy and Insolvency Act to undermine the orderly distribution of the bankrupts’ property to creditors. Further, unlike in Logue, this was not a proceeding where the OLRB was being asked to enforce its own orders against a defendant.

(2) No. While Rule 12.08 is silent on limitation periods, it is instructive to consider that the Class Proceedings Act suspends the limitation period in a class proceeding in favour of a class member on the commencement of the class proceeding. Rule 12.08 requires a court order to bring a proceeding on behalf of or for the benefit of all members, and reading the rule harmoniously with s. 4 of the Limitations Act suggests that the limitation period does not stop running for claims of class members until a proceeding has been brought on their behalf under Rule 12.08. Rule 12.08 does not purport to extend, suspend, or otherwise vary any limitation period. The Supreme Court’s decision in Canadian Imperial Bank of Commerce v Green identifies that, absent a provision to the contrary, limitation periods applicable to claims of class members continue to run until the court authorizes the claims to be brought by the representative plaintiff. A nunc pro tunc order would not be available in circumstances where, like in this case, leave was not sought prior to the expiry of the limitation period.

(3) Yes. The motion judge held that there was nothing in Rule 10.01 that plainly and obviously required that a motion for a representation order be brought within the two-year limitation period. Rule 10.01(f) permits a judge to appoint one or more persons to represent any person or class of persons for any other matter where it appears necessary or desirable. The appellants sought to rely on this rule as a class action alternative. The question is whether AA and DA can assert claims, through a representation order, on behalf of persons who are not plaintiffs in the proceeding after the limitation period in respect of such claims has already expired. No motion under Rule 10 was brought for a representation order before the two-year limitation period expired. Parties cannot circumvent the Limitations Act by amending their pleadings to add additional claims (1100997 Ontario Limited). The other terminated employees, while referred to in AA and DA’s statement of claim, are not parties to the proceeding and their claims cannot be advanced by AA or DA unless or until a representation order is obtained. There is, like rule 12.08, no tolling provision which governs Rule 10.01 and suspends the running of the limitation period and thus the Green, supra logic applies.

The reliance on Lawrence by AA and DA does not assist because it has no application to the circumstances of this case, nor does it provide any general authority for granting a representation order to permit claims to be pursued after a limitation period has expired. In Lawrence, parties were added to the claim after the limitation period had expired to correct a misnomer.

Short Civil Decisions

Corsi v. Skanes, 2018 ONCA 661

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

FC, acting in person

Suhaib Ibrahim, for the respondent

Keywords: Civil Procedure, Vexatious Litigants, Frivolous and Vexatious Proceedings, Breach of Charter Rights, Highway Traffic Act, ss 128, 172, Canadian Charter of Rights and Freedoms, s 8, Rules of Civil Procedure, r 2.1.01

Matos v. Driesman, 2018 ONCA 660

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

DD, acting in person

Michael Polisuk, for the respondent

Keywords: Family Law, Child Support, Calculation of Income, Disclosure, Extraordinary Expenses, Federal Child Support Guidelines, s 7

Ontario Review Board Decisions

Honsinger (Re), 2018 ONCA 662

[Hoy A.C.J.O., van Rensburg and Pardu JJ.A.]

Counsel:

Robert F Goddard, for the appellant

Erica Whitford, for the respondent Crown

Marie-Pierre Pilon, for the Person in Charge, Brockville Mental Health Centre

Keywords: Ontario Review Board, Criminal Law, Assault, Mischief, Uttering Death Threats, Not Criminally Responsible, Mental Disorder, Threat to Public Safety

Criminal Decisions

R. v. Esseghaier, 2018 ONCA 659

[Watt J.A. in Chambers]

Counsel:

Iain MacKinnon, for the moving party, Canadian Broadcasting Corporation

Sarah Shaikh, for the responding party, Attorney General of Canada

Keywords: Criminal Law, Terrorism Offences, Freedom of the Press, Open Court Principle, Evidence, Confidential Informants, Confidentiality Orders, Sealing Orders, Undertakings

R. v. Culotta, 2018 ONCA 665

[Hourigan, Pardu and Nordheimer JJ.A.]

Counsel:

Dirk Derstine, for the appellant

Matthew Asma, for the respondent

Keywords: Criminal Law, Operating a Vessel Causing Bodily Harm, Impaired Operation of a Vessel, Breach of Charter Rights, Evidence, Admissibility, Right to Silence, Right to Counsel, Voluntariness, Criminal Code, ss 255(2.1), 487, Canadian Charter of Rights and Freedoms, ss 9, 10(b), 24(2), R. v. Taylor, 2014 SCC 50, R. v. Grant, 2009 SCC 32

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.

COURT OF APPEAL SUMMARIES (JULY 16 – JULY 20, 2018)

Good afternoon,

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

There were two property boundary disputes between neighbours decided this week, with different results. Both related to prescriptive easements and the “doctrine of lost modern grant”. The test for getting a prescriptive easement over a neighbour’s land, whether by statute or by the doctrine of lost modern grant is basically the same, and is as follows:

  1. a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
  2. the properties cannot be owned by the same person;
  3. the benefit of the easement must be reasonably necessary for the enjoyment of the doMinant tenement; and
  4. there must be 20 or 40 years’ (depending on the facts and whether proceeding under statute or under the lost modern grant doctrine) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner.

In English v Perras, the Court allowed the appeal and set aside the prescriptive easement that had been found by the application judge. The applicants had not succeeded in proving entitlement to the easement. The effect of the decision was to allow the respondent to keep a fence they had erected in the middle of what had been a shared driveway. On the other hand, in Hunsinger v. Carter, the Court allowed the appeal and expanded the more limited prescriptive easement that had been ordered by the application judge. The Court found that the application judge had erred in determining that the easement was not necessary over the front portion of the disputed area. The test is not whether the prescriptive easement is absolutely necessary in order to gain access, but whether it is necessary to gain “reasonably convenient” access.

In Di Gregorio v Sunwing Vacations Inc., vacationers were injured when the balcony railings in their hotel room in the Dominican Republic gave way. They sued in Ontario the hotel, hotel managers and Sunwing, the Canadian travel company that sold them the vacation package. The defendants moved to stay the claim on jurisdictional grounds and, alternatively, because the claims were out of time in accordance with the limitation period applicable in the Dominican Republic (six months for torts, two years for contracts). The  motion judge dismissed the claims only in reliance on the six-month tort limitation period applicable in the Dominican Republic. The Court of Appeal allowed the appeal for several reasons. First, it was not open to the judge to decide the case only on the limitation period issue. She was first obligated to determine if she had jurisdiction before deciding any other issue. If there was no jurisdiction, the judge should not have decided the limitation period issue. As it turned out, there was jurisdiction because the accident had contractual implications between the various parties and some of those contracts were made in Ontario. Accordingly, there was a contract made in Ontario that was connected to the incident, and this therefore gave the court jurisdiction simpliciter. Second, the judge erred in applying the tort limitation period of the Dominican Republic (6 months) without determining whether there may have been a valid claim pleaded in contract (where a two-year limitation period applies). Third, the judge decided the limitation period issue as if the motion was a Rule 20 motion for summary judgment. However, neither party had relied on that rule in their materials, so it was therefore not clear that this was a motion for summary judgment. Finally, the judge’s reasons did not permit for meaningful appellate review. In the circumstances, the Court declined to decide the limitation period issue and the parties will have to start all over again.

There was also a child custody decision, several criminal decisions, and a couple of Ontario Review Board decisions.

Have a wonderful weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

Table of Contents

English v Perras, 2018 ONCA 649      

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Evidence, Burden of Proof, Barbour v Bailey, 2016 ONCA 98, 1043 Bloor Inc. v 1714104 Ontario Inc., 2013 ONCA 91, Land Titles Act, RSO 1990, c L5, s 51

Hunsinger v. Carter, 2018 ONCA 656

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Real Property Limitations Act, RSO 1990, c L15, Section 31, Weidelich v. de Koning, 2014 ONCA 736

Di Gregorio v Sunwing Vacations Inc, 2018 ONCA 655

Keywords: Torts, Negligence, Breach of Contract, Civil Procedure, Jurisdiction Simpliciter, Club Resorts v Van Breda, 2012 SCC 17, Lapointe Rosenstein Marchand Melançon LLP. v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Foreign Limitation Periods, Summary Judgment, Procedural and Natural Justice, Failure to Give Reasons

Mattina v Mattina, 2018 ONCA 641

Keywords: Family Law, Custody, Best Interests of the Child, Principle of Maximum Contact, Summary Judgement, Family Law Rules, s. 16, Expert Evidence, Children’s Law Reform Act, RSO 1990, c C12, s. 30, Behrens v Stoodley (1999), 128 OAC 58, Gordon v Goertz, [1996] 2 SCR 27, Ojeikere v Ojeikere, 2017 ONCA 372, Canadian Charter of Rights and Freedoms, s. 7, s. 11(b).

For short civil decisions click here

For criminal, provincial, and Ontario Review Board decisions click here

Civil Decisions

English v Perras, 2018 ONCA 649

[Hoy ACJO, Brown and Trotter JJA]

Counsel:

R Graystone, for the appellants

RD Aburto and J Polowin, for the respondents

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Evidence, Burden of Proof, Barbour v Bailey, 2016 ONCA 98, 1043 Bloor Inc. v 1714104 Ontario Inc., 2013 ONCA 91, Land Titles Act, RSO 1990, c L5, s 51

Facts:

The appeal involves a dispute between neighbouring homeowners over the use and maintenance of a 14-foot wide strip of land (the “Shared Driveway”) between their houses. There are garages at the rear of the lots, accessed exclusively via this strip of land. The property line runs down the middle of this strip.

Mr. and Mrs. P (“the P’s”) erected a fence down the centre of the Shared Driveway, just inside their property line. This allows the P’s to drive vehicles from the road to their garage, but this prevents their neighbours, Mr. E and Ms. P, from accessing their garages from the road due to a retaining wall that narrows their driveway.

The legal rights of Mr. E and Ms. P fall to be determined largely by the conduct of their predecessors in title. The application judge found that, as a result of the historical use of the Shared Driveway, Mr. E and Ms. P are entitled to a prescriptive easement over the P’s driveway. She ordered the P’s to remove their fence.

The application judge concluded that Mr. E and Ms. P had acquired a prescriptive easement based on the doctrine of lost modern grant. The P’s appealed contending that the requirements for a prescriptive easement have not been established.

Issues:

Did the application judge err in her application of the doctrine of lost modern grant by:

(1) finding that the use of the driveway had been “as of right”, as opposed to by permission, and;

(2) finding that the easement was reasonably necessary to the enjoyment of Mr. E and Ms. P’s property?

Holding: Appeal allowed.

Reasoning:

(1) The essential features of an easement are set out in Barbour v Bailey. To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or the right-of-way:

  1. there must be a dominant and servient tenement;
  2. the dominant and servient owners must be different persons;
  3. the easement must be capable of forming the subject matter of a grant;
  4. and the easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenant.

The Court of Appeal cited 1043 Bloor Inc. v 1714104 Ontario Inc., stating that the doctrine of lost modern grant is recognized as a method for acquiring a prescriptive easement. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time – in Ontario, 20 years.

In Ontario, prescriptive easements have been abolished with respect to properties registered in the Land Titles system. Consequently, the 20-year period must precede the transfer of property into the Land Titles system. Both properties were registered in the Land Titles system in 1996. Mr. E and Ms. Phad to prove “uninterrupted and unchallenged use” for any 20-year period before 1996.

The courts have insisted on a high standard for establishing a prescriptive easement by lost modern grant.

There is a fine line between acquiescence in another’s exercise of easement-like rights and use by permission. Accordingly, there must be clear and unambiguous evidence that the use of the land was as of right and not by permission. If a claim is equally consistent with both uses, a claim based on lost modern grant must fail.

In this case, the evidence did not establish anything more than permissive use during the prescriptive period. The Easement Agreement between the parties’ predecessors in title was compelling evidence that the use during the prescriptive period was by way of permission. It does not clarify the existing rights of the owners at the time as reasoned by the application judge, because it would not make sense to limit its operation to 21 years if that were the case. The record shows that both owners were unsure of their respective rights.

(2) Yes. If it were not for the retaining wall, Mr. E and Ms. P would be able to use their driveway. This raises the question of whether there is an alternative solution that would allow Mr. E and Ms. P to reasonably enjoy their property and its driveway without resort to a prescriptive easement (that is, by removing the retaining wall). In the application judge’s reasoning, she reversed the onus of proof, requiring the P’s to establish that the easement was not necessary, and that the wall could be taken down. It was up to Mr. E and Ms. P to establish that the easement was reasonably necessary to the enjoyment of their property. On the evidence before the application judge, Mr. E and Ms. P did not prove that the easement was reasonably necessary to their enjoyment.

Hunsinger v. Carter, 2018 ONCA 656

[Feldman, Hourigan and Brown JJA]

Counsel:

CE McCarthy, for the appellant

T Nicholson, for the respondents

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Real Property Limitations Act, RSO 1990, c L15, Section 31, Weidelich v. de Koning, 2014 ONCA 736

Facts:

The appellant brought an application for a declaration that he was entitled to an easement over a strip of land between his property and the property of the respondents, and to restrain the respondents from blocking his right of way by erecting a fence. The appellant had used a gravel strip to access the rear of his property for many years. Previous owners of the respondents’ property had never disputed the appellant’s use of the gravel strip.

Although the application judge found that the appellant had established an easement over the strip, he declared the easement over only the rear part of the strip, and concluded that the respondents could erect a fence to block the front of the strip, as the use of the front of the strip was not necessary for the appellant to access the rear of his property.

The appellant appeals the order allowing the respondents to erect the fence.

Issues:

(1) Did the application judge err in his articulation and application of the tests for determining whether a prescriptive easement has been established?

(2) Did the application judge err in determining the basis on which an obstruction of an easement or right of way will be allowed or limited?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in law when he referred to the Weidelich case when discussing the criteria for finding a prescriptive easement rather than applying section 31 of the Real Property Limitations Act, RSO 1990, c L15, or the doctrine of lost modern grant.

An easement by prescription can arise either under section 31 of the Real Property Limitations Act or pursuant to the doctrine of lost modern grant. Both have the same four requirements, which were properly recognized by the application judge: i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; ii) the properties cannot be owned by the same person; iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and iv) there must be 20 or 40 years’ continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. The application judge erred in his application of Weidelich v. de Koning, 2014 ONCA 736 to conclude that the test for establishing a prescriptive easement is “reasonable convenience”.

He also erred in his application of the test in Weidelich by conflating the criteria for finding an easement with the criteria for finding an encroachment.

(2) Yes. The application judge erred by imposing a test of necessity on the owner of the dominant tenement, rather than the test of whether the dominant owner would be able to use the easement as conveniently as before. The uncontradicted evidence was that large trucks have accessed the back of the appellant’s property regularly over the entire time the appellant and his family have operated their business. The motion judge inferred that the trucks did not need to drive over the portion of the strip at the front half of the driveway but could stick to the appellant’s side of the driveway until they got to the back half. Although this may be possible, it is clearly not as convenient as having access to the full driveway.

Di Gregorio v Sunwing Vacations Inc, 2018 ONCA 655

[Feldman, Hourigan and Brown JJA]

Counsel:

WG Scott, for the appellants

T Hartley and I Sfranciog, for the respondents

Keywords: Torts, Negligence, Breach of Contract, Civil Procedure, Jurisdiction Simpliciter, Club Resorts v Van Breda, 2012 SCC 17, Lapointe Rosenstein Marchand Melançon LLP. v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Foreign Limitation Periods, Summary Judgment, Procedural and Natural Justice, Failure to Give Reasons

Facts:

This is an appeal from the orders of the motion judge dismissing the appellants’ claims based upon a foreign limitation period. The motion judge dismissed four actions commenced by the appellants as they relate to the respondents, AMR Resort Management, LLC (“AMR”) and AM Resorts, LLC (“AM”).

The appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa (the “Resort”). DG and JP were standing on a hotel room balcony at the Resort when the balcony railing gave way, causing the two men to fall and sustain injuries. The appellants purchased their vacation package through their travel agent, from Sunwing Vacations Inc. (“Sunwing”). Sunwing had a contract with Perfect Tours NV (“Perfect Tours”) with respect to bookings at the Resort. Perfect Tours was party to a hotel management agreement between AMR and a Dominican company that owned the Resort. The appellants allege that AMR and AM operated the Resort.

The appellants commenced four separate actions in Ontario. The respondents moved to stay or dismiss the actions against them. They argued that the Ontario courts do not have jurisdiction over the dispute. Alternatively, if the Ontario courts do have jurisdiction, they submitted that the laws of the Dominican Republic govern the action. The limitation period for a tort claim in the Dominican Republic is six months; therefore, the actions were statute-barred. Without addressing the jurisdictional argument, the motion judge determined that the laws of the Dominican Republic applied, that the actions could only be in tort, as there was no contractual relationship. Thus, the actions were statute-barred.

Issues:

(1) Did the motion judge err by failing to conduct a jurisdictional analysis?

(2) Did the motion judge err in her analysis of which limitation period would apply?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the motion judge erred in law by inexplicably jumping to an analysis of the law of the Dominican Republic rather than conducting a jurisdictional analysis. The motion judge was obliged to conduct a jurisdictional analysis pursuant to Club Resorts v. Van Breda, 2012 SCC 17. In the absence of jurisdiction, courts should not be offering their views on cases that may not be properly before them. Had the motion judge conducted the jurisdictional analysis, she would have recognized that AM attorned to the Ontario courts because it filed a defence. AMR did not file a defence; it simply joined the motion for the stay. The motion judge should have identified the basis for jurisdiction over AMR.

The relevant jurisdictional connecting factor is the claim pleaded based on an Ontario contract. There was a dispute about whether the respondents were parties to that contract. For jurisdictional purposes, however, a contractual connection does not require that an alleged tortfeasor be a party to the contract or that its liability flows immediately from its contractual obligations. All that is required is that a defendant’s conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship: Lapointe Rosenstein Marchand Melançon LLP. v. Cassels Brock & Blackwell LLP, 2016 SCC 30, at paras. 32 and 44. Therefore, the Court concluded that there was a contractual connecting factor to Ontario and the Ontario courts had jurisdiction simpliciter over AMR. The respondents did not challenge jurisdiction on the basis of forum non conveniens, so that issue was not considered.

(2) Yes, the motion judge erred in her analysis of which limitation period would apply. There was no issue that the law of the Dominican Republic would apply. There was no dispute that under the laws of that country, negligence claims are subject to a six-month limitation period and that contract claims are subject to a two-year limitation period. The difficulty was in the motion judge’s analysis of the issue of whether the claim was in tort or in contract.

The first problem was that it was unclear on what basis she was determining the limitation period issue. The parties advised in oral argument that the issue was argued as a summary judgment motion. However, there was no reference to rule 20 in the notice of motion or in the reasons. The test for granting summary judgment was also not referred to in the reasons and there was no analysis of whether it had been met. The moving parties ought to have made the rule they were relying on explicit in their materials.

There was also scant analysis on the issue of whether the appellants had a claim in contract. Instead, the trial judge simply asserted a bald conclusion that there was no contract claim in relation to the respondents. To the extent that any analysis can be discerned, it is flawed. For example, the motion judge stated that, “the only contractual breach pleaded by the plaintiffs was that between the plaintiffs and the vendor hotel accommodation, the Sunwing defendant…” The Court held that this was incorrect. The statement of claim was clear that a breach of contract claim was being asserted against the respondents. In addition to this factual error, the motion judge did not address in any meaningful way the appellants’ key argument. The appellants relied on the fact that they had a contract with Sunwing, who had a contract with Perfect Tours, who in turn had a contract with the respondents. The appellants’ counsel argued that his clients had a contract with respondents via agency or as an implied contract. The motion judge dismissed that submission without analysis.

The Court faced difficulty understanding the motion judge’s chain of reasoning. The Court did not suggest that on a proper analysis the contractual arguments made by the appellants could not be rejected. But rather, a legal analysis must be rigorous; a series of conclusory statements is not sufficient. As a court of error correction, the Court required reasons that revealed, at a minimum, the decision made, the authority for the decision, the rationale for the decision, and the factual basis for the decision. Where that basic information is not provided or is not readily apparent from the record, the reasons do not permit appellate review. The Court therefore concluded that in addition to the palpable and overriding error of fact made by the motion judge, the reasons are inadequate, as they are not amenable to appellate review. They do not enlighten the parties or the Court regarding the basis for the decision.

In the result, the appeal was allowed and the orders of the motion judge were set aside. The Court found that the matters may proceed to trial or for a summary judgment motion as the parties may see fit.

Mattina v Mattina, 2018 ONCA 641

[Epstein, Lauwers, and van Rensburg JJA]

Counsel:

Martha McCarthy, Maureen Edwards, and Lauren Hanna, for the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the respondent

Keywords: Family Law, Custody, Best Interests of the Child, Principle of Maximum Contact, Summary Judgement, Family Law Rules, s. 16, Expert Evidence, Children’s Law Reform Act, RSO 1990, c C12, s. 30, Behrens v Stoodley (1999), 128 OAC 58, Gordon v Goertz, [1996] 2 SCR 27, Ojeikere v Ojeikere, 2017 ONCA 372, Canadian Charter of Rights and Freedoms, s. 7, s. 11(b)

Facts: The parties married in 1998 and separated in 2013. They had three sons. The father commenced a custody and access proceeding. On consent, the court ordered a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act. That report was updated in 2015. The application was unlikely to be heard until 2017, so the father brought a motion seeking sole interim custody of the three sons for 90 days with no access to the mother and an order directing that during this period, the parents and children participate in the Family Bridges program. In the alternative, the father sought a directed trial on custody and access with expert evidence to be presented from the author of the s. 30 report and an expert in parental alienation. The mother brought a motion for summary judgement seeking sole custody of the three sons with access to the father at the discretion of the children. The summary judgement motion was granted.

Issues:

(1) Did the motion judge err by proceeding by way of summary judgment?

(2) Did the motion judge err in failing to attach sufficient weight to the s. 30 assessment and in his factual finding that there was no evidence that the mother had influenced the children?

(3) Did the motion judge err in law by failing to adequately consider the best interests of the children and the principle of maximum contact under the Divorce Act?

(4) Did the delays in the proceeding infringe on the father’s Charter rights or Canada’s international law obligations?

Holding: Appeal dismissed.

Reasoning:

(1) No. Summary judgment is available in non-divorce cases under s. 16 of the Family Law Rules. Both parties were firm in their position during the hearing of the motion that the record contained sufficient evidence to determine the issues by summary judgment. The motion judge reasonably concluded that he required no further clarification on the s. 30 assessments and that there was no requirement to allow the s. 30 assessor to give viva voce evidence.

(2) No. Decision-making ought not to be delegated to an assessor (Behrens v Stoodley). The original s. 30 assessment recommended the children and father engage in a therapeutic weekend with the assistance of a therapist, but the children refused to attend. In the updated report, the assessor recommended parent-child interaction therapy, but the therapist recommended a suspension of that service until the children expressed a desire to undergo therapy. The motion judge clearly relied on the assessor’s reports. The issue before the judge was how much weight to give to the children’s views and preferences. The motion judge reasonably concluded that the children’s views and preferences were not manufactured or unduly influenced by the mother. Despite the s. 30 assessor’s significant amount of work, she made no finding of parental alienation. There was ample evidence to support the motion judge’s finding that the children had suffered physical abuse from their father.

(3) No. The best interests of the children are the only consideration in a principle of maximum contact analyses (Gordon v Goertz). The motion judge put great weight on the childrens’ consistently expressed views and preferences. In so doing, the motions judge clearly relied on the s. 30 assessment reports to conclude that the children were expressing genuine views and preferences when they repeatedly informed various mental health professionals that they did not want their father to have access to them. The collective view of the children is also important (Ojeikere v Ojeikere) and here, all three children expressed the same views.

(4) No. The father contributed to the delay in the proceedings and the motion judge made his decision based only on the childrens’ best interests. He made access at the children’s discretion, which was clearly in accordance with the principles of fundamental justice and Canada’s international law obligations.

Short Civil Decisions

Mancinelli v Royal Bank of Canada, 2018 ONCA 652

[Hoy ACJO, Brown and Trotter JJA]

Counsel:

KM Baert, CPoltak and L Sokolov, for the appellants

L Jackson, W Berman and C Horkins, for the respondents, the Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A., BMO Capital Markets Limited

P Le Vay, B van Niejenhuis and B Kates, for the respondents, Toronto Dominion Bank, TD Bank, N.A., TD Group Holdings, LLC, TD Bank USA, N.A. and TD Securities Limited

Keywords: Class Actions, Costs

Criminal and Regulatory Offences

R v Horsford, 2018 ONCA 639

[Benotto, Trotter and Paciocco JJA]

Counsel:

M Gourlay, duty counsel

I Bell, for the respondent

Keywords: Criminal Law, Leave to Appeal

R v Meloche, 2018 ONCA 640

[Benotto, Trotter and Paciocco JJA]

Counsel:

R Meloche, in person assisted by A Ohler duty counsel

G Choi, for the respondent

Keywords: Criminal Law, Sentencing, Probation

R v AP, 2018 ONCA 642 (publication ban)

[Benotto, Trotter and Paciocco JJA]

Counsel :

AP, acting in person

L Bolton, for the respondent

I Grant, duty counsel

Keywords: Criminal Law, Evidence, Credibility

R v Abdulle, 2018 ONCA 643

[Benotto, Trotter and Paciocco JJA]

Counsel:

MFA, acting in person

C Zary, for the respondent

I Grant, duty counsel

Keywords: Criminal Law, Fraud, Sentencing, Immigration and Refugee Protection Act, SC 2001, c 27, R v W(D), [1991] 1 SCR 742

R v Dinh, 2018 ONCA 644

[Benotto, Trotter and Paciocco JJA]

Counsel:

PXD, acting in person

V Goela, for the respondent

M Gourlay, duty counsel

Keywords: Criminal Law, Trafficking, Sentencing

R v Dubinksy, 2018 ONCA 645

[Benotto, Trotter and Paciocco JJA]

Counsel:

CD, acting in person

H Freeman, for the respondent

A Ohler, duty counsel

Keywords: Criminal Law, Aggravated Assault, Sentencing

R v Rockey, 2018 ONCA 646

[Benotto, Trotter and Paciocco JJA]

Counsel:

DWR, acting in person

E Dann, duty counsel

L Bolton, for the respondent

Keywords: Criminal Law, Driving Offences, Jury Instructions, Sentencing

R v Momprevil, 2018 ONCA 647

[Benotto, Trotter and Paciocco JJA]

Counsel:

BM, self-represented

I Grant, duty counsel

L Bolton, for the respondent

Keywords: Criminal Law, Criminal Harassment, Evidence, Canadian Charter of Rights and Freedoms

R v RJ, 2018 ONCA 648 (publication ban)

[Benotto, Trotter and Paciocco JJA]

Counsel:

RJ, self-represented

L Trevelyan, duty counsel

D Calderwood, for the respondent

Keywords: Criminal Law, Sexual Assault, Jury Instructions

R v MacIsaac, 2018 ONCA 650

[Watt, Brown and Huscroft JJA]

Counsel:

F Addario and J Foy, for the appellant

K Doherty, for the respondent

Keywords: Criminal Law, Aggravated Assault, Delay, Canadian Charter of Rights and Freedoms, Section 11(b), R v Jordan, 2016 SCC 27

R v Phillips, 2018 ONCA 651 (publication ban)

[Watt, Huscroft and Trotter JJA]

Counsel:

AK Kapoor and DC Achtemichuk, for the appellant

M Lai, for the respondent

Keywords: Criminal Law, Possession of a Firearm, Uttering Death Threats, Kidnapping, Unlawful Confinement, Robbery, Break and Enter, Mischief, Pointing a Firearm, Jury Instructions

R v Cherrington, 2018 ONCA 653

[Watt, Pardu and Roberts JJA]

Counsel:

GC, acting in person

A Hotke, for the respondent

A Moustacalis, appearing as amicus curiae

Keywords: Criminal Law, Fraud

Tompkins (Re), 2018 ONCA 654

[Strathy CJO, Watt and Epstein JJA]

Counsel:

E Dann, for the appellant

A Cappell, for the Ministry of the Attorney General

JE Blackburn, for the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Murder, Not Criminally Responsible

Valdez (Re), 2018 ONCA 657

[Lauwers, Miller and Fairburn JJA]

Counsel:

A Szigeti, for the appellant

J Reid, for the respondent Attorney General of Ontario

L Crowell, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Criminal Law, Arson, Failure to Comply with Probation, Not Criminally Responsible, Conditional Discharge

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 (JULY 9 – 13)

The following are our summaries of this week’s civil decisions of the Ontario Court of Appeal.

In Yip v HSBC Holdings plc, the Court of Appeal upheld the stay of a US$7 billion class action claim for secondary securities market misrepresentation on jurisdictional grounds. The securities at issue were bought by Canadians on foreign exchanges, as they did not trade on a Canadian stock exchange. The Court determined that Ontario securities law did not extend as far as to permit a claim for secondary market misrepresentation under the Securities Act to proceed in Ontario in such circumstances, and therefore upheld the stay of proceedings imposed by the motion judge.

In Malkov v Stovichek-Malkov, the Court of Appeal confirmed that the test for a plaintiff to re-open their case in the context of family law proceedings is as set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762.

Other topics covered this week included crown wardship, constructive dismissal, partial summary judgment, unjust enrichment as a result of an overpayment by an insurer, a construction lien action, and a claim for negligent investigation and related torts against the police and Fire Marshall in a case of arson by negligence (the claims were dismissed).

Please feel free to share this blog with friends and colleagues. As, always we welcome your comments and feedback.

I hope everyone is enjoying the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

Yip v HSBC Holdings plc, 2018 ONCA 626

Keywords: Torts, Negligent Misrepresentation, Securities, Secondary Market Misrepresentations, Securities Act, RSO 1990, c S 5, s. 138.1, Definition of “Responsible Issuer”, Abdula v Canadian Solar Inc, 2012 ONCA 211, Statutory Interpretation, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Civil Procedure, Class Actions, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd v Van Breda, 2012 SCC 17, Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393, Kaynes v. BP, PLC, 2014 ONCA 580, Kaynes v BP PLC, 2016 ONCA 601, Costs, Public Interest Litigation, Enterpreneurial Litigation, Disbursements, Experts, Proportionality, Fantl v Transamerica Life Canada, 2009 ONCA 377, 3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.), Class Proceedings Act, 1992, SO 1992, c 6, s. 31(1), Rules of Civil Procedure, Rule 1.04(1.1)

Malkov v Stovichek-Malkov, 2018 ONCA 620

Keywords: Family Law, Civil Procedure, Trials, Evidence, Reopening Case, Abuse of Process, Rules of Civil Procedure, Rules 52.10, 53.01(3), Family Law Rules, O. Reg. 114/99,  Scott v. Cook, [1970] 2 O.R. 769 (H.C.), Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762

Peel Children’s Aid Society v MH, 2018 ONCA 619

Keywords: Family Law, Publication Ban, Crown Wardship, Child and Family Services Act, RSO 1990 c, C-11, Abuse of Process, Ineffective Assistance of Counsel, Fresh Evidence, Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Filice v Complex Services Inc, 2018 ONCA 625

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Notice Period, Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, Chapman v GPM Investment Management, 2017 ONCA 227, Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, Damages, Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Punitive Damages, Whiten v Pilot Insurance Co, 2002 SCC 18, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Pate Estate v Galway-Cavendish (Township), 2013 ONCA 669, Rutman v Rabinowitz, 2018 ONCA 80

Payne v Mak, 2018 ONCA 622

Keywords: Torts, Negligent Investigation, Malicious Prosecution, Abuse of Process, Vicarious Liability, Breach of Charter Rights, Charter Damages, Criminal Law, Arson by Negligence, Reasonable and Probable Grounds, Costs, Criminal Code, RSC, 1985, c C-46, s 436, Canadian Charter of Rights and Freedoms, ss 7, 24

Toor v Toor, 2018 ONCA 621

Keywords: Family Law, Property, Loans, Gifts, Resulting Trusts, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Gore Mutual Insurance Company v Carlin, 2018 ONCA 628

Keywords: Insurance Law, Fire Policy, Property Damage, Business Interruption Losses, Restitution, Overpayment, Unjust Enrichment, Brisette Estate v Westbury Life Insurance Co., [1992] 3 SCR 87, Kerr v Baranow, 2011 SCC 10, [2011] SCR 269, Garland v Consumers’ Gas Co., 2004 SCC 25, Insurance Act, RSO 1990, c. I.8, s. 128

Larizza v Royal Bank of Canada, 2018 ONCA 632

Keywords: Torts, Negligence, Intrusion Upon Seclusion, Negligent Misrepresentation, Intentional or Negligent Infliction of Mental Distress, Breach of Contract, Breach of Fiduciary Duty, Summary Judgment, Jones v Tsige, 2012 ONCA 32, Bhasin v Hrynew, 2014 SCC 71

The Birkshire Group Inc v Wilkes, 2018 ONCA 631

Keywords: Construction Law, Civil Procedure, Evidence, Reopening Case, Credibility, Procedural and Natural Justice, Failure to Give Reasons, R v JMH, 2011 SCC 45, Dovbush v Mouzitchka, 2016 ONCA 381, Construction Lien Act, RSO 1990 c C30

Hagholm v Coreio Inc, 2018 ONCA 633

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Bonuses, Defences, Mitigation, Singer v Nordstrong Equipment Ltd, 2018 ONCA 364

Popack v Lipszyc, 2018 ONCA 635

Keywords: Civil Procedure, International Arbitration, Arbitral Awards, Enforcement, UNCITRAL Model Law on International Commercial Arbitration, International Commercial Arbitration Act, 2017, SO 2007, c 2, Sched 5, Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19

CNH Canada Ltd v Chesterman Farm Equipment Ltd, 2018 ONCA

Keywords: Contracts, Distribution Agreements, Indefinite Term, Interpretation, Termination, Reasonable Notice, Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, Statutory Interpretation, Standard of Review, Dealership Agreements Regulation, O. Reg. 123/06, Farms Implements Act, R.S.O. 1990, c. F.4, Costs, Proportionality Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Barbour v Bailey, 2016 ONCA 334

For short civil decisions click here

For criminal, provincial and Ontario Review Board decisions click here

Civil Decisions

Yip v HSBC Holdings plc, 2018 ONCA 626

[Lauwers, Benotto and Nordheimer JJ.A]

Counsel:

Paul J. Bates, John Archibald, and Earl A. Cherniak, Q.C., for the appellant

Paul Steep, Brandon Kain, and Bryn Gray, for the respondents

Keywords: Torts, Negligent Misrepresentation, Securities, Secondary Market Misrepresentations, Securities Act, RSO 1990, c S 5, s. 138.1, Definition of “Responsible Issuer”, Abdula v Canadian Solar Inc, 2012 ONCA 211, Statutory Interpretation, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Civil Procedure, Class Actions, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd v Van Breda, 2012 SCC 17, Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393, Kaynes v. BP, PLC, 2014 ONCA 580, Kaynes v BP PLC, 2016 ONCA 601, Costs, Public Interest Litigation, Enterpreneurial Litigation, Disbursements, Experts, Proportionality, Fantl v Transamerica Life Canada, 2009 ONCA 377, 3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.), Class Proceedings Act, 1992, SO 1992, c 6, s. 31(1), Rules of Civil Procedure, Rule 1.04(1.1)

Facts:

This appeal concerns a proposed securities class action for negligent misrepresentation against HSBC Holdings (“HSBC Holdings”).  HSBC Holdings is the parent holding company of an international banking conglomerate with its head office in London, UK. The securities have never traded or been listed on any Canadian stock exchange. They are traded on the London and Hong Kong Stock Exchanges with secondary listings on the Bermuda Stock Exchange and the Paris Euronext Stock Exchange. HSBC’s American Depository Receipts (ADRs) traded on the New York Stock Exchange. HSBC Holdings has about 220,000 shareholders in 129 countries, including Canada. The appellant asserts that he and other purchasers of HSBC Holdings’ shares or ADRs were misled by HSBC Holdings’ continuous disclosure documents and public statements in two primary respects: (i) that it had complied with anti-money laundering and anti-terrorist financing laws; and (ii) that it had not participated in an illegal scheme to manipulate certain international benchmark rates. The motion judge proceeded on the assumption that these misrepresentations occurred.

The appellant asserts that these misrepresentations caused investors in HSBC Holdings to suffer about US$7 billion in losses because they purchased shares and ADRs at artificially inflated prices. This is the basis of his statutory and common law tort claims for misrepresentation.

The motion judge heard two motions. HSBC Holdings moved to dismiss or stay the appellant’s action because the Ontario court lacks jurisdiction simpliciter and because Ontario is forum non conveniens. The appellant brought a cross-motion for a declaration that HSBC Holdings is a responsible issuer under s.138.8 of the Ontario Securities Act. The motion judge dismissed the appellant’s action and stayed the common law misrepresentation claim. He dismissed the appellant’s cross-motion.

Issues:

(1) Did the motion judge err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act?

(2) Did the motion judge err in his application of the common law real and substantial connection test?

(3) Did the motion judge err in his application of the doctrine of forum non conveniens?

(4) Should leave to appeal the costs award be granted and should the costs award be varied?

Holding: Appeal dismissed.

Reasoning:

(1) No, the motion judge did not err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act. The appellant’s statutory tort claim is based on s. 138.3, which gives investors a statutory cause of action against a responsible issuer for a misrepresentation in a “document” released by it or contained in a public oral statement. Section 138.3 defines a responsible issuer to mean “(b) any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded” (emphasis added). The appellant relied on Abdula v Canadian Solar Inc, 2012 ONCA 211, and urged the court to find that: “An issuer that knows or ought to know that its investor information is being made available to Canadian investors has a securities regulatory nexus” with Ontario sufficient to establish a real and substantial connection. The appellant argued that this would be a purposive interpretation consistent with the goal of the Securities Act to protect investors from fraudulent practices.

In the alternative, the appellant submitted that the court should identify a new presumptive connecting factor for cases of secondary market misrepresentation. The appellant argued that HSBC Holdings “ought to know both that” the putative class members “may well be injured and it [was] reasonably foreseeable that the misrepresentation” would be acted upon: Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393. The appellant therefore argued that the motion judge erred in declaring that HSBC Holdings is not a responsible issuer.

The Court rejected this argument because the proposed formulation of the test might make Ontario a universal jurisdiction for secondary market misrepresentations made anywhere in the world. The Court reiterated that the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Legislature: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, at para 26; and Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21.

In analyzing the Legislature’s intention, the Court found that by introducing civil liability for secondary market misrepresentations, the Legislature did not intend that Ontario would become the default jurisdiction for issuers around the world whose securities were purchased by residents of Ontario. The Court additionally found that the Legislature’s adoption of the language in which the common law jurisdiction simpliciter test is framed was not accidental. Rather, it was well entrenched, and it specifically aimed at preventing jurisdictional overreach. The concern about jurisdictional overreach affects the assessment at three levels of the common law test for determining whether a Canadian court will assume jurisdiction: (i) requiring the presence of a presumptive connecting factor; (ii) determining whether the factor has been rebutted; and (iii) in applying the forum non conveniens doctrine.

Further, in assessing the judicial history of the real and substantial connection test, the Court cited the Supreme Court’s decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. Justice LeBel expressed similar concerns in his formulation of the factors a court is to consider in determining whether a real and substantial connection exists in a tort case. He repeatedly expressed one of the primary aims of the test: to reduce the “risk of jurisdictional overreach” (at para. 22); to “prevent improper assumptions of jurisdiction” (at para. 26); to prevent “courts from overreaching by entering into matters in which they had little or no interest” (at para. 38); and to reduce the risk of “sweeping into that jurisdiction [,] claims that have only a limited relationship with the forum” (at para. 89). In his view, a judicial approach that leads to “universal jurisdiction” should be avoided.

Accordingly, the Court rejected the appellant’s argument that, on purposive grounds, the interpretation of the expression “real and substantial connection” in the Securities Act must be different than its common law meaning in the jurisdiction simpliciter cases. Rather, a purposive interpretation led the Court to reject the appellant’s proposed test and alternative argument that the court should recognize a new presumptive connecting factor for this type of statutory claim. The Court rejected that an issuer that knows or ought to know that its investor information is being made available to Canadian investors creates a securities regulatory nexus sufficient to establish a real and substantial connection to Ontario. In determining whether an issuer is a responsible issuer, the courts are generally to apply the common law test for a real and substantial connection.

(2) No, the motion judge did not err in his application of the common law test for a real and substantial connection. The Ontario Superior Court of Justice has jurisdiction over a foreign defendant in a tort action if the plaintiff establishes that a real and substantial connection exists between the subject matter of the litigation and Ontario. In Van Breda, the Supreme Court formulated four rebuttable presumptive connective factors, at para 90:

[I]n a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

The appellant asserted that HSBC Holdings was caught by two of the presumptive connecting factors: it committed a tort in Ontario; and it carries on business in Ontario. The appellant contended that the motion judge erred by requiring HSBC Holdings to have a physical presence in Ontario. The Court of Appeal disagreed with this argument. The motion judge’s finding that HSBC Holdings’ business is that of managing a global enterprise of a group of commonly bannered banks to the extent of setting global standards for a global enterprise was correct and entitled to deference. The Court found that HSBC Holdings could not be said to have carried on business in Ontario simply because the appellant could access a non-reporting issuer’s disclosure information using his home computer in Ontario. This would amount to an “extremely weak connection” to securities regulation in Ontario. It would also give rise to the universal jurisdiction that LeBel J. explicitly rejected in Van Breda.

The Court distinguished Abdula, where the issuer was found to be a responsible issuer because there was a real and substantial connection to Ontario, at para. 88. The issuer in Abdula had been incorporated in Ontario; its executive offices as well as some business and governance operations were in Ontario; and it had held its annual meeting in Ontario. Here, HSBC Holdings’ management business was distinct from the businesses it manages. Very few activities of HSBC Holdings’ business had ever occurred in Ontario; it had no fixed place of business in Canada; and there was no agent of HSBC Holdings doing its management business in Ontario. Therefore, HSBC Holdings is not a responsible issuer under the Securities Act because it had no real and substantial connection to Ontario.

(3) No, the motion judge accurately expressed and applied the principles in the forum non conveniens analysis and this determination attracts deference: see Van Breda, at para. 112.

A court may decline jurisdiction on the basis that there is another more appropriate forum under the forum non conveniens doctrine, even if it finds it has jurisdiction simpliciter. Given the Court’s conclusion that Ontario courts do not have jurisdiction simpliciter, it was unnecessary to consider the forum non conveniens doctrine. However, since the appellant raised arguments about the interaction between this court’s decisions in Kaynes (2014) and Kaynes v BP PLC, 2016 ONCA 601, 133 O.R. (3d) 29, the Court found that a response would be helpful.

The Court went on to extensively discuss the Kaynes decisions, in which the court had first stayed a securities class action in 2014 on jurisdictional grounds, and then lifted the stay in 2016 to permit the claim to proceed. The appellant’s argument that there was inconsistency between the court’s decisions in Kaynes (2014) and Kaynes (2016) was rejected. In Kaynes (2016), the court lifted the stay it imposed in Kaynes (2014) in order to allow the appellant to have his claim adjudicated on its merits. The panel did not suggest that the framework it set out in Kaynes (2014) was wrong. The law did not change in Kaynes (2016); the facts changed. The court in Kaynes (2016) stated, at para. 16: these developments, taken as a whole, are sufficient to justify lifting the stay. Comity was central in Kaynes (2014). The importance of comity did not change in Kaynes (2016). In Kaynes (2014), the court showed respect for the U.S. court, which was already adjudicating similar claims. When the U.S. District Court judge dismissed the claim on a “purely procedural barrier”, there was no decision on the merits that the court could recognize: Kaynes (2016), at para. 16. In addition, given that Mr. Kaynes had commenced his claim in Ontario in time, it was unfair that this be a basis for preventing the claim from being heard on its merits. Thus, in Kaynes (2016), the court did not elevate the juridical advantage of asserting a claim as a class action to the status of an inviolable right. Rather, it applied the Kaynes (2014) framework to a new set of facts.

The appellant argued that the motion judge failed to give due weight to the loss of juridical advantage he would suffer if Ontario declined jurisdiction, and he asserted: There is no authority for the proposition relied on by the motion judge that juridical advantage should be viewed as “a weak and problematic factor”. This is incorrect. The Supreme Court noted that the juridical advantage factor is problematic in the forum non conveniens analysis, both as a matter of comity and as a practical matter: Breeden v Black, 2012 SCC 19, [2012] 1 SCR 666, at para 27; Van Breda, at para 112.

As a matter of comity, secondary market trading is international and involves numerous jurisdictions. Comity is particularly important to maintain an orderly and predictable regime for dispute resolution. As stated by LeBel J. in Van Breda: “Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships” (at para. 74). In this case, the motion judge properly expressed and applied the forum non conveniens principles. HSBC Holdings could not reasonably have expected that it would be subject to the securities regulation of the law of Ontario. Therefore, the motion judge was right to conclude that Ontario was forum non conveniens.

(4) Yes and yes. The Court granted leave to appeal the costs award, and varied it by reducing it from $1,000,455.22 to $800,000. In reducing the award, the court did not accept the appellant’s submission that this litigation should be considered public interest litigation in the costs context (Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427 (C.A.)). There was no such specific or special significance of this case beyond the putative class members.  This was entrepreneurial litigation. The Court also found that this litigation did not raise a novel issue: the central issue was jurisdictional. The Court did disagree with the motion judge where he drew a distinction between “altruistic” and “entrepreneurial” litigation. Class actions are generally entrepreneurial litigation: Fantl v Transamerica Life Canada, 2009 ONCA 377 at para 66. However, the Court did not disagree with the motion judge’s conclusion that the fees sought by the respondent were fair and reasonable in the circumstances and the expert evidence and fees were necessary for the motion.

Expert fees are not to be arbitrarily reduced to reflect partial indemnity costs (3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.)). Proportionality is a matter of general principle in applying the Rules of Civil Procedure: see r. 1.04(1.1). The expert fees allowed must still be reasonable in terms of hours and rates charged in proportion to the matter. The motion judge referred to, but did not apply, this test. There was no information provided for three of the six experts in terms of the hours spent or the rates charged. That significantly constrained a review of the fees charged. While the court could have remitted the matter back to the motion judge, it decided to reduce the costs in respect of the expert fee disbursements incurred.

Malkov v Stovichek-Malkov, 2018 ONCA 620

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Robert G. Schipper and John Freeman, for the appellant

Leonard Susman, for the respondent MM

Keywords: Family Law, Civil Procedure, Trials, Evidence, Reopening Case, Abuse of Process, Rules of Civil Procedure, Rules 52.10, 53.01(3), Family Law Rules, O. Reg. 114/99,  Scott v. Cook, [1970] 2 O.R. 769 (H.C.), Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762

Facts:

The appellant appeals from the order of the trial judge (i) declaring that MM is the sole beneficial owner of the Property in question; and (ii) requiring the appellant to transfer her right, title and interest in the property to MM. At the start of the trial, the trial judge proposed and counsel agreed to hear MM’s case, then the appellants’, followed by closing submissions. While MM had initially indicated that he would be calling Ms. D as a witness, his counsel later advised that he would not.  The appellant then put in her case, and did not seek to call Ms. D. The continuation of the trial was put over until a few months later. At that time, the appellant’s counsel advised the court that he intended to call Ms. D as a witness. Noting that the appellant did not have a right to call reply evidence because she had not led her evidence first, the trial judge treated this as a request to reopen her case. The trial judge found that since the appellant did not frame her request as one based on accident or mistake, “to reopen her case to call a witness who […] has no discovered evidence to provide would […] be an abuse of process.”

Issues:

Did the trial judge fail to conduct the proceedings in a fair manner due to her refusal to allow the appellant to call Ms. D as a witness?

Holding: Appeal dismissed.

Reasoning:

No, the trial judge did not fail to conduct the proceedings in a fair manner due to her refusal to allow the appellant to call Ms. D as a witness. The trial judge relied on the decision in Scott v. Cook, [1970] 2 O.R. 769 (H.C.), which held that on a motion to reopen trial proceedings, the requesting party must show that the evidence sought to be adduced is such that, if it had been presented during the trial, it probably would have changed the result. The appellant contended that the more appropriate test to be applied in the context of family law proceedings is that set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762,  which lists the following factors a court will consider in civil cases in determining whether to allow a plaintiff to re-open their case:

  1. At what stage of the trial is the motion made?
  2. Why was evidence not adduced during the party’s case?
  3. Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
  4. What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
  5. Can any prejudice be remedied in costs?
  6. How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?

7.What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or noncontroversial point? Does it merely “shore up” evidence led in chief?

  1. Is the proposed new evidence presumptively credible?

The Court agreed that this case provides a helpful list of factors for a trial judge to consider when entertaining a party’s request to reopen her case. However, the Court found that when the trial judge’s reasons for her ruling are read as a whole, they disclose that she took into account the factors most relevant to the specific circumstances of the case.

When MM’s counsel advised that he would not call Ms. D, the appellant was offered a mechanism by which she could secure Ms. D’s evidence for her case without summons. However, she did not avail herself of the opportunity. Instead, she waited several months until the resumption of the trial to request reopening her case. Given the appellant’s lack of forensic diligence regarding Ms. D’s evidence, and the absence of any evidentiary basis to suggest the this evidence probably would have an important influence on the result of the case, the Court found no error in the cost/benefit and fairness analysis conducted by the trial judge that led her to exercise her discretion to refuse the appellant leave to call Ms. D.

Peel Children’s Aid Society v MH, 2018 ONCA 619

[Feldman, Hourigan, and Brown, JJA]

Counsel:

Benjamin Vincents, for the appellant, SH

Laura Shaw and Amanda Rozario, for the respondent, Peel Children’s Aid Society

James Cook and Chris Junior, for the respondent, MO

Keywords: Family Law, Publication Ban, Crown Wardship, Child and Family Services Act, RSO 1990 c, C-11, Abuse of Process, Ineffective Assistance of Counsel, Fresh Evidence, Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Facts:

MH and SH were each convicted of manslaughter for the death of their 2-year old child M which was the result of malnutrition. A second child, AM, was found at the time of M’s death to be lacking in Vitamin D and B12. The doctor advising the parents recommended dietary supplementation as necessary. Five weeks later, the Peel Children’s Aid Society (“CAS”) commenced a child protection application after SH admitted that AM had not been given the recommended vitamins. A plan to return AM to the care of her parents was deemed unsuccessful due to the unwillingness of AM’s parents to cooperate with CAS. AM was ultimately found in need of protection pursuant to the Child and Family Services Act, RSO 1990 c, C-11 (the “CFSA”). AZ, born subsequent to the finding, was apprehended at birth and placed in foster care and was later also found in need of protection under the CFSA. Both AM and AZ later became Crown wards without access. MH and SH unsuccessfully appealed the order from the Ontario Court of Justice to the Superior Court of Justice. They appealed again.

Issues:

(1) Did the appellate judge err in upholding the decision that AZ was in need of protection and that both children should be made Crown wards?

(2) Did the CAS obtain Crown wardship by way of abuse of process?

(3) Did the appeal judge err in failing to find that the ineffective assistance of counsel did not allow for a fair trial?

(4) Did the appellate judge fail to properly review fresh evidence?

Holding: Appeal dismissed.

Reasoning:

(1) No. Given the death of M while in her parents’ care, the previous finding that AM was in need of protection, and the appellants’ demonstrated inability to cooperate with CAS, there was ample evidence to support the finding that AZ was in need of protection. The detailed reasons of the trial judge, which were upheld by the appellate judge, assessed, inter alia, the children’s physical, mental, and emotional needs, level of development and the merits of the CAS plan and were sufficient. The trial judge’s conclusion that the parents were unwilling to put the children’s well-being first was correct.

(2) No. The allegations that the CAS hid from the appellate judge the father’s presentation of a sufficient caregiver to CAS is meritless. The CAS repeatedly asked for names of family members who could care for the children and none of the family members presented a plan of care. Providing a name and phone number is not equivalent to providing a plan of care.

(3) No. The appellate judge carefully considered the appropriate case law in Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931, including whether or not any potential prejudice had occurred as a result of trial counsel’s advocacy. While trial counsel had encouraged the parents to not testify, the appellate judge could not find, on a balance of probabilities, that the appellants wished to testify, nor that SH’s testimony would have affected the result.

(4) No. The fresh evidence which the appellants wished to adduce to the appellate court below was found to simply restate or confirm the parents’ views already in evidence. The appellate judge correctly concluded that the fresh evidence could not have affected the result. Filing fresh evidence is not an opportunity to reargue a case de novo.

Filice v Complex Services Inc, 2018 ONCA 625

[Simmons, Roberts and Nordheimer JJ.A.]

Counsel:

Frank Cesario, for the appellant

Margaret A. Hoy, for the respondent

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Notice Period, Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, Chapman v GPM Investment Management, 2017 ONCA 227, Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, Damages, Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Punitive Damages, Whiten v Pilot Insurance Co, 2002 SCC 18, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Pate Estate v Galway-Cavendish (Township), 2013 ONCA 669, Rutman v Rabinowitz, 2018 ONCA 80

Facts:

This is an appeal from a judgment that awarded the respondent damages for constructive dismissal. The appellant operates Casino Niagara and Fallsview Casino (collectively, “the Casino”). The respondent was employed as a Security Shift Supervisor at the Casino since 1999. Security Shift Supervisors are required to maintain a valid gaming registration issued by the Alcohol and Gaming Commission of Ontario (“AGCO”). This requirement is mandated under the Gaming Control Act, S.O. 1992, c. 24 and is a condition of employment. In December 2007, the AGCO Compliance Unit performed an audit of the Casino’s lost and found logs. The officers advised the Director of Security, RP, that the respondent was under investigation for theft in the workplace. RP then placed the respondent on an investigative suspension, pursuant to Casino policies. The respondent was suspended without pay.

The respondent was charged with four counts of theft under $5,000 and one count of breach of trust, and the AGCO suspended the respondent’s gaming registration. The respondent’s criminal charges were withdrawn and/or dismissed shortly thereafter, but his gaming registration remained suspended. The respondent had voluntarily surrendered his gaming registration to the AGCO. As a result, RP advised the respondent that his employment was at an end. The respondent commenced the underlying action against the appellant for wrongful dismissal, false arrest, malicious prosecution, breach of the Canadian Charter of Rights and Freedoms, negligence, and intentional infliction of mental suffering.

The appellant brought a motion for summary judgment seeking dismissal of the respondent’s claims. Henderson J. granted partial summary judgment, dismissing all the claims except for the constructive dismissal claim. At trial, the respondent was awarded damages for constructive dismissal in the amount of $75,723.64, punitive damages of $100,000, and costs of $82,600.

Issues:

(1) Did the trial judge err in his constructive dismissal analysis?

(2) Did the trial judge err by concluding that punitive damages were appropriate in this case?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the trial judge erred in his constructive dismissal analysis. The test for constructive dismissal involves two branches: Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10. The first branch of the test applies where there has been a single act by the employer that may constitute a breach of the contract of employment. The second branch applies where there has been a continuing course of conduct by the employer that may give rise to a finding that the contract of employment has been breached. The first branch of the test is engaged here.

The first branch of the test for constructive dismissal requires a review of the specific terms of the employment contract. It involves two steps that must be considered independently of each other: Potter, at para. 38. The first step is to identify an express or implied contractual term that has been breached on an objective basis. The second step is to then determine if the breach is sufficiently serious to constitute constructive dismissal on a modified objective standard of a reasonable employee in similar circumstances: Chapman v GPM Investment Management, 2017 ONCA 227, at paras 16-17.

The burden of establishing constructive dismissal lies on the employee. However, where an administrative suspension is involved, the burden shifts to the employer to show that the suspension is justified: Potter, at para. 41. A number of factors are to be considered in determining whether a suspension is justified, as discussed in Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, at para. 65:

[T]he courts may consider the following factors: whether there is a sufficient connection between the act with which the employee is charged and the kind of employment the employee holds; the actual nature of the charges; whether there are reasonable grounds for believing that maintaining the employment relationship, even temporarily, would be prejudicial to the business or to the employer’s reputation; and whether there are immediate and significant adverse effects that cannot practically be counteracted by other measures[…].

The Court of Appeal found that the suspension was clearly justified in this case. The respondent was a Security Supervisor with the appellant. Information came to the appellant’s attention that the respondent was possibly involved in theft from the Casino’s lost and found facilities. In these circumstances, and given the regulated nature of the appellant’s operations, it was entirely reasonable for the appellant to suspend the respondent pending the determination of his misconduct. Whether the appellant was justified in suspending without pay is a separate issue.

Absent express language in the employment contract, the burden was on the appellant to establish that a suspension without pay was justified. If this cannot be justified, then taking that step amounts to a unilateral change in the employment relationship that constitutes a breach of the employment contract. In this case, suspension without pay was a matter of discretion. In making that determination, however, the appellant had to establish that it acted reasonably. In this case, it appeared that the appellant mistakenly treated the suspension without pay as being automatic. While there may be situations where an employer would be fully entitled to suspend an employee without pay, those situations are exceptional and it still falls to the employer to justify that decision as reasonable: Cabiakman, supra, at para. 60. It is difficult to see how the appellant could reasonably have concluded that a suspension without pay was warranted at the early stage of the investigation. Therefore, the appellant made a unilateral change to the employment relationship and breached the implied term of the employment contract that the power to suspend without pay would not be exercised unreasonably.

That conclusion then leads to the second step of the first branch of the Potter analysis, which requires the court to determine whether the suspension “could reasonably be perceived as having substantially changed the essential terms of the contract”: Potter, supra, at para. 45. Part of the consideration is whether the suspension “had a minimal impact” on the employee. The Court found that suspending an employee without pay would have a more than a minimal impact. The substantial impact of suspending the respondent without pay therefore rendered it a breach of the employment contract that amounted to a constructive dismissal under the Potter test.

Compensatory damages

Having concluded that the respondent was constructively dismissed, the Court then considered the question of compensatory damages. The Court found that the trial judge failed to undertake a proper damages assessment. Damages for constructive dismissal are the same as they are for wrongful dismissal. The appropriate notice period has to be determined and damages awarded in lieu of that notice period. 17 months was an inordinately lengthy notice period for someone in the respondent’s position. The 50 year old respondent’s length of service was approximately 8 years and 8 months and he was earning approximately $50,000. It took the appellant seven months to find other employment. Relying on the factors from Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), the Court found reasonable notice to be seven months.

A unique aspect of this case is that approximately a month after the respondent was suspended, his gaming registration was suspended by the AGCO. In order to fulfill his duties as a Security Supervisor, the respondent was required by law to have a gaming registration. Two consequences arose from that fact. First, the appellant argued that the suspension of the respondent’s gaming registration limited any claim for damages arising from his dismissal to the one month before his gaming registration was suspended. The general rule for the assessment of damages is that they are assessed as of the date of the breach. The Court found that fairness did not require an exception to the general rule in this case. Secondly, the appellant did not have an obligation to offer the respondent another job within its organization that did not require a gaming registration. Holding that the appellant had a duty to offer alternative employment would be contrary to the fundamental principles of individual agency, freedom of contract, and would be tantamount to binding the parties to a specific performance obligation for employment.

(2) Yes, the trial judge erred in his finding that punitive damages were appropriate in this case. An appellate court has a much broader scope for review on an appeal from an award of punitive damages. The Supreme Court in Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 197 stated: “The appellate review should be based upon the court’s estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?” Punitive damages are only to be awarded where compensatory damages are inadequate to accomplish the objectives of retribution, deterrence, and condemnation: Pate Estate v GalwayCavendish (Township), 2013 ONCA 669, at para 211; and Rutman v Rabinowitz, 2018 ONCA 80, at paras 94-97 per curiam. Further, an award of punitive damages is exceptional for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 36.

In this case, the trial judge simply found that the compensatory award in addition to any costs award did not rationally meet the objectives of retribution, deterrence and denunciation. However, the trial judge did not engage in any analysis of why the compensatory award that he decided on was inadequate to achieve those objectives. This was an error in principle. The fact remains that, insofar as the appellant was not justified in suspending the respondent without pay, it will pay for that error through compensatory damages. On this point, it must not be forgotten that compensatory damages have a punitive element to them: Whiten, supra; Pate Estate, supra. Therefore, the award of punitive damages was set aside.

In the result, the appeal was allowed and set the trial judgment was set aside, including the damages awards. The Court granted judgment to the respondent solely for compensatory damages for seven months’ lost wages.

Payne v Mak, 2018 ONCA 622

[Strathy C.J.O., Feldman and Brown JJ.A.]

Counsel:

Raymond G Colautti and Anita Landry, for the appellants

Sheila C Handler and Paul Shand, for the respondents, RC, Windsor Police Services Board, RM, Windsor Fire and Rescue Services Department, MS and The Corporation of the City of Windsor

Jeremy Glick and Heather Burnett, for the respondents, CM and MO

Keywords: Torts, Negligent Investigation, Malicious Prosecution, Abuse of Process, Vicarious Liability, Breach of Charter Rights, Charter Damages, Criminal Law, Arson by Negligence, Reasonable and Probable Grounds, Costs, Criminal Code, RSC, 1985, c C-46, s 436, Canadian Charter of Rights and Freedoms, ss 7, 24

Facts:

This is an appeal from the trial judge’s order dismissing the appellants’ action alleging negligent investigation, malicious prosecution, abuse of process and Charter damages arising out of the respondents’ investigation of a fire at a house in Windsor, Ontario.

The appellants purchased a house near the University of Windsor in 1996 (the “house”), which they rented to university students on an individual basis. The City of Windsor (the “City”) classified the house as a “duplex”, although it was clearly not one. After a previous fire at the house in 1999, a Fire Prevention Officer identified several violations of the provisions applying to duplexes in Ontario Regulation 388/97, which was passed under the Fire Protection and Prevention Act, 1999, S.O. 1990, c. 4 (“FPPA”). The officer prepared a report noting the violations and requiring compliance by the owners. However, the appellants did not receive the report and the City did not follow up with the appellants to confirm the status of the house.

After the 1999 fire, the appellants continued to rent bedrooms in the house to students. On January 25, 2006, a resident intentionally started a fire at the house. There were five (5) individuals in the house at the time of the fire: four (4) residents and one (1) guest.

The evidence indicated that the fire separations protecting the main floor bedroom were not up to the standards prescribed by the FPPA. The guest, who was trapped in the main floor bedroom, suffered critical injuries as a result. The evidence also indicated that the stairway was open and unprotected, which allowed the fire to spread rapidly to the second floor, and then to the loft. The occupants of a second floor bedroom and the loft were unable to escape the fire by means of the stairway. Since no other fire escape was accessible, they were forced to jump from the roof to the ground. They both suffered injuries as a result. The two (2) remaining residents escaped without injury.

Following the fire, a criminal investigation was pursued against the appellants regarding possible charges under s. 436 of the Criminal Code for arson by negligence. Each of the respondents assisted with the investigation. Detective RC, an employee of the Windsor Police Services Board, led the police investigation and was assisted by MO and CK of the Office of the Fire Marshal (the “OFM”), and RM of the Windsor Fire and Rescue Services Department. The respondent MS was the Chief Building Official for the City at the time of the fire.

The investigation revealed that the house was being used as a boarding, lodging and rooming house despite its classification in City records as a duplex. The house was also in breach a number of requirements in s. 9.3 of the FPPA applicable to boarding, lodging and rooming houses, including, inter alia, the absence of a fire separation between the first and second floors, allowing the rapid spread of fire and insufficient protection in stairways.

As a result of the breaches of the FPPA, the extensive damage and the severity of the resulting injuries, RC charged the appellants with arson by negligence contrary to s. 436 of the Criminal Code. However, the charge against GP was later withdrawn by the Crown when it became clear that she was not involved in the operation of the house. The charges against HP proceeded to a preliminary inquiry, although he was ultimately acquitted.

The appellants subsequently brought this action alleging negligent investigation, malicious prosecution and abuse of process against the individual respondents and seeking to hold their employers vicariously liable. The appellants also sought s. 24 damages for violations of their s. 7 Charter rights.

At trial, the appellants argued that the City and the OFM pressured RC to lay criminal charges against them for the improper purposes of discouraging landlords from renting houses to students. The appellants also asserted that the police were liable for a breach of their s.7 Charter rights for proceeding with charges without reasonable and probable grounds, even in the absence of malice. With respect to these claims, the trial judge found that RC acted independently in charging the appellants and that there was no evidence that anyone pressured him to lay the charges. Moreover, the trial judge found that the respondents had acted in good faith in the execution of their duties, without malice or negligence. Accordingly, the trial judge found that this was a complete defence to all personal claims against the respondents and dismissed the action against them in its entirety. Since the trial judge found that no malice had been proven, he also dismissed the appellants’ claims of malicious prosecution and abuse of process. The trial judge further dismissed the appellants’ Charter claim, which he noted was fatally flawed because the appellants had brought the claim against individual defendants and not against the state. Notably, the trial judge held that the appellants were “attempting to advance a malicious prosecution claim in the guise of a s. 24 Charter claim, in an effort to get around the clear requirement that malice be proven.” With respect to the appellants’ claim of negligent investigation, the trial judge held that RC had reasonable and probable grounds to believe that the appellants had committed arson by negligence. Accordingly, he dismissed the appellants’ claim for negligent investigation as well. Given that all of the appellants’ claims against the individual respondents were dismissed, it followed that the vicarious liability claims against their employers were also dismissed.

Issue:

(1) Did the trial judge err when he concluded that RC had reasonable and probable grounds to charge the appellants with arson by negligence?

Holding: Appeal dismissed.

Reasoning:

(1) No. While it is well-settled that a police officer’s personal belief that there are reasonable and probable grounds is not sufficient to arrest and charge an individual, the trial judge established that RC’s belief was both subjectively and objectively justifiable. The trial judge gave comprehensive and cogent reasons for his conclusion that RC had reasonable and probable grounds to charge the appellants under s. 436 of the Criminal Code. Furthermore, the appellants did not demonstrate any palpable or overriding error in the trial judge’s findings of fact, which fully supported the existence of reasonable and probable grounds to arrest. Consequently, the court held that the trial judge’s factual findings were entitled to deference.

In making its determination, the court noted that the actus reus is defined in s. 436(1) of the Criminal Code as a “marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions”. Furthermore, the court noted that subsection (2) contains a statutory inference that the failure to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care may be inferred. In light of the foregoing, the court found that given the appellants’ ownership of the house, and in the case of HP, his control of the house, the terms of the FPPA, the evidence of their breach and the statutory inference of a marked departure from the standard of care, RC had reasonable and probable grounds with respect to all of the elements of the offence, including both the actus reus and mens rea. Moreover, the court held that RC had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgements. Nor was he required to exhaust all possible investigations, interview all potential witnesses prior to arrest, obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds.

With respect to costs, the court held that it is well-settled that an appellate court should not interfere with a trial judge’s costs award unless the judge has made an error in principle or the award in plainly wrong. Since there were no such circumstances, the court held that while the costs were substantial, a high degree of deference should be given to the trial judge.

Toor v Toor, 2018 ONCA 621

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

James S.G. Macdonald, for the appellants

Bhupinder Nagra, for the respondent

Keywords: Family Law, Property, Loans, Gifts, Resulting Trusts, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Facts:

KT and BT were married in 2002 and bought a matrimonial home in 2012 before separating in 2015. Following their separation, KT commenced family law proceedings. As well, BT’s Parents commenced a civil suit against their son and daughter-in-law seeking payment of $132,000, which they alleged they had loaned KT and BT. The Parents also sought a declaration that they are the beneficial owners of a joint interest in the Property because BT and KT had used some of the loaned funds to purchase the Property. The Parents’ action was consolidated with the family law proceedings.

BT did not defend against his Parents’ claim. Default judgment was granted against him. KT moved for summary judgment dismissing the parents’ action. The motion judge granted partial summary judgment. He concluded that he could not resolve the Parents’ claim for repayment of the $132,000 as there was a genuine issue requiring a trial, but granted summary judgment dismissing the Parents’ claim for an interest in the Property. The Parents appeal the dismissal of their claim for an interest in the Property.

Issue:

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

Holding: Appeal allowed.

Reasoning:

(1) Yes, the motion judge made two reversible errors that require setting aside the partial summary judgment.

First, the motion judge’s finding that there was “no tie that binds the advances and the purchase of the Property together” was based on a misapprehension of the evidence. The record disclosed a link between some of the Parents’ advances and the purchase of the Property. The court found that a genuine issue requiring a trial therefore exists as to whether use of the funds originating from the Parents gives rise to any legal entitlement by them to an interest in the Property.

Second, on their face, the motion judge’s reasons were internally inconsistent on the issue of the legal characterization of the Parents’ advances. On the one hand, the motion judge stated he could not resolve the issue of whether the $132,000 advanced by the Parents to BT constituted a loan or a repayment of proceeds from the sale of the Indian property. On the other hand, in granting KT partial summary judgment, the motion judge concluded that there was no evidence that any of the $132,000 was a loan or an advance with an expectation of repayment. By granting partial summary judgment, the motion judge created the real possibility of inconsistent results with respect to the legal consequences of the $132,000, ignoring the strong caution issued by the court about granting partial summary judgment where such a risk exists: Butera v Chown, Cairns LLP, 2017 ONCA 783, at para. 26. A genuine issue requiring a trial exists as to the legal characterization of the $132,000.

Gore Mutual Insurance Company v Carlin, 2018 ONCA 628

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Debbie Orth, for the appellant

James L. MacGillivray, for the respondents

Keywords: Insurance Law, Fire Policy, Property Damage, Business Interruption Losses, Restitution, Overpayment, Unjust Enrichment, Brisette Estate v Westbury Life Insurance Co., [1992] 3 SCR 87, Kerr v Baranow, 2011 SCC 10, [2011] SCR 269, Garland v Consumers’ Gas Co., 2004 SCC 25, Insurance Act, RSO 1990, c. I.8, s. 128

Facts:

This appeal raised the issue of whether an insured is permitted to retain the total amount paid by its insurer when it is subsequently determined that the amount paid was in excess of the loss suffered. The motion judge granted summary judgment to the insureds in this case, holding that they were free to keep the total amount paid by the insurer, even though it exceeded their loss by over $100,000.

The respondent Dr. GC carried on the practice of dentistry in a building owned by the respondent Windent Inc., located in Winchester, Ontario.

In 2012, a fire destroyed the building and its contents. At the time of the loss, the appellant had issued an insurance policy for the building and its contents with the named insured being Dr. GC Dentistry Professional Corporation. This policy also included coverage for business interruption. In addition to the policy issued by the appellant, there was coverage with Aviva Insurance Company of Canada (“Aviva”). That policy did not insure the building.

In 2013, the appellant’s representative advised the respondents and their representative, as well as Dr. GC’s wife SC, via email that he had authorized an advance for the loss payable for the building in the amount of $750,000.

SC sent an email to the appellant’s representative in July, 2013, explaining why the respondents found the $750,000 offer to be inadequate. The appellant’s representative replied that day stating, in part, that “the…advance of $750K is just that, a substantial advance toward your loss so you can get restoration under way…this $750K advance in no way ties either of us to follow either side’s estimate.”

The appellant’s representative followed up with an email to the respondents’ representative and SC in September, 2013. That email provided in part as follows:

As previously advised accepting the $750K offer does not tie you to anything or hold you to repairs of any certain nature. Legally under your insured contract, the insured is owe[d] the Actual Cash Value for an item as settlement assuming replacement has not been enacted. Accepting the advance you are well within your right to: rebuild as per pre-loss specifications, rebuild as per new upgraded specifications (upgrade at your own expense). Should you choose to re-build and your total costs are lower than the ACV issued, the additional funds are still yours to utilise as you see fit.

The appellant and the respondents participated in an appraisal on May 14, 2014, as provided for in s. 128 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). The amount found to be payable by the appellant under the appraisal was $713,767.33. To that amount was added an agreed sum for business interruption loss, being $205,444, and $7,465.70 for professional fees. The total amount payable by the appellant was $926,677.03. However, by this time the appellant had already paid out $1,030,187.04. It sued to recover the overpayment of $103,510.01.

The motion judge began his analysis by finding that the appellant is a sophisticated insurance party and that even though the $750,000 payment was referred to as an advance, it was not in fact an advance because it was paid on the basis that it could be used as the respondents saw fit.

The motion judge next found that the payment was deliberate and not the product of mistake, noting as well that both the policy and the Act were silent regarding what happens when an overpayment has been made.

The motion judge rejected appellant’s claim of unjust enrichment on the grounds that the respondents obtained no benefit when they received the $750,000 payment, and that there was a juristic reason for sending the money, as set out in the September, 2013 email, which, according to the motion judge, indicated that the respondents could use the money as they wished.

Issues:

(1) Did the motion judge err in holding that the appellant is not entitled to recover the overpayment?

(2) Did the motion judge err in finding that unjust enrichment was not an available remedy?

Holding: Appeal allowed.

Reasoning:

(1) Yes. A contract of insurance is a contract of indemnity. It is not a vehicle for turning misadventure into profit. The court found that the motion judge’s analysis ignored that fundamental principle, and contained a palpable and overriding error of fact regarding the September 13, 2013 email and extricable legal errors.

The motion judge erred in equating the actual cash value as referred to in the email with the $750,000 advance. This led him to erroneously conclude that the appellant was communicating to the insureds that they could keep the $750,000 regardless of the quantification of the actual cash value that was to be determined as part of the appraisal process. This was a palpable and overriding error of fact.

The first legal error arose from the motion judge’s interpretation of the policy. The motion judge found that there was nothing in the wording of the policy that covers a situation where there has been an overpayment. Therefore, the motion judge concluded that the policy did not obligate the respondents to repay the overpayment.

Contracts of insurance are to be interpreted in a manner that results in neither a windfall to the insurer nor an unanticipated recovery to the insured: Brisette Estate v. Westbury Life Insurance Co., [1992] 3 SCR 87, at pp. 92-93. The motion judge’s decision went beyond an unanticipated recovery to grant a windfall that was wholly unconnected to the recovery of any loss. The policy in question only provided for indemnification for a loss suffered.

The motion judge also erred in law in his analysis of the Act. Similar to his analysis of the policy, the motion judge limited his inquiry to a search for a specific provision in the Act addressing a situation where an overpayment is made, failing to consider the purpose and scheme of the Act.

The Act defines insurance as “the undertaking by one person to indemnify another person against loss or liability for loss…”  It was also stated that where the insurer and insured cannot agree on the quantum of the loss, they may have the issue determined by an appraisal, a mechanism provided for by the Act.

The motion judge’s ruling was in conflict with the most basic elements of the Act by permitting recovery for amounts beyond the loss suffered by the insured. This was inconsistent with the definition of insurance as provided for in the Act and contrary to the purpose of conducting an appraisal.

(2) Yes.  The motion judge erred in law in his unjust enrichment analysis. The test for unjust enrichment is well established in the jurisprudence. To successfully make an unjust enrichment claim, a plaintiff must prove three things: (1) the defendant must have received an enrichment, (2) the plaintiff must have suffered a corresponding deprivation, and (3) there was no juristic reason for the benefit and loss: Kerr v Baranow, 2011 SCC 10, at paras. 31, 36 and 40.

Where money is transferred from a plaintiff to a defendant, there is an obvious enrichment: Garland v Consumers’ Gas Co., 2004 SCC 25, at para. 36. There can be no issue that the insured received a benefit and that the appellant suffered a corresponding deprivation.

In conclusion, the motion judge erred in his interpretation of the September, 2013 email. The email did not communicate that the respondents could do whatever they liked with the $750,000 payment regardless of the quantification of the actual cash value, which was an issue to be determined as part of the appraisal process. Therefore, the email was not found to be a juristic reason for the benefit and corresponding deprivation.

Larizza v Royal Bank of Canada, 2018 ONCA 632

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

Counsel:

Julian Heller and Neil Folley, for the appellant

Gavin Tighe and Scott Gfeller, for the respondent Fasken Martineau DuMoulin LLP

Adam Grant and Karen Bernofsky, for the respondent Minto Group Inc.

Keywords: Torts, Negligence, Intrusion Upon Seclusion, Negligent Misrepresentation, Intentional or Negligent Infliction of Mental Distress, Breach of Contract, Breach of Fiduciary Duty, Summary Judgment, Jones v Tsige, 2012 ONCA 32, Bhasin v Hrynew, 2014 SCC 71

Facts:

The appellant met a man, AR, online, who convinced her to quit her job, sell her home, give the proceeds of the sale to him and to move in with him into a Yorkville penthouse. AR was a fraudster who had lied to the appellant by telling her he was a wealthy businessman and heir to a fortune. The appellant lost all of her money to AR. The appellant sought damages for her financial loss from the penthouse landlord, Minto Group Inc. (“Minto”) and her lawyers, Fasken Martineau DuMoulin LLP (“Faskens”). Minto and Faskens successfully brought motions for summary judgment, and the appellant’s action against them was dismissed.

Issues:

(1) Did the trial judge err in concluding that there was no genuine issue requiring a trial with respect to her claim against:

i) Minto?

ii) Faskens?

Holding: Appeal dismissed.

Reasoning:

(1)(i) No. The appellant claimed damages from Minto for intrusion upon seclusion, breach of contract, negligence, negligent misrepresentation, and intentional or negligent infliction of mental distress. At AR’s request, Minto had conducted and provided to AR an Equifax credit report search on the appellant without her knowledge or consent when AR and the appellant rented their Yorkville penthouse condo together. It was on the strength of that credit report that the appellant and AR were approved as tenants, as AR’s credit did not qualify him.

The motion judge correctly set out the test for intrusion upon seclusion, which comes from Jones v Tsige and states: the defendant’s conduct must be intentional or reckless; the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; and a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish. While Minto’s actions were intentional, the appellant failed to meet the other two elements of the test, since the information in the private credit report was not about the appellant’s “private affairs or concerns” and a reasonable person would not regard Minto’s actions as highly offensive, causing humiliation or mental anguish.

With respect to the breach of contract claim (the only contract with Minto was the penthouse lease), the appellant relied on the duty of good faith from Bhasin v Hrynew. The motion judge correctly held that this duty arises in the context of the performance of a contract, not the formation of one.

With respect to the final three claims, the Court of Appeal confirmed that the appellant’s claim in negligence was too remote, and that there was no conduct on the part of Minto that could be characterized as “extreme, flagrant and outrageous”.

(ii)  No. The appellant claimed damages from Faskens for negligence, negligent misrepresentation, breach of contract, and breach of fiduciary duty arising from her dealing with a lawyer, EH.

A lawyer at the defendant law firm, Wildeboer & Dellelce LLP, who purportedly acted for AR (and who possibly acted for the appellant), referred the appellant to EH, a partner at Faskens who specializes in estate planning and personal tax. The appellant met EH only one time. The appellant states that she retained EH to advise her on a prenuptial agreement, estate planning, and a trust fund. Specifically, she sought advice about: a prenuptial agreement that AR’s lawyers in Switzerland were allegedly preparing; estate planning to draft a new will for the appellant given her pending marriage to AR; and the establishment of a trust. AR was purportedly purchasing a $10 million insurance policy naming as the beneficiary a trust for the benefit of the appellant and her daughters.

EH stated that she advised the appellant that she did not practice family law and would have to refer the appellant to a family law lawyer when the prenuptial agreement was ready for review. The appellant contested this evidence and claimed that EH was her family lawyer.

There was no written retainer.

After the initial meeting, the appellant and EH exchanged various communications and EH sent draft documents but never received responses to her inquiries. The prenuptial agreement was never available for review from Switzerland (or for referral to a family lawyer). EH requested further information, including the date of the appellant’s pending marriage to AR, but none was ever provided.

The appellant did not answer EH’s emails or comment on drafts provided to her by EH. The appellant and AR married without advising EH. As found by the motion judge, none of the tasks were completed because EH did not receive instructions or information requested that would allow her to complete the tasks.

The appellant alleges that as part of the retainer, EH and Faskens had a duty to protect the appellant from AR by investigating his background. The appellant argued that had EH exercised reasonable due diligence, the unavailability of AR’s funds would have been revealed. The appellant’s claims in negligence, negligent misrepresentation, and breach of contract against EH and Faskens depended on whether there was an implied requirement for EH to conduct a background check on AR. The Court agreed with the motion judge that this defied common sense.

With respect to the remaining claims against EH and Faskens, the appellant claimed that EH failed to disclose a conflict of interest arising from the referral from Wildeboer, which represented AR. The motion judge found that Faskens had never been retained by AR, and there was therefore no conflict to disclose.The Court of Appeal agreed that the record supported such a finding.

The Birkshire Group Inc v Wilkes, 2018 ONCA 631

[Epstein, van Rensburg, and Fairburn, JJA]

Counsel:

Peter-Paul E. Du Vernet, for the appellants

Kevin Sherkin and Jeremy Sacks, for the respondents

Keywords: Construction Law, Civil Procedure, Evidence, Reopening Case, Credibility, Procedural and Natural Justice, Failure to Give Reasons, R v JMH, 2011 SCC 45, Dovbush v Mouzitchka, 2016 ONCA 381, Construction Lien Act, RSO 1990 c C30

Facts:

The appellants hired the respondents to complete renovations on their home. The relationship deteriorated and the respondents registered a construction lien on the appellants’ house and sued for the balance of what they believed they were owed. The appellants counterclaimed. After the evidence was concluded and on the day of closing arguments, the appellants brought a motion to reopen the case to allow for two additional witnesses to give evidence. One of the new witness’ evidence called into question the credibility of the respondent’s evidence given at trial. That motion was successful, and the evidence of the additional witnesses was admitted. Notwithstanding that new evidence, the respondents were granted judgment in the amount of $146,898.24.

Issues:

(1) Did the trial judge err in failing to refer to the evidence of the two new witnesses called by the appellants in his reasons for judgment?

(2) Was there sufficient evidence to conclude that the construction lien was perfected in time and in accordance with the Construction Lien Act?

Holding: Appeal allowed.

Reasoning:

(1) Yes. One of the new witnesses, a former employee of the respondents, swore an affidavit and testified upon the reopening of the case that he had built a bathroom vanity for the appellants based on the verbal instruction of a superior and that later, after the litigation had commenced, that same superior had asked him to make a drawing of the vanity from a photograph. That drawing, which was attached to the employee’s affidavit, had been entered as an exhibit during trial where the superior testified that the drawing had been prepared and approved by the appellants prior to installation. In reopening the case, the trial judge commented that the evidence of the employee raised credibility issues that related to the evidence previously adduced. In his decision, however, the trial judge accepted the evidence of the superior as entirely credible and did not refer to the evidence of the employee at all. While there is no requirement that a trial judge refer to every item of evidence (R v JMH, 2011 SCC 45), the failure to refer to the evidence of the employee is problematic because the evidence could have had a material effect on the credibility of the respondents. The failure may have even have had a material effect on the administration of justice. A trial judge owes the unsuccessful party an explanation for rejecting the evidence of a key witness (Dovbush v Mouzitchka, 2016 ONCA 381).

(2) No. For the lien to be valid, contract work exceeding $1,000 was to have been performed after a certain date. The trial judge found, in brief oral reasons, that the conditions had been met. In order to do so, he would have had to have accepted the testimony of the superior and rejected that of the appellants with respect to the nature and timing of the work. However, failing to address the evidence relevant to the parties’ credibility precludes effective review.

In the result, the judgment was set aside and a new trial was ordered. The construction lien remained registered against the subject property and its validity will be determined at the new trial.

Hagholm v Coreio Inc, 2018 ONCA 633

[Simmons, Huscroft and Miller JJ.A.]

Counsel:

Andy Pushalik and Rachel Kattapuram, for the appellant

Dennis Crawford and Madchen Funk, for the respondent

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Bonuses, Defences, Mitigation, Singer v Nordstrong Equipment Ltd, 2018 ONCA 364

Facts:

In 1995 Ms. H began working full-time for a predecessor of the appellant on the understanding that she could work from home three days per week. On January 16, 2017, shortly after acquiring the business, the appellant informed Ms. H that commencing March 1, 2017, she could no longer work from home. Ms. H took the position that she had been constructively dismissed.

On a motion for summary judgment, the motion judge determined this was a constructive dismissal for two reasons: (1) the appellant breached an essential term of the employment contract; (2) the appellant arbitrarily set Ms. H’s 2016 fourth-quarter bonus in a manner contrary to her employment contract (she received $6,739 rather than around $18,000). The motion judge further concluded that Ms. H was not obliged to “return to a former employer from a mitigation standpoint.” This was not an option as the appellant had breached a major term of the contract permitting her to work from home. Ms. H was awarded: i) 20.5 months of salary, less 10% of 10.5 months’ salary for the contingency that she may find employment before the expiry of the 20.5-month period; ii) $11,261 as compensation for the underpayment of her fourth quarter 2016 bonus; and iii) compensation for lost benefits for 20.5 months.

Issues:

(1) Did the motion judge err in failing to find that the Ms. H’s duty to mitigate did not require her to return to work for the appellant?

(2) Did the motion judge err by concluding that the appellant arbitrarily set Ms. H’s fourth-quarter bonus payment for 2016?

Holding: Appeal dismissed. Cross-appeal allowed.

Reasoning:

(1) No, the motion judge did not err in failing to find that Ms. H’s duty to mitigate did not require her to return to work for the appellant. The appellant argued that the motion judge conflated the test for constructive dismissal with the test for when an employee will be required to accept an offer of continued employment in order to mitigate damages for constructive dismissal. In addition, the appellant alleged Ms. H’s claim was tainted by her subsequent application for multiple positions in the GTA requiring an equivalent or longer commute. Finally, the appellant argued the motion judge made palpable and overriding errors concerning the facts of Ms. H’s commute. The Court rejected these arguments. It would not be objectively reasonable to require a sixty-year old employee who, more than 20 years earlier had stipulated she would not accept a position if it required her to commute every day, to mitigate her damages for the appellant’s breach of contract by doing so. Further, the Court was not satisfied the appellant had any intention of permitting Ms. H to continue to work from home 60% of the time during the notice period. Finally, the motion judge was correct in not accepting that Ms. H’s applications to other employers in the GTA demonstrated that she would have accepted those jobs without a work-from-home provision.

(2) No, the motion judge did not err by concluding that the appellant arbitrarily set Ms. H’s fourth-quarter bonus payment for 2016. The motion judge drew a negative inference from the appellant’s inability to provide an “intelligible” description of how the bonus was calculated. On the evidence before him, he was entitled to do so. He also noted that although the appellant lost a significant client in 2016, this would not affect the appellant’s bottom line until after 2016. He correctly concluded that Ms. H’s fourth quarter bonus for 2016 was “not calculated as it should have been, and had previously been, but was arbitrarily set” contrary to terms of her employment contract.

In the result, the appeal was dismissed but Ms. H’s cross-appeal was allowed. Ms. H had always received in the range of 90% to slightly more than 100% of her annual bonus entitlement. At the time of dismissal her annual bonus entitlement was $72,000 per year, payable quarterly, with the opportunity to earn more bonuses. The bonuses were patently an integral part of Ms. H’s compensation package. Averaging Ms. H’s bonuses over the five years immediately prior to her termination led the Court to conclude that she should receive 100% of her bonus entitlement during the notice period: Singer v Nordstrong Equipment Ltd, 2018 ONCA 364, at paras 21 to 25. The Court directed that the motion judge’s order be amended to provide that Ms. H receive her pro rata bonus entitlement throughout the notice period, including the working notice period, based on a quarterly bonus entitlement of $18,000.

Popack v Lipszyc, 2018 ONCA 635

[Doherty, Brown and Nordheimer JJ.A.]

Counsel:

Marvin J Huberman and Daniel Sheppard, for the appellants

Colin P Stevenson and Neil G Wilson, for the respondents

Keywords: Civil Procedure, International Arbitration, Arbitral Awards, Enforcement, UNCITRAL Model Law on International Commercial Arbitration, International Commercial Arbitration Act, 2017, SO 2007, c 2, Sched 5, Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19

Facts:

This is an appeal from the application judge’s order dismissing the appellants’ application for the recognition and enforcement of an arbitration award against the respondents.

The appellant, JP, and the respondent, ML, jointly invested in commercial real estate in Toronto. In 2005, disputes arose between them. After disagreeing for several years, the parties submitted their disputes to arbitration before the Beth Din, a Rabbinical court in New York, pursuant to an Agreement to Submit to Arbitration dated November 10, 2010, as amended by an addendum dated January 11, 2011 (collectively the “Arbitration Agreement”). At the time the parties entered into the Arbitration Agreement, JP resided in New York and ML resided in Ontario.

In the Arbitration Agreement, the parties agreed that the Beth Din was a tribunal subject to the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), the successor to the International Commercial Arbitration Act, R.S.O. 1990, c. 1.9, which was the legislation in effect at the time of the arbitration. Under the Arbitration Agreement, the arbitral panel was free to choose the appropriate procedures by which to conduct the arbitration, no record was to be kept of the evidence or the submissions and no reasons for decision were required from the panel.

In August 2013, the appellants obtained an international commercial arbitration award (the “award”) against the respondents. Specifically, the award provided for the return of funds placed in escrow by JP in the sum of $440,000 and that ML pay JP an additional $400,000. However, the appellants subsequently applied to set aside the award under article 34 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) on the basis that the panel had breached the procedure agreed upon by the parties.

In February 2016, the Court of Appeal dismissed the appellant’s application and refused to set aside the award, although it was found that the panel followed an improper procedure which provided a basis to set aside the award.

Following the proceedings, the appellants sought prompt payment of the award. However, the appellants were informed that the respondents were in the process of requesting the Beth Din to reduce the award.

On June 24, 2016, the appellants commenced this application under articles 35 and 36 of the Model Law seeking an order recognizing and enforcing the award. The appellants further required that the respondents pay them the Canadian dollar equivalent of US$400,000. In responding to the application, ML deposed that his claim for costs and damages would exceed $400,000. ML also took the position that the award was denominated in Canadian, not American, dollars.

In September 2016, the Beth Din advised the parties that the $400,000 award issued pertained to business transactions that were transacted in Canadian currency. Accordingly, as a matter of standard practice, the award was to be calculated in Canadian funds. The Beth Din also wrote the parties a letter dated June 7, 2017, which stated that the award was stayed until a hearing was held to determine the respondents’ claim.

The application judge heard the appellants’ application to recognize the award at the same time as a motion by the respondents to stay recognition of the award. Ultimately, the application judge dismissed both the appellants’ application and the respondents’ motion, holding that the award was not yet binding on the parties since the respondents were seeking to raise further issues before the arbitral panel and the panel had expressed its willingness to consider those issues.

Issue:

(1) Did the application judge err in dismissing the appellants’ application for the recognition and enforcement of the award?

Holding: Appeal allowed.

Reasoning:  

(1) Yes. The application judge erred in dismissing the appellants’ application for the recognition and enforcement of the award. Specifically, the court held that the application judge erred in law in interpreting the recognition and enforcement provisions of the Model Law and made palpable and override errors in applying the Model Law. Furthermore, the application judge erred in finding that the award had not yet become binding on the parties.

The Recognition and Enforcement of Awards under the Model Law

In making its determination, the court noted that in Ontario, the recognition and enforcement of international commercial arbitration awards is governed by the ICAA. The ICAA states that two (2) international instruments concerning international commercial arbitration have the force of law in Ontario, namely: (i) the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and (ii) the Model Law. Furthermore, the court noted that international and provincial instruments have established a strong “pro-enforcement” legal regime in Ontario for the recognition and enforcement of international commercial arbitration awards. Moreover, the court held that as a general rule the grounds for refusal of enforcement are to be construed narrowly.

With respect to the Model Law, the court noted that article 35, in relevant part, states that an arbitral award, irrespective of the country in which it was made, shall be recognized as binding and shall be enforced subject to article 36. In relevant part tailored to this case, article 36 states that such recognition or enforcement may be refused only at the request of the party against whom it is invoked where the award has not yet become binding on parties or has been set aside or suspended by a court of the country in which, or under the law of which, the award was made. The court further noted that the provisions of the Model Law regarding the recognition and enforcement of awards work together with those in article 34, which specify the grounds upon which a party may have recourse against an arbitral award in the place of arbitration. Specifically, article 34 states that recourse to a court against an arbitral award may be made only by an application for setting aside where that application is brought within three (3) months from receipt of the award or, if a request has been made to correct an award or to have a specific part of the award interpreted, within three (3) months of when the request was disposed of by the tribunal. The court also noted that the grounds for setting aside an award under article 34 mirror those for refusing to recognize and enforce an award pursuant to article 36, with the exception that they do not include that the award has not yet becoming binding on the parties.

The Meaning of Not Yet Binding

In determining the meaning of the terms “not yet binding”, the court considered Born’s treatise, which provides commentary on the origins and possible meanings of the term “binding” used in the Model Law. The court noted that in Born’s view, an award should be considered binding “when the parties’ arbitration agreement provides that it is either final or binding, regardless of the possibility of subsequent judicial challenges of any sort.” The court acknowledged that a number of national courts do not share Born’s view. Instead, they interpret an award as “binding” when it is no longer open to recourse on its merits. Nevertheless, the court noted that the Supreme Court of Canada considered this issue in the decision of Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (“Yugraneft”), where it was held that an award is not binding under article 36 of the Model Law if it is open to being set aside under article 34 of the same, either because the three (3) month period in which to bring a motion to set aside has not expired or the set aside proceedings have not yet come to an end.

Application

The court found that by the terms of the Arbitration Agreement, the arbitral tribunal’s “decision [was] not open for appeal neither in any religious court nor in any secular court.” Moreover, given that JP’s application was disposed of by the order of the Court of Appeal, the court held that the award became binding on the parties on February 18, 2016, for the purposes of recognition under articles 35 and 36 of the Model Law. To this extent, the court held that the application judge made a palpable and overriding error in interpreting the Arbitration Agreement, which specifically precluded any right of appeal from the award. Moreover, the court held that the application judge erred in law by conflating whether the award was binding for the purposes of recognition or enforcement pursuant to the Model Law with whether the Beth Din had jurisdiction under the Arbitration Agreement to accept new claims from a party following the issuance of the award. In this respect, the application judge seemed to reason that if a party approached the arbitral tribunal with a request to consider a new issue some three (3) years after the award had been issued, the award was not binding for the purposes of the Model Law. The court held that on the facts of this case, the potential jurisdiction of the Beth Din to entertain a new issue about post-award events did not affect the binding nature of the award. The award was framed as a final one and the Arbitration Agreement did not permit any review or appeal of the award. As a result, the court held that the award was binding and should be recognized. Accordingly, the court set aside the order of the application judge and substituted an order recognizing and enforcing the award.

CNH Canada Ltd v Chesterman Farm Equipment Ltd, 2018 ONCA 637

[Watt, Benotto and Miller JJ.A.]

Counsel:

Stuart R. Mackay, for the appellant

Eric K. Gillespie and John W. May, for the respondent

Keywords: Contracts, Distribution Agreements, Indefinite Term, Interpretation, Termination, Reasonable Notice, Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, Statutory Interpretation, Standard of Review, Dealership Agreements Regulation, O. Reg. 123/06, Farms Implements Act, R.S.O. 1990, c. F.4, Costs, Proportionality Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Barbour v Bailey, 2016 ONCA 334

Facts:

This appeal concerns a statutory appeal from a decision of the Agriculture, Food and Rural Affairs Tribunal interpreting the renewal provisions of a standard form farm equipment dealership agreement entered into between the parties.

The relevant provisions of the dealership agreement were changed retrospectively, when Ontario adopted O. Reg. 123/06, the Dealership Agreements Regulation, establishing new provisions prescribing a process for renewal and non-renewal that overrode the dealership agreement. When the appellant elected not to renew the dealership agreement, a dispute arose as to the respective rights of the parties, in light of the Regulation. A decision from the Tribunal, in favour of the respondent, was largely upheld by the Divisional Court. The appellant appeals that decision to the Court of Appeal. The respondent cross-appealed.

The appellant, CNH Canada Ltd., is a Canadian farm implement manufacturer and distributor. The respondent, Chesterman Farm Equipment Ltd., is a family-owned business that sells farm implements and other goods. In 1999, New Holland advised Chesterman that it would not be renewing the existing dealership agreement, and offered Chesterman the opportunity to continue as a dealer under a new standard form agreement.

This second agreement (the “Dealership Agreement”), effective January 1, 2000, was structured to provide for an initial term of two years, with automatic one year extensions unless either party gave the other at least 90 days’ notice of its intention not to extend. On September 30, 2006, CNH gave written notice that it would not be extending the Dealership Agreement beyond its expiration date of December 31, 2006.

However, on April 25, 2006 – five months before CNH’s notice was provided – the Dealership Agreements Regulation came into force. The Regulation prescribes mandatory terms to be included in any farm implement dealership agreement, including terms dealing with renewal. Under the Regulation, any provision in a dealer agreement contrary to those prescribed mandatory terms is void: s. 1(3). Notably, s. 3 of the Regulation provides that a dealer under a dealership agreement has the right to renew the agreement, subject to the distributor’s approval, which cannot be “unreasonably withheld”: s. 3(1), (4).

Section 3(6) of the Regulation prescribes a process that must be followed should a distributor intend to refuse the dealer’s renewal, involving the following steps: 1. The distributor must notify the dealer in writing of the reasons for the refusal, within 45 days of receiving the request for approval; 2. If the distributor fails to notify the dealer within the 45-day period, the renewal is deemed to be approved; 3. The dealer is allowed 15 days from receipt of the notice to address the concerns underlying the refusal; and 4. After the 15-day period has passed, the distributor may refuse the renewal. The Regulation is made under the Farms Implements Act, R.S.O. 1990, c. F.4 (the “Farm Implements Act” or the “Act”).

Chesterman initiated proceedings against CNH for improperly ending the Dealership Agreement. The matter proceeded before the Tribunal in two phases. The first phase dealt with warranty and breach of contract issues. It is this second phase of the Tribunal’s proceedings that is the subject of this appeal and cross-appeal. The second phase addressed damages, as well as the matters relating to liability remitted from the first phase.

The Tribunal concluded that CNH’s September 30, 2006 notice of non-renewal could not constitute a written refusal to this deemed notice under the revised Dealership Agreement because CNH’s notice: (1) sought to exercise a right of non-renewal that no longer existed in its original format; (2) failed to set out CNH’s reasons for non-renewal in full; and (3) did not give Chesterman an opportunity to address CNH’s concerns animating the non-renewal. Accordingly, CNH’s non-renewal breached the Regulation and the modified Dealer Agreement.

Issues:

In its appeal, CNH raised four issues:

(1) Did the Tribunal err in law by concluding that the notice of non-renewal was not compliant with the Regulation because it sought to exercise a right that was void?

(2) Did the Tribunal err in law by concluding that the notice of non-renewal was not compliant with the Regulation because it failed to disclose “all” reasons for the refusal to renew?

(3) Did the Tribunal err in law by concluding that Chesterman was not afforded 15 days to address the concerns outlined in the notice of non-renewal?

(4) Did the Tribunal err in law by concluding that CNH failed to act reasonably when it did not renew the Dealership Agreement?

Chesterman’s cross-appeal raised two additional issues:

(5) Did the Divisional Court err in law by failing to consider the purpose of the Regulation in determining damages?

(6) Did the Divisional Court err in law by quashing the Tribunal’s costs award?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court did not agree with CNH’s characterization of the Tribunal’s reasons for concluding the notice of non-renewal was not compliant with the Regulation. It did not reach this conclusion by determining that CNH sought to exercise a right that had been extinguished. The Tribunal merely found that CNH “sought to exercise a right … that no longer existed in its original format” (emphasis added). In other words, CNH still had a right not to renew, but this right was now restricted and conditional. This was found to be a reasonable interpretation open to the Tribunal.

As the Tribunal explained, under the original Dealership Agreement each party had an unrestricted right not to renew, exercisable by giving the other party at least 90 days’ written notice. Section 3(6) of the Regulation, however, replaced this unrestricted right with a regulated approval process for non-renewal. Given that the application of the Regulation was mandatory, and the Dealership Agreement contained a provision allowing for modification of the Agreement to comply with the law, the Tribunal chose to revise the Dealership Agreement to include a regulated renewal approval process consistent with the Regulation. It did not “void” CNH’s right of non-renewal, but modified it to render it consistent with the mandatory terms of the Regulation.

(2) No. Section 3(6)(1) of the Regulation requires a distributor to notify the dealer in writing of “the reasons for the refusal”. The Tribunal incorporated this requirement into the Dealership Agreement by requiring that the notice of non-renewal “se[t] out the Company’s [non-renewal] reasons.” Applying that requirement to this case, it found that CNH’s notice of non-renewal did not accurately or completely set out the reasons behind CNH’s decision not to renew. More specifically, while the notice focused on Chesterman’s purported failure to achieve a reasonable market share as required under the Dealership Agreement, there were several other reasons for the non-renewal that were not stated in the notice. Since CNH had not set out all the reasons for the non-renewal, the Tribunal concluded that the notice was invalid. The Regulation contemplates providing a dealer with the opportunity to address the distributor’s concerns, the dealer must be fully informed of all the reasons for nonrenewal for the process to be meaningful.

(3) No. If CNH breached the Dealership Agreement, as amended by the Regulation, by failing to provide all the reasons for its non-renewal, whether it further breached the Agreement by not affording Chesterman 15 days to address its concerns is inconsequential.

(4) No. Section 3(4) of the Regulation provides in part that a distributor’s approval of a renewal of a dealership agreement “shall not be unreasonably withheld”. The Tribunal incorporated this requirement into the Dealership Agreement by mandating that CNH’s decision not to renew “not be unreasonable in the circumstances.”

CNH advanced two purported legal errors in the Tribunal’s analysis said to give rise to questions of law.

CNH submitted that before the Tribunal could analyze whether the non-renewal was unreasonable, it had to be satisfied that Chesterman had attempted to address CNH’s concerns. Section 3(4) of the Regulation clearly states that a distributor may not “unreasonably with[o]ld” renewal approval. This requirement is separate from a dealer’s right, under s. 3(6)(3), to address concerns underlying the refusal to renew once notified by the distributor. That said, the Tribunal’s conclusion is reasonable.

The second purported error of law CNH identified is in the Tribunal’s conclusion that because CNH did not comply with the Regulation, its non-renewal was unreasonable.

In the courts view, this issue raised a question of mixed law and fact. The Tribunal had to consider whether the evidence supported a conclusion that CNH’s nonrenewal was unreasonable. This was not found to be a question of law and was thus outside the scope of review. In any event, given the conclusions above, there was no merit to this argument.

(5) No. the Tribunal committed no error in assessing damages for lost profits on the basis that the Dealer Agreement could be terminated upon reasonable notice. Although Chesterman also took issue with other aspects of the Tribunal’s damages award – such as how it weighed and considered the expert evidence – these issues did not raise extricable questions of law. The court accordingly dismissed Chesterman’s cross-appeal from the Tribunal’s damages award.

The Tribunal, after reviewing the relevant legislation, reasonably determined that the Dealer Agreement, as amended by the Regulation, did not eliminate a common law right of termination. Some types of contracts – including dealership or distribution agreements – will often naturally give rise to an implied right to terminate on reasonable notice: see e.g., Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, at p. 67;

(6) Yes. Chesterman argued that a fair reading of the Tribunal’s reasons demonstrates that its costs award was fully within its jurisdiction. An appeal from a Tribunal decision under s. 5 of the Farm Implements Act is limited to questions of law. As with all discretionary decisions, the Tribunal’s discretion to award costs must be exercised in accordance with the law: see generally, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

(7) No. Whether the Tribunal failed to make a costs award in accordance with its jurisdiction and the law is a question of law. Finding no reviewable error in the Tribunal’s analysis, however, the court restored the Tribunal’s costs award.

Second, notwithstanding the Tribunal’s musing about the existence of a common law principle that costs follow the event, and that it is “open to debate whether the common law principle of ‘costs following the event’ ha[d] been elevated to a common law ‘right, duty or remedy’”, the Tribunal understood that its decision to award costs was discretionary and had to be made in accordance with statutory requirements.

Third, the Tribunal did not err in law by “failing to take into account” the principle of proportionality when awarding costs. The principle of proportionality is an overarching consideration in determining the appropriate quantum of costs: Barbour v Bailey, 2016 ONCA 334, at para. 9. While the Tribunal’s costs award may be high, in the court’s view it did not err in law by failing to consider proportionality in its reasoning.

Short Civil Decisions

Froom v Ontario (Attorney General), 2018 ONCA 627

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

Counsel:

DF, appearing in person

Sarah Kromkamp, for the respondents

Keywords: Torts, Negligence, Abuse of Process, Misfeasance in Public Office, Invasion of Privacy, Harassment, Breach of Statute, Civil Procedure, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21

Criminal Decisions and Ontario Review Board Decisions

Ellis (Re), 2018 ONCA 616

[Watt, Pepall and Fairburn JJ.A.]

Counsel:

Frank Bernhardt, for the appellant, R.E.

Luke Schwalm, for the respondent, the Attorney General of Ontario

Janice E. Blackburn, for the respondent, the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, NCRMD, Threat to Public Safety, Procedural Fairness, Osawe (Re), 2015 ONCA 280, Least Onerous and Least Restrictive Disposition, R v Conway, 2010 SCC 22

R v JR, 2018 ONCA 615

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Owen Goddard, for the appellant

Deborah Krick, for the respondent

Keywords: Criminal Law, Publication Ban, Aggravated Assault, Misapprehension of Medical Evidence, R v Kehler, 2004 SCC 11, Evidence, Gatekeeper Function, Burden of Proof, R v Sekhon, 2014 SCC 14, R v Awer, 2017 SCC 2, Criminal Code, s 657.3(3)(b)

R v Rai, 2018 ONCA 623

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

David Locke and Glen Henderson, for the appellant

Davin Michael Garg, for the respondent

Keywords: Criminal Law, Dangerous Driving, Arbitrary Detention, Canadian Charter of Rights and Freedoms, s 9, s 10(a) and 10(b), s 24(2), Grant Factors, Sentencing

R v Schulz, 2018 ONCA 598

[Watt, Brown and Huscroft JJ.A.]

Counsel:

Martin Schulz, acting in person

Grace Choi, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Criminal Code, s 163.1(4), Examination Order, Canadian Charter of Rights and Freedoms, s 8, Fresh Evidence, R v Manasseri, 2016 ONCA 704, Canadian Charter of Rights and Freedoms, s 24(2), R v Cole, 2012 SCC 53, Grant Factors, Sentencing, Probation, Prohibition Orders, Criminal Code, s 161(1)(d), R v Brar, 2016 ONCA 724, R v Perron, 2015 QCCA 601

R v Semple, 2018 ONCA 630

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

KY Tina Yuen and Cate Martell, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Death, Evidence, Fabrication, R v McLellan, 2018 ONCA 510

Hart (Re), 2018 ONCA 624

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

Suzan E. Fraser and Cate Martell, for the appellant

Catherine Weiler, for the respondent Her Majesty the Queen

Janice Blackburn, for the respondent the Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Criminal Law, Publication Ban, Ontario Review Board, Threat to Public Safety, Conditional Discharge

R v Clairoux, 2018 ONCA 629

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

Diane Condo, for the appellant

Sandy Thomas, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Evidence, Search Warrants, Canadian Charter of Rights and Freedoms, s 24(2), R v Grant, 2009 SCC 32, R v Smith, 2015 SCC 34

R v Wesley, 2018 ONCA 636

[Sharpe, Brown and Paciocco JJ.A.]

Counsel:

Robert Sinding, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Sentencing, Dangerous Offender, Indeterminate Sentence

R v Jordoin, 2018 ONCA 638

[Watt, Pardu and Roberts JJ.A.]

Counsel:

Colin Wood, for the appellant

Tanit Gilliam and Ruth McGuirl, for the respondent

Keywords: Criminal Law, Possession of Drugs for the Purpose of Trafficking, Search Warrants, Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 11, R v Telus Communications Co, 2013 SCC 16, R v Brand, 2008 BCCA 94

R v MC, 2018 ONCA 634

Counsel:

Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Keywords: Criminal Law, Publication Ban, Interveners, Gladue Principles

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 (JULY 3-6)

Good afternoon.

As expected at this time of year, it was a quiet week at the Court of Appeal for Ontario.

There were only two substantive civil decisions. In Da Silva v Gomes, the motion judge had dismissed, by way of summary judgment, a claim against a soccer club, its representatives, and its governing association for allegedly failing to prevent a player from assaulting another player during a game. The Court of Appeal upheld the lower court’s decision, as there was no evidence to suggest that the assault was reasonably foreseeable. Supervising authorities are not legally responsible for sudden, unexpected events that occur during an acceptable and safe activity.

In Manorgate Estate Inc. v Kirkor Architects and Planners, a builder entered into a design agreement with an architect that contained an entire agreement clause. The builder alleged that it entered into the agreement on the basis of misrepresentations by the architect as to the anticipated costs of the project. The project exceeded budget and the builder sued the architect. The motion judge dismissed the claim by way of summary judgment on the basis of the entire agreement clause, which excluded claims in respect of any representations not contained in the agreement. The Court of Appeal upheld the motion judge’s decision and dismissed the appeal.

There were several criminal decisions released this week, together with an Ontario Review Board decision and a decision quashing an appeal in a child custody case for want of jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com

Table of Contents

Da Silva v Gomes, 2018 ONCA 610

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

For short civil decisions click here

For criminal decisions click here

Da Silva v Gomes, 2018 ONCA 610

[Epstein, Lauwers and van Rensburg JJA]

Counsel:

D D’Urzo, for the appellants

K Kwinter, for the respondents other than BG

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Facts:

In the course of a soccer game, BG punched MDS. BG was criminally convicted for the assault. MDS was injured and he and his family brought their claims under the Family Law Act, RSO 1990, c F 3, against BG, the Hamilton Sparta Sports Club for which BG played, the Ontario Soccer Association Incorporated, under whose auspices the game was played, and several other associated individuals.

The motion judge granted summary judgment dismissing the action against the respondents other than BG. The plaintiffs appealed.

Issues:

(1) Did the motion judge err in finding that the respondents were not negligent in their supervision of the game, and breached several standards of care, including the standard for coaches, for on-field supervision and for player conduct?

(2) Did the motion judge err in finding that the respondents were not liable under the Occupiers Liability Act,RSO 1990, c 02 for failing to ensure that the playing field was safe?

(3) Did the motion judge err in finding that these arguments on the evidence did not raise genuine issues requiring a trial?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellants have not shown that the motion judge made any palpable and overriding errors. The appellants’ case rests on proving the claim that BG’s previous conduct showed a risk that he would commit violence against an opposing player and that his coach, his team and the Association were negligent in permitting him to play. The motion judge rejected this claim at para 74: “Based on the material before the court, there is no evidence that BG acted in a physically aggressive or violent manner during a soccer game prior to the [incident date]”.

On the issue of the standard of care, the motion judge noted that the appellants had not proven their case at para 78: “BG’s evidence was that he knew he was not to punch other players. His evidence was that he assaulted MDS impulsively. Based on BG’s evidence, even if there was a code of conduct and even if he was made aware of it, it would not have prevented him from engaging in behaviour that was so beyond the realm of what is reasonable. He assaulted MDS and was convicted of an offence which resulted in a suspension from the league.”

With respect to the issue of causation, the motion judge found, at para 94:

Based on the evidence, I am unable to conclude that the lack of or improper discipline would have deterred BG such that the assault upon MDS would not have occurred. BG’s evidence was that he knew he could not punch another player but did so anyways. His evidence was that the assault was not premeditated and, in fact, was an unprovoked and impulsive act.

As for the applicable law, the motion judge relied on the school board cases. The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity”: Patrick v St. Clair Catholic District School Board[2013] OJ No 6216, at para 266.

(2) No. The motion judge made no palpable or overriding error in her finding that there was (a) no evidence of “any site safety issues or that the playing field was not safe” and (b) no evidence that the respondents were in breach of any obligation owed under the Act (para. 65).

(3) No. The motion judge made no error in the consideration and application of the test for summary judgment. The appellants’ case foundered on the absence of evidence, that the case was not complex and the key facts were not in dispute, and that there were no credibility issues to resolve.

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

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

Counsel:

Michael Simaan, for the appellants

Charles Simco and Matthew Urback, for the respondent

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review,Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

Facts:

The appellants (“Manorgate”) build residential homes. The respondent (“Kirkor”) is an architectural consulting firm retained by Manorgate to assist with a construction project. Manorgate entered into an agreement (the “First Agreement”) with Kirkor under which Kirkor agreed to provide design services for a project involving the construction of 12 townhouses (the “smaller project”).

After the First Agreement was executed, the City of Toronto advised Manorgate that it would prefer a higher density development at the planned location. The proposed project was then changed to 24 townhomes (the “larger project”). Manorgate’s principal met with a senior partner of Kirkor to discuss this new concept. After this meeting, the parties entered into a design agreement with respect to the larger project (the “Second Agreement”).

Both agreements contained a clause precluding Manorgate from suing Kirkor based on any pre-contractual representations (the “Entire Agreement Clause”).

Manorgate says that at the meeting, Kirkor’s representative represented to Manorgate’s representative that the larger project would cost approximately $130 per square foot (the “Alleged Negligent Misrepresentation”). Manorgate alleges that the actual cost per square foot of the larger project turned out to be significantly higher than $130, such that the larger project was no longer financially viable.

Manorgate claimed that it entered into the Second Agreement in reliance on the Alleged Negligent Misrepresentation. It therefore brought this proceeding based on the Alleged Negligent Misrepresentation for approximately $530,000.

Kirkor denied the representation. In the alternative, Kirkor relied on the Entire Agreement Clause in the Second Agreement to preclude liability for any pre-contractual representations. Kirkor moved for summary judgment.

The motion judge found that it was not necessary to decide whether Kirkor made the Alleged Negligent Misrepresentation. She granted summary judgment dismissing the action, concluding that the Entire Agreement Clause in the Second Agreement operated as a complete defence to Manorgate’s claim.

Issues:

  1. Did the motion judge err in giving effect to the entire agreement clause?

(a)  In that regard, did the motion judge err in determining that the Entire Agreement Clause was broad enough to exclude the Alleged Negligent Misrepresentation?

  1. Did the motion judge err in her interpretation of the provision of the Second Agreement excluding detailed estimates of construction costs from the services provided?
  2. Did the motion judge err in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy?
  3. Did the motion judge err in failing to enforce a duty of good faith between the parties?

Holding: Appeal dismissed.

Reasoning:

  1. The court stated that critical to the motion judge’s conclusion was her finding that the Second Agreement was not a continuation of the First Agreement but an entirely new agreement. It followed that the Entire Agreement Clause contained in the Second Agreement superseded the Alleged Negligent Misrepresentation, with the effect that Manorgate was not entitled to rely on the representation even if it had been made by Kirkor.

The court stated that while correctly identifying the substantive requirements for the formation of a valid contract is an issue of law, applying those requirements to a given fact scenario and interpreting the language of two apparent agreements raises questions of mixed law and fact: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, at paras. 49-51, 53.  The court found that the motion judge’s determination that the First Agreement and Second Agreement were two separate contracts was a finding of mixed law and fact based on the record before her, and that the finding is entitled to deference on appeal.

(a) No.  The court stated that Manorgate’s argument hinged on its position that the two agreements are standard form contracts and therefore the motion judge’s finding is to be reviewed on a standard of correctness. The court found that although the agreements were not amended prior to signature, they were not standard form agreements of the nature contemplated by the Supreme Court of Canada in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37. On Manorgate’s evidence, the agreements were open to being amended prior to signing. The court stated that the motion judge’s interpretation that the Second Agreement, specifically the Entire Agreement Clause, was broad enough to apply to the Alleged Negligent Misrepresentation, is an exercise in contractual interpretation entitled to deference: Ledcor, at para. 21.

  1. The court stated that the motion judge referred to a provision in rejecting the argument made before her that preliminary costing was part of the services Kirkor was to perform. She stated, at para 44: I reject the plaintiff’s argument that the use of the word “detailed” implies that preliminary or high level costing forms part of the contract. Nothing else in the contract supports such an interpretation. The court found no error.
  2. The court stated that the motion judge made no error in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy.
  3. The court rejected Manorgate’s argument concerning the motion judge’s failure to enforce a duty of good faith between the parties, stating that it was not properly raised at first instance on appeal.

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v MP, 2018 ONCA 608

[Watt, Brown and Huscroft JJA]

Counsel:

Jonathan Shime, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Evidence, Admissibility, Criminal Code, s 271, s 686(1)(b)(iii), R v W(D), [1991] 1 SCR 742

R v Sadikov, 2018 ONCA 609

[Lauwers, van Rensberg and Nordheimer JJA]

Counsel:

Dirk Derstine and Karen Heath, for the appellant

Amber Pashuk and Amanda Hauk, for the respondent

Keywords: Criminal Law, Drug Trafficking, Possession of a Firearm, Sentencing, Canadian Charter of Rights and Freedoms, s 8, R v Keinapple, [1975] 1 SCR 729, R v Teskey, 2007 SCC 25, R v Willaroman, 2016 SCC 33

Caron (Re), 2018 ONCA 613

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Ian McCuaig, for the appellant

Joe Hanna, the Attorney General of Ontario

Jacquie Dagher, for the respondent

Keywords: Criminal Law, Ontario Review Board, NCR, Threat to Cause Bodily Harm, Threat to Cause Death, Supervised Access

Short Civil Decisions

Williams v. Young, 2018 ONCA 611

[Feldman, Hourigan and Brown JJA]

Counsel:

Benjamin Nielsen, for the moving party/respondent

Shawn Philbert, for the responding party/appellant

Keywords: Family Law, Custody, Civil Procedure, Appeals, Jurisdiction, Courts of Justice Act, s 21.9.1

R v DA, 2018 ONCA 612

[Sharpe, Brown and Paciocco JJA]

Counsel:

Peter Copeland, for the appellant

Michael Perlin, for the responding respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Criminal Code, s. 271, R v W(D), [1991] 1 SCR 742, R v JJRD(2006), 218 OAC 37

R v Laverdure, 2018 ONCA 614

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Jodie-Lee Primaeu, for the appellant

Elana Middlekamp, for the respondent

Keywords:Criminal Law, Dangerous Driving Causing Death, Actus Reus, Mens Rea, Criminal Code, S. 249, R v Beatty, [2008] 1 SCR 49

R v Richards, 2018 ONCA 618

[Doherty, MacPherson and Rouleau JJA]

Counsel:

Najma Jamaldin, for the appellant

Deborah Krick, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, S. 231(5)(e), Evidence, R v Kimberley(2001), 56 OR (3d) 18 (CA)

COURT OF APPEAL SUMMARIES (JUNE 25 – 29)

Good Morning,

The following are our summaries of this week’s civil decisions of the Ontario Court of Appeal.

First, I’d like to congratulate our very own Eric Golden on successfully representing the moving party receiver in B&M Handelman Investments Limited v Drotos, 2018 ONCA 58. The case dealt with the limited circumstances under which an appeal can be brought, or leave to appeal could be sought, from a sale approval and vesting Order under the Bankruptcy and Insolvency Act, with a focus on whether there was any duty on the Receiver to consult with fulcrum creditors on its marketing and sale processes relating to various types of real estate properties.

Other topics covered this week included the validity of a will of someone with chronic alcoholism, the Court of Appeal’s jurisdiction to hear an appeal from an order dismissing an application for habeas corpus in the immigration law context, zoning bylaw interpretation, easements, summary judgment in the commercial lease context, and family law (termination of support and contempt).

For our readers practicing in criminal law, there were an unusually high number of criminal decisions this week, particularly murder cases.

I hope everyone is enjoying their Canada Day long weekend!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Berg v. Marks, 2018 ONCA 595

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Hutchinson v. Norfolk (County), 2018 ONCA 592

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

McKinnon v. McKinnon, 2018 ONCA 596

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Dujardin v Dujardin, 2018 ONCA 597

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

For short civil decisions click here

For criminal, provincial offences, and Ontario Review Board decisions click here

Civil Decisions

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

[Paciocco, JA (Motion Judge)]

Counsel:

Eric Golden, for the moving party, Rosen Goldberg Inc.

James Zibarras, Leslie Dizgun, and Caitlin Fell, for the responding party World Finance Corporation

David Preger, for the responding party, B&M Handelman Investments Limited

Adam J. Wygodny, for the responding party, Money Gate Investment Corp.

Miranda Spence, for the purchaser, FPK

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Facts:

In three unrelated proceedings, the Court appointed a Receiver over several debtors that owned several properties, including CD, who held title to a vacant home on Birchmount Road in Toronto. The assets of the various debtors included several different properties, including commercial, industrial, vacant lots, an inn, and residential homes in Picton, on the Bridle Path and on the Scarborough Bluffs (the latter being the CD’s property on Birchmount Avenue).

Pursuant to the terms of the Appointment Order (based on the Commercial List Model Order), the Receiver proceeded to list on MLS and sell several of the Properties pursuant to the Appointment Order, including CD’s Birchmount property.  The properties were all sold at prices over, or in the range, of appraisals the Receiver had commissioned for each property from certified appraisers.

The Appointment Order contains the usual Model Order clauses granting the Receiver the power to engage consultants and appraisers, market the property, and negotiate the terms and conditions of sale. The Appointment Order also permits the Receiver to report to, meet with, and discuss with affected Persons (as defined in the Appointment Order) “as the Receiver deems appropriate” and to share information subject to confidentiality terms. It permits the Receiver to sell the property with court approval and to apply for a vesting order to convey the property to a purchaser free and clear of encumbrances.

With respect to the CD matter, the Receiver was appointed on April 13, 2018.  CD’s Birchmount property is a 12,900 square foot house on the Scarborough Bluffs that was vacant, in need of repairs and unfit for occupancy. The Receiver’s appraisal came is at $3.2 million, and after reviewing various listing proposals the Receiver entered into a 90-day listing agreement with a listing broker on April 30, 2018 at a sale price of $3.8 million.  Subject to court approval, the Receiver accepted an offer for $3.45 million made May 8, 2018, which would result in a shortfall to the second mortgagee who was the creditor who moved for the appointment of the receiver.  The sale of CD’s Birchmount property was scheduled to close on June 11, 2018.

On the Receiver’s motion for a sale approval and vesting Order for five of the properties (including CD’s Birchmount property), each involving different debtors and mortgagees (other than the mortgagees who moved to appoint the receiver), the same law firm (Brauti Thorning Zibarras, or “BTZ”) was representing fulcrum creditors with respect to four of the properties being sold (not including CD’s Birchmount property, and was also representing the first mortgagee and third mortgagee (World Finance Corporation) over CD’s Birchmount property. BTZ‘s main position was that the Receiver failed to consult its clients about the sale and marketing process for all five properties, as well as the listing price.

Justice Dunphy issued the requested Order for each property on June 1, 2018 (the “Dunphy Order”), holding that the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.) had been satisfied.

Justice Dunphy held that the Receiver’s business judgment had been applied and informed by the appraisals responsibly sought, and the properties sold for over the appraised value. The Receiver did not act too quickly. The MLS marketing process was designed to obtain offers as soon as reasonably practicable and multiple offers were received. There was no requirement for the Receiver to consult with BTZ’s clients on the marketing process and give them a greater degree of input, as the interests of all of the parties is the same. Their interest is in obtaining the highest and best price reasonably available.

On June 7, 2018, World Finance served and filed a Notice of Appeal seeking to appeal the Dunphy Order to a panel of the Court of Appeal, but only relating to CD’s Birchmount property, on the basis that it could do so as of right pursuant to subsections 193(b) and 193 (c) of the Bankruptcy and Insolvency Act (“BIA”) (and in which case the Dunphy Order would be automatically stayed). If World Finance could not fit its appeal into subsections 193(b) or s. 193(c) of the BIA, it sought as alternate relief in its Notice of Appeal leave to appeal pursuant to s. 193(e) of the BIA, but it did not seek a stay of the Dunphy Order in its Notice of Appeal, or otherwise move for a stay.

World Finance argued that its proposed appeal was prima facie meritorious. It contended that the Receiver failed to consider World Finance’s interests, and that the process used was unfair because the Receiver did not consult with World Finance on the marketing process, or the price at which the Birchmount Property would be listed. Dunphy J. misapplied the Soundair principles in finding otherwise and erred in law (i) when finding that the Receiver had considered World Finance’s interests by assuming that all parties had the same interest, namely, obtaining a higher sale price and (ii) finding the process to have been fair by considering irrelevant or improper explanations for the Receiver’s failure to consult with World Finance about the marketing process and listing price.

World Finance appealed notwithstanding that it stood to not recover anything under its mortgage because the second mortgagee (the moving creditor with respect to the Appointment Order over CD) was already incurring a shortfall.

Given the urgency because of the closing date of the sale of CD’s Birchmount Property (originally June 11, 2018 and extended to June 14, 2018), the Receiver brought a motion for advice and directions before a single judge of the Court of Appeal, taking the position that World Finance required leave to appeal because its appeal did not fall within subsections 193(b) or s. 193(c) of the BIA, that leave should not be granted, that the Closing was not stayed, and seeking to approve the closing on June 14, 2018.  World Finance sought an adjournment, but the Court of Appeal denied the request.

Issues:

1. Whether there was an appeal as of right to the Court of Appeal pursuant to subsection 193(b) of the BIA because the Dunphy Order is likely to affect other cases of a similar nature in the bankruptcy proceedings, and subsection 193 (c) of the BIA because the property involved in the appeal exceeds in value $10,000.00?

2. If not, whether leave to appeal was required and should be granted under section 193(e) of the BIA?

3. Did the Receiver’s sale and marketing process satisfy the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), [1991] O.J. No. 1137?

4. Was there a duty on the Receiver to consult with BTZ’s clients about the sale and marketing process for all five properties, as well as the listing price?

Holding:

There was no appeal as of right under either subsections 193(b) or 193(c) of the BIA. Leave to appeal was required under subsection 195(e) of the BIA, but should not be granted.

Reasoning:

  1. Appeal of as right

There was no appeal as of right. Reliance on subsection 193(c) would not have been tenable given World Finance’s emphasis on process-related errors (2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 54).

Subsection 193(b) should not be interpreted in the expansive manner that World Finance submits.  As per Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, 49 C.B.R. (6th) 173, at para. 20, there is a “clear direction in recent case law in favour of a narrow construal of the rights to appeal in ss. 193(a) to (d) of the BIA”.  This “narrow construal” is incompatible with World Finance’s position, and there are good reasons for it.

Furthermore, in 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 49, Brown J.A. explained that initially the BIA provided only for appeals as of right. The inclusion in 1949 of a leave to appeal provision removed the need for a broad interpretive approach to ss. 193(a) to (d). More importantly, the appeal as of right provisions should be read harmoniously with the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, which requires leave for all appeals from orders made under the statute. Reading s. 193’s appeal as of right subsections narrowly avoids disharmony between the two insolvency regimes.  Also, s. 193(b) applies where there is a real dispute that is likely to affect another case in the same bankruptcy proceedings.  The Order that World Finance proposes to appeal was made in one receivership proceeding and pertains only to that proceeding. The fact that the outcome of the proposed appeal could affect cases involving BTZ’s clients arising out of other receivership proceedings is insufficient to give rise to an appeal as of right. There is no appeal as of right in this case under s. 193(b).

Second, this outcome does not operate to unfairly deny World Finance an opportunity to challenge the Dunphy Order that it says will likely affect other cases it will be involved in. This is because a party whose interests are likely to be affected in another case of a similar nature arising in other bankruptcy proceedings can move to protect those interests by seeking leave to appeal, where an appeal as of right is not available. Where leave is warranted in the circumstances, it will be granted.

  1. Leave to appeal

The granting of leave to appeal under s. 193(e) is discretionary and contextual. The test for leave described by Blair J.A. in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, was adopted by a panel of the Court of Appeal in Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, at para. 3. The proposed appeal must:

  1. a) raise an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this [c]ourt should therefore consider and address;
    b) be prima facie meritorious; and
    c) [not] unduly hinder the progress of the bankruptcy/insolvency proceedings.

As Doherty J.A. noted in Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), 24 C.B.R. (5th) 256, at para. 28, the leave inquiry should begin with some consideration of the merits of the proposed appeal, for if the appeal cannot possibly succeed, “there is no point in granting leave to appeal regardless of how many other factors might support the granting of leave to appeal.”

World Finance’s grounds of appeal are not legitimately arguable points. They do not present a realistic possibility of success and therefore lack prima facie merit.

First, there is no reasonable prospect that fault could be found in Dunphy J.’s conclusion that, in seeking the highest and best price reasonably available, the Receiver was considering the shared interest of all of the parties. World Finance’s argument that, as a fulcrum creditor, it had unique interests in the marketing strategy and list price that were not considered has no traction. Marketing strategy and list price are means to an end, namely, achieving the highest and best price reasonably available, the very thing that Dunphy J. considered.

There was no requirement to consult BTZ’s clients on the marketing and sale process, but even if there was  Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed.  Courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances.

World Finance’s claim that Dunphy J. considered irrelevant and improper explanations for the Receiver’s failure to consult directly with World Finance about the marketing and listing price for the Birchmount Property is also without merit.

World Finance did not present any authority for the proposition that a receiver has a positive obligation to consult with subsequent mortgagees as to a particular sales process and the listing price.

Furthermore, the Appointment Order in this case expressly permits the Receiver to report to, meet with, and discuss with affected Persons “as the Receiver deems appropriate” and to share information subject to confidentiality terms. The Receiver had discretion under the order to proceed as it did.

Moreover, even if a general duty to consult applied in this case, Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed. In this case there was confusion as to the secured creditors’ true identities and who represented their interests. There were also fraud allegations at play, which explained why the Receiver was not more proactive in its dealings with certain creditors. Moreover, those creditors previously showed a low level of interest in seeking to shape the process. In these circumstances, Dunphy J. found that making the appraisals available to those creditors who chose to consult them was sufficient.

None of these factors are irrelevant or improper considerations. Dunphy J. was entitled to consider them. As Blair J.A. pointed out in Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), [2004] O.J. No. 2744, at para. 23, courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances. Moreover, deference is owed to the decision Dunphy J. made.

Finally, World Finance’s proposed appeal lacks merit for the simple reason that even if CD’s Birchmount Property were to sell for the amount World Finance claims it could have achieved, World Finance would still receive nothing. World Finance’s process-based complaint is therefore an idle appeal. There is no material wrong it can complain of.

Even if World Finance’s proposed appeal had prima facie merit, leave to appeal, would still have been denied, as neither of the other two leave to appeal requirements are satisfied.

World Finance’s proposed appeal does not raise an issue that is of general importance to the practice in bankruptcy matters or to the administration of justice as a whole. It is a fact-specific dispute about the propriety of this particular sale transaction.

Granting leave to appeal would also unduly hinder the bankruptcy proceeding. If the sale was delayed, additional interest and costs payable on the first mortgage would have continued to accrue, serving only to further denude the second mortgagee’s position.

Moreover, the agreement of purchase and sale provided specific timelines for the obtaining of court approval and for the closing of the sale. It permitted postponement of the closing date for only 60 days after the original closing date. The sale transaction was originally scheduled to close on June 11, 2018 and was postponed until June 14, 2018. If leave to appeal had been granted, the additional delay required for the disposition of the appeal could have resulted in the loss of this transaction.

Berg v. Marks, 2018 ONCA 595

[Pepall, van Rensburg and Paciocco JJA]

Counsel:

A Rouben, for the appellant

EO Gionet and JA Valler, for the respondents

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Facts:

The appellant and the respondents are neighbours. A laneway runs between the two properties. At the end of the laneway lies a catch basin that connects to a municipal storm sewer.  The catch basin was built in approximately 1980.

The appellant owns the laneway, but the respondents have a right of way “in, over and upon” the laneway. It is undisputed that the respondents have a right of way for ingress and egress to their property. What is in dispute is the extent of the easement.

The parties had been living in a state of peaceful co-existence until 2006, when the appellant’s partner prevented one of the respondents from attempting to repair parts of the catch basin. Things got worse in 2010 when the appellant poured a concrete pad over the catch basin rendering it inoperable. The respondents’ property experienced flooding.

In 2011, the respondents commenced an action against the appellant under the Simplified Procedure seeking a declaration of entitlement to a right in, over, and upon and damages for the cost of reinstating the catch basin, the cost of repair work for the basement apartment, and loss of rental income.

The trial judge found that the appellant intended to make the catch basin inoperable for surface drainage from the respondents’ property and that he substantially interfered with the respondents’ right to use the laneway. She granted a declaration that work be performed to reinstate the catch basin so that the drainage function was restored and a declaration that the appellant not block the laneway. She also awarded $211,491.60 in damages to the respondents. As the action was commenced as a Simplified Procedure action, the damages were limited to $100,000.

Issues:

(1) Did the trial judge err by failing to provide the self-represented appellant with adequate assistance to ensure procedural fairness?

(2) Did the trial judge err in failing to recognize that the criteria for establishment of the right of way was not met?

(3) Should fresh evidence be admitted?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge tried to assist the appellant. The court rejected the appellant’s arguments of procedural unfairness:

(i) The appellant argued that the name of one of the respondent’s witnesses, Mr. F, was omitted from the respondents’ Simplified Procedure form of affidavit of documents, no “will-say” statements were exchanged, and the trial judge relied on Mr. F’s impermissible testimony. The court found that the appellant suffered no prejudice from this omission. The appellant knew Mr. F was a person who might reasonably be expected to have knowledge of the matters in issue, as she had originally included him in her Affidavit of Documents.

The trial judge cannot be faulted for failing to deal with the absence of any will-say statements because this was never mentioned at trial and she did not possess the Master’s order that addressed this issue. There would have been no reason for the trial judge to raise this issue with the appellant, and furthermore, the appellant herself had also not delivered any will-say statements.

The trial judge did not improperly rely on hearsay evidence from Mr. F. The witness testified on his personal observations and discussions in the drafting and registration of the easement; his involvement with the construction of the catch basin; and his personal experience with the laneway.

(ii) The appellant also asserted that the respondents failed to undertake the work ordered by Master Brott, and when the appellant sought to introduce Master Brott’s orders into evidence, the trial judge refused the request and declined to consider them. The appellant complained that the trial judge also declined to permit the appellant to cross-examine the respondent on Master Brott’s orders.

The court rejected these arguments. The trial judge determined that the Master did not have authority to appoint an expert to testify at trial. Even if one accepted that the trial judge ought to have permitted evidence of Master Brott’s orders, they would have had no impact, in that the opinions of the two expert engineers were the same: the optimal solution was to keep the catch basin in the existing location with connection to the Town’s sewer.

On the issue of cross-examination, the trial judge permitted the appellant to conduct extensive cross-examinations of the respondent and the respondents’ experts, but without reference to the specifics of the Master’s orders.

(2) No. The evidentiary record established that, when the right of way was created, the dominant and servient owners differed, contrary to the appellant’s submission. Furthermore, this defence was never pleaded.

(3) No. The tests in Palmer v. R., [1980] 1 S.C.R. 759; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, were not met. The information would have no impact on the outcome of the appeal.

Hutchinson v. Norfolk (County), 2018 ONCA 592

[Simmons, Huscroft and Miller JJ.A.]

Counsel:

Michael Bordin, for the appellant

Mark Abradjian, for the respondent Corporation of Norfolk County

Dennis M Touesnard, for the respondent Debono Greenhouses Ltd

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

Facts:

This is an appeal from the application judge’s order declaring that storing and grinding wood is an accessory use to the commercial greenhouses on the respondent’s property under the Corporation of Norfolk County’s Zoning Bylaw I-Z-2014 (the “Bylaw”).

On application, the appellant homeowner sought a declaration that storing and grinding wood on the neighbouring respondent’s property contravened the Bylaw, which in relevant part provides as follows:

1.4.3 (b) where the main use is wholly situated in one zone, an accessory structure or use may be permitted in any other Zone than the Provincially Significant Wetland Zone (PSW) provided it meets all provisions of section 3.0 except non-residential accessory structures shall not be permitted in residential zones.

2.3 “ACCESSORY USE” shall mean a use naturally and normally incident to, subordinate to and exclusively devoted to a principal use and located on the same lot herewith.

The application judge found that storing and grinding wood was not a permitted use under the Bylaw. Therefore, it was incumbent upon the respondent to establish that it was an “accessory use” of the greenhouse operation within the Bylaw’s meaning. Ultimately, the application judge was satisfied that storing and grinding wood was an accessory use to the respondent’s property. In making this determination, the application judge interpreted the Bylaw as requiring that an accessory use be: (i) naturally and normally incidental to the principal use, (ii) subordinate to the principal use; (iii) exclusively devoted to the principal use; and (iv) located on the same lot as the principal use.

On appeal, the appellant submitted that the application judge failed to consider the plain and ordinary meaning of the terms “naturally and normally incidental”.  Furthermore, the appellant submitted that it meant “customarily incidental” as this was consistent with requirements found in other bylaws. In any case, the appellant contended that both of the above-noted phrases indicated restrictive interpretations of an accessory use. Moreover, the appellant submitted that evidence of customary use was required to establish an accessory use and the application judge erred in concluding there was sufficient evidence.

Issue:

(1) Did the application judge err in concluding that the storage and grinding of wood is an accessory use of the respondent’s property?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge made no error. The court held that in every case the question is simply whether a particular use meets the definition considered in the context of the bylaw as a whole. Accordingly, there was no need to determine whether, or the extent to which, the language in the Bylaw differed from the language found in other bylaws. The court also held that the concept of accessory use is common to zoning bylaws and provides a measure of flexibility in using property. Therefore, while it was not appropriate to give the term an overly expansive interpretation, it was not necessary to give the term a restrictive interpretation as the appellant submitted. The court held that while in some cases evidence may be required to establish an accessory use, no objection to its admissibility was made before the application judge. Consequently, the court held that there was no basis to interfere with the application judge’s findings.

McKinnon v. McKinnon, 2018 ONCA 596

[Rouleau, van Rensburg and Pardu JJ.A.]

Counsel:

Sheila McKinnon, self-represented

Randall McKinnon, self-represented

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Facts:

The appellant S.M and the respondent R.M were married for 28 years. Their separation agreement provided for spousal support for S.M and child support for the youngest of their three children. Support was based on the respondent’s annual income of $91,300.

The respondent brought his first motion to change in 2010 seeking a reduction in child and spousal support based on a material change in circumstances. By order, McGee J. ordered monthly spousal support of $800 and child support of $807, after imputing annual income to the respondent of $91,225, and $10,000 to the appellant.

The respondent’s second motion to change resulted in a temporary order of Hughes J., on consent. The consent order was for monthly child support of $373 and spousal support of $345. By final order, Hughes J. varied her earlier order to provide for monthly child support of $479 and spousal support of $800.

The respondent initiated a third motion to change in seeking to terminate spousal and child support. Again, the respondent did not request an order terminating his life insurance obligation, however in March 2016 the appellant learned that the life insurance had been cancelled in 2015, and she brought a motion for contempt which was heard together with the respondent’s motion to change.

The trial judge made a final order that varied Hughes J.’s order of October 4, 2013 to terminate child support for the youngest child effective July 1, 2014, and to remove the requirement to provide life insurance to cover the support payable for that child. This aspect of his decision is not appealed.

The trial judge dismissed the appellant’s contempt motion. He referred to the requirement that the appellant prove that the respondent deliberately breached an order which was clear and unambiguous.

Issues: 

  1. Did the trial judge err in his spousal support award?
    • Did the trial judge err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward?
    • Did the trial judge err in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years?
    • Did the trial judge err in departing from the Spousal Support Advisory Guidelines (“SSAGs”) in fixing spousal support?
  2. Did the trial judge err in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations?

Held: Appeal allowed.

Reasons:

  1. The trial judge erred in his spousal support award.
    • The trial judge did not err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward. The court stated that in arriving at the figure of $35,000, the trial judge considered the relevant factors of the respondent’s qualifications, his age (60), his employment history, and his relatively good health, that “his best earning opportunity” was as an auto mechanic, and the income actually generated by his most recent period of employment as an auto mechanic.
    • The trial judge erred in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years. The court stated that the trial judge did not explain why he made an order terminating spousal support. The court concluded that even if the trial judge’s criticism of the appellant for refusing to voluntarily terminate child support was warranted, this could not reasonably justify the complete elimination of the respondent’s spousal support obligation for a period of two years.
    • The trial judge erred in departing from the SSAGs in fixing spousal support. The court found that the trial judge’s reasons suggest that he was guided by the parties’ mediated settlement. The court then stated that it was an error for the trial judge to use the parties’ negotiated settlement as a reference point for determining spousal support. The court stated that offers to settle are inadmissible in subsequent family law proceedings except when dealing with costs issues: particularly rule 18(8) of the Family Law Rules. The court found that the same applies to draft minutes of settlement tendered on another party but not signed, citing Parreira v Parreira, 2013 ONSC 6595. The court concluded that this rationale extends to a settlement that was agreed upon but could not be implemented.

Yes. The trial judge erred in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations. The court stated that civil contempt requires that the moving party establish beyond a reasonable doubt that (a) the order alleged to have been breached states clearly and unequivocally what should or should not be done; (b) the alleged contemnor had actual knowledge of the order’s terms; (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required. The court stated that a judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order, citing Carey v Laiken, [2015] 2 S.C.R. 79, at paras. 33-35, 37. In conclusion, the court found that the trial judge’s reasons on the contempt issue were conclusory. The court stated that the trial judge did not explain why he concluded that contempt had not been made out and, on a review of the evidence, the court found that there was no valid reason to refuse a contempt order.

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

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

Counsel:

Jerome R. Morse and David M. Trafford, for the appellant

Alanna P. Brogan, for the respondent

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Facts:

The appellant, Canadian Language Leadership Centre – CLLC Inc. (“CLLC”), sued its commercial landlord, the respondent, 20 Eglinton Commercial Centre Inc. (“20 Eglinton”), for damages arising from water leaks and from a non-functioning gas line. 20 Eglinton sought and obtained summary judgment dismissing CLLC’s action on the basis that it disclosed no genuine issue requiring a trial. CLLC sought, on appeal, to have the summary judgment set aside.

Issues:

(1) Did the motion judge err in finding that the factual disputes did not require a resolution by trial in this case?

(2) Did the motion judge err in finding that the damage claims linked to the gas leak were without merit?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. There were material facts contested between the parties that presented genuine issues requiring a trial. The disputed facts relevant to the application of the clause in question included when CLLC took possession of the premises, and when water leaks caused damage to CLLC. The parties disagreed about whether the premises were insurable in light of the water leaks. This was an important fact given 20 Eglinton’s concession that if the premises were not insurable when CLLC’s obligation to insure arose, then CLLC could not be bound by the clause.

(2) Yes. The motion judge failed to note the difference between the “Premises” and “Building” as defined in the contract, and disregarded Schedule “E” when applying the “as is” clause, committing extricable errors of law in interpreting the contract. Further, the motion judge failed to consider whether the disconnection of the gas line was at the fifth floor, and within the premises, or elsewhere, and arguably outside the premises.

Dujardin v Dujardin, 2018 ONCA 597

[Pepall, Brown and Trotter JJA]

Counsel:

JJ Neal, for the appellant

FE Leitch, QC, for the respondent

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Facts:

This appeal concerns the validity of two wills executed by the late JHD. JHD and his brother N jointly owned a farm property that had been in their family since 1958. In 2009, they executed mirror wills – personal and corporate – leaving their equal interests in the farm to each other as a way to minimize probate fees.

When JHD died, he was married to LJD. He did not provide for her in his 2009 wills. However, he designated her as the sole beneficiary of a Registered Retirement Income Fund (“RRIF”), which was worth about $123,000 at the time of his death. Having been left nothing in the wills, LJD challenged their validity. She contended that, as a result of chronic alcoholism, JHD lacked testamentary capacity. The trial judge dismissed LJD’s claim. She appealed.

Issues:

(1) Did the trial judge err in not allowing a doctor to provide expert testimony to support the appellant’s position that the testator lacked testamentary capacity?

(2) Did the trial judge err in finding that the testator knew and approved of the contents of his will?

(3) Did the trial judge err in finding that the testator had testamentary capacity?

(4) Did the trial judge err in finding that the wills were properly executed?

Holding: Appeal dismissed.

Reasoning:

(1) No. There was no error in the trial judge’s conclusion that the evidence was inadmissible on a cost/benefit analysis, in terms of balancing “relevance, reliability and necessity…against the counterweights of consumption of time, prejudice and confusion”: R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para 47. Dr. J never met the testator. His opinion was based on JHD’s hospital records following his 2007 heart attack, and other documents associated with this litigation (including examination for discovery transcripts). This case was fought and decided on the evidence of those who knew, interacted with, or treated JHD, not on the basis of experts who had never met or examined the man, and who could only offer tentative views on the ultimate issue the trial judge had to decide. Ultimately, the trial judge was best placed to assess the potential value of Dr. J’s evidence. Her conclusion is entitled to deference, especially given that it turned on her role as gatekeeper.

(2) No. On the evidence before the trial judge, there was a sound basis to satisfy the knowledge and approval requirements of testamentary capacity. The trial judge found that JHD was aware that the corporation, in which he held an equal share with N, owned the farmland on which they worked, and the farmhouse where they lived, for their entire adult lives. Understanding that LHD would not benefit under the will, JHD took steps to provide for LHD outside the will by setting up a RRIF.

(3) No. The evidence supports the trial judge’s overall conclusion that, while JHD had his issues with alcohol, and his health suffered because of it, he was of sound mind when he executed his 2009 wills. The trial judge commenced her analysis of testamentary capacity by setting out its constituent elements relying on Lata v. Rush, 2012 ONSC 4543, 219 ACWS (3d) 1008, at para. 32, and Royal Trust Corp. of Canada v. Saunders, [2006] OJ No 2291 (SC), at para. 58:

Testamentary capacity is established where the testator:

  1. understands the nature and effect of the will;
  2. recollects the nature and extent of his or her property;
  3. understands the extent of what he or she is giving under the will;
  4. remembers the people he or she might be expected to benefit under his or her will; and
  5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

The trial judge turned each of these elements into a question and answered all of them in the affirmative. She provided careful reasons. The evidence amply supported her conclusions.

(4) No. The trial judge properly addressed the formal requirements of the validity of the wills under section 4 of the Succession Law Reform Act, RSO 1990, c S 26 (“SLRA”). In accordance with this section, there was ample evidence from lawyer Mr. G, his law clerk NT, and N to support the conclusions that: (1) JHD signed his wills at the end of each document, (2) he signed them in the presence of two witnesses (Mr. G and Ms. T), and (3) the witnesses signed the wills in JHD’s presence. On the day that the wills were executed, Mr. G had no reason to believe that JHD had been drinking. Moreover, the brothers were fully aware of the assets at their disposal, which were principally the shares in the farming business. The trial judge found that N, as propounder of the wills, had the onus of proving compliance with the SLRA. At para 20, the trial judge said, “The formalities have been proven and, therefore, it is presumed JHD knew of and approved the contents of the wills.” There is no basis to disturb this finding, which rests on a very solid evidentiary foundation.

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

[Hourigan, Benotto and Fairburn JJ.A.]

Counsel:

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Andrea Bolieiro, for the Attorney General for Ontario

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

Facts:

This matter arose from an appeal against an order dismissing an application for habeas corpus in an immigration detention case. The appellants are citizens of China and the Dominican Republic. They originally entered Canada on temporary resident visas in 2012. Pursuant to s. 55 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellants were arrested by the Canadian Border Services Agency in 2014 and held in immigration detention. In February 2017, a third application to the Immigration Division to alter the terms of their release order was dismissed.

The appellants did not seek to have that decision judicially reviewed by the Federal Court. Instead, they pursued an application for a writ of habeas corpus in the Superior Court of Justice. Diamond J. dismissed the application for a writ of habeas corpus because he determined that there was no deprivation of liberty.

Issues:

(1) Does this court have jurisdiction to hear an appeal from a Superior Court order dismissing an application for habeas corpus?

(2) Does a finding of no deprivation of liberty trigger the application of s. 8(1) of the Habeas Corpus Act, R.S.O. 1990, c H.1 (HCA)?

Holding: The court has jurisdiction to hear the appeal. The parties should proceed to obtain the earliest date available for the hearing of the appeal.

Reasoning:

(1) Yes. Section 8(1) of the HCA only applies in circumstances where the person appealing was “confined or restrained of his or her liberty” and “brought before a judge upon a writ of habeas corpus ad subjiciendum” and “remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge”. Only where all of these statutory criteria are met, will the appellant be required to appeal the “decision or judgment of the judge to the Divisional Court”. In all other situations, the appeal will lie to the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act (CJA), as a final order of a judge of the Superior Court of Justice.

(2) No. The nature of Diamond J.’s dismissal order rested on his finding that the appellants were not deprived of liberty, the first prong of s. 8(1) is not met. The appellants are not “confined or restrained” of their liberty. Accordingly, there is no need to assess the remaining criteria in s. 8(1). The court concluded that the order appealed falls outside the scope of s. 8(1) of the HCA. Consequently, an appeal lies to the Court of Appeal under s. 6(1)(b) of the CJA.

Short Civil Decisions

Chinese Publications for Canadian Libraries Ltd v Markham (City), 2018 ONCA 586

[Doherty and Pepall, JJA and Gray J (ad hoc)]

Counsel:

Qiang Li Cao, for the plaintiff (appellant)

David G. Boghosian and Magdalena Fish, for the defendants (respondents)

Keywords: Costs, Partial Indemnity

Bertolli v Toronto (City), 2018 ONCA 595

[Simmons, Huscroft, and Miller JJA]

Counsel:

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Keywords: Civil Procedure, Amending Pleadings, Substituting Parties, Rules of Civil Procedure, Rule 26

Boodhoo v Manuel, 2018 ONCA 603

[Simmons, Huscroft, and Miller JJA]

Counsel:

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Keywords: Torts, Nuisance

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v Duncan, 2018 ONCA 574

[Lauwers, Pardu, and Miller, JJA]

Counsel:

AD, self-represented

Nader R. Hasan, appearing as duty counsel

Hannah Freeman, for the respondent

Keywords: Criminal Law, Making False Documents, Criminal Code, s 366(1), Possessing Identity Documents to Commit an Indictable Offence, Criminal Code, s. 402.2(1), Using, Trafficking, or Possessing Forged Documents, Criminal Code, s 368(1), Possession of Property Obtained by Crime, Criminal Code, s 354(1), Trafficking in Another Person’s Identity Information, Criminal Code, s 402.2(2), Sentencing, Conditional Sentence, Immigration Consequences, Criminal Code, s 718, R v McKenzie, 2017 ONCA 128, R v Pham, 2013 SCC 15

R v Figliola, 2018 ONCA 578

[Doherty, Epstein, and Pepall, JJA]

Counsel:

Michael Lacy and Deepa Negandhi, for the appellant

Rosella Cornaviera and Susan L. Reid, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Jury Instructions, R v PJB, 2012 ONCA 730, R v Morales (2006), 81 OR (3d) 161, R v Cairney, 2013 SCC 55, Evidence, Admissibility, Adverse Witnesses, Canada Evidence Act, s 9(1), Prior Inconsistent Statements, R v Soobrian (1994), 21 OR (3d) 603 (CA), R v Figliola, 2011 ONCA 457

R v Fogah, 2018 ONCA 564

[Feldman, Brown, and Fairburn, JJA]

Counsel:

Anil Kapoor and Dana Achtemichuk, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Attempted Murder with a Prohibited Firearm, Criminal Code, s 239(1)(a), Aggravated Assault by Wounding, Criminal Code, s 268(1), Discharging a Firearm with Intent to Wound, Criminal Code, s 244(1), W(D) Instructions, R v W(D), [1991] 1 SCR 742, Evidence, Credibility, Burden of Proof

R v Morillo, 2018 ONCA 582

[Paciocco JA (Motion Judge)]

Counsel:

LM, acting in person

Mark Wiffen, amicus curiae

Arend J. Wakeford, for the responding party

Keywords: Provincial Offences, Speeding, Highway Traffic Act, s 128(1), Leave to Appeal, Question of Law, Special Grounds, Provincial Offences Act, s 139(1), Vaughan (City) v Antorisa Investments Ltd., 2012 ONCA 586, Provincial Offences Act, s. 139(2), Self-Represented Litigants, Evidence, Prior Inconsistent Statements, W(D) Instructions, R v W(D), [1991] 1 SCR 742, Credibility, Statement of Principles on Self-Represented Litigants and Accused Persons

R v Murtaza, 2018 ONCA 579

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Marie Comiskey and Sébastien Lafrance, for the respondent

Keywords: Criminal Law, Importation, Controlled Drugs and Substances Act, s 6(1), Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s 5(2), Possession of Proceeds of Crime, Criminal Code, s 354(1), Jury Instructions, Expert Evidence, Cross-Examination

McFarlane (Re), 2018 ONCA 583

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anita Szigeti, for the appellant

Elena Middelkamp, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Ontario Review Board, Criminal Code, s 672.54, NCR, Conditional Discharge, Form 1, Procedural Fairness, Conway (Re), 2016 ONCA 918, Reasonable Apprehension of Bias, Tolias (Re), 2016 ONCA 463

R v Dacosta, 2018 ONCA 588

[Simmons, Huscroft, and Miller, JJA]

Counsel:

Mark Halfyard, for the appellant

Christine Tier, for the respondent

Keywords: Criminal Law, Assault, Criminal Code, s 265(1), Evidence, Admissibility, Materiality, Hearsay, Opinion

R v Gardner, 2018 ONCA 584

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Jennifer Epstein, for the appellant

Karen Seeley, for the respondent

Keywords: Criminal Law, Summary Conviction, Operation While Impaired, Criminal Code, s 253(1)(b), Standard of Review, Correctness, Housen v Nikolaisen, 2002 SCC 33, Highway Traffic Act, s 48(1), Investigative Detention, Charter of Rights and Freedoms, s 8, s 9, s 10(a), s 10(b), R v Simpson (1993), 12 OR (3d) 182 (CA), R v Roberts, 2018 ONCA 411, R v Orbanski; R v Elias, 2005 SCC 37

R v Garcia, 2018 ONCA 580

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

David M. Humphrey and Naomi M. Lutes, for the appellant

Alexandro Alvaro, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Criminal Code, s 271, Fresh Evidence, Criminal Code, s 683(1), Palmer v The Queen, [1980] 1 SCR 759, R v Truscott, 2007 ONCA 575, Character Evidence

R v Brooks, 2018 ONCA 587

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Dirk Derstine, for the appellant

David Finley, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Evidence, Hearsay, Co-conspirators Exception, R v Tsekouras, 2017 ONCA 290, Jury Instructions, R v Mapara, 2005 SCC 23, R v Simpson, 2007 ONCA 793

R v Burke, 2018 ONCA 594

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Lorna Bolton for the Crown, appellant

Brian Eberdt, for the respondent

Keywords: Criminal Law, Publication Ban, Extradition, Canadian Charter of Rights and Freedoms, s 11(b), R v Cody, 2017 SCC 31, R v Jordan, 2016 SCC 27, Defence Delay, R v MacIntosh, 2011 NSCA 111 aff’d, 2013 SCC 23

R v Imona-Russell, 2018 ONCA 590

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Christopher Hicks and Kristin Bailey, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Sexual Assault, Criminal Code, s 231(5)(b), Predicate Offence, Fraudulent Consent, R v Pare, [1987] 2 SCR 618, Constructive First Degree Murder, Evidence, Cross-Examination, Post-Offence Conduct

R v Sidhu, 2018 ONCA 591

[Watt, Pardu, and Roberts, JJA]

Counsel:

Jeff Marshman, for the appellant

Kathleen Farrell, for the respondent

Keywords: Criminal Law, Sentencing, Global Sentence, Pre-Sentence Custody Credit

R v Zekarias, 2018 ONCA 585

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Michael Dineen, for the appellant

Karen Papadopoulos, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Evidence, Identification, Jury Instructions, Post-Offence Conduct, R v White, [1998] 2 SCR 72, Concoction, R v O’Connor (2002), 62 OR (3s) 263 (CA), Criminal Code, s 686(1)(b)(iii)

R v Crocker, 2018 ONCA 600

[Watt, Pardu, and Roberts, JJA]

Counsel:

John Fennel, for the appellant

Ghazala Zaman, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s. 5(1), Evidence, Admissibility, Prior Consistent Statements, Credibility, Notorious Facts, Sentencing, R v Gladue, [1999] 1 SCR 688, Gladue Principles

R v Dobson, 2018 ONCA 589

[Doherty, Pepall, and Nordheimer, JJA]

Counsel:

James C. Fleming, for the appellant

Eric H. Siebenmorgen and Amy Alyea, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, NCR, Criminal Code, s 16(1), Statutory Interpretation, R v Oommen, [1994] 2 SCR 507, R v Chaulk, [1990] 3 SCR 1303, R v Campione, 2015 ONCA 67,  Criminal Code, s 8(3), R v Gagnon (1993), 84 CCC (3d) 143

Shepherd (Re), 2018 ONCA 593

[Lauwers, Miller, and Fairburn, JJA]

Counsel:

Ken J. Berger, for the appellant

Alexandrea Hrybinsky, for the respondent Attorney General of Ontario

Julia Zambrogna Ballès, for the respondent Southwest Centre for Forensic Mental Health Care

Keywords: Criminal Law, NCR, Detention Orders, Public Safety, Fresh Evidence, Criminal Code, s 672.81, Chaudry (Re), 2015 ONCA 317, Murray (Re), 2017 ONCA 731

R v MC, 2018 ONCA 606

[Strathy CJO (Motion Judge)]

Counsel:

Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Keywords: Criminal Law, Publication Ban, Evidence, Criminal Record, R v Corbett, [1988] 1 SCR 670, R v Gladue, [1999] 1 SCR 688, Gladue Principles, Interveners, R v Seaboyer (1986), 50 CR (3d) 395 (Ont CA), Practice Direction Concerning Criminal Appeals

R v Omar, 2018 ONCA 599

[Feldman and Benotto, JJA and Sachs J (ad hoc)]

Counsel:

Dirk Derstine, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Mr. Big, Contempt of Court, R v Glasner (1994), 19 OR (3d) 739 (CA), Sentencing, Criminal Code, s 719(3), Pre-Trial Custody Acquittal, R v Grant, [1991] 3 SCR 139, Deference,  R v Lacasse, 2015 SCC 64

R v Reyes, 2018 ONCA 607

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Althea Reyes, acting in person

Andrew Hotke, for the respondent

Keywords: Criminal Law, Bench Warrant, Criminal Code, s 800(2), Summary Conviction, Evidence, Relevance, R v Sihota, 2009 ONCA 770, Criminal Appeal Rules, Perfecting Appeals

R v Shulz, 2018 ONCA 598

 [Watt, Brown, and Huscroft, JJA]

Counsel:

Martin Schulz, acting in person

Grace Choi, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Criminal Code, s 163.1(4), Evidence, Admissibility, Solicitor-Client Privilege, Canadian Charter of Rights and Freedoms, s 8, Fresh Evidence, R v Manasseri, 2016 ONCA 704, Canadian Charter of Rights and Freedoms, s 24(2), R v Cole, 2012 SCC 53, Grant Factors, Sentencing, Probation, Prohibition Orders, Criminal Code, s 161(1)(d), R v Brar, 2016 ONCA 724, R v Perron, 2015 QCCA 601

Rogers (Re), 2018 ONCA 602

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

R. Brown, for the appellant, Leonard A. Rogers

C. Elmasry, for the respondent Attorney General of Ontario

J. Blackburn, for the respondent the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, NCR, Detention Orders, Public Safety

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.