COURT OF APPEAL SUMMARIES (OCTOBER 31- NOVEMBER 4, 2016)

Good afternoon,

Here are this week’s Court of Appeal Summaries. Civil topics covered included MVA, SABs, family law, vexatious litigants, employment law, simplified procedure and another chapter in the Indian Residential Schools settlement.The RJM56 Investments Inc v Kurnik decision highlights the importance of litigators not treating the tax implications of a settlement as an afterthought and of obtaining tax advice before completing a settlement.

Have a great weekend!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416.593.2953

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

Table of Contents

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

Ram v. Talon International Inc., 2016 ONCA 807

Keywords: Endorsement, Real Property, Agreements of Purchase and Sale, Deposits, Time of Essence Clause, Termination, Amendments, Estoppel

Frick v. Frick, 2016 ONCA 799

Keywords: Family Law, Motion to Strike, Equalization of New Family Properties, Unequal Division, Pleadings, Material Facts, Family Law Act, s. 5(6), Family Law Rules, Rules 1(7) and 1(8.2)

Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804

Keywords: Insurance Law, Statutory Accident Benefits Schedule (“SABS”), Catastrophic Injury, Attendant Care Benefits, Housekeeping/Home Maintenance Benefits, New Argument on Appeal, Shtaif v. Toronto International Publishing Co. Ltd., Interest, Sorokin v. Wawanesa Mutual Insurance Co.

Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806

Keywords: Endorsement, Civil Procedure, Vexatious Litigants, Rules of Civil Procedure, Rule 2.1

VanEvery v. VanEvery-Albert, 2016 ONCA 817

Keywords: Endorsement, General Damages, Punitive Damages, Setting Aside

Hamilton v Bluewater Recycling Association, 2016 ONCA 805

Keywords: Torts, Negligence, MVA, Juries, Evidence, Expert Opinion Evidence

Fontaine v. Canada (Attorney General), 2016 ONCA 813

Keywords: Endorsement, Independent Assessment Process, Indian Residential Schools Settlement Agreement, Serious issue to be tried, Irreparable harm to the public interest, Balance of Convenience, Expedited Stay, Fontaine v. Duboff, Edwards Haight & Schachter, 2012 ONCA 471

Singh v. Concept Plastics Limited, 2016 ONCA 815

Keywords: Employment Law, Wrongful Dismissal, Mitigation, Summary Judgment, Simplified Procedure, Rules of Civil Procedure, R. 20 and 76.04

2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2016 ONCA 819

Keywords:  Receiverships, Claims Against Receivers, Leave

RJM56 Investments Inc. v. Kurnik, 2016 ONCA 821

Keywords: Contracts, Interpretation, Ambiguity, Settlements, Tax

Short Civil Decisions (click here for decisions)

Civil Endorsements (click here for decisions)

Criminal Decisions (click here for decisions)

Civil Decisions:

Ram v. Talon International Inc., 2016 ONCA 807

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

Zucker and N. Tourgis, for the appellant

J. Butkus, for the respondents

Keywords: Endorsement, Real Property, Agreements of Purchase and Sale, Deposits, Time of Essence Clause, Termination, Amendments, Estoppel

Facts:

The trial judge found that the Agreement of Purchase and Sale terminated on its own terms and thus the respondent purchasers were entitled to a return of their deposit.

Issue: 

  • Did the trial judge err by determining that the amending agreement did not result in time becoming of the essence?
  • Did the trial judge err by determining that the purchaser could terminate the agreement without setting a new closing date?
  • Did the trial judge err by determining that the onus for setting a new closing date is on the vendor?

 Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge found correctly that the Agreement of Purchase and Sale did not contain a time of the essence clause. The amending agreements did contain a provision that “time shall continue to be of the essence”, but these provisions contradict the original agreement of purchase and sale. In view of the absence of a time of the essence provision in the original agreement, or any reference to such a clause in the agreed statement of facts, the Court of Appeal declined to give effect to this term in the amending agreements.

(2) No. The trial judge was correct in determining that the Agreement ended in accordance with para. 19 of the Agreement of Purchase and Sale because it never provided the purchasers with a revised occupancy statement, despite the vendor’s assurances that it would do so. The purchasers could hardly be obliged to set a new closing date without this revised statement.

(3) No. The trial judge was correct to lay the blame for the failure to close on the vendor. The vendor, through its lawyer (not counsel on this appeal), represented to the purchasers that it would sort out their concerns. But the vendor and its counsel failed to do so. The trial judge found that having assured the purchasers that it would address their concerns and having not done so, the vendor is now estopped from claiming the agreement was not at an end and that the purchasers were not entitled to a return of their deposit.

Frick v. Frick, 2016 ONCA 799

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

Counsel:

H. Niman, S. Strathopoulos and C. Wirdum, for the appellant
O. Weinberg, for the respondent

Keywords: Family Law, Motion to Strike, Equalization of New Family Properties, Unequal Division, Pleadings, Material Facts, Family Law Act, s. 5(6), Family Law Rules, Rules 1(7) and 1(8.2)

Facts:

The wife commenced divorce proceedings that included a claim for equalization of net family properties. She then sought to amend her application to claim an unequal division of net family properties in her favour pursuant to s. 5(6) of the Family Law Act on the basis that the husband had recklessly depleted his net family property. She alleged that he had spent money on extra-marital activities such as an affair, escort services, and an adult fetish website. The husband brought a motion to strike the amendment pursuant to r. 1(8.2) of the Family Law Rules.

The motion judge struck the claim for unequal division, without leave to amend, under rule 16(12)(b) of the Family Law Rules. The wife appealed.

Issues:

  • Was the wife’s pleading defective for failure to plead material facts?
  • Was the motion properly brought under rule 1(8.2)?
  • Should the claim for unequal division of net family properties have been struck pursuant to rule 16(12)?
  • Should portions of the wife’s application be struck under rule 1(8.2)?

Holding:

Appeal allowed, in part.

Reasoning:

  1. No. The wife’s pleading claiming an unequal division of net family properties was not defective for failure to plead material facts. In the rare instance when a matter is not adequately covered by the family rules, rule 1(7) states that the court may decide the issue with reference to the civil rules. In this case, the motion judge incorrectly determined that the family rules did not adequately cover the contents of a pleading. As such, the motion judge incorrectly turned to rule 25.06(1) of the civil rules.In this case, rule 1(7) does not apply to redirect the court to the civil rules, because the family rules adequately cover the contents of an application. In particular, the family rules do not require all the material facts relied on to be set out at the time the case is started because a party will often not know all the facts supporting a claim.
  2. Yes. The motion was properly brought under r. 1(8.2) and should have been disposed of pursuant to that rule. The motion judge erred in interpreting family rule 1(8.2) in line with the jurisprudence under civil rule 2.1.01. The words of r. 1(8.2) are clear. There was no basis to apply jurisprudence under civil rule 2.1.01 and it was an error to do so.
  3. No. The wife’s claim under s. 5(6) should not have been struck at the pleading stage. The motion judge incorrectly held that he had the authority to move, on his own initiative, to the summary judgment rule because the motion “engages the provisions of subrule 16(12) of the Family Law Rules, even if the notice of motion fails to mention that subrule.”First, while the court has jurisdiction to move on its own initiative to summary judgment, the requirement of notice still must apply. Here, the wife knew that the motion was to strike portions of her document. She could not have known that her claim for an unequal division would be judged according to the summary judgment rules. Nor could she have known that her claim would be barred forever since she was denied leave to amend.Second, the motion judge was incorrect to eliminate the wife’s s. 5(6) claim at the pleadings stage. Though there is a high hurdle to overcome for a claim to succeed under s. 5(6) on the basis of marital infidelity, the determination can only be made after the usual equalization payment is calculated. As such, this determination cannot be made on a pleadings motion; it can only be made once the equalization payment is known.Further, the wife did not even need to plead s. 5(6) in her application. Section 5(6) is not a separate cause of action. The cause of action is under s. 5(1). A specific reference to s. 5(6) is not required as long as the parties are aware that – when the equalization payment is calculated – the court will be asked to vary the usual share of net family properties. Once an equalization payment is calculated, the court has discretion to apply s. 5(6) if the conditions are met.
  4. Yes. Paragraph 18 and 19 do not offend r. 1(8.2); however, paragraph 30 on pp. 9-10 of the wife’s amended application should be struck under r. 1(8.2). These statements about the husband’s conduct are inflammatory. As Blair J.A. said in Serra v. Serra, 2009 ONCA 105, at para. 58, it is the financial consequence of the conduct that is relevant, not the conduct itself. Extended questioning of the husband’s conduct that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.

 

Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804

[Laskin, MacFarland and Roberts JJ.A]

Counsel:

C. Schnarr and T. Crljenica, for the Appellant

J. Obagi and E. Quigley, for the Respondent

Keywords:  Insurance Law, Statutory Accident Benefits Schedule (“SABS”), Catastrophic Injury, Attendant Care Benefits, Housekeeping/Home Maintenance Benefits, New Argument on Appeal, Shtaif v. Toronto International Publishing Co. Ltd., Interest, Sorokin v. Wawanesa Mutual Insurance Co.

Facts:

The respondent was badly injured in a motor vehicle accident on January 20, 2004. The appellant insurer paid her attendant care and housekeeping/home maintenance benefits for non-catastrophic cases until January 20, 2006, 104 weeks following her accident. Since the date of the accident, she has been unable to walk and eventually required two amputations.

The respondent did not make an application for a catastrophic impairment determination within the 104-week period following her accident. However, the respondent did make her initial application in February 2004 for statutory benefits within the statutory deadlines and submitted to numerous assessments. She made four applications for a catastrophic impairment determination.

The application judge accepted that the respondent has been catastrophically impaired since the accident.

Issues:

  1. Did the trial judge err in determining when additional catastrophic benefits were payable to the respondent such that they became overdue and accrued interest?
  2. Were the respondent’s injuries so severe so as to satisfy the statutory requirement for a catastrophic impairment before 2013?
  3. Did the trial judge err with respect to the amount of interest ordered payable?

Holding:

Appeal dismissed.

Reasoning:

  1. No. Under the SABS, interest is payable on overdue amounts owing to an insured person. What is meant by “overdue” is also defined in the SABS: “An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part”: 1996 SABS, s. 46. The 2010 SABS, s. 51, refers instead to “the time required under this Regulation”.The application judge accepted that the respondent was catastrophically impaired since the accident. This means that the appellant should have paid and continued to pay the respondent attendant care benefits and housekeeping/home maintenance benefits up to the catastrophic impairment ceiling and beyond the 104-week period. The appellant had the respondent’s initial application and assessments. That in good faith it failed to recognize earlier that the respondent was catastrophically impaired and should have received enhanced benefits does not affect the fact that those benefits were owing and then overdue to the respondent from August 2005 for attendant care and January 2006 for housekeeping/home maintenance.
  2. Yes. This was a new argument raised on appeal. The Court held that the respondent’s objection to this argument was well founded because it was not put to the application judge; it was not even set out as one of the enumerated grounds of appeal in the Notice of Appeal. The appellant failed to satisfy the test in Shtaif v. Toronto International Publishing Co. Ltd., 2013 ONCA 405, 306 O.A.C. 155, at para. 46 which stated that the court should only receive an argument for the first time on appeal if it is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at first instance, and that the party against whom the issue is raised will not be prejudiced by it.
  3. No. The appellant argued that the amount of interest ordered payable of about $500,000 was in error because it was grossly disproportionate to the additional attendant care and housekeeping/home maintenance benefits of $173,561.99, which were paid to the respondent.While payment is not overdue until the insured person has provided the required information in support of the claim, “this does not require the claim to be established to an insurer’s or an arbitrator’s satisfaction. Only where ‘the insured person acts in a manner that effectively prevents the insurer from assessing his or her entitlement,’ will interest accrual be delayed”: Sorokin v. Wawanesa Mutual Insurance Co., [2005] O.F.S.C.D. No. 105 (FSCO), at para. 61. There was no evidence that the respondent acted in a manner to prevent the appellant from assessing her entitlement to catastrophic impairment benefits. The Court held that in these circumstances, there was no unfairness to the appellant and the application judge committed no palpable and overriding error.

Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806

[Laskin, Sharpe and Miller, JJ.A.]

Counsel:

F. Simpson, in person

P. Farley and D. M. Soos, for the respondent

Keywords: Endorsement, Civil Procedure, Vexatious Litigants, Rules of Civil Procedure, Rule 2.1

Facts:

Since 2009, the appellant has been involved in legal proceedings involving the respondent Institute of Chartered Accountants (“ICAO”), stemming from Mr. Simpson’s suspension from the ICAO in 2007 for failure to pay annual membership fees. The ICAO asked the Court of Appeal to dismiss the appellant’s appeal and motion pursuant to r.2.1.01, r. 2.1.02, and/or r.2.1.03 of the Rules of Civil Procedure. In a letter dated May 18, 2016, Corbett J. denied Mr. Simpson’s request for leave to appeal a decision of the ICAO, because Mr. Simpson had failed to give any reason why he should be granted permission to bring the appeal in light of his history of bringing meritless proceedings against the ICAO and failure to pay substantial costs awards.

Issue:

Are Mr. Simpson’s appeal and motion frivolous and vexatious?

Holding:

Yes. Appeal and motion dismissed

Reasoning:

Mr. Simpson has repeatedly sought to re-litigate issues that have been previously decided, therefore the appeal and motion are dismissed.

The court stated the following regarding the procedure for dismissing a motion pursuant to rule 2.1:

Rule 2.1 is meant to be a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. A party considering making a rule 2.1 request is well-advised to consider if the matter would be more effectively addressed by the court by bringing a motion to quash and by filing the materials required in support of such a motion.

Where a party makes a request pursuant to r. 2.1.01(6) for an order under r.2.1.01(1) in the Court of Appeal, the party should send a written request that clearly outlines the name of the appeal or motion and the grounds upon which the party relies to have the appeal or motion dismissed. The requesting party should also provide to the court and to the appellant or moving party a bound volume containing any relevant previous issued and entered orders, including any vexatious litigant orders, and the reasons for such orders.

VanEvery v. VanEvery-Albert, 2016 ONCA 817

[Blair, Epstein and Huscroft, JJ.A.]

M. D. Staats and B. Staatsm for the appellant

P. A. R. Giles, for the respondents

Keywords: Endorsement, General Damages, Punitive Damages, Setting Aside

Facts:

The trial judge awarded general damages in the amount of $100,000 and punitive damages in the amount of $75,000 for circumstances arising out of the sale of a farm property on the Six Nations of the Grand River reserve.

Issue:

Should the damages award be set aside?

Holding:

Appeal allowed.

Reasoning:

Yes. The award of punitive damages cannot stand because they were neither pleaded nor sought by respondents’ counsel in argument at trial. Additionally, the trial judge’s reasons revealed no analysis as to how and on what basis he arrived at an amount of $75,000.

It appeared as though the trial judge awarded the general damages for harassment and mental distress. However, no claim for damages or mental distress was pleaded.

Hamilton v Bluewater Recycling Association, 2016 ONCA 805

[Hoy ACJO, Benotto and Huscroft JJ.A.]

Counsel:

J. J. Adair, J. Sidiropoulos, and J. Hernaez for the appellants

P. Tushinski, S. A. Mullings, and J. Arduini for the respondents

Keywords: Torts, Negligence, MVA, Juries, Evidence, Expert Opinion Evidence

Facts:

A jury found the plaintiff/appellant Hamilton 100% responsible for the injuries he sustained when the motorcycle he was driving collided with the respondent’s recycling truck driven by the defendant/respondent Bonnett. Hamilton and his spouse appealed the judgment.

The appellant collided with the truck driven by the respondent while attempting to overtake the truck, rendering him paraplegic. The parties agreed his damages were $8,000,000.

The jury found the appellant 100% responsible for the accident, as (1) a reasonably prudent motorist would not have made the decision to overtake the recycling truck; and (2) a reasonably prudent motorist should have had enough control to navigate an unexpected situation and come to a complete stop if necessary in this scenario.

The appellants argued that the jury’s verdict was unreasonable because there was incontrovertible evidence of Bonnett’s negligence. They say that the jury should not have found Hamilton 100% responsible. The appellants contended that the evidence established Bonnett was negligent in three ways: (1) he breached s 142(1) of the Highway Traffic Act by failing to see whether his left turn could be made safely; (2) he breached s 141(6) of the Highway Traffic Act by failing to initiate his turn from a position immediately to the right of the centre-line of the road; and (3) he operated the truck from the right side position, in violation of the truck’s safety manual, and on the morning of the accident had driven the truck at a faster speed than the manual and the American National Safety Institute standards allowed.

Issue:

Whether the jury erred in finding the appellant Hamilton 100% responsible.

Holding:

Appeal dismissed.

Reasoning:

No. The appellants faced a high threshold in attempting to overturn the jury’s verdict on the basis that it was unreasonable. The test is not whether a different conclusion could reasonably have been reached on the facts of this case. It is whether the conclusion reached by the jury is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it. On the facts of the case, it was open to the jury to find either that Bonnett was not negligent or that his negligence was not a proximate cause of the accident. The jury’s answers indicate that they considered that Hamilton was the author of his own misfortune in deciding to pass in all of the circumstances. This finding was open to the jury. It cannot be said that no jury, reviewing the evidence as a whole and acting judicially, could have reached the decision that this jury did.

The Court of Appeal also disagreed with the appellants’ submission that opinion evidence was improperly adduced by defence counsel during cross-examination of the appellants’ two expert witnesses. The appellants argued that these witnesses answered questions concerning their opinion as to the cause of the accident that were unrelated to their expertise and went directly to the ultimate issue for the jury. The appellants submitted that there is a risk that the jury was overwhelmed by inadmissible opinion evidence. The Court of Appeal noted that there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue. The Court also noted that the failure to object to the admission of evidence at trial is not determinative on appeal. However, even assuming that this evidence was wrongly admitted, it cannot be said that its admission occasioned a substantial wrong or a miscarriage of justice.

The appellants took issue with the second answer submitted by the jury (i.e. that “a reasonably prudent motorist should have had enough control to navigate an unexpected situation and come to a complete stop if necessary in this scenario”). The appellants argued that this demonstrated fundamental error, because Hamilton’s conduct after he pulled out to pass the truck was not part of the respondent’s case. In other words, the jury found an act of negligence that was not argued at trial. The Court was not persuaded that the jury’s conclusion was so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it. The jury’s first answer was directly responsive to the heart of the defence theory at trial, indicating that the jury understood its task. The jury’s additional answer does not undermine its conclusion that the respondent bore no liability for the accident.

Fontaine v. Canada (Attorney General), 2016 ONCA 813

[Roberts J.A. (In Chambers)]

Counsel:

Catherine Coughlan, for the appellant/moving party

No one appearing for the respondent, M.F. (claimant)

Keywords: Endorsement, Independent Assessment Process, Indian Residential Schools Settlement Agreement, Serious issue to be tried, Irreparable harm to the public interest, Balance of Convenience, Expedited Stay, Fontaine v. Duboff, Edwards Haight & Schachter, 2012 ONCA 471

Facts: This matter arises out of the adjudication of M.F.’s claim for compensation pursuant to the Independent Assessment Process (“IAP”) established under the Indian Residential Schools Settlement Agreement (“IRSSA”).  There is no dispute that over 50 years ago, when he was a child, M.F. was sexually abused by a priest associated with an Indian Residential School known as Spanish Boys’ IRS, and that he has suffered and continues to suffer ongoing serious psychological injuries as a result of this abuse.

Following two reviews of the adjudication and denial of his claim, M.F. made a request for direction to Perell J., as an administrative judge under the IRSSA.  M.F.’s claim had previously been denied because of the erroneous finding that M.F. had been abused after the closure of the Spanish Boys’ IRS and therefore did not qualify for compensation under the terms of the IRSSA.  By the time of the hearing of M.F.’s request for direction, a document had come to light that demonstrated that M.F. had in fact been abused while the school was still in operation.  As a result, the appellant conceded that M.F.’s claim should be referred back for adjudication with directions but that his request for directions was otherwise moot.

The administrative judge agreed with the position of M.F. and the Independent Counsel Group (the participating parties) that the request was not moot because the court’s direction was needed in the interests of justice concerning the review process in relation to factual findings; the appellant’s obligation to produce documents for the adjudicator during the course of an IAP hearing; and the court’s role in supervising the review and re-review process under the IRSSA.  The administrative judge made a number of orders. They provide for a declaration that M.F. is entitled to compensation for sexual abuse at the SL4 level and for consequential harm at the H4 level. The Crown appealed and brings a motion to stay the orders pending the appeal.

Issue: Is a stay pending appeal warranted under the circumstances?

Holding: Motion granted.

Reasoning:

Yes. In the interests of justice, a stay is warranted in the circumstances of this case. Counsel for the appellant advised that M.F. and the Independent Counsel Group do not oppose the motion for a stay.  In their email correspondence that counsel produced, counsel confirmed that they do not oppose the stay motion because of the Chief Adjudicator’s position that if a stay is ordered by this court, current and future re-reviews of claims under the IAP in relation to allegations of factual errors will also be stayed pending the disposition of the appeal.

The test for a stay pending appeal is well-settled:  the appellant must demonstrate that there is a serious issue to be tried; irreparable harm will result if the stay is not granted; and the balance of convenience favours a stay pending the disposition of the appeal:  Longley v. Canada (Attorney General), 2007 ONCA 149.  It is also well established that these criteria are not to be viewed in isolation from each other but as interrelated considerations, and that the overarching question is whether the stay is warranted in the interests of justice:  Longley

Serious issue to be tried

First, there is no question that the appellant has raised serious issues to be tried on appeal with respect to the ongoing supervisory role of the courts and the scope of review of factual errors under the IAP of the IRSSA.

Specifically, the appellant submits that the administrative judge exceeded his jurisdiction and erred in law by expanding the scope of review to include the consideration of factual errors and in assuming the role of an adjudicator in fixing the level of M.F.’s compensation and setting out a judicial process to quantify that claim and legal fees.  In this way, the appellant submits, the administrative judge has created a fourth level of review and failed to apply this court’s decision in Fontaine v. Duboff, Edwards Haight & Schachter, 2012 ONCA 471.  As a result, whether or not the administrative judge’s decision has erroneously expanded the scope of review and the court’s supervisory role are serious issues to be tried.

Irreparable harm to the public interest

The appellant has satisfied the criterion of irreparable harm to the public interest in the consistent and timely adjudication of claims under the IRSSA and IAP if the stay is not granted.

The public interest is a special factor that the appellant is required to protect:  it includes the concerns of society generally and the particular interests of the identifiable group represented in this class action that culminated in the IRSSA and the streamlined adjudicative process of the IAP:  RJR – MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311. As noted by this court in Fontaine, at para. 58, there is the need to protect vulnerable claimants and the need for finality, efficiency and the timely adjudication of the claims under the IRSSA, especially given the age of many of the claimants.

As counsel submits, the administrative judge’s decision could affect hundreds of cases under review or already settled, in which requests for direction to the administrative judge could be sought to review alleged factual errors and set compensation and legal fees.  There is the risk of inconsistent results and of different treatment among class members.  The decision affects the integrity of the IAP process also in that the non-adversarial and inquisitorial approach of the adjudicators with respect to fact-finding and the setting of compensation and legal fees may be subsumed into the adversarial court process, which appears contrary to the intention of the IRSSA.

Balance of convenience

With respect to M.F. and the Independent Counsel Group, their lack of opposition to the appellant’s motion for a stay satisfied the Court that they did not contest that the balance of convenience favours a stay.  As counsel submits, the requested stay will not further delay the payment of compensation to M.F. because the appeal would already automatically stay any order for the payment of money, under r. 63.01(1) of the Rules of Civil Procedure.

In considering the balance of convenience, the position of the Chief Adjudicator requires the Court to look at this factor not only in relation to the parties to the appeal but also with regard to the claimants whose claim re-reviews might be held in abeyance for several additional months pending the disposition of the appeal.

Counsel for the appellant submitted that while the results from the re-review process may be delayed a few months, the balance of convenience nevertheless favours a stay because of the need for consistency, fairness and certainty in the process.  Moreover, expediting the appeal will attenuate any prejudice to the other claimants that may be caused by the increased delay in the determination of their re-reviews on alleged factual errors.  The Court agreed with these submissions.

Expediting the appeal and cross-appeal

Given that M.F.’s claim has been outstanding for several years and having regard to the Chief Adjudicator’s position regarding the stay of all re-reviews that involve allegations of factual errors, it is in the interests of justice that the appeal be expedited.

Singh v. Concept Plastics Limited, 2016 ONCA 815

[Feldman, Rouleau and Huscroft JJ.A.]

Counsel:

J. W. Thomas, for Concept Plastics Limited

L. Pungea, for Jasvir Singh and Ranganadan Gounder

Keywords: Employment Law, Wrongful Dismissal, Mitigation, Summary Judgment, Simplified Procedure, Rules of Civil Procedure, R. 20 and 76.04

Facts:

This action arises out of the appellant, Concept’s decision to move its plant from Mississauga to Brantford in 2014. Gounder and Singh (collectively the “respondents”) were long-term employees of Concept at its Mississauga plant. Both were informed by letter dated November 21, 2013 that Concept would be moving its plant and would cease operations in Mississauga by January 17, 2014. They were invited to continue their employment at the new location or to consider the letter a termination notice. Ultimately, the plant closure did not occur until June 30, 2014. Both worked at the Mississauga plant up to and including that day.

Gounder and Singh both commenced their actions for damages for wrongful dismissal under the simplified procedure provided in r. 76 of the Rules of Civil Procedure. They then brought motions to dispose of their actions by way of summary judgment under r. 20.

Concept opposed each motion on the basis that there were a number of genuine issues requiring trial, and that the procedural constraints under the simplified procedure – in particular, r. 76.04 – precluded it from putting its best foot forward on the summary judgment motions. Rule 76.04 prohibits examinations for discovery by written interrogatories, cross-examinations of affiants and examinations of witnesses to pending motions in simplified procedure cases.

Concept argued that there were credibility disputes concerning: (1) whether the respondents had requested extension of their employment; (2) whether the respondents were constructively dismissed; and (3) whether the respondents took reasonable steps to mitigate their losses. It argued that summary judgment was unfair in the circumstances.

The motion judge found that there was no genuine issue requiring a trial and granted summary judgment in favour of both respondents.

Issues:

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

(2) Did the motion judge err in concluding that Gounder and Singh reasonably mitigated their losses?

 Holding:

Appeal allowed.

Reasoning:

(1) Yes. The motion judge failed to assess the fairness of deciding this matter by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04.

It was central to Concept’s case that Gounder and Singh were well aware of their termination date, and as a result Concept should have been credited with providing notice. Rule 76.04(1) establishes significant limitations on Concept’s ability to prove its case. Gounder and Singh’s affidavit evidence conflicted with Concept’s, but r. 76.04(1) precluded Concept from cross-examining them on (1) whether they had requested an extension of their employment; and (2) whether they were aware of all of the relevant developments concerning the move.

In this case, the motion judge failed to make credibility findings and failed to explain how she resolved the conflicts in the evidence. Her conclusion that Gounder and Singh had no idea when their employment would end and were entitled to fresh notice failed to address Concept’s position.

(2) Yes. Neither Gounder nor Singh offered an explanation for failing to seek employment actively during the first six months following the termination of their employment at Concept. Even assuming that a brief “cooling-off” or “grace” period may be warranted following a wrongful dismissal in some cases, there was no evidence on the summary judgment motion that a six-month suspension of the mitigation duty was warranted in this case.

2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2016 ONCA 819

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

Counsel:

P. Cozzi, for the appellant

M. Urback, for the respondent Richard Burnside & Associates Ltd.

S. Dewart, for the third parties/respondents Harrison Pensa LLP and Harry Van Bavel

Keywords:  Receiverships, Claims Against Receivers, Leave

Facts:

The appellant sought an appeal from an order staying an action as against a court appointed receiver and refusing leave to sue the receiver.

Issues:

  • Did the motion judge err in failing to find that the receiver had already consented to the action being commenced against it?
  • Did the motion judge err in finding that the appellant did not meet the test for granting leave to sue the receiver?

Holding:

Appeal dismissed.

Reasoning:

  1. The receiver’s consent at issue was given before the appellant was even aware of the claim being made in the stayed action. The Court rejected the appellant’s submission that this consent was broad enough to encompass the claim for damages resulting from conversion in connection to an agreement of purchase and sale. The consent related only to a list of claims asserted against the receiver in matrimonial proceedings.
  2. The Court saw no error in the motion judge’s finding that there was no evidence tendered by the appellant regarding damages suffered. Having assessed the record before her, the motion judge declined to draw such an inference, which was a discretionary decision reasonably based on the evidence placed before her on the motion.

RJM56 Investments Inc. v. Kurnik, 2016 ONCA 821

[Cronk, Rouleau and Huscroft JJ.A.]

Counsel:

M. L. Solmon and D. M. Sherman, for the appellant

M. R. Kestenberg, for the respondent

A. Kinoshita and P. T. Sugunasiri, for Canada Revenue Agency

Keywords: Contracts, Interpretation, Ambiguity, Settlements, Tax

Facts:

The appellant appeals a judgment dismissing its application against the respondent and granting in part the respondent’s summary judgment motion. At issue was the application judge’s interpretation of the parties’ minutes of settlement. The minutes provided that the appellant would pay the respondent $1,500,000 in full settlement of all claims. Before making the payments required by the minutes the appellant obtained accounting advice with respect to appropriate withholdings and remittances to the Canada Revenue Agency (“CRA”).

The appellant concluded that it was obligated to make withholdings and remittances to the CRA. To comply with its Income Tax Act (“ITA”) obligations and the terms of the minutes requiring that the first $250,000 payment be paid “with no deductions” to the respondent’s solicitors in trust, the appellant determined that the withholding and remittance that should otherwise have been applied to the payment to the respondent’s solicitors in trust would be made instead against the other $250,000 payment due to be made to the respondent that same day. The respondent objected to the proposed withholding. The appellant urged the respondent to obtain a legal opinion that withholding was not required and to provide both that opinion and an indemnity bond to the appellant, to be applied in the event that CRA determined otherwise. Alternatively, the respondent could complete and submit a form T1213 to seek CRA approval of a reduction of the amount withheld. The respondent declined to take either course of action and insisted that no withholding and remittance should be made.

The appellant made the first payment of $250,000 the respondent solicitors in trust without deductions. It then made a compensating withholding and remittance to CRA against the other July 4 payment of $250,000 made directly to the respondent. The net amount delivered directly to the respondent’s after withholding was only $960.49.

The appellant brought an application to the Superior Court of Justice asking the court to determine the rights of the parties under the minutes of settlement and seeking a declaration that the amounts paid and withheld complied with the minutes. The respondent brought a motion for summary judgment asking that the minutes be enforced. The respondent argued that the portion of the settlement paid to his solicitors in trust was compensation for legal costs, not employment income, and that deductions had been improperly made on account of that payment. The application judge determined that the minutes did not entitle the appellant to withhold and remit to CRA any funds from her on account of the $250,000 payment to the respondent’s solicitor in trust. He ordered the appellant to pay to the respondent the amounts improperly deducted. The application judge rejected the appellant’s submission that for ITA purposes, the $250,000 payment to the respondent’s solicitors in trust was a benefit to the respondent and that the ITA therefore required the employer to withhold and remit taxes on account of that payment. Relying on Scharf v Freure Homes Limited et al, 95 DTC 5074 (Ont CJ) for the proposition that where payment for costs is made directly to a party’s lawyers, the ITA does not require the withholding and remitting of taxes from the payment, the application judge concluded that because the minutes provided for the payment to be made directly to the respondent’s solicitors, the ITA did not require withholding and remittance of taxes. Contrary to the appellant’s submission, the ITA did not override the intent of the parties that there be no withholding and remitting of taxes.

Despite having found the appellant in breach of the minutes, the application judge declined the respondent’s additional request that the penalty provision in the minutes be applied. That provision required an additional $250,000 payment to the respondent in case of default in payment. The application judge noted that the withholding and remittance was made on the recommendations of the appellant’s tax advisor. Despite his finding that the advice was misplaced, the penalty provision was not triggered. He determined that the clause was intended to apply to deliberate default rather than erroneous deductions made on the advice of a professional. Accordingly, the application judge dismissed the appellant’s application and granted the respondent’s motion, in part.

Issues:

(1) Are the minutes ambiguous?

(2) Does the ITA apply?

(3) Was the withholding and remittance a breach of the minutes?

Holding:

Appeal allowed.

Reasoning:

(1)  Yes. The application judge failed to consider and address the fact that in the clause at issue, the parties used the words “with no deductions”. The word “deductions” does not appear anywhere else in the minutes. Rather, in the balance of the minutes when the party sought to refer to the withholding and remittance of taxes, they did so by specifically using the word “withholding”. Various expressions are used in the minutes to refer to the withholdings. Using different words in different provisions of an agreement can be meaningless or drafting oversight, or a conscious and meaningful choice. The fact that both the interpretations proposed by the parties are possible and reasonable creates an ambiguity. The minutes did not make clear that the funds were earmarked for the respondent’s lawyers, and the cheque did not specifically name the lawyers as recipients. The application judge viewed a payment made to lawyers in trust no differently than a payment made directly to a law firm. Although the minutes state that the payment to the respondent‘s solicitors in trust was to be made for costs, this is not mean that any portion of that payment will be paid out to the law firm in payment of the respondent’s legal costs. Nothing in the record indicates to whom the trust funds were paid. Further, had the application judge considered the complete text of the minutes, he ought to have concluded that the provision at issue is ambiguous.

(2) Yes. The application judge erred in his interpretation and reliance on the Scharf decision. In Scharf, the court concluded that the employer had acted properly in withholding and remitting taxes to CRA with respect to all of the funds paid to the employee in settlement of a wrongful dismissal claim, including the amount payable to the employee for costs. It was only in obiter that the court went on to express the view that perhaps the need to withhold and remit taxes in respect of the cost component of an award for wrongful dismissal might have been avoided in that case if the money in payment of costs had been paid directly to the law firm. This statement relied on by the application judge was made in obiter and was expressed as a possibility, not an opinion. Further, the statement referred to a payment made directly to a law firm, and not one made pursuant to minutes stating that it was a payment to the party for costs and where the cheque was made out to that party’s solicitors in trust.

(3) Not decided. The Court of Appeal was of the view that whether the minutes allowed or prevented the appellant from withholding and remitting taxes on account of the $250,000 payment to the respondent solicitors need not be decided to resolve this appeal, as in any event, the respondent suffered no loss. The appellant acted reasonably in light of the ambiguous provision in question. Because the withholding and remittance to CRA was done on the advice of the appellant’s tax advisor, the appellant acted in good faith and the penalty provision was not triggered. Assuming, without deciding, that the withholding and remittance was made in error, the respondent suffered no loss, as the payment made to CRA on behalf of the respondent stands to his credit as a matter of law. The error in making excessive withholding and remittance, if in fact it was an error, would at most have had a negligible impact on the respondent.

Short Civil Decisions:

Abdikarim (Re), 2016 ONCA 823

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

  1. J. Berger, for the appellant
  2. W., for the respondent the Person in Charge of the Centre for Addiction and Mental Health
  3. W., for the respondent the Attorney General of Ontario

Keywords: Endorsement, Mental Health Law, Ontario Review Board, CAMH, Not Criminally Responsible, Conditional Discharge, Supervised Accommodation

Civil Endorsements:

Nissan Canada Inc. v. Lorion, 2016 ONCA 811

[Doherty, Hourigan and Brown JJ.A.]

Counsel:

Jeffrey A. Brown and Shaun A. Hashim, for the appellant

Bradley Vermeersch, for the respondent

Keywords: Endorsement, Arbitrations, Re-Opening Arbitration, Jurisdiction of Arbitrator, Arbitration Act, s. 17

Lemire v. Canadian Tire Bank, 2016 ONCA 810

[Doherty, Hourigan and Brown JJ.A.]

Counsel:

Flora M. Lemire, appearing in person

David Lingard, for the respondent

Keywords: Endorsement, Trusts, Writs of Seizure and Sale, Renewal

Campoli v. Gianforcaro, 2016 ONCA 818

[Simmons, LaForme and Pardu JJ.A.]

Counsel:

Bhupinder Nagra, for the appellants

Conor D. O’Hare, for the respondents

Keywords: Endorsement, Contract Law, Settlement,  Error of Law, Judicial Deference

Criminal Decisions:

R. v. Baumruk, 2016 ONCA 800

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

Margaret Osadet, for the appellant

Peter Scrutton, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Leave to Appeal

R. v. Conteh, 2016 ONCA 808

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

Mark Halfyard and Breanna Vandebeek, for the appellant

Gillian Roberts, for the respondent

Keywords: Endorsement, Criminal Law, Charge to Jury, Sentencing

R. v. Dowholis (Publication Ban), 2016 ONCA 801

[Doherty, Tulloch and Benotto JJ.A.]

Counsel:

Jill R. Presser and Andrew Menchynski, for the appellant

David Finley and Michael Perlin, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Admissibility, Jury Instructions, Reasonable Apprehension of Bias

R. v. Pepping, 2016 ONCA 809

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

Daniel Stein, for the appellant

Michael Medeiros, for the respondent

Keywords: Endorsement, Criminal Law, Second Degree Murder, Parole Eligibility, Evidence, Admissibility

R. v. Fiorilli, 2016 ONCA 814

[MacPherson J.A. (In Chambers)]

Counsel:

Michele Fiorilli, acting in person

Erica Chozik, duty counsel

Hannah Freeman, for the respondent

Keywords: Criminal Law, Fraud, Criminal Code, s. 684(1), Legal Assistance, R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.).

R. v. Shafia (Publication Ban), 2016 ONCA 812

[Watt, Lauwers and Pardu JJ.A]

Counsel:

Scott C. Hutchison and Samuel Walker, for the appellant, Hamed Mohammad Shafia

Jonathan Dawe and Michael Dineen, for the appellant, Mohammad Shafia

Frank Addario and Andrew Burgess, for the appellant, Tooba Mohammad Yahya

Jocelyn Speyer and Gillian Roberts, for the respondent

Keywords: Publication Ban, Criminal Law, Murder, Jurisdiction, Youth Criminal Justice Act, s. 2(1), Youth Justice Court, Criminal Code, s. 683(1)(d), Evidence, Fresh Evidence, Expert Evidence, Hearsay, Charge to Jury

R. v. Danial, 2016 ONCA 822

[Feldman, Gillese and Benotto JJ.A.]

Counsel:

Gerald Chan, duty counsel

Scott Latimer, for the respondent

Keywords: Endorsement, Criminal Law, Kidnapping, Robbery, Witness Evidence, Reasonable Apprehension of Bias

R. v. Grove, 2016 ONCA 824

[MacPherson, Cronk and Watt JJ.A.]

Counsel:

Jill Presser, for the appellant

Allyson Ratsoy, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Illegal Substance, Controlled Drugs and Substances Act, s. 1(1) and s. 5(2), Search Warrants, Evidence, Inferences, Credibility

R. v. Janjanin, 2016 ONCA 820

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

Counsel:

Michael R. Peterson, for the appellant

Jennifer Conroy, for the respondent

Keywords:

Endorsement, Criminal Law, Possession of Illegal Substance, Possession for the Purposes of Trafficking, Sentencing

R. v. Rafferty, 2016 ONCA 816

[Laskin, Sharpe and Huscroft JJ.A.]

Counsel:

Paul Calarco and Stacy M. Nichols, for the appellant

Howard Leibovich and Randy Schwartz, for the respondent

Keywords: Criminal Law, Abduction, Murder, Sexual Assault, Accessory, Charge to Jury

Campoli v. Gianforcaro, 2016 ONCA 818

[Simmons, LaForme and Pardu JJ.A.]

Counsel:

Bhupinder Nagra, for the appellants

Conor D. O’Hare, for the respondents

Keywords: Endorsement, Contracts, Settlements, Error of Law, Deference

R. v. A.B. (Publication Ban), 2016 ONCA 830

[MacPherson, Cronk and Watt JJ.A]

Counsel:

Timothy E. Breen, for the appellant

Peter Scrutton, for the respondent

Keywords: Publication Ban, Endorsement, Criminal Law, Sexual Assault, Criminal Code, s. 486.3, Fresh Evidence

R. v. Anang, 2016 ONCA 825

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

Counsel:

Richard Litkowski and Nate Jackson, for the appellant

Maria Gaspar, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Illegal Substance, Possession for the Purposes of Trafficking, Canadian Charter of Rights and Freedoms, s. 24(2), s. (8) and s. (9), Sentencing, Evidence, Exclusion

R. v. Puvtoski, 2016 ONCA 828

[MacPherson, Cronk and Watt JJ.A.]

Counsel:

Zachary Kerbel and Saman Wickramasinghe, for the appellant

Gillian Roberts, for the respondent

Keywords: Endorsement, Criminal Law, Impaired Driving, Canadian Charter of Rights and Freedoms, s. 7, Highway Traffic Act, s. 199, Error of Law

 

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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