COURT OF APPEAL SUMMARIES (DECEMBER 28 – DECEMBER 30, 2016)

Good Afternoon.

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

Topics covered this week included several family law decisions, police liability, the interpretation of municipal procurement bylaws, which is to be reviewed on a standard of correctness, and an unsuccessful attempt to enforce international arbitral awards obtained against a foreign state against the assets of a corporation wholly owned by that state.

Thank you for your interest in our blog. Wishing you all a very Happy New Year!

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):

Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973

Keywords: Endorsement, Torts, Police Liability, False Arrest, False Imprisonment, Negligent Investigation, Charter Breaches, Summary Judgment, Limitation Periods, Discoverability

Shair v. Shair, 2016 ONCA 982

Keywords: Endorsement, Family Law, Domestic Contracts, Setting Aside, Family Law Act, s. 56(4), Unconsionability, LeVan v. LeVan, 2008 ONCA 388, Spousal Support

Belokon v. Krygyz Republic, 2016 ONCA 981

Keywords: Civil Procedure, International Arbitration, Enforcement of Arbitral Awards, Execution Act, s. 18, Corporations, Shareholders, Corporate Veil, Trusts, Express Trusts, Resulting Trusts, Certainty of Intention 

Salehi v Tawoosi, 2016 ONCA 986

Keywords: Family Law, Failure to Comply with Orders, Dickie v Dickie, [2007] 1 SCR 346, Fresh Evidence, Palmer v The Queen, [1980] 1 SCR 759, Net Family Property, Valuation Date, Unequal Division, Unconscionability,  Family Law Act, RSO 1990 c F.3, s 5(6), Evidence, Adverse Inferences

Jasinska v. Jasinski, 2016 ONCA 993

Keywords: Endorsement, Family Law, Matrimonial Home, Final Orders 

Weinmann Electric Ltd v Niagara (Regional Municipality), 2016 ONCA 990

Keywords: Municipal Law, Bylaws, Interpretation, Standard of Review, Issues of Law, Correctness, Government Procurement

Criminal and Review Board Decisions (click here for decisions)

Civil Decisions:


Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973

[Gillese, MacFarland and Pepall JJ.A.]

Counsel:

G. Colautti, for the appellants
W. Menninga and M. Seal, for Belleville Police Service Board
K. Dearlove, for Windsor Police Services Board
T. D. Galligan, for Lowe’s Companies Inc. and Lowe’s Companies Canada

Keywords: Endorsement, Torts, Police Liability, False Arrest, False Imprisonment, Negligent Investigation, Charter Breaches, Summary Judgment, Limitation Periods, Discoverability 

Facts:

The appellants were arrested for possession of stolen property following an investigation of fraud and theft at a retail store, Lowe’s, pursuant to arrest warrants. The plaintiffs brought claims against the Belleville police, Windsor police, and Lowes, for false arrest, false imprisonment, Charter breaches, and negligent investigation. The Belleville police brought a motion for summary judgment on the claims brought against them.

The motion judge granted summary judgment in favor of the Belleville police. He held that the police had reasonable and probable grounds to arrest the appellants. He also held that the claims for false arrest, false imprisonment, and the Charter breaches were statute barred for being brought more than two years after the arrest.

Issues:

(1) Did the motion judge err in finding that the police had reasonable and probable grounds of the knowledge element of the offence when they arrested the appellants?

(2) Did the motion judge err in concluding that the claims for the intentional torts of false arrest and false imprisonment were statute-barred

(3) Did the motion judge err in granting summary judgment in a case with multiple defendants, involving interlocking investigations and credibility findings?

(4) Should the appellants be granted leave to appeal the motion judge’s costs disposition?

Holding:

Appeal dismissed. Motion for leave to appeal costs dismissed.

Reasoning:

(1) The motion judge did not err in finding that the police had reasonable and probable grounds of the knowledge element of the offence when they arrested the appellants. The appellants’ argument suggested that the police were obliged to accept their innocent explanation. “That is simply not the law” as the Court recently held in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656. The police are not required to establish a prima facie case for conviction before making an arrest. The police also do not need to evaluate evidence to a legal standard or make legal judgments. This is the task of the prosecutors. The police fulfilled their duties in the circumstances.

(2) The motion judge did not err in concluding that the claims for the intentional torts of false arrest and false imprisonment were statute-barred. The appellants offered no authority for their submission that their causes of action did not arise, and the limitation period did not begin to run, until they had received full police disclosure. Not having commenced this action until after the two-year period from the time of arrest had expired, their claims in this respect were statute-barred.

(3) The motion judge did not err in granting summary judgment. The motion judge properly considered the law relating to summary judgment motions. The motion judge addressed the appellants’ arguments that the liability of the Belleville respondents was “inextricably bound up” with that of the other respondents – and he rejected that argument. In the absence of a palpable and overriding error, the motion judge’s decision is entitled to deference.

(4) The law is well-settled that the disposition of costs is a matter of discretion and, absent an error in principle or a decision that is clearly wrong, an appellate court will not intervene. There was no error in principle and the motion judge’s reasons are well-supported on the record before him. 


Shair v. Shair, 2016 ONCA 982

[Doherty, Brown and Huscroft JJ.A.]

Counsel:

O. Brusentsova, for the appellant
S.M. Fehrle, for the respondent

Keywords: Endorsement, Family Law, Domestic Contracts, Setting Aside, Family Law Act, s. 56(4), Unconsionability, LeVan v. LeVan, 2008 ONCA 388, Spousal Support

Facts:

The appellant wife emigrated from Romania to Canada to marry the respondent, who had been married and divorced twice before. The respondent insisted the parties enter into a marriage contract. Prior to signing the marriage contract, the appellant received independent legal advice. The terms of the contract were translated into her native Romanian. Her lawyer strongly advised her not to sign the marriage contract. The appellant ignored his advice and signed the contract dated September 27, 1996 (the “Marriage Contract”). In the contract, the parties agreed to a separate property arrangement and the appellant waived her right to spousal support, save during a short, post-separation period.

In 2014, the respondent applied for a divorce order. In her answer, the appellant sought an order setting aside the Marriage Contract in its entirety.

The trial judge upheld the validity of the Marriage Contract, save for the provision waiving the appellant’s right to spousal support, which she set aside. The trial judge ordered a further hearing to determine the issue of spousal support.

The appellant appealed the part of the trial judge’s order declaring the Marriage Contract valid. The respondent cross-appealed from the order setting aside the spousal support waiver in the Marriage Contract and sought leave to appeal from the costs ordered. 

Issues:

(1) Did the trial judge err in applying the test for a claim to set aside a domestic contract under s. 56(4) of the Family Law Act?

(2) Did the trial judge err in refusing to admit at trial a letter written by the respondent’s former counsel to the respondent during the negotiation of a separation agreement from his second wife?

(3) Did the trial judge err in failing to set aside the Marriage Contract as unconscionable

(4) Did the trial judge err in setting aside the provisions of the Marriage Contract in which the appellant waived any claim for spousal support?

(5) Should the cross-appeal of the trial judge’s award of costs be allowed?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

(1) No. The trial judge did not err in applying the test for a claim to set aside a domestic contract under s. 56(4) of the Family Law Act. The trial judge identified the correct test as articulated in LeVan v. LeVan, 2008 ONCA 388. The judge also made no palpable or overriding error in her findings of fact on the issue, and therefore the exercise of her discretion is entitled to deference in the circumstances.

(2) No. The trial judge did not err in refusing to admit at trial a letter written by the respondent’s former counsel to the respondent during the negotiation of a separation agreement from his second wife. The trial judge excluded the letter primarily on the ground it was subject to solicitor-client privilege between the respondent and his former lawyer, and the respondent had not waived privilege. The trial judge did not err in excluding the letter. In any event, the exclusion of the letter did not prejudice the appellant’s claim.

(3) The trial judge did not err in failing to set aside the Marriage Contract as unconscionable. The judge made no palpable or overriding error in her findings of fact on the issue, and therefore the exercise of her discretion is entitled to deference in the circumstances.

(4) The trial judge did not err in setting aside the provisions of the Marriage Contract in which the appellant waived any claim for spousal support. The appellant submitted that the trial judge erred by failing to recognize that a claim for spousal support would not assist her in any way given that the respondent has retired. This argument was entirely speculative. Further, there is no doubt that the trial judge will consider all relevant factors when considering the appellant’s claim for spousal support.

(5) Leave is granted for the cross-appeal, but the cross-appeal is dismissed. The trial judge gave thorough reasons for her costs order. There was no error in principle that would justify appellate interference in her award.


Belokon v. Krygyz Republic, 2016 ONCA 981

[Cronk, Juriansz and Roberts JJ.A.]

Counsel:

Heintzman and C. Snider, for the appellant, Valeri Belokon

Frankel and G. Pollack, for the appellant, Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anonim Sirketi

Wisner and S. Brown-Okruhlik, for the appellant, Entes Industrial Plants Construction & Erection Contracting Co. Inc.

Rubinoff, J. Dubois and J. Siwiec, for the respondent, The Krygyz Republic

Latella and C. Doria, for the respondent, Kyrgyzaltyn JSC

Keywords: Civil Procedure, International Arbitration, Enforcement of Arbitral Awards, Execution Act, s. 18, Corporations, Shareholders, Corporate Veil, Trusts, Express Trusts, Resulting Trusts, Certainty of Intention

Facts:

At issue was whether the Kyrgyz Republic (the “Republic”), a sovereign state, owned shares in Centerra Gold Inc. (a Canadian company) registered in the name of Kyrgyzaltyn JSC (a Kyrgyz corporation wholly owned by the Republic, “Kyrgyzaltyn”). The appellants obtained various foreign arbitral awards against the Republic that they hoped to enforce against the shares. To that end, they each brought an application for a declaration that the Republic owned the shares. Hearing the applications together, the application judge declined to grant the declarations. She concluded that the applicants had not demonstrated, either as a matter of contract or under trust principles, that the Republic owned the shares. She held that the Republic does not have any “equitable or other right, property, interest or equity of redemption” in the Centerra shares that is subject to seizure and sale pursuant to s. 18 of the Execution Act, R.S.O. 1990, c. E.24.

The appellants appealed on several grounds. First, they submitted that the 2009 Agreement on New Terms between the Republic, Kyrgyzaltyn, Cameco and Centerra and subsidiaries (the “ANT”), considered with the Republic’s conduct and statements, all demonstrate that the Republic is the owner of the shares. Second, and in the alternative, they submitted that Kyrgyzaltyn held the shares for the Republic on an express trust. Third, and in the further alternative, they submitted Kyrgyzaltyn helds the shares on a resulting trust for the Republic.

Issue:

(1) Did the application judge err in refusing to find that the ANT, either on its own or in combination with other evidence, established that the Republic owned the shares?

(2) Did the application judge err in deciding that Kyrgyzaltyn did not hold the shares on express trust for the Republic?

(3) Did the application judge err in finding that Kyrgyzaltyn and the Republic, its sole shareholder, are related parties such that the presumption of resulting trust does not apply?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The shares were registered in Kyrgyzaltyn’s name, and the appellants recognized that they cannot pierce the corporate veil. As the application judge noted, at para. 51, the applicants “do not argue that the Republic exerted such control over Kyrgyzaltyn that the separate legal personalities of Kyrgyzaltyn and the Republic should be ignored and the assets of Kyrgyzaltyn regarded as those of the Republic.”

The application judge’s decision to focus on the ANT was entirely reasonable. It was clear from her reasons that she appreciated the rest of the appellants’ circumstantial evidence focused on the putative delegatee rather than the delegator of rights under Article 222(3). It was apparent why the application judge focused her attention on the ANT: she regarded it as the only document capable of proving there had been a transfer.

The Court held that the cumulative weight of the additional evidence provided by the appellants without the ANT was “weak”. That evidence focused mainly on the actions of the Republic and not on any act of Kyrgyzaltyn to support an inference that Kyrgyzaltyn delegated some ownership interest in its registered shares to the Republic. It is also, as the application judge noted, capable of multiple interpretations. Her interpretation of it is entitled to deference on appeal.

(2) No. The appellants stated that the application judge erred in two respects in her express trust analysis. First, the application judge erred in insisting on explicit trust language to establish an express trust. The Court agreed that certainty of intention can be established by words or conduct other than explicit trust language, provided the words or conduct convey the requisite intention. However, the application judge did not hold that the absence of explicit trust language on its own determined the issue. Rather, at para. 59 of her reasons, she held that the language in the second recital of the ANT and in Resolution 254 were not sufficient to establish certainty of intention in light of all the evidence. It was entirely proper for her to consider the absence of explicit trust language because clear language indicating a contrary intention had been used elsewhere in the agreement.

Second, the appellants took issue with the application judge’s view of the evidence regarding certainty of intention. In effect, they reiterated their complaints regarding her interpretation of the ANT. The application judge’s findings regarding the meaning of the ANT inexorably precluded a finding of express trust. She found that the ANT unambiguously established that the parties understood Kyrgyzaltyn owned the shares beneficially in its own right. That finding is an insurmountable obstacle for the appellants in advancing an argument that there was certainty of intention by Kyrgyzaltyn to establish an express trust for the benefit of the Republic. The Court saw no basis to interfere with the applications judge’s conclusion on this issue.

(3) No. The application judge held that Kyrgyzaltyn and the Republic, its sole shareholder, are related parties such that the presumption of resulting trust did not apply. The presumption of resulting trust flows from the principle that equity presumes bargains and not gifts. In the Court’s view, outside of the very specific context in which there is a presumption of advancement, the presumption of resulting trust should apply. However, the appellants provided no Canadian authority to the application judge or to the Court for the proposition that where a corporation acquires an asset paid for by its shareholder, the corporation is presumed to hold the asset in trust for the shareholder. The application judge held, at para. 60, that even if the presumption applied “it is rebutted by the language of Sections 2.1 and 2.2, which states that Kyrgyzaltyn is the beneficial owner of the Additional Shares, as well as the provisions of the RSA to the same effect”.

The application judge had before her clear evidence of the Republic’s intention at the time of provision of the consideration for the shares. It was open to her to hold, as she did, that the ANT established the Republic’s intention that Kyrgyzaltyn was to be the beneficial owner of the shares. Her holding is entitled to considerable deference on appeal.


Salehi v Tawoosi, 2016 ONCA 986

[Gillese, MacFarland and Pepall JJ.A.]

Counsel:

M. Kniznik, for the appellant

E. Mazinani, for the respondent

Keywords: Family Law, Failure to Comply with Orders, Dickie v Dickie, [2007] 1 SCR 346, Fresh Evidence, Palmer v The Queen, [1980] 1 SCR 759, Net Family Property, Valuation Date, Unequal Division, Unconscionability,  Family Law Act, RSO 1990 c F.3, s 5(6), Evidence, Adverse Inferences

Facts:

The parties were married on December 10, 2001 in Iran, separated on June 5, 2013, and were divorced in 2015. Prior to the marriage, the families of the parties met in Iran and negotiated a marriage contract, whereby, among other things, the family of the respondent husband was to convey 500 square metres of rural land in Iran (the “Mobarakeh lands”) to the appellant.

The appellant sought to have the Court of Appeal re-determine matters that related to equalization of the parties’ respective net family properties under the Family Law Act, RSO 1990, c F.3. A key issue was whether the trial judge erred in the value that he attributed to the appellant’s interest in the Mobarakeh lands.

Before the oral hearing of the appeal on December 6, 2016, the appellant brought two motions. First, the appellant asked the court to preclude the respondent from making responding submissions on the appeal because of a failure to pay costs of $6,500, owing as a result of orders of the Court of Appeal made in November (the “Costs Orders”). Second, the appellant asked that she be permitted to adduce fresh evidence on appeal which she argued, among other things, showed that she does not own the Mobarakeh lands. The respondent filed his own motion to adduce fresh evidence, calling into question the reliability of the appellant’s fresh evidence relating to the Mobarakeh lands.

After hearing oral argument on the three motions, the Court dismissed them all and indicated that reasons would follow. The court outlined its reasons in this decision, and then considered the issues raised on the substantive appeal.

Issue:

(1) Whether the motion to preclude responding submissions should be granted.

(2) Whether the motions to adduce fresh evidence should be granted.

(3) Whether the trial judge erred in determining the respondent’s net family property because the trial judge used an incorrect valuation date value for the mortgage attributed to 4501-25 Telegraph Mews and an incorrect value for the respondent’s bank account on valuation date.

(4) Whether the trial judge erred in determining the appellant’s net family property, particularly the value attributed to the Mobarakeh lands.

(5) Whether the trial judge erred in failing to order or analyze an unequal division of net family property in favour of the appellant in accordance with s 5(6) of the FLA.

Holding:

Motions dismissed. Appeal dismissed.

Reasoning:

(1) No. The Cost Orders did not establish a deadline for payment. Therefore, the respondent had 30 days to pay. The appellant filed the motion before the deadline for payment of the Costs Orders had passed. The respondent was not in breach of those orders, and there was no basis for the motion to have been brought. Further, even if there had been a breach of the Costs Orders, the Court of Appeal held that the motion ought not to have been brought for three reasons.

First, with respect of the timing of the motion, absent compelling evidence of wilful disregard of court orders, it is seldom helpful to bring such a motion shortly before the oral hearing of the appeal. This type of motion deflects the parties’ attention from the real matters in issue on the appeal, tends to unduly inflame emotions at a time when they are already running high, and unnecessarily drives up the costs of litigation.

The Court made it clear that if a party brings such a motion to the Court within three weeks of the hearing of the appeal, the judge hearing the motion in chambers must be told of the date on which the appeal is to be heard. Parties should expect that in such a situation, the motion may be adjourned to the panel hearing the appeal.

Second, the alleged misconduct in this case did not come close to the level that would justify precluding the hearing of responding submissions. The appellant relied on the dissenting judgment of Laskin JA in Dickie v Dickie (2006), 78 OR (3d) 1 (CA) at para 87, affirmed by the Supreme Court of Canada [2007] 1 SCR 346, 2007 SCC 8. Dickie established that the court has a discretion to refuse to hear a litigant who has wilfully breached a court order, until the litigant has cured the breach. Absent evidence of a wilful and ongoing disregard for the court’s process, such a motion must fail. In this case, there was no breach at the time the motion was brought. Further, even if there had been, it would not have been “ongoing”. The conduct did not reach the level of wilful and ongoing disregard for the court’s process such that the court would refuse to hear responding submissions.

Third, with respect to proportionality, the motion related to an alleged failure to pay the Costs Orders, which totalled $6,500. Given the costs associated with the bringing of the motion and the overall sums involved on appeal, proportionality considerations suggest that the motion was not warranted.

(2) No. The Court underlined that the reasons for the disposition of the motion do not apply to fresh evidence motions brought in family law appeals in which there are issues involving children. In order for the court to discharge its obligation to consider the best interests of the children, the rules governing the admission of fresh evidence in such appeals are relaxed.

The Court noted that it is with “troubling regularity” that parties to family law appeals dealing with equalization payments bring motions to adduce purportedly “fresh” evidence on appeal. Such a practice is to be discouraged. Palmer v The Queen, [1980] 1 SCR 759 established the criteria that define a “proper case” for fresh evidence. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. The evidence must be credible in the sense that it is reasonably capable of belief, and it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Therefore, “fresh” evidence will generally not be admitted in civil appeals if, by due diligence, it could have been adduced at trial. Through the appellant’s fresh evidence motion, she essentially asked the Court of Appeal, equipped with documentation that appears to have been obtainable before trial, to reweigh conflicting evidence that was before the trial judge. That runs contrary to the notion that fresh evidence should not be admitted on appeal if, among other things, by due diligence it could have been adduced at trial.

As the court did not admit the appellant’s fresh evidence, there was no need to consider the respondent’s fresh evidence motion.

(3) No. the trial judge carefully and thoroughly reviewed the parties’ financial records and evidence.

With respect to the bank account, the trial judge found that no bank accounts were proven at trial except for a savings account that was included on consent. The Court of Appeal was not pointed to a palpable and overriding error in this finding of fact. There was no basis to interfere with the trial judge’s finding with respect to the respondent’s bank account on the valuation date. With respect to the value of the mortgage, the trial judge noted that the respondent’s evidence of the value of the condominium and the outstanding mortgage was not contested. As the appellant did not contest the value of the mortgage at trial, the Court of Appeal saw no basis to interfere with the trial judge’s use of those figures for the purposes of calculating the respondent’s net family property.

(4) No. The appellant argued that the trial judge erred in attributing a value of $200,000 to the Mobarakeh lands. She argued that the value was speculative and could not stand. The appellant further argued that the trial judge erred when he said that the only evidence he had was the appellant’s evidence in which she rejected the suggestion that the lands were worth $250,000. The appellant argued that this was a palpable and overriding error, as she had testified at trial that in her opinion the lands were worth less.

The Court of Appeal disagreed. The trial judge explained that the lands in question had appreciated since the time of marriage. In an affidavit filed earlier in the proceedings, the appellant rejected the respondent’s contention that the lands were worth $250,000. The trial judge did not accept the evidence of the respondent’s expert who had valued the lands at $216,000. The trial judge noted that the appellant must have recognized that a valuation was required for the lands, yet she did not provide one. There was little basis on which to determine the value of the lands. The trial judge concluded that it seemed that the appellant’s response to the $250,000 figure was not random, and that he could infer from her failure to value the land that presenting a valuation would not have been favourable to her position. In the trial judge’s view, it was fair and just to assess the value attributable to her interest in the Mobarakeh land at 80% of the $250,000 amount, or $200,000 as at the valuation date. After rejecting the value placed on the Mobarakeh lands by the respondent’s experts, the trial judge found that the “only” evidence he had in respect of the value of the lands was the appellant’s evidence in which she rejected a value of $250,000. The Court of Appeal rejected the appellant’s contention that the trial judge was speculating when he attributed a value of $200,000 to the appellant’s interest in the Mobarakeh lands as at the valuation date. The trial judge was entitled to draw the inference that he did for the reasons that he gave.

(5) No. The appellant submitted that the trial judge erred in failing to address the issue of unconscionability under s 5(6) of the FLA. She argued that she raised the matter in her pleadings and, therefore, it was open to the Court of Appeal to address it. The appellant’s arguments were heavily dependent on the fresh evidence which she sought to adduce and which the Court of Appeal refused to admit. The respondent argued that neither party raised this issue before the trial judge, and contended that it would be unfair to permit the appellant to raise the issue now because the respondent did not have a fair chance at trial to test the evidence on which it rests or to lead his own evidence on the issue.

The Court of Appeal agreed with the respondent’s submissions that the appellant should not benefit from having failed to raise and pursue the matter at trial. The trial judge had expressly stated that neither party had raised a question of unconscionability under s 5(6). While the appellant’s pleading did mention s 5(6), the appellant did not identify it as an issue for resolution at trial. Neither party addressed the matter in their handling of the evidence at trial nor did they make submissions on it to the trial judge.


Jasinska v. Jasinski, 2016 ONCA 993

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

M.Z. Tufman, for the appellant
A. Kania, for the respondent

Keywords: Endorsement, Family Law, Matrimonial Home, Final Orders

Facts:

The appellant had failed to file an answer or a financial statement. The history of the case shows a persistent, indeed, deliberate failure on the part of the appellant to respond to these proceedings.

The appellant appeals an order dismissing his motion to set aside a default order that the matrimonial home be sold and that $400,000 be paid to the respondent by way of equalization.

Issue:

Did the judge misunderstand and mischaracterize the default order as a final order?

Holding:

Appeal dismissed.

Reasoning:

No. The judge did not misunderstand and mischaracterize the default order as a final order. All parties appearing at the set aside motion treated the order as a final order as did the motion judge. The materials filed by the respondent in support of her motion for an order for equalization indicate that the request she made was in substance for a final determination of her equalization entitlement. The ticking of the “temporary” box at the top of the order was inconsistent with the substance of the order. Further, the order did not use the more conventional words “advance on equalization” used to indicate that the order was intended to be interim in nature.


Weinmann Electric Ltd v Niagara (Regional Municipality), 2016 ONCA 990

[Doherty, Brown and Huscroft JJ.A.]

Counsel:

Levangie, for the plaintiff (appellant)

DeMelo and A. DeGasperis, for the defendant (respondent)

Keywords: Municipal Law, Bylaws, Interpretation, Standard of Review, Issues of Law, Correctness, Government Procurement

Facts:

The appellant electrical contractor appealed from the decision of the trial judge dismissing its action against the respondent regional municipality alleging a failure to follow its bylaws governing contracting for the provision of goods and services. The consequence of the failure, according to the appellant, was that it was denied the opportunity to provide electrical work to the region for over 10 years.

The procedure governing contracting is set out in four consecutive bylaws. The bylaws established different and more onerous requirements that must be met as the value of the goods and services being purchased increased. Department staff were authorized to issue a simple purchase order for procurements of less than $10,000, whereas purchases above that amount required the use of more formal quotation processes.

The region maintained a list of pre-qualified contractors, who provided a fixed price for particular services for a two-year period. The list was open to all interested contractors. The appellant was on the list for much, but not all, of the relevant period.

From 2006 onwards, the bylaws prohibited “contract splitting”. At trial, the appellant argued that the region breached its bylaws by contracting with a competitor, without following the competitive purchasing processes set out in the bylaws, and by a pervasive practice of contract-splitting. The appellant alleged that a competitor, Regional Trenching, wrongly obtained approximately $11 million in contracts from the region over a 10-year period.

On appeal, the appellant argued that the trial judge erred in law in interpreting the bylaws and that the trial judge made palpable and overriding errors of fact in concluding that the region’s conduct did not violate the bylaws.

Issue:

(1) Whether the trial judge erred in law in his interpretation of the bylaws.

(2) Whether the trial judge made palpable and overriding errors of fact in concluding that the region’s conduct did not violate the bylaws.

Holding:

Appeal dismissed.

Reasoning:

(1) No. The trial judge’s interpretation of the bylaws is a question of law, subject to review for correctness. The trial judge made no errors in interpreting the bylaws. Although the bylaws prohibit contract-splitting, they do not specify the scope of work that a contract must cover. On a reading of the plain language of the bylaws, the region is free to determine the scope of the work encompassed by any contract it enters into. The trial judge concluded that the bylaws do not restrict the amount of work that may be procured from a single supplier and do not prevent the region from using a task-oriented approach in completing projects rather than a contract-based approach. The trial judge concluded, further, that the prohibition on contract-splitting applied only to contracts, not to tasks. There was no error in the trial judge’s interpretation.

(2) No. The trial judge carefully reviewed the evidence in a detailed and considered decision that addressed all 40 issues raised by the appellant. The trial judge’s findings were supported on the record.

The Court noted that even assuming that the appellant could succeed in establishing a violation of the bylaws, the appellant failed to establish any damages.


Criminal and Review Board Decisions:

R v. Ward, 2016 ONCA 984

[Juriansz, Watt and Roberts JJ.A.]

Counsel:

T. Breen, for the appellant

P. Leibovich, for the respondent

Keywords:  Endorsement, Criminal Law, Second Degree Murder, Manslaughter, Accident, Evidence, Subsequent Conduct

United States v. Viscomi, 2016 ONCA 980

[Gillese J.A. (In Chambers)]

Counsel:

J. Greenspan and B. Greenshields, for the applicant

N. Dennison and M. Rahman, for the respondent

Keywords: Criminal Law, Child Pornography, Extradition, Bail Pending Appeal, Extradition Act, S.C. 1999, c. 18, s. 20

R v. Boothe, 2016 ONCA 987

[LaForme, Rouleau and Brown JJ.A.]

Counsel:

G. Boothe, appearing in person, via videoconference

D. Doucette and J. Belton, duty counsel for the appellant, Garfield Boothe

N. Rowe-Boothe, appearing in person

M. Halfyard and B. Vandebeek, duty counsel for the appellant, Nichelle Rowe-Boothe

M. Bernstein, for the respondent

Keywords: Endorsement, Criminal Law, Abuse, Neglect, Assault, Severance

R v. Donnelly, 2016 ONCA 988

[Watt, Epstein and Tulloch JJ.A.]

Counsel:

J. McInnes and K. Beaudoin, for the appellant

D. Humphrey and J. Makepeace, for the respondent

F. Addario and M. Savard, for the intervener Criminal Lawyers’ Association

C. Mainville and B. Snow, for the intervener Canadian Civil Liberties Association

Keywords: Criminal Law, Child Pornography, Publication, Arbitrary Detention or Imprisonment, Charter, s, 24(1), s. 9

R v. Gowdy, 2016 ONCA 989

[Watt, Epstein and Tulloch JJ.A.]

Counsel:

J. McInnes and K. Beaudoin, for the appellant/respondent Crown

R. Silverstein and A. Cooper, for the respondent/appellant Kris Gowdy

F. Addario and M. Savard, for the intervener Criminal Lawyers’ Association

C. Mainville and B. Snow, for the intervener Canadian Civil Liberties Association

J. Di Luca and K. Janmohamed, for the interveners CanadianHIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario

Keywords: Criminal Law, Child Luring by Telecommunication, Attempted Aggravated Sexual Assault, Charter, s. 7, Sentencing

R. v. Hylton, 2016 ONCA 991

[Juriansz, Watt and Roberts JJ.A.]

Counsel:

W. Cunningham, for the appellant

K. Rawluk, for the respondent

Keywords: Endorsement, Criminal Law, Robbery, Aggravated Assault, Unlawful Confinement

R v. Pammett, 2016 ONCA 979

[Feldman, MacPherson and Hourigan JJ.A.]

Counsel:

Peter R. Hamm, for the appellant/respondent

J. Streeter, for the respondent/appellant

Keywords: Endorsement, Criminal Law, Possession, Trafficking

R. v. Tweedle, 2016 ONCA 983

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

Counsel:

J. Trehearne and K. Lederri, for the appellant

M. Fawcett, for the respondent

Keywords: Endorsement, Criminal Law, Child Pornography

Girard (Re), 2016 ONCA 985 

[Juriansz, Watt and Roberts JJ.A.]

Counsel:

R. Girard, in person

H. Krongold,amicus curiae

K. Rawluk, for the Attorney General of Ontario

J. Blackburn, for the Person in Charge of North Bay Regional Health Centre

Keywords: Ontario Review Board, Threat to Public Safety

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

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