Author: John Polyzogopoulos

For years, our firm has been preparing weekly summaries of decisions just released by the Court of Appeal for Ontario (other than criminal law decisions) for internal distribution, usually on Friday afternoons. On more than one occasion, our lawyers have relied on decisions they learned about over the weekend at their hearings the following week. We have now decided to share our summaries with the Ontario bench and bar. We hope that you find this service useful and welcome your comments. John Polyzogopoulos, a partner in our Commercial Litigation group, is the editor of this blog. Feel free to contact John regarding any suggestions you may have or with respect to any possible referrals of litigation matters to our firm. John can be reached at 416.593.2953 or jpolyzogopoulos@blaney.com. With over 80 litigators, Blaneys has the expertise and bench strength to take on any kind of litigation matter. We provide quality depth that is on par with the national firms, personal service to rival litigation boutiques, all while having a cost structure that allows us to be very competitive with our rates. Here is a sampling of what we do: • Counsel and Appellate work • Commercial Litigation (including corporate litigation, injunctions, insolvency and banking) • Construction • Labour and Employment • Family • Intellectual Property Litigation • Class Actions • Administrative Law • Aboriginal • Insurance Law, including: • Insurance Coverage Advice • Product Liability • Professional Liability • MVA/Personal Injury/Medical Malpractice • Government Liability 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.

ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 11- DECEMBER 15, 2017)

Good evening,

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

There were two decisions of note this week. The first was Willowbrook Nurseries Inc. v. Royal Bank of Canada. In this decision the Court of Appeal ruled on the extent of the duty of good faith in contracts established by the Supreme Court in Bhasin v. Hrynewas applied to the commercial lending context. Due to the seasonal nature of the debtor’s business, the lender would allow the debtor to exceed its line of credit each winter. However, in 2007, the debtor failed to pay back the excess debt and the lender refused to allow the debtor to advance even further funds the following winter. The Court of Appeal ruled that in these circumstances, the lender was not required to lend more money than it wanted to or had previously agreed to lend.

The second was 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club). This decision involved a review of when a landlord is entitled to distrain (for arrears of rent but not after terminating a lease), and what a landlard may distrain (chattels, but not trade fixtures, unless those trade fixtures are severed from the land before the lease is terminated).

Other topics covered this week included testamentary capacity, negligent misrepresentation, WSIB collateral benefits in MVA context, a boundary dispute and exemption from seizure of property under the Indian Act in a repair and storage lien context.

Happy Chanukah to all who are celebrating.

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

Table of Contents

Western Troy Capital Resources Inc. v. Genivar Inc., 2017 ONCA 971

Keywords: Torts, Negligent Misrepresentation, Damages

Wilken v. Sun Life Assurance Company, 2017 ONCA 975

Keywords: Torts, MVA, SABs, Collateral Benefits, WSIB

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974

Keywords: Contract Law, Breach of Contract, Banking Law, Commercial Lending, Duty of Good Faith, Thermo King Corp. v. Provincial Bank of Canada (1981), 34 O.R. (2d) 369 (C.A.), Bhasin v. Hrynew, 2014 SCC 71

Frohlich v. Ferraro, 2017 ONCA 978

Keywords: Property Law, Boundary Dispute, Trespass, Easements, Riparian Rights, Fresh Evidence

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980

Keywords: Real Property, Commercial Leasing,  Distraint, Chattels, Trade Fixtures, Abandonment, Torts, Conversion, Damages, Waiver of Tort, Exemplary and Punitive Damages

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

Keywords: Civil Procedure, Appeals, Jurisdiction, Criminal Law, Search Warrants, Solicitor-client privilege, Litigation privilege, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 (1) (b)

Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992

Keywords: Aboriginal Law, Property Law, Exemption from Seizure, Indian Act R.S.C., 1985, c. I-5, s. 89(1), Repair and Storage Liens Act, R.S.O. 1990, C. R.25

Sweetnam v. Williamson Estate, 2017 ONCA 991

Keywords: Wills & Estates, Testamentary Capacity, Costs

For Short Civil Decisions Click Here

For Criminal Decisions Click Here

Civil Decisions

Western Troy Capital Resources Inc. v. Genivar Inc., 2017 ONCA 971

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

Counsel

J Erskine and K. Surko, for the appellant
H B Borlack and S. Barbier, for the respondent, Genivar Inc.

Keywords: Torts, Negligent Misrepresentation, Damages

Facts:

The appellant retained the respondent, an engineering consulting firm, to conduct a feasibility study to evaluate the amount of mineral resources and economic viability of developing a property at MacLeod Lake in Northern Quebec.

The trial judge found that but for the respondent’s negligent misrepresentation to the appellant, the appellant would have terminated its project sooner and was thereby entitled to compensation for unnecessary expenses incurred.

The trial judge found that the resource estimate provided by the respondent should have been finalized at least one year and maybe as much as two years earlier than was actually done. The trial judge awarded $1.25 million to the appellant.

Issues:

(1) Did the trial judge err in his damages assessment?

Holding:

Appeal dismissed.

Reasoning:

(1) No. When the reasons of the trial judge are read as a whole, the trial judge provided an adequate explanation, firmly grounded in evidence, for why he rejected the approach advocated by the appellant and accepted the respondent’s position that not all the expenses claimed by the appellant would have been avoided if a timely resources estimate had been provided. His assessment is therefore not vulnerable to review by the Court of Appeal on the applicable standard of review.

The trial judge noted that there were several matters bearing upon the damages assessment that were “speculative” when the evidence was considered as a whole. The first speculation was how much earlier the work could have been done. The second speculation was what expenses the appellant would have incurred regardless of the resource estimate having been completed in a timely manner. The third area of uncertainty was how the appellant would have acted upon receipt of a timely feasibility study.

The court accepted that based on the evidence there was a significant element of judgment required to assess damages in this case. The court rejected the appellant’s submission that the calculation of damages could only have been accomplished on an invoice by invoice basis. The appellant failed to persuade the court that the trial judge ignored relevant evidence or that he made any palpable or overriding error of law that would justify intervention with his decision.

Wilken v. Sun Life Assurance Company, 2017 ONCA 975

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Douglas M. Bryce, for the appellant

Stephen H. Shantz, for the respondent

Keywords: Torts, MVA, SABs, Collateral Benefits, WSIB

Facts:

The appellant is claiming payment of long-term disability (“LTD”) benefits from the respondent. The appellant was injured in a motor vehicle accident while working and started collecting Workplace Safety and Insurance Board (“WSIB”) benefits before retroactively re-electing to proceed with a tort action against the other driver involved in the accident. The appellant seeks to distinguish the court’s decision in Richer v. Manulife Financial (“Richer”).

Issues: Is the appellant’s claim to payment of LTD benefits from the respondent distinguishable from Richer?

Holding: Appeal dismissed.

Reasoning:

No. The LTD policy in this case is different than that in Richer in that it provides that the insurer can subtract from the LTD payment any payment or benefit for which the insured is “eligible” under the Workers’ Compensation Act or similar law. However, the motion judge on the respondent’s summary judgment motion provided detailed reasons for finding “there are no meaningful or relevant distinctions between the Richer case and the situation before me”. The Court of Appeal adopted the motion judge’s reasons and conclusions.

Having concluded the insurer was entitled to an “offset”, the motion judge dismissed the appellant’s claim for benefits during the period November 26, 2012 to August 23, 2014, because the WSIB benefits for which the appellant was eligible exceeded the amount of the benefit that would have been payable under the LTD policy. The motion judge also dismissed the appellant’s claim for the period August 23, 2014 to June 1, 2015. On the record, the motion judge was entitled to infer that the WSIB would have continued to pay the appellant benefits at the “for loss of earnings” level but for his noncompliance with the WT plan. The deduction of “full loss of earnings” benefits results in an LTD benefit of “nil” for this period as well.

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Paul J. Pape, for the appellant

Milton A. Davis and Rob Macdonald, for the respondent

Keywords: Contract Law, Breach of Contract, Banking Law, Commercial Lending, Duty of Good Faith, Thermo King Corp. v. Provincial Bank of Canada (1981), 34 O.R. (2d) 369 (C.A.), Bhasin v. Hrynew, 2014 SCC 71

Facts:

Willowbrook Nurseries Inc. (“Willowbrook”) needed to borrow more money from its banker, Royal Bank of Canada (“RBC”).  RBC began lending to Willowbrook through a line of credit, demand loan, various mortgages, and a corporate credit card in January 2005. To satisfy Willowbrook’s seasonal financing needs, RBC would agree to a temporary accommodation request (“TAR”) that allowed Willowbrook to temporarily exceed its $2.75 million line of credit each winter. However, through the spring and summer of 2008, Willowbrook did not fully repay the $1.25 million worth of TAR that RBC extended in the winter of 2007, despite three extensions of time to do so (“2007 TAR”). Nonetheless, Willowbrook submitted an additional $1.2 million TAR following the completion of its fiscal 2008 financial statements on October 14, 2008 (“2008 TAR”) along with a debt restructuring and separate $500,000 term loan request. Approval of these requests would have meant that RBC would have been lending more than ever before to Willowbrook. Willowbrook was approaching the limits of its agreed upon credit, had no immediate prospect of significant revenue, and faced the expenses of planting for a new season.

On November 26, 2008, a RBC risk manager refused Willowbrook’s 2008 TAR, restructuring request, and term loan request. Instead, the risk manager transferred Willowbrook’s account into Special Loans and Advisory Services (“Special Loans”) on December 5, 2008. RBC outlined its concerns and requirements by letter dated December 8, 2008. It expressed concern about Willowbrook’s working capital, liquidity, and increased inventory levels. RBC noted the outstanding 2007 TAR and Willowbrook’s forecast that it would need $500,000 more to carry it through to April of the following year. RBC said it would continue to provide interim financing to allow Willowbrook to revise its business plan and to address the bank’s concerns.

RBC’s refusal to immediately lend more money meant that Willowbrook could not pay its suppliers on time and had to lay off employees. RBC demanded more financial information from Willowbrook and proposed to increase banking fees and interest charges. It wanted up-to-date appraisals of the real property securing Willowbrook’s debt. It proposed to engage an accounting consultant to review Willowbrook’s financial position, at Willowbrook’s expense. RBC asked for cash flow projections and indicated that “an appropriate temporary overdraft accommodation limit will be established upon our review and acceptance of your cash flow projections.”

Willowbrook scrambled to provide the requested information. Willowbrook’s accountant wrote to RBC requesting that Willowbrook be removed from the special loans program, or in the alternative, a reasonable period of time to seek alternative financing. RBC was not prepared to remove Willowbrook from Special Loans but agreed to Willowbrook’s request for time to find alternative financing and provided 60 days to do so. Ultimately, all of Willowbrook’s debt to RBC was discharged upon refinancing by another bank in April 2009.

Willowbrook brought an action against RBC for breach of its obligation to perform the lending agreement in good faith. Willowbrook argued at trial that RBC’s refusal to lend new money and its decision to subject Willowbrook to Special Loans treatment amounted to a change in the prevailing course of lending conduct and required reasonable notice. It argued at trial that the Special Loans treatment amounted to a de facto demand for payment without notice. Willowbrook’s action was dismissed. Willowbrook appealed.

Issues:

(1) Did the trial judge err in holding that RBC acted in bad faith by refusing to lend new money without notice?

(2) Did the trial judge err in holding that RBC acted in bad faith by moving Willowbrook’s accounts into Special Loans?

(3) Did the trial judge err in holding that RBC exercised its contractual discretionary power in an objectively unreasonable manner and therefore acted in bad faith?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge’s decision about whether RBC acted in bad faith is a question of mixed fact and law. It is owed deference absent an extricable error of law. As the Court of Appeal held in Thermo King Corp. v. Provincial Bank of Canada, a bank has a duty to give a customer reasonable notice of a change in the prevailing course of conduct with respect to overdraft lending. As discussed in Thermo King, a bank’s duty to give reasonable notice of a change to a prevailing course of overdraft lending conduct existed at common law well before the Supreme Court’s decision in Bhasin v Hrynew. There is no question that a prevailing course of lending conduct existed between the parties in this case. The conduct consisted of Willowbrook making a TAR each winter and paying it down the following year before presenting another TAR. It was Willowbrook that sought to change the prevailing course of lending conduct. It had not repaid the 2007 TAR, contrary to previous practice, and wanted an additional 2008 TAR. Willowbrook had exhausted its existing credit and it wanted more.

RBC was not obliged to accede to Willowbrook’s requests, especially since Willowbrook’s requests would have resulted in RBC lending $500,000 more than it had ever lent to Willowbrook before. RBC had little time to assess the request for more money after receiving the recent year-end financial statements. Willowbrook had run out of money by exhausting its credit limit at a time when it would have little revenue and substantial expenses. Bhasin does not require a lender in these circumstances to lend new money.

(2) No. The parties agreed that RBC’s power to move an account into Special Loans was a discretionary power provided for by the lending contract. Willowbrook concedes that RBC did not violate any express term of the lending contracts in doing so. The principle of good faith performance of contractual obligations does not extend so far as to require RBC to subjugate its own financial interests by extending additional credit that it does not want to advance. There is no basis to hold that any other particular aspect of the Special Loans treatment was unreasonable or undertaken in bad faith, or that RBC had to give notice before reacting as it did to Willowbrook’s changed circumstances and request for additional credit.

(3) No. RBC made a choice to refuse to lend Willowbrook more money beyond limits to which each had previously agreed. When Willowbrook suggested that the parties end their banking relationship, RBC gave Willowbrook more time than it asked for to make those arrangements. It is inapt to subject a bank’s decision whether to lend substantial new credit to an existing customer who is at the end of their credit limit to an objective reasonableness analysis. The choice of whether to lend new money is at heart, a subjective business decision to be made by a bank. These decisions may be based on factors unrelated to a particular customer and should not be assessed by a court, after the fact, for objective fiscal prudence. The trial judge identified some reasons why RBC might have decided to exercise its discretion to move Willowbrook’s accounts into Special Loans. He ultimately found that RBC’s decision was neither arbitrary nor capricious and was not in bad faith. There was no palpable or overriding error in these factual findings.

Frohlich v. Ferraro, 2017 ONCA 978

[Hourigan and Brown JJ.A. and Himel J. (ad hoc)]

Counsel:

Edward Oldfield and Christian Ferraro, for the appellants

James Bennett and Christopher Clemmer, for the respondent

Keywords: Property Law, Boundary Dispute, Trespass, Easements, Riparian Rights, Fresh Evidence

Facts:

This appeal concerns a property dispute between two cottage owners. At trial, the court declared that the appellants, John and Diane Ferraro, had entered and trespassed onto the dry land portion of the respondent’s water lot. A permanent injunction was issued restraining the appellants from entering upon any part of the respondent’s property not covered by water. The appellants’ counterclaim for an easement over that land was dismissed.

Issues:

(1) Did the trial judge err in failing to consider the issues of riparian rights and accretion, the high water mark, and the intentions of the original sub-dividers?

(2)Did the trial judge err in failing to provide sufficient reasons?

(3)Did the trial judge err in failing to find on the evidence that an easement had been established?

Holding: Appeal dismissed.

Reasoning:

(1)No. The issues of riparian rights (either the appellants’ or the Crown’s), accretion, the high water mark and the intentions of the original sub-dividers were not argued at trial. The Court declined to grant leave to admit the proposed fresh evidence as it was tendered in support of these new arguments.

(2)No. The court was not satisfied that the trial judge failed to provide sufficient reasons on any relevant issue

(3)No. The court found no error in the trial judge’s analysis and held that he correctly applied the law to the facts he found and ruled against the appellants.

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

A Landry, for the appellants

O Thomas, for the respondents

Keywords: Real Property, Commercial Leasing,  Distraint, Chattels, Trade Fixtures, Abandonment, Torts, Conversion, Damages, Waiver of Tort, Exemplary and Punitive Damages

Facts:

Hydeaway Golf Club, incorporated as 375445 Ontario Limited, and Nicholas Panasiuk Jr. (collectively, the appellant) leased land to Performance Plus Golf Academy and D & D Electric, incorporated as 2105582 Ontario Ltd. and 627496 Ontario Ltd. (collectively, the respondent), in fall 2006 under an oral agreement. The respondent constructed and operated a driving range on the leased land. The respondent fell into arrears of rent and the appellant terminated the lease on December 6, 2007. The respondent sought damages for the appellant’s unlawful distraint and conversion of its trade fixtures and chattels. The trial judge held that all of the claimed assets were trade fixtures and that the appellant was liable to the respondent for compensatory and exemplary damages. On appeal, the appellant argues that the trial judge erred by finding liability for conversion, and in any event, the damage award was excessive.

Issues:

(1) Did the trial judge err by classifying certain assets as trade fixtures or chattels, as opposed to fixtures or leasehold improvements?

(2) Did the trial judge err by holding that the appellant unlawfully distrained the respondent’s trade fixtures or chattels?

(3) Did the trial judge err by failing to consider whether the respondent had abandoned its chattels?

(4) Did the trial judge err by awarding exemplary damages in addition to compensatory damages?

Holding: Appeal allowed in part.

Reasons:

(1) No. This case concerns the fate of fixtures upon termination of a lease. The general rule is that fixtures remain with the land following the end of a tenancy; but not all fixtures fall within this rule. Trade fixtures are assets that are affixed to leased premises by a tenant for trade or commercial purposes. Courts have consistently held that tenants are presumptively allowed to remove trade fixtures at the end of a tenancy so long as the removal does not materially damage the premises: 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308, at para. 31, affirmed (1998), 40 O.R. (3d) 481 (C.A.).

Importantly, as the Court of Appeal held in Bank of Nova Scotia v. Mitz (1979), 106 D.L.R. (3d) 534, at p. 538 (Ont. C.A.), 1979 CarswellOnt 741, at para. 11, there is a distinction in the analysis depending on whether the attempted removal of the disputed asset occurs in the context of a lease versus the sale of real property. In the context of a lease, there appears to be a presumption that a tenant would not have an objective intent to affix an asset on a permanent basis such that it would become part of the real property at the end of the lease: Bank of Nova Scotia, at pp. 538-39. In other words, the object of annexation is presumptively not one of permanence. The determination of whether an asset is a fixture or trade fixture upon termination of a lease is highly fact specific.

In this case, the trial judge applied the three requisite elements of the legal test for a trade fixture: (i) whether the asset is affixed to the ground by the tenant; (ii) whether the asset is used for the purpose of a trade or commerce; and (iii) whether the asset can be removed without material damage to the premises. Only element (iii) was in question at trial. The trial judge found the Structural Assets could be removed without damage to the premises at para. 29 of his reasons. The trial judge was entitled to reject the appellant’s evidence regarding material damage that might result if the Structural Assets were removed. Indeed, there was evidence the appellant removed the barrier poles and nets at a later date without material damage.

Moreover, the appellant’s alternative argument that the Structural Assets were actually leasehold improvements has no merit. The Structural Assets cannot be simultaneously both trade fixtures and leasehold improvements. The test for whether an asset is a leasehold improvement is the same as the test for whether an asset is a fixture: Caledonia Service, at para. 14. There must be a sufficient degree and object of annexation such that the assets become part of the land. In this sense, a true “fixture” is the same as a leasehold improvement in the context of leases.

(2) No. Contemporary Canadian courts have held that s. 41 of the Commercial Tenancies Act (“CTA”) allows a landlord to distrain an overholding tenant’s chattels within six months following the end or determination of a lease. It does not change the common law rule that a landlord cannot distrain tenant chattels, regardless of timing, if the landlord terminates or forfeits the lease. In any event, the appellant cannot rely entirely on s. 41 of the CTA because this case involves trade fixtures. The Court of Appeal made clear that trade fixtures, while they remain affixed to the land, are never subject to the landlord’s remedy of distress in 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1998), 40 O.R. (3d) 481, at pp. 487-88 (C.A.), 1998 CarswellOnt 2937, at paras. 13-15, affirming (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308. Trade fixtures may only be distrained when they have been severed from the land and resume their nature as chattels.

(3) No. Abandonment is a defence to conversion. It occurs when there is a “giving up, a total desertion, and absolute relinquishment” of one’s interest in chattels: Simpson v. Gowers (1981), 121 D.L.R. (3d) 709,  at p. 711 (Ont. C.A.). The party alleging abandonment bears the onus of proving, on a balance of probabilities, an objective intent to abandon the chattels. The determination of whether there is a sufficient intent to abandon is a question of fact governed by factors such as the length of time, nature of the chattels, conduct of the parties, and context of the case: 1083994 Ontario Inc. v. Kotsopoulos, 2012 ONCA 143, at paras. 17-18. Here, the respondent attempted to either negotiate a sale of his assets to the appellant or a time he could retrieve them. The respondent’s lawyer sent letters shortly after the termination of the lease indicating the respondent intended to remove the chattels. The respondent attempted to retrieve the chattels multiple times, each time being thwarted by the appellant. Accordingly, there were no facts to suggest abandonment of chattels or trade fixtures in the instant case.

With respect to the trade fixtures, the appellant argued that a tenant may not remove them after a lease ends and the tenant has given up possession. However, there are exceptions to the appellant’s otherwise correct articulation of the general time limit in which a tenant may remove trade fixtures. One such exception is where a lease is for an uncertain term or where the landlord’s actions create the circumstance that the tenant had insufficient time to remove its trade fixtures. In this case, the appellant terminated the lease with 10 days’ notice in this case. The appellant also prevented the respondent from removing the disputed assets on December 6, 2007 by calling the OPP. Accordingly, the respondent did not abandon its trade fixtures and was entitled to return to the premises to remove them within a reasonable time following the end of the lease and after it vacated the premises.

(4) Yes. Conversion is a strict liability tort. If established, a tortfeasor will be forced to purchase the converted asset from the plaintiff. The general measure of damages is the market value of the converted asset as of the date of conversion: Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al. (1978), [1979] 1 S.C.R. 633, at p. 652. Nevertheless, the general measure of damages for intentional proprietary torts, such as conversion, may be substituted in certain circumstances. One such circumstance is known as “waiver of tort”. Waiver of tort allows a plaintiff to claim disgorgement damages based on the tortfeasor’s gain or benefit, instead of compensatory damages based on the loss suffered. However, a plaintiff cannot claim both.

The trial judge’s reasons do not provide any basis for an award of punitive or disgorgement damages. The trial judge did not find that the conversion was malicious or high-handed in a manner constituting a marked departure from ordinary standards of decent behaviour. Rather, the record shows that the appellant had an honest belief that the Structural Assets did in fact become part of the land and should have remained with the land. The trial judge should not have awarded the additional $80,000 in “exemplary” damages, and that portion of the judgment was set aside.

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

[Juriansz J.A. (In Chambers)]

Counsel:

Richard H. Shekter, for the moving parties

John Patton, for the responding parties

Erin Dann, for the Special Referee

Keywords: Civil Procedure, Appeals, Jurisdiction, Criminal Law, Search Warrants, Solicitor-client privilege, Litigation privilege, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 (1) (b)

Facts:

The motion is characterized as a motion for directions. The moving parties seek “an Order for directions with respect to the proper route of appeal in this matter”. The moving parties filed their notice of appeal on October 25, 2017. Thereafter, a question arose as to whether the court had jurisdiction to hear the appeal. The appeal is from the decision of a judge of the Superior Court of Justice ruling on issues of solicitor-client privilege and litigation privilege over a variety of documents and audio files seized by the Ontario Provincial Police during the execution of Criminal Code search warrants. The moving parties’ factum sets out a detailed argument as to why the Court of Appeal has jurisdiction over what they submit is an appeal from the decision of a single judge of the Superior Court in a civil matter. The factum concludes “…that the Court of Appeal has the jurisdiction to hear the appeal of this matter pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.”

However, the opposing view is that the proceeding before the Superior Court judge was criminal in nature. If that is the case there would be no statutory appeal to the Court of Appeal. The only appeal route available to the moving parties would appear to be pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, with leave.

Issues:

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

Holding: Motion adjourned.

Reasoning:

(1)  Questions of whether an appeal lies within the jurisdiction of the Court of Appeal must be decided by a three-judge panel of the court. The statutory and rules-based framework that defines the court’s jurisdiction, along with the court’s own practice directions, indicates that a single judge has no power to decide whether an appeal is within the jurisdiction of this court (citing RREF II BHB IV Portofino, LLC v. Portofino Corp., 2015 ONCA 906, at para. 6). The motion was adjourned to be heard by a panel.

Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992

[Hourigan and Brown JJ.A. and Himel J.]

Keywords: Aboriginal Law, Property Law, Exemption from Seizure, Indian Act R.S.C., 1985, c. I-5, s. 89(1), Repair and Storage Liens Act, R.S.O. 1990, C. R.25

Facts:

Vehicles owned by Ontario residents and insured by the respondent were involved in accidents or stolen. After the accidents or thefts, ownership transferred to the respondent. The vehicles were towed and stored by the appellants, who are towing companies owned by members of the Six Nations of Grand River Indian Reserve, Brant County. All of the businesses are located within the boundaries of Six Nations. Most of the vehicles were towed and stored at the request of Six Nations police.

There was a dispute among the parties regarding towing and storage fees. The respondent brought applications under the Repair and Storage Liens Act (RSLA) in Small Claims Court to permit it to retrieve the vehicles in exchange for payment of money into court to the credit of any actions by the appellants for their fees. The appellants refused to release the vehicles. They brought an application seeking declaratory relief to the effect that ss. 23 and 24 of the RSLA are not available to the respondent. They argued that they acquired a property interest in the vehicles and, pursuant to s. 89(1) of the Indian Act, the vehicles are exempt from execution or seizure.

The application judge held that the RSLA is a provincial law of general application, and dismissed the appellants’ application for exemption. He ordered the appellants to immediately release the vehicles to the respondent.

Issue: Does s. 89(1) of the Indian Act prevent the respondent from exercising its rights under the RSLA?

Holding: Appeal dismissed.

Reasoning: No. Section 89(1) of the Indian Act reads as follows:

89(1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

The Court of Appeal determined that s. 89(1) of the Indian Act only protects against seizure from creditors or the Crown. In Mohawk Council of Akwesane v. Toews, the Federal Court notes that the purpose of the exemptions in s. 89 was to protect the entitlements of Indians to their reserve land and to ensure it was not eroded by the government’s ability to tax or creditors to seize. In this case, the respondent is a debtor not a creditor. Therefore, the exemption does not apply.

Sweetnam v. Williamson Estate, 2017 ONCA 991

[Hourigan, Brown JJ.A. and Himel J. (ad hoc)]

Counsel

Cherniak, I. Hull and D. So, for the appellant, Dianne Lesage
S. Graham, for the respondent/cross-appellant, Terry Dooley
B. Donovan and G. Sidlofsky, for the respondent, Star Sweetnam

Keywords: Wills & Estates, Testamentary Capacity, Costs

Facts:

Following a seizure on July 20, 2010, the deceased was diagnosed with brain cancer. He made two wills on separate dates leaving different portions of his estate to different persons under each. The trial judge heard evidence of a number of witnesses and found that the testator lacked testamentary capacity at the time he made these two wills.

Issues:

(1) Did the trial judge err in holding that the testator lacked testamentary capacity?

(2) Should leave be granted to the estate trustee to appeal the award of costs?

Holding: Appeal dismissed. Motion for leave to appeal costs dismissed.

Reasoning:

(1) No. The trial judge applied the test for testamentary capacity as outlined in the leading jurisprudence. He concluded that the testator was not aware of the nature and extent of his assets at the time he made the wills, did not remember the person he might be expected to benefit under his will and did not understand the nature of the claims that may be made by persons he was excluding. He found that the dispositions were affected by delusions. He articulated those delusions in his reasons. There were no palpable errors of fact. The inferences drawn were reasonably supported by evidence. There was no error in the analysis or application of the law by the court below.

(2) No. In estate matters, a court may order an estate trustee to pay costs personally if the estate trustee has acted unreasonably or in substance for his or her own benefit rather than the benefit of the estate. The trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider settlement offers that were less than the results obtained. They also took unreasonable positions, such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There was no reason to interfere with the exercise of discretion of the trial judge regarding costs.

Short Civil Decisions

McGregor v. Peel Children’s Aid Society, 2017 ONCA 976

[Strathy C.J.O., Juriansz and Huscroft JJ.A]

Counsel:

M Tubie, for the appellant

F Fischer, for the respondents Robertson House, Christine Steele and Tracy Severiano
Keywords: Civil Procedure, Settlements, Enforcement

El-Khodr v. Lackie, 2017 ONCA 984

[Doherty, MacFarland and Rouleau JJ.A]

Counsel:

B A Percival and  J W Gibson, for the appellants

J Y Obagi and E A Quigley, for the respondent
Keywords: Torts, MVA, Collateral Benefits, Costs, Partial Indemnity

Calvise v. Tripemco Burlington Insurance Group Limited, 2017 ONCA 989

[Hourigan, Brown JJ.A., and Himel J. (ad hoc)]

Counsel:

R D Gregoria, for the appellant

S Gleave and S Sells, for the respondent
Keywords: Contracts, Restrictive Covenants, Non-Solicitation, Non-Interference, Summary Judgment

Toronto-Dominion Bank v. Tang, 2017 ONCA 990

[Simmons, Lauwers and Pardu JJ.A.]

Counsel:

No one appearing for the appellants

J Kukla, for the respondent

H Du, for Aping Co. Ltd
Keywords: Appeal book Endorsement

United Kingdom v. Elabd, 2017 ONCA 983

[Feldman, Fairburn and Nordheimer JJ.A]

Counsel:

L Ramchandran, for the applicant

H Graham, for the respondent
Keywords: Appeal book Endorsement

Criminal Decisions

 R v. Butters, 2017 ONCA 973

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

Counsel:

J Shanmuganathan and E Dann, for the appellant

I Bell, for the respondent
Keywords: Criminal Law, Possession, Crack Cocaine, Sentencing, Immigration, R. v. Pham, 2013 SCC 15

R v. Jagga, 2017 ONCA 977

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

Counsel:

G Zaman, for the appellant

A Jagga, as self-represented
Keywords: Criminal Law, Weapons Prohibition Order

R v. W.V., 2017 ONCA 979

[Pepall, Lauwers and Pardu JJ.A]

Counsel:

M J Venturi, for the appellant

N Dennison, for the respondent
Keywords: Publication Ban, Criminal Law, Sexual Interference, Evidence, Credibility

R v. McCartney, 2017 ONCA 981

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

Counsel:

M Halfyard and B Vandebeek, for the appellant

M Bernstein, for the respondent
Keywords: Criminal Law, Second Degree Murder, Aggravated Assault, Self-Defence, Closing Address, Jury Trials, Misleading the Jury, Jury Instructions

R v. Adam, 2017 ONCA 988

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

Counsel:

M Dineen, for the applicant

R Young, for the respondent
Keywords: Criminal Law, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, Morin Analysis, Fraud

R v. Bentley, 2017 ONCA 982

[Feldman, Tulloch and Benotto JJ.A]

Counsel:

K Wilson, for the appellant

J Belton, for the respondent
Keywords: Criminal Law, Controlled Drug and Substances Act, S.C. 1996, c. 19, Marihuana Production, Sentencing, Mandatory Minimum

R v. R.O., 2017 ONCA 987 (Publication Ban)

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

Counsel:

R Diniz, for the appellant

C Harper, for the respondent

Keywords: Criminal Law, Criminal Harassment, Sentencing, Reasonable Apprehension of Bias

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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ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 4 – DECEMBER 8, 2017)

Good afternoon/evening.
 
Before we get to this week’s summaries of the civil decisions of the Court of Appeal for Ontario, I would like to invite all of our readers to attend the CLE that my partner, Lea Nebel and I will be chairing featuring the top Court of Appeal decisions of the year. The CLE  has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street on January 11, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda and further details here.
 
There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion. The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the “appropriate means” analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for one of the parties on that matter, Allan Sternberg and Daniella Murynka, will be our panelists. The law in this area is continuing to evolve, with another decision released this week (discussed below) that moves the needle even further in the direction of extending the limitation period. The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs’ personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society’s efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. We hope you can join us.
 
And now, onto this week’s summaries. In a 2-1 decision in Winmill v. Woodstock (Police Services Board), the court further extended the “appropriate means” aspect of discoverability under the Limitations Act, 2002. The court determined that the two-year limitation period for a claim for the tort of battery against the police was not discoverable until the plaintiff was acquitted of a criminal charge of assault against the officer. In setting aside the lower court’s summary judgment dismissing the claim as out of time, the court reasoned that until the criminal proceeding determined whether the plaintiff had been guilty of assaulting the officer, it was not yet clear that commencing a civil claim against the officer for battery was the legally “appropriate means” for addressing the wrong. This adds to a growing body of case law in which the court has been signalling to the bar that parties should not be too quick to commence claims when there are other proceedings underway that could determine or at least greatly impact a civil proceeding. The problem, however, is that “appropriate means” is an evolving but still ambiguous concept that is open to interpretation. This is evident from the fact that Justice Huscroft dissented and would have dismissed the appeal.
 
In Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), the chambers motion judge applied the recent decision of the court in Yaiguage v. Chevron Corp. to deny security for costs in a case that probably would have resulted in security for costs before Yaiguage was released. The Chinese Publications decision was not public interest litigation and the merits of the appeal were weak. However, the court found that the City had sought security for costs in order to bring an end the case. The difficulty with relying on that ground to deny security for costs is that the possibility of ending the case is always a reason to bring such a motion. The law of security for costs continues to shift in favour of plaintiffs/appellants. I think what the court is signalling with both this decision and the Winmill decision is that the paramount consideration will always be an adjudication of the case on the merits when that is reasonably possible.
 
Other topics covered this week included the calculation of damages for the breach of an APS for a commercial property, child abduction, a  boundary dispute, more limitation period decisions, a jury verdict in the MVA context, employment law and motions to extend the  time to appeal.
 
John Polyzogopoulos
Blaney McMurtry LLP
Tel: 416 593 2953

 

Table of Contents:

Civil Cases:

Paschel v. Paschel, 2017 ONCA 972

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Weaver v. Anderson, 2017 ONCA 964

Keywords: Real Property, Boundary Dispute

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

Keywords: Employment Law, Wrongful Dismissal

Drakoulakos v. Stirpe, 2017 ONCA 957

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Maracle III v. Miracle, 2017 ONCA 950

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Su v. Lam, 2017 ONCA 952

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Thomson v. Durham (Police Services Board), 2017 ONCA 958

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Samra v. 7544405 Canada Inc., 2017 ONCA 953

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Li v. Li, 2017 ONCA 942

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Criminal & Ontario Board Decisions and Short Endorsements

Civil Decisions:

Paschel v. Paschel, 2017 ONCA 972

[Pardu J.A. (In Chambers)]

Counsel:

Farrah Hudani, for the moving party

Sheila Gibb, for the responding party

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Facts:

The moving party, Brittany Justine Paschel, is the mother of Cayvan Bain Paschel and Kazhem Hain Paschel (both children are under the age of two). The responding party is their father. The mother moves for a stay pending appeal of Trimble J.’s Order requiring the return of these two children to their habitual residence in Tennessee, U.S.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89 (entered into force December 1, 1983).

On July 31, 2017, the mother took the two children from their home in Tennessee to her mother’s home in Mississauga, Ontario without the father’s knowledge or consent. The father commenced an application, which was heard on October 30, 2017, for the return of the children. The mother opposed the father’s application. She said they lived a nomadic lifestyle in the United States and that the children had no habitual residence. She also said that the return of the children to the place of habitual residence would expose the children to a grave risk of physical or psychological harm, or otherwise place the children in an intolerable situation within the terms of Article 13(b) of the Hague Convention. The mother asked for a trial, however, the application judge concluded that he could decide the issues on the basis of the written record, which was substantial. The application judge concluded that the children’s habitual residence was in Tennessee, and that ordering the return of the children to Tennessee would not expose the children to a risk of harm of the nature contemplated by the Hague Convention.

Both parents have counsel in Tennessee. Moreover, there is a custody hearing, with oral evidence, set for January 23, 2018 in Tennessee. What makes this case different is the fact that the mother cannot return to the United States. When she came back into Canada with her children, she told American immigration authorities that she had been illegally living in the United States. As a result, she is now subject to a 20-year prohibition against entering the United States. To make matters more complicated, the father has a dated criminal record that bars him from entering Canada.

Issues:

(1) Should the court grant the mother’s motion for a stay pending appeal of Trimble J.’s Order requiring the return of the children to Tennessee?

Holding: Motion dismissed.

Reasoning:

(1)  No. Based on the evidence before him, the application judge’s conclusion that the children were habitually resident in Tennessee was reasonable and amply supported by the record. The application judge’s decision to decide this case on the basis of the written record, the 19 affidavits filed before him, rather than to direct a trial of the issues was a discretionary decision that is entitled to deference. While a trial of some issues may be necessary in some cases, some form of summary procedure is the norm, as this court pointed out in Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.):

The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure.

The trial judge analyzed the conflicting affidavits. He was not satisfied that the mother had satisfied her burden of proving that return of the children would subject them to grave harm. There is no reason to believe that the Tennessee courts will not make a custody decision on the basis of the best interests of the children, including terms about the location of their residence. A trial on the merits, in January 2018, in the country where the children are habitually resident, as opposed to prolonged jurisdictional wrangling, is in the best interests of the children. There is no reason to believe that the mother will not be able to fully participate in the trial by giving her evidence by video transmission if necessary. In making a decision about the best interests of the children, custody, access and the place of residence of the children, the court was confident the Tennessee court will endeavor to get as full an account as possible from both parents.

The mother should not be allowed to frustrate the goals of the Hague Convention by unilaterally attempting to create a new status quo outside the country of the children’s habitual residence. The court is not persuaded that the interests of justice require a stay of the order requiring the return of the children to their habitual residence jurisdiction.

Weaver v. Anderson, 2017 ONCA 964

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel J. Wyjad, for the appellants
Andrew Mae, for the respondent

Keywords: Real Property, Boundary Dispute

Facts:

The appellants, Karen and William Weaver, assert that the application judge made palpable and overriding errors in establishing the boundary line between their property and the respondent’s, Gordon Anderson.

Issues:

(1) Did the application judge misinterpret the field notes of an earlier surveyor, White?

(2) Did the application judge fail to give proper consideration to White’s plan of the property, which identified the lot line in a location other than the fence?

(3) Did the application judge fail to apply proper legal principles in establishing the boundary?

Holding:  Appeal dismissed.

Reasoning:

(1) No. As the application judge observed, the surveyor’s notes were “cryptic”, but they were open to the interpretation the judge gave them – that a former owner of the respondent’s lot had identified the fence as the boundary between the appellants’ property and the respondent’s. The court saw no error in the application judge’s interpretation of the surveyor’s field notes.

(2) No.  The application judge found, on the basis of the evidence before him, that White erred in not using the fence line and that the fence line was the best evidence of the boundary. The court held that these findings of fact were open to the trial judge on the basis of the evidence that he accepted.

(3) No. The court held that there was both an evidentiary basis and a legal basis for the application judge’s acceptance of the fence line as the more reliable evidence of the boundary compared to White’s boundary line.

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

[van Rensburg J.A. (In Chambers)]

Counsel:

Qiang Li Cao, in person for the appellant
D Boghosian and M Fish, for the respondents

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

Facts:

There were two motions before the court – a motion by the appellant (“CPCL”) for an order setting aside the Registrar’s order dismissing its appeal for delay, and a motion by the respondents (the “City”) for security for costs. At the hearing of the motions, the City consented to the order setting aside the Registrar’s dismissal, which was irregular, but sought an order requiring the appellant to provide security for costs as a term of the order setting aside the dismissal.

The appellant’s action arose from the termination of a contract for the supply of Chinese-language materials to the Markham Public Library. The appellant was the successful bidder and entered into a contract with the City. It commenced an action alleging that the City improperly terminated the contract and sought specific performance of the contract and damages. The City defended and asserted a counterclaim.

The action was dismissed by Kristjanson J. on a summary judgment motion. She awarded costs of $50,000 to the City for the motion and action. The counterclaim was withdrawn during the course of the hearing of the summary judgment motion. CPCL appeals the dismissal of its action and the costs award. Pursuant to Rules 61.01(a) and 56.01(d), the City seeks security for costs in the amount of costs already awarded in its favour ($50,000) as well as $20,000 in security for costs of the appeal, arguing that the appeal is frivolous and vexatious and that the appellant is a corporation without sufficient assets in Ontario to pay the costs of the appeal.

Issues:

(1) Is the appeal frivolous and vexatious, thereby warranting security for costs under Rule 61.06(1)(a)?

(2) Should security for costs be awarded on the basis that the appellant is a corporation without assets in Ontario sufficient to pay costs, pursuant to Rule 56.01(d)?

Holding: Motion dismissed.

Reasons:

(1) No. To find that an appeal is “frivolous and vexatious” there must be something that supports the conclusion that the appeal is “vexatious” in the sense that it is taken to annoy or embarrass the respondent or has been conducted in a vexatious manner: York University v. Markicevic, 2017 ONCA 651 (in chambers), at paras. 19, 32 and 36. Mr. Cao of the CPCL has been pursuing the appeal with diligence and in the sincere belief that there was no justification for the termination of the contract. While he may be adopting other methods that are harassing to the City to achieve his overall objective, this conduct alone does not make his appeal vexatious. The City does not meet the test for security for costs under r. 61.06(1)(a).

(2) No. The City underemphasizes the impact of the panel’s decision in Yaiguage v. Chevron Corp., 2017 ONCA 741. It clearly signals that, while factors such as impecuniosity and merit continue to be relevant in determining whether security for the costs of an appeal should be granted, each case turns on its own facts, guided by the overriding interests of justice. With regards to impecuniosity, evidence indicates that Mr. Cao’s sole source of income was the contract that was terminated, and that he has ongoing financial problems. Although he is the registered co-owner of a house with his son, his interest is 30% and the house is heavily mortgaged. Moreover, there is no evidence that Beijing Publications and Distributions Group (“BPDG”) is a related company, or that it could be expected to fund the appeal. Mr. Cao provided evidence of CPCL’s impecuniosity as well as his own. CPCL (with the City’s consent) has been represented by Mr. Cao, and not by legal counsel, so there is no necessary inference that someone is funding the litigation. The City did not cross-examine Mr. Cao on his finances or the ability of CPCL to raise money. It is unreasonable to suggest, as the City does here, that Mr. Cao was obliged to provide evidence that no friend or family member could lend him money to fund an order for security for costs in CPCL’s appeal.

With regards to the merits of the appeal, the appeal appears to have little chance of success. However, the Court was satisfied that the order for security for costs sought by the City, even if its costs in the Superior Court were not included, would effectively bring an end to the appeal and that this, as well as the attempt to recover the costs already awarded in its favour, is the City’s motivation in seeking the order.

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

Michael A. Katzman and Jessica R. Hewlett, for the appellants
Geoffrey D.E. Adair, Q.C., and Gordon McGuire, for the respondent

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Facts:

The appellants appeal from the judgment granted in favour of the respondent, DHMK Properties Inc., following a motion for summary judgment on the issue of damages. Effective January 30, 2013, the appellant, Mund Real Estate Group Inc., entered into an agreement of purchase and sale with DHMK to purchase DHMK’s commercial property for the amount of $5,300,000. The agreement provided for the following warranty in paragraph 2:

“The Vendor warrants that the reports of revenue and operating expenses to be given to the purchaser are true and correct in all respects, and the property will have a net cash flow prior to debt service (“the Net Income”) of not less than $441,925.00”.

The agreement also permitted Mund to conduct due diligence inquiries and to terminate the agreement by the “Notice Date”, which the parties subsequently agreed was June 13, 2013. The transaction was scheduled to close at the end of June 2013.

Mund did not terminate the agreement before the notice date. Instead, Mund took the position that it would only close the transaction with a substantial abatement of the purchase price, alleging that the net income from the property was materially less than the amount warranted in the agreement. DHMK did not agree to close the transaction on this basis. Mund brought an application for specific performance of the agreement with an abatement of the purchase price. In response, DHMK instigated an application for damages incurred as a result of the failed transaction. The applications were heard by Justice Brian O’Marra, who found that Mund had breached the agreement of purchase and sale by failing to close without the abatement of the purchase price. He found that Mund had the option of either terminating the agreement by the notice date or closing and suing on the warranty. He ordered the forfeiture to DHMK of Mund’s $100,000 deposit, costs, and an assessment of the issue of DHMK’s damages from the failed transaction.

The appellants abandoned their appeal from O’Marra J.’s judgment in August 2014. The assessment of damages was heard by the motion judge. He found that the damages were the difference between the agreed upon price of the contract ($5.3 million) and market value of the land in August 2014 ($4.27 million). He did not discount the $5.3 million for the vendor’s potential liability under the warranty. Nor did he explain why he chose August 2014 – the date the appeal from O’Marra J. was abandoned – as opposed to the date of closing.

Issues:

(1) Did the motion judge err in failing to take into account the effect of DHMK’s warranty of the net income from the property when calculating DHMK’s loss of bargain from the failed transaction?

(2) Did the motion judge err in choosing August 2014 as the date for the valuation of the property for the purpose of calculating DHMK’s loss of bargain?

Holding: Appeal allowed.

Reasoning:

(1)  Yes. It is common ground that in assessing DHMK’s damages arising from Mund’s breach of the agreement of purchase and sale, DHMK is entitled to be put, as far as damages permit, into the same economic position that it would have occupied had the transaction closed, subject to DHMK’s duty to mitigate its damages: Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, at para. 26.  Although correctly referencing this principle at para. 47 of his reasons, the motion judge erred in failing to apply it. Specifically, the motion judge erred by finding that because Mund breached the agreement, Mund’s potential claim for damages for DHMK’s breach of warranty need not be considered. Notwithstanding Mund’s repudiation of the agreement, DHMK’s prospective warranty obligations as embodied in the agreement are relevant, and are to be taken into account in the assessment of damages: Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440, at p. 455. As O’Marra J. stated, Mund had the option of closing the transaction and suing for breach of DHMK’s warranty concerning the net income from the property. It is not seriously contested that had the transaction closed, Mund would have sued for breach of the warranty. The motion judge should have taken this factor into account in his assessment of DHMK’s damages.

(2) Yes. The motion judge erred by selecting August 2014 as the date for assessing the value of the property for the purpose of calculating DHMK’s loss of bargain without providing any analysis or reasons on this issue. The absence of reasons precludes meaningful appellate review. The choice of the August 2014 date departs from the general principle noted by the motion judge at para. 50 of his reasons that “the proper date for taking the market value should be the time fixed for closing”. Although there is judicial discretion to select another date than the closing date, the difficulty here is that the basis for the motion judge’s exercise of that discretion is not explained and the difference in the market valuation dates materially affects the assessment of DHMK’s damages. The difference in dates amounts to a substantial variance in damages of some $230,000: the June 2013 appraised value of the property as at the date of closing is $4,500,000; whereas the appraised value of the property, over a year later, in August 2014 is $4,270,000.

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

[Laskin, Feldman and Juriansz JJ.A.]

Counsel:

K Arvai, for the appellant
C Paliare and T Lie, for the respondent

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Facts:

The Appellant, Montepeque, was involved in a car accident as a result of another driver, who was never identified. She suffered injuries to her neck, shoulders, back and right knee. As the other driver was never identified, Montepeque claimed under s. 5 of the Ontario Automobile Policy and OPCF 44R Family Protection Coverage. She sued her own car insurer, the respondent, State Farm, for damages under the unidentified motorist coverage in her car insurance policy. The action was tried before a jury. The first question that the jury was asked to answer was the central question on the issue of liability. This question read: “Did the negligence of an unidentified driver cause or contribute to the accident that occurred on November 23, 2008?” The jury answered “no”. Montepeque’s action was therefore dismissed. The jury had, however, answered “yes” to question 9, which asked whether Montepeque’s evidence of the “involvement” of an unidentified automobile was corroborated. Montepeque appealed claiming that the answers to these questions were inconsistent, the trial judge erred in her charge to the jury, and that the conduct of State Farm’s counsel at trial was inappropriate.

Issues:

  • Should the verdict be set aside because the jury’s answers to questions 1 and 9 were inconsistent?
  • Did the trial judge err in her charge to the jury on the grounds that:
  • It did not properly charge the jury on the standard of care in an emergency situation;
  • It did not properly charge the jury on the burden of proof; and
  • It was unbalanced and unfair.
  • Did the conduct of counsel for State Farm during the trial warrant the Court of Appeal’s intervention?

Holding: Appeal dismissed

Reasoning:

  • Under s. 5.2.1 of the Ontario Automobile Policy, an insured claimant has “a legal right to recover as damages from the owner or driver of an uninsured automobile” an amount ”up to the limits in this Section.” Section 5.7.1.1 limits coverage to “the minimum limits for automobile liability insurance in the jurisdiction in which the accident happens”, which in Ontario is $200,000. Section 3 of OPCF 44R provides an insured claimant with excess coverage for an amount over $200,000, up to the amount that the claimant is legally entitled to recover from a driver or owner of an “unidentified automobile”. In order to receive the excess coverage amount from one’s insurer, the claimant must meet an additional evidentiary requirement. The claimant’s “own evidence of the involvement” of the unidentified automobile “must be corroborated by other material evidence”. OPCF 44R defines “other material evidence” to mean either “independent witness evidence” or “physical evidence indicating the involvement of an unidentified automobile”.  At trial, Montepeque claimed an amount against State Farm that was available to her only through her excess coverage policy under OPCF 44R. Question 9 was not originally included in the jury charge. In a post-charge conference with the trial judge, Montepeque’s counsel asked for a new question, which addressed the additional evidentiary requirement of OPCF 44R, to be added to the list of questions for the jury to answer. The Jury answered yes to this question.

In a civil case, an appellate court has a very limited right to set aside the verdict of a jury for unreasonableness. Where the trial judge’s charge is fair and accurate, and correctly states the applicable law, the jury’s verdict will be set aside only where it is so unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. By its answer to question 9 the jury must have rejected State Farm’s contention that there was no unidentified car, and instead concluded that an unidentified car was there and was “involved” in the incident. But by its answer to question 1, the jury must have disbelieved Montepeque’s evidence that the unidentified car crossed the centre line, and thus concluded that the car’s driver was not negligent. Those two conclusions are not inconsistent; they are reconcilable. Questions 1 and 9 address different issues. Question 1 asks whether Montepeque proved on a balance of probabilities that the driver of the unidentified car caused the accident by crossing the center line. Question 9 does not deal with Montepeque’s onus of proof or with causation. It simply asks whether there was corroboration for Montepeque’s evidence of the “involvement” of an unidentified car. Thus this ground of appeal was dismissed.

  • The trial judge gave counsel a draft of her charge and invited comments on it before she gave it to the jury. Of the three concerns about the charge now raised on appeal, Montepeque’s trial counsel raised only the first concern with the trial judge, and seemed satisfied with the way the trial judge resolved his concern. In a civil case, the failure to object at trial is usually fatal on appeal because it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted. An appellate court can still give effect to an objection to an aspect of a trial judge’s jury charge raised for the first time on appeal, but only if not giving effect to the objection would cause a miscarriage of justice. Further, as per Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), “[t]he trial judge’s charge did not need to be perfect. Absent an error that amounts to a substantial wrong or a miscarriage of justice, or circumstances where the interests of justice otherwise so require, a new trial will not be ordered.”
  • With respect to the standard of care Montepeque submits that, because she was facing an emergency situation when she saw the oncoming unidentified car, the trial judge should have instructed the jury that Montepeque could not be expected to act as she might in calmer circumstances. The Trial Judge’s draft charge read “[A driver] must take proper precautions to guard against risks, which might reasonably be anticipated to arise from time to time as she proceeds on her way.” Montepeque’s counsel specifically objected to the phrase “from time to time”, as to him it did not capture the emergency nature of the situation facing his client. The Trial Judge then removed that phrase, as requested. The Court of Appeal saw no error in the charge, it captured Montepeque’s duty in an emergency situation by stressing that she was not held to a standard of perfection, and was only obliged to guard against risks that she might reasonably anticipate would arise.
  • By crossing the center line of a road, a driver breaches s. 148(1) of Highway Traffic Act. A driver who breaches s. 148(1) is prima facie negligent and bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care. The trial judge charged the jury that Montepeque had the burden of establishing on a balance of probabilities that the negligence of the driver of the unidentified car caused her injuries. However, he trial judge did not expressly charge the jury on the shifting onus applicable to a driver who has breached the Highway Traffic Act. It would have been preferable for the trial judge to have expressly charged the jury on the shifting burden of proof. But that instruction was not asked for at trial and the trial judge’s actual instruction conveyed the essence of the parties’ positions. Therefore this ground of appeal was dismissed.
  • Montepeque submited that the trial judge’s charge did not review the evidence and positions of the parties in a fair and balanced way. The Court of Appeal disagreed. Moreover, counsel for Montepeque had the opportunity both before and after the charge was given to comment on the summary of the evidence on liability. He had one minor objection to the trial judge’s failure to include a piece of evidence. He did not suggest that the summary was unfair or unbalanced. Therefore this ground of appeal was dismissed as well.
  • Montepeque argued that the conduct of State Farm’s counsel at trial was inappropriate. Combined with the jury’s findings, Montepeque argues that counsel’s conduct created an appearance of unfairness warranting appellate intervention. The Court of Appeal did not accept this argument. Montepeque’s allegations are based on (1) humorous remarks to the jury at the elevator lobby; (2) humorous remarks during the cross-examination of Montepeque’s witness; and (3) misrepresentations witnesses made in the presence of the jury. With respect to ground (1) the issue was brought up at trial and, as a result, the trial judge added to her charge to the jury a specific direction that the jury decide the case solely on the evidence, not on the conduct of the lawyers, this was adequate and resolves ground (2) as well. With respect to the third ground, while the statements should have been made in the absence of the jury, the trial judge found that the statements did not in any way prejudice Montepeque. The Court of Appeal agreed. Accordingly, this ground of appeal was also dismissed.

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

Kevin A. Egan, for the appellant
David S. Thompson, for the respondent

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Facts:
The appellant, Robert Winmill, appeals from the decision of Mitchell J. of the Superior Court of Justice dismissing, on a motion, the appellant’s claim for battery against the respondents and various police officers as statute barred by virtue of s.4 of the Limitations Act, 2002 (“LA”). The central issue is when the appellant discovered his potential claim in battery against the respondents. Resolution of this issue focused on the interpretation of s. 5(1)(a)(iv) of the LA, and in particular on when the appellant knew that a legal proceeding would be “an appropriate means to seek to remedy” the alleged battery against him.

There was an altercation at the appellant’s home between the appellant and one of his sons. The appellant’s wife called the police. According to the appellant’s Statement of Claim, several officers from the Woodstock Police Service arrived at his home. According to the appellant, Constables Dopf and Campbell entered the home and confronted him in the living room. Constable Dopf initiated unnecessary and aggressive physical contact with him. Constable Campbell joined in. The two constables forced the appellant to the ground and struck the appellant in the back and head with knee strikes and punches. In the process, the constables handcuffed the appellant in such an aggressive manner that he suffered cuts and bruises to his arms. The appellant was taken to the police station. He was charged with assaulting Constable Dopf and resisting arrest. He was not charged with any offence relating to the altercation with his son. On February 17, 2016, the appellant was acquitted of both charges by Graham J. of the Ontario Court of Justice.

On June 2, 2016, the appellant filed a Notice of Action against the respondents, signalling that he would be seeking damages for negligent investigation and assault. This occurred two years and one day after the alleged battery had taken place.

On June 22, 2016, the appellant filed a Statement of Claim sounding in the tort of battery, abuse of authority as police officers, and negligence in the discharge of police duties. On September 16, 2016, the respondents filed a Notice of Motion seeking to dismiss the action because the relevant limitation period had expired. On February 24, 2017, Gorman J. of the Superior Court of Justice made a consent order permitting the appellant to make factual allegations to support a claim for negligent investigation. On March 24, 2017, the respondents filed an Amended Notice of Motion seeking an order that “[t]he limitation period for the Plaintiff’s claim for damages arising from assault or battery has expired”. The respondents did not say that the appellant’s claim grounded in negligent investigation was statute-barred.

The respondents’ motion was argued on April 3, 2017. The appellant resisted a limitation period expiration date of June 1, 2016 (two years after the alleged battery) on three bases – discoverability; inability to commence an action because he was in custody and/or the courthouse was closed on June 1, 2016; and incapacity to commence a proceeding because of a physical, mental or psychological condition. The motion judge rejected the appellant’s arguments and granted the defendant’s motion, finding that the claim for battery was barred by the limitation period. The limitation period for the tort of negligent investigation began to run on February 17, 2016 (the date Mr. Winmill was found not guilty) and, therefore, the plaintiff’s claim for negligent investigation was unaffected and could continue. The appellant appeals from the motion judge’s decision.

Issues:

(1) Did the motion judge err by concluding that the appellant’s claim in battery against the respondents was not made inside the two-year limitation period prescribed by s. 4 of the LA?

Holding: Appeal allowed, Huscroft  J.A. dissenting.

Reasoning (per MacPherson J.A., writing for the majority):

(1) Yes. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts. The appeal turned on s. 5(1)(a) of the LA, which states that a claim is discovered on the earlier of the day on which the person with the claim first knew (i) that the injury, loss or damage had occurred; (ii) that the injury, loss or damage was caused by or contributed to by an act or omission; (iii) that the act or omission was that of the person against whom the claim is made, and; (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. The crucial issue was the fourth factor, which is whether the appellant knew on June 1, 2016, that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him. The motion judge answered this question in the affirmative.

The word “appropriate” means “legally appropriate”. Further, determining whether a limitation period applies does not simply consist of comparing the date of injury and date of initiation of legal proceeding and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. Additionally, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim.

With respect to the motion judge’s conclusion that the appellant’s battery claim was outside (by one day) the two-year limitation period prescribed by s. 4 of the LA, the motion judge erred for three reasons. First, the appellant’s negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. The appellant’s Amended Statement of Claim shows how inextricably intertwined the two alleged torts are.

Second, given the specific factual setting of this case, and bearing in mind the circumstances of the person with the claim, it made sense for the appellant to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The court determined, relying on Brown v. Baum, that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents. Third, and overlapping with the second reason, Chimienti v. Windsor (City) suggests that the appellant was justified in waiting for the verdict in his criminal trial before commencing a civil claim against the respondents. For these reasons, the discoverability date for the appellant’s battery claim was the same as the discoverability date for his negligent investigation claim.

The appeal was allowed, the order of the motion judge was set aside, and the appellant’s battery claim against the respondents was permitted to proceed to trial.

Reasoning (per Huscroft  J.A., writing in dissent):

On June 1, 2014, the appellant knew that he had suffered an injury, knew how the injury was caused, knew who he alleged had caused his injury, and knew that a legal proceeding would be an appropriate means to seek redress. He failed to bring his claim by June 1, 2016, and his claim is now barred by operation of the LA. In Markel Insurance Company of Canada v. ING Insurance Company, Sharpe J.A. explained that “appropriate” under s. 5(1)(a)(iv) of the Act must mean “legally appropriate”, and, at para. 34, admonished against giving the term a broad meaning.

The cases relied upon by the majority are distinguishable. An action in Brown v. Baum was not “appropriate” at the time of the injury because the defendant surgeon was providing further treatment in an attempt to rectify the harm he was alleged to have caused in the initial surgery. There was no alternative means of resolving the appellant’s allegations in this case, nor were the defendants in a position to rectify the harm they were alleged to have caused. Chimienti v. Windsor is distinguishable because it concerned claims of negligent and malicious investigation – claims that depended on the completion of the relevant criminal proceedings on which they were based. The claim of battery in this case did not. Although the appellant also seeks to advance a claim for negligent investigation, it is a separate tort to which a separate limitation period applies. A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common circumstances. Nor can a claimant delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings.

In this case the appellant decided, for tactical reasons, not to bring his battery action until after the criminal proceedings against him had concluded. That was an improvident decision, and Huscroft J.A. argued that the court has no discretionary power to relieve against the consequences of it, whether the appellant’s claim is a day late or year late. In his view, the motion judge made no errors. The battery claim was late. He would have dismissed the appeal.

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

[Strathy, C.J.O, Juriansz and Huscroft JJ.A]

Counsel:

Howard Markowitz, for the appellant
Maurice J. Neirinck, for the respondent

Keywords: Employment Law, Wrongful Dismissal

Facts:

This is an appeal from the trial judge’s decision dismissing the appellant’s action for wrongful dismissal.

The appellant, Peter Chhina, worked for Commercial Spring & Tool Company Ltd. for over 21 years, rising to the position of general manager of its heat treating division. He reported to Gurmail Gill, the General Manager of Operations.

The trial judge found that the appellant quit his employment on January 22, 2010.  She rejected the appellant’s evidence that he had taken a leave of absence to wind up his father’s estate in India.

Issues:

(1) Did the trial judge err in finding that the appellant quit his employment on January 22, 2010, and was not wrongfully dismissed?

Holding:  Appeal dismissed.

Reasoning:

No. The Court held that the trial judge was entitled to accept Gurmail Gill’s evidence that the appellant had resigned, and this evidence was not challenged by the appellant in cross-examination. This conclusion was also supported by circumstantial evidence that was not contested.

Drakoulakos v. Stirpe, 2017 ONCA 957

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel Zacks and Robert Drake, for the appellants
Ronald Bohm, for the respondents

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Facts:

This is an appeal from summary judgment dismissing the appellant’s action for a declaration that his daughter holds assets in a numbered company in trust for him. The other respondents are the daughter’s husband and the company.

In 1996, the appellant incorporated the company making his daughter the sole shareholder and conveying a taxi license to the company. In 2003, he conveyed a second taxi license to the company. The appellant alleges the company was intended to hold the taxi licenses for tax purposes and the assets were meant to pass to his daughter only upon his death.

On the motion below, both parties proceeded on the basis that the claim related to a bare trust and that the limitation period was governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The respondents took the position the appellant discovered his claim by 2004 and no later than December 9, 2010. The appellant’s position on the motion was that his claim was discovered on December 9, 2010, and that a mental or psychological condition rendered him incapable of commencing an action within two years of that date.

The motion judge decided the case on a different basis than the parties had argued. First, he decided that the claim related to a resulting trust. Second, he decided that the appellant’s claim was known or ought to have been known in 2002.

The appellant argues, and counsel for the respondents properly concedes, that on the facts found by the motion judge, there is no limitation period for a claim against the trustee of a resulting trust for property still in the possession of the trustee. The two prerequisites for the application of the transitional provision in s. 24 (6) of the present Act are satisfied: there was no limitation period for such a claim under the former Act and the claim was discovered before January 1, 2004.

Issues:

(1) Did the motion judge err in finding that the limitation period applied to the appellant’s claim for property still in the possession of a trustee of a resulting trust?

Holding: Appeal allowed.

Reasoning:

Yes. It is appropriate and in the interests of justice that the court entertain the appellant’s argument. The appellant did not have the opportunity to advance the argument in the court below, his underlying claim is equitable in nature, the argument raises a pure question of law, the record provides a complete evidentiary basis for the determination of the argument, and there is no prejudice to the respondents.

Once the motion judge decided to proceed on a framework different from the one on which the parties had presented argument, he was obligated to apply the correct law to it. As noted, the parties agree that the correct law applicable to the facts found by the motion judge is that no limitation period applies to the appellant’s claim for property still in the possession of a trustee of a resulting trust.

Maracle III v. Miracle, 2017 ONCA 950

[Pardu J.A. (In Chambers)]

Counsel:

S Dewart and M Bélanger, for the moving parties
IJ Collins and G Bogue, for the responding party

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Facts:
The moving party, Andrew Clifford Maracle III, and the respondent, Sir Andrew Clifford Miracle, are son and father. These parties signed a partnership agreement to run a business selling cigarettes and gasoline. That agreement contained a mandatory arbitration clause. The father sued the son, alleging that the son had misappropriated the profits from the partnership. The father also sued Jasmin Johnson, also a moving party, the son’s wife, alleging that she signed cheques on the partnership’s account without having signing authority. Ms. Johnson was not party to the partnership agreement. The responding party alleged breach of fiduciary duty, conspiracy to defraud, and conversion. The responding party was successful at arbitration and a substantial award was made in his favour as against his son. The Arbitrator refused to make any findings in relation to the claim against Ms. Johnson as she was not a party to the partnership agreement. The moving parties submit that this was procedurally unfair.

The moving parties seek leave to extend the time to move for leave to appeal a decision of the Superior Court of Justice, confirming an arbitral award in favour of the responding party. The moving parties’ former counsel (not counsel on the appeal) mistakenly thought he had 30 days to serve a notice of motion seeking leave to appeal, rather than 15 days as prescribed by r. 61.03.1(3) of the Rules of Civil Procedure.

Issues:

(1) Should the motion to extend the time to appeal be granted?

Holding: Motion granted.

Reasoning:

(1) Yes. The applicable principles governing motion to extend are described in Reid v. College of Chiropractors, 2016 ONCA 779.  The governing principle is whether the “justice of the case” requires that an extension be given. The relevant considerations include: (a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal. The lack of merit alone can be a sufficient basis on which to deny an extension of time particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal.

The responding party conceded that the failure to meet the deadline occurred as a result of the error of the moving parties’ lawyer and that there is no prejudice flowing from that short delay. The responding party’s position was that the moving parties are unlikely to get leave to appeal. On that ground, it submitted that leave to extend the time to file a notice of motion for leave to appeal should be refused.

Section 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 provides that a court may set aside an arbitral award if a party was not treated fairly, or if the arbitration procedures did not comply with the Act. The son argues that he was prejudiced by the arbitrator’s refusal to consider the claims against Ms. Johnson. The court found that given the brevity of the delay, and the absence of prejudice, the interests of justice in this case require that the moving parties be given an opportunity to persuade the court that leave should be granted. Therefore the motion was allowed and the moving parties were given 10 days to file a motion for leave to appeal.

Su v. Lam, 2017 ONCA 952

[Pardu J.A. (In Chambers)]

Counsel:
Jian Su, self-represented
David M. Goodman, for the respondent

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Facts:
The appellant, Mr. Su, moves for an extension of time to appeal from an April 19, 2017 decision that dismissed his motion to set aside a consent order. The underlying consent order was made in 2009. It dismissed Mr. Su’s action against the respondent. Before the consent order was made, Mr. Su had been ordered to pay an outstanding costs award against him and a further $25,000 for security for costs. The respondent brought a motion to dismiss the action because of these outstanding orders. Mr. Su was represented by counsel at the time and his counsel consented to the dismissal of this action and the property claims in another related proceeding. By foregoing his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim, and he avoided the need to post security for costs and payment of the outstanding costs award.

Mr. Su moved to set aside this consent order seven or eight years after it was made, alleging fraud and subsequently discovered facts as justification. He argued that the estate trustee falsely represented there were estate assets remaining to satisfy Mr. Su’s potential claim. The motion judge found that the documentary production made to Mr. Su before the consent order was made, had it been carefully and properly examined, would have already revealed the fact that no estate assets remained. The motion judge found as a fact that Mr. Su was not provided with any incorrect or misleading information about the assets of the estate at the time he agreed to the consent order. He concluded that Mr. Su failed to prove that he was induced by fraud to agree to the consent order, and failed to demonstrate that there were any after-acquired facts or information that would warrant setting aside the consent order

Issues:

(1) Should an extension of time to appeal the motion be granted?

Holding: Motion dismissed.

Reasoning: 

(1) No. The test for determining whether to extend time to appeal is set out in Reid v. College of Chiropractors. The test was not met in this case. There was no evidence that Mr. Su formed the intention to appeal within the relevant time period. There was insufficient explanation for the delay in filing the notice of appeal. The subject matter of the proposed appeal related to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and the respondent (the executor of Ms. Lam’s estate) have now been engaged in litigation for nearly 13 years.

Mr. Su attempts to set aside a consent order made in February 2009, at a time when he was represented by counsel and when the consent order brought real advantages to him. As a result of the consent order, the respondent did not pursue its motion for security for costs or its motion to dismiss the action for non-payment of a costs order. The motion judge’s findings of fact about the absence of misrepresentation at the time of the consent order were not undermined by the material Mr. Su filed in support of his motion for leave to extend time to appeal. In large part, the filed materials cover many of the same grounds dealt with by the court in Mr. Su’s previous appeal. The justice of the case did not require an extension of time to appeal. The motion was dismissed with costs.

Thomson v. Durham (Police Services Board), 2017 ONCA 958

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:
Joshua Evans, for the appellants
Nadia Marotta, for the respondents

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Facts:

This is an appeal from an order, made on the respondents’ summary judgment motion, dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002.

The appellants, Nora Thompson and Peter King, submit that s. 4 of the Limitations Act does not apply to their action as it is a proceeding to enforce a court order. Section 16(1)(b) of the Limitations Act, 2002, provides there is no limitation period for the enforcement of a court order.

An order of disposition under s. 490(9) of the Criminal Code issued December 14, 2011 and revised June 27, 2012, ordered that specified items of property among property seized by the respondents from the appellants in 2010 be released to them, and the remaining property be forfeited to the Crown. The appellants picked up some items from the Police Services’ Property Bureau on November 20, 2012 and January 24, 2013, but on January 9, 2013, claimed some of that property was missing or damaged. On March 2, 2013, a lawyer representing the appellants threatened but did not commence a civil action in respect of the missing and damaged property. On May 24, 2014, all remaining property in the respondents’ possession was forfeited to the Crown in accordance with the order of disposition. The appellants commenced this action on November 4, 2015.

The respondents moved for summary judgment on the basis that the action was barred by s. 4 of the Limitations Act, 2002, because the appellants’ action was commenced more than two years after they knew that the property they claimed was missing or damaged. The motion was granted and the appellants have brought this appeal.

Issues:

(1) Did the motion judge err in dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002?

Holding:  Appeal dismissed.

Reasoning:

(1) No. The appellants submit that the motion judge erred by saying that the plaintiffs knew when they began the action that the defendants no longer had any of the seized property in their possession. They pleaded that they were aware that the order of June 27, 2012 could not actually be enforced.

The court held that the motion judge’s response was correct. When the appellants commenced their action on November 4, 2015, they already knew that all remaining property in the hands of the respondents had been forfeited to the Crown. Therefore, the motion judge reasoned that the true and actual object of the action could not have been to enforce the order for the return of the goods. Instead, she reasoned that the appellants started their action to claim for a new court order for monetary damages based on allegations of neglect or refusal to the return goods.

The Court agreed with the motion judge’s characterization of the appellants’ action and with her conclusion that it falls outside the scope of s. 16 (1) (b) of the Limitations Act, 2002.

Samra v. 7544405 Canada Inc., 2017 ONCA 953

[Watt, Pepall and Miller JJ.A.]

Counsel:
S Kemdirim, acting in person
MV Peters, for the respondent

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Facts:
Ms. Kemdirim and 7544405 Canada Inc. (“Kemdirim and 7544405”) seek to review the order of Roberts J.A. refusing to extend the time to file their earlier motion to review and set aside the July 20, 2016 order of Laforme J.A., and to grant a stay of his order and the summary judgment granted by Warkentin J. on March 14, 2016.

The genesis of these proceedings is the default of Kemdirim and 7544405 under two mortgages placed on several properties. George Samra obtained summary judgment against Kemdirim and 7544405 due to their default under the mortgages. He was also awarded costs fixed at $17,000. Kemdirim and 7544405 appealed. Samra moved, before Laforme J.A. for an order for security for costs, which was granted. Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an order to extend the time within which they could serve and file a motion to review the order of Laforme J.A., a stay of that order, and a stay of the summary judgment. Roberts J.A. granted an extension of time to post security and dismissed the remainder of the motion.

Issues:

(1) Should the order of Roberts J.A be reviewed?

Holding: Motion dismissed.

Reasoning:

(1) No. Kemdirim and 7544405 admit default under the mortgages, although they query the precise amounts of the default. The evidence before the judge on the motion for summary judgment revealed no genuine issue requiring a trial. Laforme J.A ordered security for costs because he was of the view that the appeal was without merit and that Kemdirim and 7544405, already in default under the mortgages, lacked the means to pay the costs of an unsuccessful appeal. Roberts J.A., whose order refusing an extension of time Kemdirim and 7544405 ask the court to review, dismissed the motion on two grounds. The first, echoing what the first chambers judge said, was that the appeal was wholly without merit, thus frivolous and vexatious. The second was that the justice of the case did not warrant the order sought. Therefore the motion was dismissed.

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:
K Alexander and K Stone, for the appellant
S D McAleese and K L Meehan, for the respondents

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Facts:
On July 24, 2007 the appellant (Nufrio) received notice of fundamental changes to his employment contract with the respondents (Allstate Insurance). He was given working notice up to September 1, 2009. He accepted the notice.

In October 2008, the respondents sought to impose immediate changes to the employment relationship by requiring the appellant to close his neighbourhood office and move to an Allstate operated office by November 1, 2008. The appellant refused, insisting on operating under the previous agreements during the notice period. These agreements were the Allstate Agent Compensation Agreement (the 830 agreement) and the Neighbourhood Office Agent Amendment (the NOA). His refusal led to his termination for cause on November 6, 2008.

The trial judge found that the appellant was properly terminated for cause on November 6, 2008. In her view, the respondents had the right to impose the new terms of employment, since the appellant had been given reasonable notice of the changes.

Issues:

(1) Did the trial judge err by not addressing the question of whether the change in location, including the change to the business model under the NOA, could be made unilaterally by the respondents during the working notice period?

Holding: Appeal allowed in part.

Reasons:

(1) Yes. The proposed relocation was more than a geographic relocation of the appellant’s office. It was a fundamental change to the business model that had been agreed to under the NOA. The appellant was entitled to continue to operate in accordance with the 830 agreement and the NOA during the period of working notice to September 1, 2009, as had been set out in the respondent’s July 2007 letter. The NOA precluded the respondents from unilaterally imposing the changes during the period of working notice.

Li v. Li, 2017 ONCA 942

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Shawna Sosnovich and Christopher Statham, for the appellant

  1. David Marks, Q.C. and Corey Bergstein, for the respondents

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Facts:

This is an appeal from the dismissal of a motion for summary judgment brought by the appellants, Yao Chao Li (defendants to the action). The appellant had sought to end an action on the basis of a previously dismissed lawsuit brought by the respondent, Yao Wei Li, against the appellant in India relating to the same cause of action.

The appellant invoked the doctrines of res judicata and abuse of process in aid of the summary judgment motion, but relied primarily on a provision of the Indian Civil Procedure Code, Order 23, Rule 1(4), that provides a substantive right to prevent attempts at re-litigating claims that are dismissed as abandoned, without the leave of an Indian court. The parties agreed that this Indian law applied, and that leave had not been obtained in this case.

The motion judge denied the motion, disposing of the res judicata and abuse of process defences and ordering that the matter be re-listed for trial. The key factor in each of the motion judge’s rulings was that the respondent had never been served in the Indian action, and no disposition had ever been made on the merits of the respondent’s claim.

Issues:

(1) Did the motion judge err in denying the motion for summary judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellant has not demonstrated that the motion judge erred in his treatment of Order 23, Rule 1(4) of the Indian Civil Procedure Code. The onus was on the appellant to establish the foreign rule of law it sought to rely upon. The motion judge accepted the respondent’s expert’s interpretation of an Indian decision, Dalmia Cement (Bharat) v Uthandi alias Peria Uthandi AIR 2005 MAD 457, holding that Order 23, Rule 1(4) does not operate where a suit is “dismissed as not pressed” before the opposing party has been served. In the absence of evidence establishing the meaning of the term “dismissed as not pressed”, the motion judge was not persuaded that the respondent’s suit would be caught by the rule, given that the appellant had never been served.

The court held that there was no basis for finding that the motion judge erred in not applying the doctrines of res judicata or abuse of process. As stated, the Indian lawsuit terminated without the appellant ever having been served with the action. The motion judge made no error in finding that the Ontario suit would not involve re-litigation, or an abuse of Ontario’s civil processes.

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

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

Counsel:
JA Keefe, B Halfin, and J-R Cohen, for the Appellant
DW Glaholt and MA Valo, for the Respondent

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Facts:
Arbitration arose out of a project for the construction of a slurry pipeline from a nickel mine in Madagascar. The Appellant, Consolidated Contractors, was the contractor and the Respondent, Ambatovy Minerals, tendered the project. The contract for the project contained a three stage dispute resolution process.  A party who did not accept the second stage of internal adjudication could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (ICAA), which incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the “Model Law”). In that event, the arbitration was to take place in Ontario, in accordance with Ontario law. The contract provided that the arbitration procedure was to be governed by the International Chamber of Commerce (“ICC”) Rules of Arbitration.

The Appellant claimed that the Respondent had breached the contract, causing delays and additional costs. It claimed: an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work it claimed to have performed. The Respondent suggested that the dispute go directly to arbitration, by-passing adjudication, and the Appellant agreed. The Respondent defended the Appellant’s claims and asserted a counterclaim for liquidated damages due to the Appellant’s failure to complete the project on time. It also counterclaimed for additional costs caused by the Appellant’s failure to properly complete its work. The Appellant agreed that the Respondent’s claim for liquidated damages could proceed directly to arbitration, but argued against the inclusion of the other counterclaims, which were ultimately included. The Tribunal issued its final award, it awarded the Appellant $7 million of its $91 million claim, and the Respondent $25 million for its counterclaims. At the Superior Court, the Appellant challenged the Tribunal’s award in four respects: (a) the Tribunal had no jurisdiction to deal with some of the Respondent’s counterclaims; (b) the Tribunal failed to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent; (c) the Tribunal denied the Appellant procedural fairness in its disposition of two claims and its award of costs; and (d) part of the Award was made in breach of Ontario public policy. The Application Judge dismissed the challenge, and the Appellant appealed.

Issues:

  • Did the Tribunal have jurisdiction to deal with the counterclaims?
  • Did the Tribunal err in failing to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent?
  • Did the Tribunal deny the Appellant procedural fairness in respect of:
  • Its ruling on retention monies;
  • Its ruling on Hydro Seeding work done; and
  • Its cost award to the Respondent?
  • Did the Tribunal’s award offend Ontario public policy?

Holding: Appeal dismissed.

Reasoning:

Prior to exploring the issues, the Court of Appeal undertook a review of judicial intervention under the Model Law. In Ontario, the Model Law has been given force of law by the ICAA. Article 5 of the Model Law states “In matters governed by this Law, no court shall intervene except where so provided in this Law.” Article 34 identifies the circumstances under which an international commercial arbitral award can be set aside by a domestic court. These grounds are narrow. They are: (a) incapacity of a party or legal invalidity of the agreement; Page: 7 (b) absence of notice or an opportunity to present the party’s case (i.e. procedural unfairness); (c) absence of jurisdiction; (d) non-compliance with the arbitration agreement concerning the tribunal’s composition or procedure; (e) non-arbitrability of the dispute; and (f) a conflict between the award and domestic public policy.   The standard to be applied by a reviewing court depends on the specific Model Law grounds on which the appeal is based.

  • Pursuant to Article 34(2)(a)(iii), the standard of review for questions of jurisdiction is correctness.

The Respondent’s counterclaims were fully pleaded and defended in the arbitration. Evidence was adduced by both parties on the substance of the claims. It was left to the Tribunal to determine whether it had jurisdiction to address them and it determined that it did. The Tribunal found that “the parties to a complex construction contract may be presumed, when making it, to agree that any disputes that may arise will be resolved in an efficient manner.” This intention was reflected, it said, in the parties’ agreement that the Appellant’s claims could go directly to arbitration, by-passing adjudication. It concluded that the parties’ agreement reflected a common intention that disputes would be dealt with at the same time by the same tribunal when there was “sufficient connection” between the disputes to enable them to be dealt with efficiently. This applied to the Respondent’s counterclaims.

The Appellant argued that it is immaterial that the issues were fully pleaded before the Tribunal, it argued that the Tribunal’s jurisdiction is purely consensual and that the parties never consented to the counterclaims being arbitrated. The Court of Appeal rejected this submission. Article 34(2)(a)(iii) requires the court to consider whether the award deals with a “dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration”. To answer this question, the Court must consider the contractual provisions with respect to arbitration, the submission to arbitration, the agreed terms of reference of the arbitrators and the arbitral award. The terms of the contract conferred jurisdiction on the Tribunal to decide questions of fact and law necessary to determine the issues and to rule on the parties’ requests for relief. The Tribunal found that “a claim that was so connected to a claim of the other party that it should be decided at the same time” could proceed to arbitration without passing through the contractual dispute resolution process. The Respondent’s counterclaims were clearly the proper subject of arbitration under the contract. The only question was when they would be arbitrated. It was open to the Tribunal to find that the pre-arbitration dispute resolution process did not apply to claims of one party that were closely connected to the claims already submitted to arbitration by the other party. This is not to say that every dispute submitted to arbitration will necessarily draw in counterclaims. It will depend, as in this case, on the contractual intention of the parties as determined by all the surrounding circumstances. Nor will it permit a party initiating an arbitration to completely ignore pre-arbitration dispute resolution requirements.

  • The Appellant sought a 36-day extension of time and US$482,480 for costs allegedly due to delays caused by the Respondent’s failure to deliver materials and to complete work required to enable the Appellant to complete its own work on the pipeline. The Tribunal granted an 18-day extension, resulting in a corresponding reduction of the Respondent’s claim for liquidated damages. But it did not specifically address the Appellant’s claim for damages caused by the delay. It gave no reasons for dismissing the Appellant’s claim under this head.  As per Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608, at p. 621 (Gen. Div.)  “The failure to give reasons, although less helpful to the parties, is not on its own a ground for refusing to enforce an award.” There is nothing in the Model Law that requires the Tribunal to give reasons, although it is unquestionably desirable that it do so. The Court of Appeal therefore dismissed this ground of appeal.
  • Article 34(2)(a)(ii) permits a challenge to an arbitral award based on procedural unfairness where a party has not received proper notice of the proceedings “or was otherwise unable to present his case.” Pursuant to Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), to justify setting aside an award for reasons of fairness or natural justice, the conduct of the Tribunal “must be sufficiently serious to offend our most basic notions of morality and justice”  and “judicial intervention for alleged violations of the due process requirements of the Model Law will be warranted only when the Tribunal’s conduct is so serious that it cannot be condoned under the law of the enforcing State.”

The Appellant submitted that it was denied procedural fairness in relation to 3 claims: (a) Retention Monies; (b) Hydro-Seeding; and (c) Costs.

  • Under the project contract, the Respondent made regular progress payments to the Appellant as construction proceeded. The Respondent was contractually entitled to retain 5% of the amount of each of these interim progress payments (the “Retention Monies”). The first half of the Retention Monies was to be paid out by the Respondent’s engineer when a “Taking-Over Certificate” was issued for the works. The remaining half was to be released on the expiry of the “Defects Notification Period.” With respect to the first half of the retention monies, the Tribunal found that the Engineer had acted reasonably in not releasing those monies, given the extent of the Appellant’s defective work. Additionally, the Tribunal found that the expiry of the Defects Notification Period (which triggered the payment of the second half of the retention monies) should be extended, because the Appellant had failed to properly perform the contract.

The Respondent’s counterclaims formed the basis of the Tribunal’s conclusion that the Appellant had legal and financial responsibility for its defective work, and the contract permitted the withholding of the retention monies until the defects were remedied. The Appellant asserted that the Tribunal breached its own procedural order and denied the Appellant procedural fairness by disposing of its claims based solely on the Respondent’s reply submissions, to which it had no opportunity to reply. The Court of Appeal rejected this submission; the issue of the Retention Monies was bound up In the Appellant’s liability for the Respondent’s counterclaims and the ability of the Respondent’s engineer to refuse payment of the Retention Monies when there were unsatisfied defect claims. The Tribunal relied on a contractual term that permitted the Respondent to withhold the Retention Monies until the Appellant cured the defects in its work. The Appellant was aware of this provision and addressed it in its submissions to the Tribunal. The Appellant was therefore not prevented from presenting its case on this issue and therefore not denied procedural fairness.

  • This was a claim by the Respondent for US$7.64 million for the cost of “redoing” defective restoration work (topsoil and seeding) over the completed pipeline. The contract required the Respondent to give notice of its complaint to the Appellant and give it an opportunity to remedy the defective work. The Appellant argued before the Tribunal that the Respondent was not entitled to assert this claim because it had gone ahead and performed the work without giving the Appellant proper notice and an opportunity to correct the problem. The Tribunal found otherwise. It found that although the Respondent had not observed the “contractual niceties”, the evidence established that the Appellant had accepted and almost acquiesced in the Respondent’s use of another contractor to redo the Appellant’s work.

Before the Application Judge and in the Court of Appeal, the Appellant claimed that in resolving this issue against it, the Tribunal developed its own “novel theory” of constructive notice and denied procedural fairness by failing to give notice of that theory and an opportunity to respond to it. The Application Judge rejection this submission and found that this was a complaint about arbitral fact-finding, under the guise of a procedural fairness argument. The Court of Appeal agreed with the Application Judge’s reasons.

  • Although success was somewhat divided, the Tribunal concluded that the Respondent should be regarded as the successful party and was entitled to recover the costs of the arbitration. Pursuant to The ICC Rules of Arbitration, the Tribunal has discretion with respect to costs. Article 37(5) of those Rules (now Article 38(5)) states that “in making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.” While it is true that the Tribunal initially noted the parties’ proposal that costs should be proportionate, it concluded that the Appellant had succeeded on only four claims, only two of which required evidence. The Respondent, on the other hand, had succeeded in defeating all the Appellant’s main claims and also succeeded on its counterclaims. Thus the Appellant was not denied procedural fairness on this issue.
  • The Appellant claimed that a portion of the Tribunal’s award offended public policy because it was a penalty. The court may set aside an arbitral award under Article 34(2)(b)(ii) if it is in conflict with the public policy of the state. The leading case under this provision is Schreter, which states that “The concept of imposing our public policy on foreign awards is to guard against enforcement of an award which offends our local principles of justice and fairness in a fundamental way, and in a way which the parties could attribute to the fact that the award was made in another jurisdiction where the procedural or substantive rules diverge markedly from our own, or where there was ignorance or corruption on the part of the tribunal which could not be seen to be tolerated or condoned by our courts.” The Tribunal’s award does not come close to meeting this test, and accordingly, this ground of appeal was rejected.

Criminal & Ontario Board Decisions and Short Endorsements:

GM Textiles v. Sidhu, 2017 ONCA 969

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

Counsel:
Lockyer, for the appellant
S. Zucker and M. L. Somo, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Rules of Civil Procedure, r. 60.11(8)

R v. Esseghaier, 2017 ONCA 970

[Watt J.A. (In Chambers)]

Counsel:
MacKinnon, for the moving party, Canadian Broadcasting Corporation
E. Dann, amicus curiae in relation to the responding party, Chiheb Esseghaier, and agent for responding party, Raed Jaser
Nicholas Devlin, for the responding party, Attorney General of Canada

Keywords: Criminal Law, Endorsement, Sealing Orders, “Open Court” Principle, Canadian Charter of Rights and Freedom, Section 2(b), Freedom of Expression, Dagenais/Mentuck Test

R v. G.H., 2017 ONCA 965

[Watt, Epstein and Brown JJ.A.]

Counsel:
Moustacalis, for the Appellant G.H.
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Burden of Proof, Reasons for Decision

Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., 2017 ONCA 955

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Sabharwal, for the appellant
No one appearing for the respondent

Keywords: Endorsement, Appeal Abandoned

Hussain v. Royal Bank of Canada, 2017 ONCA 956

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Hussain, in person
A. Jackson, for the respondent

Keywords: Endorsement, Debtor-Creditor, Summary Judgment

R v. Damassia, 2017 ONCA 954

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Halfyard and B. Vandebeek, for the appellant
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Canadian Charter of Rights and Freedom, Section 10(b), Evidence, Credibility

R v. Enotie, 2017 ONCA 966

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Arbogast, for the appellant
K. Rawluk, for the respondent

Keywords: Criminal Law, Carjacking, Similar Fact Evidence, Jury Instructions

R v. Pettipas-Lizak, 2017 ONCA 963

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Hotke, for the appellant
N. Gorham, for the respondent

Keywords: Criminal Law, Firearms Offences, Directed Verdict, Circumstantial Evidence, Credibility

Ohenhen (Re) v. C60572, 2017 ONCA 960

[Strathy, C.J.O., Doherty and Roberts JJ.A.]

Counsel:
Szigeti and J. R. Presser, for the appellant
A. Alyea, for the respondent, the Attorney General of Ontario
M. Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Canadian Charter of Rights and Freedoms, Section 24(1), Charter Remedies, Not Criminally Responsible

R v. Mayrhofer-Lima, 2017 ONCA 949

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
M. Garg, for the appellant
P. B. Norton, for the respondent

Keywords: Criminal Law, Summary Conviction, Canadian Charter of Rights and Freedoms, s.10

R v. Moore, 2017 ONCA 940

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

Counsel:
Hicks and J. Zita, for the appellant
K. Papadopoulos, for the respondent

Keywords: Criminal Law, Vetrovec warning, R v. W.(D.). [1991] 1 S.C.R. 742, Jury Instructions, Evidence, Re-Examination, Sentencing

Vethanantham (Re), 2017 ONCA 941

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

Counsel:
Fernandes, for Anton Vethanantham
M. Fawcett, for the Attorney General of Ontario
B. Walker-Renshaw, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Conditional Discharge

King (Re), 2017 ONCA 945

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Davies, for the appellant
D. Bonnet, for the Attorney General of Ontario
J. Dagher, for the Person in Charge of the Brockville Mental Health Centre

Keywords: Endorsement, Ontario Review Board, Conditional Discharge

R v. Boachie, 2017 ONCA 944

[Laskin and Pepall JJ.A. and Gans J. (ad hoc)]

Counsel:
Zegers, for the appellant
H. Amarshi, for the Respondent

Keywords: Endorsement, Criminal Law

R v. Chen, 2017 ONCA 946

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

Counsel:
Chozik and C. Pakosh, for the appellant
K. Wilson and K. Gill, for the Respondent

Keywords: Criminal Law, Immigration Law, Marijuana Growth Operation, Conspiracy, Fresh Evidence, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Conflict of Interest, Sentencing

R c. Fawaz, 2017 ONCA 943

[Les Juges Rouleau, Benotto et Roberts]

Counsel:
Mainville, acovate de service
R. Visca, pour L’intimée

Keywords: Endorsement, Criminal Law, Adjournment

JVJ Consulting Inc. v. Barnell, 2017 ONCA 937

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Barnwell, for the appellant
R. Gosbee, for the respondent

Keywords: Endorsement, Adjournment

R v. Bridgman, 2017 ONCA 940

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:
Furgiuele and C. Barbisan, for the appellant
B. G. Puddington, for the respondent

Keywords: Criminal Law, Possession, Evidence, Admissions, Text Messages, Hearsay, Reliability, Necessity, Original Circumstantial Evidence, Jury Instructions

R v. Christiansen, 2017 ONCA 941

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
Wilkinson, for the appellant
J.D. Sutton and C. Reccord, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Trafficking, Controlled Drugs and Substances Act, Section 11, General Warrants, Jury Instructions

ONTARIO COURT OF APPEAL SUMMARIES (NOVEMBER 27 – DECEMBER, 1 2017)

Good evening,

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

Topics this week included personal injury, family law, employment law, property law, mortgages, bankruptcy and insolvency and extensions of time to appeal.

Have a nice weekend.

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

Table of Contents:

Krates Keswick Inc. v. Crate, 2017 ONCA 915

Keywords: Contracts, Debtor-Creditor, Guarantees, Mortgages, Civil Procedure, Judgments, Enforcement, Stay Pending Appeal, Bankruptcy and Insolvency, Receiverships, Resulting Trusts

Winters v. Hunking, 2017 ONCA 909

Keywords: Contracts, Debtor-Creditor, Real Property Law, Mortgages, Enforcement, Judgments for Foreclosure, Setting Aside, Judicial Sale, Rules of Civil Procedure, Rule 64.03(22)

6443923 Canada Inc. (Zesty Market) v. Kablou, 2017 ONCA 916

Keywords: Civil Procedure, Stay of Proceedings, Abuse of Process, Collateral Attack, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63

Zafar v. Saiyid, 2017 ONCA 919

Keywords: Family Law, Child Abduction, Custody, International Law, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M 1501, Children’s Law Reform Act, RSO 1990, c. C.12, s. 46(2), Civil Procedure, Orders, Appeals, Time to Appeal, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.02

Emmerson v. Emmerson, 2017 ONCA 917

Keywords: Family Law, Child Support, Child Support Guidelines, O. Reg. 391/97, s. 17(1), Spousal Support, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518, Equalization of Net Family Property

Parent v. Janandee Management Inc., 2017 ONCA 922

Keywords: Torts, Negligence, Duty of Care, Foreseeability, Apportionment of Liability, Fault, Negligence Act, R.S.O. 1990, c. N.1, s. 1, Jury Charge, Costs

Fleischhaker v. Attwood, 2017 ONCA 927

Keywords: Administrative Law, Health Law, Consent and Capacity Board, Procedural Fairness, Health Care Consent Act, ss. 4 and 80

Single Source Contracting Services Inc. v. Valiant Machine & Tool Inc., 2017 ONCA 925

Keywords: Civil Procedure, Settlements, Enforcement, Payment into Court, Rules of Civil Procedure, Rule 72

Soraya v. Claron Technology Inc., 2017 ONCA 935  

Keywords: Employment Law, Contracts, Employment Agreements, Vesting of Stock Options, Duty of Good Faith, Duty of Honest Performance, Marshall v. Bernard Place Corp., [2002] OJ No 463 (C.A.), Wrongful Dismissal, Mitigation, Oppression

Waterloo v. C.T., 2017 ONCA 931

Keywords: Family Law, Crown Wardship, Adoption, Access, Indigenous Children, Openness Hearing, Jurisdiction, Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 37(3), 59(2.1) and 145.1.1 (3), Fresh Evidence, Motherisk Drug Tests, Canadian Charter of Rights and Freedoms, s. 7, Declaratory Relief, Costs Against Counsel

Cunningham v. Hutchings, 2017 ONCA 938

Keywords: Civil Procedure, Dismissal for Delay, Extension of Time to Appeal, Laski v. Laski, 2016 ONCA 337

Holtby v. Draper, 2017 ONCA 932

Keywords: Family Law, Property Law, Presumption of Joint Ownership, Presumption of Resulting Trust, Family Law Act, R.S.O. 1990, c. F.3, s. 14, Corporations, Shares

For Short Civil Decisions, click here.

For Criminal Decisions, click here.

Krates Keswick Inc. v. Crate, 2017 ONCA 915

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

Counsel:

Gregory Sidlofsky, for the appellant

Mark Dunn and Kirby Cohen, for the respondent

Keywords: Contracts, Debtor-Creditor, Guarantees, Mortgages, Civil Procedure, Judgments, Enforcement, Stay Pending Appeal, Bankruptcy and Insolvency, Receiverships, Resulting Trusts

Facts: The respondent, Krates Keswick Inc., purchased and took assignments of three loans made to the appellants and some Crate family companies, which went into receivership. Loan 1 was guaranteed by the appellants. Loan 2 was made to the appellants as borrowers; it was not secured. Loan 3 was guaranteed by the appellant, Marko. The guarantors provided collateral security for their guarantees, which included mortgages on 210 Wynhurst and the Marko Lands. The Respondent sought and obtained judgment against the appellants on the loans. The motion judge also granted the respondent possession of the Marko Lands. The motion judge dismissed the appellants’ counterclaim and refused to stay the enforcement of the Judgment. The appellants appeal.

Issues:

(1) Did the motion judge err in granting judgment in the amounts specified for Loans 1, 2 and 3?

(2) Did the motion judge err in granting possession of the Marko Lands to KKI and dismissing the counterclaim?

(3) Should the enforcement of Loans 1, 2 and 3 be stayed?

Holding: Appeal allowed in part.

Reasoning:

(1) No. The motion judge made no error in granting judgment in the amounts specified for Loans 1, 2 and 3.

(2) No. There was no error in the Judgment granting possession of the Marko Lands to KKI and dismissing the counterclaim.

(3) Yes. Important facts concerning the lands that stand as security for Loans 1 and 3 emerged in two recent decisions of Myers J. This information was not before the motion judge.

By reasons dated November 17, 2017, Myers J. vested in the respondent title to 210 Wynhurst, one of the properties that stands as security for Loan 1. The resulting net value of 210 Wynhurst reduced the amount outstanding under Loan 1. By reasons dated October 17, 2017, Myers J. held that beneficial title to the Marko Lands was held by the appellants on resulting trust for one of their family companies and, as a result of the receivership proceedings, is now held in resulting trust for the respondent. A further proceeding is required to determine whether the appellants will be able to establish any credit against the amount of the judgment in respect of Loans 1 and 3 for the value of the Marko Lands. Given this new information, it is just and reasonable to stay the enforcement relating to the secured Loans 1 and 3 until it is determined what, if any, reduction in the amounts payable under the judgment the appellants may be entitled to by reason of the value of the Marko Lands. Consequently, the enforcement is stayed until such determination has been made. Since Loan 2 was unsecured, the court did not interfere with the motion judge’s refusal to grant a stay of enforcement of the amount of that loan. There were no costs of the appeal.

Winters v. Hunking, 2017 ONCA 909

[Sharpe, Blair and Epstein JJ.A.]

Counsel:

John A. Tamming, for the appellant, Ray Harvey Hunking

Tim Gleason and Rebecca Glass, for the respondents, John David Winters and Margaret Louise Winters

Keywords: Contracts, Debtor-Creditor, Real Property Law, Mortgages, Enforcement, Judgments for Foreclosure, Setting Aside, Judicial Sale, Rules of Civil Procedure, Rule 64.03(22)

Facts:

Ray Hunking, the appellant, defaulted on the mortgage payments for his family homestead farm near Dundalk, Ontario. The mortgagees subsequently obtained a default judgment for foreclosure. The appellant appeals his unsuccessful motion to set aside the judgment.

Mr. Hunking is a low-income, illiterate, and physically disabled 61 year-old man, clinging unrealistically to his heritage and life as a farmer. According to medical information on the record, he is also severely mentally challenged and on daily doses of morphine for the chronic pain he endures, something that affects his reaction time and ability to respond to circumstances. He has lived on the mortgaged family homestead his entire life, acquiring it from his parents who, in turn, acquired it from his grandparents. His doctor strongly suggested that he move into assisted living.

After borrowing $350,000 from the Winters on the security of the farm, Mr. Hunking failed to make payments on the mortgage and did not pay all the taxes as he had agreed. When the Winters commenced the foreclosure action, he did not defend or file a request to redeem or a request for sale. When the Winters afforded him time to sell or find re-financing, he took no steps to pursue the latter and, on his own admission, “stubbornly” resisted a sale. Although Mr. Hunking received an oral offer to purchase the farm, he declined to pursue the offer because he felt it was too low. When served with a final order of foreclosure, obtained after he was noted in default, he did not move immediately for relief. Instead, he waited another 12 months before bringing a motion to set aside the default judgment, requesting, at that time, the right to redeem or to convert the foreclosure process to a judicial sale. His motion was dismissed.

The evidence shows that a sale of the farm would generate a net equity (after payment of the mortgage in full, including interest and all costs) of approximately $250,000 to $337,000.

Issues:

(1) Should the mortgagees or Mr. Hunking receive the benefit of the net equity on sale of the farm?

Holding: Appeal allowed.

Reasoning:

(1) Mr. Hunking should receive the benefit of the net equity on sale of the farm. The main factor regarding whether to set aside a default judgment for foreclosure is whether the decision to set aside the order leads to a just result in all the circumstances. The court held that the motion judge’s decision does not lead to a just result.

The court has a broad jurisdiction to set aside a default judgment and grant relief against foreclosure wherever the equities in the mortgagor’s favour outweigh all that are against him or her.

Citing Royal Bank of Canada v. Swan, 1979 CarswellOnt 3420 (Master), aff’d 1980

CarswellOnt 3624 (Div. Ct.), and several other decisions, the court set out the well-established factors that are to be considered in the exercise of the court’s discretion, which include:

(i) whether the motion to set aside was made with reasonable promptness;

(ii) whether there is a reasonable prospect of payment at once or within a short period of time;

(iii) whether the applicant has been active in endeavouring to raise the money necessary;

(iv) whether the applicant has a substantial interest in the property or the property has some special intrinsic value to him or her; and

(v) where the property has been sold after foreclosure (not the case here), whether the rights of the purchaser will be unduly prejudiced.

The court found that the motion judge made four errors that, taken together, tainted his reasoning and warranted the granting of the appeal.

First, the motion judge mischaracterized the nature of the appellant’s mental frailties in his analysis, treating them as simply a matter of his mental competence to participate in the proceeding. As a result, he gave little, if any, consideration to whether those mental frailties, together with the appellant’s obvious physical limitations and the effect of his medications, could have provided some explanation for the appellant’s relative inaction and failure to respond to the foreclosure process. Instead, the motion judge fastened on Mr. Hunking’s admitted “stubbornness”.

Secondly, the motion judge erred in his consideration of the “substantial interest” factor. Although he accepted that the appellant had a substantial interest in the farm, the motion judge appeared to have viewed that substantial interest solely as a matter of the appellant’s “sentimental attachment” to the property, rather than focussing on the appellant’s interest in the form of the substantial equity that remained in the property after all mortgage payments and costs are paid.

Third, the motion judge erred in confining his analysis of the “reasonable prospect of repayment” factor to Mr. Hunking’s inability, or unwillingness, to refinance the mortgage, when the record shows that, on a sale of the farm, the mortgagees would be fully repaid.

Finally, the motion judge failed to analyse the true nature and significance of the magnitude of the windfall to the respondents in the context of the appellant’s circumstances and the prejudice to him of not setting aside the default judgment for foreclosure, and to weigh it against the virtual lack of prejudice to the respondents, who would be completely reimbursed and paid in full had a sale of the property been ordered.

For the aforementioned reasons, the court allowed the appeal and ordered that the foreclosure proceedings be converted to an immediate judicial sale pursuant to rule 64.03(22) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

6443923 Canada Inc. (Zesty Market) v. Kablou, 2017 ONCA 916

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

Counsel:

E Lay, for the appellant

I B McBride, for the respondents

Keywords: Civil Procedure, Stay of Proceedings, Abuse of Process, Collateral Attack, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63

Facts:

These civil proceedings follow a 2011 criminal trial in which a jury found Mr. Karimi, a principal of the numbered company appellant in each action, guilty of extortion and criminal harassment.  The respondents and a third individual, Mr. Alireza Khodabandeh, were the victims of Mr. Karimi’s crimes. Mr. Karimi defended the criminal charges primarily on the basis that the respondents and Mr. Khodabandeh had committed theft against his company. In the sentencing judge’s view, the guilty verdict made clear that the jury found no theft had occurred. She imposed a sentence that included significant restitution orders in favour of the respondents. On April 28, 2014, the Court of Appeal dismissed Mr. Karimi’s appeal from his conviction and sentence.

Following his criminal prosecution, Mr. Karimi commenced these civil actions against the respondents, and an action against Mr. Khodabandeh. In each action, Mr. Karimi claimed damages for theft. Beaudoin J. granted summary judgment dismissing the action against Mr. Khodabandeh. On July 11, 2016, the Court of Appeal dismissed Mr. Karimi’s appeal from that decision.  Mr. Karimi sought leave to appeal to the Supreme Court of Canada.

The respondents moved for a stay of these proceedings, primarily on the basis that the actions were an abuse of process.  The motion judge accepted the appellant’s submissions on abuse of process and ordered that both actions be temporarily stayed, reasoning that they amounted to an impermissible collateral attack on the verdict in the criminal prosecution. The motion judge ordered that if the Supreme Court refused Mr. Karimi leave to appeal the Court of Appeal’s July 11, 2016 decision (or granted leave and dismissed the appeal), the temporary stay would become permanent. The motion judge further provided that Mr. Karimi had to comply with the restitution orders from the criminal proceedings as a condition of bringing any motion to lift the stay. The Supreme Court denied leave to appeal the Court of Appeal’s July 11, 2016 decision. As a result, the stay ordered by the motion judge is now permanent. The appellant appeals the motion judge’s imposition of the stay.

Issues:

(1) Did the motion judge err in finding that the actions against the respondents amounted to a collateral attack on the criminal prosecution?

(2) Did the motion judge lack the authority to order Mr. Karimi to satisfy the restitution orders from the criminal proceedings before seeking to lift the temporary stay?

Holding: Appeal dismissed.

Reasoning:

(1) No. It was open to the motion judge to conclude that the jury in the criminal prosecution found that the alleged thefts did not occur. The jury heard ample evidence to lead them to the conclusion that there had been no theft committed by any of the victims or by anyone else. In this case, the motion judge stayed the proceedings on the basis of the abuse of process doctrine, which is “unencumbered by the specific requirements of concepts such as issue estoppel” Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37.  The doctrine of abuse of process engages the court’s inherent jurisdiction to prevent the misuse of its procedure in a way that would be manifestly unfair to a party before it or would otherwise bring the administration of justice into disrepute: C.U.P.E., at para. 37. Moreover, the motion judge explained why these actions amounted to an abuse of process.

(2) No. As the Supreme Court’s denial of leave rendered the stay permanent, the Court of Appeal did not need to address this issue.

Zafar v. Saiyid, 2017 ONCA 919

[Hourigan J.A.]

Counsel:

A Farooq, for the respondent

R McQueen, for the applicant

Keywords: Family Law, Child Abduction, Custody, International Law, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M 1501, Children’s Law Reform Act, RSO 1990, c. C.12, s. 46(2), Civil Procedure, Orders, Appeals, Time to Appeal, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.02

Facts:

The parties were married and have two children who were born in London, England. In May 2016, the Appellant (respondent in initial application) took a trip with the children to Canada with the consent of the Respondent (applicant). The trip was to last from May 8, 2016, to August 1, 2016. She communicated with the Respondent while in Canada about extending the trip to September 11, 2016. The Respondent was agreeable to an extension.  On August 23, 2016, the Appellant telephoned the Respondent and told him that their marriage was over and that she was not returning the children to England. The Respondent brought an application pursuant to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M 1501 (“the Hague Convention”), as incorporated in s. 46(2) of the Children’s Law Reform Act, RSO 1990, c. C.12, for the children to be immediately returned to London, England. The application judge rejected the Appellant’s argument that the Respondent had acquiesced to the removal of the children. The application judge granted the application and determined that the correct jurisdiction to hear custody and access issues was England and, accordingly, the children must be returned (the “September Order”)

A notice of appeal from the September Order was not filed in time. The parties were unable to agree to arrangements for the return of the children and made further submissions to the application judge. On November 7, 2017, the application judge made a further order regarding the undertakings and arrangements for the return of the children. He ordered that, until a further order by the British Court, the Respondent was to provide exclusive possession of the matrimonial home and pay the monthly rent and taxes on same and the Respondent was to pay £225 per week in child support. The application judge also made an order for the return of the children to England, the application judge ordered that if the Appellant failed to return the children to England by December 1, 2017 (i) the Respondent would have sole custody and will be permitted to return to England with the children; (ii) local, federal, and international law enforcement shall assist in locating and delivering the children to the Respondent; (iii) the order shall remain in force until June 1, 2018, unless extended; (iv) a sheriff or police officer may enter and search any place where there is reasonable and probable grounds for believing the children may be; and (v) the Appellant shall deliver forthwith to the Respondent or his lawyers the children’s passports, Social Security cards and birth certificates. Once the children were returned to England, the application judge ordered that they not be removed from that country (the “November 7 Order”).

The Appellant sought a stay of the November 7 Order, the Respondent brought a cross-motion seeking to have the appeal dismissed on the grounds that the September Order was final and it was not appealed in time.

Issues:

  • Should the cross-motion be granted?
  • Should a stay be granted with respect to:
  • The order for the return of the children;
  • The order for the return of the Appellant; and
  • The order for a change in custody.

Holding:

Motion granted in part, cross-motion dismissed.

Reasoning:

  • The two sets of reasons amount to one order. The September reasons ordered that the children be returned to England. The application judge stated that he could add to those reasons and provide for a process to send the children home. He chose not to, instead directing the parties to work out the details and, failing agreement, to make further submissions. The two sets of reasons amounted to one final order and the Appellant appealed within the timeframe provided for in the Rules of Civil Procedure. The cross-motion was, therefore, dismissed.
  • The Appellant argues that the application judge erred when he ordered her and the children to return to England and when he ordered that custody might be granted to the Respondent in the event of non-compliance. The Appellant argues that the application judge had no authority to make these orders.

The test for staying an order pending appeal under Rule 63.02 of the Rules of Civil Procedure requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay.

  • There is a serious issue to be tried. The Appellant, however, has not met the onus of irreparable harm. The primary arguments asserted by the Appellant on this issue are that without a stay the status quo would be altered, that her relationship with the children would be ruptured, and the children would be subjected to harm. The purported status quo of the children remaining in Canada, which is not their habitual residence, was a situation that the Appellant engineered and should not be continued absent good reason. Her safety concerns can be dealt with expeditiously in England. With regard to the balance of convenience, the Appellant submits again that the status quo should not be disturbed, the father has no plan of care, and that the appeal would be rendered moot if a stay is not granted. The Court of Appeal rejected this further status quo argument for the same reason. The balance of convenience thus favours the Respondent. There is a serious issue to be tried, but the Appellant will not suffer irreparable harm if the stay is not granted, and the balance of convenience also does not favour a stay. This is a situation where the court must follow its mandate of ensuring that Hague Convention cases are dealt with expeditiously by ensuring prompt return of children to their habitual residence.
  • The court was without jurisdiction to make such an order and it raises serious constitutional concerns. The Appellant would suffer irreparable harm if she were effectively ordered out of Canada to a country where she does not hold citizenship. The balance of convenience would also clearly favour the Appellant, as she could suffer real prejudice if she is ordered out of Canada against her wishes. The balancing of factors thus favours granting a stay on this part of the application judge’s reasons.
  • This is a matter to be determined in England. Such an order would also violate article 16 of the Hague Convention. The Appellant may suffer irreparable harm if an order is made in Canada changing custody of the children, as it could adversely impact her position before the English courts. The balance of convenience also favours the Appellant. Such an order significantly changes the status quo in terms of the parties’ having custody issues determined by the English courts.

Emmerson v. Emmerson, 2017 ONCA 917

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

  1. Emmerson, acting in person
    A. McInnis, for the respondent

Keywords: Family Law, Child Support, Child Support Guidelines, O. Reg. 391/97, s. 17(1), Spousal Support, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518, Equalization of Net Family Property

Facts:

The parties began cohabiting on February 1, 1992, and were married on October 1, 1999.  They have one child, born March 5, 2001.  The parties separated on September 1, 2009, but, for a time, continued to reside together in the former matrimonial home.  The parties entered into a separation agreement on January 12, 2010.

When negotiations over the separation agreement began in September 2009, the respondent was employed by Money Concepts as a financial planner. By early November 2009, he decided to leave Money Concepts and move to Investment Planning Council. About a year later, the respondent moved from IPC to World Source Financial Management. He worked in financial planning at these various companies and was paid commissions through numbered companies.

The separation agreement was negotiated on the assumption that the respondent did not have a book of business. The trial judge found that the respondent did, in fact, have a book of business at the relevant time and had failed to disclose that fact. Based on a review of the parties’ financial information and the respondent’s conduct during negotiations, the trial judge concluded that the nondisclosure of the book of business constituted nondisclosure of a significant asset, sufficiently serious to justify setting aside the separation agreement. The trial judge made further orders relating to equalization payments and child and spousal support obligations which are the subject of this appeal.

Issues:

(1) Did the trial judge err in determining the equalization payments owing to her based on a flawed assessment of the book of business?

(2) Did the trial judge err in quantifying the respondent’s income for child support purposes?

(3) Did the trial judge err in dismissing the appellant’s claim for spousal support?

Holding:

Appeal allowed in part.

Reasoning:

On points of law, the trial judge’s decision is reviewable on a standard of correctness.  Any factual determinations must be reviewed on a reasonableness standard.

Spousal support decisions attract significant deference.  This is informed by both the discretion involved in making support orders and the importance of finality in family law litigation.  An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law.  It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently:  Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.

(1) No. The trial judge gave fair consideration to the appellant’s proposed alternative valuation approach. He acknowledged that a share purchase agreement to which the appellant was a party employed the “commission earnings” approach outlined in the appellant’s internet research. Based on that evidence, the trial judge acknowledged that it would have been open to the court to find that the value of the book of business at the date of separation was far higher than the $120,000 transition allowance that the respondent received.  However, the trial judge chose to rely on the transition allowance as the fairest available assessment of value. This was a reasonable choice. The trial judge did not receive any independent evidence as to the reliability of the appellant’s internet research or the assumptions on which it was based.

(2) Yes. The trial judge erred in deducting business expenses given the lack of evidence from the respondent on this point, coupled with the trial judge’s finding that the “lion’s share of the respondent’s business expenses were paid through 179.” The burden of proof for the deductions rested with the respondent. Any further deduction needed to be supported by evidence, which was lacking.

As well, the trial judge provided no explanation for why he averaged out the respondent’s income for the three previous years in relation to the year in which support was owing. He simply stated that it was reasonable to do so. However s. 17(1) of the Child Support Guidelines, O. Reg. 391/97 permits the court to look at the spouse’s income over the last three years in the following circumstances:

17(1) If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

The Court of Appeal cited its prior decision in Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 138, which held that “the Guidelines rely on the more recent past to predict the near future and do not adopt average as a default methodology.”

It was an error for the trial judge to use a three-year average of income without providing a satisfactory explanation of how the use of each year’s income would be unfair to either party. The Court of Appeal therefore based the amount of child support owing for each year based on the income findings for those years but without applying a 15% deduction for business expenses.

(3) Yes. While the trial judge did not err in dismissing the appellant’s claim for compensatory spousal support, the judge erred in failing to consider any basis for non-compensatory support. It was an error to not consider in his analysis of spousal support the respondent’s misrepresentations concerning his income and the impact they had on the appellant during the marriage and after it came to an end. The Court of Appeal cited the Spousal Support Advisory Guidelines, The Revised User’s Guide (Ottawa: Department of Justice, 2016) [“SSAGs”], at ch. 4, where it states that “[c]ommon markers of non-compensatory claims include the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant”.

The trial judge made no findings of fact concerning the respondent’s misrepresentations to the parties’ economic interdependence, the marital and post-marital standards of living and, most significantly, the financial impact on the appellant of the respondent’s chronic misrepresentations as to his income.

The appellant gave up the pursuit of higher education during their relationship, as she believed her continued employment income was essential to the family, allowing the respondent to focus on building his network of contacts.

The trial judge found that the possibility of lost employment opportunities did not, by itself, create an entitlement to spousal support. However, the trial judge was bound to consider this evidence in combination with the other impacts of the respondent’s misrepresentations to the appellant. Namely, had the respondent not misrepresented his income and assets but rather had provided the support and equalization ultimately found owing, the appellant would have had the funds to purchase and remain in the matrimonial or provide a down payment on another suitable home. The respondent’s behavior has significantly impacted the appellant’s financial position. The court therefore awarded the appellant retroactive and ongoing time-limited spousal support on a non-compensatory basis at the low-end of the SSAGs for 10 years from the date of separation.

Parent v. Janandee Management Inc., 2017 ONCA 922

[Trotter, Paciocco and Nordheimer JJ.A.]

Counsel:

Douglas A. Wallace and Tori C. Wallace, for the appellants

Brian Brock and Joanna Reznick, for the respondents

James Schacter and Neil Searles, for the respondent/appellant by cross-appeal

Keywords: Torts, Negligence, Duty of Care, Foreseeability, Apportionment of Liability, Fault, Negligence Act, R.S.O. 1990, c. N.1, s. 1, Jury Charge, Costs

Facts:

Janandee is a condominium developer that advertised in Toronto with portable, A-frame signs on city sidewalks. Upright Signs was contracted by Janandee to install signs at designated intersections. On March 23, 2002, the respondents, Dr. Jocelyne Parent and her husband, John Hendrix, were walking westbound on the sidewalk located on the south side of King Street, near Bay Street, in Toronto. The day was windy and Dr. Parent was struck in the face by one of Janandee’s A-frame signs. The evidence was that the sign lifted about six inches off the ground and then struck Dr. Parent.  As a result of the incident, Dr. Parent was knocked to the ground, hitting her head on the sidewalk. She sustained a broken nose, fractured orbit, and traumatic brain injury.

Following a fifteen-day trial, a jury found all defendants liable, and awarded Dr. Parent $2,900,169.60 in damages, plus interest and costs. The jury found that Janandee and Upright Signs were both negligent and apportioned liability as follows: Janandee 94% and Upright Signs 6%. The trial judge subsequently ordered Janandee and Upright Signs to pay costs to the respondents in the amount of $727,290.00 and ordered Janandee to pay costs to Upright Signs in the amount of $210,000.00.

Legal Issue:

(1) Did the trial judge err in concluding that Janandee owed a duty of care to the plaintiff?

(2)  Did the trial judge properly instruct the jury on the principles of apportionment of liability?

(3) Did the trial judge erroneously instruct the jury on the issue of foreseeability?

(4) Did the trial judge err in awarding costs?

Holding: Appeal dismissed.

Reasoning:

(1) No, this submission is untenable. A party who places, or arranges to have placed, signs on public sidewalks clearly owes a duty of care to members of the public to ensure that those signs are placed in a manner that will not cause injury to pedestrians or others who might reasonably be affected.  There is a sufficiently close relationship between the persons placing signs, and the persons using the sidewalks, such that it would be within the reasonable contemplation of the former that carelessness on their parts might cause damage to the latter.  Further, there are no considerations which ought to negative or limit the scope of the duty or the persons to whom it is owed.

However, the Court found that there was an issue with the trial judge’s charge to the jury. He spent a significant amount of time explaining why he had found that a duty of care was owed. Providing an explanation as to why a duty of care has been found runs the risk that the explanation may unintentionally influence the jury’s consideration of the two issues that they have to decide, that is, whether a defendant was negligent and the apportionment of fault as between two or more negligent defendants.  In other words, the jury may take the trial judge’s explanation as to why a duty of care has been found as indicating, or telegraphing, his/her view on the defendants’ liability. Indeed, in this case several of the comments impugned by Janandee are found in comments the trial judge made about whether a duty of care applied. However, the Court ultimately found that while this ran a risk that ought not to have been taken, these comments did not misled or influence the jury.  What the trial judge ought to have done, after setting out the three elements, was simply advise the jury that he had concluded, as a matter of law that a duty of care was owed by the defendants to the plaintiffs and thus the jury did not have to concern itself with that issue.

(2) No. Janandee submitted that the trial judge confused the issue of causation, which is relevant to the breach of the duty of care, with the issue of fault that is relevant to the apportionment exercise. Janandee argued that this error was sufficiently serious that the Court should intervene by setting aside the jury’s verdict and reapportioning the liability 75% to Upright Signs and 25% to Janandee.

Janandee correctly pointed out that s. 1 of the Negligence Act provides that where damages are caused or contributed by two or more persons “the court shall determine the degree in which each of such persons is at fault or negligent”. Fault is different than causation. The notion of fault involves a consideration of the blameworthiness of the actions of each of the defendants who have contributed to the damages suffered.

The potential difficulty arises when one gets to question #5, the apportionment question.  It refers back to the negligence questions (i.e., questions #1 and #3) and then simply asks for the percentage split.  Specifically, question #5 was: “Only if the answers to questions 1 and 3 are both “yes”, how do you apportion the respective degrees of fault?”

Two blanks were left beside the two defendants for a percentage to be inserted, with the total already marked as having to add to 100%.

In his charge to the jury, the trial judge said the following:

If your answer to Questions 1 and 3 is yes, then you must answer Question 5 which requires you to apportion the respective degree of fault. You will note the question is already filled in in the total of 100. The apportionment must total 100 percent. There can be any two numbers that total 100. For example, the apportionment can be that 75/25 in either party’s favour; 68/32; 50/50; 100/0.

The trial judge did not draw the jury’s attention (at any point in his charge) to the fact that determining the degrees of fault is a different exercise than determining causation.  It would have been better if the trial judge had explained to the jury that, when they came to the apportionment question, they must consider fault, in the sense of blameworthiness, and not causation.  It might also have been helpful at that point to draw to the jury’s attention the evidence that related to that determination.

While the Court found that the language used by the trial was not the best, it did not invite the jury to apportion based on causation. The jury was directed to consider specific negligence on the part of the defendants. The reference to “it” refers to the subject of the sentence, the specific negligent act.

Any room for confusion caused by including causation references in the apportionment discussion is not of such a magnitude as to warrant intervention in the result. The jury’s question shows that the jury knew it was apportioning based on its answers to question 1 and 3, relating to the specifics of negligence, and not on a causation basis.

(3) No. Janandee argued that this error manifested itself in the trial judge referring to the position of the appellant as the incident amounting to an “Act of God”.  The trial judge provided counsel with his charge in advance. Time was spent reviewing the draft charge with counsel and obtaining their input.  Counsel for Janandee did raise an issue with the trial judge’s instructions on foreseeability but not on the point that Janandee now raises.

Nevertheless, characterizing Janandee’s position as amounting to an “Act of God” defence probably ought not to have been said. However, the particulars of the negligence provided by the jury, fairly read in relation to Janandee, do not support any conclusion that this reference materially impacted on the jury’s conclusions.

(4) No.  The appellant sought to cross-appeal regarding the trial judge’s costs awards. The cross-appeal was denied. While the Court accepted that there may be a measure of inconsistency between the specific individual awards that the trial judge decided on, they were all matters within the discretion of the trial judge.  The suggested errors did not rise to the level of seriousness that is required to satisfy the rare instance where leave to appeal a costs award will be granted.

Fleischhaker v. Attwood, 2017 ONCA 927

[Blair, Pardu and Brown JJ.A.]

Counsel:

Michael Davies, for the appellant

Jacquie Dagher, for the respondent

Keywords: Administrative Law, Health Law, Consent and Capacity Board, Procedural Fairness, Health Care Consent Act, ss. 4 and 80

Facts: The Consent and Capacity Board found that the appellant was incapable with respect to treatment within the meaning of s. 4 of the Health Care Consent Act, and incapable with respect to treatment with “psychotropic medication”. The evidence supported a finding that due to mental illness the appellant was incapable of appreciating the reasonably foreseeable consequences of a decision or lack of a decision respecting treatment. The issue raised by the appellant at the hearing related to his concern regarding the side-effects of the drug Clozapine. The respondent’s evidence was that he considered that Clozapine might improve the appellant’s condition but that he did not propose to administer that drug. He sought only to treat the appellant with the drug “Abilify”, and not Clozapine.

During the hearing, the Board limited the appellant’s proposed cross-examination of the respondent and introduction of material through cross-examination as to the side effects of Clozapine. The Board ruled that the proposed cross-examination and the material were irrelevant given the respondent’s proposed treatment of the appellant. The appellant seeks a new hearing on grounds of denial of procedural fairness or, in the alternative, a narrowing of the order to provide for treatment by administration of Abilify.  During the hearing of this appeal, counsel for the respondent conceded that, given the position taken by the respondent before the Board, it would be open to the Court to narrow the order to refer to Abilify.

Issues:

(1) Should a new hearing of the Consent and Capacity Board be ordered?

(2) Should the order of the Consent and Capacity Board be amended?

Holding: Appeal allowed in part.

Reasons:

(1) No. If the order is narrowed, the issue of the limitation imposed by the Board on the cross-examination and material regarding the side-effects of Clozapine is cured, so a new hearing is not required.

(2) Yes. Pursuant to s. 80 of the Health Care Consent Act, the order of the Consent and Capacity Board is amended by deleting “psychotropic medication” and substituting “Aripiprazole”.

Single Source Contracting Services Inc. v. Valiant Machine & Tool Inc., 2017 ONCA 925

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

Counsel:

Gino Morga, Q.C., for the appellant

Thomas McRae, for the respondent

Keywords: Civil Procedure, Settlements, Enforcement, Payment into Court, Rules of Civil Procedure, Rule 72

Facts:

The appellant Single Source and the respondent Valiant were parties to litigation commenced in April 2007. They believed they had reached a settlement at a pre-trial conference, and the actions were marked “settled” by the pre-trial judge, and removed from the trial list. The parties then disagreed about the terms of the settlement. Single Source sought to restore the action to the trial list and Valiant moved to enforce the settlement. The motion judge found that there was agreement on the material terms. Single Source now appeals that decision.

Issues:

(1) Did the motion judge err in failing to address and give effect to the evidence of Matthew Todd, Single Source’s former lawyer, to support the contention that Single Source’s proposal to creditors was not a term of the settlement?

(2) Did the motion judge err in not drawing an adverse inference from Valiant’s failure to provide an affidavit from its former lawyer, Bryce Chandler, who had left the practice of law?

(3) Did the motion judge err in including a term requiring Single Source to file a bankruptcy proposal without evidence that it qualified to make a proposal?

(4) Did the motion judge err in not considering an Assignment Agreement dated June 24, 2014, purporting to assign its claims against Valiant to a third party, Sterling Ridge Investments Inc.?

(5) Did the motion judge err in ordering that monies be paid into court, as there is no mechanism for payment out of court?

Holding: Appeal dismissed.

Reasoning:

Regarding the standard of review, the court held that the motion judge’s interpretation of the parties’ agreement, based on his review of the evidence, is entitled to deference.

(1) No. The draft settlement documents exchanged between counsel contemplated that Single Source would file a proposal to creditors.

(2) No. The Court held that there was nothing that an affidavit from Mr. Chandler could have added to the evidence.

(3) No. The court held that there was no merit to this argument. This was a term to which the parties agreed, and was not an additional term imposed by the court.

(4) No. Mr. Mueller, director of Corporate Development and General Counsel, deposed that Valiant had no knowledge of the assignment until the appellant retained its present counsel. Accordingly, the assignment was not referred to in the parties’ negotiation of their settlement, and could not have affected its terms.

(5) No. The court held that the parties could resort to rule 72.03 of the Rules of Civil Procedure for both the payment into court and payment out – whether on consent or by order of the court.

Soraya v. Claron Technology Inc., 2017 ONCA 935  

[Sharpe, Benotto and Roberts JJ.A.]

Counsel:

R Cohen and C Selby, for the appellant

J Adair, for the respondent

Keywords: Employment Law, Contracts, Employment Agreements, Vesting of Stock Options, Duty of Good Faith, Duty of Honest Performance, Marshall v. Bernard Place Corp., [2002] OJ No 463 (C.A.), Wrongful Dismissal, Mitigation, Oppression

Facts:

This appeal involves the claim of the respondent employee (Soraya) under his employment contract that included stock options. The application judge found that the Lexmark sale of part of the appellant’s business amounted to the sale of “all or substantially all of the assets of the Company” constituting a “triggering event” that caused the respondent’s remaining 20,000 unvested options to vest under the appellant’s Option Plan.

Issues:

(1) Did the application judge err in finding that the respondent was entitled to the benefit of the appellant’s Option Plan?

(2) Did the application judge err in finding that there was a “triggering event” and in rejecting the appellant’s Board’s determination that the sale to Lexmark did not constitute a “triggering event”?

(3) Did the application judge err in failing to find that the respondent did not properly exercise his options?

(4) Did the application judge err in finding that the respondent had discharged his duty to mitigate his claim for wrongful dismissal?

(5) Did the application judge err in requiring the appellant to purchase the respondent’s options through Claron Holdings Inc., a non-party?

Holding: Appeal dismissed.

Reasoning:

(1) No. When he was hired, although he was not given a copy of the Option Plan, the respondent was told that the appellant had a “great stock option plan”. That indicated that an Option Plan did in fact exist. The appellant dealt with both the respondent and other employees on the basis that the provisions of the Option Plan governed and it was only after this litigation commenced that it took the position vis-à-vis the respondent that it was a non-binding draft. There was ample evidence to support the application judge’s finding that the Option Plan was binding on the company.

(2) No. There was ample evidence to support the application judge’s finding that the sale to Lexmark represented 87 to 89% of the value of the appellant’s assets and therefore amounted to a triggering event. Moreover, despite the appellant’s argument that the application judge erred by failing to apply terms in the Option Plan making the determinations of the Board “final, conclusive and binding” and “not subject to any dispute by any participant”, the Court of Appeal found that the application judge properly applied the decision of Marshall v. Bernard Place Corp., [2002] OJ No 463 (C.A.), holding that sole discretion clauses of this nature do not confer absolute discretion but rather must be exercised honestly and in good faith. The only members of the Board were Gatti and Doron (the co-CEOs). The application judge found that they would personally benefit from rejecting the respondent’s contention that a triggering event had occurred and that their determination that there had not been a triggering event was not made in good faith. Again, that finding was plainly open to the application judge on this record.

(3) No. The respondent did not fail to exercise his options in the required manner. When the respondent’s counsel provided notice that he was exercising his options, the required payment was not made. Payment was eventually made, but the appellant argued that there were “strings attached” as the letter enclosing payment specified that if the appellant cashed the cheque, it would be taken to have accepted the respondent’s position that all 40,000 shares had vested.  The Court of Appeal found that by taking this position, the respondent did not impose an improper condition on the payment. He was simply making clear the consequences of accepting the payment. The remedy of relief from forfeiture would not apply in these circumstances, as it would be inconsistent with the legal basis for the remedy, namely to relieve a party from strict compliance.

(4) No. Gatti had dismissed the respondent and had questioned his integrity. Gatti became a senior officer in the company in which the respondent would have been employed. In these circumstances, it was open to the application judge to conclude that it was reasonable for the respondent not to seek employment with Lexmark.

(5) No. Doron and Gatti, who beneficially owned and controlled the appellant, chose to use Claron Holdings Inc. as a vehicle to satisfy the appellant’s obligations under the Option Plan when dealing with its other employees and there was no reason to treat the respondent differently. There was evidence from which the application judge was entitled to infer that Doron and Gatti were the beneficial owners of and controlled Claron Holdings Inc. The application judge did not err in holding that their conduct amounted to oppression under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16.

Waterloo v. C.T., 2017 ONCA 931

[MacFarland, Watt and Benotto JJ.A.]

Counsel:

Jeffrey Boich, for the Children’s Aid Society of the Regional Municipality of Waterloo

Julie Kirkpatrick, for C.T.

Katherine Hensel, for J.B.

Catherine Bellinger, Office of the Children’s Lawyer, for the child

Susan M. Sack and Kelly Eckert, for Brigitte Gratl

Stan Jenkins and Marie Abraham, for the intervener Legal Aid Ontario

Keywords: Family Law, Crown Wardship, Adoption, Access, Indigenous Children, Openness Hearing, Jurisdiction, Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 37(3), 59(2.1) and 145.1.1 (3), Fresh Evidence, Motherisk Drug Tests, Canadian Charter of Rights and Freedoms, s. 7, Declaratory Relief, Costs Against Counsel

Facts:

This is the second appeal from the trial decision that a 10-year-old girl be made a Crown ward with no access for the purpose of adoption. The first appeal judge ordered access followed by an openness hearing before him. The appeal judge found trial counsel incompetent and ordered her to pay costs personally. The appeal judge also found that there had been a miscarriage of justice.

Issues:

(1) Did the appeal judge err in ordering access?

(2) Are the parents entitled to a declaration that their s. 7 Charter rights and the rights of the child have been violated?

(3) Did the appeal judge err in finding ineffective assistance of counsel and ordering costs against counsel personally?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. First, the appeal judge found no overriding and palpable error by the trial judge and therefore erred in varying the “no access” order.

The conclusion that the trial judge made no errors should have ended the appellate inquiry. Instead, the appeal judge went on to consider fresh evidence about access which did not support overturning the trial judge’s decision. While the rule for admitting fresh evidence is more flexible in a child protection matter so that evidence providing “an accurate assessment of the present situation” can be considered, the proposed fresh evidence did not in fact provide an accurate assessment of the present or future. Further, there was nothing in the fresh evidence about access that was not before the trial judge.

Second, the statutory requirements of section 59(2.1) of the Child and Family Services Act (the “Act”), prohibit the making of an access order in this case. Section 59(2.1) of the Act sets out a conjunctive test to place Crown wards with access for adoption. This section creates a presumption against access for a Crown ward. The appeal judge failed to identify how the parents had discharged their burden to show that access was “meaningful and beneficial” to the child as required under s. 59(2.1). There was no uncontroverted evidence of the adoptive mother that she would not adopt if there was contact with the parents. This would make the access order statutorily impossible. Further, section 37(3) which sets out the “best interests” provisions of the Act, does not supersede the requirements of s. 59(2.1). While the goal of best interests is never abandoned, neither are the specific and mandatory requirements that must be established before an order for access can be made. These mandatory provisions are applied in the context of the child’s best interests.

Finally, the appeal judge erred in partially basing his order of access on the indigenous status of the child. Indigenous children are not automatically exempt from the access provisions for Crown wards under the Act. The legislation makes clear that the circumstances of each individual child must be considered in their entire context.  The appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture; that the child was ever exposed to the Indigenous culture; or that anyone from the Indigenous community had ever been involved with the parents or the child. The Indigenous heritage of the child was not raised until the appeal stage. While Indigenous membership has expanded to include self-identification, there must still be evidence in relation to the child so a determination can be made as to whether access is beneficial or meaningful to her. The appeal judge erred by ordering access based on the parents’ self-identification in the absence of any evidence on this issue specific to the child. In doing so, he against ignored the requirements of s. 59(2.1) of the Act.

Openness Hearing:

The Court of Appeal also found, on a related issue, that the appeal judge had no jurisdiction to order an openness hearing or to seize himself of it. By making the access order, to be followed by the openness hearing, the appeal judge ignored the mandatory process set out in s. 145.1.1 (3) of the Act. This process involves notices by the Society to all parties and timelines before the hearing. Openness should not be confused with access. When a Crown wardship order is granted with access, the parental relationship with the child is preserved. When a Crown ward is sought to be placed for adoption, the goal is permanency and the success of the adoption.

The appeal judge had no jurisdiction to seize himself of the hearing because he was sitting in a non-Family Branch site and was acting in his appellate capacity as a Superior Court judge. The court with jurisdiction to conduct an openness hearing in Kitchener-Waterloo is not the Superior Court by the Ontario Court of Justice.

(2) No. The remedy of a declaratory judgment is “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”. It can only be granted if it will have practical utility, that is, if it will settle a “live controversy” between the parties. There is no utility to the remedy sought by the parents. There is no issue. There are not two parties. There are no relative interests which fall to be determined and nothing will be settled as a result.

Furthermore, the statement that the justice system has adopted a passive acquiescence of the Motherisk test results is of no relevance on appeal because the trial judge explicitly ignored the Motherisk test results and placed no weight on them in coming to her findings. As well, the evidence of the parents’ conduct apart from the test results supported the trial judge’s findings.

There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The test for rebutting the presumption of impartiality is two-fold. First the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. A mere suspicion is not enough. The analysis contemplates a hypothetical observer who is informed of all the facts and does not depend upon the views or conclusions of the litigant. The appeal judge erred in only referring to the impressions of counsel and the parents and not the objective observer. He also did not articulate exactly what conduct by the trial judge created the apprehension bias.

(3) Yes. Having found no error on the part of the trial judge, the issue of ineffective assistance was moot. As well, it was not open to the appeal judge to consider counsel’s failure to apply for an access order after the trial judgment. The issue before him was the “no access” order at trial. The appeal judge’s order on the issue of costs owed by the counsel derived from his conclusion as to competence should be reversed.

Cunningham v. Hutchings, 2017 ONCA 938

[Brown J.A. (In Chambers)]

Counsel:

Bryan Fromstein and A. Fabio Longo, for the moving party, Mildred Cunningham

Nawaz Tahir, for the responding party, Deanna Walsh

Keywords: Civil Procedure, Dismissal for Delay, Extension of Time to Appeal, Laski v. Laski, 2016 ONCA 337

Facts:  The Appellant Mildred Cunningham moved for an extension of time to appeal the March 8, 2017 order of Gordon J. dismissing her action (the “Dismissal Order”). The respondent, Deanna Walsh, opposed the motion. Ms. Cunningham was involved in two automobile accidents: one on June 16, 2010; the other on April 29, 2011. She commenced this action on March 30, 2012, seeking damages for injuries she alleges she suffered in those accidents.

Ms. Cunningham was not diligent in moving her action along. The pressure of an August 2014 Status Notice prompted her undergoing examinations for discovery, which took place in early 2015. However, on January 6, 2016, Ms. Cunningham’s action was dismissed administratively for delay. She had it restored in September 2016. Before a global mediation scheduled for December 2016 took place, Ms. Cunningham’s then counsel moved to get off the record, and the mediation did not occur. By order dated November 16, 2016, Reilly J. ordered Ms. Cunningham’s then counsel to be removed as solicitor of record and required Ms. Cunningham to either appoint a new lawyer or serve a notice of intention to act in person. She failed to do so. As a result, Ms. Walsh moved to dismiss the action due to Ms. Cunningham’s failure to appoint a lawyer or file a notice of intention to act in person. Ms. Cunningham did not attend on the return of the motion. Gordon J. granted the Dismissal Order. He gave no reasons for the order. Ms. Cunningham then retained new counsel.

Instead of appealing the Dismissal Order, Ms. Cunningham moved to set aside the Dismissal Order on the basis it was made without notice to her. By order dated September 14, 2017, Flynn J. dismissed her motion, concluding the materials for the March 8, 2017 motion had been delivered to Ms. Cunningham’s residence. He took the view Ms. Cunningham was arguing the Dismissal Order was wrong, and he therefore found that her remedy was to appeal to the Court of Appeal.

Ms. Cunningham has appealed the order of Flynn J, and all materials needed to perfect that appeal are ready. Ms. Cunningham then brought this motion for an extension of time to file a notice of appeal from the Dismissal Order. If granted, she requests the appeals of the Dismissal Order and the order of Flynn J. proceed together.

Issues:

(1) Should the appellant be given an extension of time to file a notice of appeal from the Dismissal Order?

Holding: Motion granted.

Reasoning:

(1) Yes, but with terms. The applicable principles are those set out by Gillese J.A. in Laski v. Laski, 2016 ONCA 337. There is no doubt Ms. Cunningham formed the intention to challenge the Dismissal Order, but it is not clear she formed an intention to appeal the order within the relevant time period. She did not file an affidavit on this motion, so there is no direct evidence of her intention. Her conduct indicates that within the prescribed appeal period she elected to move to set aside the Dismissal Order. That is not the same as forming an intention to appeal.  A motion to set aside or vary an order under rule 37.14 is not a “free kick at the can” which, if it fails, then permits a party to launch an appeal of the order. Such an application of the Rules of Civil Procedure would be antithetical to their objective in securing timely and cost-effective adjudications of cases on their merits. Ms. Cunningham decided to advance technical arguments on a motion to vary instead of taking the direct route and appealing the Dismissal Order on its merits. Accordingly, this factor weighs against her.

The delay of eight months before seeking this extension of time to appeal is not inordinately long. But, as mentioned, Ms. Cunningham’s explanation of first bringing a motion to set aside rather than appealing the Dismissal Order hints more at tactical maneuvering than dealing with the merits of the order head-on. This factor is at best neutral.

The responding party cannot point to any actual prejudice in the sense of lost evidence or diminished memory of witnesses. Yet, the responding party is faced with a plaintiff who seems unwilling to proceed with due dispatch and such delay brings with it its own prejudice. This factor is neutral.

On a motion to extend the time to appeal, the court must consider whether the proposed appeal “has so little merit that the court can reasonably deny the moving party his or her important right of appeal”. Gordon J. did not give reasons for granting the Dismissal Order. Accordingly, Brown J.A. assumed that the reason Gordon J. dismissed Ms. Cunningham’s action was because she failed to appoint a new lawyer or file a notice of intention to act in person as required by the order of Reilly J. Why the dismissal of her action was a proportionate response to that failure cannot be ascertained in the absence of reasons. A party is not obligated to appoint a lawyer to represent her in a civil action, as parties are entitled to represent themselves. Not appointing a new lawyer may signify that the party intends to represent themselves.

The notice of intention to act in person appears designed to ensure the party’s address for service and telephone number is known to the court and to the other parties. Here, the responding party knew where Ms. Cunningham resided; she delivered the motion materials seeking the action’s dismissal to Ms. Cunningham’s residence.  Consequently, it is unclear what would have led Gordon J. to adopt the most draconian remedy in the circumstances of this case. It follows that Ms. Cunningham’s proposed appeal of the Dismissal Order raises a very arguable issue. This factor weighs strongly in Ms. Cunningham’s favour.

Brown J. was persuaded that the justice of the case favours granting Ms. Cunningham an extension of time to appeal. He was not impressed by her lack of diligence in pursuing her claim, but found that her proposed appeal is arguable, and that there would be no real prejudice to the responding party.

The motion was therefore granted, but with terms. First, Ms. Cunningham must perfect this appeal no later than December 15, 2017. Second, the appeal will be heard with her appeal from the order of Flynn J. Finally, although Ms. Cunningham succeeded on this motion, there was no order as to costs.

Holtby v. Draper, 2017 ONCA 932

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

Counsel:

Aaron M. Franks and Michael Zalev, for the appellant

William R. Clayton, for the respondent

Keywords: Family Law, Property Law, Presumption of Joint Ownership, Presumption of Resulting Trust, Family Law Act, R.S.O. 1990, c. F.3, s. 14, Corporations, Shares

Facts:

This appeal relates to final orders made after trial in matrimonial proceedings between the appellant Cheryl Draper, and the respondent, her former husband, Ken Holtby. The central issue at trial was ownership of property. The trial judge concluded that Ms. Draper’s 50% of the common shares in Knapton Farms Ltd. (“Knapton”), a corporation holding a farm and other property, and her 100% interest in 50 acres of land adjoining the farm property (“Lot 8”), were beneficially owned by Mr. Holtby by way of resulting trust.

Legal Issues:

(1) Did the trial judge err in concluding that Mr. Holtby was the beneficial owner of Knapton?

(2) Did the trial judge err in concluding that Mr. Holtby was the beneficial owner of Lot 8?

Holding:

Appeal allowed in part.

Reasoning:

(1) No.  Ms. Draper contends that there was no “transfer” of property by Mr. Holtby to her, as both parties participated in the incorporation of Knapton, so the doctrine of resulting trust does not apply. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust. The transferor’s intention at the time of the transfer is the critical consideration.  Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer.

The undisputed evidence was that Knapton was incorporated to hold Mr. Holtby’s farm property and business, it was precipitated by a desire to shelter the farm assets from claims by Mr. Holtby’s creditors and Ms. Draper provided only nominal consideration of $100 for the shares she received. The fact that Ms. Draper paid the same amount as Mr. Holtby for her common shares in Knapton is immaterial in this case. The absence of any consideration flowing from Ms. Draper at the time Mr. Holtby entered into the agreement to transfer his farm to the corporation in which she was a co-owner of the shares, is what makes the transfer gratuitous.

The trial judge correctly rejected the argument that there can be no resulting trust applied to Knapton’s assets simply because the shares themselves were not transferred directly from Mr. Holtby to Ms. Draper. Although the common shares themselves were not transferred, the farm assets were transferred gratuitously through Knapton. Knapton acted as a conduit through which ownership of the farm’s assets was conferred on Ms. Draper, through common shares.

Ms. Draper also asserts that Mr. Holtby’s motive in transferring his assets to Knapton, which was to defeat or delay creditors, is a bar to his resulting trust claim. This argument was rejected at trial. While the Court of Appeal agrees with Ms. Draper’s submission that the transfer was designed to defeat specific creditors, it disagrees that the trial judge’s reasons failed to recognize this fact and its implications for the issue of intent. While the trial judge may have suggested otherwise at one point in his judgment, the trial judge recognized that the transfer was designed to frustrate specific creditors, and the evidence amply supports this conclusion.

(2) Yes. The 50 acres comprising Lot 8 were originally held by Mr. Holtby and his first wife Bonnie in their joint names. In November 1994, Lot 8 was transferred from Mr. Holtby and Bonnie as joint owners to Mr. Holtby and Ms. Draper as joint owners, for consideration of $26,500. Then in May 1996, Mr. Holtby transferred his interest in Lot 8 to Ms. Draper “for natural love and affection”, making her the sole registered owner of the property.  Ms. Draper contends that the trial judge made a number of errors in concluding that the transfers in relation to Lot 8 were gratuitous. She relies here too on Mr. Holtby’s “illegal purpose” of attempting to defeat his creditors as a bar to his claim in respect of the 1996 transfer.

The Court held that there were three errors in the trial judge’s analysis:

(i) The trial judge reversed the presumption under s. 14 of the Family Law Act in dealing with the initial Lot 8 transfer. Section 14 provides that the fact that property is held in the name of spouses as joint tenants is proof, “in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.” Joint tenancy creates a rebuttable presumption of joint beneficial ownership, subject to a consideration of evidence to the contrary. The parties became joint registered owners of Lot 8, which, once they married in October 1995, created a rebuttable presumption in favour of joint tenancy. As such, Mr. Holtby was not entitled to rely on a presumption of resulting trust, and he had the onus of establishing, by evidence to the contrary, that his intention was not to transfer a beneficial interest to Ms. Draper.

(ii)  The trial judge’s characterization of the transfer as gratuitous was not supported by the evidence.

(iii) The trial judge erred in his conclusion about the reason for putting Lot 8 into the parties’ joint names. Unlike with Knapton, here the motive was not to defeat creditors. Rather, the trial judge accepted that, just as Bonnie was on title for Planning Act purposes, so was Ms. Draper.

Short Civil Endorsements:

Chechui v. Nieman, 2017 ONCA 911

[Strathy C.J.O., Cronk and Pepall JJ.A.]

Counsel:

Earl A. Cherniak, Q.C., Zohar R. Levy and Valois P. Ambrosino, for the appellant

Harold Niman and Chloe van Wirdum, for the respondent

Keywords: Costs, Divided Success

Criminal Decisions:

R v. St. Amand, 2017 ONCA 913

[Cronk, Juriansz and Paciocco JJ.A.]

Counsel:

Michael F.W. Bennett, for the appellant

Michelle Campbell, for the respondent

Keywords: Criminal Law, Child Pornography, Sentencing, Delay, Abuse of Process, COPINE scale, Notice of Constitutional Question,  Canadian Charter of Rights and Freedoms, s. 7 and s. 11(b), Criminal Code s. 163.1(3), R. v. Anderson, 2014 SCC 41, R. v. Jordan, 2016 SCC 27, R. v. Morin, [1992] 1 S.C.R. 77

R v. T.D.A., 2017 ONCA 910 (Publication Ban)

[Laskin, Feldman and Blair JJ.A.]

Counsel:

Halfyard and B. Vanderbeek, for the appellant

Michael Fawcett, for the respondent

Keywords: Criminal Law, Sexual Assault, Similar Fact Evidence, R. v. Dorsey, 2012 ONCA 185

R v. Thibert, 2017 ONCA 903

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Ian McLean, for the appellant

Andreea Baiasu, for the respondent

Keywords: Criminal Law, Sentencing

Ginn (Re), 2017 ONCA 921

[Rouleau, Pepall and Miller JJ.A.]

Counsel:

Anita Szigeti, for the appellant Kristopher Ginn

John Patton, for the Ministry of the Attorney General

Julie Zamprogna Balles, for Southwest Centre for Forensic Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Mental Health Law, Public Safety

R v. Kelly, 2017 ONCA 920

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Counsel:

Matthew Asma, for the appellant

Delmar Doucette, for the respondent

Keywords: Criminal Law, Manslaughter, Armed Robbery, Directed Verdict, New Trial, Criminal Code, s. 21, R. v. Arcuri, 2001 SCC 54, R. v. Simon, 2010 ONCA 754, R. v. Pickton, 2010 SCC 32

R v. O.N., 2017 ONCA 923 (Publication Ban)

[Watt, Hourigan and Miller JJ.A.]

Counsel:

Janani Shanmuganathan, for the appellant

Jennifer Mckee, for the respondent

Keywords: Criminal Law, Evidence, Inferences

R v. Marahar, 2017 ONCA 930 (Publication Ban)

[Watt, Hourigan and Miller JJ.A.]

Counsel:

Lawrence Ben-Eliezer, for the appellant

Karen Shai, for the respondent

Keywords: Criminal Law, Evidence, Burden of Proof

R v. Nuttall, 2017 ONCA 914

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Kevin Wilson, for the appellant

Anya Shahabi, for the respondent

Keywords: Criminal Law, Drug Offences, Expert Evidence, R. v. Graveline, 2006 SCC 16

R v. O’Brien, 2017 ONCA 929

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Sam Goldstein, for the appellant

Rebecca De Filippis, for the respondent

Keywords: Criminal Law, Withdrawing Guilty Plea, Highway Traffic Act, Criminal Code, s. 252(1.3) and s. 252(1.2), R. v. Krzehlik, 2015 ONCA 168

R v. Skeete, 2017 ONCA 926 (Publication Ban)

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

Counsel:

Timothy E. Breen, for the appellant

John Corelli and Kathleen Farrell, for the respondent

Keywords: Criminal Law, First Degree Murder, Evidence, Alibi, Admissibility, Hearsay, Issue Estoppel, Youth Sentencing, Instructions to the Jury, False Evidence, K.G.B. Statement, R. v. Mahalingan, 2008 SCC 63, Lewis v. The Queen, [1979] 2 S.C.R. 821, R. v. Candir, 2009 ONCA 915, R. v. Pasqualino, 2008 ONCA 554, R. v. Hart, 2014 SCC 52, R. v. Bradshaw, 2017 SCC 35, R. v. Frimpong, 2013 ONCA 243, R. v. Simard, 2000 SCC 61, W.(D.): R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.), R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.)

R v. Sochnyeva, 2017 ONCA 918

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

No one appearing for the appellant

Roseanna Ansell-Vaughan and Teresa Yang, for the respondent

Keywords: Criminal Law, Appeal Dismissed as Abandoned

R v. Ubeidi, 2017 ONCA 933

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Howard Piafsky, for the appellant

Evan Weber, for the respondent

Keywords: Criminal Law, Error of Law, New Trial

R v. W.W.A., 2017 ONCA 928

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Joseph S. Wilkinson, for the appellant

Michelle Campbell, for the respondent

Keywords: Criminal Law, Sexual Assault, Ineffective Assistance of Counsel, R. v. B. (G.D.), 2000 SCC 22

R v. L.C., 2017 ONCA 934

[Epstein, Paciocco, and Nordheimer JJ.A.]

Counsel:

Frank Miller, for the appellant

Andrew Cappell, for the respondent

Keywords: Criminal Law, Sexual Assault, Ineffective Assistance of Counsel, Fresh Evidence, R. v. G.D.B., [2000] 1 SCR 520

R v. V.J., 2017 ONCA 924

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

Counsel:

Courtney Keystone and Domenic Basile, for the appellant

Andreea Baiasu, for the respondent

Keywords: Criminal Law, Sexual Assault, Assault with a Weapon, Uttering Death Threats, Ineffective Assistance of Counsel, R. v. Joanisse (1995), 85 O.A.C. 186, R. v. G.D.B., 2000 SCC 22, R. v. Stark, 2017 ONCA 148, R. v. R.B., 2009 ONCA 524

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.

ONTARIO COURT OF APPEAL SUMMARIES (NOVEMBER 20 – NOVEMBER, 24 2017)

Good evening,

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

Congratulations to our very own Bill Anderson for succeeding on our client’s appeal in Holmes v. Hatch Ltd., 2017 ONCA 880. In this Employment law decision, the Court of Appeal allowed the appeal from the motion judge’s decision granting summary judgment against our client on the basis that the motion judge was not at liberty to find liability on a legal theory that was not pleaded by the plaintiff and which our client did not have an opportunity to properly address in the evidence.

Other topics covered included contractual liability, both in the construction context and in the auctioning of real property context, municipal liability for failure to repair a road in the MVA context, child support, child custody, access, Freedom of Religion under section 2(b) of the Charter, choice of law in the sale of goods context, striking third party claims in the class action context, determining a contract claim by way of application rather than by way of action, and setting aside fraudulent conveyances of real property.

Enjoy the weekend,

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

Table of Contents:

Bassett & Walker International Inc. v. Soleau International BVBA, 2017 ONCA 886

Keywords: Sale of Goods, Conflict of Laws, International Sale of Goods Act, Summary Judgment, Appeal Allowed

Collins Barrow Toronto LLP v. Augusta Industries Inc., 2017 ONCA 883

Keywords: Contracts, Debtor-Creditor, Limitation Periods, Applications, Determination of Rights Dependent on Interpretation of Contract, Rules of Civil Procedure, r. 14.05(3)(d)

Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA 879

Keywords: Torts, Negligence, Standard of Care, Industry Standards, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Foreseeability, Contractual Duties

Fenwick v. Concierge Auctions, ULC, 2017 ONCA 889

Keywords: Contract Law, Contractual Interpretation, Standard of Review, Standard Form Contracts, Correctness, Mixed Fact and Law, Reasonableness, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Real Estate, Auctions, Fees, Real Estate Commissions, Glendinning v. Cavanagh (1908), 40 S.C.R. 414, McBrayne v. Imperial Loan Co. (1913), 28 O.L.R. 653 (C.A.), William Allan Real Estate Co. v. Robichaud (1990), 72 O.R. (2d) 595 (H.C.)

House v. Baird, 2017 ONCA 885

Keywords: Torts, Negligence, Motor Vehicle Accident, Municipal Liability, Road Repair, Contributory Negligence, Negligence Act, R.S.O. 1990, c. N.1, s. 4, Civil Procedure, Damages, Future Pecuniary Damages, Discount Rate, Rules of Civil Procedure, Rule 53.09, Costs, Leave to Appeal Costs, Offers to Settle, Sanderson Orders, Moore (Litigation guardian) v. Wienecke, 2008 ONCA 162

Colucci v. Colucci, 2017 ONCA 892

Keywords: Family Law, Child Support, Jurisdiction, Divorce Act, ss. 15(1) and 17(1), D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37; Buckingham v. Buckingham

E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893

Keywords: Constitutional Law, Freedom of Religion, Canadian Charter of Rights and Freedoms, s. 2(a), Human Rights Code, R.S.O. 1990, c. H.19, Education Act, R.S.O. 1990, c. E.2, s. 169.1(1), Doré v. Barreau du Québec, 2012 SCC 12, [2012] S.C.R. 395, Loyola High School v. Québec, 2015 SCC 12, [2015] 1 S.C.R. 613

Wilfert v. McCallum, 2017 ONCA 895

Keywords: Civil Procedure, Judgments, Enforcement, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Gauthier v. Woollatt, [1940] 1 D.L.R. 275 (Ont. Sup. Ct.), Pleadings, Motions to Strike, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21, Pleading Fraud, Rules of Civil Procedure, Rule 25.06(8), Balanyk v. University of Toronto (1999), 1 C.P.R. (4th) 300 (Ont. S.C.), Bankruptcy and Insolvency, Assignments of Causes of Action, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38

Holmes v. Hatch Ltd., 2017 ONCA 880

Keywords: Contracts, Employment Law, Employment Agreements, Repudiation, Fundamental Breach, Termination of Employment, Reasonable Notice Period, Civil Procedure, Pleadings, Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74 (C.A.)

Berman v. Berman, 2017 ONCA 905

Keywords: Family Law, Custody, Kaplanis Test, Best Interest of the Child, Maximum Contact Principle, Equalization, Resulting Trust, Loan, Costs

J.K. v. Ontario, 2017 ONCA 902

Keywords: Civil Procedure, Striking Pleadings, Third Party Claims, Contracts, Indemnities, No Reasonable Cause of Action,  Class Proceedings, Crown Liability, Negligence, Breach of Fiduciary Duty, Vicarious Liability, Contributory Negligence, Charter Violations, Canadian Charter of Rights and Freedoms, ss. 7, 9, and 12

York (Municipality) v. Irwin, 2017 ONCA 906

Keywords: Municipal Law, Building Code Violations, Orders to Comply, Provincial Offences, Trials, Disclosure Orders, Certiorari, Collateral Attack, Provincial Offences Act, R.S.O. 1990, c. P.33, Building Code Act, 1992, S.O. 1992, c. 23

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Civil Decisions:

Bassett & Walker International Inc. v. Soleau International BVBA, 2017 ONCA 886

[Cronk, Pardu and Huscroft JJ.A.]

Counsel:

G R Hall and A Lewis, for the appellant

T J Law and A Mazzotta, for the respondent

Keywords: Sale of Goods, Conflict of Laws, International Sale of Goods Act, Summary Judgment, Appeal Allowed

Facts:

The respondent, a trader of seafood products, purchased shrimp from an Ecuadorian supplier for shipment to the appellant, a Toronto-based company, via an Ecuadorian shipping line for delivery to a port in Mexico. Some of the documents pertaining to the sale stipulated that Belgian law applied to disputes arising out of the contract. Other documents contained no governing law provisions. The appellant appealed from a summary judgment holding it liable to the respondent for the full unpaid purchase price for the shrimp. The motion judge determined the appellant’s liability as if it was governed by the law of Ontario.

Issues:

(1) Should summary judgment be set aside on the basis that the motion judge applied the wrong governing law?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The parties appeared to have assumed that the contract was governed by domestic Ontario law. No issue as to the law governing the contract was raised before the motion judge. The question of the proper law of the contract is a threshold issue. The matter not having been raised before or considered by the motion judge, it is uncertain that her analysis of the issues in contention and her conclusions on those issues might not have been different had the proper law of the contract and its application here been fully argued before her. Summary judgment was set aside, and the matter was remitted to the motion judge for a new hearing on the parties’ competing summary judgment motions.

Collins Barrow Toronto LLP v. Augusta Industries Inc., 2017 ONCA 883

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

L Klug, for the appellant

E S Birnboim and B Xue Griffin, for the respondent

Keywords: Contracts, Debtor-Creditor, Limitation Periods, Applications, Determination of Rights Dependent on Interpretation of Contract, Rules of Civil Procedure, r. 14.05(3)(d)

Facts:

Augusta Industries Inc. appeals from the judgment awarded in favour of Collins Barrow Toronto LLP on invoices delivered for services rendered as the auditors for Augusta Industries Inc.

Issues:

(1) Did the application judge err in failing to convert the application into an action, since the appellant alleged that the respondent had been negligent in the provision of its services?

(2) Are any of the outstanding invoices barred through expiration of the applicable two-year limitation period?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge concluded that it was open to her to determine the respondent’s claim under r. 14.05(3)(d) of the Rules of Civil Procedure on the basis that the claim arose from the determination of rights that depend on the interpretation of a contract.  While the formal Notice of Application refers to r. 14.05(3)(h), the court held that this did not preclude the application judge from relying on the sub-rule that she did to determine the matter.

Furthermore, the application judge was correct in concluding that there was no reason to postpone the determination of whether the appellant was liable to the respondent on the unpaid invoices. In support, the application judge noted that the appellant had not adduced any expert evidence supporting its allegation of negligence, much of the appellant’s evidence was hearsay (or double hearsay), and there was no reliable evidence that the appellant had suffered any damages.

(2) No. The application was commenced on April 14, 2016.  The application judge concluded that the first two invoices in dispute were the subject of an express agreement in the January 2014 engagement letter that they would be “settled” by April 15, 2014.  As a consequence, claims on those two invoices were not barred by the two-year limitation period.  The Court held that this interpretation was both available and reasonable on the language of the engagement letter and that the application judge’s interpretation of the engagement letter was owed deference.

The Court also agreed with the application judge that in the interests of expediency, there was no reason to delay the determination of liability on the unpaid invoices pending any determination of a negligence claim.

Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA 879

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

P Pengelley and R Sottile, for the appellant
P J Monaghan and C Lui, for the respondent

Keywords: Torts, Negligence, Standard of Care, Industry Standards, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Foreseeability, Contractual Duties

Facts:

The Appellant, Mabe Canada Inc., sustained damages of approximately $1 million when a drainage pipe, running underneath a floor installed by the respondent, United Floor Ltd., caused a flood in its warehouse. The appellant’s claim in negligence was dismissed by the trial judge.

Issues:

(1) Did the trial judge err in not taking into account the respondent’s contractual duties in determining the standard of care?

(2) Did the trial judge err in his foreseeability analysis?

(3) Did the trial judge err in failing to determine whether relevant industry practice was itself negligent and should not have been followed?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The trial judge accepted expert evidence that the respondent had no reason to foresee that the pipe would be at a shallow depth. As a result, the respondent’s duty under the contract to notify the builder of the warehouse if subsurface conditions differ significantly from those indicated in the Contract Documents, was not triggered.

(2) No. The trial judge accepted expert evidence that there was no reason for the respondent to not put a stake in the ground at the location it did. This finding was open to the trial judge on the record before him.

(3) No. Although conformity with standard practice in an industry does not necessarily insulate a defendant from a finding of negligence, as the Supreme Court explained in ter Neuzen v. Korn, a practice will be determined negligent only if it does not conform with basic care easily understood by the ordinary person who has no expertise in the practices of the profession. In other words, only where it is “fraught with danger”.

Fenwick v. Concierge Auctions, ULC, 2017 ONCA 889

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

R G Slaght and P Healy, for the appellant

J E Schatz and S Azzopardi, for the respondent

Keywords: Contract Law, Contractual Interpretation, Standard of Review, Standard Form Contracts, Correctness, Mixed Fact and Law, Reasonableness, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Real Estate, Auctions, Fees, Real Estate Commissions, Glendinning v. Cavanagh (1908), 40 S.C.R. 414, McBrayne v. Imperial Loan Co. (1913), 28 O.L.R. 653 (C.A.), William Allan Real Estate Co. v. Robichaud (1990), 72 O.R. (2d) 595 (H.C.)

Facts:

In 2016 the Weilands decided to try selling their cottage by auction and contracted with Concierge Auctions, ULC, a luxury real estate auction company, under an Auction Marketing Agreement (the “Seller’s Contract”). The Seller’s Contract contemplated that the ultimate buyer would likely be responsible for paying the auction fee (the “Buyer’s Premium”), but there were exceptions. Most notably, the Weilands would have to pay the Buyer’s Premium if they refused to close after the auction produced an agreement of purchase and sale.

The Fenwicks saw an ad posted by Concierge and decided to bid (the “Bid”). In order to do so the Fenwicks had to sign a Bidder Registration Agreement (the “Bidder’s Contract”). In the Bidder’s Contract they agreed to pay a Buyer’s Premium to Concierge if they proved to be the high bidder, unless the sale was not “consummated” because of a default by the Weilands. The Fenwicks paid a total deposit of $430,000 into escrow to secure the Buyer’s Premium, should they have to pay it. The Bid was the highest bid and Fenwick executed an agreement of purchase and sale (the “First Purchase and Sale Contract”) that the Weilands had pre-signed. When the Weilands learned what the Bid was – $4,300,000 minus a rebate of $350,000 – they were not happy. They claimed that the sale price was too low to enable them to pay off the encumbrances on the cottage, and to grant clear title. When the closing date came, the Weilands refused to close.

After the Weilands defaulted, the Fenwicks registered a caution and paid land transfer tax on the contracted amount.

The Fenwicks immediately demanded the return of their $430,000 deposit from the escrow agent. They also threatened the Weilands with a lawsuit, and began to negotiate with them directly. Before long, the Fenwicks and Weilands arrived at a second agreement of purchase and sale (the “Second Purchase and Sale Contract”). That sale closed the next day. Concierge claimed an immediate right to payment once the Fenwicks acquired the property. The Fenwicks brought an application against both Concierge and the escrow agent, demanding the return of the deposit. Concierge ultimately won before the application judge. On April 25, 2017, drawing upon case law related to the payment of real estate fees, she concluded that the two purchase and sale contracts were effectively one continuous agreement, and that since the sale closed, the Fenwicks had to pay Concierge the Buyer’s Premium according to the terms of the Bidder’s Contract. The Fenwicks’ “continuous intention to close the transaction throughout” provided the necessary link. The Fenwicks appeal the decision.

Issues:

(1) Did the application judge err in interpreting Fenwick’s obligation to pay the Buyer’s Premium under the Bidder’s Contract?

(2) Did the application judge err in treating the two purchase and sale contracts as if they were one agreement?

Holding:

Appeal allowed.

Reasoning:

Prior to exploring the issues, the Court of Appeal sought to determine the appropriate standard of review. The Court found that a standard of correctness applies to the interpretation of the Bidder’s Contract, citing Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37. Since the same contract is used for all of Concierge’s auction bidders, the interpretation of the contract has precedential value. Further, there is no specific factual matrix that will assist in the interpretation of the contract and thus the deferential standard of mixed fact and law that typically applies to contract interpretation is not warranted in this case.

The question of whether there was one purchase and sale contract or two does not involve the interpretation of a standard form contract; it is a question of the legal characterization of the factual nexus between the two instruments, and this is a question of mixed fact and law. Therefore a deferential standard of review is to be applied to that issue, as per Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

(1) Yes.  The material provision of the Bidder’s contract is as follows:

3. Buyer acknowledges and agrees that the Buyer’s Premium is deemed earned upon conclusion of its Auction and shall be held by [the escrow agent] and disbursed to Concierge by [the escrow agent] upon closing. If the sale of the Property is not consummated for any reason other than default by the Seller, the Buyer’s Premium shall nevertheless be due and payable to Concierge.”

Fenwick argues that this provision implies that if the sale of the property is not “consummated” by reason of the Weilands’ default, the escrow agent is not to disburse the Buyer’s Premium it holds to Concierge. The application judge did not expressly find that the sale had been “consummated” within the meaning of the Bidder’s Contract because she did not, in her decision, engage in a close examination of the provisions. The application judge interpreted the consummation of the sale referred to in the forgoing provision to include sales terms and sales closings not provided for in the purchase and sale agreement that arose from the auction. The Court of Appeal disagreed with that interpretation. When the Bidder’s Contract is read as a whole, giving the words their ordinary and grammatical meaning, the objective intention of the parties provided for in s. 3 was that if the seller refuses to close the sale as required by the First Purchase and Sale Contract, the Buyer’s Premium is not payable from the buyer’s escrow deposit.

The Court of Appeal found that it was clear that the term “sale of the Property” does not refer to any sale of the property, even a sale between the seller and a high bidder. The term “sale of the Property” is used throughout the Bidder’s Contract. It is thus apparent, when read as a whole, that this refers to the specific sale that arises from the auction.

The Court of Appeal also found, based on a “plain reading” of section 3, that it was clear that the term “consummated” refers to the “closing” of the sale. The use of different words – “closing” and “consummated” – to describe the same event, does not change their meaning. The ordinary and grammatical meaning of each word enables them to work as synonyms, and the context in which they are used shows that they were meant to work as synonyms.

Further, the closing contemplated by the term “consummated” is not any closing. When read as a whole, it is clear that the closing or consummation that s. 3 refers to is the closing provided for in the contract of purchase and sale arrived at through the auction.

The Court of Appeal found that the operative clause in s. 3, “[i]f the sale of the Property is not consummated for any reason other than default by the seller, the Buyer’s Premium shall nevertheless be due and payable”, means that if the sale agreed to in the purchase and sale contract does not close on the closing date provided for in the purchase and sale contract for any reason other than the default of the seller, the Buyer’s Premium shall nevertheless be due and payable. The converse, of course, is that if the sale agreed to in the purchase and sale contract does not close on the closing date provided for in the agreement of purchase and sale because of the default of the seller, the Buyer’s Premium is not due and payable under the Bidder’s Contract. The fact that, after the Weilands’ default, the Fenwicks made sustained efforts to acquire the property that is the subject of the Bidder’s Contract, and achieved the acquisition of the property under broadly similar terms, does not change this.

The Court of Appeal allowed the appeal on this ground, finding that it was an extricable error of law for the application judge to ask whether the two purchase and sale contracts were effectively one continuous agreement, instead of interpreting the Bidder’s Contract as a whole to determine what event exempted the buyer from the obligation to pay the Buyer’s Premium.

(2) Undecided. In light of the answer to the first issue, it was unnecessary for the Court of Appeal to reach a conclusion on this issue. The Court did, however, comment in obiter on the tendency in auction cases of reasoning by analogy from cases dealing with the obligation of sellers to pay real estate commissions where the seller has contracted directly with a buyer the agent has introduced. The real estate cases, such as Glendinning v. Cavanagh (1908), 40 S.C.R. 414; McBrayne v. Imperial Loan Co. (1913), 28 O.L.R. 653 (C.A.); and William Allan Real Estate Co. v. Robichaud (1990), 72 O.R. (2d) 595 (H.C.), cited by the application judge, turn on the construction of commission clauses that invite consideration of whether the sale that occurred, in substance, arose from the real estate agent’s efforts. These cases do not apply comfortably to auction contracts where the auction company’s fee is for conducting the auction. Whether a subsequent sale or “closing” that can be linked factually to an earlier auction should attract obligations on any party to pay a fee to an auction company, should turn on the construction of the relevant auction contract, not on general principles addressing the evasion of fees extracted from contracts governing a different enterprise.

House v. Baird, 2017 ONCA 885

[Feldman, Cronk and Miller JJ.A.]

Counsel:

A Rouben, for the appellant/respondent by way of cross-appeal

D I Reisler, for the respondent/appellant by way of cross-appeal Donald Baird

J H Bennett, for the respondent The Corporation of the Township of Wilmot

Keywords: Torts, Negligence, Motor Vehicle Accident, Municipal Liability, Road Repair, Contributory Negligence, Negligence Act, R.S.O. 1990, c. N.1, s. 4, Civil Procedure, Damages, Future Pecuniary Damages, Discount Rate, Rules of Civil Procedure, Rule 53.09, Costs, Leave to Appeal Costs, Offers to Settle, Sanderson Orders, Moore (Litigation guardian) v. Wienecke, 2008 ONCA 162

Facts:

This case involved a car accident on a winter night in 2009. The appellant, House, was driving his friend Bair’s car. He lost control of the car, it moved over into the oncoming lane at the same time as another car was approaching in that lane. The other car hit House’s car, killing one friend in the back seat and injuring House and his other two friends in the car.

In the action by House, the trial judge found House, as the driver, and the respondent Baird, as owner of the car, which had worn and defective tires, equally liable for causing the accident and for House’s injuries. The other driver, Murray, and the respondent municipality were absolved of any liability for the accident. With respect to costs, the trial judge declined to give effect to an offer to settle by Baird, and made a modified Sanderson order requiring Baird to pay one half of the costs of the respondent municipality.

House appeals the decision of the trial judge on three issues: (i) the liability of the respondent municipality; (ii) the apportionment of fault as between himself as the driver and Baird as the owner of the car; and (iii) the failure of the trial judge to adjust the discount rate applicable to the damages calculation. The respondent Baird seeks leave to cross-appeal the costs disposition of the trial judge.

Issues:

(1) Did the trial judge err in law by failing to find that Wilmot breached its statutory duty to keep Huron Road in a reasonable state of repair?

(2) Did the trial judge err by assessing contributory negligence on the part of the appellant at 50%?

(3) Did the trial judge err by failing to give effect to the expert evidence and not applying a lower discount rate than the one provided by Rule 53.09 of the Rules of Civil Procedure?

(4) Did the trial judge err in his costs disposition?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

(1) No.

The determination that a road is in a state of non-repair is contextual and fact-driven. The context includes the “character and location” of the road according to s. 44(1) of the Minimum Maintenance Standards for Municipal Highways (“MMS”). Maintenance standards are not as stringent for rural roads with low traffic volumes. The concept of reasonableness is also inherent in the statutory defence in s. 44(3)(b). Ondrade v. Toronto (City) sets out that the issue is “not whether something different or something more intensive could have been done – rather, the issue is whether the steps that the [municipality] did take were reasonable.”

Ontario has three classes of municipalities: (i) single-tier; (ii) upper-tier; and (iii) lower-tier. The Township of Wilmot is a lower-tier municipality within the Regional Municipality of Waterloo, which is an upper-tier municipality.

The appellant’s arguments amount to a claim that the trial judge failed to apply the proper legal test, failed in his application of the applicable legal principles to the facts, and made erroneous findings of facts.  The trial judge instructed himself, based on Fordham, that a municipality’s duty of repair is limited to maintaining its roads to enable ordinary drivers exercising reasonable care to use the roads safely. He quoted the proper approach to analyzing and applying s. 44 from Fordham, referred to the MMS and reviewed a number of relevant cases. Having reviewed the evidence in detail and made his findings of fact, the trial judge then applied those findings against the statutory standard and found that the municipality had not breached its duty of care. In this case, the trial judge made no error of law, conducted a thorough review of the evidence and made reasonable findings. His analysis is entitled to deference.

(2) No.

The appellant submits that the finding that he was 50% responsible amounted to “speculation” that he was speeding in the face of evidence to the contrary, and that the trial judge’s concerns about marijuana use and the appellant’s state of mind over a pregnancy were not based on evidence. He submits that the 50% allocation should be set aside and reduced to 15-20%, or another amount as the court may direct.

The Court did not give effect to this submission. There was clearly evidence, including the action taken by Murray to brake when he saw the appellant’s car, from which the trial judge could infer that the appellant was negligent in failing to adjust his speed for the conditions, and that he was upset about the pregnancy. There was direct evidence that he smoked multiple pipe bowls of marijuana while driving.

Section 4 of the Negligence Act was enacted to be used in the circumstances that arose here, where it would not be practicable for the trial judge to determine the respective degrees of responsibility for the accident and for the damages House suffered as a result. His decision to apply that section and apportion liability on a 50/50 basis discloses no error.

(3) No.

In Ontario, the discount rate is provided by Rule 53.09 of the Rules of Civil Procedure, and is reconsidered from time to time by the Civil Rules Committee in order to maintain its accuracy and reliability. While the discount rate is fixed by regulation in British Columbia, in Ontario, the parties are entitled to lead expert evidence and, on the basis of that evidence, to ask the trial judge to impose a different discount rate than the one found in the Rule.

The appellant submits that the trial judge erred by accepting the logic of the evidence of the expert but declining to act on it. He argues that the established basis for tort damages, namely, the principle of restoring him to the position he would have been in but for the loss, outweighs the need to apply the Rule to maintain stability in its application.

While the trial judge saw the logic of the expert’s analysis, he did not fully accept his evidence, and was not prepared to act on it. That is the prerogative of a trial judge. There is no basis to interfere.

(4)  No.

Baird seeks leave to appeal both aspects of the costs order. Brad-Jay Investments Limited v. Village Developments Limited sets out that leave to appeal costs will only be granted “in obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion.’” The Supreme Court confirmed the same principle in Hamilton v. Open Window Bakery Ltd: “[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”. There is no such error in this case.

(a) Offer to settle

The trial judge made no error in finding that Baird’s offer to settle with three people for his policy limit was uncertain as to the actual amount being offered to the appellant. Uncertainty or lack of clarity in an offer may prevent a party from meeting its burden to show that the judgment obtained was as favourable as the offer, or more or less favourable, as the case may be.

(b) Sanderson order

Baird submits that the trial judge erred in making the modified Sanderson order by failing to consider the factors set out by this court in Moore (Litigation guardian) v. Wienecke, 2008 ONCA 162, which he says would not have supported the order.

Applying Moore, the threshold issue before a Sanderson order should be made is: was it reasonable for the plaintiff to join the several defendants in one action? The trial judge found that in this case it was reasonable for the appellant to sue both the municipality and Baird.

The next step is to then consider the four factors that Moore identifies as being relevant to a trial judge’s exercise of discretion: (i) whether the defendants tried to blame each other; (ii) whether the unsuccessful defendant caused the successful defendant to be added as a party; (iii) whether the causes of action were independent of each other; and (iv) the plaintiff’s ability to pay the costs.

In this case, the trial judge either explicitly considered, or was certainly aware of, these factors. While Baird’s counsel did not actively try to implicate Wilmot in the conduct of the cross-claim, Baird maintained the cross-claim throughout, and had rejected Wilmot’s offer to contribute. The appellant’s causes of action against Baird and Wilmot were related, arising out of the same accident and relating to contribution and causation. Any award against the appellant would reduce his limited recovery and his ability to pay a costs award made against him.

Each of these factors, unlike in Moore, could support the decision to alleviate the burden on the appellant by making the unsuccessful defendant, Baird, responsible for the costs of the successful defendant, Wilmot. In this case, the trial judge took a very fair approach by reducing Baird’s costs responsibility by half, to reflect counsel’s approach at trial of not aggressively trying to shift blame onto Wilmot. The Moore factors “need not be applied mechanically” and the exercise is a discretionary one. The Court found that the trial judge made no error and his decision should attract deference.

Colucci v. Colucci, 2017 ONCA 892

[Sharpe, Blair and Epstein JJ.A.]

Counsel:

R Gordner, for the appellant

S Multani, for the respondent

Keywords: Family Law, Child Support, Jurisdiction, Divorce Act, ss. 15(1) and 17(1), D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37; Buckingham v. Buckingham

Facts:

The appellant father and the respondent mother were married in 1983 and divorced in 1996. They have two children born in 1988 and 1989. The appellant father was ordered to pay child support to the respondent mother at the time of the divorce in the amount of $115.00 per week for each child. He made more or less regular payments until April, 1998. Thereafter, payments were irregular and they eventually ceased in June 1999. He accrued more than $175,000 in arrears by the time both children were over eighteen years old and were no longer “children of the marriage”. Since the divorce, the father has lived and worked as an unskilled labourer in Canada, the U.S. and Italy. His income tax returns and other financial disclosure report a declining income since 1997.

The father brought a motion to change the order retroactively and to have his arrears rescinded on the ground that there had been a change in circumstances. The mother brought a cross-motion to dismiss the application for want of jurisdiction. The father brought a motion for summary judgment, asking the court to determine that narrow issue. The motion judge dismissed the father’s motion and granted summary judgment dismissing the application to vary on the ground that D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (“D.B.S.”) deprives the court of jurisdiction to rescind or vary support arrears once the children are no longer “children of the marriage”.

Issues:

(1) Did the motion judge err by dismissing the father’s application on the ground that the court did not have jurisdiction to entertain it?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The issue of jurisdiction turns on the effect of the Supreme Court’s decision in D.B.S. That and related decisions dealt with four applications to vary child support orders, two under Alberta legislation and two under the Divorce Act. One of the points considered was whether an application for child support could be made under the Divorce Act after the child had ceased to be a “child of the marriage”. Relying on the specific language of the section, Bastarache J. held that s. 15.1(1) conferred jurisdiction to make a child support order only where there were children who were still “children of the marriage”.

One of the four cases decided together with D.B.S., Henry v. Henry, involved an application for retroactive variation of a child support order. At the time the notice of motion to vary was filed, the eldest child was no longer a child of the marriage. The Supreme Court held that as the Notice to Disclose/Notice of Motion had been served while that child still was a child of the marriage, there was jurisdiction to entertain the application. That might suggest that there would have been no jurisdiction had the proceedings not been initiated while the child was still a child of the marriage, but the court did not directly consider or decide that point. In some cases, including the case at bar, trial level judges have held that D.B.S. governs and declined to vary child support orders after the children are no longer “children of the marriage”.

There is, however, a more persuasive line of conflicting authority supporting the view that given the different wording and purpose of s. 17(1), the test for jurisdiction to vary differs from the test for jurisdiction to make an original order under s. 15.1(1). The leading and most carefully reasoned decision is an Alberta Queen’s Bench decision in Buckingham v. Buckingham, 2013 ABQB 155, where Strekaf J. concluded that both the wording of the statute and the principles of child support favoured distinguishing D.B.S. and interpreting s. 17(1) to allow a court to vary a child support order even though the children are no longer children of the marriage. Courts have also retained jurisdiction on the basis that the payor parent’s deliberate absence or deception prevented the recipient from applying for a variation while the child was still a “child of the marriage”.

To date, where retroactive variation is sought when the children are no longer entitled to support, the courts have seen fit to entertain the request in the following situations: in variation proceedings where there is an existing order and an established support obligation under the Divorce Act; in motions to change proceedings where there is an existing order and an established support obligation under the Family Law Act; and when there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient’s failure to bring the retroactive support claim within the requisite time.

As Strekaf J. observed in Buckingham, the interpretation of s. 15.1(1) in D.B.S. turned on the precise wording of that provision, which confers jurisdiction to make a child support order for any who were, “at the material time”, “children of the marriage”. The jurisdiction to vary a child support order under s. 17(1) is at large and is not limited by those words. One must look first to the words of the statute, and given the difference between the words of s. 15.1(1) and 17(1), courts are not bound to import the interpretation accorded to s. 15.1(1) by the Supreme Court in D.B.S. when interpreting s. 17(1). Section 17(1) does not, by its language, limit the jurisdiction of the court to vary a child support order to the time period when the children are still “children of the marriage”, and the decision in D.B.S. does not compel interpreting the jurisdiction conferred by s. 17(1) as being precisely the same as that conferred by s. 15.1(1).

Allowing a court to vary an existing order after the children cease to be “children of the marriage” is consistent with the principles of child support. The principles at play are first, that the amount of child support depends upon the income of the parents; second, that as the parents’ income changes, so too does the obligation to pay support. The third relevant principle must be balanced with the second, namely, that child support orders should, as far as possible, foster certainty, predictability and finality. If an order imposes a child support obligation that does not correspond to the payor parent’s income, the order is not consistent with that principle. It is for that reason that D.B.S. permits retroactive orders in appropriate circumstances. Section 17(1) allows a court to vary an order where there has been a material change in circumstances to ensure that the child receives an amount of support commensurate with the income of the payor parent.

The court should not be deprived of jurisdiction to consider the request of a recipient parent who struggled to support the children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage. While the argument for allowing post-“child of the marriage” applications to decrease support is less compelling, if there is to be jurisdiction to entertain applications to increase, the law should adopt an even-handed approach and, from a jurisdictional perspective, treat payor and recipient parents the same way. If a court has jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined.

Certainty, predictability and finality are important values in the family law regime. The interests of fairness and the need to ensure that children get the support they deserve precludes a rigid approach that forbids changing support orders when there has been a change in circumstances. The existence of s. 17(1) demonstrates that finality has its limits and that neither children nor parents can safely assume that support orders will never change. The interest of certainty and finality does not justify erecting a rigid jurisdictional bar on variation applications simply because the children are no longer “children of the marriage”.

For these reasons, neither the language of s. 17(1) nor the principles of child support require denying a court jurisdiction to vary an existing child support order or well established written or oral argument after the children cease to be “children of the marriage”. The appeal was allowed and summary judgment was granted, declaring that the court has jurisdiction to entertain the application. The matter was remitted to the Superior Court for a determination on the merits.

E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

A Polizogopoulos, for the appellant

M J Zega and Giovanna Di Sauro, for the respondent

D B M. Boss, for the intervenor Christian Legal Fellowship

K Hughes and L Sheffield, for the intervenor Elementary Teachers’ Federation of Ontario

J Hunter and E Bala, for the intervenor Attorney General of Ontario

Keywords: Constitutional Law, Freedom of Religion, Canadian Charter of Rights and Freedoms, s. 2(a), Human Rights Code, R.S.O. 1990, c. H.19, Education Act, R.S.O. 1990, c. E.2, s. 169.1(1), Doré v. Barreau du Québec, 2012 SCC 12, [2012] S.C.R. 395, Loyola High School v. Québec, 2015 SCC 12, [2015] 1 S.C.R. 613

Facts:

The appellant E.T. is the father of two primary school-aged children who attend a school within the jurisdiction of the respondent, Hamilton-Wentworth District School Board (the “Board”). E.T. is a committed Christian and a member of the Greek Orthodox Church.

The appellant advised the Board that his religious beliefs require him to shelter his children from what his religion regards as “false teachings”. He provided the Board with a standard form list of topics that included matters such as “moral relativism”, “environmental worship”, “instruction in sex education”, and “discussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable”. He asked the Board to provide him with advance notice of any classroom instruction or discussion of these issues so that he could decide whether or not to withdraw his children from those classes or activities.

The Board offered to exempt the appellant’s children from the “Healthy Living” strand in the elementary program, which is offered as a discrete part of the curriculum and involves education on human development and sexual health. However, the Board explained to the appellant that its Equity Policy aims to provide an integrated secular and respectful learning environment that does not discriminate against any child. The Board’s program aims to promote a positive and inclusive environment that accepts all pupils, including those of any sexual orientation, gender identity and gender expression. The Board advised E.T. that, given the integrated nature of its program and the generality of the items on his list, it was neither practical nor possible to comply with his request for prior notification of any time one of the items on his list would arise for discussion in the classroom. The Board also expressed the concern that if E.T.’s children were required to leave the classroom every time one of these topics came up for discussion, the Board’s policy of providing an inclusive and non-discriminatory program would be undermined.

E.T. brought this application seeking declaratory relief, asserting that his parental authority over the education of his children had been denied and that his freedom of religion as guaranteed under s. 2(a) of the Charter of Rights and Freedoms was violated by the Board’s failure to provide him with the accommodation he requested. He also asserted a claim of religious discrimination under the Human Rights Code, R.S.O. 1990, c. H.19 and a violation of the Education Act, R.S.O. 1990, c. E.2.

E.T.’s application rested on the general assertion that the Board’s policies and decisions violated his religious freedom. He provided no evidence of any actual instance where his or his children’s religious freedom had been violated.

Issues:

(1) Did the application judge err in finding that the Board reasonably refused his request for advance notification of any classes, lessons or activities involving topics that he has identified as being sensitive, and for permission to withdraw his children from such classes, lessons or activities?

Holding: Appeal dismissed.

Reasoning (Sharpe J.A.):

(1) No. E.T.’s claim rested upon his general and pervasive dissatisfaction with the nature of the Board’s curriculum with respect to matters of equity, non-discrimination and inclusiveness. Given the very nature of the Board’s curriculum, E.T. argued that his children may be exposed to views with which he, for religious reasons, does not agree. However, Justice Sharpe found that E.T. did not prove a single instance where his children were coerced to do something that was contrary to his or their religious beliefs or where they were denied the right to manifest or observe their religion as they wished. Nor did he provide any evidence that his right to inculcate his children with his own religious views was curtailed or infringed.

Justice Sharpe held that the jurisprudence from the Supreme Court of Canada makes it clear that exposing students who are attending non-denominational public schools to ideas that may challenge or even contradict their parent’s sincerely-held religious beliefs does not amount to an infringement of religious freedom.

He accepted that E.T. has a sincere religious belief that he has an obligation to keep his children from being exposed to what he describes as “false teachings”. This sincere belief was the basis on which the application judge found that the Board’s Policy and its denial of the requested accommodation engaged the Charter by limiting its protections under s. 2(a) for E.T. and his children. However, a sincere religious belief alone is insufficient to establish interference with E.T.’s freedom of religion; in other words, his subjective belief that he must shield his children from hypothetical “false teachings” does not gain absolute protection. The onus remains on E.T. to proffer evidence that, from an objective standpoint, the instruction and activities to which his children are in fact exposed interferes with his ability to shield his children from “false teachings”. Justice Sharpe held that E.T. failed to satisfy this onus.

As such, while Justice Sharpe agreed with the result reached by the application judge, he disagreed with the conclusion that E.T. has established an infringement of his s. 2(a) right to freedom of religion.

The protection of religious freedom, like that of any other Charter right, “must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises” (Amselem, at para. 62; S.L., at para. 25). In this case, E.T.’s children attend a non-denominational public school with a mandate to provide an open, accepting and inclusive educational experience for all children. E.T. did not ask to have his children exempted from certain specific and well-defined elements of the curriculum whose subject matter conflicts with his religious views. Instead, he sought to have advance notice and the ability to have his children leave the classroom at any time a “false teaching” would arise, an exercise that would undermine the message of diversity and inclusion which is woven throughout the integrated curriculum.

Exempting some students on a regular basis from classroom discussions touching on diversity, inclusivity and acceptance, within a public school program designed to promote precisely those principles, would run a serious risk of endorsing the non-acceptance of students of other family backgrounds, sexual orientations, gender expressions and gender identities.

Justice Sharpe stated that E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

Lauwers J.A., B.W. Miller J.A. (Concurring)

Lauwers J.A. and B.W. Miller J.A. concurred with the result reached by Justice Sharpe and also dismissed the appeal for lack of evidence; however, his reasoning for that conclusion differed.

The central issue for Justice Lauwers was: what are the limits imposed by the Canadian Charter of Rights and Freedoms on a province’s power to use publicly funded education to inculcate, in the language of s. 264 of the Education Act, certain beliefs and dispositions educational authorities have determined are desirable or necessary?

Reasoning

Justice Lauwers stated that the appeal was governed by the Doré/Loyola two-step framework. The first step was to determine “whether the decision engages the Charter by limiting its protections.” If so, the second step was to determine “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”.

Justice Lauwers dismissed the appeal for the following reasons:

First, Justice Lauwers stated that public education is designed to inculcate children in necessary civic virtues. Section 169.1 of the Education Act, the statutory authority underpinning the challenged school board decision, was enacted to further this purpose. Teachers play a critical role in inculcating civic virtues in schoolchildren.

However, Justice Lauwers stated that E.T. made a plausible claim that the school board’s decision to refuse to provide him with the accommodation he seeks limits his freedom of religion. As such, E.T.’s claim met the first half of the first step of the Doré/Loyola framework: his religious freedom was implicated.

Yet, Justice Lauwers was unable to find, based on the evidence, that the appellant had proven substantial interference with his freedom of religion, as the balance of the first step of the Doré/Loyola framework would require. For this reason, Justice Lauwers dismissed the appeal.

Lastly, although Justice Lauwers dismissed the appeal, he had serious concerns about the application of the Doré/Loyola framework to line decision makers such as teachers, principals and supervisory officers. In his view, in order to justify a Charter limit, the record of evidence considered by the line decision maker should demonstrate the elements of accountability, intelligibility, adequacy and transparency courts expect from administrative tribunals.

Wilfert v. McCallum, 2017 ONCA 895

[Feldman J.A. (In Chambers)]

Counsel:

P Starkman, for the moving parties

S A Hashim, for the responding parties

Keywords: Civil Procedure, Judgments, Enforcement, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Gauthier v. Woollatt, [1940] 1 D.L.R. 275 (Ont. Sup. Ct.), Pleadings, Motions to Strike, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21, Pleading Fraud, Rules of Civil Procedure, Rule 25.06(8), Balanyk v. University of Toronto (1999), 1 C.P.R. (4th) 300 (Ont. S.C.), Bankruptcy and Insolvency, Assignments of Causes of Action, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38

Facts:

The action was brought under s. 38 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), for an order setting aside as a fraudulent conveyance, the 1993 conveyance by McCallum of his one half interest in the matrimonial home to his wife, Boughner. The appellants have appealed the dismissal of the action under Rule 21, and bring a motion seeking a stay to prevent Boughner from disposing of the property pending the appeal. The appellants are judgment creditors of the respondent McCallum, as a result of an action for defamation they brought against him in respect of statements made in 2014. They obtained default judgment on May 12, 2015, following which, McCallum filed an assignment in bankruptcy in September 2015. The appellants obtained an assignment of rights under s. 38 of the BIA to bring the fraudulent conveyance action.

Issues:

(1) Should the order dismissing the action and setting aside a certificate of pending litigation be stayed pending the hearing of the appeal?

Holding: Motion dismissed.

Reasoning:

(1) No. The primary legal issue on the appeal is whether the 1993 conveyance was a fraudulent conveyance within the meaning of s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29,  and whether the appellants are “creditors or others” within the meaning of the section. Section 2 provides: Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

The appellants became creditors of the respondents many years after the impugned conveyance. The leading case on the test for when a subsequent creditor can set aside a conveyance as fraudulent is Gauthier v. Woollatt, [1940] 1 D.L.R. 275 (Ont. Sup. Ct.), which identified two circumstances: (i) if there remains unpaid a creditor from the time of the conveyance who would have been entitled to impeach the conveyance; or (ii) if the debtor’s purpose in making the conveyance was to defraud present and future creditors generally.

On the record before the court, there was a mortgage on the property to the Royal Trust Corporation of Canada at the time of the conveyance, which was discharged in 2007. There is a bare pleading that there were other creditors, beyond Royal Trust, in 1993 and that the respondents’ intent was to defraud. However, there are no particulars whatsoever to support that bare allegation. The appellants rely on the principle that on a Rule 21 motion the facts pleaded are taken to be true. However, that principle must be tempered by the principle that fraud must be pleaded with particularity: see Rule 25.06(8); Balanyk v. University of Toronto (1999), 1 C.P.R. (4th) 300 (Ont. S.C.), at para. 28.

In the court’s view, on the basis of the record and the law, the issue to be heard on appeal cannot be said to be a serious one. The appellants filed no evidence to support a claim of irreparable harm, or to demonstrate that the balance of convenience favours the granting of a stay pending appeal. They rely on the discharge of the CPL as establishing irreparable harm. However, there is no evidence that the respondent Boughner intends to sell the property imminently, or that if she did, the proceeds would not be available to satisfy a judgment if the appeal were to be successful.

Holmes v. Hatch Ltd., 2017 ONCA 880

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

William D. Anderson, for the appellant

A H Monkhouse and B Faderin, for the respondent

Keywords: Contracts, Employment Law, Employment Agreements, Repudiation, Fundamental Breach, Termination of Employment, Reasonable Notice Period, Civil Procedure, Pleadings, Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74 (C.A.)

Facts:

The appellant employer, Hatch Ltd (“Hatch”), appeals from a summary judgment awarding the respondent employee, Paul Holmes (“Holmes”), 18 months reasonable notice at common law for the termination of his employment, subject to his mitigation obligations and applicable statutory deductions.

The motion judge’s core finding, which anchored her decision to grant summary judgment in favour of Holmes, was that Hatch breached the termination clause contained in the written employment agreement between the parties, thereby repudiating, as a matter of law, the entire benefit of the employment agreement. Specifically, the motion judge held, as a fact, that Hatch failed to consider Holmes’ years of service, position and age when fashioning his termination package, contrary to the express wording of the termination clause.

Issues:

(1) Did the motion judge err in finding that the contract was invalid?

Holding: Appeal allowed.

Reasoning:

(1) Yes. First, the motion judge’s finding of Hatch’s breach of contract underpinned her entire decision. She found, on the evidence before her, that the breach involved Hatch’s failure to take account of some of the specific factors set out in the termination clause. This failure, she held, was a fundamental breach of contract that, at law, constituted a repudiation by Hatch of the entire employment agreement. As a result, the motion judge concluded that the contract was invalid and Holmes was entitled to common law damages based on reasonable notice of termination.

The difficulty with these findings, however, is that Holmes did not plead this type of breach of contract by Hatch. Nor did he allege in his pleading that Hatch repudiated the employment agreement on this basis. Similarly, he did not advance these claims in his Notice of Motion or factum on the summary judgment motion. It was only when the motion judge raised the notion of this type of breach during oral argument, and on her own motion, that the parties made oral and subsequent written submissions on this issue. In these circumstances, Hatch was denied the opportunity to lead evidence on the precise breach allegation on which the motion judge’s decision ultimately turned. Put somewhat differently, the motion judge decided the summary judgment motion on the basis of a legal theory of liability that was neither pleaded nor advanced by Holmes in support of his motion. As a result, prior to oral argument of the motion, Hatch did not know the evidentiary burden that the motion judge ultimately held it had to meet. The law assumes that the parties’ pleadings properly delineate all relevant claims in dispute and define the issues. In Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74 (C.A.), at para. 60, the Court of Appeal had described the operative principle in this fashion:

It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 460635 Ontario Ltd. v. 1002953 Ontario Inc., [1999] O.J. No. 4071 (Ont. C.A.), at para. 9:

The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial.

Hearing fairness was therefore fatally compromised.

Second, because the motion judge concluded that Hatch had fundamentally breached and repudiated the employment agreement on this basis, thereby rendering it invalid, she did not address or rule on Holmes’ arguments concerning the enforceability of the employment agreement. These included his contentions that the termination clause does not reflect a clear agreement to contract out of the common law or, in the alternative, that it is ambiguous on this issue, that the termination clause violates the provisions of the Employment Standards Act, 2000,  and that it was not supported by any valid consideration. These issues, therefore, have yet to be determined.

The appeal was allowed and the summary judgment was set aside. The matter was remitted to the Superior Court of Justice for a new hearing of Holmes’ summary judgment motion, if he is so advised, before a different judge of that court.

Berman v. Berman, 2017 ONCA 905

[Sharpe, Epstein and Van Rensburg JJ.A.]

Counsel:

M Stangarone and S Kirby, for the appellant
D Frodis, for the respondent

Keywords: Family Law, Custody, Kaplanis Test, Best Interest of the Child, Maximum Contact Principle, Equalization, Resulting Trust, Loan, Costs

Facts:

Following an eleven-day trial, the trial judge gave comprehensive reasons resolving issues of custody, access, support and equalization. The appellant raises four issues on appeal.

Issues:

(1) Did the trial judge err by granting sole custody of the parties’ child to the respondent?

(2) Did the trial judge err by failing to consider or apply the maximum contact principle?

(3) Did the trial judge err in her equalization award?

(4) Did the trial judge err in awarding the respondent approximately 60% of the full indemnity costs she claimed?

Holding:

Appeal dismissed.

Reasoning:

(1) No. the trial judge fairly considered the evidence and properly reviewed the relevant factors to conclude that it was in the best interests of the child that the respondent be granted sole custody.  The trial judge did not misapply or elevate the Kaplanis test for joint custody. There was evidence to support her finding that the degree of cooperation and communication required by Kaplanis and other appellate decisions to warrant a joint custody order was not present. It is for the trial judge to assess whether the parties’ ability to cooperate and communicate effectively in making parenting decisions warrants a finding that joint custody is in the best interests of the child.

(2)  The parenting schedule ordered by the trial judge took into account several factors, including the parties’ respective work schedules and the history of their ability to communicate and cooperate with respect to the child. The trial judge observed that the respondent was prepared to ensure the appellant played an active role in the child’s life. The order increased rather than decreased the appellant’s parenting time with his child from the interim order. The appellant’s concern is with the frequency of contact. The trial judge was best placed to determine the schedule that was in the best interests of this child.

(3) No.  However, the trial judge’s valuation corresponded with that provided by the appellant in his sworn financial statements and net family property statements. Her valuation was supported by the evidence. The trial judge took into account the proper legal test regarding the presumption of resulting trust and the relevant evidence in concluding that the respondent’s parents expected to be repaid a loan while the appellant’s brother-in-law did not. Those were factual findings open to the trial judge. It was also open to the trial judge to find that the appellant had failed to demonstrate that he came to the marriage with over $50,000 in cash.

(4) No. The costs award was amply supported by the trial judge’s assessment of the respondent’s success in the action and the conduct of the proceedings, including the respondent’s offer to settle.

J.K. v. Ontario, 2017 ONCA 902

[Hoy A.C.J.O., Huscroft and Paciocco JJ.A.]

Counsel:

T D Barclay and J Sydor for the appellant, Her Majesty the Queen in right of the Province of Ontario

K Baert and J Sayce for the respondent plaintiff, J.K.

C K Boggs for the respondents Bayan Community Services Inc., Craigwood Youth Services, Pwi-di-Goo-Zing-Ne-Yaa-Zhing Advisory Services, CAS of Nipissing and Parry Sound, William W. Creighton Youth Services, Ray of Hope Inc., Northern Youth Services Inc., Youth Services Bureau of Ottawa, Anago (Non) Residential Resources Inc., Kennedy House Youth Services Inc., North Eastern Ontario Family and Children’s Services/Services a la Famille et a L’Enfance du Nord-Est de L’Ontario, St. Lawrence Youth Association, Kinark Child and Family Srvc. Corp. (Markham), and York Detention Centre Ltd.

No one for the respondent Casatta Ltd.

Keywords: Civil Procedure, Striking Pleadings, Third Party Claims, Contracts, Indemnities, No Reasonable Cause of Action,  Class Proceedings, Crown Liability, Negligence, Breach of Fiduciary Duty, Vicarious Liability, Contributory Negligence, Charter Violations, Canadian Charter of Rights and Freedoms, ss. 7, 9, and 12

Facts:

This is a proposed class proceeding against Her Majesty the Queen in Right of the Province of Ontario (the “Crown”) alleging negligence, breach of fiduciary duty, and breach of Charter rights in the use of solitary confinement in youth detention centres across Ontario.

The Crown operates or oversees the operation of 23 youth detention centres in Ontario. Some are operated by the Ministry of Children and Youth Services (the “MCYS”), but others are operated by the Third Parties.  J.K., the plaintiff in this proposed class action under the Class Proceedings Act, 1992, S.O. 1992 c. 6, alleges that children in these facilities are regularly subjected to lengthy and wholly inappropriate periods of solitary confinement. He sues the Crown for damages on behalf of all persons who were detained and/or incarcerated at one of the facilities between January 1, 2007, and the present day. He asserts that the Crown was negligent, breached its fiduciary duties, and breached class members’ rights under ss. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. The Crown launched third party claims against the detention centres operated by Third Parties.

The Third Parties had contracted to provide services to the Crown in accordance with the policies, guidelines and requirements of the Crown, as communicated to them. The service contracts which govern their relationship include the following indemnity clause: “12(a) The Service Provider will, both during and following the term of this contract, indemnify and save harmless Ontario from all costs, losses, damages, judgments, claims, demands, suits, actions, complaints or other proceedings in any manner based upon, occasioned by or attributable to anything done or omitted to be done by the Service Provider, its directors, officers, employees, agents or volunteers in connection with services provided, purported to be provided or required to be provided by the Service Provider pursuant to this contract.”

The Crown claimed against each of the Third Parties under the indemnity clause in the service contract in respect of any amounts found owing to J.K. and the class members in respect of any facility operated by the Third Party.  In turn, J.K. and the Third Parties brought motions seeking to have the Crown’s third party claims struck out, severed, or stayed.

The motion judge considered this court’s decision in Taylor v. Canada (Health Canada), 2009 ONCA 487, 95 O.R. (3d) 561. The motion judge concluded that Taylor applied and precluded third party claims for breach of fiduciary duty and class members’ Charter rights.  In his words, “…those claims are claims for which the Crown exclusively would be liable and thus these claims would not support any third party claim against the [Third Parties] which cannot be liable for matters for which the Crown exclusively would be liable.” (para. 19).

Issues:

(1) Is it is plain and obvious that the Crown’s third party claim against 15 non-government, non-profit organizations (the “Third Parties”), which operated some of the youth detention centres under contract with the Crown, has no reasonable prospect of success and was properly struck, without leave to amend.?

Holding: Appeal allowed.

Reasoning:

(1) No. It is not plain and obvious that the Crown’s third party claim has no reasonable prospect of success.

Firstly, although the Court of Appeal agreed with the motion judge that J.K. could preclude third party claims arising out of his claim based in vicarious liability, they stated that para. 45 of the Fresh as Amended Statement of Claim was not clear enough to justify striking the Crown’s third party claim.  The Court stated that it would not strike the Crown’s third party claim as having no reasonable prospect of success unless J.K. amended his Fresh as Amended Statement of Claim to explicitly reflect what the court believed to be the reasoning underpinning the motion judge’s decision to strike the Crown’s third party claim. That is, if J.K. seeks damages against the Crown based on vicarious liability for harms perpetrated on residents of facilities that are operated by the Third Parties, by the Third Parties and their agents and employees, when acting within the authority granted to them by the Crown, he is not entitled to any such damages for which the Crown could claim contribution and indemnity from the Third Parties.

Moreover, the Court agreed with the Crown that it is not plain and obvious that J.K.’s claim that the Crown breached its fiduciary duty could not also support a third party claim. It is possible that the damages suffered by J.K. were caused concurrently by the Crown’s breach of its fiduciary duty and the Third Parties’ negligence. The indemnity clause in the service contracts might permit the Crown to seek indemnity for any damages for which it is found liable as a result of its breach of fiduciary duty if the damages were also “occasioned by or attributable to” the Third Party’s negligence.

York (Municipality) v. Irwin, 2017 ONCA 906

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

Counsel:

G C Borean, for the appellant

C G Bendick, for the respondent

Keywords: Municipal Law, Building Code Violations, Orders to Comply, Provincial Offences, Trials, Disclosure Orders, Certiorari, Collateral Attack, Provincial Offences Act, R.S.O. 1990, c. P.33, Building Code Act, 1992, S.O. 1992, c. 23

Facts:

The appellant Robert Irwin (“Irwin”) is charged with various offences under Part III of the Provincial Offences Act (the “POA”). He is alleged to have violated the Building Code Act (“BCA”) by not complying with six orders to comply that the respondent issued in 2013 under that Act.

The respondent, The Regional Municipality of York (“York”) asserts that various additions and alterations to Irwin’s property were constructed without a building permit. At trial, Irwin testified that the 2013 orders were identical to orders to comply that had been issued against him in 1995 and 1996 (the “Earlier Orders”), that led to charges that were withdrawn. Irwin sought an order requiring York to provide disclosure of prior charges and prosecutions against him. The justice of the peace issued the disclosure order after hearing argument.

The respondent applied to the Superior Court for an order for certiorari under s. 140 of the POA. The application judge granted an order quashing the disclosure order and requiring the justice of the peace to continue with the trial of the charges. The application judge concluded that, although the Earlier Orders may well have applied to the same buildings on the property and required the same actions, they had different compliance deadlines and therefore constituted distinct offences. York was entitled to issue more than one order to comply and each failure to comply would be a distinct offence. The application judge also accepted that, while the appellant might have relied on the withdrawal of the 1996 charges had he appealed the six orders, he could not now attack the validity of the order having failed to avail himself of the appeal mechanisms under the BCA.

The appellant appeals to the Court of Appeal by right, under s. 140(3) of the POA. He says that the application judge ought not to have granted certiorari during the trial and that any issue as to the relevance of the Earlier Orders ought to have awaited an appeal post-trial. He argues that the application judge ought not to have granted the order he did without finding that a substantial wrong or miscarriage of justice had occurred, as required by s. 141(4) of the POA, and that the test is not met in this case.

Issue:

(1) Did the application judge err by granting certiorari during the trial?

Holding: Appeal allowed.

Reasoning:

(1) Yes. A justice of the peace who is hearing a trial of charges under Part III of the POA is entitled to determine questions of the relevance of evidence and to make disclosure orders, without such decisions being challenged mid-trial. Applications for certiorari should be granted only rarely. Most erroneous rulings made during a trial are appealable only at the end of the trial as part of an appeal against conviction, dismissal or sentence. R. v. 1353837 Ontario Inc. sets out the test for intervention mid-trial by certiorari under s. 140 of the POA, which is whether the erroneous ruling makes the proceeding “so unfair that the interests of justice require the court to intervene and grant prerogative relief.”

The Court of Appeal found that the application judge erred by failing to consider the substantial wrong or miscarriage of justice test in s. 141(4) of the POA, and in determining on the merits and mid-trial the issue of whether the Earlier Orders were relevant to the appellant’s defence. Even if the disclosure order was wrong, complying with it does not amount to a substantial wrong or miscarriage of justice. The disclosure order will not preclude the respondent from arguing that the materials disclosed are not in fact relevant and that what is disclosed does not afford a defence. By contrast, the effect of the application judge’s order is that any defence based on earlier compliance is effectively taken “off the table”. Whether or not the appellant’s argument amounts to a collateral attack on the order to comply, that issue should have been resolved at trial on a proper record, and it was premature for the respondent to bring the issue forward before the trial was concluded.

Short Civil Decisions:

Matusovski v. Tzaferis, 2017 ONCA 881  

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

V Matusovski, acting in person

B R Moodie and B M Martin, for the respondents

Keywords: Torts, Negligence, Motor Vehicle Accident, Medical Examination

Corbett v. Odorico, 2017 ONCA 887

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

T J McCarthy, M Switzer and S Cummings, for the appellant

A A Farrer, for the respondents

Keywords: Civil Procedure, Miscarriage of Justice

Hsieh v. Ontario (Community and Social Services), 2017 ONCA 890

[Rouleau, Trotter and Paccioco JJ.A.]

Counsel:

M C Hsieh, acting in person

M Singh, for the respondent

Keywords: Civil Procedure, Appeals, Test for Leave to Appeal, Sault Dock Co. v. Sault St. Marie (City), [1973] 2 O.R. 479 (C.A.)

Tree-Techol Tree Technology and Research Company Inc. v. VIA Rail Canada Inc., 2017 ONCA 894

[MacFarland, Hourigan and Benotto JJ.A.]

Counsel:

B N Martin and B R Moodie, for the appellant/ moving party Intact Insurance Company

T Hanran, for the responding parties VIA Rail Canada Inc. and Canadian National Railway Company

E Savas, for the responding parties Tree-Techol Tree Technology and Research Company Inc., 1374007 Ontario Ltd. And Bryan M. McNair

Keywords: Costs Endorsement

Yami Talk Catering Management Ltd. v. 2309603 Ontario Inc., 2017 ONCA 888

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

M El Rashidy and C Handapangoda, for the appellants

S E Kazushner, for the respondents

Keywords: Contracts, Interpretation, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Crawford v. Mori, 2017 ONCA 899

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

Counsel:

R Burns and J Broderick, for the appellants

B D Moldaver, for the respondents

Keywords: Civil Procedure, Settlement Agreements, Enforceability, Specific Performance

Criminal Decisions:

R v. S.M., 2017 ONCA 878 (Publication Ban)

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Counsel:

N Dennison, for the appellant

W Thompson and S Secter, for the respondent

Keywords: Criminal Law, Sexual Assault, Amended Indictment, Evidence, Reliability

R v. Thompson, 2017 ONCA 882

[Strathy C.J.O., Doherty J.A. and McCombs J. (Ad Hoc)]

Counsel:

P B Norton, for the appellant

D Krick, for the respondent

Keywords: Criminal Law, Attempted Murder, Evidence, Credibility, Reliability

R v. Brissard, 2017 ONCA 891 (Publication Ban)

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:

J Norris and M Conway for the appellant/respondent in sentence appeal, Timothy Dominic Brissard

D Finley for the respondent/appellant in sentence appeal, Her Majesty the Queen

Keywords: Criminal Law, Sexual Assault, Dangerous Offenders, Criminal Code, ss. 271 and 753, Character Evidence, Prior Sexual Conduct, Pattern of Repetitive Behaviour, Sentencing, Risk of Re-Offending

R v. Fourtounes, 2017 ONCA 898

[Rouleau, Pepall and Miller JJ.A.]

Counsel:

J Carlisle, for the appellant Jory Fourtounes

H J Doan, for the appellant Clifford Lewis

D Finley, for the respondent

Keywords: Criminal Law, Sentencing, Characterization of Offence, Aggravating Factors

R v. O’Connell, 2017 ONCA 896

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Counsel:

H L Krongold, for the appellant

A Cappell, for the respondent

Keywords: Criminal Law, Evidence, Palpable and Overriding Error

R v. Pum, 2017 ONCA 901

[Rouleau, Pepall and Miller JJ.A.]

Counsel:

D Gosbee, for the appellant

V Rivers, for the respondent

Keywords: Criminal Law, Marihuana Grow-Op, Controlled Drug and Substances Act, ss. 7(1) and 5(2), Misapprehension of Evidence, Unreasonable Verdict

R v. Arsenault, 2017 ONCA 884

[Rouleau, Pepall and Miller JJ.A.]

Counsel:

J Zita, for the applicant/appellant

K Healey, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, Mandatory Minimum Sentence, R. v. Lloyd, 2016 SCC 13

R v. Barnett, 2017 ONCA 897

[Doherty, LaForme, Rouleau JJ.A.]

Counsel:

D M Garg for the appellant, Her Majesty the Queen

M C Halfyard and B Vandebeek for the respondent, Antonio Barnett

Keywords: Criminal Law, Sentencing, Criminal Code, ss. 719(3), (3.1) and s. 726.1, Pre-Sentence Custody Credit, R v. Wilson, 2008 ONCA 510

R v. Johnson, 2017 ONCA 904 (Publication Ban)

[Watt, Hourigan and Miller JJ.A.]

Counsel:

A Ostroff, for the appellant

R DeFilippis, for the respondent

Keywords: Criminal Law, Sexual Assault, Misapprehension of Evidence

R v. Sahdev, 2017 ONCA 900 (Publication Ban)

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

M Halfyard and B Vandebeek, for the appellant

K Farrell, for the respondent

Keywords: Criminal Law, Sexual Assault, Severance Application, Standard of Review, Failure to Provide Reasons, R v. Sliwka, 2017 ONCA 426, 38 C.R. (7th) 115, Criminal Code, s. 686(1)(b)(iii), R v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788

R v. Budimirovic, 2017 ONCA 908

[Watt, Hourigan and Miller JJ.A.]

Counsel:

DAchtemichuk, for the appellant

T Gilliam, for the respondent

Keywords: Criminal Law, Production of Audio Recordings of In Camera Proceedings, Criminal Code, s. 683(1)(a)

R v. Lysenchuk, 2017 ONCA 912

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

T Yuen, for the appellant

J McKee, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Evidence

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.

ONTARIO COURT OF APPEAL SUMMARIES (NOVEMBER 13 – NOVEMBER 17, 2017)

Good evening,

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

Topics this week include family law (imputing income and calculating spousal support under the SSAGs), a contractual issue involving real property, wrongful dismissal and the limitation period for reassessments under the Ontario Income Tax Act.

Have a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

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

Table of Contents:

Baur Investments Limited v. Tangredi, 2017 ONCA 871

Keywords: Real Property Law, Contracts, Interpretation

Berta v. Berta, 2017 ONCA 874

Keywords: Family Law, Spousal Support, Spousal Support Advisory Guidelines, Imputing Income, Costs, Bad Faith Conduct

Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873

Keywords: Employment Law, Wrongful Dismissal, Employment Agreement, Lack of Consideration, Employment Standards Act, 2000, S.O. 2000, c. 41, Addison v. M. Loeb Ltd. (1986), Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994)

Aubrey Dan Family Trust v. Ontario (Finance), 2017 ONCA 875

Keywords: Tax Law, Statutory Interpretation, Ontario Income Tax Act R.S.O. 1990, c. I.2, Federal Income Tax Act R.S.C. 1985, c. 1 (5th Supp.), Reassessment

For short civil decisions click here.

For criminal decisions click here.

Civil Decisions

Baur Investments Limited v. Tangredi, 2017 ONCA 871

[MacFarland, Watt and Brown JJ.A.]

Counsel:

Harvin D. Pitch, for the appellant

Brendan Clancy, for the respondent

Keywords: Real Property Law, Contracts, Interpretation

Facts:

This appeal concerns a dispute between the owners of adjacent properties on Hawthorne Gardens in the City of Toronto. The appellant and respondent jointly own this private roadway that runs east to a dead end at numbers 5 and 6 Hawthorne, and west to Castle Frank Road. The respondent has owned 4 and 6 Hawthorne since about 1980. The appellant acquired 5 Hawthorne in 2015 but did not move in, pending renovations to the property, until the fall of 2016.

As part of his purchase of the property at 5 Hawthorne, the appellant took an assignment of, and agreed to be bound by, the agreement between the respondent and the appellant’s predecessor in title, Ms. Handeles, that governs the use and care of the private roadway. And, having signed that agreement in 2015, any conduct from 1990-2015 becomes irrelevant. The material part of that agreement, for present purposes, provides “Hawthorne Gardens shall be used only for pedestrian and vehicular access by each of the parties hereto and none of them shall use or permit any act upon Hawthorne Gardens in such a manner as to unreasonably interfere with or obstruct the reasonable use thereof by any of the other parties, their tenants, agents, employees, invitees, tradesmen and contractors.”

The appellant, his tradesmen and contractors parked on the roadway during the renovations after he acquired the property. This resulted in complaints to the respondent, who rented out his property to tenants. Before the motion judge, the appellant took the position that he was entitled to park his vehicles on the roadway provided he did not block egress or ingress. The motion judge held that the agreement clearly prohibited parking on the roadway.

Issues:

(1) Did the motion judge err in finding that the agreement clearly prohibited parking on the roadway?

Holding: Appeal dismissed.

Reasoning:

(1) No. The agreement is clear on its face, as the motion judge found. Parking is not permitted on the road, including that portion covered by the brick pad. The site plan application was a necessary and incidental part of the injunction order. It was fully canvassed before the motion judge, and the appellant had a full opportunity to advance his position at that time. The motion judge made no error in requiring the appellant to sign the application.

Berta v. Berta, 2017 ONCA 874

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

A Franks and M Zalev, for the appellant

P Callahan, for the respondent

Keywords: Family Law, Spousal Support, Spousal Support Advisory Guidelines, Imputing Income, Costs, Bad Faith Conduct

Facts:

The appellant, Delia Joan Berta (“Joan”), and the respondent, Raymond Louis Berta (“Ray”), were married for 27 years. In 1986, Ray decided to start a clinical research business. He called it Applied Consumer Clinical Evaluations Inc. (“ACCE”). Joan and Ray were equal shareholders in ACCE, and both were directors of the company. Both contributed labour and funds to the growth of ACCE, but Ray operated the company on a daily basis. In 1993, Joan took early retirement from Stelco and set up a consulting business. Both businesses flourished, especially ACCE, which became very successful and profitable.

The marriage ended in March 2010. Joan and Ray sold their matrimonial home, divided the net proceeds of sale equally, and purchased separate homes in Ontario. Joan also bought a small condominium in Florida. Ray purchased Joan’s ACCE shares for $2.2 million, payable in part on closing with the balance of $1.85 million to be paid over time. The parties, however, could not resolve several financial issues. After a nine day trial in 2013, Harper J. ordered Joan to make an equalization payment to Ray, and ordered Ray to pay Joan indefinite spousal support on the low end of the Spousal Support Advisory Guidelines (“SSAGs”) in the amount of $5,380 per month. Joan was also ordered to pay Ray’s costs of $460,179.57 on a full indemnity basis due to, inter alia, Joan’s unreasonable behaviour throughout the litigation, including her repeated unproven allegations of fraud against Ray.

Joan appealed from the trial judge’s decision on three grounds: the quantum of spousal support, the equalization payment, and the costs award. In a prior decision, the Court of Appeal allowed the appeal: Berta v. Berta, 2015 ONCA 918. The court returned the case to the trial judge to reconsider the spousal support and costs issues “in accordance with the reasons of this Court”. At the rehearing, on the crucial issue of Joan’s sale of her shares in ACCE to Ray, the trial judge concluded that the capital receipts they generated “should only be considered for what they can reasonably yield as income if invested in a reasonable manner.” He then considered that income – using a “generous” six per cent return – and her various pension incomes, and arrived at an average annual income for Joan of $282,119. On this basis, the trial judge awarded Joan indefinite spousal support of $8,000 per month. The trial judge awarded Ray costs of $322,125.70, even though Joan served and filed an offer to settle that was better than the judgment granted to Ray, becauase he found that she had fueled the fire of litigation and engaged in conduct that amounted to bad faith.

Joan appeals both the new spousal support and costs awards.

Issues:

  • Did the trial judge err by awarding Joan spousal support of $8,000 per month?
  • Did the trial judge err in calculating Joan’s income for support purposes?
  • Did the trial judge err in applying the low range of the SSAGs?
  • Did the trial judge make a mathematical error when applying the SSAGs?
  • Was the trial judge’s costs award of $322,125.70 in favour of Ray unfair, unreasonable or clearly wrong?

Holding:

Appeal allowed in part.

Reasoning:

  • Joan was entitled to $13,759 per month in spousal support.

Joan contends that the trial judge erred by fixing indefinite spousal support at $8,000 per month. She says that this amount is too low. She submits that the trial judge made three errors in arriving at this number – (a) he erred in calculating Joan’s income for support purposes; (b) he erred in applying the low range of the SSAGs; and (c) he made a mathematical error when he applied the SSAGs.

  • Joan asserts that the trial judge failed to take account of the tax implications of her receipt of $2.2 million for the sale of her ACCE shares to Ray. The cumulative cash Joan would retain after 2016 from the sale of the shares was $1,685,923. The Court of Appeal agreed with this figure. Second, Joan submits that the trial judge erred by in effect ‘double counting’ certain items in both the ‘imputed income’ and ‘other sources’ categories of income. The trial judge improperly added to Joan’s asset portfolio the value of a RIFF, the income from which is already accounted for in her line 150 income. He also incorrectly included the proceeds from the sale of her matrimonial home, which she used to buy a new home and which were not available to invest, as well as amounts for personal property like a car and jewellery, none of which could not generate income. Third, Joan contends that the trial judge erred by determining that she should be earning six per cent a year on her capital. The Court of Appeal rejected this submission. In its prior decision, the Court of Appeal used a six per cent figure, which it described as “generous”, in calculating Joan’s potential annual income. In addition, the record established that Joan’s RIFF return from 2010 to 2013 was around six per cent. Combining the foregoing, the Court of Appeal concluded that it was appropriate to impute an asset portfolio of $1,685,923. If invested so as to generate an annual return of six per cent, the annual income in this category would be $101,155. If this is added to the other income sources totalling $102,719, Joan’s total annual income would be $203,874.
  • Absent an error in principle, a significant misapprehension of the evidence, or an award that is clearly wrong, the trial judge’s conclusion on spousal support awards should be affirmed. This deference is augmented for payor incomes over $350,000 where the SSAGs themselves suggest “pure discretion” as one of two possible approaches.
  • The trial judge’s ultimate conclusion on the spousal support issue was: “Based on the income ranges set out above, Raymond should pay the low end of the SSAG calculations. This amounts to $8,000 per month in spousal support. That level of support results in Joan retaining 40% of the Net Disposable Income and Raymond retaining 60%.” Joan contends that the trial judge’s intent here was to order support at the low end of the SSAGs range, the order of $8,000 per month was simply a mathematical error in applying this intent. The Court of Appeal agreed with this submission and applied the low end of the SSAGs to the corrected income figure of $203,874, which resulted in $13,759 per month payable in spousal support.
  • At the first trial, the trial judge awarded Ray full indemnity costs fixed at $460,179.57. At the rehearing, the trial judge made a specific finding that Joan acted in bad faith at the original trial. However, he heeded the comments of the Court of Appeal, and concluded that Ray should recover “a substantial portion of his costs”, not full indemnity. He reduced the full indemnity costs by 30 per cent and awarded Ray costs of $322,125.70. Joan submits that this costs award is unreasonable, especially since she was ‘successful’ on the spousal support issue. The Court of Appeal did not accept this submission. The trial judge was in the best position to assess the parties’ conduct before and during a nine day trial. In both his trial and rehearing reasons, he made explicit negative findings about Joan’s conduct. In his rehearing reasons, the trial judge specifically stated that his findings at the trial “describe conduct that amounts to bad faith”. The cost award was not unreasonable.

Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873

[Strathy C.J.O., Cronk and Pepall JJ.A.]

Counsel:

George Avraam and Jeremy Hann, for the appellant

Matthew Fisher and Ian Hurley, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Employment Agreement, Lack of Consideration, Employment Standards Act, 2000, S.O. 2000, c. 41, Addison v. M. Loeb Ltd. (1986), Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994)

Facts:

The appellant employer, Olympus Canada Inc. (“Olympus”), appeals from a summary judgment award of damages in favour of its former employee, the respondent Nadesan Krishnamoorthy (“Krishnamoorthy”). Olympus carries on an optical sciences business in the United States. Carsen Group Inc. (“Carsen”), an unrelated company, carried on business as an exclusive distributor for Olympus America’s products in Canada. In May 2000, Krishnamoorthy commenced employment with Carsen as a senior financial analyst. By 2005, he had been promoted to Director of Finance.

In 2005, Olympus decided to terminate its distribution agreement with Carsen. Olympus terminated its distribution agreement with Carsen effective July 31, 2006. Olympus purchased some, but not all, of Carsen’s assets. Olympus offered employment to 122 of Carsen’s 125 employees, one of whom was Krishnamoorthy. In November 2005, Olympus Canada provided an offer of employment to Krishnamoorthy under the terms of a written employment agreement. The terms of the agreement were substantially similar to those he had with Carsen with certain exceptions:

1) A termination clause limited the compensation Krishnamoorthy would receive in the event of termination without cause to the greater of (1) notice or pay in lieu of notice and severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), or (2) four weeks’ pay      per year of service with Olympus Canada or Carsen, up to a maximum of 10 months, if Krishnamoorthy signed a release.

2) In addition, the agreement provided that Krishnamoorthy would be treated as a new employee and, except as otherwise provided in the agreement or as required by applicable legislation, his service with any other employer would not be recognized.

The agreement also included a clause that released Olympus and its affiliates from any claims that Krishnamoorthy might have in respect of his employment with and/or termination from Carsen or any other employer that had employed him.

Krishnamoorthy signed the employment agreement on December 16, 2005. He did not receive a signing bonus or any other additional compensation for entering into an employment agreement with Olympus Canada. Nor did he receive any pay in lieu of notice or severance pay from Carsen. His employment was to start on August 1, 2006. On April 10, 2006, Carsen wrote to Krishnamoorthy confirming that his employment with Carsen would terminate on July 31, 2006 and that Krishnamoorthy had accepted an offer of employment with Canada. Krishnamoorthy subsequently commenced his employment with Olympus. On May 19, 2015, Olympus Canada dismissed Krishnamoorthy without cause. Olympus offered him compensation in accordance with the 2005 employment agreement. Krishnamoorthy refused the offer, commenced an action against Olympus for damages for wrongful dismissal, and subsequently moved for summary judgment.

Krishnamoorthy took the position that, pursuant to s. 9(1) of the ESA, his employment with Carsen and Olympus was continuous. He argued that the termination clause in his 2005 employment agreement was unenforceable because Olympus had failed to provide him with consideration for amending his employment agreement to include that clause. Olympus argued that its offer of employment constituted sufficient consideration and, as such, the termination clause was binding.

The motion judge accepted Krishnamoorthy’s position. He implicitly concluded that Olympus’s offer of employment did not amount to sufficient consideration and so the termination clause was invalid. Damages awarded to Krishnamoorthy were in the amount of $310,040.88, which represents 19 months’ pay in lieu of notice, plus prejudgment interest and costs.

In reaching that conclusion, the motion judge found that, upon the sale, Krishnamoorthy’s remuneration and duties, and the substance and nature of the business, all remained the same. Insofar as s. 9(1) of the ESA was concerned, he noted that Olympus Canada “did recognize this issue in the employment agreement but limited it to (10 years or 10 months’ notice).”

Olympus appeals this decision on the ground that the judge erred in concluding that the termination clause in the parties’ employment agreement was unenforceable due to a lack of consideration. Krishnamoorthy did not cross-appeal but raises other issues that the motion judge declined to address given his finding that Olympus Canada had failed to provide Krishnamoorthy with valid consideration. Krishnamoorthy also asks this court to admit fresh evidence.

Issue:

(1) Did the motion judge err in concluding that the termination clause in the parties’ employment agreement was unenforceable due to a lack of consideration?

(2) Could Krishnamoorthy rely on fresh evidence on appeal?

(3) Is it appropriate to address the alternative arguments Krishnamoorthy made before the motion judge and raises again on appeal?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge erred in concluding that there was no consideration for the termination clause and that therefore the clause was invalid. In Addison v. M. Loeb Ltd. (1986), Dubin J.A. explained that “since a contract of personal services cannot be assigned to a new employer without the consent of the parties, the sale of a business, if it results in the change of the legal identity of the employer, constitutes a constructive termination of the employment.” If the employee accepts an offer from his new employer, a new contract of employment is entered into. Therefore, Krishnamoorthy’s employment with Carsen was terminated and he entered into a new contract with Olympus upon the sale of the business. At issue is whether there was consideration for that new contract.

It is well established that a promise to perform an existing contract is not consideration: Holland v. Hostopia.com Inc. In other words, new or additional consideration is required to support a variation of an existing contract: Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994). In this case, the motion judge, relying on Hobbs and Francis, found that Olympus’ offer of employment did not constitute consideration and further concluded that Hobbs was indistinguishable.

However, that is not this case. Hobbs and Francis both involved employment with a single employer and not two different employers as is the case here. The motion judge erred in disregarding the new contract of employment with Olympus, who was a new employer upon its purchase of some of Carsen’s assets. That Mr. Krishnamoorthy’s day-to-day job did not materially change after the sale does not change that fact.

Although s. 9 of the ESA deems there to be continuity of employment if certain requirements are met, it does not deem there to be continuity for all purposes. If the purpose of s. 9(1) of the ESA had been to deem there to be continuity of employment for all purposes, there would have been no reason to include the words “for the purposes of this Act” in the section. These words make clear that s. 9(1) cannot be used to claim rights or entitlements on which the ESA is silent.

Section 9(1) of the ESA does not deem the employment contract between an employee and an employer to bind a subsequent purchaser of some of that employer’s assets, as was the case here. Nor does s. 9(1) of the ESA require the purchaser of a business’ assets to offer employment to employees of that business on the same terms as their original contracts, as claimed by Krishnamoorthy. He cannot rely on s. 9(1) to achieve either of these effects. He can only rely on s. 9(1) to claim those entitlements that are set out in the ESA itself. In short, Olympus Canada’s offer of employment amounted to consideration for the termination clause.

(2) No. The test for the admission of fresh evidence on appeal, described in Sengmueller v. Sengmueller (1994) encompasses three components: (a) is the evidence credible; (b) could the evidence not have been obtained, by the exercise of reasonable diligence, prior to trial; and (c) will the evidence, if admitted, likely be conclusive of an issue in the appeal?

The test for the admission of fresh evidence is not met. The record of employment was available to Krishnamoorthy, through the reasonable exercise of due diligence, before the summary judgment motion was heard. Furthermore, the record of employment would not have been conclusive of the issue of consideration engaged by this appeal.

(3) No. Although Krishnamoorthy did not bring a cross-appeal, he argued in his factum and in oral submissions that if Olympus Canada were successful on the consideration point, the Court could consider whether the termination clause is invalid because it violates ESA requirements and whether the “substratum of the contract was lost” over the years.

As the Court has stated on more than one occasion, termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. In other words, courts will scrutinize termination clauses closely for compliance with the ESA. However, the Court does not have the benefit of any factual findings beyond those relating to the narrow issue addressed by the motion judge. The Court therefore orders that the action proceed to a trial of the remaining issues in dispute between the parties.

Aubrey Dan Family Trust v. Ontario (Finance), 2017 ONCA 875

[Simmons, Rouleau and Brown JJ.A.]

Counsel:

Tankovich and J. Bernier, for the appellant
A. Jackett, for the respondent

Keywords: Tax Law, Statutory Interpretation, Ontario Income Tax Act R.S.O. 1990, c. I.2, Federal Income Tax Act R.S.C. 1985, c. 1 (5th Supp.), Reassessment

Facts:

The appellant moved for summary judgment allowing its appeal from a reassessment of provincial income tax issued under the Ontario Income Tax Act (the “Ontario Act”). The appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed and argued that the limitation waiver form, T2029, which it had submitted for the 2007 taxation year, is a prescribed form under the federal Income Tax Act (the “Federal Act”), but did not operate to waive the limitation period for reassessing income tax under the Ontario Act.

The motion judge found that the relevant limitation period had expired but rejected the argument that no valid waiver was submitted.

Issues:

(1) Did the motion judge err in concluding that the waiver form T2029 was deemed, by s. 48(15) of the Ontario Act, “to be a form prescribed by order of the Provincial Minister” under the Ontario Act?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The combined operation of s. 10 of the Ontario Act, which adopts certain provisions of the Federal Act, and s. 152(4) of the Federal Act permit reassessment of Ontario tax after a normal reassessment period where the taxpayer “has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year”.

Section 48(15) of the Ontario Act states that “[e]very form purporting to be a form prescribed… by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under … [the Ontario] Act…” The existence of a long-standing collection agreement between the Ontario government and the Federal government, by operation of s. 1(1) of the Ontario Act, “Provincial Minister” in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.

Further, waiver form T2029 “bears the insigna of the … [Canada Revenue Agency (“CRA”)] and the Government of Canada and … is regularly used by the CRA.” Explicit wording on the form that it purports to be a form prescribed under the Ontario Act is not required for subsection 48(15) to apply.

The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While “all statutes … must be interpreted in a textual, contextual and purposive way”, the context of an income tax statute may lead to “an emphasis on textual interpretation”: Canada Trustco Mortgage Co. v. R., 2005 SCC 54 at para 11. Section 48(15) deems waiver form T2029 to be a prescribed form.

Section 48(15) avoids the necessity of formal proof of an order of the Minister of National Revenue. The prescription imposed by the Minister of National Revenue is sufficiently evidenced by the indicia on the form.

Accordingly, T2029 clearly purports to be a form prescribed or authorized by the Minister of National Revenue under the Ontario Act.

Short Civil Endorsements

Surighin v. Surighina, 2017 ONCA 877

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

No one appearing for Serghei Surighin

Galina Surighina, in person

Keywords: Family Law, Child Support, Extraordinary Expenses, Jurisdiction, Family Law Act, ss. 48, Appeal Dismissed

Tree-Techol Tree Technology v. VIA Rail Canada Inc., 2017 ONCA 876

[MacFarland, Hourigan and Benotto JJ.A.]

Counsel:

Bronwyn N. Martin and B. Robin Moodie, for the appellant Intact Insurance Company

Tom Hanran, for the respondents VIA Rail Canada Inc. and Canadian National Railway Company

E. Savas, for the respondents Tree-Techol Tree Technology and Research Company Inc., 1374007 Ontario Ltd. And Bryan M. McNair

Keywords: Insurance Law, Subrogation, Limitation Periods, Interveners, Appeal Dismissed

Criminal Decisions

R. v. Boghossian, 2017 ONCA 870

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Counsel:

Erin Dann, for the appellant

David Friesen, for the respondent

Keywords: Criminal Law, Fraud, Evidence, Burden of Proof, Sentencing, Appeal Dismissed

R. v. Shah (Publication Ban), 2017 ONCA 872

[Watt, Brown and Roberts JJ. A.]

Counsel:

Michael Dineen, for the appellant

Lorna Bolton, for the respondent

Keywords: Criminal Law, Robbery, Assault, Sexual Assault, Sentencing, Guilty Plea, Credit for Pre-disposition Custody, Appeal Allowed In Part

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.

ONTARIO COURT OF APPEAL SUMMARIES (NOVEMBER 6 – NOVEMBER 10, 2017)

Good evening,

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

Topics this week include the repayment of shareholder loans, the entitlement to bonuses following resignation from employment, the effect of exclusion clauses in written agreements on prior oral agreements in an estate matter, a construction contract dispute, and judicial review of a ministerial decision to extradite.

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:

116 Ontario Limited v. 833960 Ontario Limited (M-Plan Consulting), 2017 ONCA 854

Keywords: Contracts, Debtor-Creditor, Corporations, Shareholder Loans, Guarantees, General Security Agreements, Ontario Business Corporations Act, R.S.O., 1990, c. B16, ss. 184(1)

Bois v. MD Physician Services Inc., 2017 ONCA 857

Keywords: Employment Law, Contracts, Bonuses, Employment Standards Act, 2000, S.O. 2000, c. 41, ss 11(5) and 13(1), Kielb v. National Money Mart Company, 2017 ONCA 356

Latner Estate v. Latner, 2017 ONCA 859

Keywords: Estates Law, Family Law, Family Agreement, Preceding Oral Agreement, Gift

McCabe (Canadian Commercial Flooring) v. Finn Way General Contractor Inc., 2017 ONCA 867

Keywords: Construction Law, Breach of Contract, Damages, Orders, Amending or Varying, Accidental Slip or Omission, Rules of Civil Procedure, Rule 59.01(6), Costs

United States v. Norton, 2017 ONCA 866

Keywords: Administrative Law, Judicial Review, Ministerial Decision, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, Extradition Law, Extradition Act, Criminal Law, Trafficking in a Controlled Substance, Aboriginal Defendants, Canadian Charter of Rights and Freedoms, ss. 6-7, United States of America v. Leonard, 2012 ONCA 622, R. v. Gladue, [1999] 1 S.C.R. 688

For short civil decisions click here.

For criminal and Ontario Review Board Decisions click here.

Civil Decisions

116 Ontario Limited v. 833960 Ontario Limited (M-Plan Consulting), 2017 ONCA 854

[Laskin, Lauwers and Brown JJ.A.]

Counsel:

G. Slaght and P. Healy, for the appellant
S. Zeitz, for the respondent

Keywords: Contracts, Debtor-Creditor, Corporations, Shareholder Loans, Guarantees, General Security Agreements, Ontario Business Corporations Act, R.S.O., 1990, c. B16, ss. 184(1)

Facts:

The appellant company (“M-Plan”) wanted to acquire an ownership interest in the company Danbury Financial. One of the shareholders of Danbury Financial was Danbury Sales. In order to acquire an ownership interest in Danbury Financial, M-Plan loaned Danbury Sales $500,000, which Danbury Sales then used to make a shareholder’s loan of $750,000 to Danbury Financial. The motion judge found that the $500,000 advanced by M-Plan would be a loan to Danbury Sales until shares in Danbury Financial were delivered to M-Plan and registered on the books of the company. M-Plan never received registered shares in Danbury Financial.

In June 2010, as Danbury Financial was in the midst of financial difficulties, Danbury Sales entered into a Trust Agreement with M-Plan which provided M-Plan with a beneficial interest in a portion of Danbury Sales’ shares in Danbury Financial. After this agreement was signed and Danbury Financial had failed, M-Plan began to demand repayment of its loan. In 2013, in exchange for M-Plan’s agreement to forbear from suing for recovery of its loan, the respondent (116) agreed to guarantee Danbury Sales’ debt to M-Plan and to enter into a General Security Agreement with M-Plan. 116 did not honour its Guarantee. Instead it started an action against M-Plan and brought a motion for summary judgment for a declaration that the Guarantee and the General Security Agreement were unenforceable because the 2010 Trust Agreement had discharged Danbury Sales’ debt to M-Plan. In turn, M-Plan started an action to enforce its Guarantee and brought a cross-motion for summary judgment.

The motion judge found that the 2010 Trust Agreement discharged the loan by providing M-Plan with a beneficial interest in shares of Danbury Financial.

Issues:

(1) Did the motion judge err in holding that the 2010 Trust Agreement discharged M-Plan’s $500,000 loan to Danbury Sales?

(2) Did the motion judge err in determining, in the alternative, that the Guarantee and General Security Agreement of 116 were enforceable regardless of the respondent’s argument that they are not enforceable because the shareholders of 116 did not consent to those agreements being made?

(3) Did the motion judge commit a palpable and overriding error in finding that Danbury Financial mistakenly paid M-Plan $130,000 to reduce Danbury Sales’ indebtedness to M-Plan?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The motion judge’s conclusion that the 2010 Trust Agreement discharged M-Plan’s loan was unreasonable.

It was unreasonable for three main reasons. First, the motion judge’s conclusion contradicted his finding of fact. The motion judge found that M-Plan’s $500,000 loan to Danbury Sales could only be discharged by issuing to M-Plan registered shares in Danbury Financial. Contrary to this, the motion judge concluded that M-Plan’s beneficial interest in 22 shares of Danbury Financial, which was acknowledged in the 2010 Trust Agreement, discharged M-Plans’ loan. The motion judge’s finding of fact on the consideration for the loan and his conclusion on the effect of the 2010 Trust Agreement cannot stand together. M-Plan did not get what it paid for when it received a beneficial interest in the shares of Danbury Financial. It was entitled to a legal interest – registered shares, without which it was denied the most fundamental right of share ownership – the right to vote the shares.

Second, in concluding that the 2010 Trust Agreement had the effect of discharging M-Plan’s loan to Danbury Sales, the motion judge did not take account of the agreement as a whole or the context in which it was made. In concluding that the agreement was a “genuine conveyance of an ownership interest” in the shares, the motion judge only focussed on two terms of the agreement: the term providing that Danbury Sales held 22 of its shares in Danbury Financial as a bare trustee for M-Plan; and the term providing that on a direction from M-Plan, Danbury Sales would be required to transfer the shares. However, it is evident from the 2010 Trust Agreement and the context that the agreement did not convey ownership of the shares to M-Plan. Its purpose, at most, was to give M-Plan some security for its loan.

Finally, the motion judge’s conclusion disregards the conduct and understanding of the parties themselves after they signed the 2010 Trust Agreement. The principal of M-Plan and the principal of Danbury Sales both conducted themselves on the basis that M-Plan’s loan was still outstanding. After Danbury Financial had failed, the principal of M-Plan began pressing the principal of Danbury Sales for repayment of the loan, and the principal of Danbury Sales tried to find a way to forestall a lawsuit. This is why he offered a guarantee and other security for the loan in the respondent company. In June 2012, the parties began negotiating a series of agreements, and eventually signed three security documents and a promissory note the following year. All four documents recited that M-Plan’s $500,000 loan was still outstanding.

(2) No. Subsection 184(1) of the Ontario Business Corporations Act stipulates that a director of a corporation can give a Guarantee and a General Security Agreement on behalf of a corporation without shareholder authorization unless the articles, bylaws, or a unanimous shareholder agreement of the corporation provide otherwise. 116 did not have a shareholder agreement, and nothing in its articles or by-laws prevented a director from giving security without shareholder approval. To the contrary, the corporation’s general By-Law No. 2 allowed the directors to commit the corporation to guaranteeing the repayment of debts.

Section 19 of the Business Corporations Act entitled M-Plan to assume that the principal of 116, who was also the principal of Danbury Sales, was authorized to give the Guarantee and General Security Agreement on behalf of 116 unless M-Plan or its principal knew otherwise. The motion judge found that he did not. This finding was reasonably available to the motion judge and it is not tainted by any palpable or overriding error.

(3) Yes. The timing and the size of the payments correspond to payments that a related company, Danbury Industrial, made to reduce its debt to M-Plan on a different transaction. Also, the three payments were made well before the Guarantee and General Security Agreement were given. If the parties intended that the payments were made to reduce Danbury Sales’ debt to M-Plan, then these documents would have stated that only $370,000 was owing on M-Plan’s loan to Danbury Sales.

Bois v. MD Physician Services Inc., 2017 ONCA 857

[Simmons, Rouleau and Brown JJ.A.]

Counsel:

M Rowe, for the appellant

A L Barber, for the respondents

Keywords: Employment Law, Contracts, Bonuses, Employment Standards Act, 2000, S.O. 2000, c. 41, ss 11(5) and 13(1), Kielb v. National Money Mart Company, 2017 ONCA 356

Facts:

The Appellant, Mark Bois, worked for the Respondents from August, 1997 until his resignation in October, 2011. In 2009 and 2010 the Appellant was awarded bonuses under the Respondent’s Variable Incentive Plan (“VIP”). Under the plan, a bonus awarded for a year was payable in equal installments over the three years following the calendar year for which the bonus was awarded. The 2007 VIP stated: “In the event a Participant’s continuous Active Employment terminates, either voluntarily or involuntarily and whether for cause or not for cause, the Participant will immediately forfeit any entitlement to any payments under this plan whether attributable to prior years or to the current year.” In 2011 the language was replaced with: “Any employee who has left the organization or has given notice to leave the organization on or before the incentive payment date will not be eligible to receive a payment.”

On March 16, 2010, the Respondent and the Appellant signed a letter agreeing to the following: “In any given year, you must be a permanent employee of the CMAH Group of Companies on December 31 of the year for which the incentive is paid and continue to be so employed on the payment date(s) to receive a payment. Any employee who is no longer employed with the organization or has given notice of termination prior to the payout date will not be eligible to receive a payment.” The appellant resigned before the pay-out dates for the final installment of his 2009 bonus and two installments of his 2010 bonus. The Appellant commenced an action seeking payment of those installments, but the motion judge dismissed the action by way of summary judgment. The Appellant appealed on the ground that the motion judge misinterpreted sections 11(5) and 13 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

Issues:

(1) Did the Motion Judge err in concluding the “active employment” requirement in the Respondents’ VIP, under which the Appellant was awarded a bonus, did not conflict with ss. 11(5) and 13(1) of the ESA?

Holding:

Appeal dismissed.

Reasoning:

1. No. Section 11(5) of the ESA provides:

11(5) If an employee’s employment ends, the employer shall pay any wages to which the employee is entitled to the employee not later than the later of,

(a) seven days after the employment ends; and

(b) the day that would have been the employee’s next pay day.

Section 13(1) provides:

13(1) An employer shall not withhold wages payable to an employee, make a deduction from an employee’s wages or cause the employee to return his or her wages to the employer unless authorized to do so under this section.

The appellant contends that where a bonus has been awarded for a year, but at the time of the employee’s resignation future bonus installments remain to be paid-out, s. 11(5) of the ESA effectively operates to accelerate the employer’s obligation to pay-out future installments, notwithstanding language in an incentive plan requiring the employee to be actively employed at the date of any future payouts. To the extent that the terms of the VIP sought to disentitle the appellant to the future installments, they were void, as they contravened s. 13(1) of the ESA. The Court of Appeal did not agree. The motion judge construed s. 11(5) of the ESA as requiring the respondents to determine whether, at the time the Appellant’s employment ended, he was entitled to the payment of any bonus installments based on the wording of the VIP and the length of his notice period. The motion judge concluded that the Respondents correctly determined that the Appellant’s entitlements were extinguished by virtue of his resignation. In accordance with the decision in Kielb v. National Money Mart Company, 2017 ONCA 356, it was open to the parties to agree how and when any bonus was declared, earned, accrued and would be payable. A plan’s requirement that the employee be actively employed at the time of a future pay-out does not contravene s. 11(5) of the ESA, nor does such an active employment provision contravene s. 13(1) of the ESA, as the future pay-outs do not constitute “wages payable to an employee” at the time of his resignation.

Latner Estate v. Latner, 2017 ONCA 859

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

David Chernos and Andrew Finkelstein, for the appellants/respondents by way of cross-appeal

Ronald B. Moldaver, Q.C., for the respondents/appellants by way of cross-appeal

Keywords: Estates Law, Family Law, Family Agreement, Preceding Oral Agreement, Gift

Facts:

On February 22, 2007, the late Albert Latner, his four children and various related corporations entered into an agreement by which Albert relinquished control over his companies. In exchange, the children and their respective corporations agreed to make certain payments to Albert (the “Latner Family Agreement”). Albert brought claims against his son Joshua seeking payment of the sums owed to him pursuant to the Latner Family Agreement. The claims also sought repayment of a $13 million payment Albert made to Joshua in April 2007. Prior to trial, Albert passed away and the claims were continued by his estate.

Joshua maintains that nothing was owed by him pursuant to the Latner Family Agreement because he had reached an oral agreement with Albert that did not require the payments stipulated in the Latner Family Agreement to be made. Albert also gave Joshua a $1 million promissory note as part of the oral agreement. As for the claim for the return of the $13 million payment, Joshua maintains that it was a gift that was properly documented and that there is no basis for requiring it to be returned.

At trial, the judge agreed with Joshua that the $13 million was a gift and he rejected the claim for its return. However, the trial judge determined that the alleged oral agreement to the effect that Joshua would not be required to make the payments provided for in the Latner Family Agreement was unenforceable. He also found that the $1 million promissory note could not be set off against the sums found to be owing under the Latner Family Agreement because it was part of the unenforceable oral agreement.

The trial judge found that the oral agreement was entered into before the Latner Family Agreement was concluded and was counter to ss. 1.2 and 9.6 of that agreement.  Section 1.2 provided that the Latner Family Agreement constituted the entire agreement among the parties and superseded all other prior agreements, whether written or oral, among the parties. Section 9.6 stated that no supplement, modification, waiver or termination of the Latner Family Agreement would be binding unless executed in writing by all the parties. As a result, the trial judge found Joshua liable under the Latner Family Agreement and gave judgment in the amount of $2,776,895. Joshua appealed the finding of liability against him. Albert’s Estate cross-appealed the dismissal of its claim for the return of the $13 million payment.

Joshua argues that a legally binding oral agreement was not reached until April 2007, some two months after the Latner Family Agreement was entered into and that the court ought to have found the oral agreement to be enforceable despite the exclusionary clauses in the Latner Family Agreement. On the cross-appeal, Albert’s Estate argues that because the $13 million was a gift to one of Albert’s children, there is a presumption of a resulting trust in favour of Albert and that the record is insufficient to rebut the presumption.

Issues:

1. Did the trial judge err in finding that the oral agreement was made before the Latner Family Agreement was signed?

2. Is the record insufficient to rebut the presumption that the $13 million resulted in a trust in favour of Albert?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

1. No. The Court saw no basis to interfere with the trial judge’s conclusion that the oral agreement between Albert and Joshua was entered into before the parties concluded the Latner Family Agreement, as it is fully supported by the record. The further steps taken in April 2007, do not alter the fact that the agreement Joshua sought to enforce was reached before the Latner Family Agreement was entered into. By its terms, the Latner Family Agreement terminated any prior written or oral agreement.

2. No. There was ample support for the trial judge’s finding that the $13 million was a gift and that any presumption to the contrary had been rebutted. The gift was fully documented and Albert’s intention that it be a gift was confirmed by testimony of witnesses independent of Joshua. Proof of Albert’s reason for making the gift is not required.

McCabe (Canadian Commercial Flooring) v. Finn Way General Contractor Inc., 2017 ONCA 867

[Watt, Pepall and Miller JJ.A.]

Keywords: Construction Law, Breach of Contract, Damages, Orders, Amending or Varying, Accidental Slip or Omission, Rules of Civil Procedure, Rule 59.01(6), Costs

Counsel:

Roderick W. Johansen, for the appellant/respondent by way of cross-appeal

Hugh N. MacDonald, for the respondent/appellant by way of cross-appeal

Facts:

The respondent, Dan McCabe, contracted with the appellant, Finn Way General Contractor Inc., to install sheet vinyl flooring at a long-term care facility. After a dispute with the respondent, the appellant hired another contractor to complete the job. The respondent brought an action against the appellant for monies owing under the balance of the contract, and for extra work and materials not covered by the contract. The appellant counterclaimed for money it expended to hire the additional subcontractor, and for additional materials and expenses. The contract was part of a larger renovation project for which the appellant was the general contractor. The trial judge found that the respondent advised the appellant that deficiencies in the sub-floor structure prevented him from properly installing the vinyl flooring, and that he needed the appellant to rectify the deficiencies. The appellant refused the respondent’s demand that the appellant open up the flooring and resolve the issue, and instead directed the respondent to attempt a “quick and dirty” fix by securing the sub-floor with additional screws, and to continue laying the flooring. The attempted fix was unsuccessful, and the project architect required the vinyl flooring to be removed and replaced. The respondent was unwilling to do this unless paid for the previous work and relieved of his warranty obligations, as the failure of the vinyl flooring was not due to his workmanship but to the condition of the sub-floor. The appellant refused and instead hired another subcontractor to finish laying the vinyl flooring.

The respondent sued for breach of contract. The appellant counterclaimed, arguing that the respondent abandoned the job. It argued that the flooring installation problems were entirely due to the respondent’s poor execution, as the second contractor succeeded in properly installing the vinyl flooring. The trial judge rejected the appellant’s submission; found that defects in the vinyl flooring remained, and that these were attributable to the defective sub-floor. The trial judge awarded the respondent damages for breach of contract and dismissed the counterclaim. The appellant appealed the finding of liability. The respondent cross-appealed on the calculation of damages.

Issues:

(1) Did the trial judge err in finding the respondent was unable to install the vinyl flooring because of defects in the subfloor, and that it was the appellant’s responsibility to remedy the defects in the subfloor?

(2) Did the trial judge err in awarding costs?

(3) Did the trial judge err in assessing damages?

Held: Appeal dismissed. Cross-appeal allowed.

Reasoning:

(1) No. There was no palpable or overriding error in the trial judge’s decision. The trial judge considered the evidence, made specific findings as to the credibility of the appellant’s sole witness, made specific findings of fact, and drew permissible inferences from those findings. It was not open to the court to re-weigh the evidence or draw different inferences.

(2) No. The fact that the appellant received a lower costs award in an action it brought against another contractor had no bearing on what constitutes an appropriate costs award. The court also rejected the argument that the award ought to have been reduced to reflect the fact that the respondent was not awarded the full quantum of damages sought.

(3) Yes. The respondent’s cross-appeal was brought with respect to the trial judge’s decision that he had no authority under rule 59.06(1), after his reasons had been issued, to correct what he acknowledged to be a technical error. The trial judge inadvertently used an incorrect figure in his calculations of damages. This was an accidental slip and the trial judge might have corrected this error under rule 59.06(1). The error in the damages amount of the judgment was varied from $49,451.44 to $61,547.33. The cross-appeal was therefore allowed.

United States v. Norton, 2017 ONCA 866

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

Counsel:

G S Campbell & K G Kernisant, for the applicant

R A Kramer, for the Attorney General of Canada

Keywords: Administrative Law, Judicial Review, Ministerial Decision, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, Extradition Law, Extradition Act, Criminal Law, Trafficking in a Controlled Substance, Aboriginal Defendants, Canadian Charter of Rights and Freedoms, ss. 6-7, United States of America v. Leonard, 2012 ONCA 622, R. v. Gladue, [1999] 1 S.C.R. 688

Facts:

On March 26, 2010, Mr. Norton (the applicant) was immediately arrested after delivering 80 pounds of marijuana to an undercover officer at a hotel in New Jersey.  Mr. Norton was indicted by a grand jury on September 30, 2010. He is now 54 years old and has three children (aged 26, 16, and 6).  He was born in the United States and is a Mohawk of Akwesasne. He is registered as an Indian under the Indian Act, R.S.C., 1985, c. I-5 and is officially recognized as a member of the Mohawks of Akwesasne. He has familial and cultural roots throughout the Akwesasne territory, which overlaps Ontario, Quebec and New York State.

On March 21, 2011, he attended court with counsel and signed a voluntary plea agreement with the prosecutor in which he admitted to the essential elements of the offence. The plea agreement stipulated that Mr. Norton would serve a term of eight years in custody in a New Jersey Correctional facility in exchange for his admission of guilt. Mr. Norton was ordered to appear in court for sentencing on June 24, 2011. The sentencing was adjourned on consent on a number of occasions.  It was finally set for March 23, 2012. On March 23, 2012, Mr. Norton failed to appear in court. The matter was adjourned to March 30, 2012, at which point Mr. Norton again failed to appear and a warrant was issued for his arrest.

On September 16, 2015, at the request of the United States, Mr. Norton was provisionally arrested, pursuant to s. 13 of the Extradition Act, S.C. 1999, c. 18.  On May 26, 2016, a judge of the Superior Court of Justice found that there was sufficient evidence to commit Mr. Norton on trafficking in a controlled substance as set out in the Authority to Proceed. Mr. Norton was ordered into custody to await the Minister’s decision on surrender pursuant to the Extradition Act.  Mr. Norton did not appeal the decision of the extradition judge. Submissions were made on behalf of Mr. Norton to the Minister regarding her decision on surrender on October 13, 2016, January 10, 2017 and January 11, 2017.  In particular, Mr. Norton submitted that his surrender should be denied based on his personal circumstances, including his Aboriginal heritage under s. 7 of the Canadian Charter of Rights and Freedoms and under s. 6(1) of the Charter.  On February 9, 2017, the Minister gave detailed reasons for her decision to surrender Mr. Norton to the authorities of the United States of America.

The applicant seeks judicial review of the decision of the Minister of Justice dated February 9, 2017, that ordered his surrender to the authorities of the United States of America.  The applicant seeks to have that order quashed or, in the alternative, have the matter remitted back to the Minister for reconsideration.

Issues:

(1) Did the Minister fail to give proper consideration to the principles set out in the court’s decision in United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496 and the principles established in R. v. Gladue, [1999] 1 S.C.R. 688, or breach the applicant’s Charter rights?

Holding: Application dismissed.

Reasoning:

(1) No. The Minister did not fail to properly apply the Leonard decision.  In her lengthy and detailed reasons responding to the applicant’s submissions, she canvassed all of the relevant factors.  She specifically reviewed the reasons in Leonard and applied the principles articulated in that case, taking Mr. Norton’s Gladue factors into special consideration both in assessing whether his surrender would violate the principles of fundamental justice under s. 7 of the Charter, and in determining whether extradition was a justifiable limitation of his s. 6(1) Charter rights.

Recognizing that an individual assessment was required, the Minister nevertheless responded to the applicant’s arguments that his circumstances were similar to those of Mr. Leonard and Mr. Gionet (whose surrender was also at issue in the Leonard case), and warranted the same result. She pointed out, correctly in the court’s view, that there were significant differences between the individual circumstances of Mr. Leonard and Mr. Gionet, on the one hand, and the applicant on the other.

The Minister also expressly considered the factors identified in Gladue.  The Minister noted that the applicant’s Aboriginal background, along with his other personal circumstances, would be considered at the time of sentencing.  She also noted that his Aboriginal background would be considered and accommodated while he was incarcerated in New Jersey. In addition, the Minister had other matters that she had to take into account in reaching her decision on surrender, including Canada’s international treaty obligations.

The court must accord substantial deference to the Minister’s decision.  The standard of review is reasonableness. Unlike the situation in Leonard, apart from claiming that the Minister failed to give proper consideration to Gladue principles, the appellant did not assert any discrete legal error in the Minister’s decision. In light of the considerations outlined in the Minister’s reasons, the applicant failed to establish that the Minister’s decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”:  Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at para. 47.

Short Civil Endorsements

Clark v. 1682211 Ontario Inc. (Sports Café Champions), 2017 ONCA 851

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

David Clark, acting in person

John Philpott, for the respondent

Keywords: Procedural Law, Rules of Civil Procedure Rule 2.1, Appeal Dismissed

Freire v. Freire, 2017 ONCA 853

[Sharpe, Rouleau and Pardu JJ.A.]

Counsel:

Murray E. Lightman, for the appellant

Philip Viater, for the respondent

Keywords: Family Law, Equalization, Net Family Property, Cohabitation, Separation Agreement, Family Law Act s. 2(8)(a), Appeal Dismissed

Sorbam Investments Ltd. v. Litwack, 2017 ONCA 850

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

Michael Hebert, for the appellant

Tamara Farber, for the respodents

Keywords: Summary Judgment, Nuisance, Negligence, Appeal Dismissed

Virc v. Blair, 2017 ONCA 849

[MacFarland, Pepall and Pardu JJ.A.]

Counsel:

Michael F. Blair, acting in person

Michael Kril-Mascarin, for the respondent

Keywords: Garnishment, Retirement Compensation Arrangement, Pension Benefits Act, R.S.O. 1990, c. P.8, Wages Act, R.S.O. 1990, c. W.1, Family Responsibility and Support Arrears Act, S.O. 1996, c. 31, Appeal Dismissed

Lawyers’ Professional Indemnity Company v. Lloyd’s Underwriters, 2017 ONCA 858

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

Stephen Cavanagh, for the appellant/respondent by way of cross-appeal

Heather Gray, for the respondent/appellant by way of cross-appeal

Keywords: Insurance Law, Professional Errors and Omissions Insurance, Lawyers, Excess Policy, Appeal Dismissed

H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861 DATE: 20171109

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

H.A.G., acting in person

Carole Jenkins, for the respondents

Keywords: Torts, Intentional Infliction of Mental Suffering, Negligence, Damages, Punitive Damages, Rules of Civil Procedure, r. 21.01(1)(b), Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, Appeal Dismissed

Criminal and Review Board Decisions

R v. Regis, 2017 ONCA 848

[Laskin, Feldman and Blair JJ.A.]

Counsel:

Paul Alexander, for the appellant

Brendan Gluckman, for the respondent

Keywords: Criminal Law, Sentencing, Trafficking, Possession, Appeal Allowed

R v. Nguyen, 2017 ONCA 855

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

Counsel:

Colin Wood, for the appellant

Tanit Gilliam, for the respondent

Keywords: Criminal Law, Drug Offences, Search Warrant, Charter of Rights and Freedoms, s. 8, Appeal Dismissed

R v. Sodoma, 2017 ONCA 860

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

Counsel:

Margaret Bojanowska, for the appellant

Milica Potrebic, for the respondent

Keywords: Criminal Law, Circumstantial Evidence, Search Warrant, Exigent Circumstances, Appeal Dismissed

R v. Sim, 2017 ONCA 856

[Laskin, Feldman and Blair JJ.A.]

Counsel:

Eric Granger, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Criminal Harassment, Actus Reus, Appeal Dismissed

R v. C.B., 2017 ONCA 862

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

Counsel:

C.B., appearing in person

Howard Krongold, as duty counsel

Michael Bernstein, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Misapprehension of Evidence, Appeal Allowed

R v. Pawluk, 2017 ONCA 863

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

Andrew Hotke, for the appellant

Patrick J. Ducharme, for the respondent

Keywords: Criminal Law, Impaired Driving, Driving Over 80, Appeal Allowed in Part

R v. Gough, 2017 ONCA 865

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Howard L. Krongold, for the appellant

Jennifer McKee, for the respondent

Keywords: Criminal Law, Burden of Proof, Appeal Dismissed

R v. Taugher, 2017 ONCA 864

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

Charles Shortt, for the appellant

Rebecca Schwartz, for the respondent

Keywords: Criminal Law, Impaired Driving, Appeal Dismissed

Colaco (Re), 2017 ONCA 869

[Watt, Brown and Roberts JJ.A.]

Counsel:

Daniel Medd, for the appellant Kenneth Colaco

Karen Shai, for the Ministry of the Attorney General

Michele Warner, for Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Supervision, Appeal Dismissed

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.

ONTARIO COURT OF APPEAL SUMMARIES (OCTOBER 30 – November 3rd, 2017)

Good evening.

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

Another decision in the Yaiguaje v. Chevron Corporation case was released this week which ensures that there will be at least one further decision of the Court of Appeal to come in this case. Readers will recall that Chevron had obtained an order from a single judge of the Court of Appeal requiring the Ecuadorean villagers to post $942,951 as security for costs. It appeared that this might end the case before the appeal dismissing the claim to enforce their multi-billion dollar Ecuadorean judgment could be heard. However, a full panel of the Court set aside their colleague’s order and held that it was not in the interests of justice to order security for costs in this case. The Court rested its decision on the fact that this was public interest litigation on behalf of 30,000 Ecuadorean villagers whose environment had suffered ecological devastation, the judgment they sought to enforce was to benefit all of them, and that Chevron, a multi-billion dollar international conglomerate, did not require the protection of a security for cost order.

Other topics covered included habeas corpus in the immigration context, construction law (liability for exaggerated claims), varying orders, approving MVA settlements involving parties with disabilities, family law (enforcing an Islamic marriage contract), class actions (judicial discretion in defining common issues), insurance coverage in the MVA context, the rectification of a will, and administrative law (Ontario Racing Commission).

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:

Welton Estate v. Haugrud, 2017 ONCA 831

Keywords: Wills and Estates Law, Wills, Rectification

Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, Rules 56.01(1)(a), 61.06(1)(b), Standard of Review, Discretionary Orders, Errors in Principle

Brooks v. Ontario Racing Commission, 2017 ONCA 833

Keywords: Administrative Law, Judicial Review, Standard of Review, Procedural Fairness, Natural Justice, Notice, Jurisdiction, Adequacy of Reasons, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Dunsmuir v. New Brunswick, 2008 SCC 9

Ravenda Homes Ltd. v. 1372708, 2017 ONCA 834

Keywords: Contracts, Construction Law, Construction Liens, Liability for Exaggerated Claims, Construction Lien Act, R.S.O. 1990, c. C.30, s. 35

Jorisch v. Toronto Catholic District School Board, 2017 ONCA 845

Keywords: Torts, Negligence, Civil Procedure, Parties with Disabilities, Settlements, Court Approval, Cost of Future Care, Legal Fees

Levac v. James, 2017 ONCA 842

Keywords: Torts, Negligence, MedMal, Civil Procedure, Class Actions, Certification, Common Issues, Summary Judgment, Natural Justice, Procedural Fairness, Notice, Opportunity to Make Submissions

Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840

Keywords: Civil Procedure, Appeals, Orders, Varying, Rules of Civil Procedure, Rules 1.04, 37.14(6), 59.06 and 61.16

Bakhshi v. Hosseinzadeh, 2017 ONCA 838

Keywords: Family Law, Domestic Contracts, Islamic Marriage Contract (Maher), Net Family Property, Excluded Property, Family Law Act, R.S.O. 1990, c. F.3., ss 4(2)6, 4(5)

Middleton v. Pankhurst, 2017 ONCA 835

Keywords: Contracts, Insurance Law, Coverage, MVA, Insurance Act, R.S.O. 1990, c. I. 8., Section 118, Statutory Condition 4(1) of O. Reg. 777/93, Kereluik v. Jevco Insurance Company, 2012 ONCA 338, Standard of Review, Standard Form Contracts, Correctness

Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839

Keywords: Immigration Law, Detention, Habeas Corpus, Chaudhary v. Canada, 2015 ONCA 700, Immigration and Refugee Protection Act, Jurisdiction, Conditional Release

For criminal and Ontario Review Board Decisions click here.

For short civil decisions click here.

Civil Decisions:

Welton Estate v. Haugrud, 2017 ONCA 831

[MacFarland, Hourigan and Pardu JJ.A.]

Counsel:

Robert Rueter and David Barbaree, for the appellant

Craig Vander Zee, for the respondent The Bank of Nova Scotia in its capacity of Estate Trustee

Justin de Vries, for the respondent Catherine Haugrud

Michael Bordin and Karen Watters, for Simpson Wigle Law LLP

Bianca La Neve, for the Office of the Children’s Lawyer

Keywords: Wills and Estates Law, Wills, Rectification

Facts:

The appellant was the widow of the deceased testator. She did not challenge the will, and elected to take under it. A motion was brought to correct an error made by the drafting solicitor. The evidence of the drafting solicitor was corroborated by that of the deceased’s accountant. The motion was opposed only by the appellant.

Issues:

(1) Was the motion judge correct to proceed with the rectification motion before her?

(2) Should leave be granted to appeal costs?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. The motion judge was correct to proceed with the rectification motion. The deceased’s intention to liquidate shares that he owned in order to provide money to his children was apparent on the face of the will. The redemption of shares which he did not own when the will was drafted would not have provided this necessary funding. The motion judge made no error in receiving evidence of the drafting error, and the motion judge’s factual findings were amply supported by the evidence.

(2) No. The motion judge was alive to the different considerations that apply in estate matters in relation to public policy issues.

Yaiguaje v. Chevron Corporation, 2017 ONCA 827

[Hoy A.C.J.O., Cronk and Hourigan JJ.A.]

Counsel:

Alan Lenczner, Brendan Morrison, Kirk Baert and Celeste Poltak, for the appellants

Peter Grant, for the appellants

Benjamin Zarnett, for the respondent Chevron Canada

Larry Lowenstein, for the respondent Chevron Corporation

Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, Rules 56.01(1)(a), 61.06(1)(b), Standard of Review, Discretionary Orders, Errors in Principle

Facts:

The appellants bring a motion to vary or set aside the order of the motion judge requiring them to post $942,951 as security for costs of the proceeding and the appeals in Yaiguaje v. Chevron Corporation (C63309 and C63310), both now pending in the Court of Appeal, prior to the hearing of the appeals.

The appellants, Yaiguaje et al, are residents of Ecuador who hold a judgment of US$9.5 billion against the respondent, Chevron Corporation, obtained in 2011.  The judgment was the result of a claim for environmental damage that the appellants allege was caused by Texaco Inc., a company that later merged with Chevron Corporation. The appellants are representative plaintiffs for approximately 30,000 indigenous Ecuadorian villagers who have been affected by the environmental pollution.

In 2012, the appellants commenced an action in the Ontario Superior Court of Justice for the recognition and enforcement of the Ecuadorian judgment against Chevron Corporation and Chevron Canada, a seventh level, indirect subsidiary of Chevron Corporation.

The defences raised by Chevron Corporation include that the Ecuadorian judgment cannot be recognized or enforced in Ontario because, as the United States District Court for the Southern District of New York found in 2014, it was obtained by fraudulent means.

Chevron Corporation and Chevron Canada moved for summary judgment, submitting that the shares and assets of Chevron Canada are not exigible pursuant to the Execution Act, R.S.O. 1990, c. E.24, and that there is no basis to pierce the corporate veils between Chevron Canada and its indirect parent Chevron Corporation, in order to make Chevron Canada’s shares and assets available to satisfy the Ecuadorian judgment against Chevron Corporation.

Justice Glenn Hainey accepted these submissions, granted summary judgment in favour of Chevron Corporation and Chevron Canada, and dismissed the plaintiffs’ claim against Chevron Canada.

The appellants appealed the order of Hainey J., and Chevron Corporation and Chevron Canada brought a motion for security for costs of the proceeding and the appeals.

The motion judge found that the appellants had not established that they were impecunious or that third party litigation funding was unavailable.  Because she found that impecuniosity had not been established, the motion judge ruled that the appellants had to demonstrate that their claim has a good chance of success. On a review of the merits of the claim, she found that the appellants had not met that onus. She therefore ordered the appellants to post security for costs and the appellants moved before a full panel to vary or set aside that order.

Issues: Did the motion judge err in ordering that the appellants post security for costs before the appeals could be heard?

Holding: Motion granted.

Reasoning:

Yes. Chevron Corporation and Chevron Canada relied on rules 56.01(1)(a) and 61.06(1)(b) of the Rules of Civil Procedure in support of their motion for security for costs. In an appeal, rule 61.06(1)(b) authorizes the Court of Appeal to make such an order for security for costs of the proceeding and the appeal “as is just” where an order for costs could be made under r. 56.01.

The appellants move pursuant to s. 7(5) of the Courts of Justice Act to review and set aside the order.

In support of their motion, the appellants question whether the motion judge erred in principle in determining the justness of the order sought. An error in principle is one of the bases on which the court may interfere with a discretionary order.

Even if the requirements of the rule are met, there is no entitlement to security for costs and the court may still exercise its discretion to refuse to order security for costs. In determining whether an order should be made for security for costs, the “overarching principle to be applied to all the circumstances is the justness of the order sought”. In deciding motions for security for costs, judges are obliged to first consider the specific provisions of the Rules governing those motions and then to consider the justness of the order sought in all the circumstances of the case, with a focus on the interests of justice. The court held that the motion judge failed to undertake the second part of that analysis in this case.

The Rules explicitly provide that an order for security for costs should only be made where the justness of the case demands it. The court stated that judges must be vigilant to ensure that an order that is designed to be protective in nature, is not used as a litigation tactic to prevent a case from being heard on its merits – even in circumstances where the other provisions of Rules 56 or 61 have been met.

Factors to consider in determining the justness of security for costs orders include: the merits of the claim, delay in bringing the motion, the impact of actionable conduct by the defendants on the available assets of the plaintiffs, access to justice concerns, and the public importance of the litigation.

For the following reasons, the court concluded that in the interests of justice, no order for security for costs ought to have been made, and set aside the motion judge’s order for security for costs:

1. This is a public interest litigation. The appellants are seeking to enforce a judgment in which they have no direct economic interest. Funds collected on the judgment will be paid into a trust and net funds are to be used for environmental rehabilitation or health care purposes.

2. Although there was no direct evidence of impecuniosity before the motion judge, it would be highly impractical to obtain this evidence from the representative plaintiffs, let alone the 30,000 people who would indirectly benefit from the enforcement of the judgment. There can be no doubt that the environmental devastation to the appellants’ lands has severely hampered their ability to earn a livelihood.

3. In contrast to the position of the appellants, Chevron Corporation and Chevron Canada have annual gross revenues in the billions of dollars. It is difficult to believe that either of these two corporations would require protection for cost awards.

4. While the question of whether the Ecuadorian plaintiffs have third party litigation funding available to them was left unanswered, there should be no bright line rule that a litigant must establish that such funding is unavailable in order to successfully resist a motion in an appeal for security for costs.

5. At this stage, it cannot be said that this is a case that is wholly devoid of merit.

6. There is no doubt that the legal arguments asserted by the appellants are innovative and untested, especially with regard to piercing the corporate veil. But this does not foreclose the possibility that one or more of them may eventually prevail.

7. It is difficult to accept that the motion for security for costs was anything more than a tactic by Chevron Corporation to bring an end to the litigation.

Brooks v. Ontario Racing Commission, 2017 ONCA 833

[MacFarland, Hourigan and Pardu JJ.A.]

Counsel:

D Moore and K Jones, for the appellants

B van Niejenhuis and B Kates, for the respondents

Keywords: Administrative Law, Judicial Review, Standard of Review, Procedural Fairness, Natural Justice, Notice, Jurisdiction, Adequacy of Reasons, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Dunsmuir v. New Brunswick, 2008 SCC 9

Facts:

A judicial review application was brought by the Appellants, Bulletproof Enterprises (“Bulletproof”) and its owner Jeffrey Brooks, in relation to three decisions. First, the Director of the Ontario Racing Commission (“ORC”) issued a Suspension and Freezing Order against Mr. Brooks on the basis that his brother, David Brooks, had been involved in running Bulletproof, despite having been suspended by the ORC (the “Freezing Order”). Second, the ORC dismissed the appellants’ motion to quash or stay both the Freezing Order and the Notice of Proposed Order to Suspend Licences (the “Notice of Proposed Order”) and dismissed the motion in the alternative for particulars (the “Procedural Decision”). Third, after a hearing before a panel of the ORC, the panel made findings of wrongdoing against the appellants and ordered forfeiture of the frozen accounts, ten year licence suspensions, and a fine of $400,000 (the “Merits Decision”).

The Divisional Court dismissed the application for judicial review. Justice Sachs, writing for the court, found that although the Director did not have jurisdiction to grant the Freezing Order, the granting of that order did not require the Merits Decision to be set aside because ultimately the panel had the power to seize the funds subject to the Freezing Order. She further found that both the Procedural Decision and Merits Decision were reasonable and the manner in which the proceedings were conducted did not breach the appellants’ rights to natural justice. The Divisional Court’s decision was appealed to the Court of Appeal.

Issues:

(1) Is the alleged failure of the panel to provide adequate reasons an issue of fairness therefore resulting in no applicable standard of review?

(2) Did the ORC’s refusal to provide sufficient particulars amount to a deprivation of notice and a breach of procedural fairness?

(3) Did the panel’s decision to allow Vice-Chair Donnelly to continue sitting as a hearing panel member after the expiration of his term of appointment result in the panel losing jurisdiction and the failure of the panel to permit the parties to make submissions on the issue constitute a breach of natural justice?

(4) Did the panel make unsupported factual findings, fail to address contradictory evidence, and provide reasons that were so inadequate that they amounted to a breach of procedural fairness?

Holding: Appeal dismissed.

Reasoning:

(1) No. This issue was conclusively answered by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, which stated that: “Any challenge to the reasoning/result of the decision should […] be made within the reasonableness analysis.”

(2) No. The Divisional Court correctly held that the particulars in the Notice of Proposed Order constituted sufficient notice, such that the appellants understood the case they had to meet. The evidence led at the hearing related directly to the particulars contained in the Notice of Proposed Order. Moreover, the wrongdoing alleged in the Notice of Proposed Order was directly connected to the eventual findings of the panel at the merits hearing.

(3) No. The Court of Appeal’s decision in Piller v. Assn. of Ontario Land Surveyors, 160 O.A.C. 333 is dispositive of this issue. Section 4.3 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 reads: “If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose.”

Whether a “hearing” commences with preliminary motions, such that a member can be said to have “participated” is a question of statutory interpretation that is reviewable on a standard of reasonableness. The panel’s conclusion that the member could continue to sit was not unreasonable given this court’s jurisprudence in Piller.

(4) No. The adequacy of reasons is not a stand-alone basis for quashing a decision. The reasons must be read together with the outcome and assessed for whether the result falls within a range of possible outcomes. According to the Supreme Court in Newfoundland Nurses, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”. In this case, the reasons of the panel adequately explained the decision made and its underlying analysis.

The Court of Appeal was of the view that the panel made reasonable factual findings available to it on the evidentiary record. In this regard, it is important to note that the appellants called no evidence at the hearing. Their objection to the reasons amounted to nothing more than an assertion that the panel should have drawn different inferences from the evidence given by the ORC’s witnesses. The panel’s reasons allowed the Court of Appeal to understand why the tribunal made its decision, and the reasons together with the record enabled the court to conclude that the outcome was within the range of acceptable outcomes.

Ravenda Homes Ltd. v. 1372708, 2017 ONCA 834

[Hourigan, Brown and Roberts JJ.A.]

Counsel:

Peter H. Griffin, Constanza Pauchulo and Ryan Breedon, for the appellant

Robert C. Harason, for the respondents

Keywords: Contracts, Construction Law, Construction Liens, Liability for Exaggerated Claims, Construction Lien Act, R.S.O. 1990, c. C.30, s. 35

Facts:

The appellant, Ravenda Homes, and the respondent, 1372708, worked together to develop a residential subdivision in Fort Erie. Their working arrangement generated two written agreements. There is no dispute about the validity of the first written agreement, however there is a dispute about the validity of the second written agreement, dated December 13, 2005 (the “Disputed Agreement”), the terms of which provided that Ravenda Homes had the option to purchase from 1372708 developed lots without a deposit, and 1372708 anticipated obtaining municipal approvals and building permits by June 1, 2006.

On December 13, 2005, Ravenda Homes’ lawyer sent by fax a copy of the Disputed Agreement, signed by Ravenda Homes, to the principal of 1372708, Vaughn Gibbons. The Disputed Agreement provided that it would be of no force and effect unless it was fully executed by the parties and returned, with the deposit set out in section 1(a) of the agreement, to Ravenda Homes, on or before 5:00 p.m. on that same day. The Disputed Agreement was signed and returned by 1372708 after the prescribed deadline.

Ravenda Homes built the three model homes and renovated the house into a sales office, marketed lots, and entered into 32 agreements of purchase and sale with potential homebuyers. Meanwhile, 1372708 pursued municipal approvals for the proposed plan of subdivision, so that services could be installed to support the homes to be built and the requisite building permits could be obtained.

Towards the end of the summer 2006, Ravenda Homes took the position that 1372708 had failed to act in good faith to take the necessary steps to obtain municipal approvals, which made it impossible for Ravenda Homes to meet its construction deadlines under the 32 agreements of purchase and sale. In September 2006, Ravenda Homes withdrew from the project on the basis that 1372708 had repudiated their agreement.  Ravenda Homes commenced an action for breach of contract against the respondents (the “Contract Action”), registered a certificate of pending litigation, and commenced a construction lien action (the “Lien Action”). 1372708 counterclaimed for damages caused by Ravenda Homes’ withdrawal from the project and the registration of the certificate and lien.

Following the respondents’ motion for summary judgment, the motion judge dismissed Ravenda Homes’ action for breach of contract, vacated its certificate of pending litigation, allowed Ravenda Homes’ lien action, allowed 1372708’s counterclaim in part, and referred to trial the issue of the parties’ respective damages. Ravenda Homes appealed, and 1372708 cross-appealed.

Issues:

(1) Did the motion judge err in failing to find that the Disputed Agreement was enforceable?

(2) Did the motion judge err in awarding 1372708 damages for overpayment of annual fees and legal fees for the letter of credit that 1372708 posted to vacate Ravenda Homes’ construction lien?

(3) Did the motion judge err in dismissing 1372708’s counterclaim for damages for the payment of the property taxes on the model homes in the amount of $59,167.71?

(4) Did the motion judge err in finding that Ravenda Homes had a valid construction lien?

Holding: Appeal allowed in part. Cross-appeal dismissed.

Reasoning:

(1) No. As the motion judge observed, while Ravenda Homes could withdraw from the project, there was no breach by the respondents. These findings were open to the motion judge on the voluminous motion record, are free of error, and do not justify appellate intervention.

(2) Yes. The correct test under s. 35 of the Construction Lien Act, R.S.O. 1990, c. C.30 (CLA) required the motion judge to consider whether Ravenda Homes’ lien claim was “grossly in excess” of what was ultimately proven to be owed under the lien, not merely “excessive”. The court accepted Ravenda Homes’ submission that the motion judge erred in making any such determination under s. 35 of the CLA, given that the amount of Ravenda Homes’ lien had not been determined but was one of the issues that the motion judge referred to trial. As a result, the court set aside the provisions of para. 4 of the motion judge’s order which relate to the granting of 1372708’s costs incurred to post the letter of credit for the construction lien, which issue was referred to trial.

(3) No. The motion judge’s determination was a factual one based on his assessment of the evidence of the parties’ course of conduct, which was open to him to make on the record before him. seethe court saw no error or basis to interfere.

(4) No. The motion judge’s findings at para. 155 of his reasons satisfy the criteria for a valid lien. While the motion judge did not expressly state that 1372708 impliedly requested that Ravenda Homes build the model homes, this can be inferred from his finding that 1372708 was an active participant who impliedly encouraged the building of the model homes in furtherance of the parties’ agreement to develop the subdivision. As the motion judge stated: “The houses were built to benefit both 137 and Ravenda Homes”. The sooner the lots were sold to Ravenda Homes, the quicker 137 would get its profit out of the project. Both parties recognized that the presence of model homes would improve the ability of Ravenda Homes to sell the lots. In fact, prior to the ultimate falling out between them, both parties approached the Town to seek permission to build additional model homes. Simply put, the improvements made on the three lots were made with the acquiescence of and for the benefit of 137. Appellate intervention was therefore unwarranted.

Jorisch v. Toronto Catholic District School Board, 2017 ONCA 845

[Watt, Pepall and Miller JJ.A.]

Counsel:

Howard R. Smith and Daniel J. Balena, for the appellants

No one appearing for the respondents

Keywords: Torts, Negligence, Civil Procedure, Parties with Disabilities, Settlements, Court Approval, Cost of Future Care, Legal Fees

Facts:

The appellant Wesley Jorsich suffered a severe brain injury in a high school rugby match. The appellants’ action in negligence was settled before trial for $12,500,000, subject to judicial approval. Although the overall settlement was approved by the motion judge as fair and reasonable, he found that the settlement did not allocate sufficient funds to provide for Wesley’s cost of future care. He also found that the solicitor’s fees under a contingency fee agreement were excessive, reduced the fees from a 30% contingency fee to 20%, and disallowed a further $339,000. He applied the resulting surplus to the pool of invested funds used to generate funds for Wesley’s monthly costs of care.

Issues:

  1. Did the motion judge err in determining that insufficient funds were set aside to provide for future care?
  2. Did the motion judge err in reducing the solicitor’s fees?

Holding: Appeal dismissed.

Reasoning:

  1. No. With respect to the motion judge’s determination that the funds set aside in the settlement were insufficient to provide for future care, the appellants argue that the motion judge erred in preferring the submissions of the Office of the Public Guardian and Trustee, premised on an expected rate of return of 4.19%, over the report of the appellant’s expert, which posited an expected rate of return of 10%.

The motion judge thoroughly canvassed the material before him, and came to a reasoned decision. The court saw no basis to interfere with his determination that the best interests of Wesley require allocating additional funds to future care.

  1. No. The court found no basis to interfere with the motion judge’s discretionary decision to reduce the fees of the appellant’s solicitors. The court was not directed to any error that justifies interference with the decision.

Levac v. James, 2017 ONCA 842

[Blair, Juriansz and Miller JJ.A.]

Counsel:

D A Cruz and E J Baron, for the appellant

P Harte and M Damiano, for the respondent

Keywords: Torts, Negligence, MedMal, Civil Procedure, Class Actions, Certification, Common Issues, Summary Judgment, Natural Justice, Procedural Fairness, Notice, Opportunity to Make Submissions

Facts:

A Toronto pain management clinic experienced a bacterial infection outbreak. Several patients became infected, including the respondent, Anne Levac, who fell severely ill after receiving epidural injections for pain management.  The appellant, Dr. Stephen James, an anaesthesiologist at the clinic, administered the epidural injections to Ms. Levac and other patients. Subsequent laboratory testing disclosed that Dr. James was colonized with the same strain of bacteria as six of the infected patients, including Ms. Levac.

Ms. Levac commenced an action against Dr. James, the clinic, the clinic nurses, and the clinic medical director. She alleged that Dr. James caused the outbreak by negligently implementing a substandard infection prevention and control practice. Ms. Levac brought a motion seeking certification of a class action and a motion for partial summary judgment against Dr. James. Both motions were argued one after the other on the same day and the motion judge issued one set of reasons and one order disposing of both. The motion judge certified the class proceeding against all defendants and granted summary judgment against Dr. James, finding that he had breached his duty of care to members of the class, that specific causation had been established for those class members infected with the same strain of bacteria found on Dr. James, and general causation for the remainder of the class. In his analysis of certification, the motion judge discarded the formulation of the breach of care common issue that he had certified at the certification hearing. Instead, he certified a fourth formulation, again of his own devising, but which the parties had no opportunity to consider.

Issues:

(1) Did the motion judge compromise procedural fairness when he certified and granted summary judgment on a formulation of the common issue that was different from the formulation that he had approved in an oral ruling when hearing the certification motion, immediately prior to hearing the summary judgment motion?

(a) Is a certification judge confined to the wording of issues proposed by the parties?

(b) Was the certification judge’s change in wording of the formulation of the breach of     care common issue an insignificant change that was merely a distinction without a difference?

(c) Is unfairness from a lack of notice of the common issues cured by the appeal process?

Holding: Appeal allowed.

Reasoning:

(1) Yes. There was a procedural unfairness and for that reason, the appeal must be allowed and the matter sent back for a new certification motion.

(a) No. A certification judge may, in some circumstances, depart from the wording of a common issue that the parties have agreed upon and proposed. The requirements of procedural fairness, however, impose limits on when and how that discretion may be exercised.

(b) No. It is instructive that the motion judge did not view his change to the question as a “distinction without a difference”. On the contrary, he clearly understood the new wording as capturing “permutations of the duty of care issue” absent from the three previous formulations advanced at the motion hearing. In his view, the new wording better captured the “distinction between negligent performance and negligent design of the IPAC Practice”. Whether it actually did so, without introducing issues not amenable to resolution on a class-wide basis or raising other concerns, was a question the parties ought to have been able to address through submissions to the motion judge.

The degree of difference between the two formulations is not the only consideration relevant to assessing procedural fairness. In this case, the following factors provide additional support for Dr. James’ position:

  1. the conduct of the proceedings: Dr. James reasonably expected that the motion judge would adhere to the agreed upon formulation of issues in his reasons for decision;
  2. the importance of the common issue to the resolution of the action as a whole; and
  3. the lack of any steps by the motion judge to address potential prejudice to Dr. James.

It is also significant that Dr. James may well have contested certification of the class proceeding had he known the certified common issue would be the one formulated by the motion judge. He was therefore deprived of the opportunity to contest not only the final formulation of the common issue, but certification of a proceeding premised on that issue.

(c) No. An appeal is not a trial de novo. The opportunity to argue an appeal with knowledge of the certified common issue does not cure the unfairness of arguing a summary judgment motion under a misapprehension about the common issue in question. Neither does the ability to contest the certified common issue on appeal provide an adequate remedy for the lack of opportunity to convince the motion judge against certifying that issue at first instance. It is crucial that litigants receive a fair process when they initially argue a certification motion, particularly because a certification judge’s substantive conclusions are not easily set aside on appeal.

Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840

[Cronk, van Rensburg and Pardu JJ.A.]

Counsel:

Bryan Finlay, Q.C., Marie-Andrée Vermette, Michael Statham, David Sterns, Allan D.J. Dick and Andy Seretis, for the moving party

Peter H. Griffin and Rebecca Jones, for the respondent

Keywords: Civil Procedure, Appeals, Orders, Varying, Rules of Civil Procedure, Rules 1.04, 37.14(6), 59.06 and 61.16

Facts:

This court’s decision in this solicitor’s negligence case was released on July 4, 2017: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 (“Trillium v. CBB”). The moving party, Trillium Motor World Ltd. (“Trillium”), brings a motion in writing to vary the court’s direction to the trial judge set out at para. 404(3) of the court’s reasons. Specifically, Trillium seeks an order stipulating that, on the new damages hearing directed by this court at para. 404, the trial judge retains discretion to determine the final quantification of damages and the process for calculating the final award of damages, subject to a ceiling of $36.9 million. The respondent, Cassels Brock & Blackwell LLP (“CBB”), resists the motion.

Issues:

(1) Does the trial judge retain discretion to determine the final quantification of damages and the process of calculating the final awards of damages?

Holding: Motion dismissed.

Reasoning:

(1) No. In support of its motion, Trillium relies on Rules 1.04, 37.14(6), 59.06 and 61.16 of the Rules of Civil Procedure.

Rule 61.16(6.1) states: Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules. The court was not persuaded that this is one of those rare cases in which it would be in the interests of justice to invoke this court’s narrow jurisdiction under r. 59.06.

The July 2017 reasons of the court must be read as a whole and in the context of the issues raised and arguments advanced on appeal. The reasons do not address the mathematical approach to the calculation of damages at issue on this motion, as urged by CBB before the motion judge and rejected by him. That issue was not argued on the appeal.

Given the court’s decision on appeal, the appropriate methodology and process for the calculation of damages in this case, including whether or not to adopt a mathematical approach to the quantification of damages in the manner urged by CBB, will be for the trial judge to determine at the new damages hearing. Subject to the directions provided by this court at para. 404, nothing in this court’s reasons purports to constrain the trial judge’s discretion in this regard.

Bakhshi v. Hosseinzadeh, 2017 ONCA 838

[Laskin, Feldman and Juriansz JJ.A.]

Counsel:

P. Di Monte, for the appellant
F. M. Wood, for the respondent

Keywords: Family Law, Domestic Contracts, Islamic Marriage Contract (Maher), Net Family Property, Excluded Property, Family Law Act, R.S.O. 1990, c. F.3., ss 4(2)6, 4(5)

Facts:

The parties entered into the Maher upon marrying in Iran on May 18, 1995. The parties immigrated to Canada after they married. Among other things, the Maher contained a clause requiring the husband to pay his wife 230 gold coins upon her prompt request.

On October 29, 2013, the wife issued an application in Ontario claiming a divorce, custody of their children, child support, equalization of NFP, and other relief.

At trial, the judge found that the equalization payment was “inclusive of the Maher”. The judge found the value of the 230 gold coins were $79,580. Trial judge also found that the Maher, including the payment of the gold coins, was a valid and binding marriage contract under s.55 of the FLA since it was in writing, signed by both parties, and witnessed.

Trial judge found that the value of the Maher was to be excluded from the calculation of the NFP under s.4(2)6 which excludes from NFP, “property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.” Thus the trial judge treated the Maher payment as an additional amount owing to the wife above the equalization payment.

Issues:

(1) Did the trial judge err in his exclusion of the Maher payment from NFP pursuant to s.4(2)6 of the FLA?

Holding: Appeal allowed.

Reasoning:

(1) Yes. Agreements that satisfy the elements of a valid civil contract may be legally enforceable even where they have a religious aspect. The outcome of each case depends on the objective intentions of the parties ascertained through the particular wording of the Maher when read as a whole and considered in light of its factual matrix. As such evidence about the religious and/or cultural significance of the Maher to parties could conceivably be relevant. s. 4(2)6 of the FLA operates as an exception to the general rule that allows spouses to agree to exclude certain property from the NFP calculation. The trial judge erred in law by not reviewing the Maher to determine whether the spouses had actually made such an agreement.

Absent any evidence of an objective intention at the time of the contract to treat the Maher differently, the Maher payment must be treated under the FLA like any other payment obligation between the spouses. Bona fide inter-spousal debts must be included in NFP. Further, the effect of the deeming provision of s.4(5) is that transactions between spouses may affect the equalization payment where a spouse’s net assets would otherwise be negative. Also, excluding transactions between spouses would be inconsistent with the separate property regime under the FLA, which continues during a marriage and terminates only on the triggering of the valuation date. The Maher payment must be included in NFP and the equalization order was varied as a result.

Middleton v. Pankhurst, 2017 ONCA 835

[Hourigan, Roberts and Nordheimer JJ.A.]

Counsel:

D H Rogers and M Rodrigues, for the appellant

M O’Donnell, for the respondent

Keywords: Contracts, Insurance Law, Coverage, MVA, Insurance Act, R.S.O. 1990, c. I. 8., Section 118, Statutory Condition 4(1) of O. Reg. 777/93, Kereluik v. Jevco Insurance Company, 2012 ONCA 338, Standard of Review, Standard Form Contracts, Correctness

Facts:

Middleton and Pankurst agreed to go ice fishing on January 24, 2009. Pankhurst travelled by snowmobile to meet Middleton, the former had a valid class G driver’s licence. The licence was not subject to any restrictions, but Pankhurst was subject to a probation order arising from a guilty plea to careless driving in 2008, which prohibited him from driving at night or with alcohol in his system. The two parties consumed alcohol in an ice hut. Middleton walked home, but on his way got disoriented and asked Pankhurst to pick him up. Pankhurst picked him up and then drove him home. On the way home Pankhurst lost control of the snowmobile and both parties were ejected with Middleton suffering significant injuries.

The parties settled for $900,000. Pankhurst was insured by Aviva and Middleton was insured by Unifund. Middleton’s insurance policy provided coverage for under or uninsured claims.

Statutory Condition 4(1) of O. Reg. 777/93 (“Condition 4(1)”) applies to all Ontario automobile insurance contracts and provides that the insured shall not drive or operate….the automobile unless the insured… is authorized by law to drive or operate it.

Aviva took the position that it was not obliged to pay because Pankhurst was not authorized by law to drive at the time of the accident. The trial judge found that Pankhurst was authorized by law to drive at the time of the accident because he had a valid driver’s licence that was not subject to any restrictions imposed by the Ministry of Transportation (“MTO”). The trial judge relied on the case of Kereluik v. Jevco Insurance Company, 2012 ONCA 338, 111 O.R. (3d) 395, where Cronk J.A found that the phrase “authorized by law” was not intended to apply to breaches of the law not directly connected with violations of driving licence conditions. Further, the trial judge held that Aviva’s position was inconsistent with s.118 of the Insurance Act, RSO 1990, c. I.8.

Aviva appealed the decision.

Issues:

  • Is this case distinguishable from Kereluik on the grounds that the restrictions imposed on the defendant related directly to the operation of a motor vehicle?
  • Does section 118 of the Insurance Act apply to this case?
  • Should the policy goals of ensuring broad insurance coverage trump the rule of law by undermining the sanctity of court orders?

Holding: Appeal dismissed.

Reasoning:

Prior to engaging in its analysis, the Court noted that the standard of review is correctness as the issue was the interpretation of a standard form contract of insurance.

  • In Kereluik, the insured had been released from custody on an impaired driving charge. He was required to give a personal undertaking to abstain from the possession and consumption of any alcohol. The insured drove again while impaired and was involved in an accident where he was denied coverage on the basis that he was not authorized by law to drive. Justice Cronk held, , that the phrase “authorized by law” was not intended to apply to breaches of the law “not directly connected with violations of driving licence conditions.” She also noted a broad interpretation of the phrase would be inconsistent with s. 118 of the Insurance Act. Justice Cronk concluded that compliance with Condition 4(1) depended only on the insured’s possession of a valid driver’s licence and compliance with its terms – not the terms imposed on driving pursuant to any other law.

In the present case, the Court found that it did not matter that the undertaking in Kereluik was broader in scope than the probation order in the case at bar. The principle remained the same. Further, on reviewing a number of authorities, Cronk J.A. in Kereluik concluded that the authorities suggest that “the legal authority to drive, at any given time, depends on the existence of a valid licence issued by the responsible regulatory authority and compliance with the conditions attaching to the licence.” Thus the determination of whether an insured is authorized to operate a motor vehicle is restricted to a consideration of any restrictions imposed by MTO. Finally, the Court noted that overturning Kereluik could potentially deny coverage in any number of situations where there has been a criminal law violation which might preclude the compensation of a third party for losses caused by an impaired driver.

  • Section 118 of the Insurance Act provides that “unless the contract otherwise provides, a contravention of any criminal or other law in force in Ontario…does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed… with the intent to bring about loss or damage.” There is no meaningful distinction between a court order and “any criminal or other law in force in Ontario.” Both can operate to restrict the operation of a motor vehicle. Further, the policy objective of section 118 is to provide insurance protection for negligent tortfeasors who do not intend to cause harm, and to their victims.
  • There are legal consequences in criminal law for the breach of court orders. Ensuring broad policy coverage, in this instance, does not undermine the rule of law. The trial judge’s reasons do not impact or undermine the effectiveness of court orders.

Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839

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

Counsel:

Sharon Stewart Guthrie, Nicholas Dodokin, Monmi Goswami, and Marcia Pritzker Schmitt, for the appellant

Jamil Osai Ogiamien, acting in person

Brian Whitehead, for the Ministry of Community Safety and Correctional Services and the Attorney General of Ontario

Barbara Jackman, as amicus curiae

Keywords: Immigration Law, Detention, Habeas Corpus, Chaudhary v. Canada, 2015 ONCA 700, Immigration and Refugee Protection Act, Jurisdiction, Conditional Release

Facts:

The respondent Ogiamien came to the U.S. in 2001, as an undocumented immigrant. He later fled from criminal proceedings and entered Canada without permission and under an assumed name. In 2002 he was ordered deported from Canada for using an assumed name and for new criminal convictions. He returned to the United States to face outstanding criminal charges. After an unsuccessful refugee claim he was deported to Canada in 2005. He was detained for identity purposes, but released in 2006 with conditions on the ground that the time until the removal order would be executed was indeterminate. He reported to the CBSA in accordance with the ID release order, albeit on a somewhat irregular basis. He faced a number of criminal charges in Canada between 2009 and 2012. From 2006 until 2013, the CBSA took no steps to incarcerate him.

He was detained on criminal charges in Ontario in April 2013. As a result, he did not report to the CBSA under the terms of his ID release order. A CBSA arrest warrant was issued in February 2014 on the grounds that he had failed to report and that he was unlikely to appear for removal from Canada. The officer who issued the warrant testified in the habeas corpus proceedings that if he had known that he failed to report because of his criminal detention, he would not have issued the warrant. When he was released on bail for the criminal charges in May 2014, he was arrested pursuant to the CBSA warrant and remained in detention. The immigration detention at issue on this appeal began at that time. The criminal charges that led to his initial incarceration in April 2013 were withdrawn on July 16, 2014. His immigration detention was reviewed on a monthly basis by the ID but he remained detained until his release on habeas corpus in June 2016. By that time, he had been detained for immigration reasons for approximately 25 months.

Ogiamien commenced his habeas corpus application in August 2014. Initially, he sought access to legal resources and writing materials to allow him to challenge his detention in the Federal Court. The application evolved over the next several months. The application judge attempted to ascertain whether Ogiamien had an effective remedy in the Federal Court. In October 2015, following the appointment of amicus and the release of the court’s decision in Chaudhary v. Canada, 2015 ONCA 700, 127 O.R. (3d) 401, the habeas corpus application was amended to assert that Ogiamien’s detention had become unlawful due to its length and uncertain duration. The application judge heard several witnesses regarding Ogiamien’s detention and the availability of relief in the Federal Court. Ogiamien commenced another habeas corpus application challenging the conditions of his detention. He was successful at first instance, but the Ontario Court of Appeal allowed an appeal from that decision.

The application judge found that Ogiamien had established reasonable and probable grounds that his detention was lengthy and of uncertain duration, and that the AG had failed to meet its onus of establishing that Ogiamien’s continued detention was necessary to further the machinery of immigration control. She determined that Ogiamien was entitled to be released by way of habeas corpus.

About five months later, he was re-arrested by a CBSA officer because the officer believed Ogiamien had breached the conditions of his release by inaccurately completing an application for a Nigerian travel document. Ogiamien’s sister withdrew as his surety, and the AG consented to Ogiamien filing a new application for judicial interim release. However, at the hearing, the AG argued that absent a fresh habeas corpus application, there was no legal mechanism pursuant to which the application judge could consider Ogiamien’s second application for release. The application judge rejected this argument, and held that the breaches alleged by the AG, including Ogiamien’s completion of the Nigerian travel document, did not warrant his re-incarceration. She ordered his release on conditions similar to the first release order. The Attorney General of Canada (“AG”) appeals both decisions involving the detention of the respondent and his subsequent release.

Issues:

First Appeal

(1) Did the application judge err in finding that Ogiamien had met the threshold established in Chaudhary for assuming habeas corpus jurisdiction, and did the application judge err in finding that the detention was unlawful?

(2) Were there additional grounds upon which the application judge could have granted habeas corpus?

(3) Did the application judge err by quashing the ID detention order and imposing conditions to be supervised by her upon Ogiamien’s release?

Second Appeal

(4) Did the application judge err by considering Ogiamien’s request for release from immigration detention when he was re-arrested following his release on habeas corpus?

Holding: First appeal dismissed. Second appeal allowed in part.

Reasoning:

(1) No. Habeas corpus applications proceed in two stages. At the first stage, the applicant must show that he or she has been deprived of liberty and there is a legitimate ground upon which to question the legality of the detention. If the applicant succeeds in meeting that threshold, the onus shifts to the authorities to show that the deprivation of liberty is lawful. The application judge applied the Chaudhary test to determine at the first stage that she should assume habeas corpus jurisdiction. She found that Ogiamien had raised a legitimate ground upon which to question the legality of his detention, namely that his immigration detention was lengthy and of uncertain duration. The AG did not advance any argument that would justify the court interfering with the application judge’s findings. The reason for Ogiamien’s immigration arrest and detention was that he had failed to report and that he was alleged to be a flight risk, which was a sound finding. While he undoubtedly had an obligation to provide information as to his identity, any failure on his part to fulfil that duty should not have significant bearing on the assessment of the length of his detention.

The application judge did not err in taking into account the entire history of the immigration proceedings and the conduct of the CBSA to assess the length of the detention. The CBSA’s failure to conduct an effective investigation for over eight years, combined with the fact that Ogiamien was not arrested because of any problem in determining his identity or country of origin, supports the application judge’s inference that the length of the detention could not be explained away because of any lack of cooperation on Ogiamien’s part.

The application judge did not make a palpable and overriding error of fact in finding that Ogiamien did cooperate to some extent with the CBSA regarding his identity. She carefully considered the evidence and did not gloss over some of Ogiamien’s evasive and inaccurate responses to CBSA inquiries. The application judge also did not err by rejecting the contention that Ogiamien’s failure to participate in the statutory ID reviews or to seek judicial review in the Federal Court should be held against him in calculating the length of his detention. He participated in the ID reviews for the first 18 months of his detention and there was nothing to suggest that either the ID or the Federal Court would have released him had he pursued those processes. There was also no evidence in the record before her to suggest that identity documents required to effect Ogiamien’s removal would be forthcoming in a timely manner from the Nigerian authorities. The application judge made no error that would justify disturbing her finding that Ogiamien satisfied the first stage of the habeas corpus analysis by showing that there is a legitimate ground upon which to question the legality of the detention, namely, that the detention was of lengthy and uncertain duration.

At the second stage, the onus shifts to the AG to justify the detention. The AG submitted that the immigration purpose justifying the detention was that Ogiamien is a flight risk. The application judge rejected that argument listing several factors, including the fact that he “was on immigration release from 2006 to 2014 and never tried to leave Canada.” The application judge’s reliance on this fact is problematic, but her finding that he was not a flight risk did not rest on that fact alone. He had presented a viable release plan, and the timing of the deportation remains uncertain, so the risk of flight was not increased on that account. The application judge also did not err by relying on the fact that Ogiamien has a son in Canada as a factor. Lack of ties to the community may militate in favour of detention, as ties to the community may support the inference that the individual would appear for removal. When the record is considered as a whole, there was no legal error and there was sufficient evidence to support the application judge’s finding that the AG failed to demonstrate that Ogiamien’s continued detention was justified on the ground that he is a flight risk.

(2) No. As the application judge’s decision to order Ogiamien’s release on habeas corpus was affirmed, it was not necessary to consider these additional grounds. However, the court rejected the AG’s contention that habeas corpus will only be available in immigration matters in the case of lengthy detentions of uncertain duration and that the reach of Chaudhary is restricted to its precise facts. That submission ignores the more general principle upon which Chaudhary rests, which is that the Superior Court retains its residual jurisdiction to entertain habeas corpus applications where the IRPA process of review under the supervision of the Federal Court is less advantageous than habeas corpus, and where releasing the applicant would not alter the immigration status of the applicant or amount to a collateral attack on an immigration decision. Amicus’ submission that the additional grounds raised by Ogiamien fall within the scope of that principle was also rejected.

(3) Yes. The AG argued that only the Federal Court could quash the detention order and that the application judge exceeded her jurisdiction in doing so. The issue of whether the application judge should have quashed the detention order in the context of this proceeding was of no practical effect. Once Ogiamien was released on habeas corpus, the effect of the detention order was exhausted.

The application judge’s order released Ogiamien on terms that she described as “judicial interim release pending his removal from Canada”. The conditions of release included a recognizance in the amount of $30,000 without deposit but with a named surety who was required to make a deposit of $1,000, as well as further conditions including a curfew and regular reporting. The order also provided that the Superior Court and the application judge would remain seized of the matter to deal with any requested changes or alleged breaches and would monitor any attempt to re-incarcerate Ogiamien on the basis of any alleged breach of the terms. The court did not accept the general proposition advanced by the AG that a judge has never had authority to impose conditions when granting habeas corpus. It would be inconsistent with the public interest if the judge on habeas corpus lacked the authority to impose appropriate conditions to protect public safety and respect for the law.

However, the application judge erred by assuming the power in clause 13, which specified that the application judge would retain jurisdiction to review any subsequent arrest or detention. On the basis of the law of habeas corpus, the CBSA could not re-arrest or re-incarcerate Ogiamien following his release on the same grounds the application judge had found were wanting in law. It was therefore unnecessary for the application judge to retain jurisdiction. Further, a judge ordering judicial interim release does not ordinarily retain jurisdiction to supervise the enforcement of the conditions imposed. Third, unless and until the Federal Court determines that Ogiamien is no longer subject to a valid deportation order, he remains subject to the IRPA scheme. Given the IRPA governed, the application judge should not have assumed authority under clause 13 to require the CBSA to bring the matter back before her in the event Ogiamien were rearrested pursuant to the IRPA.

It is common ground that the order for judicial interim release effectively ended when Ogiamien was re-arrested and it is therefore unnecessary to deal with clause 13 in the first appeal. However, as that clause was varied and attached to the subsequent order for judicial interim release, the second appeal was allowed, with respect to those parts of the order by which the application judge retained jurisdiction.

Any conditions a judge imposes should take into account that the ID’s jurisdiction will be invoked if the person is re-arrested, and the judge should minimize the potential for jurisdictional confusion and conflict. The judge should also be mindful of the conditions typically imposed by the ID. Further, the order imposing conditions should provide that the conditions may be varied either by order of the court or of the ID. If the court is asked to vary the conditions, the court should ordinarily decline to exercise its jurisdiction and defer to the ID.

Accordingly, in addition to striking clause 13, the court struck clause 12 and replaced it with a term providing the conditions may be varied or vacated if circumstances change by order of either the Superior Court or ID. Clauses 3, 5, and 11 were amended to provide that those conditions may also be varied or vacated if circumstances change by either the court or the ID.

(4) The application judge should not have assumed jurisdiction over the supervision of the conditions of Ogiamien’s release in clause 13. She therefore should not have considered Ogiamien’s second application for release. However, the AG consented to Ogiamien bringing that fresh application. The AG does not seek to re-incarcerate Ogiamien at this point. As clause 13 is to be struck from the conditions of release, it was neither appropriate nor necessary to consider this ground of appeal further.

Short Civil Endorsements:

2122994 Ontario Inc. v. Lettieri, 2017 ONCA 830

[MacFarland, Hourigan and Pardu JJ.A]

Counsel:

Morris Cooper, for the appellants

Adrienne Boudreau and Krishana Persaud, for the respondents

Keywords: Contracts, Franchise Law, Duty of Fair Dealing, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 3, 6(6)(a), Civil Procedure, Evidence, Cross-Examination

S.S. v. Kantor, 2017 ONCA 828

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

Counsel:

Gillian T. Hnatiw, for the appellant

Joan C. Manafa, for the respondent

Kendra A. Naidoo and Michele M. Warner, for the intervener, Ontario’s Specialty Mental Health Hospitals

Keywords: Health Law, Consent and Capacity Board, Community Treatment Order, Mental Health Act, R.S.O. 1990, c. M.7

Smith v. Allstate Insurance Company, 2017 ONCA 843

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

Jordan B.R. Palmer, for the appellant

Meredith A. Harper, for the respondent

Keywords: Insurance Law, Denial of Benefits, Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551

White v. White, 2017 ONCA 844

[MacFarland, Hourigan and Benotto JJ.A.]

Counsel:

Matthew Tubie, for the appellants

Rick Bickhram, for the respondents

Keywords: Torts, Defamation, Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759

Criminal and Review Board Decisions:

R. v. C.R.A., 2017 ONCA 826

[Feldman J.A.]

Counsel:

Ms. Gerri Wiebe, for the appellant

Ms. Rebecca Schwartz, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Criminal Code, s. 679(3), Sentencing, R. v. Oland, 2017 SCC 17

R. v. Balfour, 2017 ONCA 832

[Laskin, Feldman and Blair JJ.A.]

Counsel:

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Keywords: Criminal Law, Fraud, Evidence, Hearsay

R. v. McConville, 2017 ONCA 829

[Gillese, Huscroft and Trotter JJ.A.]

Counsel:

Richard Litkowski, for the appellant

Michelle Campbell, for the respondent

Keywords: Criminal Law, Robbery, Evidence, Eyewitness Identification, Sentencing, Dangerous Offenders, Criminal Code, s. 753(4.1)

R v Romano, 2017 ONCA 837

[Cronk, Juriansz and Paciocco JJ.A.]

Counsel:

Roger Shallow, for the appellant

Frank Addario and James Foy, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Death, Jury Charge, Causation, R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273, R. v. Wong (2006), 211 O.A.C. 201 (C.A.)

R v Orwin, 2017 ONCA 841

[Watt, Epstein and Brown JJ.A.]

Counsel:

Robert F. Goddard, for the appellant

Jill Witkin, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Defences, Honest but Mistaken Belief, Evidence

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.