COURT OF APPEAL SUMMARIES (SEPTEMBER 26 – SEPTEMBER 30, 2016)

Hello,

There were seven substantive civil decisions released this week, and three of note. For those of you wondering when the limitation period will expire for your unpaid 407 invoices, in 407 ETR Concession Company Limited v. Day the Court has approved the contractual extension of the limitation period in the transponder lease agreements (15 years). Also of interest are the Courts comments on when the limitation period begins to run (after the “usually effective” process of license plate denial proves fruitless).  For those 407 users without a transponder, it appears that the limitation period does not start to run on unpaid invoices until a license plate renewal is denied.  This date could be as much as two years from the date of the unpaid invoice, effectively extending the limitation period to four years.

The Court addressed (and denied) security for costs of an appeal in Trillium Motor World Ltd. v. General Motors of Canada Limited on the basis that the moving party waited too long to bring its motion.  Of interest in this case is the argument raised by the moving party (defendant to a class action) that the representative plaintiff should be required to ask members of the class to fund the action.  This issue was not determined, though Huscroft J.A. stated that he thought this requirement would undermine the concept of a class proceeding, in which the constituent members have no liability for costs, except with respect to the determination of their own individual claims.

Finally, Enerzone Inc. v. Ontario (Revenue) involved whether or not an order was considered interlocutory.  This decision includes an observation and a plea to counsel “…we observe that the question whether orders made on motions like the motion before the motion judge are final or interlocutory is an ongoing problem in this court. Without intending any criticism of anyone, we observe that the problem could be avoided, or at least mitigated, if more attention was paid by counsel and motion judges to the language of the orders disposing of the motion. Appropriate language in the order could make it clear that the order does or does not purport to finally dispose of a substantive issue between the parties.”

Have a nice weekend, and enjoy the 407.

Chad Kopach

Blaney McMurtry LLP

ckopach@blaney.com

Tel: 416.593.2985

http://www.blaney.com/lawyers/chad-kopach

 

 

Civil Decisions (click on the case name to read the summary)

Trillium Motor World Ltd. v. General Motors of Canada Limited, 2016 ONCA 702

Keywords: Class Proceeding, security for costs of underlying action and of appeal, Rules 61.06 and 56.01 of the Rules of Civil Procedure

Baradaran v. Tarion Warranty Corporation, 2016 ONCA 712

Keywords: Rules 57.03(2) and  60.12 of the Rules of Civil Procedure, Failure to Pay Costs, Motion to Dismiss, Allegation of Bias

407 ETR Concession Company Limited v. Day, 2016 ONCA 709

Keywords:  Limitation Periods, Highway 407, Debt Collection, Business Agreement, “Appropriate Means”, Limitations Act, 2002, s. 5(1)(a)(iv) and s. 22, Highway 407 Act, 1998, Novak v. Bond, Brown v. Baum, Boyce v. The Co-operators General Insurance Co.

Stawro v. Mayfield Holdings Inc., 2016 ONCA 710

Keywords: Mortgage, Default, Assignment Agreement, Writ of Possession, Sufficiency of Reasons, Interest Rate, Unconscionable, Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18.

Enerzone Inc. v. Ontario (Revenue), 2016 ONCA 717

Keywords: Endorsement, Interlocutory Order

Arcari v. Dawson, 2016 ONCA 715

Keywords: Endorsement, Limitation Period, Discoverability, Due Diligence, Reasonable Expectation, Limitations Act, S.O. 2002, c. 24, Costs, Substantial Indemnity

Whitfield v. Whitfield, 2016 ONCA 720

Keywords: Costs, Indemnity, Deductions, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 57.01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 126

 

For Civil Endorsementsclick here.

For Criminal Decisionsclick here.

For Criminal Endorsementsclick here.

For Ontario Review Board Endorsementsclick here.

 

Civil Decisions

Trillium Motor World Ltd. v. General Motors of Canada Limited, 2016 ONCA 702

[Huscroft J.A.]

Counsel:

D. S. Morritt and E. Thomas, for the respondent/moving party
D. Sterns and A. Seretis for the appellant/responding party

Keywords: Class Proceeding, security for costs of underlying action and of appeal, Rules 61.06 and 56.01 of the Rules of Civil Procedure

Facts:

General Motors sought an order requiring Trillium to pay $5,353,133.77 as security for costs prior to continuing its appeal. Specifically, GM sought $5,478,005.32 in costs awarded to GM from Trillium following GM’s successful defence of the action at trial, less $500,000 (security for costs already paid by Trillium prior to trial), plus $375,128.45, which GM estimated to be the costs of responding to Trillium’s appeal.

Issue:

Should Trillium be ordered to pay security for costs?

Holding:

No. Appeal dismissed.

Reasoning:

It was “too late in the day” to order security for costs, both for the trial costs and the appeal costs.

GM brought a motion for security of costs in 2012. The motion was settled by a consent order pursuant to which Trillium posted $500,000 in security for costs. Trillium’s action against GM was dismissed following a 41-day trial. GM’s counterclaim was also dismissed. Trillium’s action against Cassels Brock & Blackwell was successful and Trillium was awarded $45,000,000.00 in damages plus costs. That judgment against Cassels is also under appeal, but had no bearing on this motion.

GM argued that there was good reason to believe that Trillium had insufficient assets in Ontario to pay costs, but was not impecunious and therefore it would not have been unjust to require it to pay security for costs. GM submitted that an appeal with a low prospect of success, coupled with an appellant from whom it would nearly impossible to collect costs, constituted a good reason to order security for costs.  GM argued (though without authority for this position) that the class members should have been asked to contribute to security for costs, and because there was no evidence that they were asked, Trillium cannot be said to be impecunious.

Trillium argued that GM’s delay in bringing the motion has resulted in prejudice and that GM did not satisfy the  test for requiring security of costs.

The judge declined to award security for costs for the trial because of GM’s delay and the prejudice it caused Trillium.

GM knew that it was defending a complicated class action against an insolvent representative since 2012. It knew that Trillium was out of business and had insufficient assets to pay GM’s costs, and yet GM took no action. GM neither moved to have Trillium replaced as representative plaintiff, nor to have Trillium pay security for costs.

Instead, it defended the action aggressively and ran up enormous costs in doing so. Its reasons for not bringing the motion for security of costs were tactical in nature; it stated that it did not want to bring a motion earlier because it was not willing to expose its people to cross-examination. The court found that it would be inappropriate to relieve GM of the consequences of its tactical decisions.

The prejudice resulting from the late decision to seek security manifests in two ways: first, it was too late for Trillium to seek funding from the Class Proceedings Fund now that the claim had been dismissed. Second, Trillium’s ability to fundraise from its class members has been compromised, following its dismissal at trial.

Huscroft J.A. did not make a determination on whether this was required.  He did note, however, that making such a determination would possibly undermine the concept of a class proceeding, in which the constituent members have no liability for costs, except with respect to the determination of their own individual claims.

Baradaran v. Tarion Warranty Corporation, 2016 ONCA 712

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

Counsel:

M. Baradaran, acting in person
S. Vlahakis, for the respondent Tarion Warranty Corporation
H. L. Shankman, for the respondent Master Custom Homes and Abbassgholi Nasseri

Keywords: Rules 57.03(2) and  60.12 of the Rules of Civil Procedure, Failure to Pay Costs, Motion to Dismiss, Allegation of Bias

Facts:

The respondents/defendants brought a motion to dismiss the action against them for the appellant’s failure to pay outstanding costs orders. The motion was before Myers J., who was case managing the action.

By order dated November 26, 2014, Myers J. gave the appellant until February 1, 2015 to pay the outstanding costs, in default of which the respondents could move without notice for the dismissal of the appellant’s action.

The appellant’s appeal to this court of the November 26, 2014 order was quashed, as the order was interlocutory. Leave to appeal the order was refused by the Divisional Court. After the outstanding costs remained unpaid, the respondents brought their motion before Myers J. to dismiss the action. The motion was granted on December 16, 2015, with costs of the action fixed at $8,829.53 for Tarion Warranty Corporation and $6,910.00 for the other respondents.

Issue:

  1. Did the motion judge err in the amount of the costs that the appellant was ordered to pay before his action was dismissed?
  2. Did the motion judge display bias by interfering in the motion heard by another judge who had ruled against the appellant earlier in the proceedings?

Holding:

Appeal dismissed.

Reasoning:

  1. The costs that the appellant was required to pay was properly calculated.
  2. The procedure adopted by the motion judge was fair to all parties, and he applied the correct test after giving proper consideration to all relevant factors. The motion judge recognized that, while court orders, including costs orders, are meant to be obeyed, he had a discretion, in the interest of access to justice, to permit an action to proceed notwithstanding default in the payment of costs. The motion judge considered the factors relevant to the proceedings, including the appellant’s self-represented status. In this case the appellant had offered no reason for his non-payment of costs. The motion judge appropriately exercised his discretion to dismiss the case. Allegations of bias were entirely unfounded and without merit.

407 ETR Concession Company Limited v. Day, 2016 ONCA 709

[Laskin, MacFarland and Roberts JJ.A.]

Counsel:

J. T. Curry and R. Jones, for the appellant
R. D. Manes and J. Ginsberg, for the respondent

Keywords:  Limitation Periods, Highway 407, Debt Collection, Business Agreement, “Appropriate Means”, Limitations Act, 2002, s. 5(1)(a)(iv) and s. 22, Highway 407 Act, 1998, Novak v. Bond, Brown v. Baum, Boyce v. The Co-operators General Insurance Co.

Facts:

Highway 407 (“the 407”) is an “open access” toll highway. Tolls are not collected at points of entry or exit. Instead, drivers’ use of the highway is captured by a scanner if they have a transponder and by a camera if they do not. People are invoiced monthly for their use of the highway.

Unpaid tolls under the Highway 407 Act, 1998 can be collected by one of two methods: a civil action in the courts, or a process known as licence plate denial in which the Registrar of Motor Vehicles will not validate (renew) or issue a vehicle permit to any person with an outstanding debt to the 407.

The respondent Ira Day had been placed in “licence plate denial” three times previous to 2010.  After 2010, in either a Porsche 911 or Mercedes, the plaintiff continued to use the 407 approximately 6 times a month.

The first unpaid invoice was sent to Day on January 21, 2011.  It sent him a notice that he was again in license plate denial on August 10, 2011.  Day’s license plate was denied after it expired on December 31, 2011.

Day continued to use the 407, and continued to not pay.  The 407 commenced an action against him on June 14, 2013.

Day pleaded that the 407’s claim was partly barred by the Limitations Act, 2002. The 407 then brought a motion under r. 21 of the Rules of Civil Procedure to determine the two issues arising under the statute.

The motions judge rejected Day’s argument that the limitation period started to run when it sent the invoice.  Rather, the motion’s judge held that the period began on May 26, 2011: the earliest date under the Highway 407 Act, 1998 that the 407 could have given notice to put Day into licence plate denial.

The 407 submitted that the motion judge erred in his holding. The Limitations Act, 2002 provides that a claim is not discovered until a civil action “would be an appropriate means to seek a remedy,” and the 407 contended that it was not appropriate to sue Mr. Day until the date the licence plate denial process had run its course and his vehicle permit expired, which was December 31, 2011.

The second issue arose out of Mr. Day’s use of a transponder, which had a lease agreement with a limitation period of 15 years.

Issues:

(1) Did the motion judge err by holding that the 407’s claim was “discovered” once it could have given the Registrar notice to put a debtor into licence plate denial?

(2)  Did the motion judge err in law by holding that the 15-year limitation period in a lease agreement was unenforceable, because it was not a “business agreement” under s. 22 of the Limitations Act, 2002?

Holding:

Appeal granted.

Reasoning:

(1) This first issue on the appeal turned on s. 5(1)(a)(iv) of the Limitations Act, 2002: when should the 407 have known that a civil action against Mr. Day was an “appropriate means” to recover its loss?

A civil action only became appropriate when the 407 had reason to believe it will not otherwise be paid – in other words, when the usually effective licence plate denial process had run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt. This date starts the two-year limitation period. For Day, this date was December 31, 2011; thus, the 407’s claim was not statute barred. The Court provided four reasons for its conclusion.

First, under s. 5(1)(a)(iv) of the Limitations Act, 2002, the date a proceeding would be an appropriate means to recover a loss must have “regard to the nature of the … loss”. The statistics cited by the Court regarding toll collection clearly demonstrated that licence plate denial process motivated the vast majority of debtors without the need for commencing civil suits.

Second, in determining when a claim ought to have been discovered, s. 5(1)(b) of the Limitations Act, 2002 requires the court to take account of “the circumstances of the person with the claim”. The 407 “circumstances” differ from those of many other creditors. It is not only enormously busy, with 380,000 trips on an average workday, but unlike a credit card company, for example, which can cancel a customer’s credit card for non-payment of a debt, the 407 cannot bar a defaulting debtor’s access to the highway. The Court cited McLachlin J. Novak v. Bond, [1999] 1 S.C.R. 808 at paragraph 85 for support with respect to the potential unfairness of requiring a plaintiff to bring an action at the time a claim first materializes.

Third, the Court relied on the well-established purpose of s. 5(1)(a)(iv): “certainty, finality and the unfairness of subjecting defendants to the threat of a lawsuit beyond a reasonable period of time.” If the limitation period ran concurrently with the licence plate denial process, there would be the real possibility of numerous Small Claims Court claims. These claims would be needless because the vast majority of defendants would likely pay their debts to avoid having their vehicle permits expire. A concurrent approach would also impose a burden on the 407 to keep track of two proceedings – licence plate denial and the running of the two-year limitation period. Such a burden would not provide an effective method of toll collection. A far simpler and more appropriate solution is to delay the start of the limitation period until the licence plate denial process has ended.

Finally, although the 407 had discretion when and even whether to send a s. 22 notice to the Registrar, that discretion was held not to detract from the appropriateness of using the end of the licence plate denial process as the start of the two-year limitation period. The Court acknowledged that the 407 could use its discretion to manipulate the start date but found that commercial interests dictated otherwise.

 (2) Is the transponder lease agreement a “business agreement” under s. 22 of the Limitations Act, 2002?

The Court agreed that transponder lease agreement was not a business agreement, as in this case, Day checked the box for “personal use”, not “business use”. However, the court held that the motion judge erred by focusing on ss. 22(5) and 22(6) of the Limitations Act, 2002, and not accounting for s. 22(3). Under s. 22(3), parties can agree to contract out of the two-year limitation period even if one of the parties is a “consumer”. Under s. 22(3), parties can only suspend or extend the two-year limitation period, they cannot shorten it. Only parties to a business agreement can also agree to shorten the two-year period. As Day’s transponder lease agreement extends the two-year limitation period to 15 years, it was enforceable under s. 22(3).

With respect to the enforcement of a fifteen year limitation period at common law, the court cited its decision in Boyce v. The Co-operators General Insurance Co. 2013 ONCA 298: “A court faced with a contractual term that purports to shorten a statutory limitation period must consider whether that provision in ‘clear language’ describes a limitation period, identifies the scope of the application of that limitation period, and excludes the operation of other limitation periods. A term in a contract which meets those requirements will be sufficient for s. 22 purposes, assuming, of course, it meets any of the other requirements specifically identified in s. 22.” With respect to ss. 22(5), the Court in Boyce stated: “The only limitation in s. 22(5) is found in the definition of ‘business agreement’. No other limitation appears, expressly or by implication, and certainly no content related requirements appear in s. 22(5).”

The court concluded that the lease agreement for the transponder was enforceable at common law. The provision for a 15-year limitation period was described in “clear language”, not once but twice in the agreement. The scope of the limitation period was identified by stating the period was 15 years; any other period is excluded. It was unnecessary to refer expressly to the exclusion of the two-year period. There was no express reference to it in the agreement in the Boyce case, yet the Court held the agreement was enforceable under s. 22. Similarly, the transponder lease agreement signed by Day is enforceable under s. 22(3) of the Limitations Act, 2002 and was not rendered unenforceable at common law.

Stawro v. Mayfield Holdings Inc., 2016 ONCA 710

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

Counsel:

O. Ogunniyi, for the appellants
A. Sidhu, for the respondent

Keywords: Mortgage, Default, Assignment Agreement, Writ of Possession, Sufficiency of Reasons, Interest Rate, Unconscionable, Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18.

Facts:

The appellants, Mayfield Holdings Inc. and Harpreet Sethi, are the owners of adjoining properties located at 3142 Mayfield Road and 3172 Mayfield Road in Brampton, Ontario. The respondent, John Stawro, is the assignee of the mortgages of each property.

The original mortgagees with respect to the property at 3142 Mayfield Road, which is the subject of the order under appeal, were Joseph and Frances Borg. They obtained a default judgment in respect of the mortgage on November 18, 2014. Eventually the Borgs assigned the mortgage on 3142 Mayfield Road to Finance Mart Corp. (“FMC”), which was also the mortgagee on 3172 Mayfield Road. By transfers of charge dated February 4, 2016, FMC then transferred both mortgages to the respondent.

The motion judge granted the order under appeal for a writ of possession in favour of the respondent respecting 3142 Mayfield Road on May 17, 2016, to be executed if the appellants failed to make certain payments to the respondent on both mortgages.

On March 20, 2015, FMC and Mayfield Holdings Inc. agreed to a series of recitals in respect of both mortgages. The agreement had the effect of increasing the interest rate of the Borg mortgage on 3142 Mayfield Road from 8.4% to 12%, which was the rate of interest on the FMC mortgage on 3172 Mayfield Road. The recalculated amounts on the mortgages reflected past defaults, accrued costs and additional fees.

Upon further default, the respondent (to whom the mortgages had been transferred) moved for a writ of possession based on the default judgment in respect of 3142 Mayfield Road that had been granted in favour of the Borgs. The matter came before the motion judge, who made the May 17, 2016 order under appeal.

The mortgage on 3142 Mayfield Road was in default as was the mortgage on 3172 Mayfield Road. The respondent also pursued relief in respect of the mortgage on 3172 Mayfield Road, and on June 10, 2016, Price J. gave a similar conditional order for a writ of possession. The appellants admit they made no payments in response to either order.

Issues:

  1. Should the order under appeal be set aside because the reasons are wholly inadequate to have permitted the issuance of the writ of possession at issue in this appeal?
  2. Do the new mortgage terms offend s. 8 of the Interest Act, R.S.C., 1985, c. I.15?
  3. Does the Assignment Agreement (post-dating the default judgment) constitute a new mortgage, effectively rendering the default judgment obtained by the Borgs a nullity, and therefore compelling the respondent to commence a new action?
  4. Are the new terms unconscionable?
  5. Did the motion judge make a fatal legal error when he tied the two mortgages together and effectively required payments to be made on both mortgages as a condition of withholding the writ of possession on 3142 Mayfield Road?

Holding:

The appeal is dismissed.

Reasoning:

  1. While it would have been preferable for the reasons to refer to the arguments, however briefly, that is not an absolute requirement. Furthermore, the arguments not addressed by the motion judge are without merit.
  2. There is nothing in the March 20, 2015 agreement or in the Assignment Agreement that has the effect of imposing a higher rate on the arrears owing than on the amount owing that is not in arrears, which is a required element for the appellants to succeed on this ground: Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18.
  3. The terms of the Assignment Agreement do not constitute a new mortgage but only acknowledge the existing mortgages and their continued state of default.
  4. The interest rate on the Borg mortgage, which increased from 8.4% to 12%, is nowhere near the criminal interest rate. There is nothing in the dealings between the parties that would give rise to an argument of unconscionability.
  5. The motion was based on the evidence, including the continuing default on the Borg mortgage. The respondent was therefore manifestly entitled to a writ of possession respecting 3142 Mayfield Road.

Enerzone Inc. v. Ontario (Revenue), 2016 ONCA 717

[Doherty, Cronk and Pepall JJ.A.]

Counsel:

J. Fiore and J. DeFreitas, for the respondent (appellant) the Minister of Revenue
S. Flaherty for the appellant (respondent) Enerzone Inc.

Keywords: Endorsement, Interlocutory Order

Facts:

The Minister moved under various rules seeking an order dismissing Enerzone’s appeal on the basis that the scope of the appeal allowed under the Retail Sales Tax Act did not extend to the kinds of challenges put forward by Enerzone in its notice of appeal. The motion judge did not accept the minister’s arguments.

Issues:

Is the order dismissing the Minister’s motion interlocutory?

Holding:

Yes. The motion judge’s order does not preclude the Minister from raising arguments on the appeal as to the scope of the appeal itself.

Reasoning:

The questions for the purposes of determining whether the order is final or interlocutory is: Did the motion judge decide the scope of the appeal in the sense that the Minister is precluded from raising arguments as to the scope of the appeal on the appeal itself, or did the motion judge decide that the proper scope of the appeal was arguable and a matter to be determined on the appeal itself? If the former, the order is final, while if the latter, the order is interlocutory.

Reading the motion judge’s reason as a whole, the court found that the motion judge’s order did not preclude the Minister from raising arguments on the appeal as to the scope of the appeal. The motion judge’s order dismissing the motion simply dismissed the motion. It did not purport to decide anything about the scope of the appeal.

Arcari v. Dawson, 2016 ONCA 715

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

Counsel:

G. Bogue, for the appellant
D. Phillips-Brown, for City of Kitchener and Region of Waterloo

Keywords: Endorsement, Limitation Period, Discoverability, Due Diligence, Reasonable Expectation, Limitations Act, S.O. 2002, c. 24, Costs, Substantial Indemnity

Facts:

The appellant, Lynda Arcari, was injured when she was struck by a vehicle as she crossed the street. She sued the driver of the vehicle. The appellant’s original lawyer hired an accident reconstruction expert to produce a report about the cause of the accident. This engineer found that the driver’s speed caused the accident. The appellant sued the driver in December of 2010 and her action was set to go to trial in September 2015.

The appellant subsequently hired a new lawyer. When the new lawyer attended at the accident scene, it was “obvious” to him, given what he asserted in oral argument to be his unique professional experience, that the design and safety features (or lack thereof) at the crosswalk were contributing factors to the 2009 accident. The appellant accordingly moved to add the respondents, the City of Kitchener and the Regional Municipality of Waterloo, as defendants.

The motion judge observed that the appellant’s expert “attended at the accident scene within one year where all of the design features or deficiencies were there to be seen, noted and reported on.” The motion judge found that the respondents’ alleged negligence “was as close to within the “actual knowledge” of the [appellant’s] lawyer and engineer as it can come”. In his view, it was not a case in which discoverability and due diligence could play a role in extending the limitation period. He concluded that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries. He awarded the respondents costs calculated on a substantial indemnity scale.

Issue:

  • (1) Did the motion judge err by determining that the respondent could not be added because the claim was statute-barred?
  • (2) Did the motion judge err in determining costs?

Holding:

Appeal to add the respondents dismissed.
Appeal of the costs disposition granted.

Reasoning:

(1) No. When a plaintiff’s motion to add a defendant is opposed on the basis that the claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff’s motion.

There is no basis to interfere with the motion judge’s finding of fact that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries. The appellant raised no credibility issue or issue of fact relevant to discoverability that would merit consideration on a summary judgment motion or at trial.

The motion judge did not err by not considering the full extent of the appellant’s injury in assessing discoverability. In 2010, the appellant commenced her action against the driver, claiming significant injuries to her neck and shoulder. Further, she pleaded impairment of her ability to work. It is clear that, at that time, she understood that she had damages warranting a lawsuit. The fact that she later discovered that her injuries were more extensive did not extend the limitation period against the respondents.

(2) Yes. The motion judge awarded the respondents costs on a substantial indemnity scale throughout. The respondents concede that the appellant did not engage in conduct warranting an award of costs against her on a substantial indemnity scale. Therefore, leave is granted to allow the appellant’s appeal on costs. The respondents are entitled to costs on a substantial indemnity scale only from the date of their settlement offer.

Whitfield v. Whitfield, 2016 ONCA 720

[Weiler, van Rensburg and Roberts JJ.A.]

Counsel:

M. Henein, M. Gourlay and C. Mainville, for the appellant
Dr. A. Whitfield, acting in person

Keywords: Costs, Indemnity, Deductions, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 57.01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 126

Facts:

The Court had allowed an appeal of a trial decision, and awarded the appellant partial indemnity costs of the appeal in the amount of $50,000.   The appellant’s trial costs were backed up by a brief outline of “fees” indicating that trial counsel had been called to the bar in 1992, had spent 732 hours on litigation over 12 years, and charged an actual hourly rate of $195.  The appellant “asserted” a partial indemnity rate of $300 to $350 per hour [outrageous submission in original].

The appellant’s actual trial costs were $202,742.49.

The unrepresented respondent sought various discounts, including relating to the fact that the trial was conducted as a bilingual trial.

Issue:

  • (1) Should the Court calculate costs based on partial, substantial or full indemnity?
  • (2) Should costs be subject to a discount?
  • (3) Should costs be subject to further deductions?

Holding:

The appellant’s partial indemnity trial costs fixed at $162,239.25, including the applicable HST.

Reasoning:

(1) The appellant seeks full payment of his trial counsel’s actual fees on the basis that his trial counsel’s hourly rate was so low that it amounts to a partial indemnity rate. The respondent submits that the appellant has effectively claimed his costs on a full indemnity basis and that there is no reason to allow this level of costs in this case.

Unless full indemnity costs are warranted, it would be an error in principle to grant an award of costs said to be on a partial indemnity basis that is virtually the same as an award on a substantial or full indemnity basis. To order otherwise would remove the distinction between partial indemnity and substantial or full indemnity costs and overcompensate the appellant. Partial indemnity costs are simply that: partial and not full compensation for a party’s costs. Substantial indemnity provides far greater compensation and full indemnity results in complete reimbursement for costs. As a result, absent applicable settlement offers, substantial and full indemnity costs are reserved for rare and exceptional cases.

Other than the submissions concerning the respondent’s raising irrelevant issues that served to lengthen the trial, the appellant does not argue that the respondent engaged in the kind of reprehensible or frivolous conduct that would warrant substantial or full indemnity costs. Accordingly, the appellant is entitled to his reasonable, fair and proportionate partial indemnity costs, in an amount which should have been in the respondent’s reasonable contemplation to pay if she were unsuccessful at trial.

(2) The discount applied is within the discretion of the court and not a matter of a precise mathematical calculation. A discount of 20% of the appellant’s claimed fees is appropriate to achieve a just result in this case. The Court agrees with the appellant’s submission that his counsel’s rate was unusually low for his lawyer’s years of experience, the ten years that he carried this brief without an increase of his hourly rate, and the complexity of this action. Accordingly, as a starting point, the Court fixes the appellant’s partial indemnity fees in the amount of $114,292.40, plus the applicable HST.

(3) The respondent submits that the appellant’s partial indemnity costs should be subject to other deductions, including for the costs of a bilingual proceeding.

The respondent submits that there were additional costs unnecessarily incurred as a result of the appellant requiring interpretation services during the bilingual trial because he does not understand the French language. She maintains that it would be unfair to require her to pay for those costs as it would be tantamount to punishing her for exercising her right to a bilingual proceeding.

The Court disagrees. First, there is no evidence to support the respondent’s estimates of the time allegedly spent on interpretation during the trial, which, at almost a third of the trial, are excessive and not borne out by the trial transcript. Second, this was a bilingual civil proceeding pursuant to s. 126 of the Courts of Justice Act. As a result, each party had the respective right to lead evidence and make submissions in French or English, and receive the assistance of an interpreter, if required. Finally, any extra trial time taken up with interpretation is no different than any other step in a trial. There is no evidence that the appellant or his counsel were improperly using interpreters or otherwise wasting trial time.

The respondent was given small reductions on account of a successful motion, and on account of a disbursement to an expert for “interviewing witnesses”, with no other backup.  The balance of the other bases on which the appellant sought reductions were rejected.

Civil Endorsements

Narayanan v. Padathe, 2016 ONCA 708

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

Counsel:

L. Padathe, acting in person
T. M. Roll and B. J. Marco, for the respondent

Keywords: Endorsement, Family Law, Spousal Support, Divorce Act, s. 17(10)

118143 Ontario Inc. (Canamex Promotions) v. Mississauga (City), 2016 ONCA 713

[Doherty, Tulloch and Benotto JJ.A.]

Counsel:

E. M. Green and C. Salazar, for the appellants
T. Frankel and C. Pendrith, for the respondent

Keywords: Endorsement, Costs

Easson v. Blase, 2016 ONCA 707

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

Counsel:

S. Grant and J. Preston, for the appellant
L. Easson, appearing in person

Keywords: Endorsement, Costs

Royal Bank of Canada v. Petitclerc, 2016 ONCA 716

[Rouleau, Hourigan and Huscroft JJ.A.]

Counsel:

A. Herman, for the appellant
N. Marconi, for the respondent

Keywords: Endorsement, Contract, Bank Agreement, Authorized User

Criminal Decisions

R. v. Coulter (Publication Ban), 2016 ONCA 704

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

R. Litkowski, for the appellant
M. Hurman, for the respondent

Keywords: Criminal Law, Stay of Proceedings, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27

R. v. Manasseri, 2016 ONCA 703

[Watt, Lauwers and Huscroft JJ.A.]

Counsel:
P. Campbell, for the appellant Charlie Manasseri
H. L. Krongold, for the appellant George Kenny
S. Porter and M. Lai, for the respondent

Keywords: Criminal Law, Second Degree Murder, Assault Causing Bodily Harm, Improper Joinder, Criminal Code, s. 589, Crown’s Closing Argument, Inappropriate Analogy, Fresh Evidence, Expert Opinion Evidence, Cause of Death, Criminal Code, s. 683, New Trial, Stay of Proceedings, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27

R. v. Sarrazin, 2016 ONCA 714

[Gillese, Rouleau and Brown JJ.A.]

Counsel:

R. Silverstein and I. Grant, for the appellant
M. Bernstein, for the respondent

Keywords: Criminal Law, Second Degree Murder, Jury Bias, Unanswered Question, Jury Instructions, Frailties of Eye-Witnesses, In-Dock Identification, Crown’s Remarks, Prejudice, Stay of Proceedings

Criminal Endorsements

R. v. Murphy, 2016 ONCA 705

[Doherty, Pepall and Hourigan JJ.A.]

Counsel:

T. E. Breen, for the appellant
N. Thomas, for the respondent

Keywords: Endorsement, Criminal Law, Cross-Examination, Propensity for Violence, R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.)

Ontario Review Board Endorsements

Boehme (Re), 2016 ONCA 706

[Doherty, Pepall and Hourigan, JJ.A.]

Counsel:

E. Dann and J. Shanmuganathan, for the appellant
P. Payne, for Ontario Shores Centre for Mental Health Sciences
K. Beaudoin, for the Ministry of the Attorney General

Keywords: Endorsement, Ontario Review Board, Detention Order, Not Criminally Responsible, Mental Disorder, Conditional Discharge

Jenner (Re), 2016 ONCA 711

[Laskin, Gillese and Watt JJ.A.]

Counsel:

S. Gehl, for the appellant
R. De Filippis, for the Crown
J. Zamprogna, for the Person in Charge of Southwest Centre Forensic Mental Health Care

Keywords: Endorsement, Ontario Review Board, Disposition, Least Onerous, Least Restrictive

 

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.

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