Court of Appeal Summaries (November 14-18, 2016)

Good Afternoon.

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

Topics covered included commercial leasing, by-law enforcement, municipal liability, assessments under the Solicitors Act, pension obligations under a contract and family law.

If you find this blog useful, please spread the word.

Enjoy the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416.593.2953

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

 

Table of Contents:

Elmgreen v. Elmgreen, 2016 ONCA 849

Georgina (Town) v Blanchard, 2016 ONCA 846

Saumur v. Antoniak, 2016 ONCA 851

Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854

1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848

Roelandt v Roelandt, 2016 ONCA 858

267 O’Connor Limited v. Perley-Robertson, Hill & McDougall LLP, 2016 ONCA 853

Tibbett & Britten Group Canada Inc v Sobeys Inc, 2016 ONCA 861

Koubi v. Hascalovici, 2016 ONCA 867

Refaeli v. Salomon, 2016 ONCA 862

2224981 Ontario Inc. v. Intact Insurance Company, 2016 ONCA 870

For Civil Endorsements, click here

For Criminal Decisions, click here 

 

Civil Decisions:

Elmgreen v. Elmgreen, 2016 ONCA 849

[Cronk, Rouleau and Huscroft JJ.A.]

Counsel:

J. R. Webster, for the appellant/respondent by way of cross-appeal

Jens Peter Elmgreen, acting in person

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances

Facts:

The parties married on July 17, 1985, after cohabiting for approximately one year. After the marriage, the parties resided in Cameron, Ontario. They had one child, a daughter born on January 15, 1991, who is now 25 years of age. Child support is not in issue in these proceedings. The parties entered into a Marriage Contract on July 16, 1985, the day before their wedding. The parties separated in January or February 2004, after almost 20 years of marriage.

On October 14, 2005, the Husband offered to settle the parties’ post separation financial and property issues, the Wife accepted his offer, and the accepted offer was incorporated in Minutes of Settlement and approved by the court under the Consent Order. At the time of the settlement, both parties were represented by counsel. In his offer to settle, the Husband offered to pay the Wife an equalization payment in the sum of $185,000 and monthly spousal support in the amount of $2,200 commencing October 1, 2005.

The support payments were subject to a material change in circumstances and review after five years. The Consent Order mirrored these terms regarding spousal support. Within days of his offer to settle, the Husband took issue with the settlement and the services provided to him by his lawyer. Nevertheless, he paid the equalization payment and, for a period of about eight years, the monthly spousal support contemplated by the Consent Order.

After the settlement, the Husband twice sued his matrimonial lawyer for alleged negligence and breach of fiduciary duty, leading to protracted litigation between them. His first action against his former solicitor was dismissed and he appealed to this court. That appeal and the Husband’s subsequent application for leave to appeal to the Supreme Court of Canada were both dismissed.

About three years later, in March 2014, the Husband commenced a second negligence action against his former solicitor. In December 2014, on a motion for summary judgment by the solicitor, the second action was also dismissed. The Husband’s appeal to this court from that dismissal was in turn dismissed.  In the meantime, in August 2009 and while his first action against his former solicitor was in progress, the Husband moved in the Superior Court for an order rescinding the Consent Order, determining the validity of the Marriage Contract, and requiring the Wife to provide full financial disclosure. The court addressed the issue of financial disclosure and deferred the balance of the motion pending the determination of the Husband’s action against his former solicitor.

On October 22, 2014, the Husband moved in the Superior Court for summary judgment concerning the issues raised in his outstanding August 2009 motion, including an order rescinding or setting aside the Consent Order, among other relief. In his materials in support of his motion, the Husband also sought an order varying the spousal support provisions of the Consent Order based on a material change in circumstances.

The motion judge treated the Husband’s 2009 and 2014 motions as a combined motion for summary judgment. She granted partial judgment in his favour, by reducing his spousal support obligation retroactively and terminating spousal support as of a set future date. In granting this relief, the motion judge imputed annual income to the Wife in the amount of $30,000 and annual income to the Husband in the amount of $80,000. The effect of her decision was that, as of the date of her ruling, the Wife owed the Husband an approximate $15,000 overpayment of spousal support and, effective November 1, 2016, the Husband was relieved of any further obligation to pay spousal support.

The motion judge denied the remaining relief sought by the Husband. She declined to set aside the Consent Order and held, in effect, that the Marriage Contract is unenforceable and does not govern the parties’ post-separation rights and obligations. Both sides appealed. 

Issues:  

There are two main issues on the appeal:

  1. Did the motion judge err by retroactively reducing the Husband’s spousal support obligation and terminating it entirely, effective November 1, 2016?
  2. If the answer to (1) is “yes”, what is the appropriate remedy in the circumstances?

There is one issue on the cross-appeal:

  1. Did the motion judge err by refusing to rescind or set aside the Consent Order and by holding that the Marriage Contract does not govern the post separation rights and obligations of the parties?

Holding: Appeal allowed. Cross-appeal dismissed.

Reasoning:

(1) Yes. In order to determine whether the Husband had established a change in circumstances sufficient to warrant variation of his spousal support obligation, the motion judge undertook a detailed review of the Wife’s income tax returns and those of her new partner, Mr. Moore, for the years 2004 to 2013.

The motion judge concluded that a change in circumstances had occurred after the date of the Consent Order by reason of the manner in which the Wife and Mr. Moore had structured their financial and living arrangements, as described above. Further, in the motion judge’s view, this change was material because the Wife’s income had increased from $5,000 (date of separation income) to $17,000 – $21,200 (income in years following separation), her capital asset position had improved and her relationship with Mr. Moore had proven to be long-term and founded on the joint sharing of incomes and expenses.

The motion judge therefore held that this was an appropriate case in which to apply a ‘step down’ approach to spousal support, that is, a gradual reduction in the quantum of spousal support payments, leading to a final termination of the Husband’s spousal support obligation.

The court accepted that, on the evidence before the motion judge, a material change in the parties’ circumstances did occur after the date of the Consent Order. The Wife’s overall circumstances had also improved since separation, as she had acquired an interest in the property she shares with Mr. Moore and she had been enjoying the benefits of income and expenses pooled with those of Mr. Moore.

However, the court also agreed with the Wife’s submission that the motion judge erred in her interpretation and use of the Wife and Mr. Moore’s income tax returns, leading her to further err in her calculation of the annual incomes to be imputed to the Wife and Mr. Moore for spousal support purposes. Based on her review of the Wife and Mr. Moore’s income tax returns, the motion judge concluded that they had understated their respective annual incomes by claiming personal expenses as deductions against their horse boarding and farm income, the full value of which should be imputed to them as income for spousal support purposes.

The court found flaws in the motion judge’s interpretation of the Wife’s 2010 income tax return. For example, the motion judge provided no explanation for her finding that the Wife “had a farm income in excess of $12,000” in 2010. The court found this to be an error. This amount is not reflected in the Wife’s 2010 income tax return, which discloses gross farm income of $4,169. Further, no explanation for the source of this figure was provided to the court. While the motion judge indicated that she “did not use that $12,000 as farm income”, nonetheless, her finding reflects an erroneous interpretation of the Wife’s 2010 income tax return.

Similar errors were also evident in the motion judge’s interpretation of the Wife’s income tax returns for 2011 to 2013. In doing so, the court found the motion judge again erred.

The motions judge’s spousal support ruling rested on her imputation of annual incomes to the Wife and Mr. Moore and her core finding that they under-declared their annual incomes – at least for spousal support purposes – by claiming personal expenses as deductions from their business income. The motion judge’s errors in interpreting the couple’s income tax returns fatally tainted her spousal support analysis. On this ground alone, the motion judge’s spousal support ruling cannot stand.

The court found that the motion judge had erred on a further ground of hearing fairness. The parties had no meaningful opportunity to address the motion judge’s concerns regarding the returns, especially her views about the nature and import of the claimed deductions, or to call evidence or make submissions on the proper interpretation of the returns in light of those concerns. The court found that hearing fairness was thereby compromised. Furthermore, the court found that the judge erred on a further ground based on the length of the marriage and the evidence of the roles assumed by the parties during marriage, it was said this was a relevant consideration which was mistakenly not taken into account.

(2) The motion judge’s spousal support ruling is unsustainable. It is therefore open to the court to evaluate afresh the Husband’s request for a change in his spousal support obligation.

The errors in the motion judge’s spousal support analysis constituted errors in principle and reflect a significant misapprehension of some of the key evidence. Accordingly, they displaced the usual deference to be accorded by a reviewing court to a motion judge’s discretionary spousal support ruling. The issues, therefore, are what spousal support should be paid by the Husband to the Wife, if any, and for how long.  sThe court was satisfied that the record before it was sufficient to permit a determination of these issues, without the need to order a new trial, with all the attendant delay and additional costs that would entail.

Given the differential between the Husband’s net income in 2013 ($104,633) and the Wife’s net income for the same year ($13,928), it is clear that some spousal support is required. A comparison of the Wife’s net income from all sources in 2013, together with that of Mr. Moore, with the Husband’s net income for the same year yields the same conclusion. The SSAGs provide useful guidance in this regard.

The court regarded the Wife’s variation proposal as both reasonable and appropriate. First, with the exception of the proposed monthly support amount for the period October 2005 to October 2010, the amounts proposed by her are well below the low end of monthly support payments set out in the SSAGs for the relevant years, based on the continuing differential between the Wife and Husband’s the annual incomes. These lower support amounts reflect a partial sharing of the Husband’s post-separation income increases and are appropriate given the Wife’s re-partnering. Second, the Wife’s proposal contemplates spousal support on both a compensatory and non-compensatory basis. This is also appropriate on the facts of this case. Third, at the appeal hearing, neither party suggested any change to the quantum of the pre-October 2010 monthly spousal support. Instead, they supported the motion judge’s ruling that spousal support should continue at the $2,200 per month level until October 2010.

The court fixed the Husband’s spousal support obligation as follows:

(1) October 2005 to October 1, 2010: $2,200 per month

(2) November 1, 2010 to October 1, 2012: $1,900 per month

(3) November 1, 2012 to October 1, 2014: $1,750 per month

(4) November 1, 2014 for an indefinite period: $1,600 per month

The court also directed that the variation in spousal support from November 1, 2014 onwards is subject to review in the future as a result of any further material change or changes in the parties’ circumstances.

(3) No. The motion judge considered her authority to set aside a consent order and addressed the grounds advanced by the Husband in support of his contention that the Consent Order should be set aside or rescinded. She provided clear and cogent reasons for her refusal to do so. The court agreed with her decision on this issue and her reasoning. In particular, the following considerations overwhelmingly support the motion judge’s dismissal of the Husband’s request to rescind or set aside the Consent Order.

The record does not support the Husband’s contention that he did not consent to the settlement or that he did not intend to implement it. The impugned court order was made on consent pursuant to a written settlement reached by the parties on October 14, 2005. Years after the date of the Consent Order, he sought to have it set aside or rescinded on the basis that he did not sign the Minutes of Settlement and that his signature on the Minutes was forged or otherwise fraudulently affixed without his consent or knowledge. Although the Husband argues that he instructed his solicitor to hold the offer in abeyance, the record indicates that those instructions were communicated after the date of the Consent Order. There was no evidence before the motion judge, and there is none before this court, that the Husband did not sign the Acknowledgement or that it was the product of fraud or forgery.

The motion judge was fully justified in refusing to set aside or rescind the Consent Order.

 

Georgina (Town) v Blanchard, 2016 ONCA 846

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

Counsel:

A. Burton, for the appellants.

J. R. Hart and C. Kapelos, for the respondent, The Corporation of the Town of Georgina

S. E. Valair, for the respondent, Her Majesty the Queen in Right of Ontario

Keywords: Municipal Law, By-Laws, Enforcement, Injunctions, Real Property, Aggregate Resources Act

Facts:

The appellants, 1124123 Ontario Limited (“112 Ontario”) and Marvin Blanchard, appeal the order of the application judge granting the respondent, The Corporation of the Town of Georgina (the “Town”) a permanent injunction restraining the appellants from contravening the Town’s Site Alteration By-law in connection with property owned by 112 Ontario (the “Property”). Blanchard held a licence under the Aggregate Resources Act to extract aggregate from the Property (the “Licence”). He stopped extracting in 2007. On June 12, 2007, the Ministry of Natural Resources issued a Rehabilitation Order to Blanchard to comply with s. 48(1) of the Act, which requires a licencee to “perform progressive rehabilitation and final rehabilitation on the site in accordance with this Act, the regulations, the site plan and the conditions of the license or permit to the satisfaction of the Minister.” On October 21, 2013, the Minister revoked Blanchard’s Licence. The Licence required Blanchard to perform a final rehabilitation of the Property. Blanchard’s position was that he needed to truck fill onto the Property to rehabilitate it in accordance with the Act. The Town’s position was that the Site Alteration By-law prohibited Blanchard from bringing fill on to his Property unless the Licence permitted him to do so. Ontario took the position that the Licence does not permit Blanchard to import fill to rehabilitate the Property.

The Town obtained a final injunction restraining Blanchard from contravening its Site Alteration By-law, including prohibiting him from importing fill onto the property. The appellants appeal, seeking to set aside the final injunction.

Issues:

(1) Whether the application judge erred in interpreting the Act and the Licence as prohibiting them from bringing fill on to the Property to rehabilitate it.

(2) Whether the terms of the final injunction are too broad and would prevent them from rehabilitating the Property.

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellants observed that the Act defines “rehabilitate” as meaning “to treat land from which aggregate has been excavated so that the use or condition of the land (a) is restored to its former use or condition, or (b) is changed to another use or condition that is or will be compatible with the use of adjacent land.” The appellants contended that since the Property was previously used as an alfalfa crop farm, the definition of “rehabilitate” entitles them to bring fill onto the Property to restore it to former use. The Court disagreed. The appellants’ argument ignored that the Licence was subject to specific conditions about how the appellants are to rehabilitate the excavated sites. The Court held that there was ample evidence to support the application judge’s findings that there was no provision in the site plans for the importing of fill onto the site for rehabilitation purposes, and that a Rehabilitation Order issued in 2007 clearly described how the rehabilitation of the site was to be done using onsite materials. The Court also rejected the appellants’ submission that a regulation under the Act in force at the time the Licence was issued allows them to import fill.

(2) No. The appellants argued that the final injunction, by permanently restraining them from contravening the provisions of the Town’s site Alteration By-law, prevented them from performing the sloping and grading of the pit required by the notes in the Final Rehabilitation Plan. They argued that would result in a conflict between the By-law and the Act. They contended that the By-law is rendered inoperative to the extent of its inconsistency with the provisions of the Licence or site plans. The Court rejected this submission. The Town acknowledged that any rehabilitation performed by way of a site alteration properly authorized under a licence issued pursuant to the Aggregate Resources Act, whether taking place during the currency of the licence or after the expiration/revocation of same, is exempt from the provisions of the Site Alteration By-law. The Town’s acknowledgement was based on Part 3, s 3.1(h) of the Site Alteration By-law, which states that it does not apply to the alteration of grade of land undertaken on land described in a licence for a pit under the Aggregate Resources Act. The section of the Site Alteration By-law prohibiting site alteration is expressly made subject to Part 3 of the By-law. The final injunction does not interfere with the appellants’ ability to rehabilitate the Property.

 

Saumur v. Antoniak, 2016 ONCA 851

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

E. A. Cherniak Q.C. and C. K. Boggs, for the appellant

R. J. Hooper and M. K Grosso, for the respondents

Keywords: Endorsement, Torts, Negligence, Contributory Negligence, Standard of Care, Minros, Standard of Review, Issues of Fact, Palpable and Overriding Error

Facts:

The respondent Dean Saumur (“Dean”) was badly injured when struck by a car while crossing a busy street in Hamilton on his way to school on May 14, 2002. He was almost 10 years old at the time. The City of Hamilton had committed itself to staffing the crosswalk where the accident occurred with a crossing guard between 8:20 AM and 8:40 AM on school days. It is not contested that the crossing guard was not on site when Dean crossed the road, and that, if Dean were crossing the road during the time when the crossing guard was to have been on site, the City is liable.

After reviewing and weighing the evidence of four witnesses who saw the accident and six witnesses who did not but who gave testimony relevant to the issues (including the crossing guard, whose evidence he did not accept), the trial judge found that Dean had crossed the road during the period of time when the crossing guard should have been present, but was not. He also held that Dean was not contributorily negligent.

In what is almost entirely a factually-based appeal, the City contests these findings.

Issues:

  1. Did the trial judge err in determining the time the accident occurred (i.e., that the accident occured during the period of time when the crossing guard was to have been present)?
  1. Did the trial judge err in determining that Dean was not contributorily negligent?

Holding: Appeal dismissed.

Reasoning:

  1. No. While the appellant seeks to put a different gloss on the evidence, there was ample evidence to support the findings made by the trial judge.

Much time was spent on the appeal re-arguing the submissions that were made to the trial judge and inviting the Court of Appeal to re-weigh the evidence led at trial and come to a different conclusion. While another judge may have come to different conclusions based on the record, it was this trial judge’s call on the evidence and his findings are amply supported by the record. It is not the Court of Appeal’s role to re-parse what happened on a second by second basis, as the appellant requests.

  1. No. The trial judge heard all of the evidence, however – including, importantly, the testimony of Dean and other witnesses who were children at the time of the accident. He was entitled to draw inferences from what he determined to be the dynamics of the events as they occurred, and to apply his experience and common sense in doing so. On that basis, and given the record, he was entitled to draw the inferences he drew and come to his conclusions.

The trial judge applied the correct legal standard of care as set out in Nespolon v. Alford, namely “the standard of a reasonably prudent 10-year old of like intelligence and experience”. From the application of that standard his finding that no contributory negligence should be attributed to Dean was factually driven. While another finding may have been available on the evidence, the trial judge made no reversible error of fact or mixed fact and law in arriving at his findings and the conclusions he did on the contributory negligence issue.

 

Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854

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

Counsel:

E. Neal, for the appellant

G. Jermane, for the respondent

Keywords: Endorsement, Insurance Law, MVA, SABS Insurance Act, s. 267

Facts:

The appellant was involved in two accidents. Under s. 12(2) of the SABS, the appellant’s automobile accident insurer was entitled to deduct the Long-term Disability Income (“LTD”) payments from the amount of the NEB payable but, for reasons that were not explained, it did not do so. However, under the terms of its Group Insurance Plan, the respondent was entitled to reduce the monthly LTD payments by “any disability or retirement benefit … payable … under … a provincial auto insurance law.” After being notified by the appellant that she was receiving the Non-Earner Benefit (“NEB”), the respondent began to deduct the amount of the NEB from its LTD payments.

Issue:

Did the application judge err in holding that the respondent insurer was entitled to reduce its LTD payments it was making to the appellant, under its Group Insurance Plan, by the amount of the NEB she was receiving from her own insurer?

Holding: Appeal dismissed

Reasoning:

No. The appellant was not working at the time of her second accident. She elected to receive the NEB under s. 12(1) of the SABS. In order to qualify, she was required to establish that she suffered “complete inability to carry on a normal life as a result of and within 104 weeks after the accident” and that she did not qualify for an income replacement benefit.

The application judge correctly found that the words “any disability … benefit” were broad enough to cover the NEB, which he found was a “disability benefit payable because of impairments which render a person completely unable to carry on a normal life.” The deduction of the NEB was consistent with the LTD policy being one of indemnity.

The Court rejected the application of Bannon v. McNeely (1998), 38 O.R. (3d) 659 (C.A.) (“Bannon“) to support the argument that the no-fault SABS are to be deducted from other payments on an “apples for apples basis.” Bannon dealt with statutorily-mandated deductions from tort damage awards pursuant to s. 267 of the Insurance Act. By contrast, the deduction at issue in this case arose by virtue of the terms of the respondent’s policy of insurance. The court held that the policy language was clear and unambiguous and mandated the deduction. The Court also rejected the submission that the result gave the respondent insurer a “windfall.” A deduction permitted by the plain language of the policy is not a “windfall.”

 

1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848

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

J. P. McReynolds, for the appellant

M. P. Zarnett, for the respondent

Keywords: Real Property, Commercial Tenancies, Leases, Termination, Damages,  Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Orders, Pleadings, Applications, Amendments, Limitation Periods

Facts:

The appellant, 1100997 Ontario Ltd. (“110”), operated a convenience store in a strip mall in premises owned by North Elgin Centre Inc. In 1997, 110’s predecessor (1252795 Ontario Ltd., or “125”), entered into a lease with North Elgin for a five year term. In 2003, after the bankruptcy of 125, 110 and North Elgin negotiated a lease for a five year term, with an option to renew for a further five year term. The 2003 lease was never executed. 110 continued to operate the convenience store at the premises, paying rent to North Elgin until 2012.

In March 2012, following a default in payment of rent, North Elgin gave one month’s notice of termination of 110’s tenancy, taking the position that 110 was an overholding month-to-month tenant.

110 commenced an application in the Superior Court seeking a declaration that it had a lease of the premises. 110 brought an emergency motion for interim relief from forfeiture. Mullins J dismissed the motion on April 20, 2012 and North Elgin took possession of the premises on May 1, 2012.

Neither party took further steps in the proceeding until October 2015, when 110 moved for an order directing a trial of the issues and for leave to serve a statement of claim. 110 proposed to seek damages for the termination of its tenancy.

Issues:

1) Was the motion judge’s order final or interlocutory, and does the Court of Appeal have jurisdiction to hear an appeal from the order?

2) Did the issue of the existence of a written lease have to be determined at the emergency motion on a final basis?

3) Does the proposed statement of claim seek to advance new causes of action not arising out of the factual nexus pleaded in 110’s application?

Holding: Appeal allowed.

Reasoning:

1) The order is final and the Court of Appeal has jurisdiction to entertain the appeal. The motion judge dismissed the motion to direct a trial of the issues because he concluded that 110 proposed to pursue new causes of action that did not arise from the factual nexus contained in the notice of application and were therefore statute-barred.

2) No. Mullins J stated that there was no clear definitive evidence that there was a written lease, but did not purport to decide this issue. The motion judge erred in concluding that Mullins J found that there was no written lease and in treating her decision as a final determination of the issue.

3) No. Where a proceeding is commenced by way of application, it is necessary to consider both the notice of application and the supporting affidavit material referred to therein to determine whether the proposed amendment sets forth a new cause of action. A notice of application may be amended in the same manner as a pleading: r. 14.09. An amendment will be refused when it seeks to advance, after the expiry of the limitation period, a “fundamentally different claim” based on facts not originally pleaded.

The underlying question is whether North Elgin had knowledge of the facts underlying 110’s damages claims. The application asserted that 110 had rights as a tenant of the premises under the unexecuted 2003 lease. It claimed part performance and that North Elgin was not entitled to terminate the lease on one month’s notice.

110’s claim for damages arose out of exactly the same circumstances that were set forth in the notice of application and supporting affidavit, namely the conduct of North Elgin in terminating the lease and retaking possession of the premises. The claim for damages is simply an alternative remedy based on the same factual nexus as originally pleaded in the notice of application. While the notice of application originally sought only declaratory and injunctive relief, 110’s damages claim is not a “fundamentally different claim” based on a set of facts not originally pleaded.

 

Roelandt v Roelandt, 2016 ONCA 858

[Weiler, Rouleau and Roberts JJ.A.]

I. McLean, for the appellant

J. McIlhargey, for the respondent Yvonne Roelandt

M. E. Cull, for the respondent Martina Roelandt

P. Cornish, for the respondent N. Burwell

Keywords: Endorsement, Family Law, Guardianship

Facts:

The appellant, Kenneth Roelandt, appeals the application judge’s order appointing Yvonne and Nelly Burwell as guardians of the property and personal care for Martina Roelandt. Martina, Nelly, and the appellant are the children of Yvonne.

Martina is 57 years old and is incapable of managing her property and personal care. She requires assistance with nutrition, dressing, bathing, and taking medication, and she requires 24 hour supervision.

With the exception of one year, Martina has always lived with her mother who is now 88 years old. From December 2013 to December 2014, Yvonne became ill and had to be hospitalized. During this time, Martina lived in North Bay with the appellant and his wife.

Issues:

Did the application judge err in appointing Yvonne and Nelly the guardians of Martina?

Holding:

Appeal dismissed.

Reasoning:

The application judge carefully applied the relevant legal principles to the information before him and concluded that it was in Martina’s best interests to have Yvonne and Nelly appointed as her guardians. Furthermore, he found that the actions taken by the appellant and his wife were financially motivated.  The Court of Appeal saw no reason to interfere with the application judge’s decision.

 

267 O’Connor Limited v. Perley-Robertson, Hill & McDougall LLP, 2016 ONCA 853

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

Counsel:

P. J. Pape and A. M. Bolieiro, for the appellant
A. J. F. Lenz, for the respondent

Keywords: Endorsement, Lawyer and Client, Solicitor’s Fees, Assessments, Solicitors Act, s. 11, Special Circumstances, Standard of Review, Discretionary Orders

Facts:

267 O’Connor Limited (the “applicant” or “appellant”) brought an application pursuant to s. 11 of the Solicitors Act, R.S.O. 1990, c. S. 15 seeking an order directing an Assessment Officer to assess all the accounts rendered to it by the respondent solicitors between May 31, 2014 and October 31, 2014. The accounts had all been paid.

The application judge dismissed the application. He held that the applicant had not established, on a balance of probabilities, the existence of special circumstances justifying a referral for assessment. The applicant appealed.

Issues:

Did the application judge err in failing to allow an independent assessment of whether the fees charged by the respondent solicitors were excessive?

Holding:

Appeal dismissed.

Reasoning:

No. The application judge made no error in principle and the result was not unreasonable. In the absence of any evidence reasonably leading to an inference that the accounts rendered to the appellant were excessive, the application judge did not err in declining to reason backwards from the amount of partial indemnity costs for part of the work done by the respondent solicitors to a conclusion that the accounts for all of the work done were excessive.

Further, the argument on appeal is essentially that the application judge ought to have exercised his discretion differently. However, the case law is clear that the Court of Appeal defers to the decision of the application judge when considering the existence of special circumstances, absent an error in principle or a clearly unreasonable result. No error in principle or unreasonable result existed in this case.

 

Tibbett & Britten Group Canada Inc v Sobeys Inc, 2016 ONCA 861

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

J. McAleer, for the appellant

P. Griffin and K. Hayden, for the respondent

Keywords: Contracts, Pensions and Benefits, Plan Deficits, Contributory Fault, Due Diligence,  Limitation Periods, Limitations Act, 2002,

Facts:

A wind-up of a pension plan was triggered when agreements for which Sobeys and Tibbet & Britten Group Canada Inc. are now responsible were terminated. The agreements provided for the sale of certain warehouse assets by Sobeys’ predecessor to Tibbett’s predecessor, and a corresponding agreement by Tibbett’s predecessor to provide transportation services from those warehouses. Justice Wilton-Siegel held that Sobeys was obliged by its contractual relations to fund the pension deficit directly. Sobeys contests that decision and appeals.

In January 1995, Sobeys’ predecessor, Oshawa Foods, sold its warehousing and distribution assets in two of its warehouses to Surelink, Tibbett’s predecessor. In a parallel warehouse and transportation service transaction, Surelink agreed to provide warehousing and transportation services to Oshawa in connection with that company’s food distribution business. Under the warehousing and transportation agreement (the “WTA”), Surelink assumed responsibility for the former employees of Oshawa who were working in the warehouses, including responsibility for benefits under the existing pension plan.

Sobeys terminated the agreements after its acquisition of Oshawa in 1999, for reasons open to it under the agreements, and resumed its own warehousing and transportation functions. All of the positions of Surelink employees at the two warehouses were terminated, triggering a wind-up of the Plan effective March 5, 2000. Surelink took steps to further the winding-up process, with the assistance of the Plan’s actuaries, Aon Consulting, and in conjunction with the Financial Services Commission of Ontario (“FSCO”) under the Pension Benefits Act (the “PBA”).

Tibbett’s position as Surelink’s successor is that by June 2001, Sobeys had undertaken to take over the administration of the Plan and the obligation to fund the deficit in the Plan directly. Tibbett submitted that Sobeys’ assumption of the administration of and responsibility for the Plan continued with little or no further involvement of Tibbett and with the direct involvement of Aon until April 2013, when Tibbett says it first learned that Sobeys was refusing to comply with its contractual obligation to fund the Plan deficit.

The application judge held that the termination provisions of the WTA required Sobeys to reimburse Tibbett for the amount required to fund the deficit that arose on the wind-up of the Plan; and that Sobeys and Tibbett had reached an agreement pursuant to which Sobeys agreed to be responsible for directly funding the Plan deficit. Sobeys did not contest that it was obligated to reimburse Tibbett for the reasonable costs incurred in funding the Plan deficit. However, Sobeys argued that the obligation does not render it liable to reimburse Tibbett for the entirety of the present Plan deficit.

The application judge found the reimbursement obligation to arise by virtue of the termination provisions in the WTA which called for the parties to settle their financial obligations within 30 days of termination, including the settlement of “Employee Termination Payments” which included pension obligations relating to the terminated Surelink (Tibbett) employees at the two warehouses.

Sobeys contested the application judge’s finding that it agreed to assume responsibility for directly funding the plan deficit.

Issues:

(1) Whether the parties had entered into a new agreement in or around August, 2001, whereby Sobeys would assume responsibility for the Administration of the Plan and for directly funding the Plan deficit;

(2) Whether Tibbett’s claim was statute-barred under the Limitations Act, 2002;

(3) Whether Sobeys’ contractual obligation to fund the “reasonable” costs of employee termination rendered it responsible for the entirety of the present Plan deficit; and

(4) Whether the doctrine of contributory fault in contract applied.

Holding: Appeal dismissed.

Reasoning:

(1) Yes. The parties entered into a further agreement following the performance of their obligations upon termination of the WTA, that pertain to the ongoing administration of the plan, including the windup of the plan and the plan deficit. There had been a financial closing of all matters pertaining to the termination of the WTA in or about August 2001. The closing incorporated matters relating to the funding of the plan deficit as at that time. This finding was supported by documentation and by the fact that Sobeys accrued liability on its books for the pension deficit until it decided that it was not responsible to fund the deficit directly and reversed the entry in February 2009. The application judge found validation for his finding and business logic, in the fact that Sobeys exercised all control over the plan investments post-2001; and in the fact that Aon accepted and acted upon Sobeys’ instructions only thereafter, with no subsequent correspondence or conduct between Aon and Tibbett/Surelink or between Sobeys and Tibbett/Surelink on the subject.

The application judge determined that the parties had finalized all matters relating to the WTA, including matters pertaining to the wind-up expenses and the funding of the plan deficit to that point in time as of August 2001, and had terminated that agreement and entered into a further one respecting the ongoing administration of the plan and the finalization of the wind-up and the deficit. The provision in the WTA requiring modification or amendment to be by an agreement in writing was not engaged. The parties entered into a new agreement.

(2) No. Tibbett’s claim was not statute-barred. At issue is the nature of the contractual obligations between Sobeys and Tibbett whereby Sobeys undertook to fulfill those obligations. Tibbett was entitled to assume that Sobeys was doing so. In these circumstances, Sobeys was not entitled in law to convert Tibbett’s statutory obligation with respect to the plan under the Pension Benefits Act into a de facto contractual duty to Sobeys to ensure that Sobeys complied with its contractual obligations, particularly in the absence of any notice to Tibbett that something was amiss.

Sobeys did not advise Tibbet, Aon or the Financial Services Commission of Ontario that the Sobeys Pension Committee had determined at a meeting in February 2009 that Sobeys was not responsible for the plan and that Sobeys shortly thereafter reversed its balance sheet liability for the plan deficit. Tibbett had not failed to act with “due diligence” in connection with its wind-up and deficit-funding obligations. There was no communication between Sobeys or Aon and Tibbett until April 17, 2013, when Aon advised Tibbett via letter that there remained outstanding issues pertaining to the plan. Tibbett’s application was timely.

(3) Yes. Sobeys submitted that its responsibility to reimburse Tibbett for the “reasonable costs and expenses” in relation to the wind-up and Plan deficit did not extend to reimbursement of the entire amount of the present Plan deficit. Sobeys submitted that Tibbett/Surelink acted unreasonably and without the requisite due diligence in its approach to winding up the Plan and dealing with the Plan investments. As a result, the amount sought by Tibbett is not a reasonable payment as required by the WTA. Sobeys also submitted that the application judge should have found Tibbett/Surelik responsible for contributory fault in contract. However, the application judge was entitled to find that Tibbett acted with due diligence.

(4) No. Tibbett acted with due diligence. As was the case with the reasonable payment argument, the contributory fault ground of appeal did not succeed.

 

Koubi v. Hascalovici, 2016 ONCA 867

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

Counsel:

M. A. Klaiman, for the appellants

J. J. VanWiechen, for the respondent

Keywords: Endorsement, Contracts, Guarantees, Corporations, Separate Legal Personality, Shareholders, Palpable and Overriding Error

Facts:

The appellants, Rom Koubi and 1355863 Ontario Inc. (the “Corporation”), appeal the trial judge’s dismissal of their action as against the respondent, Avi Hascalovici. In their action, the appellants claimed the respondent was liable personally for the sum of approximately $108,000, which represented one-half of the indebtedness of the Corporation at the time it ceased business.

When the Corporation needed operating funds, it entered into a loan agreement with Finance Tax and Insurance Co-ordinators (“FTIC”), a company controlled by Koubi’s in-laws. The two advances made by FTIC under the loan agreement constituted most of the Corporation’s indebtedness at the time it ceased operations. The FTIC loan was unsecured; neither Koubi nor Hascalovici provided a personal guarantee of the Corporation’s obligations under the loan.

When the Corporation ceased operations, Koubi sued Hascalovici for half of the Corporation’s liabilities on the basis that Hascalovici had agreed with Koubi that they each would be responsible personally for half of the Corporation’s debt. The trial judge dismissed the claim.

The appellants recognize their appeal involves questions of mixed fact and law and, as a result, the standard of review is that of a palpable and overriding error.

Issues:

  1. If two parties agree they will share equally in the profits of a business, is it “axiomatic that they should equally be responsible for the debt”?
  2. Did the trial judge commit palpable and overriding errors of fact by failing to consider or give effect to what the Appellants contend were admissions by Hascalovici that he personally would be responsible for half of the debt of the Corporation?

Held: Appeal dismissed.

Reasoning:

  1. The trial judge dealt with that argument and stated:

It is a “basic principle of corporate law… that shareholders, as such, have limited liability. In the absence of a personal guarantee given by a shareholder, a shareholder in his capacity as such is not liable for any act or liability of a corporation because the corporation is a separate legal entity.”

The Court of Appeal agreed that that is a correct statement of the law (Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 92(1)). To find that the shareholders of a corporation have departed from that basic principle, a claimant would have to establish the shareholders had agreed to assume personal liability for corporate debt.

  1. The trial judge made two key findings: (i) both Koubi and Hascalovici understood that by proceeding as shareholders in a corporation, they were limiting their personal liability (para. 61);  and (ii) the totality of the agreement between the shareholders was contained in the minutes of the February 5 and 24, 2010 meetings, which did not contain any suggestion “that either party thought that he was departing from the standard form of limited corporate liability and agreeing to be personally liable for all of the corporation’s debts and liabilities”:

 

Refaeli v. Salomon, 2016 ONCA 862

[Lauwers J.A.] 

Counsel:

F. Lento, for the responding party/moving party by way of the cross-motion

A. Salomon, acting in person

R. Eghan, appearing as amicus curiae

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time, Vesting Orders, Conflict of Laws, Enforcement of Foreign Judgments

Facts:

Mr. Salomon moved to extend the time within which he could appeal a vesting order granted by Diamond J. of the Superior Court of Justice. The case involved a dispute about the ownership of a property located in Thornhill, Ontario. In his endorsement, Diamond J. recognized an Israeli consent final judgment that obliged Mr. Salomon to transfer title to the property to Ms. Refaeli. Neither party took issue with the jurisdiction of the Israeli court over the inheritance dispute. Mr. Salomon did not appeal Diamond J.’s recognition order on a timely basis.

Instead, about a year later, Mr. Salomon began a new action in Israel to set aside the settlement agreement that was the basis of the Israeli consent judgment. While Mr. Salomon proffered various explanations for what was going on in respect of the litigation in Israel, he provided no evidence to substantiate those claims.

Mr. Salomon then filed a notice with the Court requesting an extension of the time to appeal the recognition order and asked for a stay of the order. Ms. Refaeli brought a responding motion seeking an order for security of costs of the appeal. Hourigan J.A. dealt with these motions. He granted Mr. Salomon’s request and ordered the appeal to be perfected by July 29, 2016. He refused Mr. Salomon’s request for a stay of the recognition order. Security for costs was ordered by Juriansz J.A..

Mr. Salomon did not perfect the appeal of the recognition order as ordered by Hourigan J.A. He also did not provide security for costs as ordered by Juriansz J.A. He did not pay outstanding cost awards. Mr. Salomon refused to transfer the property to Ms. Refaeli, relying on the effect of the Israeli stay. By endorsement, Diamond J. issued an order vesting the property in Ms. Refaeli.

 Issue: Should the Court further extend the perfection date of the appeal of the recognition order previously ordered and extend the time for Mr. Salomon to appeal the vesting order?

 Holding: Motion dismissed.

 Reasoning:

 The following factors, per Issasi v. Rosenzweig, 2011 ONCA 112 at para 4, must be considered by the court to exercise discretion to extend the time for perfecting an appeal:

  1. whether the applicant had a bona fide intention to appeal before the expiration of the appeal period;
  2. any explanation for the delay in filing;
  3. any prejudice to the responding party caused by the delay; and
  4. the justice of the case including the merits of the proposed appeal.

After considering the first three factors, the Court found against Mr. Salomon on the fourth factor: the justice of the case. Mr. Salomon had shown disregard for the Rules of Civil Procedure and orders of the Court. He acknowledged in his material that he was granted an extension to file an appeal of the recognition order, but did not explain why he failed to perfect the appeal on time, pay the security for costs order, or pay the outstanding costs awards. The Court inferred that Mr. Salomon thought he could avoid those obligations by simply moving to extend the time to appeal the vesting order. Therefore, the Court held that the justice of the case was in Ms. Refaeli’s favour.

 

2224981 Ontario Inc. v. Intact Insurance Company, 2016 ONCA 870

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

A. Grant, for appellant Zurich Insurance Company Ltd.

T. Donnelly, for respondents 2224981 Ontario Inc. and 2047193 Ontario Inc.

A. Leckey, for respondent Intact Insurance Company

Keywords: Endorsement, Contacts, Interpretation, Insurance, Fire Loss, Coverage, Business Interruption, Civil Procedure, Special Case, Rules of Civil Procedure, Rule 22

Facts:

The respondent 2224981 (“Eco-Lux”) conducted its manufacturing operations at premises leased from the respondent landlord, 2047193 (“the Owner”), pursuant to a month-to-month lease. A fire largely destroyed the premises on February 3, 2012 and Eco-Lux ceased production and stopped paying rent as a result. The premises were repaired as of November 1, 2012, some eight months later. By that time, Eco-Lux had gone out of business.

Eco-Lux’s insurer, the respondent, Intact Insurance Company (“Intact”) provided coverage to Eco-Lux for lost profits pursuant to the property and business interruption policy it underwrote. The coverage was based on an estimate of the gross profits Eco-Lux would have made, less expenses, including the rent that Eco-Lux would have had to pay to the Owner. Thus, an issue arose as to whether responsibility for the lost rent rested with Zurich, under the Owner’s policy; Intact, under Eco-Lux’s policy; or Eco-Lux in its own capacity. In order to resolve this issue the parties stated the following question in the court below pursuant to Rule 22:

Was Zurich entitled to deny coverage on the basis that there was no actual rental loss, since, in Zurich’s view, Eco-Lux was obligated to pay rent to the Owner following the fire loss on February 3, 2012 until October 31, 2012?

The motion judge found that the lease between Eco-Lux and the Owner was frustrated by the fire; that Eco-Lux’s obligation to pay rent ceased as a result; and that the Owner suffered business losses covered by the insurance policy. He declared that Zurich was required to pay the Owner’s losses.

Zurich argued that all of these findings are in error. First, it acknowledges that a commercial lease may be frustrated, but submits that this lease was not frustrated because the disruption caused by the fire was temporary rather than permanent. Second, Zurich submits that Eco-Lux remained obligated to pay rent under the lease because the lease did not include an abatement provision and Eco-Lux never terminated the lease. Third, Zurich submits that the Owner’s loss was not caused solely by the fire and is not covered by the policy as a result. Zurich says that the loss was caused by Eco-Lux’s failure to pay the rent due under the lease and the Owner’s failure to take steps to enforce payment.

Issues:

(i) Whether the loss of rental income resulted from the necessary interruption of the business (the unavoidable discontinuation of the business activities)?

(ii) Whether the necessary interruption was caused solely by the fire loss?

 Holding: Appeal dismissed.

Reasoning:

(i) Yes. There is no dispute that the leased premises were largely destroyed by the fire and that Eco-Lux ceased operations as a result.

(ii) Yes. It follows that the “necessary interruption” was caused solely by the fire. The motion judge’s finding that the “interruption of the use of the building by Eco-Lux was caused solely by a covered cause of loss, namely, the fire”, was open on the record that was before him.

 

Civil Endorsements:

Hoang v. Vicentini, 2016 ONCA 856

[Laskin, Hourigan and Brown JJ.A]

Counsel:

G.D.R. Adair and G.McGuire, for the appellants

K. Kamra, for the respondent Can Hoang

Keywords: Endorsement, Costs, Litigation Guardians

 

Rishi v. Kakoutis, 2016 ONCA 863

[Weiler, Rouleau and Roberts JJ.A.]

Counsel:

Louis Kakoutis, in person

W. Laski, for the respondents

E. Sherkin, for the defendants, John Young, Doreen K. Young, and Century 21 Harvest Realty Ltd., and the Third Parties

Keywords: Endorsement, Civil Procedure, Legal Disability, Mental Examination, Courts of Justice Act, ss. 105(2), Discretionary Orders, Deference

 

Chavdarova v. The Staffing Exchange Inc. (TSE Canada Inc.), 2016 ONCA 874

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

M. A. Polvere, for the appellant

L. Chavdarova, acting in person

Keywords: Endorsement, Franchise Law, Arthur Wishart Act (Franchise Disclosure), 2000, Rescission, Summary Judgment

 

Hall v. Jones DesLauriers Insurance Management Inc., 2016 ONCA 877

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

M. Sclisizzi, for the appellants

C. Cosgriffe and B. Watkins, for the respondent

Keywords: Endorsement, Wrongful Dismissal, Damages, Fresh Evidence

 

Criminal Decision:

R. v. Calamusa, 2016 ONCA 855

[Feldman, Gillese and Benotto JJ.A.]

Counsel:

C. Calamusa, acting in person

D. Stein, appearing as duty counsel

C. Chorney, for the respondent

Keywords: Criminal Law, Endorsement, Evidence, Bad Character, Juries, Corrective Instructions, Limiting Instructions

 

R. v. Bhangal, 2016 ONCA 857

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

Counsel:

J. Rosen and L. Daviau, for the appellant

S. Latimer, for the respondent

Keywords: Criminal Law, Endorsement, Dangerous Driving Causing Death, Criminal Negligence Causing Death, Sentencing

 

R. v. Kraljevic, 2016 ONCA 860

[MacPherson, Cronk and Watt JJ.A.]

Counsel:

F. Addario and A. Burgess, for the appellant

F. Au, for the respondent

Keywords: Criminal Law, Criminal Code, s. 34(1), Self Defence, Aggravated Assault, Assault with a Weapon, Mistake of Fact, Criminal Negligence, Reasonableness

 

R. v. Bienvenue, 2016 ONCA 865

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

Counsel:

H. L. Krongold, for the appellant

P/ Fraser, for the respondent

Keywords: Criminal Law, Endorsement, Weapons Trafficking, Criminal Code, ss. (84(1), 99, Kienapple Principle

 

R. v. Clause, 2016 ONCA 859

[Sharpe, Watt and Brown JJ.A.]

Counsel:

J.D. Frost, for the appellant

J.A. Neander, for the respondent

Keywords: Criminal Law, Mistrial, Admissibility, Prior Statements, Juries, Charge, Failure to Instruct Jury, Opening Address, Corrective Instruction

 

R. v. Dawson, 2016 ONCA 869

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

Counsel:

J.K. Lefurgey, for the appellant

K. Healey, for the respondent

Keywords: Criminal Law, Endorsement, Cocaine, Evidence, Credibility

 

R. v. Feteropoulos, 2016 ONCA 868

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

Counsel:

V. Rondinelli, for the appellant

J. A. Neander, for the respondent

Keywords: Criminal Law, Publication Ban, Endorsement, Unfair Trial

 

R. v. Henry, 2016 ONCA 873

[MacPherson, Blair and Watt JJ.A.]

Counsel:

A. M. Morphew, for the appellant

N. Devlin, for the respondent

Keywords: Criminal Law, Endorsement, Firearm Offences, Possession of Cocaine for the Purpose of Trafficking, Failure to Comply with Recognizance, Canadian Charter of Rights and Freedoms, s. 8, R. v. Edwards, [1996] 1 S.C.R. 128, Juries, Failure to Instruct Jury

 

R. v. Devitt, 2016 ONCA 871

[MacPherson, Blair and Watt JJ.A.]

Counsel:

R. J. McGowan, for the appellant

C. Chorney, for the respondent

Keywords: Criminal Law, Publication Ban, Counselling Murder, Sentencing, Aggravating Factors

 

R. v. Sanderson, 2016 ONCA 866

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

Counsel:

J. Zegers, for the appellant

D. Friesen, for the respondent

Keywords: Criminal Law, Publication Ban, Endorsement, Sexual Assault, Consent, Credibility, R. v. W.(D.), [1991] 1 S.C.R. 742, Sentencing

 

R. v. Schouten, 2016 ONCA 872

[Simmons, Pardu and Miller JJ.A]

Counsel:

M. Perlin, for the applicant/appellant

S. J. May, for the respondent

Keywords: Criminal Law, Summary Conviction, DUI, Criminal Code, s. 254(2), Evidence, Breath Sample Evidence, Exclusion, Reasonable and Probable Grounds, Canadian Charter of Rights and Freedoms, ss. 8 and 24

 

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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