ONTARIO COURT OF APPEAL SUMMARIES (JULY 31 – AUGUST 4, 2017)

Good afternoon,

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

Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633, is a condominium law oppression remedy decision. At issue was what a commercial condo board was permitted to do to address a lack of parking issue created by the over-use of common element parking spaces by one unit-owner’s tenant (a busy restaurant). Notwithstanding the rather mundane issue in dispute, the court could not agree on the outcome, resulting in a split decision.

The majority (Justices Pardu and Benotto) held that a by-law which assigned four parking spots to each of the thirty-four unit owners (thereby prohibiting other unit owners from using those spaces) did not have the degree of permanence to amount to the creation of an exclusive use common element (the creation of an exclusive use common element is something that can only be done through a registered declaration). The majority agreed with and did not disturb the findings of the application judge, namely, that the by-law was reasonable and not oppressive.

In contrast, Justice Weiler, in dissent, held that although the application judge correctly held that a Corporation’s declaration does not have to specifically authorize leasing of common elements, he erred in not examining the actual wording of the by-law to ascertain if it was valid. Justice Weiler was of the view that the by-law purported to lease the parking spaces on a permanent or potentially permanent basis, effectively creating exclusive use common element parking spaces. As exclusive use common elements can only be designated through the declaration, the by-law was invalid. In addition, the by-law was unreasonable because there was no evidence that leasing four parking spaces per unit owner was necessary to alleviate the parking problems and a finding that overflow parking was available on adjacent lands was flawed.

Other topics covered included commercial leases, family law, real property, personal injury and wrongful dismissal.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents:

Civil Decisions

Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623

Keywords: Real Property, Conveyances, Equitable Interests in Land, Subdivision Agreements, Doctrine of Dedication and Acceptance, Limitation Periods, Real Property Limitations Act, ss. 4 and 5, Land Titles Act

Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632

Keywords: Torts, Negligence, Summary Judgment, Hryniak v. Mauldin, [2014] 1 S.C.R. 87, Appeals, Jurisdiction, Final or Interlocutory Orders, Evidence, Admissibility, Examinations for Discovery, Rules of Civil Procedure, R.R.O 1990, Reg. 194, r. 1.04, 20, 31.11(1), 39.04

Marsland Center Limited v. Wellington Partners International Inc., 2017 ONCA 631

Keywords: Real Property, Commercial Leases, Commercial Tenancies Act, R.S.O. 1990, c. L.7, ss. 48, 50, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8

Gonsalves v. Scrymgeour, 2017 ONCA 630

Keywords: Family Law, Spousal Support, Child Support, Common Law Marriage, Division of Assets, Joint Family Venture, Unjust Enrichment, Kerr v Baranow, 2011 SCC 10, McNamee v McNamee, 2011 ONCA 533

Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633

Keywords: Real Property, Condominiums, Oppression, Bylaws, Common Elements, Condominium Act, S.O. 1998, c. 19 s. 1(1), 7(2)(f), 7(4), 11(2)-(5), 21(1)(a), 21(2), 56(1), 56(6), 56(10), 58(1), 135(2), York Condominium Corp. No. 382 v. Dvorchik, [1997] O.J. No. 378 (C.A.), Orr. v. Metropolitan Toronto Corp. No. 1056, 2011 ONSC 4876, Standard of Review, Housen v. Nikolaisen, 2002 SCC 33

Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA 641

Keywords: Employment Law, Wrongful Dismissal, Disability, Duty to Accommodate,  Undue Hardship, Employment Contracts, Frustration, Human Rights Code, Fraser v. UBS, 2011 ONSC 5448

For Criminal Decisions, click here.

For Civil Endorsements, click here.

Civil Decisions:

Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623

[Hourigan, Benotto and Roberts JJ.A.]

Counsel:

A. Davis and R. D. Davis, for the appellants

S. Leisk and M. Mahoney, for the respondent

Keywords: Real Property, Conveyances, Equitable Interests in Land, Subdivision Agreements, Doctrine of Dedication and Acceptance, Limitation Periods, Real Property Limitations Act, ss. 4 and 5, Land Titles Act

Facts: The appellants appeal from the dismissal of their application and the granting of the respondent’s application for a declaration that the respondent is the beneficial and legal owner of a 2.8-acre park known as the Kingsview Parkette (“the Parkette”) located in the Town of Caledon (“the Town”). The appellant, Waterstone Properties Corporation (“Waterstone”), and its predecessors in title are related companies, and held paper title to the Parkette. In 1972 and in 1973, members of this group of companies entered into subdivision agreements with the Town.

Among other terms, the subdivision agreements provided that the Parkette would be deeded to the Town for use as a park. While the Parkette was never formally transferred to or registered on title in the Town’s name, there is no dispute that, since 1974, the Town has had possession of the Parkette and that, since 1977 or 1979, the Town has used and operated the Parkette as a public park. On March 26, 1999, the Parkette was administratively converted into the Land Titles system in the name of Great Georgian Realty Group (“Great Georgian”) as owner. On May 7, 2013, the Parkette was transferred into the name of the appellant, Waterstone. On May 8, 2015, the Town asserted outright ownership of the Parkette and demanded a deed for nil consideration.

The appellants and the Town then commenced separate applications, each seeking a declaration of ownership of the Parkette. The application judge dismissed the appellants’ application, declared the Town the legal and beneficial owner of the Parkette, and made an order directing the Land Registrar to correct the parcel register to reflect the Town’s ownership, on the basis that the 1973 subdivision agreement superseded the 1972 subdivision agreement with respect to the conveyance of the Parkette, and the inclusion of the conveyance of the Parkette in the 1973 subdivision agreement was not a mistake. Moreover, the 1973 subdivision agreement created a constructive trust in favour of the Town as beneficial owner of the Parkette. Finally, the administrative transfer of the Parkette into the Land Titles system in 1999 had not extinguish the Town’s beneficial ownership of the Parkette. In the alternative, the Town had acquired ownership of the Parkette by application of the doctrines of adverse possession and dedication and acceptance.

Issues:

(1) Did the application judge err in determining that the 1973 subdivision agreement superseded the 1972 subdivision agreement?

(2) Did the administrative transfer of the Parkette into the Land Titles system in 1999 extinguish the Town’s beneficial ownership of the Parkette?

(3) Is any claim that the Town may have to the Parkette statute-barred under ss. 4 or 5 of the Real Property Limitations Act?

(4) Did the application judge err in determining that the Parkette was conveyed to the Town in accordance with the doctrine of dedication and acceptance?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court held that the application judge found the subdivision agreements to be clear and unambiguous, with the 1973 agreement clearly not including a re-conveyance provision. The application judge rejected the appellant’s submission that the inclusion of the Parkette in the 1973 agreement was an error. The court held that those conclusions were open to the application judge on the evidentiary record before him and were subject to deference. The court saw no error in the application judge’s interpretation of the subdivision agreements and therefore had no basis to interfere.

(2) No. The court held that the appellant’s submissions on that point relied on the enforceability of the re-conveyance clause in the 1972 subdivision agreement. Since the court had already found the 1973 agreement to supersede it, there was no basis for this position. By virtue of the conveyance provisions in the 1973 agreement, the Town acquired a beneficial interest in the Parkette, of which the appellants had actual notice. The court held that although the deed was subsequently lost and title was mistakenly never registered in the Town’s name, there was actual notice of the Town’s equitable interest, and therefore the administrative conveyance of the Parkette into the Land Titles system was subject to the Town’s interest.

(3) No. The court held that although the Town’s claim to the Parkette was subject to the ten-year limitation period under s. 4 of the Real Estate Property Limitations Act, under s. 5(1) of the same Act, possession can operate to postpone the commencement of the limitation period, which would only start to run at the time of dispossession or discontinuance. The court found that there was no evidence the Town had ever been dispossessed or discontinued in its possession of the Parkette, and as a result the limitation period had never started to run.

(4) No. The court held that the application judge properly set out the two criteria for the doctrine of dedication and acceptance to apply: first that there was an actual intention to dedicate the land by the owner, and second, that it must appear that the intention was carried out in that the land was open for the public for use, and the public accepted it (Gibbs v Grand Bend (Village)). The court found that the application judge made several findings of fact supporting the conclusion that despite the Parkette never having been deeded to the Town, Waterstone’s predecessors had dedicated the Parkette as parkland for public use. The application judge also found that nearly four decades of public use of the Parkette as a park constituted acceptance by the public. The court held that those findings were open to the application judge on the record before him, and that the court saw no error in the application judge’s conclusion that the doctrine of dedication and acceptance applied and that the Town was therefore entitled to ownership of the Parkette.

Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632

[Sharpe, Tullock and Lauwers JJ.A.]

Counsel:
E.A. Cherniak, Q.C., G.T. Hnatiwn and D.E. Litwin, for the appellant

R.S. Balswin, for the respondents

Keywords: Torts, Negligence, Summary Judgment, Hryniak v. Mauldin, [2014] 1 S.C.R. 87, Appeals, Jurisdiction, Final or Interlocutory Orders, Evidence, Admissibility, Examinations for Discovery, Rules of Civil Procedure, R.R.O 1990, Reg. 194, r. 1.04, 20, 31.11(1), 39.04

Facts:

This appeal arises out of an injury sustained by the appellant while participating in a game of tug-of-war on a campground owned and operated by the respondents Gores Landing Marina (1986) Limited and its principal Joseph Davies Sr. (“Marina and Davies Sr.”).

The respondent, Joseph Davies Jr. (“Davies Jr.”), was added to the proceedings because of his role in finding the rope and making it available to the guests of the campground. The campground’s guests ask the respondent to provide a rope to play a game of tug-of-war. The rope had loops in it. While participating in a game of tug-of-war, the appellant put his arm through one of the loops and as the rope was pulled, the looped tightened and cinched on the appellant’s forearm, crushing it. The appellant ultimately had part of his arm amputated as a result of the injury.

Marina and Davies Sr. brought a summary judgment motion to have the main action against them dismissed. The motion judge struck some evidence from the affidavit of one of the people at the campground, as well as the discovery evidence of Davies Jr. and two other people at the campground. The motion judge ultimately granted summary judgment dismissing the action against the Marina and Davies Sr., but Davies Jr. did not defend the action against him and remains a defendant.

Issues:

(1) Is the order striking affidavit and examination for discovery evidence interlocutory and therefore only appealable to the Divisional Court?

(2) Did the motion judge err by excluding the discovery evidence of Davies Jr. and the two other people at the campground?

(3) Did the motion judge err in concluding that there was no genuine issue requiring a trial in relation to the Marina and Davies Sr.?

Holding: Appeal allowed.

Reasoning:

(1) No. The respondents submitted that the Ontario Court of Appeal does not have jurisdiction to hear evidence that the motions judge excluded from consideration on the basis that it is interlocutory, and that the appellants must seek leave to appeal from the Divisional Court instead. The evidence was not interlocutory because its exclusion was not a standalone order. Rather, it was an inextricable part of the decision to grant judgment. In addition, bifurcating the appeal by allowing some of the motion judge’s reasons to be appealable at the Ontario Court of Appeal and some at the Divisional Court will unduly complicate the appeal process. Such complication is contrary to rule 20 and rule 1.04 of the Rules of Civil Procedure, and the promotion of more efficient and less expensive access to justice as advocated by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] 1 S.C.R. 87.

2) Yes. The motion judge concluded that since the Marina and Davies Sr. brought the motion, the discovery evidence of parties other than the Marina and Davies Sr. ought to be struck because evidence of one adverse party cannot be used against another adverse party. This reasoning is based on the motion judge’s interpretation of rules 31.11(1) and 39.04 of the Rules of Civil Procedure, which govern discovery evidence.

The motion judge interpreted rule 31.11 and 39.04 too rigorously. If the motion judge is invited to use the discovery evidence of one party against another adverse party as evidence establishing liability, the evidence may fall short of what is required. However, where the relevant issue on a motion is whether there is sufficient evidence to establish that there is a genuine issue requiring a trial, the discovery evidence is sufficient.

(3) Yes. The improperly excluded discovery evidence supports the assertion that there is a triable issue as to vicarious liability.

Marsland Center Limited v. Wellington Partners International Inc.,  2017 ONCA 631

[Simmons, Lauwers and Hourigan JJ.A.]

Counsel:

R.K. Thomson, for the appellant

S. Shoor, for the respondent

Keywords: Real Property, Commercial Leases, Commercial Tenancies Act, R.S.O. 1990, c. L.7, ss. 48, 50, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8

Facts:

The appellant, Wellington Partners International Inc. (“Wellington”) was the tenant under a commercial lease with the respondent, Marsland Center Limited (“Marsland”), as landlord. The lease started on November 1, 2012, and was to terminate on October 31, 2017.

By the fall of 2013, Wellington was “suffering from business challenges and economic difficulties.” Marsland refused to grant rent relief to its tenant. On September 24, 2014, Wellington returned the keys and vacated the building. Marsland sued for damages in the amount of $200,000, representing the total rent owed through the term of the lease, together with costs.

On a motion for partial summary judgment, Marsland sought an order and declaration that Wellington was liable pursuant to s. 50 of the Commercial Tenancies Act (“Act”) for twice the value of certain goods and chattels removed from the premises. Prior to departure, Wellington removed most of its furnishings and other assets. The motion judge granted judgment, and Wellington appealed.

Issues:

(1) Did the motion judge properly exercise his authority under Rule 20 of the Rules of Civil Procedure?

(2) Did the motion judge properly apply ss. 48 and 50 of the Act?

Holding: Appeal allowed.

Reasoning:

(1) No. The motion judge failed to take into account the two-step analytical approach mandated by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”) and Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8.

The motion judge failed to address the second-step of Hryniak, which is whether and how the factual issues in dispute between the parties should be determined. There was no doubt that genuine factual issues existed between the parties on the evidence. Marsland denied giving permission for Wellington to remove their furnishings and other assets, whereas Wellington claimed that Marsland gave permission. These allegations were advanced through sworn affidavits.

While the motion judge recognized that the parties’ evidence seriously conflicted, he did not give effect to the dispute over the facts. As opposed to turning his mind to how the conflicts in the evidence were to be resolved, the motion judge simply picked one party’s version over the other.

Notwithstanding that Marsland’s version of events was more plausible, given that it was an experienced landlord that knew that the furnishings and assets were, in fact, or could be, its security for rent owed, this was not a proper basis on which to make a credibility finding in the circumstances of this case, where sworn statements were in conflict on a fundamental issue and where significant amounts of money were involved.

On this basis alone, the summary judgment was set aside.

(2) The court did not decide this issue, since the appeal was resolved on the basis of the first issue.

Gonsalves v. Scrymgeour, 2017 ONCA 630

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

A. Finlayson, for the appellant

E. Birnboim and F. Yao, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Common Law Marriage, Division of Assets, Joint Family Venture, Unjust Enrichment, Kerr v Baranow, 2011 SCC 10, McNamee v McNamee, 2011 ONCA 533

Facts:

The parties lived together in a conjugal relationship for over 16 years. They have three children, one of whom requires ongoing financial child support. The appeal and cross-appeal challenge the trial judge’s determinations in relation to the issues of spousal and child support, and the division of the value of the family home as an asset of a joint family venture. The trial judge granted judgment in favour of the respondent, determining as follows: (i) that there was a joint family venture and that the respondent was entitled to $595,530 as her share of the value of the family home; (ii) that $150,000 should be imputed to the appellant as annual income for the purposes of calculating spousal and child support; (iii) that the appellant pay costs fixed in the amount of $280,000.

Issues:

Appeal

(1) Did the trial judge err in his joint family venture/unjust enrichment analysis?

(2) Did the trial judge err in failing to deduct the deposit paid by the appellant and the outstanding mortgage on the family home?

(3) Did the trial judge err in imputing a total of $150,000 of annual income to the appellant?

Cross-Appeal

(1) Did the trial judge err in not imputing additional income to the appellant in relation to his inheritance from his father’s estate and to the value of the appellant’s shares in a business (GHL)?

Holding: Appeal granted, in part. Cross-appeal dismissed.

Reasoning:

Appeal

(1) No. The court held that the trial judge correctly famed his analysis for unjust enrichment, and concluded that there was both a disproportionate accumulation of assets by the appellant, linked to the respondent’s contributions to the parties’ joint family venture, and a corresponding deprivation and absence of juristic reason for the appellant’s disproportionate accumulation of assets. The court held that the trial judge’s conclusion was grounded in his detailed factual findings about the parties’ respective monetary and non-pecuniary contributions to their joint family venture, and that it was open to him to weigh the factual circumstances of the case as he did.

(2) Yes. The court held that since the trial judge accepted the evidence of the appellant and his brother that the balance of the mortgage was outstanding and had to be paid upon sale of the family home, it was not then open to him to ignore the ongoing liability for which the appellant would be solely responsible following the sharing of the value of the family home. The court found that the judge erred in not deducting the amount of the mortgage from the net value of the family home, and readjusted the respondent’s share to $527,000 rather than the $595,530 awarded by the trial judge.

(3) No. The court held that it was clear on the trial judge’s reasons that he rejected the appellant’s contention that his investment income for the last three years was anomalous and non-recurring. The trial judge found that the appellant received regular income from dividends and capital gains. The court held that these findings were open to the trial judge and there was no basis to interfere with them.

Cross-Appeal

The court held that the $1.3 million the appellant had inherited from his father was a legally valid gift to his brother, for the purpose of creating a scholarship at the University of Toronto, per their father’s wishes. The court found that there was no evidence that the appellant had access to any income or other benefits produced from that inheritance. The court held that there was no error of law or palpable or overriding error that would warrant interference with the trial judge’s finding that these circumstances did not justify imputing any additional income to the appellant.

As for the appellant’s interest in GHL, the court held that the trial judge’s findings that the appellant does not have access to GHL’s assets, nor the ability to require the sale of his shares or the declaration of dividends, is also entitled to deference and was open to the trial judge on the evidentiary record before him. The court held that the trial judge had included the dividends and other benefits that the appellant received from GHL in the calculation of his average income, and that to imputerfurther income from the same assets would amount to double-counting.

Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

J. Fine, W. Pepall and J. Lurye, for the appellant

A. Casalinuvo and M. Molloy, for the respondent

Keywords: Real Property, Condominiums, Oppression, Bylaws, Common Elements, Condominium Act, S.O. 1998, c. 19 s. 1(1), 7(2)(f), 7(4), 11(2)-(5), 21(1)(a), 21(2), 56(1), 56(6), 56(10), 58(1), 135(2), York Condominium Corp. No. 382 v. Dvorchik, [1997] O.J. No. 378 (C.A.), Orr. v. Metropolitan Toronto Corp. No. 1056, 2011 ONSC 4876, Standard of Review, Housen v. Nikolaisen, 2002 SCC 33

Facts:

The Condominium Corporation (the “Corporation”) passed a by-law that attempted to solve a longstanding parking lot dispute in the common element parking areas of its commercial complex. The complex consisted of thirty-four units; Cheung owned three. Cheung leased her units to a very popular restaurant.

There were one hundred sixty-two common element parking spaces. Cheung stated she “needed” all of them “because a two hundred thirty seat restaurant requires the use of a sufficient number of parking spaces to accommodate its patrons.” The other unit owners also wanted to use the parking spaces.

There were altercations among restaurant customers, between restaurant customers and other customers, and between restaurant customers and business owners within the complex.” The restaurant was very busy during its peak hours, 9:00 AM to 3:00 PM and after 5:00 PM. Other unit owners complained that they were losing customers because of the crowded and “toxic” parking lot. In addition, patrons would at times park illegally by blocking the fire routes, accessible parking spaces, or double-parking other vehicles.

In 2009, the Corporation attempted to solve this problem by passing a by-law to allocate two parking lots to each unit owner, but that by-law was invalid because it was never registered on title. In 2015, the Corporation made another attempt, adopting a by-law that provided the Corporation could “from time to time” grant a lease to each owner of four parking spaces in the common element parking spaces on such terms and conditions “as may be deemed appropriate by the Board of Directors from time to time.” The by-law did not include these terms and conditions.

Issues: [as framed by the dissent]

(1) Did the application judge err in holding the 2015 by-law was valid?

(2) Did the application judge err in concluding the 2015 by-law was reasonable?

(3) Did the application judge err in concluding the 2015 by-law did not violate s. 135 of the Act?

(4) Did the application judge err in awarding $60,000 in costs to the Corporation?

Majority: [Pardu and Benotto JJ.A.]

Holding: Appeal dismissed.

Reasoning:

Cheung argued that the by-law was invalid because it in effect created “exclusive use common elements.” Cheung argued that, based on the declaration, she expected that she could use all of the common element parking spaces on the property, and this expectation was integral to her decision to acquire the units.

The Court found that the by-law passed by the Corporation did not have the degree of permanence to amount to, in effect, the creation of exclusive use common elements which would pass with ownership of a unit. The Board of Directors (the “Board”) could repeal or vary the by-law at any time. All unit owners reasonably share the parking spaces. There is no valid expectation that a right to exclusive use of parking spaces exists.

(2) No. The majority framed the second issue in terms of whether the by-law was void for uncertainty. The majority considered s. 135 (Oppression Remedy) and whether the by-law was reasonable under the third issue. Since the Corporation was waiting on the conclusion of litigation, it has not executed the leases contemplated by the by-law. More consideration is required to execute the proposal embodied in the by-law, as the terms of the leases will have to be approved by the Board, but that does not make the by-law void for uncertainty.

(3) No. The application judge concluded that the by-law was reasonable; there was a parking problem and it needed to be remedied. The application judge relied on the proposition that it was not the court’s place to substitute its judgment for that of the Board’s unless the by-law was clearly unreasonable or contrary to the Act or the declaration: York Condominium Corp. No. 382 v. Dvorchik, [1997] O.J. No. 378 (C.A.) at paras 5-6. Whether the by-law was reasonable or was oppressive was a question of mixed fact and law and was owed deference: Housen v. Nikolaisen, 2002 SCC 33 at para. 36.

Further, the application judge properly noted that the purpose of s. 135 is to protect reasonable expectations. Relying on Orr. v. Metropolitan Toronto Corp. No. 1056, 2011 ONSC 4876 at para. 158, the application judge noted that “… the section protects the legitimate expectations and not individual wish lists… the court must balance the objectively reasonable expectations of the owner with the [Board’s] ability to exercise judgment and secure the safety, security and welfare of [all unit owners, property, and assets].”

The application judge concluded that Cheung’s expectation that her tenant should be able to use all of the common area parking spaces was unreasonable and amounted to an allegation that the Board acted unfairly by not giving her special parking privileges not enjoyed by other owners.

(4) No. Given the near parity of the partial indemnity costs claimed by each party, and taking into account the offer to settle made by the Corporation, the global amount of $60,000 awarded by the application judge was well within the range of what a losing party would expect to pay in costs, regardless of the uncivil conduct of either party and their respective counsel.

Dissent: [Weiler, J.A.]

Holding: Would have allowed the appeal.

Reasoning:

(1) Yes. Notwithstanding the fact that the passing of a by-law to lease does not affect the interest of an owner in the common elements, what the Corporation did here was pass a by-law allowing it to enter into leases, skip entering into any leases, but nonetheless adversely affect Cheung’s interest in the common elements by permitting other owners to erect and maintain private parking signs. These leases must be valid to affect Cheung’s interest in the common element parking. Leases cannot be granted in perpetuity.

The uncertainty created by a by-law providing for a lease for an indeterminate period makes it impossible to determine the integrity of title in the common elements until a lease is actually entered into. This uncertainty is impermissible. As the 2015 by-law allocated four common element parking spaces to each owner for each owner’s exclusive use on a permanent basis or for an indeterminate period, it contravenes the Act and is invalid.

(2) Yes. Since the 2015 by-law is invalid, no deference is owed to the Board’s decision to pass it. Apart from this conclusion, the 2015 by-law is still unreasonable. Not only was there no evidence, expert or otherwise, to suggest that assigning four parking spaces would alleviate the parking difficulties, the application judge also made a processing error by finding that there was overflow parking available on adjacent lands, which there was not. Given the application judge’s finding that other businesses often have empty spots when the restaurant is at peak capacity, the 2015 by-law assigning four parking spaces per unit was not within a range of reasonable choices that the Board could have made in weighing conflicting interests.

(3) No. The application judge did not err in his approach under s. 135 of the Act. The finding that Cheung’s expectation was unreasonable was a finding of mixed fact and law and is owed deference. It was and is unreasonable for Cheung to ignore her fellow unit owners’ interests.

(4) Yes. Both parties have achieved partial success. The dissent would have granted leave to appeal costs, and would have set aside the application judge’s award of costs and ordered that each party bear their own costs throughout. Cheung submitted that she should not have to pay her share of the costs of the litigation for which she, as a unit owner, is liable. This position was rejected since, as provided for in the Act, Cheung is required to bear her share of the common expenses, of which this litigation is one such expense.

Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA 641

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

Counsel:

D. Matson, for the appellan

D. Shanks and J. Lester, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Disability, Duty to Accommodate,  Undue Hardship, Employment Contracts, Frustration, Human Rights Code, Fraser v. UBS, 2011 ONSC 5448

Facts:

The appellant worked for the respondent as an orthotic technician. He developed problems with his arms and hands as a result of the physical demands of his work. The respondent placed him on a medical leave of absence on August 18, 2010, and terminated his employment on January 22, 2013.

The appellant sued for wrongful dismissal and for damages under the Human Rights Code for his employer’s failure to accommodate his disability and for disability related discrimination. The trial judge awarded damages for wrongful dismissal equal to 15 months’ pay in lieu of notice, net of WSIB benefits the appellant received during that period, plus $10,000 in damages for breach of the Human Rights Code, finding that the disability was a factor in the respondent’s decision to terminate the appellant’s employment.

The appellant submits that the trial judge erred by refusing to award him additional damages for loss of income between August 18, 2010, and January 22, 2013. The respondent cross-appealed, submitting that the trial judge erred by failing to find that the employment contract was frustrated by the appellant’s disability.

Issues:

(1) Did the trial judge err in concluding that the respondent accommodated the appellant’s disability to the point of undue hardship?

(2) Did the trial judge err in finding that the employment contract was not frustrated by the appellant`s disability?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

(1) No. A determination of whether an employer has accommodated a disabled employee to the point of undue hardship must take account of the specific fact situation and apply common sense. An employer is not required to create a new position for the employee. An employer is not required to make fundamental changes to the employee’s job scope or working conditions. Hardship becomes undue when an employee is no longer able to fulfill the basic obligations of his employment position, despite accommodations.

The respondent made several efforts to accommodate the appellant`s disability, including changing the appellant`s work duties, modifying the required work pace and allowing discretionary breaks to rest and stretch. He was also allowed extensive paid time off to attend physiotherapy and medical appointments. However, the appellant’s condition continued to deteriorate and his productivity declined to the point where it was 50% or less of what it should have been. This resulted in the respondent being forced to pay the other technicians overtime pay, which was not sustainable for a specialized small business of this nature.

(2) No. The issue of whether the termination of the employment contract of a disabled employee is a wrongful dismissal or the frustration of the employment contract depends on the facts. Where an employee is permanently unable to work because of a disabling condition, the doctrine of frustration of the employment contract depends on the fact of the case. Where an employee is permanently unable to work because of a disabling condition, the doctrine of frustration of contract applies because the permanent disability renders performance of the employment contract impossible, such that the obligations of the parties are discharged without penalty. Frustration of contract is established if at the time of termination there is no reasonable likelihood of the employee being able to work with a reasonable time. The onus is on the employer to prove that the contract was frustrated.

The respondent did not establish that there was no reasonable likelihood of the appellant’s ability to return to work within a reasonable time. The respondent terminated the appellant’s employment only a week after sending a letter that said it would re-evaluate the appellant’s desire to return to work if and when he was medically cleared. However, the respondent terminated the appellant before he could produce evidence establishing that there was a reasonable likelihood of an ability to return to work within a reasonable time.

Criminal Decisions

R. v. Aviles, 2017 ONCA 629

[Feldman, Watt and Huscroft JJ.A.]

Counsel:

M. Halfyard and B. Vandebeek, for the appellant

J. Streeter, for the respondent

Keywords: Criminal Law, Assault, Carrying Concealed Weapon, R. v. Kelsy, 2011 ONCA 605, 289 C.C.C. (3d) 456, Canadian Charter of Rights and Freedoms, s. 9

R. v. Strauss, 2017 ONCA 628

[Watt, Benotto and Roberts JJ.A.]

Counsel:

J. Lockyer and R. Posner, for the appellant

K. Rawluk, for the respondent the Attorney General of Ontario

B. Reitz, for the respondent the Attorney General of Canada

Keywords: Criminal Law, Unreasonable Search and Seizure, Search Warrants, R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, Canadian Charter of Rights and Freedoms, s. 24(2)

R. v. Rutledge, 2017 ONCA 635

[Watt, Benotto and Roberts JJ.A.]

Counsel:

A. Faith, for the appellant

M. Fawcett, for the respondent

Keywords: Criminal Law, Evidence, R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, R. v. Dyment, [1988] 2 S.C.R 417, R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, Canadian Charter of Rights and Freedoms, s. 8

R. v. Oliveros-Callejas (Appeal Book Endorsement), 2017 ONCA 636

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

Counsel:

V. Rondinelli, for the appellant

M. Oliveros-Callejas, appearing in person

M. Bernstein, for the respondent

Keywords: Criminal Law, Joint Submission, R. v. Anthony-Cook, [2016] 2 S.C.R. 204

R. v. Rafilovich, 2017 ONCA 634

[Weiler, Hourigan and Pardu JJ.A.]

Counsel:

B. Reitz and S. Egan, for the appellant

G. Lafontaine, for the respondent

Keywords: Criminal Law, Forfeiture of Proceeds of Crime, Forfeiture of Offence-Related Property, Criminal Code, s. 462, R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392

R. v. Abbey (Publication Ban), 2017 ONCA 640

[Doherty, Laskin and Roberts JJ.A]

Counsel:

D. Harris and R. Pillay, for the appellant

A. Alvaro, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s. 486.4, s. 486.5. s. 486.6, s. 683(1), Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759, Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321

R. v. Byers (Publication Ban), 2017 ONCA 639

[Laskin, Simmons and Pardu JJ.A.]

Counsel:

M. Gourlay, for the appellant

E. Nakelsky, for the respondent

Keywords: Criminal Law, Attempted Kidnapping, Attempted Aggravated Assault, Criminal Code, s. 486.4, s. 486.5. s. 486.6, s. 683(1), R. v. Geddes (1996), 160 J.P. 697 (Eng. C.A. (Crim. Div.)), R. v. Campbell (1991), 93 Cr. App. R. 350 (Eng. C.A. (Crim. Div.))

R. v. Floward Enterprises Ltd. (H. Williams and Co.), 2017 ONCA 643

[Gillese, Huscroft and Trotter JJ.A.]

Counsel:

P. Adam, for the appellant, the Estate of Martin Winberg

J. Green, for the respondent, Floward Enterprises Ltd.

M. Fawcett, for the respondent, Her Majesty the Queen

Keywords: Criminal Law, Costs, Criminal Code, s. 490(7), s. 490(9)(c), R. v. Geauvreau, [1982] 1 S.C.R. 485

R. v. MacKenzie, 2017 ONCA 638

[Laskin, Simmons and Pardu JJ.A.]

Counsel:

F. Miller, for the appellant

K. Farrell, for the respondent

Keywords: Criminal Law, Wilfully and Unnecessarily Causing Pain and Suffering, Animal Cruelty, Criminal Code, s. 445(1), s. 445.1(1)

Civil Endorsements

Agnus v. Port Hope (Municipality), 2017 ONCA 637

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

Counsel:

C. Paliare, R. Stephenson and L. Scott, for the appellant

A. Lenczner and P. Veel, for the respondent

Keywords: Costs

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