ONTARIO COURT OF APPEAL SUMMARIES (SEPTEMBER 25 – SEPTEMBER 29, 2017)

Good evening.

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

In perhaps the final round in the Yaiguaje v. Chevron Corporation case, the Ecuadorian plaintiffs, who hold a judgment of approximately $9.5 billion from an Ecuadorian court against Chevron Corporation, appeal from the dismissal, by way of summary judgment, of their enforcement proceedings against Chevon Canada, a seven degree removed subsidiary of Chevron Corporation. Chevron Corporation and Chevron Canada successfully moved for security for costs of the appeal, including the costs of the motion for summary judgment in the court below, of over $1 million. It will be interesting to see whether this spells the end of this case or whether the security is posted.

In Keatley Surveying Ltd. v. Teranet Inc., the Court of Appeal upheld the dismissal of the class action by surveyors in Ontario, who alleged that Teranet Inc. infringed their copyright by digitizing, storing, and copying plans of survey created by the surveyors and registered or deposited in the provincial registry offices. The Court affirmed the lower court decision by holding that the province owns the copyright in the plans of survey deposited with the registry offices as a result of the combined effect of section 12 of the Copyright Act and the provincial legislation governing the land registry system. There was therefore no copyright breach arising from the fact that users of Teranet can access and make copies of plans of survey.

The Court released two decisions dealing with Rule 21.01. In Ridel v. Goldberg, the Court held that since discoverability issues generally involve questions of mixed fact and law, Rule 21.01(1)(a) will rarely be the appropriate avenue for determining limitation period issues. In Harris v. Ontario (Community Safety & Correctional Services), the Court held that the claim did not plead the issue that was decided on the Rule 21.01 motion. In this case, the issue decided was whether claims for legal expenses incurred in connection with a coroner’s inquest are recoverable at law in a wrongful death action brought pursuant to s. 61(1) of the Family Law Act. The court held that the motion judge should not have answered the question (the judge held such costs were recoverable as damages), given that such damages were not pleaded in the statement of claim.

Finally, Justice Brown, in Chambers, was uncertain about his jurisdiction to grant a charging order to secure solicitor’s fees with respect to not only work performed on the appeal before the Court, but with respect to the work performed on the proceedings before the Superior Court. His Honour adjourned the motion to a panel of the Court of Appeal, which will soon decide the question.

Please feel free to share this blog with your friends and colleagues. As always, we welcome your comments and feedback.

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

Ridel v Goldberg, 2017 ONCA 739

Keywords: Civil Procedure, Determination of a Question of Law, Limitation Periods, Rules of Civil Procedure, R. 21.01(1)(a), Salewski v. Lalonde, 2017 ONCA 515, Bankruptcy and Insolvency, Property of Bankrupt, Causes of Action, Assignments, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 38

Yaiguaje v Chevron Corporation, 2017 ONCA 741

Keywords: Civil Procedure, Appeals, Security for Costs, Judgments, Enforcement, Execution Act, Corporations, Piercing Corporate Veil, Chevron Corp v. Yaiguaje, 2015 SCC 42, Belokon v. Kyrgz Republic, 2016 ONSC 4506, Shoppers Drug Mart Inc. v. 6470360, 2014 ONCA 85, 642947 Ontario Ltd. v. Fleischer, (2001), 56 O.R. (3d) 417 (C.A.)

Highland Shores, Children’s Aid Society v C.S.D., 2017 ONCA 743

Keywords: Family Law, Crown Wardship, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Interlocutory Order, Final Order

Harris v Ontario (Community Safety & Correctional Services), 2017 ONCA 750

Keywords: Civil Procedure, Determination of Question of Law, Rules of Civil Procedure, Rule 21.01(1)(a), Torts, Negligence, Wrongful Death,  Family Law Act, RSO 1990, c. F.3., ss 61(1), Damages, Legal Expenses, Coroner’s Inquests

Keatley Surveying Ltd. v Teranet Inc., 2017 ONCA 748

Keywords: Intellectual Property Law, Copyright, Class Actions, Copyright Act, RSC 1985 c. C-42, s. 12, Electronic Land Registration Services Act, S.O. 2010, c. 1, the Registry Act, R.S.O. 1990, c. R.20; Land Titles Act; Surveyors Act, RSO 1990, c. ss. 29 and 30

Weenen v Biadi, 2017 ONCA 738

Keywords: Solicitor and Client, Legal Fees, Charging Orders, Jurisdiction, Solicitors Act, ss. 34(1), Courts of Justice Act, ss. 7(4), Sealing Orders

For Civil Endorsements, click here

For Capacity and Consent Board Decisions, click here

For Criminal Decisions, click here

Civil Decisions

Ridel v. Goldberg, 2017 ONCA 739

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

Counsel:

P Anisman, for the appellants

N Holmberg, for the respondent

Keywords: Civil Procedure, Determination of a Question of Law, Limitation Periods, Rules of Civil Procedure, R. 21.01(1)(a), Salewski v. Lalonde, 2017 ONCA 515, Bankruptcy and Insolvency, Property of Bankrupt, Causes of Action, Assignments, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 38

Facts:

This action was commenced more than two years after the Ridels (the appellants) obtained a trial judgment against e3m Investments Inc. for negligence, breach of contract and breach of fiduciary duty in relation to their investment accounts, but within two years of the dismissal of e3m’s appeal from that judgment.  In the action against e3m, the trial judge found that the respondent Robert Goldberg, the president, CEO and sole director of e3m, had abdicated his responsibility to supervise the employee who handled the appellants’ accounts. After e3m’s appeal was dismissed, e3m made an assignment in bankruptcy. The appellants then obtained an order pursuant to s. 38 of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, authorizing the assignment to them of the trustee’s cause of action for damages incurred by e3m as a result of the respondent’s breach of duties of care and supervision. They then commenced this action.

The focus of the appellants’ argument before the motion judge related to the relevance of e3m’s appeal to the calculation of the limitation period. They argued that until the appeal was decided, it would not have been appropriate for them to bring this action. Before the Court of Appeal however, the appellants shifted ground and argued that it could not be said that e3m could or should have considered an action against Goldberg, e3m’s own directing mind, until after e3m’s bankruptcy.

Issue:

Did the motion judge err in ruling on a Rule 21.01(1)(a) motion that the action was barred by the two-year limitation period?

Holding: Appeal allowed.

Reasoning:

Yes. The Court of Appeal was of the view that it was not appropriate for the court to rule on the issues raised by the parties on the limited record that was before it. This was a Rule 21.01(1)(a) motion for which the court only had the pleadings before it. There was no evidence before the court concerning what has become the main focus of the appellants’ submission, namely, the relationship between e3m and Goldberg and the control he is alleged to have exercised over e3m in relation to the claim advanced by the appellants.

In Salewski v. Lalonde, 2017 ONCA 515, the Court of Appeal observed, at para. 45, that as the discoverability issue is one of mixed fact and law, there may well be no circumstance “in which a limitation issue under the Act can properly be determined under Rule 21.01(1)(a) unless pleadings are closed and it is clear that the facts are undisputed.” The Court of Appeal was of the view that a more complete record would be required to permit the court to determine the issues raised by the parties on this appeal. Therefore, this order does not purport to determine the limitation period issue. Instead, that issue may be determined in the normal course, and on a proper factual basis, in these proceedings.

Yaiguaje v. Chevron Corporation, 2017 ONCA 741

[Epstein J.A. (in Chambers)]

Counsel:

Suzy Kauffman, for the moving party Chevron Canada Limited on M47811

Larry P. Lowenstein and Laura Fric, for the moving party Chevron Corporation on M47813

Paul M. Michell, for Chevron Canada Capital Company

Alan J. Lenczner, Q.C., Brendan F. Morrison, Kirk M. Baert, Celeste Poltak and Garth Myers, for the responding parties

Keywords: Civil Procedure, Appeals, Security for Costs, Judgments, Enforcement, Execution Act, Corporations, Piercing Corporate Veil, Chevron Corp v. Yaiguaje, 2015 SCC 42, Belokon v. Kyrgz Republic, 2016 ONSC 4506, Shoppers Drug Mart Inc. v. 6470360, 2014 ONCA 85, 642947 Ontario Ltd. v. Fleischer, (2001), 56 O.R. (3d) 417 (C.A.)

Facts:

The appellants (the “Ecuadorian plaintiffs”) hold a judgment of approximately $9.5 billion from an Ecuadorian court (the “Ecuadorian judgment”) against the respondent, Chevron Corporation. The Ecuadorian plaintiffs seek to enforce that judgment in Ontario against Chevron and its seventh level, indirect subsidiary, Chevron Canada.

Chevron and Chevron Canada initially contested the jurisdiction of Ontario courts to enforce the Ecuadorian judgment. The matter reached the Supreme Court of Canada, which affirmed Ontario’s jurisdiction over the Ecuadorian plaintiffs’ action: Chevron Corp v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69.

Following the Supreme Court’s ruling, Chevron and Chevron Canada brought motions for summary judgment before the Ontario Superior Court. Both motions sought the dismissal of the Ecuadorian plaintiffs’ claims against Chevron Canada, on the basis of its separate corporate personality from Chevron. The Ecuadorian plaintiffs brought a cross-motion for summary judgment, seeking a declaration that Chevron Canada’s assets were eligible to satisfy Chevron Corp.’s judgment debt. The Ecuadorian plaintiffs also brought a motion to add Chevron Canada Capital Company (“CCCC”) as a defendant to their action, and to strike the defences in Chevron Corp.’s statement of defence.

The motion judge granted the respondent corporations’ motion for summary judgment. He dismissed the Ecuadorian plaintiffs’ cross-motion and motion to add CCCC as a defendant, and partially granted their motion to strike. The Ecuadorian plaintiffs appealed all four decisions.

The respondents bring a motion for an order for security for costs totaling $1,022,951.47; $160,000 for the appeal and the rest for the proceedings below. They submit that such an order is appropriate as the Ecuadorian plaintiffs are not ordinarily resident in Ontario, have not provided evidence of impecuniosity, and have not established a good chance of success in the pending appeal. The Ecuadorian plaintiffs submit that security for costs should not be awarded given the merits of their appeal and Chevron’s delay in bringing this motion. They also urge this court to adopt a new approach to the law of security for costs, one that displays sensitivity to the principle of international comity and the similarity of this proceeding to a class action.

Issues:

(1) Are the respondents entitled to an order for security for costs?

Holding: Motion granted.

Reasoning:

(1)  Yes. There is no question that the Ecuadorian plaintiffs are normally resident outside of Ontario, thus “triggering the enquiry” into security for costs. The Ecuadorian plaintiffs have put forward no evidence to demonstrate that they are impecunious. Since the Ecuadorian plaintiffs cannot be deemed impecunious, they must demonstrate that their appeal has something akin to a “good chance of success” to resist the motion.

To do so, they would have to establish a proper basis for execution against Chevron Canada under the Execution Act, or provide “some compelling reason for lifting the corporate veil”. So far they have done neither.

The Act is only engaged when the judgment debtor has an existing right or interest in the property over which execution is sought. Conway J. adopted this position in Belokon v. Kyrgz Republic, 2016 ONSC 4506, stating at para. 31, that “The Execution Act is a procedural statute. It does not create new rights — it only provides a process for the enforcement of otherwise existing rights.”

As it pertains to piercing the corporate veil, the Court of Appeal confirmed in Shoppers Drug Mart Inc. v. 6470360, 2014 ONCA 85 that the appropriate test to apply in determining whether the corporate veil should be pierced remains that stated by Laskin J.A. in 642947 Ontario Ltd. v. Fleischer, (2001), 56 O.R. (3d) 417 (C.A.), at para. 68:

Typically, the corporate veil is pierced when the company is incorporated for an illegal, fraudulent or improper purpose. But it can also be pierced if when incorporated “those in control expressly direct a wrongful thing to be done”: Clarkson Co. v. Zhelka, [1967] O.J. No. 1054 at p. 578. Sharpe J. set out a useful statement of the guiding principle in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 at pp. 433-34: “the courts will disregard the separate legal personality of a corporate entity where it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct.”

As stated by Sharpe J. (as he then was) in Transamerica at para. 22, the first part of the test, “complete control”, requires more than ownership. It requires “complete domination, and that the subsidiary company does not, in fact, function independently.” The second part of the test relates to the nature of the corporations’ conduct. There must be “conduct akin to fraud that would otherwise unjustly deprive claimants of their rights.”

On the first branch, the motion judge concluded that Chevron Canada was not completely dominated and controlled by Chevron, but rather that it had a typical parent/subsidiary relationship. Moreover, in coming to this conclusion, the motion judge reasonably relied upon and adopted the findings of Brown J. (who ruled on the issue of jurisdiction earlier in this litigation). These findings include that Chevron Canada initiates its own plans and budgets, funds its day to day operations and some recent capital expenditures, and files its own tax returns and corporate statements. Brown J. also noted that the relevant corporate structure has been in place since 1966, and was clearly not instituted in order to avoid the Ecuadorian judgment.

In terms of the second branch, and as the motion judge noted, the Ecuadorian plaintiffs expressly do not plead that the corporate structure of which Chevron Canada is a part was designed or used as an instrument of fraud or wrongdoing. At para. 24 of their pleadings, the Ecuadorian plaintiffs state that “the plaintiffs do not allege any wrongdoing against Chevron Canada”. Nor have the Ecuadorian plaintiffs provided convincing proof that Chevron’s corporate structure is being used “as a shield for fraudulent or improper conduct.”

Finally, the Ecuadorian plaintiffs seek to resist the motion by relying on an alleged “new approach” endorsed by the Supreme Court for recognition and enforcement actions. Epstein JA does not read the Chevron decision as establishing any such new approach. The case dealt only with jurisdiction. It does not hold that plaintiffs seeking to enforce a foreign judgment should be treated differently than any other litigant in our courts. The just order in this case is therefore one for security for costs.

Accordingly, Chevron Canada is entitled to security for costs of the appeal in the amount of $50,000 and for the proceedings below in the amount of $541,335.14. Chevron is entitled to security for costs of the appeal in the amount of $30,000 and for the proceedings below in the amount of $321, 616.33.

Highland Shores, Children’s Aid Society v. C.S.D., 2017 ONCA 743

[Doherty, LaForme and Miller JJ.A.]

Counsel:

C Murray and D Tobin, for the appellant
C Pilgrim, for the respondent C.S.D.

Keywords: Family Law, Crown Wardship, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Interlocutory Order, Final Order

Facts:

The appellant (the “CAS”) moved for summary judgment, declaring A.E. a ward of the Crown. Kirkland J., of the Ontario Court of Justice allowed the motion. The respondent then appealed the order of Kirkland J. to the Superior Court of Justice where Tranmer J. allowed the appeal, set aside the order of Kirkland J., and directed that “the matter shall proceed to trial”.

The appellant now appealed the decision of Tranmer J. to the Court of Appeal.

Issues:

(1) Does the Court of Appeal have jurisdiction to set aside Tranmer J.’s decision that the matter shall proceed to trial?

Holding: Appeal quashed.

Reasoning:

(1) No. An order of a Superior Court judge refusing to grant summary judgment and directing that the matter proceed to trial is an interlocutory and not a final order. The fact that the order set aside by the Superior Court judge was a final order is not determinative of the proper characterization of the order made by the Superior Court judge. The Court of Appeal must make its own assessment of the nature of the order. There is no appeal from the order of Tranmer J. to the Court of Appeal. An appeal lies to the Divisional Court only with leave of that court.

Harris v Ontario (Community Safety & Correctional Services), 2017 ONCA 750

[Doherty, LaForme and Miller JJ.A.]

Counsel:

D Kloeze and A Christian-Brown, for the appellant

A C Murray, for the respondents

A James and M Gibson, for the intervener, the Urban Alliance on Race Relations

Keywords: Civil Procedure, Determination of Question of Law, Rules of Civil Procedure, Rule 21.01(1)(a), Torts, Negligence, Wrongful Death,  Family Law Act, RSO 1990, c. F.3., ss 61(1), Damages, Legal Expenses, Coroner’s Inquests

Facts:

On a Rule 21.01 motion the respondents asked the motion judge to answer the question of whether claims for legal expenses incurred in connection with the inquest conducted into the death of a family member are potentially recoverable in law pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3. The motion judge ruled that claims for legal expenses incurred in connection with the inquest conducted into the death of the deceased are potentially recoverable in law pursuant to subsection 61(1) of the FLA. The pleadings did not raise the issue of legal expenses connected to the inquest at issue. The appellants appeal this ruling on the ground that Rule 21.01 did not give the judge the authority to answer this question.

Issues:

Did the motion judge err in answering the question of law posed by the respondents pursuant to Rule 21.01?

Holding: Appeal allowed.

Reasons:

Yes. Rule 21.01 is available only to answer “questions of law raised by the pleadings.” The pleadings said nothing about a coroner’s inquest or any legal expenses incurred by the respondents in connection with the inquest. The motion judge could not properly answer the question raised on the motion without the actual pleadings raising that question of law.

Keatley Surveying Ltd. v. Teranet Inc., 2017 ONCA 748

[Doherty, Brown and Miller JJ.A.]

Counsel:

Kirk M. Baert and Celeste Poltak, for the appellant/respondent by way of cross-appeal

Paul Morrison, Julie K. Parla, Hovsep Afarian and Paul J. Davis, for the respondent/appellant by way of cross-appeal

Michael S. Dunn and Savitri Gordian, for the intervener, the Attorney General of Ontario

Keywords: Intellectual Property Law, Copyright, Class Actions, Copyright Act, RSC 1985 c. C-42, s. 12, Electronic Land Registration Services Act, S.O. 2010, c. 1, the Registry Act, R.S.O. 1990, c. R.20; Land Titles Act; Surveyors Act, RSO 1990, c. ss. 29 and 30

Facts:

The appellant, Keatley Surveying Ltd., brought a class action on behalf of all surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices. The appellant claimed that the respondent, Teranet Inc., infringed on surveyors’ copyright by digitizing, storing, and copying plans of survey created by surveyors and registered or deposited in the electronic land registration and administration system (ELRS). The respondent is a service provider that operates the ELRS, retained by the province.

The motion judge held in favour of the respondent, granted Teranet’s motion and dismissed the action. He held that the plans of survey registered or deposited under the ELRS belong to the province of Ontario, and not to the surveyor who created the plan.

The appellant appeals the dismissal of the action, arguing that the motion judge erred in holding that land surveyors do not maintain copyright in the plans of survey deposited or registered in the ELRS. The appellant further challenges the constitutionality of the provincial legislation that the respondent relies on to support its position that the copyright in the plans of survey deposited and registered in the ELRS belongs to the province.

The respondent submits that the appellant should not be allowed to raise constitutional issues for the first time on appeal, and in any event, that there is no merit in the vires argument. The respondent renews arguments made in respect of the other common issues by way of cross-appeal. The Attorney General of Ontario intervenes and supports the respondent’s position.

Issues:

1. Does the copyright in the plans of survey belong to the province of Ontario, pursuant to s. 12 of the Copyright Act, as a result of the registration and/or deposit of those plans of survey in the Ontario Land Registry Office?

2. Can the appellant raise the constitutional issue for the first time on appeal, and if so, is there merit in the vires argument?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

1. Yes. The province owns the copyright in the plans of survey registered with the Land Registry Office. Teranet manages the ELRS for the province pursuant to statutory authority under the Electronic Land Registration Services Act and to the terms of licensing agreements with the province. In accordance with those agreements, the province retains all rights, title, and interest, including intellectual property rights, to the data used in ELRS. Teranet’s role is exclusively that of the service provider retained by the province.

Copyright is a creature of statute. Copyright subsists in plans of survey prepared by surveyors. Plans of survey are “artistic works” pursuant to s. 2 of the Copyright Act and attract protection provided by s. 5. The land surveyor who prepares a plan of survey is the author of that “work”.

This case is concerned only with copyright in plans of survey that have been registered or deposited under the ELRS. The copyright rests in either the province or the land surveyor who created the plan of survey. If the land surveyor has copyright, the making and distribution of paper or digital copies of the plan of survey is a breach of copyright committed by an employee of the province. However, if the province has copyright in the registered or deposited plans of survey, the appellant has no claim for breach of copyright, regardless of whether a government, employee or third party retained by the government, makes the copy.

Section 12 of the Copyright Act states:

Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. [emphasis added]

The key question in this case is whether the registered or deposited plans of survey are “published by or under the direction or control of “the Crown. The rights of the Crown are informed by a series of provincial statues dealing with land registry in Ontario: the Registry Act; Land Titles Act; and the Surveyors Act. Considered in its entirety, the statutory scheme gives the Crown complete control over registered or deposited plans of survey and complete control over the publication of the plans of survey within the meaning of the Copyright Act. The provisions oblige the Crown to maintain possession and custody of all registered plans of survey. The Crown must provide access to those plans upon request. The surveyor cannot place any marking on the plan claiming any kind of copyright. The surveyor cannot make any change on the plan once it is registered or deposited without the permission of the examiner of surveys. However, the examiner can make changes without the permission of the surveyor. Importantly, the Crown is statutorily obliged to provide certified copies upon request. Therefore, certified copies of plans of survey made available to members of the public under the statutory scheme are artworks published under the “direction or control” of the Crown for the purposes of s. 12 of the Copyright Act.

The Court clarifies that ownership of copyright does not flow from the provincial land registration scheme. Rather s. 12 of the Copyright Act vests copyright in the Crown by virtue of the publication of plans under the “direction or control” of the Crown.

In its reasoning, the Court specifically refers to an Australian case, Copy Agency Limited, which considers whether the Australian Crown or the surveyor had copyright in the registered plans of survey. In doing so, the Australian court considered ss. 176 and 177 of the Australian Copyright Act 1968. Those sections read together are similar to s. 12 of the Canadian Copyright Act. The Australian Federal Court of Appeal held that the question turned on whether it is the first publication of the relevant plans. An “artistic work” is “first published” when it is made available to the public. The Court rejected the submission that a registered plan of survey was a different work than the unregistered plan prepared by the surveyor. The Court held that the plans were published by surveyors prior to the registration of the plans, either when plans were provided to the surveyors’ clients or when plans were made available to various regulatory and planning authorities. Accordingly, the Crown’s publication of the plans in the context of the land registration scheme could not vest copyright in the Crown.

S. 12 of the Canadian Copyright Act does not limit publication to “first publication”. Instead, s. 12 refers to any work that is “published” under the direction or control of the Crown and provides for a period of copyright measured from the Crown’s “first publication” of the work. The question of whether the Crown has copyright under s. 12, unlike its Australian counterpart, does not depend on whether the work has been previously published in Canada.

Surveyors are under no obligation to deposit or register plans of survey under the ELRS. A land surveyor who does not want a plan registered or deposited can (a) insert an appropriate term in the retainer with their client (b) refuse to sign the declaration required for the plan to be registered or deposited, or (c) place on the plan a claim of copyright or any other restrictions on the copy of the survey. As land surveyors are under no obligation to register or deposit plans of survey under the ELRS and can prevent any plan from being registered or deposited, there is no validity to the appellant’s submission that the above scheme is a form of expropriation.

2. On the Court’s interpretation, there is no vires problem. Federal legislation, s. 12 of the Copyright Act, bestows copyright in the Crown and provincial legislation informed the copyright inquiry mandated by s. 12.

Weenen v. Biadi, 2017 ONCA 738

[Brown J.A. (In Chambers)]

Counsel:

Alan B. Dryer, for the appellants

David Winer, for the respondent

Keywords: Solicitor and Client, Legal Fees, Charging Orders, Jurisdiction, Solicitors Act, ss. 34(1), Courts of Justice Act, ss. 7(4), Sealing Orders

Facts:

The moving party solicitor moved under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15, for an order charging the damages and costs awarded to the responding party client. The solicitor alleged an outstanding total of $360,000, consisting of fees and disbursements incurred for both the trial and appeal. The client has initiated assessment proceedings against the solicitor.

Issues:

(1) Does the Ontario Court of Appeal have jurisdiction to grant a charging order to secure solicitor’s fees?

(2) If there is such jurisdiction, is it limited only to granting a charging order in respect of fees and disbursements incurred in appeal proceedings before the court, or can the court also grant a charging order in respect of fees and disbursements incurred below in the Superior Court of Justice?

Holding: Motion adjourned to a panel of the Court of Appeal.

Reasoning:

Brown JA was uncertain about the court’s jurisdiction to grant the charging order requested. Combined with the need to determine a question relevant to both solicitors and clients, Brown JA decided to adjourn the motion to a panel of the Court of Appeal, as per the Courts of Justice Act, s. 7(4). He held that a question of jurisdiction is best decided by a panel, not a single judge sitting in Chambers. The filed motion materials were ordered sealed, given their confidential nature.

Short Civil Endorsements

SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 744

[Doherty, LaForme and Miller JJ.A.]

Counsel:

Fariborz Mirzaee Tavana, for the appellant

Carlin McGoogan, for the respondent

Jeff Van Bakel, for the intervener, Wajeb Assaf

Keywords: Endorsement, Contracts, Solicitor and Client, Torts, Solicitor’s Negligence, W. (D.) v. White (2004), 189 O.A.C. 256, Appeal Dismissed

Haider Humza Inc. v. Rafiq, 2017 ONCA 737

[Doherty, LaForme and Miller JJ.A.]

Counsel:

Pathik Baxi, for the appellant, Mohammed Rafiq

Joanna Nairn, for the respondents

Keywords: Endorsement, Dismissal for Delay, Appeal Dismissed

Zeleny v. Canada (Attorney General), 2017 ONCA 745

[Doherty, LaForme and Miller JJ.A.]

Counsel:

Deryl Clayton Zeleny, self-represented

Mathew Johnson, for the respondent, Attorney General of Canada

Keywords: Endorsement, Appeal Dismissed

Gottlieb v. Malone Given Parsons Ltd., 2017 ONCA 757

[MacFarland, Watt and Benotto JJ.A.]

Counsel:

Alan B. Dryer, for the appellants

David Winer, for the respondent

Keywords: Municipal Law, Development Charges, Appeal Dismissed

Criminal Decisions

R v. Caporiccio, 2017 ONCA 742

[Laskin, Trotter and Fairburn JJ.A.]

Counsel:

Peter Lindsay and Maleeka Mohamed, for the appellant

Rachel Young, for the respondent

Keywords: Criminal Law, Fraud, Mens Rea, Evidence, Credibility, Reliability, R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, Appeal Dismissed

R v. Gopie, 2017 ONCA 728

[Gillese, van Rensburg and Brown JJ.A.]

Counsel:

Saman Wickramasinghe and Zachary Kerbel, for the appellant

David Littlefield and Holly Akin, for the respondent

Keywords: Criminal Law, Drug Trafficking, Conspiracy to Import a Narcotic, Delay, Canadian Charter of Rights and Freedoms, ss. 11(b), Stay of Proceedings, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Jordan, 2016 SCC 27, Sentencing, R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, Appeal Dismissed

R v. Sargeant, 2017 ONCA 725

[Gillese, van Rensburg and Brown JJ.A.]

Counsel:

David Littlefield and Holly Akin, for the appellant

Carlos F. Rippell and Diana M. Lumba, for the respondent

Keywords: Criminal Law, Drug Trafficking, Conspiracy To Import A Narcotic, Delay, Canadian Charter Of Rights And Freedoms, ss. 11(b), Stay Of Proceedings, R. v. Carter, [1982] 1 S.C.R. 938, Appeal Dismissed

R v. Cooke, 2017 ONCA 749

[Cronk, Juriansz and Paciocco JJ.A.]

Counsel:

Richard Litkowski and Jessica Zita, for the appellant George Cooke

Paul Burstein and Karen Symes, for the appellant Matthew Cooke

Susan Magotiaux, for the appellant (C60905) and respondent (C61409 and C61447)

Keywords: Criminal Law, Manslaughter, Break and Enter to Commit Robbery, R. v. Newton, 2017 ONCA 496, Appeal Allowed

R v. T.B-J., 2017 ONCA 746

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:

Matthew Asma, for the appellant

David W. Russell, for the respondent, T.B-J.

Michael Ellison, for the respondent, N.A.M.

Jane Stewart and Mary Birdsell, for the intervener, Justice for Children and Youth

Keywords: Criminal Law, Youth Offenders, Sentencing, Appeal Dismissed

R c. Doirin, 2017 ONCA 755

[Sharpe, Rouleau and Benotto]

Counsel:

Sarah Desabrais and Sarah Paré-Wild, for the appellant

Philippe Cowle, for the respondent

Keywords: Criminal Law, Kidnapping, Ineffective Assistance of Lawyer, Fresh Evidence, Credibility, Appeal Dismissed

R v. Foster, 2017 ONCA 751

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:

Stephen Whitzman, for the appellant

Katherine Beaudoin, for the respondent

Keywords: Criminal Law, Possession of Firearm, s. 96(1) of the Criminal Code, Voluntariness, Derived Confessions Rule, Exclusion of Evidence, Trial Fairness, Appeal Dismissed

R v. Way, 2017 ONCA 754

[Pardu, Huscroft and Fairburn JJ.A]

Counsel:

Melissa Adams, for the appellant

Timothy Breen, for the respondent

Keywords: Criminal Law, Child Pornography, Sentencing, Appeal Allowed

R v. Philips, 2017 ONCA 752

[Gillese, van Rensburg and Brown JJ.A.]

Counsel:

Delmar Doucette, Andrew Furgiuele and Angela Ruffo, for the appellant, Jemaine Phillips

Richard Litkowski and Catriona Verner, for the appellant, Drai O’Hara-Salmon

John Patton, for the respondent

Keywords: Criminal Law, First-Degree Murder, Aiding and Abetting, Self-Defence, Expert Evidence, Provocation, Jury Instructions, Appeal Dismissed

R v. Wilkinson, 2017 ONCA 756

[Rouleau, Trotter and Paciocco JJ.A.]

Delmar Doucette and Andrew Furgiuele, for the appellant

Michael Fawcett, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Abuse, Collusion, Appeal Dismissed

Consent and Capacity Board Decisions

Jones (Re), 2017 ONCA 758

[Cronk, Juriansz and Paciocco JJ.A.]

Erin Dann and Janani Shanmuganathan, for the appellant

Elizabeth Teed, for the Attorney General of Ontario

Logan Crowell, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Mental Health Law, Detention, Fresh Evidence, Appeal Dismissed

Pellett (Re), 2017 ONCA 753

[Laskin, Pepall and Trotter JJ.A]

Counsel:

Ken J. Berger, for the appellant Rosemary Pellet

Erica Whitford, for the respondent Attorney General of Ontario

Gavin S. MacKenzie, for the respondent Centre for Addition and Mental Health

Keywords: Review Board, Mental Health Law, Absolute Discharge, Not Criminally Responsible, Appeal Allowed

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

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