COURT OF APPEAL SUMMARIES (FEBRUARY 27-MARCH 3, 2017)

Good afternoon,

Below are the summaries for this past week’s civil decisions. There was a distinctly family law theme this week.

In a 100-page decision in Moore v Sweet, the Court of Appeal set aside a motion judge’s decision granting the proceeds of an insurance policy to an ex-wife who had been paying the policy premiums, and granted the proceeds to the deceased’s common law wife, whom the deceased had designated as irrevocable beneficiary. This result followed even though the deceased had agreed to maintain the ex-wife as beneficiary in exchange for her agreement to pay the premiums, and the change in beneficiary designation to the common law wife was a breach of that agreement. The focus of the discussion in decision is whether a constructive trust can be imposed only on two bases: unjust enrichment and wrongful acts, or whether there are other grounds to award a constructive trust (where it would be in “good conscience” and other grounds). Justice Lauwers dissented. I suspect we may not have heard the last of this case.

In PP v DD, the father of a child sued the mother for fraudulent misrepresentation, “involuntary parenthood” and sexual battery, alleging that if she had not told him she was taking birth control pills, he would not have consented to sexual relations with her and therefore would not have become a father. Tthe Court of Appeal affirmed the decision of the motion judge to strike the statement of claim, without leave to amend, as disclosing no reasonable cause of action.

In Reiter v. Hollub, the court discussed Kerr v Baranow, the constructive trust remedy, and the concept of a “joint family venture” in upholding the lower court decision denying the applicant’s claim to a constructive trust.

There was also an important decision on the law of costs in 1318847 Ontario Limited v. Laval Tool & Mould Ltd. in which the court clarified the tests to be considered in granting costs against non-parties.

In addition to several other family law decisions, other topics covered included several procedural decisions – jurisdiction in the labour law context, reasonable apprehension of bias, sufficiency of reasons, setting aside orders, extensions of time to appeal and stays pending appeal.

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) 

Bajouco v Green, 2017 ONCA 155

Keywords: Endorsement, Civil Procedure, Stay Pending Appeal, Small Claims Court, Rules of Civil Procedure, Rule 63.02

Barber v The Manufacturers Life Insurance Company (Manulife Financial)2017 ONCA 164

Keywords: Labour Law, Jurisdiction, Collective Agreements, Arbitration, Summary Judgment

Hebditch v Birnie, 2017 ONCA 169

Keywords: Endorsement, Civil Procedure, Orders, Setting Aside, Rules of Civil Procedure, R. 59

Keresturi v Keresturi, 2017 ONCA 162

Keywords: Endorsement, Family Law, Net Family Property Equalization, Expert Evidence, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Costs, Family Law Rules, Rule 24

Sennek v Carleton Condominium Corporation No 116, 2017 ONCA 154

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time, Jurisdiction, Interlocutory Orders

Voisin v Voisin, 2017 ONCA 165

Keywords: Endorsement, Family Law, Custody, Access, Orders, Variation, Material Change in Circumstances, Best Interests of the Child

Abernethy v Canada (Attorney General), 2017 ONCA 167

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time

Chen v Canadian Imperial Bank of Commerce, 2017 ONCA 166

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time

Coad v Coad, 2017 ONCA 173

Keywords: Endorsement, Family Law, Net Family Property, Unequal Division, Child Support, Spousal Support, Reasonable Apprehension of Bias

Morguard Residential v Mandel, 2017 ONCA 177

Keywords: Landlord and Tenant, Residential Tenancies, Eviction Orders, Civil Procedure, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Residential Tenancies Act, Clean Hands Doctrine, Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.), Bad Faith

Moore v Sweet, 2017 ONCA 182

Keywords: Estates Law, Family Law, Contracts, Insurance Law, Life Insurance, Irrevocable Beneficiaries,  Insurance Act, s. 200(1)(b), Unjust Enrichment, Equitable Assignment, Good Conscience Trust, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217

PP v DD, 2017 ONCA 180

Keywords: Torts, Fraudulent Misrepresentation, Bruno Appliance and Furniture, Inc. v. Hryniak, Involuntary Parenthood, Paxton v. Ramji, Sexual Battery, R. v. Hutchinson, Non-Marine Underwriters, Lloyd’s London v. Scalera, Family Law, Child Support, , D.B.S v. S.R.G

Nicholson v Gemnay, 2017 ONCA 187

Keywords: Endorsement, Natural Justice, Procedural Fairness, Sufficiency of Reasons

1318847 Ontario Limited v Laval Tool & Mould Ltd, 2017 ONCA 184

Keywords: Civil Procedure, Costs Against Non-parties, Inherent Jurisdiction, Abuse of Process, Statutory Jurisdiction, Courts of Justice Act, s. 131

Reiter v Hollub, 2017 ONCA 186

Keywords: Family Law, Cohabitation, Constructive Trusts, Unjust Enrichment, Joint Family Ventures, Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269

For Civil Endorsements, click here 

For Criminal Decisionsclick here

 

Civil Decisions:

Bajouco v Green, 2017 ONCA 155

[Pardu J.A (In Chambers)]

Counsel:

F. Bajouco, acting in person
R. Huang, appearing as duty counsel
G. Pakozdi, for the respondent

Keywords: Endorsement, Civil Procedure, Stay Pending Appeal, Small Claims Court, Rules of Civil Procedure, Rule 63.02

Facts:

Ms. Cindy Green sued Ms. Florips Bajouco, her neighbour, alleging that Ms. Bajouco’s failure to keep the downspout connected on her half of the semi-detached house caused flooding in Ms. Green’s home on four occasions between 2011 and 2013. Ms. Bajouco denied that her downspout had ever been disconnected. She suggested that the flooding might have been caused by sewer backup, water flow from the street or Ms. Green’s own downspout. Both parties were represented by counsel at the trial. The Small Claims Court judge found in favour of Ms. Green, concluding that Ms. Bajouco’s downspout had been disconnected and that this had caused the flooding.

Ms. Bajouco appealed to the Divisional Court. The Divisional Court dismissed her appeal.

Ms. Bajouco brought a motion for leave to appeal to the Court of Appeal. The Court of Appeal dismissed the motion for leave.

Ms. Bajouco filed a motion pursuant to rule 59.06(2) of the Rules of Civil Procedure to ask the Court of Appeal panel that refused her motion for leave to appeal to reconsider that decision. Ms. Bajouco claims that the Court of Appeal should reconsider its decision because she has discovered fresh and crucial evidence relating to the flooding in the respondent’s basement. Pending the Court of Appeal’s decision on her motion to reconsider its decision, Ms. Bajouco brought a motion to stay the Small Claims Court judgment and related cost awards against her.

Issue:

Should a stay of proceedings be granted pursuant to rule 63.02 of the Rules of Civil Procedure?

Holding:

Motion dismissed.

Reasoning:

No. A stay of proceedings should not be granted. Rule 63.02 provides that a final order may be stayed on terms as are just “by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken.” Assuming, without deciding, that there is authority under r. 63.02 to stay enforcement of the Small Claims Court judgment and the related costs awards pending a decision on a motion asking the panel to reconsider its refusal to grant leave to appeal, Ms. Bajouco has not provided evidence to satisfy the test for a stay set out in RJR–Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. As indicated in Meridian Credit Union Limited v. Baig, 2016 ONCA 942, a party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle, and a court will re-open an appeal sparingly and only where it is clearly in the interests of justice. Through this motion, Ms. Bajouco is seeking to re-litigate the same factual issues that were before the trial judge, on essentially the same evidence that was before the trial judge. In particular, most of the matters described by the moving party as amounting to fresh evidence were in fact dealt with at trial. Further, there is no evidence of impecuniosity on the record. Therefore, no stay of proceeding should be granted.

Barber v The Manufacturers Life Insurance Company (Manulife Financial)2017 ONCA 164

[LaForme, Pepall and Pardu JJ.A.]

D. Share and S. Share, for the appellant

G. Jermane, for the respondent

Keywords: Labour Law, Jurisdiction, Collective Agreements, Arbitration, Summary Judgment   

Facts:

Barber became disabled from employment as a Port Hope police constable in July 2009. She applied for long term disability (“LTD”) benefits under a group policy of insurance with Manulife. Manulife paid the benefits until January 2013, then terminated the benefits. The collective agreement between the Port Hope Services Board and the Port Hope Police Association required the Board to offer disability insurance coverage to the Association’s members. Barber brought an action against Manulife asserting that Manulife ought to have continued paying LTD benefits.

Manulife brought a successful summary judgment motion to have Barber’s claim dismissed because the Superior Court lacked jurisdiction over the subject matter. The motion judge found that Barber’s matter was “arbitrable” under the collective agreement.

Issues:

Did the motion judge err in holding that the Superior Court does not have jurisdiction over Barber’s matter?

Holding:

Appeal Dismissed.

Reasoning:

No. The fact that LTD benefits were paid under the policy does not change the fact that Barber’s benefits were provided by the collective agreement. The collective agreement was “the root of the contractual entitlement” to the relevant disability insurance, therefore jurisdiction over the dispute belonged to an arbitrator.

Hebditch v Birnie, 2017 ONCA 169

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

J. J. Adair, for the appellant

G. J. Marcuccio, for the respondent Michael Birnie

A. E. Steinman, for the Estate of Jeanne Birnie

Keywords:

Endorsement, Civil Procedure, Orders, Setting Aside, Rules of Civil Procedure, R. 59

 Facts:

The appellant was the personal caregiver for Jeanne Birnie, now deceased. As a result of an accident on March 16, 2007, the appellant slipped and fell at the former residence of the deceased. On July 26, 2007, the appellant issued a statement of claim claiming damages against Jeanne Birnie “as an incompetent person with Michael Birnie as her power of attorney”.

Michael Birnie is Jeanne Birnie’s son and a senior lawyer in North Bay. He spoke with counsel for the appellant and said that his mother was not incompetent. The action was subsequently discontinued.

On February 25, 2008, the appellant issued a new statement of claim claiming damages from Jeanne Birnie, Michael Birnie, and another defendant. On July 10, 2008, Michael Birnie wrote to counsel for the appellant advising that he and Jeanne Birnie could assure counsel that they had absolutely no responsibility, nor did they take any active role, in the maintenance of the premises. In the event that the appellant did not agree to withdraw her action against him, he would be taking various steps including bringing a motion for summary judgment to dismiss the action as against him and would be obliged to seek costs.

On August 14, 2008, counsel for Jeanne Birnie wrote to the appellant advising that she was determining whether her client required a litigation guardian. On September 2, 2008, counsel for Michael Birnie’s insurers wrote to counsel for the appellant advising that their instructions were to seek an immediate dismissal of the action against Michael Birnie. By correspondence dated September 9, 2008, the statement of defence of Jeanne Birnie, a mentally incapable person, represented by her litigation guardian, appears to have been sent to opposing counsel. She denied the allegations of negligence and stated that the only duties and obligations required of her were those set forth in the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”). She denied any breach of those.

On September 10, 2008, counsel for the appellant wrote to counsel for Michael Birnie’s insurer stating that “[f]urther to our conversation of last week, and your letter of September [1]2 th, 2008, I confirm that I am prepared to dismiss the action against Mr. Birnie.” The consent to the dismissal was dated September 11, 2008. The consent order dismissing the action and any cross-claims by and against Michael Birnie was dated September 26, 2008 (the “Consent Order”). Jeanne Birnie died on December 8, 2009.

Pursuant to the March 24, 2011 consent of the appellant, an order dated April 13, 2011 was issued permitting the Estate of Jeanne Birnie to amend her statement of defence to plead that she was not an occupier under the OLA.

Approximately seven years after the September 26, 2008 Consent Order, the appellant moved under r. 59.06(2)(a) to set aside the Consent Order on the basis of facts discovered after the order was made (Jeanne Birnie’s incompetence at the date of loss) and asked, in the alternative, that the Estate of Jeanne Birnie be estopped from taking the position that she was incompetent at the time of the accident. The motion judge dismissed the motion. Among other things, he focused on whether “the new facts were available by the exercise of reasonable diligence at the time of the consent order” and determined that they were.

Issue:

(1) Did the motion judge misapprehend the record and err in not considering the deceased’s statement of defence in which the appellant alleges the deceased had admitted that she was an occupier under the OLA?

(2) Did the motion judge misdirect himself in his application of the test under r. 59 in failing to address the interests of justice?

Holding:

Appeal dismissed.

Reasoning:

(1) The court found there was no clear and unambiguous admission in the statement of defence of the deceased. Secondly, this admission argument was not made before the motion judge, nor was it advanced in the appellant’s factum. Finally, the court was not persuaded that consideration of such a factor would have made any difference to the outcome.

(2) The court held that whether the dicta in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.) is applied, as the parties and the motion judge did or, the test applicable to setting aside a consent order (for example Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295 and Monarch Construction Ltd. v. Buildevco Ltd., 1988 CarswellOnt 369 (C.A.), the same result ensues. The court found that as is evident from the chronology, there was no factual or legal basis reasonably available on which to set aside the Consent Order and the interests of justice do not suggest otherwise.

Keresturi v Keresturi, 2017 ONCA 162

[Strathy C.J.O., Laskin and Trotter JJ.A.]

Counsel:

G. Joseph and R. Kniznik, for the appellant
D. L. Ditchfield, for the respondent

Keywords: Endorsement, Family Law, Net Family Property Equalization, Expert Evidence, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Costs, Family Law Rules, Rule 24.

Facts: The parties, then in their late 60s and of relatively modest means, went to court to resolve the outstanding financial issues arising from their 40-year marriage. After protracted litigation and a ten-day trial, the judge found in favour of the husband on most issues. He ordered a $140,000 equalization payment to be paid by the wife, dismissed the wife’s claim for an unequal division of net family property and ordered costs of $109,248 to be paid by the wife.

Issues:

(1) Was the trial judge’s rejection of the evidence of the wife’s expert valuator, based on the expert’s alleged lack of independence, tainted by error because the trial judge failed to analyze whether the nature and extent of the expert’s connection to the litigation or parties rendered him unable to give fair and independent opinion evidence?

(2) Did the trial judge err in failing to award the wife an unequal share of net family property (“NFP”) under s. 5(6) of the Family Law Act (“FLA”), based on the husband’s intentional or reckless depletion of his net family property, largely as a result of his bankruptcy some 30 years earlier in the late 1980s?

(3) Was the trial judge’s award of costs of $109,248 to the respondent punitive, based on an error in principle, and plainly wrong?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The issue arose in connection with the valuation of nine pieces of farm equipment owned by the husband. The trial judge referred to White Burgess and admitted the evidence of the appellant’s expert. Having done so, he preferred the evidence of the respondent’s expert, who gave a thorough and reasoned explanation for his analysis of values. The trial judge’s reasons for giving little weight to the appellant’s expert included the expert’s assumption that the equipment was in good condition, his failure to personally inspect the equipment, and his use of insured values for some of the equipment. In the final analysis, the trial judge accepted the evidence of the respondent’s expert in its entirety and gave no weight to the evidence of the appellant’s expert. The weight to be given to the experts’ opinions was wholly within the province of the trial judge. While he might have valued the equipment based on some amalgam of their valuations, he was not required to do so and he was perfectly entitled to wholly prefer the evidence of one expert to the evidence of the other. He gave cogent reasons for doing so and we see no error in his decision.

(2) No. The trial judge addressed the appellant’s assertion that the respondent had recklessly depleted his NFP. He found that the respondent had not intentionally caused the farming losses that resulted in his bankruptcy. The appellant bore the onus of proof on this issue and she simply did not discharge the burden upon her to prove recklessness.

(3) No. The trial judge gave separate reasons on costs. He considered the relevant principles, including those set out in rule 24 of the Family Law Rules.

Sennek v Carleton Condominium Corporation No 116, 2017 ONCA 154

[Pardu J.A. (In Chambers)]

Counsel:

M. Sennek, acting in person

A. J. Klymyshyn and J. M. Butson, for the respondent

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time, Jurisdiction, Interlocutory Orders

Facts:

The moving party, Manorama Sennek, moves for an extension of time within which to perfect her appeal. Underlying her proposed appeal is an application disputing condominium fees and liens filed by the respondent.

The respondent on the motion submits that the order from which the moving party wishes to appeal is interlocutory, that this court does not have jurisdiction to hear the appeal and that, accordingly, the “justice of the case” does not require an extension to perfect the appeal.

Issue:

(1) Does the Court of Appeal have jurisdiction to hear the appeal?

(2) Should an extension of time to perfect an appeal be granted?

Holding:

Motion dismissed.

Reasoning:

(1) No. The characterization of an order as final or interlocutory is determined by the order’s legal nature, rather than the particular circumstances of the plaintiff or defendant who is affected by the order. Based on the authorities, the order is interlocutory and an appeal from it properly lies to the Divisional Court.

(2)  No. Given the enormous costs that have been incurred in this action, relative to the amounts in issue, the Court of Appeal concluded that it would not be proportionate or in the interests of either party for these proceedings to be prolonged or for further costs to be incurred when a decision quashing the appeal for want of jurisdiction seems inevitable.  This appeal should have been brought to the Divisional Court, and any necessary motion to extend the time to appeal should have been brought before that court. The court’s assessment of the “justice of the case” for the purpose of granting an extension in these circumstances must take into account the express inclusion in r. 1.04(1.1) of the Rules of Civil Procedure of the principle that “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”

Voisin v Voisin, 2017 ONCA 165

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

G. McLeod, for the appellant

J. Opolko, for the respondent

Keywords: Endorsement, Family Law, Custody, Access, Orders, Variation, Material Change in Circumstances, Best Interests of the Child

Facts:

Mr. Voisin appealed from an order varying previous orders regarding the custody of, and access to, his two children. He sought to make “minor” changes to the terms of an on order that reflected three contested recommendations of the Office of the Children’s Lawyer.

The report of the Office of the Children’s Lawyer noted that both parents originally claimed sole custody of the children and that there was long standing hostility between the parents. The report further noted that the mother had had final decision-making authority for more than four years pursuant to a previous order and that things were going well for the children, including their relationship with their father, which depended on a rather complex parenting schedule.

The requested changes submitted by Mr. Voisin to the motion judge and to the Court of Appeal were as follows:

i) The Mother shall not change the children’s school, doctors or dentist without the written consent of the father or an order of the court;

ii) The children shall reside in the care and control of the father from Monday morning before school (or 9:00 a.m.) until Thursday afternoon after school (or 4:00 p.m.); and

iii) The father and mother shall live within 30 km of each other and must remain resident in either the geographical jurisdiction of the City of Kitchener or the City of Waterloo.

The motion judge dismissed the father’s motion. He held that the father’s requested minor adjustment to the first recommendation contradicted an arrangement to which he had already agreed: sole custody with the mother. The father argued that the second recommendation at issue, his access during the school week, did not provide for decision-making for the children. The motion judge rejected this argument, noting again that the arrangement established by the prior order gave the mother final decision-making authority, even during the school week while the children were with the father.

Regarding the third recommendation of Office of the Children’s Lawyer, the motion judge noted the recommendation that the parties live within 30 km of each other and took judicial notice that the distance along a LRT under construction between the two cities was 19 km.

Issues:

Did the motion judge err regarding the requested “minor” changes to the prior custody and access order?

Holding:

Appeal dismissed.

Reasoning:

No. The motion judge had the benefit of a lengthy and very thorough report of the Office of the Children’s Lawyer. There was an ample basis for him to conclude that the children’s best interests were served by those recommendations. A previous final order provided that the mother had the right to make major decisions for the children without the father’s consent after consultation with the father, except for certain specified matters. The recommendation of the Office of the Children’s lawyer continued this arrangement and slightly altered the matters that could not be changed without the father’s consent.

Regarding the first requested change, the father asserted many times before the motion judge and the Court of Appeal that if there was no change in circumstances, no order should have been made to alter the original order. However, this was inconsistent with his own request for certain changes to the previous order. Under the previous order the mother had the right to change the children’s school, within the catchment area for her residence; his proposal would have further restricted the mother’s choices. The proposal that his consent or a court order be required before the mother could change the children’s dentist was a new restriction not present in the previous order.

Regarding the second requested change, there was no dispute about the time the father was to spend with the children. Rather, he wanted to change the characterization of that time as “care and control” of the children, despite his consent to sole custody in favour of the mother. The father acknowledged that he had consented to sole custody in favour of the mother, but argued on appeal that despite that consent, he should have decision making power about the children while they were at school. Given the highly conflicted relationship between the parties referred to by the motion judge and the Office of the Children’s Lawyer the motion judge did not err in refusing to create further opportunity for conflict. The father relied on cases dealing with determination of whether a child is with a parent for 40% of the time so as to relieve that parent from some child support obligations, but those cases do not address the children’s best interests in relation to decision making power while they are in school.

Abernethy v Canada (Attorney General), 2017 ONCA 167

[LaForme Pepall and Pardu JJ.A]

Counsel:

J. Abernethy, acting in person

A. Laldin, for the respondent

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time

Facts: Abernethy commenced $8.4 million claim against Ontario and Canada. In 2013, Canada brought a motion to strike parts of Abernethy’s Fresh as Amended Statement of Claim and the action was dismissed for failing to disclose a reasonable cause of action.  Abernethy filed an appeal but failed to perfect the appeal within the requisite time. She served notice of motion to extend the time to appeal. A chambers judge refused Abernethy’s requested relief.

Issues: Did the chambers judge err in refusing to grant the extension?

Holding: Appeal dismissed.

Reasoning: No. The chambers judge applied the correct test for granting the extension of time, and this decision is accorded considerable deference. No error was committed, this the court found no reason to interfere with the chamber judge’s exercise of discretion.

Chen v Canadian Imperial Bank of Commerce, 2017 ONCA 166

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

Sidney Chen, acting in person

Jeff C. Hopkins and Justin Tetreault, for the responding party

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time

Facts:

Mr. Chen brought an action against CIBC for wrongful dismissal. Amongst other defences, CIBC said the applicable limitations period had expired more than 3 years prior to the issuance of a notice of action. Mr. Chen then sought to discontinue his action by providing CIBC with a Notice of Discontinuance. He had issued an earlier Statement of Claim also seeking damages for wrongful dismissal but discontinued those proceedings.

After various procedural steps, CIBC stated it would consent to discontinuance only if discontinuance was with prejudice to Mr. Chen’s ability to bring a further action on the same subject-matter. Mr. Chen eventually consented to these terms at an appearance before a judge of the Superior Court of Justice on October 8, 2015. The hearing judge granted the consent order. Because Mr. Chen refused to approve the form of the consent order, on January 28, 2016, the parties returned before the hearing judge to settle the order. On this occasion Mr. Chen claimed he consented to the order because of mistake, mental health issues and misunderstanding. The hearing judge settled the order and advised Mr. Chen of his right to bring a motion to set the order aside.

Mr. Chen brought a motion to set aside the consent order discontinuing his action before another judge of the Superior Court of Justice. On Mr. Chen’s motion he argued that the previous consent hearing judge improperly gave him legal advice, which invalidated his consent to discontinuance. He also argued that the transcript of proceedings before the consent hearing judge was fabricated and alleged a conspiracy between that judge and others. Mr. Chen’s motion to set aside the consent order was denied by order dated April 28, 2016. It is this order Mr. Chen seeks to appeal.

Mr. Chen did not file a notice of appeal in connection with the April 28th order within the required time. As a consequence he brought a motion to the court for an extension of time to appeal. On September 9, 2016, his motion was heard by a single judge of this court sitting in chambers. Mr. Chen did not file any affidavit evidence on the motion.

The chambers judge refused to grant Mr. Chen’s motion for an extension of time to appeal the order and refused to set aside the earlier consent order. She addressed his allegations of improper legal advice, fabricated transcripts, and unfairness and bias and correctly observed there was an absence of any evidence. She relied on the certified transcript of the October 8, 2015 proceedings and Mr. Chen’s own actions to conclude there was no support for Mr. Chen’s assertions. Mr. Chen appealed this decision to a full panel.

Issue:

Did the chambers judge err in her decision?

Holding:

Appeal dismissed.

Reasoning:

No. The chambers judge addressed Mr. Chen’s allegations of improper legal advice, fabricated transcripts, and unfairness and bias and correctly observed there was an absence of any evidence. She relied on the certified transcript of the October 8, 2015 proceedings and Mr. Chen’s own actions to conclude there was no support for Mr. Chen’s assertions.

The chambers judge found that Mr. Chen formed an intention to appeal in the requisite time period and provided a reasonable explanation for the relatively short delay. However, she held that the justice of the case did not warrant an extension; the appeal, she concluded, “does not have any real chance of success”.

The court agreed with the chambers judge; the appeal, without any evidentiary basis, is meritless and there is no reason to grant an extension of time. Her exercise of discretion to refuse to extend the time to appeal is entitled to considerable deference. The circumstances in which a panel will reconsider the decision of a single judge of the court to deny an application for an extension of time are narrow: R. v. Gatfield, 2016 ONCA 23, 345 O.A.C. 197, at para. 11. This case does not fit within them.

Here, the chambers judge addressed all the relevant factors and properly applied those factors to the evidentiary record in connection with the issue of an extension of time. She was fair and accommodating in her consideration of the other allegations Mr. Chen raised without the benefit of evidence. The court saw no basis whatsoever to interfere with her discretionary decision to deny an extension of time to appeal. Indeed, as the chambers judge found, the justice of the case requires that no extension of time to appeal be granted.

Coad v Coad, 2017 ONCA 173

[Strathy C.J.O., Laskin and Trotter JJ.A.]

Counsel:
B. Gratl, for the appellant
J. M. Peluch and Y. Boghossian, for the respondent

Keywords: Endorsement, Family Law, Net Family Property, Unequal Division, Child Support, Spousal Support, Reasonable Apprehension of Bias

Facts:

When they separated in May of 2013, the parties had been together for about 18 years. They had two sons, who were 19 and 17 ½ years old at the time of trial, and who lived with the appellant. At the time of trial, the older son was in university. As the trial judge found, this son had essentially repudiated his relationship with his mother. The younger son, who has been diagnosed with Asperger’s Syndrome, and who was also estranged from his mother, was still in high school.

At the conclusion of the trial, the trial judge ordered: (1) an equal division of net family property; (2) that the wife (respondent) was not required to pay child support; and (3) that the husband (appellant) pay spousal support of $500 per month, based on an imputed income of $40,000.

The appellant appeals the three orders made by the trial judge.

Issues:

(1) Did the comments and interventions of the trial judge throughout the proceedings give rise to a reasonable apprehension of bias?

(2) Did the trial judge err in failing to hold that the two boys were children of the marriage and therefore in not ordering the wife to pay child support?

(3) Did the trial judge err in imputing income to the appellant and ordering spousal support on that basis?

(4) Did the trial judge err in failing to make an unequal division of net family property?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant is unable to meet the very high threshold to succeed on this ground. The trial judge’s many interventions were attempts to get the appellant (who was self-represented at the time) to focus on the financial issues that were in dispute, and prevent him from pursuing distracting and irrelevant side issues. The trial judge did make some comments that were perhaps better left unsaid or, if said, said in a different way. However, looking at the record as a whole, there was no reasonable apprehension of bias.

(2) No. The trial judge’s reasons for denying child support are well supported by the record. There was no error in principle or any misapprehension of the evidence in the trial judge’s conclusions that the respondent did not earn sufficient income to create a child support obligation in respect of the younger son. Moreover, there was insufficient evidence to establish that the older son was a child of the marriage.

(3) No. The trial judge’s award of spousal support was reasonable in the circumstances.

(4) No. There is no basis upon which to interfere with the trial judge’s decision not to order an unequal division of net family property. The record does not come close to demonstrating that an equal division would be unconscionable within the meaning of s. 5(6) of the Family Law Act.

Morguard Residential v Mandel, 2017 ONCA 177

[Gillese J.A. (In Chambers)]

Counsel:

A. Rouben and A. Fox, for the moving parties

R. G. Doumani and V. Simkic, for the responding party

Keywords: Landlord and Tenant, Residential Tenancies, Eviction Orders, Civil Procedure, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Residential Tenancies Act, Clean Hands Doctrine, Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.), Bad Faith

Facts:

This is a motion by David Mandel, Bruce Anelevitz, Joan Darling and Francis McGeachy (the “Moving Parties”). Morguard Residential is the responding party (the “Responding Party”).

This matter arises from the demolition and redevelopment of a rental property in which the Moving Parties were tenants.

The Moving Parties sought leave of the court to appeal an order of the Divisional Court, dated February 2, 2017 (the “Divisional Court Order”). The Moving Parties sought a stay of the Divisional Court Order, pending the disposition of their leave motion and, if leave is granted, pending the disposition of the appeal. Without the stay, the Responding Party is entitled to enforce the eviction orders made by the Landlord and Tenant Board (the “Board”) in respect of the Moving Parties.

The Responding Party issued eviction orders against the Moving Parties dated February 24, 2014. In response, the Moving Parties sought relief against eviction from the Board.

By order dated February 13, 2015 (the “Eviction Order”), the Board terminated the tenancies of each of the Moving Parties.

The Moving Parties had the Eviction Order reviewed under s. 83 of the Residential Tenancies Act, 2006. Orders dated January 4, 2016 (the “s. 83 Orders”) denied the Moving Parties relief from eviction.  The Moving Parties then had the Eviction Order and the s. 83 Orders reviewed and were denied relief. The Moving Parties next appealed to the Divisional Court, asking that court to set aside the various Board orders and dismiss the Responding Party’s application to terminate their respective tenancies. The Divisional Court Order dismissed the Moving Parties’ appeals.

The Moving Parties have brought a motion to the Court of Appeal on which they seek leave to appeal the Divisional Court Order. That motion is pending.

In the immediate motion, the Moving Parties seek a stay of the Divisional Court Order until their leave motion is decided and, if leave is granted, until the appeal is decided. The stay would have the effect of permitting them to remain in the apartments in which they currently reside.

Issue: Should a stay of the Divisional Court Order, pending the disposition of their leave motion be granted?

Holding: Stay motion dismissed.

Reasoning:

No.  When deciding whether to grant a stay, generally, the courts are to apply the same three-stage test as they do when deciding whether to order an interlocutory injunction: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. This test requires the court to:

  1. Make a preliminary assessment of the merits of the case to ensure that there is a serious question to be tried;
  2. Determine whether the moving party would suffer irreparable harm unless the stay were granted; and
  3. Determine which of the parties would suffer greater harm from the granting or refusal of the stay.

Because a stay is a discretionary remedy, the court may also consider the “clean hands” doctrine when deciding whether to order the stay: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.)

The Moving Parties have not met their burden under the three-stage test. Moreover, the Board finding of bad faith on the part of the Moving Parties militates against the exercise of the court’s discretion to stay the Divisional Court Order.

1. The Strength of the Putative Appeal

Based on a preliminary assessment of the merits of the putative appeal, it does not raise a serious question. As the brief procedural history set out above demonstrates, this issue has been fully and exhaustively considered – and decisively rejected – by both the Board and the Divisional Court. Their reasons are sound.

2. No Irreparable Harm

The Moving Parties have filed no evidence on what harm or prejudice they might suffer if the stay is not ordered.

3. Balance of Convenience

The Moving Parties have not demonstrated that they will suffer irreparable harm if the stay is not ordered.

Application of the “Clean Hands” doctrine

The Board found that the Moving Parties had acted in bad faith when, by refusing to vacate their residences in the Colonnade, they disregarded their obligations under the relocation plan to which each of them had agreed with the Responding Party. The Responding Party had voluntarily provided the Moving Parties with those temporary residences at a discounted rent in exchange for the Moving Parties agreeing to vacate the residences once the Responding Party’s redevelopment had finished. The Divisional Court did not disturb this finding.  The Board finding of bad faith on the part of the Moving Parties should be considered pursuant to the “clean hands” doctrine. This consideration also augurs against granting the stay.

Moore v Sweet, 2017 ONCA 182

[Strathy, Blair, Lauwers JJ.A.]

J. R. Opolsky, for the appellant

D. M. Smith, for the respondent

Keywords: Estates Law, Family Law, Contracts, Insurance Law, Life Insurance, Irrevocable Beneficiaries,  Insurance Act, s. 200(1)(b), Unjust Enrichment, Equitable Assignment, Good Conscience Trust, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217

Facts: This case concerned the proceeds of a life insurance policy of Lawrence Anthony Moore. The respondent, Moore, was married to the deceased for more than 20 years, and was the named beneficiary of the policy during the marriage. She was not designated as an irrevocable beneficiary. Following the deceased’s separation from Moore, he began a relationship with the appellant, Sweet. They lived together in Sweet’s apartment until his death thirteen years later.

Shortly after the deceased and Sweet began living together, and contrary to an oral agreement that the deceased had with Ms. Moore, who continued paying the premiums, the deceased revoked the designation of Moore as beneficiary and executed a change naming Sweet as the irrevocable beneficiary. This change was recorded with the insurer.

It was not disputed that there was an oral agreement between the Moores that Moore would continue to pay the premiums on the policy and would be entitled to proceeds on death, nor was it disputed that she paid the premiums and that she was not told of the change in beneficiary.

The application judge ruled in favour of Moore, and held that she could recover the proceeds on the basis of unjust enrichment.

Issues:

1.Did the application judge err in relying on the doctrine of equitable assignment, which was not pleaded or argued before him?

2. If he were entitled to rely on the doctrine, did he err in finding that the contract constituted an equitable assignment of the deceased’s interest in the policy proceeds?

3. Did the application judge err in failing to hold that there was a valid juristic reason for Sweet’s receipt of the Policy proceeds and therefore in holding that the proceeds were impressed with a trust in Moore’s favour based on unjust enrichment?

4. Was there some other “good conscience” basis for the creation of a remedial constructive trust in Moore’s favour?

Holding: Appeal allowed.

Reasoning:

1.Yes. The judge erred in relying on the doctrine of equitable assignment and applying it on his own initiative when it was not argued before him. Procedurally, it is not fair to make a decision on a principle that was neither put in play nor relied on by Moore and to which the parties had not joined issue. Lawsuits are to be decided within the boundaries of the pleadings and based on findings that are anchored in the pleadings, evidence and submissions of the parties. When the judge steps outside of the case as it was presented by the parties, the parties are deprived of the opportunity to address that issue in evidence. The findings are inherently unreliable because the evidentiary record does not support the finding of equitable assignment, as it was not argued by the parties.

2. Yes. The judge’s findings with respect to the record are unreliable because it was not created on the basis that the parties had joined issue on the ground of equitable assignment. An assignment involves the transfer of a proprietary right, including a right of action. Although there is no particular form required for an equitable assignment, it is essential that there be sufficiently clear evidence to establish the intention of the assignor to make such an assignment, that is, to establish that the assignor clearly intended the contractual right to become the property right of the assignee. The application judge did not direct his mind to the question of Mr. Moore’s intention, however. He seems to have leaped directly from the fact there was an oral agreement that if Ms. Moore continued the payments she would continue as a beneficiary, to the conclusion that Mr. Moore intended to make an absolute assignment of the property in the Policy or its proceeds. There is little, if any, other evidence to support such an intention.

3. Yes. Absent equitable assignment or other exceptional circumstance, the provisions of the Insurance Act, pursuant to which Sweet was designated irrevocable beneficiary, provide a valid juristic reason for her receipt of the insurance proceeds, therefore a finding of unjust enrichment is not available.

Provisions of the Insurance Act indicate that as an assignee of the Policy or of its proceeds, Ms. Moore would have had to give the insurer notice in writing of her assigned interest in order to obtain a priority of interest against another named beneficiary, much less as against an irrevocable beneficiary. She did not give any such notice. While there may be an argument that s. 200(1)(b) of the Insurance Act relates to the effectiveness of an assignment as against the insurer, and not as between competing beneficiaries, the Insurance Act does not say this is the case, and, there was no argument on this point either, since equitable assignment was not made an issue on the application.

4. No. There has been considerable debate in the jurisprudence and in academia about whether resort to the remedial constructive trust in Canada is now limited to two categories since the Supreme Court of Canada’s decision in Soulos v. Korkontzilas (“Soulos”) – unjust enrichment and wrongful acts – thereby eliminating resort to a more elastic “good conscience” trust, i.e., one based on no more than a sense of fairness to the effect that it would be “against all good conscience” to deny a plaintiff recovery in the circumstances of a particular case. At the end of the day, Ms. Moore submits that good conscience is satisfied by giving effect to the oral agreement without which the Policy would not have continued to exist.

The Court of Appeal did not see anything in the circumstances of this case that would place it in some other “good conscience” category not caught with the rubric of either wrongful act (not asserted here) or unjust enrichment. For that reason, the court did not see the need to resolve the foregoing debate about whether Soulos has restricted the categories for imposing a remedial constructive trust to unjust enrichment or wrongful act or whether there remains some additional “good conscience” basis.

Simply because wrongful act is not asserted, and unjust enrichment is unsuccessful, does not mean that some other “good conscience” basis must exist on the facts. To engage in such an exercise, on this record at least, would undermine the rationale for creation of the juristic reason element in the first place.

Lauwers J.A. (dissenting):

Issues:

1. What is the correct interpretation and application of the Supreme Court’s decision in Soulos?

2. Did the application judge err in finding the respondent had made out her claim in unjust enrichment?

3. Did the application judge err in finding that the deceased had made an equitable assignment of the insurance proceeds to the respondent?

Holding: Lauwers J.A. would have dismissed the appeal.

Reasoning:

1. Both parties proceeded on the basis that Soulos was the governing precedent and that unjust enrichment was the basis of any possible constructive trust claim in this case. But their positions on the proper interpretation and application of Soulos, could not be further apart. Lauwers J.A. rejected the appellant’s argument that Soulos limits the remedy to the two defined situations of unjust enrichment and wrongful acts, and otherwise abolished the doctrine of good conscience constructive trusts as a general source of equitable jurisdiction.

In Soulos, McLachlin J. worked through the history of constructive trusts in order to discern whether and how to recognize a remedial constructive trust for wrongful acts, which was the particular problem in the case before her. In Lauwers J.A.’s view, she did not purport to restate and reframe the law of constructive trusts for all purposes, and she said nothing to close the categories of constructive trusts. Had she intended to abolish good conscience constructive trusts beyond the categories of unjust enrichment and wrongful acts, then one would have expected clear and definitive language to that effect, but there is none. Instead, McLachlin J.’s choice of language justifies the conclusion that the court expected constructive trust law to continue to develop beyond the categories of unjust enrichment and wrongful acts.

In Lauwers J.A.’s view, the Supreme Court left open four routes by which a court could impose the “ancient and eclectic institution” of a constructive trust: (1) unjust enrichment; (2) wrongful acts or wrongful gain; (3) circumstances where its availability has long been recognized” (para. 21), such as “situations where constructive trusts have been recognized in the past” (para. 34) or “other situations where courts have found a constructive trust” (para 35); and (4) otherwise, where good conscience requires it.

Lauwers J.A. saw no other way to give meaning to the words of McLachlin J. in Soulos, at para. 21: “This Court’s assertion that a remedial constructive trust lies to prevent unjust enrichment in cases such as Pettkus should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized.”

As a starting point, Lauwers J.A. began with the first route to a constructive trust: to remedy unjust enrichment, as the case was argued on this basis. The second route, wrongful act or wrongful gain, is not engaged. It was emphasized, however, the ambiguous way the concept of “unjust enrichment” is sometimes used in the authorities to describe, on the one hand, restitution for unjust enrichment, that is, the idea of “giving back” what was taken, and, on the other hand, disgorgement, that is, the idea of “giving up” a gain that properly belongs to another. Lauwers J.A. enlisted both the third route to a constructive trust – circumstances where the availability of a trust has previously been recognized – and the fourth route – where good conscience otherwise demands it – to resolve the ambiguity.

2. No. The appellant disputes the deprivation finding on three grounds. First, the appellant submits the deprivation must be measured using a “straightforward economic approach”, drawing on the Supreme Court’s language in Pacific National Investments, at para. 20. The appellant submits that the respondent’s deprivation, in restitutionary terms, should be limited to the premiums she paid from 2000 until the deceased’s death, which is about $7,000. Lauwers J.A. rejected this submission.

The respondent’s contribution to maintaining the policy since separation was more than $7,000. From its inception in 1985, the respondent’s contribution was considerably greater, about $30,000 according to the evidence. It is not reasonable to discount her contribution on the basis that she had the benefit of the policy during her marriage. On either amount, this would not be a minimal deprivation unworthy of the court’s attention.

Second, the appellant argues that the remedy for the deprivation is not to give the insurance proceeds to the respondent, since that would wrongly reward her “expectation interest”, not her “restitutionary interest”, which is to be measured by the direct expenditures made. Third, the appellant makes the related argument that the respondent is not entitled to a proprietary remedy for the deceased’s breach of the oral agreement. Lauwers J.A. rejected both arguments. This is not a simple case of breach of contract.

It was emphasized in the dissenting decision that Lauwers J.A. was not taking the position that any breach of contract would or should lead to the imposition of a constructive trust. In his view the disappointed beneficiary cases must be treated differently than ordinary breach of contract cases.

The respondent and the deceased were salvaging the best they could for their family from a desperate situation. As the application judge observed, the purpose of their agreement was to create an asset that would eventually assist the respondent and the children, and would be free of attachment by the deceased’s creditors. It is clear that the deceased had no money to pay the premiums; had the respondent not done so, there would have been no policy.

According to the appellant, the application judge’s most serious error is his finding there was no juristic reason for the appellant’s enrichment. This was rejected by Lauwers J.A. on three grounds. First, a purposive approach to the interpretation and application of s. 191 of the Insurance Act does not lead to the conclusion that it was intended to operate as a juristic reason for the appellant’s enrichment on the facts of this case. Second, the application of the principled approach to unjust enrichment leads to the contrary conclusion. Third, Richardson Estate does not drive the outcome of this case and should be distinguished.

3. No. Lauwers J.A. agreed with his colleague, for the reasons he gives, that the application judge erred in finding that the deceased made an equitable assignment of the policy and its proceeds to the respondent. But, in his view the error does not affect the outcome. Once the application judge found unjust enrichment, it was open to him to immediately impose a remedial constructive trust on the life insurance proceeds. He did not need to find some other equitable mechanism like equitable assignment before doing so.

Lauwers J.A.’s Conclusion on Unjust Enrichment

The application judge did not err in finding that the respondent’s deprivation consisted of the life insurance proceeds. He also did not err in finding that the deceased’s irrevocable designation in the appellant’s favour under s. 191 of the Insurance Act, given his prior oral agreement with the respondent, did not provide a juristic reason to oust the availability of a constructive trust over the life insurance proceeds, despite the Richardson Estate decision. To the extent that they fit awkwardly under the rubric of unjust enrichment, the disappointed beneficiary cases are perhaps better understood as a genus of cases in which a constructive trust can be imposed via the third route in Soulos – circumstances where the availability of a trust has previously been recognized – and the fourth route – where good conscience otherwise demands it, quite independent of unjust enrichment.

PP v DD, 2017 ONCA 180

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

W.Chalmers, for the appellant

V. Ambrosino, for the respondent

Keywords: Torts, Fraudulent Misrepresentation, Bruno Appliance and Furniture, Inc. v. Hryniak, Involuntary Parenthood, Paxton v. Ramji, Sexual Battery, R. v. Hutchinson, Non-Marine Underwriters, Lloyd’s London v. Scalera, Family Law, Child Support, , D.B.S v. S.R.G

Facts:

In 2014, PP and DD met through a mutual friend and enjoyed a short romantic relationship. Based on their conversations, PP understood that DD was taking the birth control pill and that she did not intend to conceive a child. Several weeks after their sexual relationship ended, PP was surprised to learn from DD that she was 10 weeks pregnant.

PP brought a civil action for fraud, deceit, and fraudulent misrepresentation against DD, claiming as damages that the deception deprived him of the benefit of choosing when and with whom he would assume the responsibility of fatherhood. DD was granted her motion to strike PP’s statement of claim without leave to amend. PP appealed.

The motion judge made a confidentiality order on his own motion, ordering that the parties not be identified by name and that the court file be sealed.

Issues:

(1) Can the appellant, as an aggrieved father, recover damages from the respondent, the mother, for involuntary parenthood?

(2) Can an alleged fraudulent misrepresentation as to the use of contraceptives vitiate the appellant’s consent to sexual touching for the purpose of advancing a claim of battery?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court of Appeal agreed with the motion judge’s conclusion that the appellant did not make out a viable claim for fraudulent misrepresentation. Such a claim cannot succeed in the absence of recoverable damages. “It is not sufficient to simply allege that damages were suffered; there must be a basis for the claim that a loss has been suffered for which the law allows recovery of damages.”

To succeed on a civil claim for fraudulent misrepresentation, the appellant must establish the following: (1) the representation was made by the respondent; (2) the respondent knew that the representation was false or was recklessly indifferent to its truth or falsity; (3) the false statement was material and by it the appellant was induced to act; and (4) the appellant suffered damages: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8. The Supreme Court of Canada has consistently recognized that “fraud without damage gives . . . no cause of action.”

The Court concluded that the appellant had not made out a viable claim for recoverable damages. It was plain and obvious that those damages were not and, as a matter of legal policy, ought not to be recoverable by way of a fraudulent misrepresentation action.

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the appellant’s emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want.

There have been numerous cases dealing with involuntary parenthood both in Canada and abroad. These normally involve law suits brought by parents against health care providers whose negligence resulted in the unwanted birth of a child. Recovery in such claims has generally been allowed for the damages suffered as a result of the pregnancy and birth of the child, but not for the cost associated with the mere fact of having become a parent or raising a healthy child. Ontario courts have, to date, generally not followed that approach in involuntary parenthood cases: see Paxton v. Ramji, 2008 ONCA 697.

The Court quoted at length two decisions of the House of Lords. In Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52, Lord Millett stated: “In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing … Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise…” The Court stated that the decision was apt in the present case, where a father claims damages as against a mother for the emotional and/or economic costs associated with the rearing of a healthy child. Such damages are fundamentally incalculable and not recoverable in tort.

The Court further stated that to award damages in this case would be contrary to the spirit and purpose of Ontario’s statutory family law regime. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception. The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

(2) No. The constituent elements of the tort of “sexual battery” are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was “harmful” or “offensive”, but this element is implied (assuming a lack of consent) in the context of a sexual battery: Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24 at para 22.

An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited. Consent to sexual touching will normally remain operative if the deceit relates not to the “nature and quality of the act”, but instead to some collateral matter. Likewise, fraud pertaining to the identity of the sexual partner will undermine consent. Therefore, where there is a deception or mistaken belief with respect to either the identity of the sexual partner or the sexual nature of the act itself, no consent to sexual touching will have been obtained.

For consent to be vitiated by fraud there must be: (1) dishonesty, which can include the non-disclosure of important facts; and (2) a deprivation or risk of deprivation in the form of serious bodily harm that results from the dishonesty: R. v. Hutchinson, 2014 SCC 19 at para. 67.

In Hutchinson, therefore, the Supreme Court clarified that deception with respect to contraceptive practice does not go to the “nature and quality of the act”—or, in the words of the Criminal Code, to the “sexual activity in question”— but that it may, nevertheless, vitiate consent to sexual touching where the fraud gives rise to a significant risk of serious bodily harm, which includes the risk of pregnancy. The majority also made it clear, however, that: “[t]o establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in [R. v. Cuerrier, [1998] 2 S.C.R. 371] … financial deprivations or mere sadness or stress from being lied to will not be sufficient.” The Court of Appeal recognized the profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child.

The alleged deception in this case was not with respect to the nature of the act, but only as to the likely consequences flowing therefrom. The sexual contact in this case was consented to and there were no physically injurious consequences. There was therefore no violation of the appellant’s right to physical or sexual autonomy that would give rise to a claim in battery.

Nicholson v Gemnay, 2017 ONCA 187

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

M. MacKewn and C. Tedesco, for the appellant

D. Crawford and J. M. Gillespie, for the respondent

Keywords: Endorsement, Natural Justice, Procedural Fairness, Sufficiency of Reasons

Facts:

The appellant appealed from an award against him in a case of civil fraud. He submitted that the trial judge’s reasons were insufficient. The trial judge preferred the evidence of the respondent and concluded that the appellant took advantage of the respondent to get her money so that he can trade it in his online options account, and was responsible for the appellant’s losses.

Issues:

(1) Whether the trial judge’s reasons were insufficient.

(2) Whether the trial judge erred by failing to find that the respondent was aware that money transferred to the appellant was being traded.

Holding:

Appeal dismissed.

Reasoning:

(1) No. The reasons were less than ideal but still met the requirements for sufficiency of reasons. Read as a whole and in the context of the record, the trial judge’s reasons set out what was decided and why the decision was made: R v REM, 2008 SCC 51. Moreover, the reasons permit effective appellate review.

(2) No. The record supported the judgment granted based on the respondent’s pleading of fraud. The record did not support a finding of consent or acquiescence.

1318847 Ontario Limited v Laval Tool & Mould Ltd, 2017 ONCA 184

[Strathy C.J.O., LaForme and van Rensburg JJ.A.]

Counsel:
J. K. Ball, for the appellant
M. Todd, for the respondent 1318847 Ontario Limited and for Emmanuel Azzopardi

Keywords: Civil Procedure, Costs Against Non-parties, Inherent Jurisdiction, Abuse of Process, Statutory Jurisdiction, Courts of Justice Act, s. 131

Facts:

1318847 Ontario Limited (“131”), and its principal and shareholder, Emmanuel Azzopardi, commenced two separate actions against Laval Tool & Mould Ltd. (“LTM”), claiming damages for breach of contract and unjust enrichment arising out of tax consulting services allegedly performed by Azzopardi for LTM. LTM was a family business, founded by Azzopardi’s late father and operated by some of his siblings.

The first action was commenced by 131 as the sole plaintiff. In its defence, LTM denied that it had contracted with either 131 or Azzopardi and denied that either had performed tax services for it.

Azzopardi commenced a second action, in both his own name and 131’s name, alleging the same causes of action and claiming he was entitled to compensation if 131 was not successful in the first action.

The two actions were tried together. The defendants retained separate counsel in the two actions.

The trial judge dismissed both actions. He invited written submissions on costs and asked counsel to address LTM’s request that the costs of the first action, in which 131 was the sole plaintiff, be awarded against Azzopardi personally. He also asked for submissions on whether, and to what extent, LTM’s choice to retain separate counsel in the two proceedings should be taken into account in the quantum of costs.

The trial judge ultimately refused to order costs against Azzopardi. He noted that the court’s jurisdiction to make costs orders under s. 131 of the Courts of Justice Act (“CJA”) is restricted to orders against parties to the proceeding. He acknowledged, however, that costs may be awarded against a non-party where the non-party is the real litigant who, in order to avoid liability for costs, puts forth a ‘man of straw’ to prosecute the litigation. The trial judge concluded that Azzopardi’s motive in causing 131 to commence the action was not to avoid liability for costs. It was, therefore, inappropriate to make a non-party costs order against him in the 131 action.

LTM appealed on the issue of costs.

Issue:

Did the trial judge err in not ordering costs against a non-party?

Holding:

Appeal allowed. Matter remitted to the trial judge for the purpose of fixing the costs of the proceeding in the Superior Court as against the non-party, Azzopardi, personally.

Reasoning:

Yes. The trial judge erred in not ordering costs against a non-party, Azzopardi. Section 131(1) of the CJA confers statutory jurisdiction on courts to order costs against a non-party in specified circumstances. However, there was considerable ambiguity in the case law as to whether the court also possesses inherent jurisdiction to order non-party costs. The Court decided to bring clarity to the law on non-party costs in Ontario by disambiguating the two sources of the court’s jurisdiction to order such costs.

  • The Applicable Law

There are two sources of jurisdiction by which a court can order costs against a non-party: statutory jurisdiction and inherent jurisdiction.

Statutory jurisdiction is set out in s. 131(1) of the CJA. Section 131(1) of the CJA limits the court’s discretion to order costs against the named parties unless the “person of straw” test is satisfied. The “person of straw” test is satisfied if: (1) The non-party has status to bring the action; (2) The named party is not the true litigant; and (3) The named party is a person of straw put forward to protect the true litigant from liability for costs. The proper inquiry under the test is whether the intention, purpose or motive of the non-party in putting the named party forward was to avoid liability for costs. The named party must have been “injected into the situation for the purpose of providing a costs screen” or “for the purpose of insulating a non-party from potential cost liability”. The inquiry under the “person of straw” test is not an evaluative one – it does not ask whether the non-party engaged in misconduct serious enough to amount to abuse of the court’s processes. Rather, it is a factual inquiry that asks whether the party of record is only the “formal” or “ostensible” litigant and whether the non-party is the “real” or “substantial” litigant, controlling the proceedings and advancing the named party for the purpose of deflecting liability for costs.

The Superior Courts also have inherent jurisdiction to control their own processes and protect them from abuse. Superior courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process. Courts or tribunals lacking inherent jurisdiction may only order non-party costs if they have statutory jurisdiction to do so. The language of s. 131(1) of the CJA does not exclude inherent jurisdiction to order costs against a non-party who commits an abuse of process. It is “permissive,” in that it confers broad discretion to make costs orders. Although s. 131(1) confers statutory jurisdiction to order costs against parties only, this does not undermine the provision’s permissiveness, as the provision does not explicitly prohibit the court from ordering non-party costs.

The Supreme Court has characterized abuse of process as “the bringing of proceedings that are unfair to the point that they are contrary to the interest of justice,” or “oppressive” or “vexatious” treatment that undermines “the public interest in a fair and just trial process and the proper administration of justice”. Situations of gross misconduct, vexatious conduct, or conduct by a non-party that undermines the fair administration of justice can be envisioned.

  • Application of the Law to the Facts

The trial judge exercised his discretion under s. 131(1) of the CJA in refusing to invoke his statutory jurisdiction to order costs against Azzopardi in 131’s action against LTM. His decision is entitled to deference and may be overturned only if it is plainly wrong or exhibits a palpable and overriding error, but it is subject to a correctness review if he misdirected himself as to the applicable law or made an error in principle. The trial judge properly directed himself as to the applicable test for non-party costs set out in Middlesex Condominium. There is also no error in principle in the trial judge’s application of that test.

Where the trial judge did commit an error in principle, however, was in not conducting a broader analysis of whether he had inherent jurisdiction to order costs against Azzopardi because Azzopardi had committed an abuse of process. The case law since Sturmer establishes that the Superior Court does have this wider jurisdiction. That jurisdiction is not limited to the “person of straw” scenario or by s. 131(1) of the CJA. Since the trial judge made an error in principle in not considering his inherent jurisdiction, the court reviewed whether costs should be ordered against Azzopardi for having abused the court’s processes.

The court concluded that it was an abuse of process for Azzopardi to bring an action against LTM with 131 as the nominal plaintiff. The proceeding was fictitious, as there was no evidence that Azzopardi or 131 ever performed tax services for LTM. There was simply no good reason for Azzopardi to bring an action in 131’s name rather than in his own name, and the reasons that Azzopardi thought he had were illusory. The effect was that LTM had to defend two equally fruitless proceedings and incur the costs of each by retaining separate counsel. LTM’s resources, public resources and judicial resources were wasted. Therefore, the matter is remitted to the trial judge for the purpose of fixing the costs of the proceeding in the Superior Court as against the non-party Azzopardi personally

Reiter v Hollub, 2017 ONCA 186

[Feldman, Epstein and Miller JJ.A.]

Counsel:

J. L. Davies, for the appellant

E.C.M. Boyle, for the respondent

Keywords: Family Law, Cohabitation, Constructive Trusts, Unjust Enrichment, Joint Family Ventures, Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269

Facts:

The appellant, Jessica Reiter, appeals from the dismissal of her application for an interest in the increase in equity of a home owned by the respondent, Tiar Hollub, which she shared during their six-year common law relationship.

Ms. Reiter advanced her claim on the basis of unjust enrichment. She argued that she had contributed to the $410,000 increase in the net value of the home over the course of the relationship. She relied on contributions she made to common living expenses and to the maintenance and repair of the residence. She also relied on the fact that she had given Mr. Hollub a one-time payment of $5,000 toward the mortgage.

Ms. Reiter also took the position that her relationship with Mr. Hollub amounted to a joint family venture as defined in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.

The application judge held that Ms. Reiter was unable to establish a joint family venture to support the requested remedy. She found no evidence that would support a conclusion that Ms. Reiter’s contributions had led to an increase in the value of the property. The application judge also found that the evidence did not support a joint family venture as defined in Kerr v. Baranow. As to Ms. Reiter’s $5,000 payment toward the mortgage, the application judge held that although Mr. Hollub had been enriched to Ms. Reiter’s detriment as a result of this contribution, his retention of the payment was justified by the parties’ agreement to share living expenses.

Issues:

(1) Did the application judge err in finding no unjust enrichment and in concluding that her relationship with Mr. Hollub did not amount to a joint family venture?

(2) Did the application judge err in the treatment of the $5,000.00 lump-sum payment?

Holding: Appeal allowed, in part.

Reasoning:

(1) No.

Unjust Enrichment

The test for unjust enrichment is well-settled. To establish unjust enrichment, the person advancing the claim must prove three things:

  1. An enrichment of or benefit to the defendant;
  2. A corresponding deprivation of the plaintiff; and
  3. The absence of a juristic reason for the enrichment.

There are two steps to identifying whether there is a juristic reason for the responding party to retain the benefit incurred. First, the court must consider whether the case falls within a pre-existing category of juristic reason, including a contract, a disposition of law, donative intent, and other valid common law, equitable or statutory obligations: Kerr, at para. 43. If a case falls outside one of these established categories, the reasonable expectations of the parties and public policy considerations become relevant in assessing whether recovery should be denied

In Kerr v. Baranow, the Supreme Court outlined two possible remedies where unjust enrichment is established – a monetary award or a proprietary award.

The court held that there are two different approaches to valuation for a monetary award. First, a monetary award may be based on a quantum meruit, value received or fee-for-services basis. Second, a monetary award may be based on a value survived basis. This is where the joint family venture analysis becomes relevant.

To receive a monetary award on a value survived basis, the claimant must show that there was a joint family venture and that there was a link between his or her contributions to the joint family venture and the accumulation of assets and/or wealth. Whether there is a joint family venture is a question of fact to be assessed in light of all of the relevant circumstances, including the four factors noted above – mutual effort, economic integration, actual intent and priority of the family.

Justice Cromwell was careful to note that cohabiting couples are not a homogenous group. The analysis must therefore take into account the particular circumstances of each relationship. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so. While the four factors identified are helpful to determine whether the parties were engaged in a joint family venture, there is no closed list of relevant factors.

In the application judge’s view the parties’ shared expense arrangement resulted in financial enrichment on both sides. This fact-based holding is entitled to deference. The finding that the parties had a mutually beneficial agreement to share living expenses was available to the application judge on the record. The parties paid for their own utilities, their own groceries, and their own vacations. Ms. Reiter gave Mr. Hollub monthly payments of $400, which Ms. Reiter testified was paid toward rent. Ms. Reiter also agreed that this $400 was less than she paid for rent either before or after the relationship. Mr. Hollub made monthly mortgage payments of $1,000, and paid the property taxes and insurance. Given their annual incomes, both parties also had considerable savings at the relationship’s end.

Joint Family Venture

In the light of factors such as the lack of integration of the parties’ finances, lack of combined contribution to a future together and lack of evidence of prioritizing family over individual interests, the application judge was entitled to conclude that there was no joint family venture in this case.

2. Yes. The application judge erred by characterizing the $5,000 as having been paid as part of the common expense agreement – a characterization not advanced by either party and not supported by the evidence. Given the law’s presumption against a gift (Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795) and the absence of any evidence of donative intent, the payment should simply be returned.

Civil Endorsements:

Miracle v Canada, 2017 ONCA 174

[Strathy CJO, Laskin and Trotter JJ.A.]

Counsel:

G. P. Bogue, for the appellant

B. E. Frederikse, for the respondent HSBC Canada

Keywords: Endorsement, Stay Pending Appeal

Ontario Psychological Association v Mardonet, 2017 ONCA 183

[Strathy CJO, Laskin and Trotter JJ.A.]

Counsel:

P. Stern, for the appellants.

S. Clements, for the respondents.

Keywords: Endorsement, Leave to Amend

Criminal Law Decisions:

R v Mawut, 2017 ONCA 168

[LaForme, Pepall and Pardu JJ.A.]

Counsel:

D. Parry, for the appellant

S. Porter, for the respondent

Keywords: Criminal Law, Armed Robbery, Sentencing, Pre-Sentence Custody, Youthful Offender, Jump Principle

R v Short, 2017 ONCA 153

[MacPherson J.A. (In Chambers)]

Counsel:

S. Chapman and M. Dineen, for the applicant

M. Stephens, for the respondent

Keywords: Criminal Law, First Degree Murder, Judicial Interim Release Pending Appeal, Criminal Code, s 679(3), R v Cunningham, Withdrawal of Counsel

R v Allen, 2017 ONCA 170

[Cronk, Rouleau and Miller JJ.A.]

Counsel:

M. Dineen, for the appellant

M. Fawcett, for the respondent

Keywords: Criminal Law, Possession of Loaded Prohibited Firearm, Possession for the Purpose of Trafficking, Dangerous Driving, Sentencing, Canadian Charter of Rights and Freedoms, s 24(2), R v Grant

 R v Alexander, 2017 ONCA 181

[Cronk, Rouleau and Miller JJ.A.]

Counsel:

J. Fisher, for the appellant

M. Comiskey, for the respondent

Keywords: Criminal Law, Sentencing, Controlled Drugs and Substance Act, Possession for the Purposes of Trafficking, Reasonable and Probable Grounds for Arrest, Canadian Charter of Rights and Freedoms, s 24(2), Jump Principle

R v MacIsaac, 2017 ONCA 172

[Weiler, Pepall and Trotter JJ.A.]

Counsel:

A. Burgess, for the appellant

C. Harper, for the respondent

Keywords: Criminal Law, Criminal Code, s 433, s 434, Arson, R v Vetrovec, Evidence, Collateral Fact, Burden of Proof

R v Poulin, 2017 ONCA 175

[MacPherson, Cronk and Watt JJ.A.]

Counsel:

T. Yuen and C. Martell, for the appellant

B. G. Puddington, for the respondent

Keywords: Criminal Law, Trafficking, Possession of the Proceeds of Crime, Possession for the Purpose of Trafficking, Jury Instructions, Evidence Across Counts in Multi-Count Case, Juries, Limiting Instructions, R v Sandhu, Similar Act Application

R v Hamilton, 2017 ONCA 179

[Feldman, Gillese and Pepall JJ.A.]

Counsel:

J. Dawe, for the appellant

C. Harper, for the respondent

Keywords: Criminal Law, Robbery, Statement to Police, Right to Silence, Voir Dire, Canadian Charter of Rights and Freedoms, s 10(b), s 24(2), Curative Proviso, R v Plaha, Fresh Start

R v Radcliffe, 2017 ONCA 176

[Watt, Pepall and Tulloch, JJ.A.]

Counsel:

F. M. Radcliffe, acting in person

B. Snell, appearing as duty counsel

C. E. Bartlett-Hughes, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Failing to Comply with a Recognizance, Dangerous Offender, Uneven Scrutiny, Sentencing, R v Gladue=

R v Sualim, 2017 ONCA 178

[Cronk, Rouleau and Miller JJ.A.]

Counsel:

N. Jamaldin, for the appellant

P. N. Fraser, for the respondent

Keywords: Criminal Law, Robbery with a Firearm, Theft over $5,000, Not Criminally Responsible on Account of Mental Disorder

R v McManus, 2017 ONCA 188

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

Counsel:

R. Posner, for the appellant Scott McManus

G. Gross-Stein, for the appellant Megan Chapman

B. G. Puddington, for the respondent

Keywords: Criminal Law, Controlled Drugs and Substances Act, Possession for the Purpose of Trafficking, Charter of Rights and Freedoms, s 24(1), s 11(b),  Stay of Proceedings for Delay, R v Jordan, R v Corbett, Jury Charge, Expert Evidence

R v Rafiq, 2017 ONCA 185

[MacFarland, Pardu and Trotter JJ.A.]

Counsel:
IGrant and R. Silverstein, for the appellant

G. Roberts, for the respondent

Keywords: Criminal Law, Endorsement, Charter of Rights and Freedoms, s 10(a), s 10(b),  R v Grant, Reasonable Suspicion

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