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ONTARIO COURT OF APPEAL SUMMARIES (JULY 9 – 13)

The following are our summaries of this week’s civil decisions of the Ontario Court of Appeal.

In Yip v HSBC Holdings plc, the Court of Appeal upheld the stay of a US$7 billion class action claim for secondary securities market misrepresentation on jurisdictional grounds. The securities at issue were bought by Canadians on foreign exchanges, as they did not trade on a Canadian stock exchange. The Court determined that Ontario securities law did not extend as far as to permit a claim for secondary market misrepresentation under the Securities Act to proceed in Ontario in such circumstances, and therefore upheld the stay of proceedings imposed by the motion judge.

In Malkov v Stovichek-Malkov, the Court of Appeal confirmed that the test for a plaintiff to re-open their case in the context of family law proceedings is as set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762.

Other topics covered this week included crown wardship, constructive dismissal, partial summary judgment, unjust enrichment as a result of an overpayment by an insurer, a construction lien action, and a claim for negligent investigation and related torts against the police and Fire Marshall in a case of arson by negligence (the claims were dismissed).

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

I hope everyone is enjoying the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

Yip v HSBC Holdings plc, 2018 ONCA 626

Keywords: Torts, Negligent Misrepresentation, Securities, Secondary Market Misrepresentations, Securities Act, RSO 1990, c S 5, s. 138.1, Definition of “Responsible Issuer”, Abdula v Canadian Solar Inc, 2012 ONCA 211, Statutory Interpretation, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Civil Procedure, Class Actions, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd v Van Breda, 2012 SCC 17, Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393, Kaynes v. BP, PLC, 2014 ONCA 580, Kaynes v BP PLC, 2016 ONCA 601, Costs, Public Interest Litigation, Enterpreneurial Litigation, Disbursements, Experts, Proportionality, Fantl v Transamerica Life Canada, 2009 ONCA 377, 3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.), Class Proceedings Act, 1992, SO 1992, c 6, s. 31(1), Rules of Civil Procedure, Rule 1.04(1.1)

Malkov v Stovichek-Malkov, 2018 ONCA 620

Keywords: Family Law, Civil Procedure, Trials, Evidence, Reopening Case, Abuse of Process, Rules of Civil Procedure, Rules 52.10, 53.01(3), Family Law Rules, O. Reg. 114/99,  Scott v. Cook, [1970] 2 O.R. 769 (H.C.), Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762

Peel Children’s Aid Society v MH, 2018 ONCA 619

Keywords: Family Law, Publication Ban, Crown Wardship, Child and Family Services Act, RSO 1990 c, C-11, Abuse of Process, Ineffective Assistance of Counsel, Fresh Evidence, Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Filice v Complex Services Inc, 2018 ONCA 625

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Notice Period, Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, Chapman v GPM Investment Management, 2017 ONCA 227, Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, Damages, Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Punitive Damages, Whiten v Pilot Insurance Co, 2002 SCC 18, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Pate Estate v Galway-Cavendish (Township), 2013 ONCA 669, Rutman v Rabinowitz, 2018 ONCA 80

Payne v Mak, 2018 ONCA 622

Keywords: Torts, Negligent Investigation, Malicious Prosecution, Abuse of Process, Vicarious Liability, Breach of Charter Rights, Charter Damages, Criminal Law, Arson by Negligence, Reasonable and Probable Grounds, Costs, Criminal Code, RSC, 1985, c C-46, s 436, Canadian Charter of Rights and Freedoms, ss 7, 24

Toor v Toor, 2018 ONCA 621

Keywords: Family Law, Property, Loans, Gifts, Resulting Trusts, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Gore Mutual Insurance Company v Carlin, 2018 ONCA 628

Keywords: Insurance Law, Fire Policy, Property Damage, Business Interruption Losses, Restitution, Overpayment, Unjust Enrichment, Brisette Estate v Westbury Life Insurance Co., [1992] 3 SCR 87, Kerr v Baranow, 2011 SCC 10, [2011] SCR 269, Garland v Consumers’ Gas Co., 2004 SCC 25, Insurance Act, RSO 1990, c. I.8, s. 128

Larizza v Royal Bank of Canada, 2018 ONCA 632

Keywords: Torts, Negligence, Intrusion Upon Seclusion, Negligent Misrepresentation, Intentional or Negligent Infliction of Mental Distress, Breach of Contract, Breach of Fiduciary Duty, Summary Judgment, Jones v Tsige, 2012 ONCA 32, Bhasin v Hrynew, 2014 SCC 71

The Birkshire Group Inc v Wilkes, 2018 ONCA 631

Keywords: Construction Law, Civil Procedure, Evidence, Reopening Case, Credibility, Procedural and Natural Justice, Failure to Give Reasons, R v JMH, 2011 SCC 45, Dovbush v Mouzitchka, 2016 ONCA 381, Construction Lien Act, RSO 1990 c C30

Hagholm v Coreio Inc, 2018 ONCA 633

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Bonuses, Defences, Mitigation, Singer v Nordstrong Equipment Ltd, 2018 ONCA 364

Popack v Lipszyc, 2018 ONCA 635

Keywords: Civil Procedure, International Arbitration, Arbitral Awards, Enforcement, UNCITRAL Model Law on International Commercial Arbitration, International Commercial Arbitration Act, 2017, SO 2007, c 2, Sched 5, Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19

CNH Canada Ltd v Chesterman Farm Equipment Ltd, 2018 ONCA

Keywords: Contracts, Distribution Agreements, Indefinite Term, Interpretation, Termination, Reasonable Notice, Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, Statutory Interpretation, Standard of Review, Dealership Agreements Regulation, O. Reg. 123/06, Farms Implements Act, R.S.O. 1990, c. F.4, Costs, Proportionality Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Barbour v Bailey, 2016 ONCA 334

For short civil decisions click here

For criminal, provincial and Ontario Review Board decisions click here

Civil Decisions

Yip v HSBC Holdings plc, 2018 ONCA 626

[Lauwers, Benotto and Nordheimer JJ.A]

Counsel:

Paul J. Bates, John Archibald, and Earl A. Cherniak, Q.C., for the appellant

Paul Steep, Brandon Kain, and Bryn Gray, for the respondents

Keywords: Torts, Negligent Misrepresentation, Securities, Secondary Market Misrepresentations, Securities Act, RSO 1990, c S 5, s. 138.1, Definition of “Responsible Issuer”, Abdula v Canadian Solar Inc, 2012 ONCA 211, Statutory Interpretation, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Civil Procedure, Class Actions, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd v Van Breda, 2012 SCC 17, Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393, Kaynes v. BP, PLC, 2014 ONCA 580, Kaynes v BP PLC, 2016 ONCA 601, Costs, Public Interest Litigation, Enterpreneurial Litigation, Disbursements, Experts, Proportionality, Fantl v Transamerica Life Canada, 2009 ONCA 377, 3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.), Class Proceedings Act, 1992, SO 1992, c 6, s. 31(1), Rules of Civil Procedure, Rule 1.04(1.1)

Facts:

This appeal concerns a proposed securities class action for negligent misrepresentation against HSBC Holdings (“HSBC Holdings”).  HSBC Holdings is the parent holding company of an international banking conglomerate with its head office in London, UK. The securities have never traded or been listed on any Canadian stock exchange. They are traded on the London and Hong Kong Stock Exchanges with secondary listings on the Bermuda Stock Exchange and the Paris Euronext Stock Exchange. HSBC’s American Depository Receipts (ADRs) traded on the New York Stock Exchange. HSBC Holdings has about 220,000 shareholders in 129 countries, including Canada. The appellant asserts that he and other purchasers of HSBC Holdings’ shares or ADRs were misled by HSBC Holdings’ continuous disclosure documents and public statements in two primary respects: (i) that it had complied with anti-money laundering and anti-terrorist financing laws; and (ii) that it had not participated in an illegal scheme to manipulate certain international benchmark rates. The motion judge proceeded on the assumption that these misrepresentations occurred.

The appellant asserts that these misrepresentations caused investors in HSBC Holdings to suffer about US$7 billion in losses because they purchased shares and ADRs at artificially inflated prices. This is the basis of his statutory and common law tort claims for misrepresentation.

The motion judge heard two motions. HSBC Holdings moved to dismiss or stay the appellant’s action because the Ontario court lacks jurisdiction simpliciter and because Ontario is forum non conveniens. The appellant brought a cross-motion for a declaration that HSBC Holdings is a responsible issuer under s.138.8 of the Ontario Securities Act. The motion judge dismissed the appellant’s action and stayed the common law misrepresentation claim. He dismissed the appellant’s cross-motion.

Issues:

(1) Did the motion judge err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act?

(2) Did the motion judge err in his application of the common law real and substantial connection test?

(3) Did the motion judge err in his application of the doctrine of forum non conveniens?

(4) Should leave to appeal the costs award be granted and should the costs award be varied?

Holding: Appeal dismissed.

Reasoning:

(1) No, the motion judge did not err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act. The appellant’s statutory tort claim is based on s. 138.3, which gives investors a statutory cause of action against a responsible issuer for a misrepresentation in a “document” released by it or contained in a public oral statement. Section 138.3 defines a responsible issuer to mean “(b) any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded” (emphasis added). The appellant relied on Abdula v Canadian Solar Inc, 2012 ONCA 211, and urged the court to find that: “An issuer that knows or ought to know that its investor information is being made available to Canadian investors has a securities regulatory nexus” with Ontario sufficient to establish a real and substantial connection. The appellant argued that this would be a purposive interpretation consistent with the goal of the Securities Act to protect investors from fraudulent practices.

In the alternative, the appellant submitted that the court should identify a new presumptive connecting factor for cases of secondary market misrepresentation. The appellant argued that HSBC Holdings “ought to know both that” the putative class members “may well be injured and it [was] reasonably foreseeable that the misrepresentation” would be acted upon: Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393. The appellant therefore argued that the motion judge erred in declaring that HSBC Holdings is not a responsible issuer.

The Court rejected this argument because the proposed formulation of the test might make Ontario a universal jurisdiction for secondary market misrepresentations made anywhere in the world. The Court reiterated that the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Legislature: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, at para 26; and Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21.

In analyzing the Legislature’s intention, the Court found that by introducing civil liability for secondary market misrepresentations, the Legislature did not intend that Ontario would become the default jurisdiction for issuers around the world whose securities were purchased by residents of Ontario. The Court additionally found that the Legislature’s adoption of the language in which the common law jurisdiction simpliciter test is framed was not accidental. Rather, it was well entrenched, and it specifically aimed at preventing jurisdictional overreach. The concern about jurisdictional overreach affects the assessment at three levels of the common law test for determining whether a Canadian court will assume jurisdiction: (i) requiring the presence of a presumptive connecting factor; (ii) determining whether the factor has been rebutted; and (iii) in applying the forum non conveniens doctrine.

Further, in assessing the judicial history of the real and substantial connection test, the Court cited the Supreme Court’s decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. Justice LeBel expressed similar concerns in his formulation of the factors a court is to consider in determining whether a real and substantial connection exists in a tort case. He repeatedly expressed one of the primary aims of the test: to reduce the “risk of jurisdictional overreach” (at para. 22); to “prevent improper assumptions of jurisdiction” (at para. 26); to prevent “courts from overreaching by entering into matters in which they had little or no interest” (at para. 38); and to reduce the risk of “sweeping into that jurisdiction [,] claims that have only a limited relationship with the forum” (at para. 89). In his view, a judicial approach that leads to “universal jurisdiction” should be avoided.

Accordingly, the Court rejected the appellant’s argument that, on purposive grounds, the interpretation of the expression “real and substantial connection” in the Securities Act must be different than its common law meaning in the jurisdiction simpliciter cases. Rather, a purposive interpretation led the Court to reject the appellant’s proposed test and alternative argument that the court should recognize a new presumptive connecting factor for this type of statutory claim. The Court rejected that an issuer that knows or ought to know that its investor information is being made available to Canadian investors creates a securities regulatory nexus sufficient to establish a real and substantial connection to Ontario. In determining whether an issuer is a responsible issuer, the courts are generally to apply the common law test for a real and substantial connection.

(2) No, the motion judge did not err in his application of the common law test for a real and substantial connection. The Ontario Superior Court of Justice has jurisdiction over a foreign defendant in a tort action if the plaintiff establishes that a real and substantial connection exists between the subject matter of the litigation and Ontario. In Van Breda, the Supreme Court formulated four rebuttable presumptive connective factors, at para 90:

[I]n a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

The appellant asserted that HSBC Holdings was caught by two of the presumptive connecting factors: it committed a tort in Ontario; and it carries on business in Ontario. The appellant contended that the motion judge erred by requiring HSBC Holdings to have a physical presence in Ontario. The Court of Appeal disagreed with this argument. The motion judge’s finding that HSBC Holdings’ business is that of managing a global enterprise of a group of commonly bannered banks to the extent of setting global standards for a global enterprise was correct and entitled to deference. The Court found that HSBC Holdings could not be said to have carried on business in Ontario simply because the appellant could access a non-reporting issuer’s disclosure information using his home computer in Ontario. This would amount to an “extremely weak connection” to securities regulation in Ontario. It would also give rise to the universal jurisdiction that LeBel J. explicitly rejected in Van Breda.

The Court distinguished Abdula, where the issuer was found to be a responsible issuer because there was a real and substantial connection to Ontario, at para. 88. The issuer in Abdula had been incorporated in Ontario; its executive offices as well as some business and governance operations were in Ontario; and it had held its annual meeting in Ontario. Here, HSBC Holdings’ management business was distinct from the businesses it manages. Very few activities of HSBC Holdings’ business had ever occurred in Ontario; it had no fixed place of business in Canada; and there was no agent of HSBC Holdings doing its management business in Ontario. Therefore, HSBC Holdings is not a responsible issuer under the Securities Act because it had no real and substantial connection to Ontario.

(3) No, the motion judge accurately expressed and applied the principles in the forum non conveniens analysis and this determination attracts deference: see Van Breda, at para. 112.

A court may decline jurisdiction on the basis that there is another more appropriate forum under the forum non conveniens doctrine, even if it finds it has jurisdiction simpliciter. Given the Court’s conclusion that Ontario courts do not have jurisdiction simpliciter, it was unnecessary to consider the forum non conveniens doctrine. However, since the appellant raised arguments about the interaction between this court’s decisions in Kaynes (2014) and Kaynes v BP PLC, 2016 ONCA 601, 133 O.R. (3d) 29, the Court found that a response would be helpful.

The Court went on to extensively discuss the Kaynes decisions, in which the court had first stayed a securities class action in 2014 on jurisdictional grounds, and then lifted the stay in 2016 to permit the claim to proceed. The appellant’s argument that there was inconsistency between the court’s decisions in Kaynes (2014) and Kaynes (2016) was rejected. In Kaynes (2016), the court lifted the stay it imposed in Kaynes (2014) in order to allow the appellant to have his claim adjudicated on its merits. The panel did not suggest that the framework it set out in Kaynes (2014) was wrong. The law did not change in Kaynes (2016); the facts changed. The court in Kaynes (2016) stated, at para. 16: these developments, taken as a whole, are sufficient to justify lifting the stay. Comity was central in Kaynes (2014). The importance of comity did not change in Kaynes (2016). In Kaynes (2014), the court showed respect for the U.S. court, which was already adjudicating similar claims. When the U.S. District Court judge dismissed the claim on a “purely procedural barrier”, there was no decision on the merits that the court could recognize: Kaynes (2016), at para. 16. In addition, given that Mr. Kaynes had commenced his claim in Ontario in time, it was unfair that this be a basis for preventing the claim from being heard on its merits. Thus, in Kaynes (2016), the court did not elevate the juridical advantage of asserting a claim as a class action to the status of an inviolable right. Rather, it applied the Kaynes (2014) framework to a new set of facts.

The appellant argued that the motion judge failed to give due weight to the loss of juridical advantage he would suffer if Ontario declined jurisdiction, and he asserted: There is no authority for the proposition relied on by the motion judge that juridical advantage should be viewed as “a weak and problematic factor”. This is incorrect. The Supreme Court noted that the juridical advantage factor is problematic in the forum non conveniens analysis, both as a matter of comity and as a practical matter: Breeden v Black, 2012 SCC 19, [2012] 1 SCR 666, at para 27; Van Breda, at para 112.

As a matter of comity, secondary market trading is international and involves numerous jurisdictions. Comity is particularly important to maintain an orderly and predictable regime for dispute resolution. As stated by LeBel J. in Van Breda: “Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships” (at para. 74). In this case, the motion judge properly expressed and applied the forum non conveniens principles. HSBC Holdings could not reasonably have expected that it would be subject to the securities regulation of the law of Ontario. Therefore, the motion judge was right to conclude that Ontario was forum non conveniens.

(4) Yes and yes. The Court granted leave to appeal the costs award, and varied it by reducing it from $1,000,455.22 to $800,000. In reducing the award, the court did not accept the appellant’s submission that this litigation should be considered public interest litigation in the costs context (Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427 (C.A.)). There was no such specific or special significance of this case beyond the putative class members.  This was entrepreneurial litigation. The Court also found that this litigation did not raise a novel issue: the central issue was jurisdictional. The Court did disagree with the motion judge where he drew a distinction between “altruistic” and “entrepreneurial” litigation. Class actions are generally entrepreneurial litigation: Fantl v Transamerica Life Canada, 2009 ONCA 377 at para 66. However, the Court did not disagree with the motion judge’s conclusion that the fees sought by the respondent were fair and reasonable in the circumstances and the expert evidence and fees were necessary for the motion.

Expert fees are not to be arbitrarily reduced to reflect partial indemnity costs (3664902 Canada Inc. v. Hudson’s Bay Co. (2003), 169 O.A.C. 283 (C.A.)). Proportionality is a matter of general principle in applying the Rules of Civil Procedure: see r. 1.04(1.1). The expert fees allowed must still be reasonable in terms of hours and rates charged in proportion to the matter. The motion judge referred to, but did not apply, this test. There was no information provided for three of the six experts in terms of the hours spent or the rates charged. That significantly constrained a review of the fees charged. While the court could have remitted the matter back to the motion judge, it decided to reduce the costs in respect of the expert fee disbursements incurred.

Malkov v Stovichek-Malkov, 2018 ONCA 620

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Robert G. Schipper and John Freeman, for the appellant

Leonard Susman, for the respondent MM

Keywords: Family Law, Civil Procedure, Trials, Evidence, Reopening Case, Abuse of Process, Rules of Civil Procedure, Rules 52.10, 53.01(3), Family Law Rules, O. Reg. 114/99,  Scott v. Cook, [1970] 2 O.R. 769 (H.C.), Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762

Facts:

The appellant appeals from the order of the trial judge (i) declaring that MM is the sole beneficial owner of the Property in question; and (ii) requiring the appellant to transfer her right, title and interest in the property to MM. At the start of the trial, the trial judge proposed and counsel agreed to hear MM’s case, then the appellants’, followed by closing submissions. While MM had initially indicated that he would be calling Ms. D as a witness, his counsel later advised that he would not.  The appellant then put in her case, and did not seek to call Ms. D. The continuation of the trial was put over until a few months later. At that time, the appellant’s counsel advised the court that he intended to call Ms. D as a witness. Noting that the appellant did not have a right to call reply evidence because she had not led her evidence first, the trial judge treated this as a request to reopen her case. The trial judge found that since the appellant did not frame her request as one based on accident or mistake, “to reopen her case to call a witness who […] has no discovered evidence to provide would […] be an abuse of process.”

Issues:

Did the trial judge fail to conduct the proceedings in a fair manner due to her refusal to allow the appellant to call Ms. D as a witness?

Holding: Appeal dismissed.

Reasoning:

No, the trial judge did not fail to conduct the proceedings in a fair manner due to her refusal to allow the appellant to call Ms. D as a witness. The trial judge relied on the decision in Scott v. Cook, [1970] 2 O.R. 769 (H.C.), which held that on a motion to reopen trial proceedings, the requesting party must show that the evidence sought to be adduced is such that, if it had been presented during the trial, it probably would have changed the result. The appellant contended that the more appropriate test to be applied in the context of family law proceedings is that set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762,  which lists the following factors a court will consider in civil cases in determining whether to allow a plaintiff to re-open their case:

  1. At what stage of the trial is the motion made?
  2. Why was evidence not adduced during the party’s case?
  3. Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
  4. What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
  5. Can any prejudice be remedied in costs?
  6. How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?

7.What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or noncontroversial point? Does it merely “shore up” evidence led in chief?

  1. Is the proposed new evidence presumptively credible?

The Court agreed that this case provides a helpful list of factors for a trial judge to consider when entertaining a party’s request to reopen her case. However, the Court found that when the trial judge’s reasons for her ruling are read as a whole, they disclose that she took into account the factors most relevant to the specific circumstances of the case.

When MM’s counsel advised that he would not call Ms. D, the appellant was offered a mechanism by which she could secure Ms. D’s evidence for her case without summons. However, she did not avail herself of the opportunity. Instead, she waited several months until the resumption of the trial to request reopening her case. Given the appellant’s lack of forensic diligence regarding Ms. D’s evidence, and the absence of any evidentiary basis to suggest the this evidence probably would have an important influence on the result of the case, the Court found no error in the cost/benefit and fairness analysis conducted by the trial judge that led her to exercise her discretion to refuse the appellant leave to call Ms. D.

Peel Children’s Aid Society v MH, 2018 ONCA 619

[Feldman, Hourigan, and Brown, JJA]

Counsel:

Benjamin Vincents, for the appellant, SH

Laura Shaw and Amanda Rozario, for the respondent, Peel Children’s Aid Society

James Cook and Chris Junior, for the respondent, MO

Keywords: Family Law, Publication Ban, Crown Wardship, Child and Family Services Act, RSO 1990 c, C-11, Abuse of Process, Ineffective Assistance of Counsel, Fresh Evidence, Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Facts:

MH and SH were each convicted of manslaughter for the death of their 2-year old child M which was the result of malnutrition. A second child, AM, was found at the time of M’s death to be lacking in Vitamin D and B12. The doctor advising the parents recommended dietary supplementation as necessary. Five weeks later, the Peel Children’s Aid Society (“CAS”) commenced a child protection application after SH admitted that AM had not been given the recommended vitamins. A plan to return AM to the care of her parents was deemed unsuccessful due to the unwillingness of AM’s parents to cooperate with CAS. AM was ultimately found in need of protection pursuant to the Child and Family Services Act, RSO 1990 c, C-11 (the “CFSA”). AZ, born subsequent to the finding, was apprehended at birth and placed in foster care and was later also found in need of protection under the CFSA. Both AM and AZ later became Crown wards without access. MH and SH unsuccessfully appealed the order from the Ontario Court of Justice to the Superior Court of Justice. They appealed again.

Issues:

(1) Did the appellate judge err in upholding the decision that AZ was in need of protection and that both children should be made Crown wards?

(2) Did the CAS obtain Crown wardship by way of abuse of process?

(3) Did the appeal judge err in failing to find that the ineffective assistance of counsel did not allow for a fair trial?

(4) Did the appellate judge fail to properly review fresh evidence?

Holding: Appeal dismissed.

Reasoning:

(1) No. Given the death of M while in her parents’ care, the previous finding that AM was in need of protection, and the appellants’ demonstrated inability to cooperate with CAS, there was ample evidence to support the finding that AZ was in need of protection. The detailed reasons of the trial judge, which were upheld by the appellate judge, assessed, inter alia, the children’s physical, mental, and emotional needs, level of development and the merits of the CAS plan and were sufficient. The trial judge’s conclusion that the parents were unwilling to put the children’s well-being first was correct.

(2) No. The allegations that the CAS hid from the appellate judge the father’s presentation of a sufficient caregiver to CAS is meritless. The CAS repeatedly asked for names of family members who could care for the children and none of the family members presented a plan of care. Providing a name and phone number is not equivalent to providing a plan of care.

(3) No. The appellate judge carefully considered the appropriate case law in Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931, including whether or not any potential prejudice had occurred as a result of trial counsel’s advocacy. While trial counsel had encouraged the parents to not testify, the appellate judge could not find, on a balance of probabilities, that the appellants wished to testify, nor that SH’s testimony would have affected the result.

(4) No. The fresh evidence which the appellants wished to adduce to the appellate court below was found to simply restate or confirm the parents’ views already in evidence. The appellate judge correctly concluded that the fresh evidence could not have affected the result. Filing fresh evidence is not an opportunity to reargue a case de novo.

Filice v Complex Services Inc, 2018 ONCA 625

[Simmons, Roberts and Nordheimer JJ.A.]

Counsel:

Frank Cesario, for the appellant

Margaret A. Hoy, for the respondent

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Notice Period, Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, Chapman v GPM Investment Management, 2017 ONCA 227, Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, Damages, Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Punitive Damages, Whiten v Pilot Insurance Co, 2002 SCC 18, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Pate Estate v Galway-Cavendish (Township), 2013 ONCA 669, Rutman v Rabinowitz, 2018 ONCA 80

Facts:

This is an appeal from a judgment that awarded the respondent damages for constructive dismissal. The appellant operates Casino Niagara and Fallsview Casino (collectively, “the Casino”). The respondent was employed as a Security Shift Supervisor at the Casino since 1999. Security Shift Supervisors are required to maintain a valid gaming registration issued by the Alcohol and Gaming Commission of Ontario (“AGCO”). This requirement is mandated under the Gaming Control Act, S.O. 1992, c. 24 and is a condition of employment. In December 2007, the AGCO Compliance Unit performed an audit of the Casino’s lost and found logs. The officers advised the Director of Security, RP, that the respondent was under investigation for theft in the workplace. RP then placed the respondent on an investigative suspension, pursuant to Casino policies. The respondent was suspended without pay.

The respondent was charged with four counts of theft under $5,000 and one count of breach of trust, and the AGCO suspended the respondent’s gaming registration. The respondent’s criminal charges were withdrawn and/or dismissed shortly thereafter, but his gaming registration remained suspended. The respondent had voluntarily surrendered his gaming registration to the AGCO. As a result, RP advised the respondent that his employment was at an end. The respondent commenced the underlying action against the appellant for wrongful dismissal, false arrest, malicious prosecution, breach of the Canadian Charter of Rights and Freedoms, negligence, and intentional infliction of mental suffering.

The appellant brought a motion for summary judgment seeking dismissal of the respondent’s claims. Henderson J. granted partial summary judgment, dismissing all the claims except for the constructive dismissal claim. At trial, the respondent was awarded damages for constructive dismissal in the amount of $75,723.64, punitive damages of $100,000, and costs of $82,600.

Issues:

(1) Did the trial judge err in his constructive dismissal analysis?

(2) Did the trial judge err by concluding that punitive damages were appropriate in this case?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the trial judge erred in his constructive dismissal analysis. The test for constructive dismissal involves two branches: Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10. The first branch of the test applies where there has been a single act by the employer that may constitute a breach of the contract of employment. The second branch applies where there has been a continuing course of conduct by the employer that may give rise to a finding that the contract of employment has been breached. The first branch of the test is engaged here.

The first branch of the test for constructive dismissal requires a review of the specific terms of the employment contract. It involves two steps that must be considered independently of each other: Potter, at para. 38. The first step is to identify an express or implied contractual term that has been breached on an objective basis. The second step is to then determine if the breach is sufficiently serious to constitute constructive dismissal on a modified objective standard of a reasonable employee in similar circumstances: Chapman v GPM Investment Management, 2017 ONCA 227, at paras 16-17.

The burden of establishing constructive dismissal lies on the employee. However, where an administrative suspension is involved, the burden shifts to the employer to show that the suspension is justified: Potter, at para. 41. A number of factors are to be considered in determining whether a suspension is justified, as discussed in Cabiakman v Industrial Alliance Life Insurance Co, 2004 SCC 55, at para. 65:

[T]he courts may consider the following factors: whether there is a sufficient connection between the act with which the employee is charged and the kind of employment the employee holds; the actual nature of the charges; whether there are reasonable grounds for believing that maintaining the employment relationship, even temporarily, would be prejudicial to the business or to the employer’s reputation; and whether there are immediate and significant adverse effects that cannot practically be counteracted by other measures[…].

The Court of Appeal found that the suspension was clearly justified in this case. The respondent was a Security Supervisor with the appellant. Information came to the appellant’s attention that the respondent was possibly involved in theft from the Casino’s lost and found facilities. In these circumstances, and given the regulated nature of the appellant’s operations, it was entirely reasonable for the appellant to suspend the respondent pending the determination of his misconduct. Whether the appellant was justified in suspending without pay is a separate issue.

Absent express language in the employment contract, the burden was on the appellant to establish that a suspension without pay was justified. If this cannot be justified, then taking that step amounts to a unilateral change in the employment relationship that constitutes a breach of the employment contract. In this case, suspension without pay was a matter of discretion. In making that determination, however, the appellant had to establish that it acted reasonably. In this case, it appeared that the appellant mistakenly treated the suspension without pay as being automatic. While there may be situations where an employer would be fully entitled to suspend an employee without pay, those situations are exceptional and it still falls to the employer to justify that decision as reasonable: Cabiakman, supra, at para. 60. It is difficult to see how the appellant could reasonably have concluded that a suspension without pay was warranted at the early stage of the investigation. Therefore, the appellant made a unilateral change to the employment relationship and breached the implied term of the employment contract that the power to suspend without pay would not be exercised unreasonably.

That conclusion then leads to the second step of the first branch of the Potter analysis, which requires the court to determine whether the suspension “could reasonably be perceived as having substantially changed the essential terms of the contract”: Potter, supra, at para. 45. Part of the consideration is whether the suspension “had a minimal impact” on the employee. The Court found that suspending an employee without pay would have a more than a minimal impact. The substantial impact of suspending the respondent without pay therefore rendered it a breach of the employment contract that amounted to a constructive dismissal under the Potter test.

Compensatory damages

Having concluded that the respondent was constructively dismissed, the Court then considered the question of compensatory damages. The Court found that the trial judge failed to undertake a proper damages assessment. Damages for constructive dismissal are the same as they are for wrongful dismissal. The appropriate notice period has to be determined and damages awarded in lieu of that notice period. 17 months was an inordinately lengthy notice period for someone in the respondent’s position. The 50 year old respondent’s length of service was approximately 8 years and 8 months and he was earning approximately $50,000. It took the appellant seven months to find other employment. Relying on the factors from Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), the Court found reasonable notice to be seven months.

A unique aspect of this case is that approximately a month after the respondent was suspended, his gaming registration was suspended by the AGCO. In order to fulfill his duties as a Security Supervisor, the respondent was required by law to have a gaming registration. Two consequences arose from that fact. First, the appellant argued that the suspension of the respondent’s gaming registration limited any claim for damages arising from his dismissal to the one month before his gaming registration was suspended. The general rule for the assessment of damages is that they are assessed as of the date of the breach. The Court found that fairness did not require an exception to the general rule in this case. Secondly, the appellant did not have an obligation to offer the respondent another job within its organization that did not require a gaming registration. Holding that the appellant had a duty to offer alternative employment would be contrary to the fundamental principles of individual agency, freedom of contract, and would be tantamount to binding the parties to a specific performance obligation for employment.

(2) Yes, the trial judge erred in his finding that punitive damages were appropriate in this case. An appellate court has a much broader scope for review on an appeal from an award of punitive damages. The Supreme Court in Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 197 stated: “The appellate review should be based upon the court’s estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?” Punitive damages are only to be awarded where compensatory damages are inadequate to accomplish the objectives of retribution, deterrence, and condemnation: Pate Estate v GalwayCavendish (Township), 2013 ONCA 669, at para 211; and Rutman v Rabinowitz, 2018 ONCA 80, at paras 94-97 per curiam. Further, an award of punitive damages is exceptional for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 36.

In this case, the trial judge simply found that the compensatory award in addition to any costs award did not rationally meet the objectives of retribution, deterrence and denunciation. However, the trial judge did not engage in any analysis of why the compensatory award that he decided on was inadequate to achieve those objectives. This was an error in principle. The fact remains that, insofar as the appellant was not justified in suspending the respondent without pay, it will pay for that error through compensatory damages. On this point, it must not be forgotten that compensatory damages have a punitive element to them: Whiten, supra; Pate Estate, supra. Therefore, the award of punitive damages was set aside.

In the result, the appeal was allowed and set the trial judgment was set aside, including the damages awards. The Court granted judgment to the respondent solely for compensatory damages for seven months’ lost wages.

Payne v Mak, 2018 ONCA 622

[Strathy C.J.O., Feldman and Brown JJ.A.]

Counsel:

Raymond G Colautti and Anita Landry, for the appellants

Sheila C Handler and Paul Shand, for the respondents, RC, Windsor Police Services Board, RM, Windsor Fire and Rescue Services Department, MS and The Corporation of the City of Windsor

Jeremy Glick and Heather Burnett, for the respondents, CM and MO

Keywords: Torts, Negligent Investigation, Malicious Prosecution, Abuse of Process, Vicarious Liability, Breach of Charter Rights, Charter Damages, Criminal Law, Arson by Negligence, Reasonable and Probable Grounds, Costs, Criminal Code, RSC, 1985, c C-46, s 436, Canadian Charter of Rights and Freedoms, ss 7, 24

Facts:

This is an appeal from the trial judge’s order dismissing the appellants’ action alleging negligent investigation, malicious prosecution, abuse of process and Charter damages arising out of the respondents’ investigation of a fire at a house in Windsor, Ontario.

The appellants purchased a house near the University of Windsor in 1996 (the “house”), which they rented to university students on an individual basis. The City of Windsor (the “City”) classified the house as a “duplex”, although it was clearly not one. After a previous fire at the house in 1999, a Fire Prevention Officer identified several violations of the provisions applying to duplexes in Ontario Regulation 388/97, which was passed under the Fire Protection and Prevention Act, 1999, S.O. 1990, c. 4 (“FPPA”). The officer prepared a report noting the violations and requiring compliance by the owners. However, the appellants did not receive the report and the City did not follow up with the appellants to confirm the status of the house.

After the 1999 fire, the appellants continued to rent bedrooms in the house to students. On January 25, 2006, a resident intentionally started a fire at the house. There were five (5) individuals in the house at the time of the fire: four (4) residents and one (1) guest.

The evidence indicated that the fire separations protecting the main floor bedroom were not up to the standards prescribed by the FPPA. The guest, who was trapped in the main floor bedroom, suffered critical injuries as a result. The evidence also indicated that the stairway was open and unprotected, which allowed the fire to spread rapidly to the second floor, and then to the loft. The occupants of a second floor bedroom and the loft were unable to escape the fire by means of the stairway. Since no other fire escape was accessible, they were forced to jump from the roof to the ground. They both suffered injuries as a result. The two (2) remaining residents escaped without injury.

Following the fire, a criminal investigation was pursued against the appellants regarding possible charges under s. 436 of the Criminal Code for arson by negligence. Each of the respondents assisted with the investigation. Detective RC, an employee of the Windsor Police Services Board, led the police investigation and was assisted by MO and CK of the Office of the Fire Marshal (the “OFM”), and RM of the Windsor Fire and Rescue Services Department. The respondent MS was the Chief Building Official for the City at the time of the fire.

The investigation revealed that the house was being used as a boarding, lodging and rooming house despite its classification in City records as a duplex. The house was also in breach a number of requirements in s. 9.3 of the FPPA applicable to boarding, lodging and rooming houses, including, inter alia, the absence of a fire separation between the first and second floors, allowing the rapid spread of fire and insufficient protection in stairways.

As a result of the breaches of the FPPA, the extensive damage and the severity of the resulting injuries, RC charged the appellants with arson by negligence contrary to s. 436 of the Criminal Code. However, the charge against GP was later withdrawn by the Crown when it became clear that she was not involved in the operation of the house. The charges against HP proceeded to a preliminary inquiry, although he was ultimately acquitted.

The appellants subsequently brought this action alleging negligent investigation, malicious prosecution and abuse of process against the individual respondents and seeking to hold their employers vicariously liable. The appellants also sought s. 24 damages for violations of their s. 7 Charter rights.

At trial, the appellants argued that the City and the OFM pressured RC to lay criminal charges against them for the improper purposes of discouraging landlords from renting houses to students. The appellants also asserted that the police were liable for a breach of their s.7 Charter rights for proceeding with charges without reasonable and probable grounds, even in the absence of malice. With respect to these claims, the trial judge found that RC acted independently in charging the appellants and that there was no evidence that anyone pressured him to lay the charges. Moreover, the trial judge found that the respondents had acted in good faith in the execution of their duties, without malice or negligence. Accordingly, the trial judge found that this was a complete defence to all personal claims against the respondents and dismissed the action against them in its entirety. Since the trial judge found that no malice had been proven, he also dismissed the appellants’ claims of malicious prosecution and abuse of process. The trial judge further dismissed the appellants’ Charter claim, which he noted was fatally flawed because the appellants had brought the claim against individual defendants and not against the state. Notably, the trial judge held that the appellants were “attempting to advance a malicious prosecution claim in the guise of a s. 24 Charter claim, in an effort to get around the clear requirement that malice be proven.” With respect to the appellants’ claim of negligent investigation, the trial judge held that RC had reasonable and probable grounds to believe that the appellants had committed arson by negligence. Accordingly, he dismissed the appellants’ claim for negligent investigation as well. Given that all of the appellants’ claims against the individual respondents were dismissed, it followed that the vicarious liability claims against their employers were also dismissed.

Issue:

(1) Did the trial judge err when he concluded that RC had reasonable and probable grounds to charge the appellants with arson by negligence?

Holding: Appeal dismissed.

Reasoning:

(1) No. While it is well-settled that a police officer’s personal belief that there are reasonable and probable grounds is not sufficient to arrest and charge an individual, the trial judge established that RC’s belief was both subjectively and objectively justifiable. The trial judge gave comprehensive and cogent reasons for his conclusion that RC had reasonable and probable grounds to charge the appellants under s. 436 of the Criminal Code. Furthermore, the appellants did not demonstrate any palpable or overriding error in the trial judge’s findings of fact, which fully supported the existence of reasonable and probable grounds to arrest. Consequently, the court held that the trial judge’s factual findings were entitled to deference.

In making its determination, the court noted that the actus reus is defined in s. 436(1) of the Criminal Code as a “marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions”. Furthermore, the court noted that subsection (2) contains a statutory inference that the failure to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care may be inferred. In light of the foregoing, the court found that given the appellants’ ownership of the house, and in the case of HP, his control of the house, the terms of the FPPA, the evidence of their breach and the statutory inference of a marked departure from the standard of care, RC had reasonable and probable grounds with respect to all of the elements of the offence, including both the actus reus and mens rea. Moreover, the court held that RC had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgements. Nor was he required to exhaust all possible investigations, interview all potential witnesses prior to arrest, obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds.

With respect to costs, the court held that it is well-settled that an appellate court should not interfere with a trial judge’s costs award unless the judge has made an error in principle or the award in plainly wrong. Since there were no such circumstances, the court held that while the costs were substantial, a high degree of deference should be given to the trial judge.

Toor v Toor, 2018 ONCA 621

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

James S.G. Macdonald, for the appellants

Bhupinder Nagra, for the respondent

Keywords: Family Law, Property, Loans, Gifts, Resulting Trusts, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Facts:

KT and BT were married in 2002 and bought a matrimonial home in 2012 before separating in 2015. Following their separation, KT commenced family law proceedings. As well, BT’s Parents commenced a civil suit against their son and daughter-in-law seeking payment of $132,000, which they alleged they had loaned KT and BT. The Parents also sought a declaration that they are the beneficial owners of a joint interest in the Property because BT and KT had used some of the loaned funds to purchase the Property. The Parents’ action was consolidated with the family law proceedings.

BT did not defend against his Parents’ claim. Default judgment was granted against him. KT moved for summary judgment dismissing the parents’ action. The motion judge granted partial summary judgment. He concluded that he could not resolve the Parents’ claim for repayment of the $132,000 as there was a genuine issue requiring a trial, but granted summary judgment dismissing the Parents’ claim for an interest in the Property. The Parents appeal the dismissal of their claim for an interest in the Property.

Issue:

(1) Did the motion judge err in granting partial summary judgment?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the motion judge made two reversible errors that require setting aside the partial summary judgment.

First, the motion judge’s finding that there was “no tie that binds the advances and the purchase of the Property together” was based on a misapprehension of the evidence. The record disclosed a link between some of the Parents’ advances and the purchase of the Property. The court found that a genuine issue requiring a trial therefore exists as to whether use of the funds originating from the Parents gives rise to any legal entitlement by them to an interest in the Property.

Second, on their face, the motion judge’s reasons were internally inconsistent on the issue of the legal characterization of the Parents’ advances. On the one hand, the motion judge stated he could not resolve the issue of whether the $132,000 advanced by the Parents to BT constituted a loan or a repayment of proceeds from the sale of the Indian property. On the other hand, in granting KT partial summary judgment, the motion judge concluded that there was no evidence that any of the $132,000 was a loan or an advance with an expectation of repayment. By granting partial summary judgment, the motion judge created the real possibility of inconsistent results with respect to the legal consequences of the $132,000, ignoring the strong caution issued by the court about granting partial summary judgment where such a risk exists: Butera v Chown, Cairns LLP, 2017 ONCA 783, at para. 26. A genuine issue requiring a trial exists as to the legal characterization of the $132,000.

Gore Mutual Insurance Company v Carlin, 2018 ONCA 628

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Debbie Orth, for the appellant

James L. MacGillivray, for the respondents

Keywords: Insurance Law, Fire Policy, Property Damage, Business Interruption Losses, Restitution, Overpayment, Unjust Enrichment, Brisette Estate v Westbury Life Insurance Co., [1992] 3 SCR 87, Kerr v Baranow, 2011 SCC 10, [2011] SCR 269, Garland v Consumers’ Gas Co., 2004 SCC 25, Insurance Act, RSO 1990, c. I.8, s. 128

Facts:

This appeal raised the issue of whether an insured is permitted to retain the total amount paid by its insurer when it is subsequently determined that the amount paid was in excess of the loss suffered. The motion judge granted summary judgment to the insureds in this case, holding that they were free to keep the total amount paid by the insurer, even though it exceeded their loss by over $100,000.

The respondent Dr. GC carried on the practice of dentistry in a building owned by the respondent Windent Inc., located in Winchester, Ontario.

In 2012, a fire destroyed the building and its contents. At the time of the loss, the appellant had issued an insurance policy for the building and its contents with the named insured being Dr. GC Dentistry Professional Corporation. This policy also included coverage for business interruption. In addition to the policy issued by the appellant, there was coverage with Aviva Insurance Company of Canada (“Aviva”). That policy did not insure the building.

In 2013, the appellant’s representative advised the respondents and their representative, as well as Dr. GC’s wife SC, via email that he had authorized an advance for the loss payable for the building in the amount of $750,000.

SC sent an email to the appellant’s representative in July, 2013, explaining why the respondents found the $750,000 offer to be inadequate. The appellant’s representative replied that day stating, in part, that “the…advance of $750K is just that, a substantial advance toward your loss so you can get restoration under way…this $750K advance in no way ties either of us to follow either side’s estimate.”

The appellant’s representative followed up with an email to the respondents’ representative and SC in September, 2013. That email provided in part as follows:

As previously advised accepting the $750K offer does not tie you to anything or hold you to repairs of any certain nature. Legally under your insured contract, the insured is owe[d] the Actual Cash Value for an item as settlement assuming replacement has not been enacted. Accepting the advance you are well within your right to: rebuild as per pre-loss specifications, rebuild as per new upgraded specifications (upgrade at your own expense). Should you choose to re-build and your total costs are lower than the ACV issued, the additional funds are still yours to utilise as you see fit.

The appellant and the respondents participated in an appraisal on May 14, 2014, as provided for in s. 128 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). The amount found to be payable by the appellant under the appraisal was $713,767.33. To that amount was added an agreed sum for business interruption loss, being $205,444, and $7,465.70 for professional fees. The total amount payable by the appellant was $926,677.03. However, by this time the appellant had already paid out $1,030,187.04. It sued to recover the overpayment of $103,510.01.

The motion judge began his analysis by finding that the appellant is a sophisticated insurance party and that even though the $750,000 payment was referred to as an advance, it was not in fact an advance because it was paid on the basis that it could be used as the respondents saw fit.

The motion judge next found that the payment was deliberate and not the product of mistake, noting as well that both the policy and the Act were silent regarding what happens when an overpayment has been made.

The motion judge rejected appellant’s claim of unjust enrichment on the grounds that the respondents obtained no benefit when they received the $750,000 payment, and that there was a juristic reason for sending the money, as set out in the September, 2013 email, which, according to the motion judge, indicated that the respondents could use the money as they wished.

Issues:

(1) Did the motion judge err in holding that the appellant is not entitled to recover the overpayment?

(2) Did the motion judge err in finding that unjust enrichment was not an available remedy?

Holding: Appeal allowed.

Reasoning:

(1) Yes. A contract of insurance is a contract of indemnity. It is not a vehicle for turning misadventure into profit. The court found that the motion judge’s analysis ignored that fundamental principle, and contained a palpable and overriding error of fact regarding the September 13, 2013 email and extricable legal errors.

The motion judge erred in equating the actual cash value as referred to in the email with the $750,000 advance. This led him to erroneously conclude that the appellant was communicating to the insureds that they could keep the $750,000 regardless of the quantification of the actual cash value that was to be determined as part of the appraisal process. This was a palpable and overriding error of fact.

The first legal error arose from the motion judge’s interpretation of the policy. The motion judge found that there was nothing in the wording of the policy that covers a situation where there has been an overpayment. Therefore, the motion judge concluded that the policy did not obligate the respondents to repay the overpayment.

Contracts of insurance are to be interpreted in a manner that results in neither a windfall to the insurer nor an unanticipated recovery to the insured: Brisette Estate v. Westbury Life Insurance Co., [1992] 3 SCR 87, at pp. 92-93. The motion judge’s decision went beyond an unanticipated recovery to grant a windfall that was wholly unconnected to the recovery of any loss. The policy in question only provided for indemnification for a loss suffered.

The motion judge also erred in law in his analysis of the Act. Similar to his analysis of the policy, the motion judge limited his inquiry to a search for a specific provision in the Act addressing a situation where an overpayment is made, failing to consider the purpose and scheme of the Act.

The Act defines insurance as “the undertaking by one person to indemnify another person against loss or liability for loss…”  It was also stated that where the insurer and insured cannot agree on the quantum of the loss, they may have the issue determined by an appraisal, a mechanism provided for by the Act.

The motion judge’s ruling was in conflict with the most basic elements of the Act by permitting recovery for amounts beyond the loss suffered by the insured. This was inconsistent with the definition of insurance as provided for in the Act and contrary to the purpose of conducting an appraisal.

(2) Yes.  The motion judge erred in law in his unjust enrichment analysis. The test for unjust enrichment is well established in the jurisprudence. To successfully make an unjust enrichment claim, a plaintiff must prove three things: (1) the defendant must have received an enrichment, (2) the plaintiff must have suffered a corresponding deprivation, and (3) there was no juristic reason for the benefit and loss: Kerr v Baranow, 2011 SCC 10, at paras. 31, 36 and 40.

Where money is transferred from a plaintiff to a defendant, there is an obvious enrichment: Garland v Consumers’ Gas Co., 2004 SCC 25, at para. 36. There can be no issue that the insured received a benefit and that the appellant suffered a corresponding deprivation.

In conclusion, the motion judge erred in his interpretation of the September, 2013 email. The email did not communicate that the respondents could do whatever they liked with the $750,000 payment regardless of the quantification of the actual cash value, which was an issue to be determined as part of the appraisal process. Therefore, the email was not found to be a juristic reason for the benefit and corresponding deprivation.

Larizza v Royal Bank of Canada, 2018 ONCA 632

[Pepall, van Rensburg and Paciocco JJ.A.]

Counsel:

Julian Heller and Neil Folley, for the appellant

Gavin Tighe and Scott Gfeller, for the respondent Fasken Martineau DuMoulin LLP

Adam Grant and Karen Bernofsky, for the respondent Minto Group Inc.

Keywords: Torts, Negligence, Intrusion Upon Seclusion, Negligent Misrepresentation, Intentional or Negligent Infliction of Mental Distress, Breach of Contract, Breach of Fiduciary Duty, Summary Judgment, Jones v Tsige, 2012 ONCA 32, Bhasin v Hrynew, 2014 SCC 71

Facts:

The appellant met a man, AR, online, who convinced her to quit her job, sell her home, give the proceeds of the sale to him and to move in with him into a Yorkville penthouse. AR was a fraudster who had lied to the appellant by telling her he was a wealthy businessman and heir to a fortune. The appellant lost all of her money to AR. The appellant sought damages for her financial loss from the penthouse landlord, Minto Group Inc. (“Minto”) and her lawyers, Fasken Martineau DuMoulin LLP (“Faskens”). Minto and Faskens successfully brought motions for summary judgment, and the appellant’s action against them was dismissed.

Issues:

(1) Did the trial judge err in concluding that there was no genuine issue requiring a trial with respect to her claim against:

i) Minto?

ii) Faskens?

Holding: Appeal dismissed.

Reasoning:

(1)(i) No. The appellant claimed damages from Minto for intrusion upon seclusion, breach of contract, negligence, negligent misrepresentation, and intentional or negligent infliction of mental distress. At AR’s request, Minto had conducted and provided to AR an Equifax credit report search on the appellant without her knowledge or consent when AR and the appellant rented their Yorkville penthouse condo together. It was on the strength of that credit report that the appellant and AR were approved as tenants, as AR’s credit did not qualify him.

The motion judge correctly set out the test for intrusion upon seclusion, which comes from Jones v Tsige and states: the defendant’s conduct must be intentional or reckless; the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; and a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish. While Minto’s actions were intentional, the appellant failed to meet the other two elements of the test, since the information in the private credit report was not about the appellant’s “private affairs or concerns” and a reasonable person would not regard Minto’s actions as highly offensive, causing humiliation or mental anguish.

With respect to the breach of contract claim (the only contract with Minto was the penthouse lease), the appellant relied on the duty of good faith from Bhasin v Hrynew. The motion judge correctly held that this duty arises in the context of the performance of a contract, not the formation of one.

With respect to the final three claims, the Court of Appeal confirmed that the appellant’s claim in negligence was too remote, and that there was no conduct on the part of Minto that could be characterized as “extreme, flagrant and outrageous”.

(ii)  No. The appellant claimed damages from Faskens for negligence, negligent misrepresentation, breach of contract, and breach of fiduciary duty arising from her dealing with a lawyer, EH.

A lawyer at the defendant law firm, Wildeboer & Dellelce LLP, who purportedly acted for AR (and who possibly acted for the appellant), referred the appellant to EH, a partner at Faskens who specializes in estate planning and personal tax. The appellant met EH only one time. The appellant states that she retained EH to advise her on a prenuptial agreement, estate planning, and a trust fund. Specifically, she sought advice about: a prenuptial agreement that AR’s lawyers in Switzerland were allegedly preparing; estate planning to draft a new will for the appellant given her pending marriage to AR; and the establishment of a trust. AR was purportedly purchasing a $10 million insurance policy naming as the beneficiary a trust for the benefit of the appellant and her daughters.

EH stated that she advised the appellant that she did not practice family law and would have to refer the appellant to a family law lawyer when the prenuptial agreement was ready for review. The appellant contested this evidence and claimed that EH was her family lawyer.

There was no written retainer.

After the initial meeting, the appellant and EH exchanged various communications and EH sent draft documents but never received responses to her inquiries. The prenuptial agreement was never available for review from Switzerland (or for referral to a family lawyer). EH requested further information, including the date of the appellant’s pending marriage to AR, but none was ever provided.

The appellant did not answer EH’s emails or comment on drafts provided to her by EH. The appellant and AR married without advising EH. As found by the motion judge, none of the tasks were completed because EH did not receive instructions or information requested that would allow her to complete the tasks.

The appellant alleges that as part of the retainer, EH and Faskens had a duty to protect the appellant from AR by investigating his background. The appellant argued that had EH exercised reasonable due diligence, the unavailability of AR’s funds would have been revealed. The appellant’s claims in negligence, negligent misrepresentation, and breach of contract against EH and Faskens depended on whether there was an implied requirement for EH to conduct a background check on AR. The Court agreed with the motion judge that this defied common sense.

With respect to the remaining claims against EH and Faskens, the appellant claimed that EH failed to disclose a conflict of interest arising from the referral from Wildeboer, which represented AR. The motion judge found that Faskens had never been retained by AR, and there was therefore no conflict to disclose.The Court of Appeal agreed that the record supported such a finding.

The Birkshire Group Inc v Wilkes, 2018 ONCA 631

[Epstein, van Rensburg, and Fairburn, JJA]

Counsel:

Peter-Paul E. Du Vernet, for the appellants

Kevin Sherkin and Jeremy Sacks, for the respondents

Keywords: Construction Law, Civil Procedure, Evidence, Reopening Case, Credibility, Procedural and Natural Justice, Failure to Give Reasons, R v JMH, 2011 SCC 45, Dovbush v Mouzitchka, 2016 ONCA 381, Construction Lien Act, RSO 1990 c C30

Facts:

The appellants hired the respondents to complete renovations on their home. The relationship deteriorated and the respondents registered a construction lien on the appellants’ house and sued for the balance of what they believed they were owed. The appellants counterclaimed. After the evidence was concluded and on the day of closing arguments, the appellants brought a motion to reopen the case to allow for two additional witnesses to give evidence. One of the new witness’ evidence called into question the credibility of the respondent’s evidence given at trial. That motion was successful, and the evidence of the additional witnesses was admitted. Notwithstanding that new evidence, the respondents were granted judgment in the amount of $146,898.24.

Issues:

(1) Did the trial judge err in failing to refer to the evidence of the two new witnesses called by the appellants in his reasons for judgment?

(2) Was there sufficient evidence to conclude that the construction lien was perfected in time and in accordance with the Construction Lien Act?

Holding: Appeal allowed.

Reasoning:

(1) Yes. One of the new witnesses, a former employee of the respondents, swore an affidavit and testified upon the reopening of the case that he had built a bathroom vanity for the appellants based on the verbal instruction of a superior and that later, after the litigation had commenced, that same superior had asked him to make a drawing of the vanity from a photograph. That drawing, which was attached to the employee’s affidavit, had been entered as an exhibit during trial where the superior testified that the drawing had been prepared and approved by the appellants prior to installation. In reopening the case, the trial judge commented that the evidence of the employee raised credibility issues that related to the evidence previously adduced. In his decision, however, the trial judge accepted the evidence of the superior as entirely credible and did not refer to the evidence of the employee at all. While there is no requirement that a trial judge refer to every item of evidence (R v JMH, 2011 SCC 45), the failure to refer to the evidence of the employee is problematic because the evidence could have had a material effect on the credibility of the respondents. The failure may have even have had a material effect on the administration of justice. A trial judge owes the unsuccessful party an explanation for rejecting the evidence of a key witness (Dovbush v Mouzitchka, 2016 ONCA 381).

(2) No. For the lien to be valid, contract work exceeding $1,000 was to have been performed after a certain date. The trial judge found, in brief oral reasons, that the conditions had been met. In order to do so, he would have had to have accepted the testimony of the superior and rejected that of the appellants with respect to the nature and timing of the work. However, failing to address the evidence relevant to the parties’ credibility precludes effective review.

In the result, the judgment was set aside and a new trial was ordered. The construction lien remained registered against the subject property and its validity will be determined at the new trial.

Hagholm v Coreio Inc, 2018 ONCA 633

[Simmons, Huscroft and Miller JJ.A.]

Counsel:

Andy Pushalik and Rachel Kattapuram, for the appellant

Dennis Crawford and Madchen Funk, for the respondent

Keywords: Employment Law, Constructive Dismissal, Payment in Lieu of Notice, Bonuses, Defences, Mitigation, Singer v Nordstrong Equipment Ltd, 2018 ONCA 364

Facts:

In 1995 Ms. H began working full-time for a predecessor of the appellant on the understanding that she could work from home three days per week. On January 16, 2017, shortly after acquiring the business, the appellant informed Ms. H that commencing March 1, 2017, she could no longer work from home. Ms. H took the position that she had been constructively dismissed.

On a motion for summary judgment, the motion judge determined this was a constructive dismissal for two reasons: (1) the appellant breached an essential term of the employment contract; (2) the appellant arbitrarily set Ms. H’s 2016 fourth-quarter bonus in a manner contrary to her employment contract (she received $6,739 rather than around $18,000). The motion judge further concluded that Ms. H was not obliged to “return to a former employer from a mitigation standpoint.” This was not an option as the appellant had breached a major term of the contract permitting her to work from home. Ms. H was awarded: i) 20.5 months of salary, less 10% of 10.5 months’ salary for the contingency that she may find employment before the expiry of the 20.5-month period; ii) $11,261 as compensation for the underpayment of her fourth quarter 2016 bonus; and iii) compensation for lost benefits for 20.5 months.

Issues:

(1) Did the motion judge err in failing to find that the Ms. H’s duty to mitigate did not require her to return to work for the appellant?

(2) Did the motion judge err by concluding that the appellant arbitrarily set Ms. H’s fourth-quarter bonus payment for 2016?

Holding: Appeal dismissed. Cross-appeal allowed.

Reasoning:

(1) No, the motion judge did not err in failing to find that Ms. H’s duty to mitigate did not require her to return to work for the appellant. The appellant argued that the motion judge conflated the test for constructive dismissal with the test for when an employee will be required to accept an offer of continued employment in order to mitigate damages for constructive dismissal. In addition, the appellant alleged Ms. H’s claim was tainted by her subsequent application for multiple positions in the GTA requiring an equivalent or longer commute. Finally, the appellant argued the motion judge made palpable and overriding errors concerning the facts of Ms. H’s commute. The Court rejected these arguments. It would not be objectively reasonable to require a sixty-year old employee who, more than 20 years earlier had stipulated she would not accept a position if it required her to commute every day, to mitigate her damages for the appellant’s breach of contract by doing so. Further, the Court was not satisfied the appellant had any intention of permitting Ms. H to continue to work from home 60% of the time during the notice period. Finally, the motion judge was correct in not accepting that Ms. H’s applications to other employers in the GTA demonstrated that she would have accepted those jobs without a work-from-home provision.

(2) No, the motion judge did not err by concluding that the appellant arbitrarily set Ms. H’s fourth-quarter bonus payment for 2016. The motion judge drew a negative inference from the appellant’s inability to provide an “intelligible” description of how the bonus was calculated. On the evidence before him, he was entitled to do so. He also noted that although the appellant lost a significant client in 2016, this would not affect the appellant’s bottom line until after 2016. He correctly concluded that Ms. H’s fourth quarter bonus for 2016 was “not calculated as it should have been, and had previously been, but was arbitrarily set” contrary to terms of her employment contract.

In the result, the appeal was dismissed but Ms. H’s cross-appeal was allowed. Ms. H had always received in the range of 90% to slightly more than 100% of her annual bonus entitlement. At the time of dismissal her annual bonus entitlement was $72,000 per year, payable quarterly, with the opportunity to earn more bonuses. The bonuses were patently an integral part of Ms. H’s compensation package. Averaging Ms. H’s bonuses over the five years immediately prior to her termination led the Court to conclude that she should receive 100% of her bonus entitlement during the notice period: Singer v Nordstrong Equipment Ltd, 2018 ONCA 364, at paras 21 to 25. The Court directed that the motion judge’s order be amended to provide that Ms. H receive her pro rata bonus entitlement throughout the notice period, including the working notice period, based on a quarterly bonus entitlement of $18,000.

Popack v Lipszyc, 2018 ONCA 635

[Doherty, Brown and Nordheimer JJ.A.]

Counsel:

Marvin J Huberman and Daniel Sheppard, for the appellants

Colin P Stevenson and Neil G Wilson, for the respondents

Keywords: Civil Procedure, International Arbitration, Arbitral Awards, Enforcement, UNCITRAL Model Law on International Commercial Arbitration, International Commercial Arbitration Act, 2017, SO 2007, c 2, Sched 5, Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19

Facts:

This is an appeal from the application judge’s order dismissing the appellants’ application for the recognition and enforcement of an arbitration award against the respondents.

The appellant, JP, and the respondent, ML, jointly invested in commercial real estate in Toronto. In 2005, disputes arose between them. After disagreeing for several years, the parties submitted their disputes to arbitration before the Beth Din, a Rabbinical court in New York, pursuant to an Agreement to Submit to Arbitration dated November 10, 2010, as amended by an addendum dated January 11, 2011 (collectively the “Arbitration Agreement”). At the time the parties entered into the Arbitration Agreement, JP resided in New York and ML resided in Ontario.

In the Arbitration Agreement, the parties agreed that the Beth Din was a tribunal subject to the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (the “ICAA”), the successor to the International Commercial Arbitration Act, R.S.O. 1990, c. 1.9, which was the legislation in effect at the time of the arbitration. Under the Arbitration Agreement, the arbitral panel was free to choose the appropriate procedures by which to conduct the arbitration, no record was to be kept of the evidence or the submissions and no reasons for decision were required from the panel.

In August 2013, the appellants obtained an international commercial arbitration award (the “award”) against the respondents. Specifically, the award provided for the return of funds placed in escrow by JP in the sum of $440,000 and that ML pay JP an additional $400,000. However, the appellants subsequently applied to set aside the award under article 34 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) on the basis that the panel had breached the procedure agreed upon by the parties.

In February 2016, the Court of Appeal dismissed the appellant’s application and refused to set aside the award, although it was found that the panel followed an improper procedure which provided a basis to set aside the award.

Following the proceedings, the appellants sought prompt payment of the award. However, the appellants were informed that the respondents were in the process of requesting the Beth Din to reduce the award.

On June 24, 2016, the appellants commenced this application under articles 35 and 36 of the Model Law seeking an order recognizing and enforcing the award. The appellants further required that the respondents pay them the Canadian dollar equivalent of US$400,000. In responding to the application, ML deposed that his claim for costs and damages would exceed $400,000. ML also took the position that the award was denominated in Canadian, not American, dollars.

In September 2016, the Beth Din advised the parties that the $400,000 award issued pertained to business transactions that were transacted in Canadian currency. Accordingly, as a matter of standard practice, the award was to be calculated in Canadian funds. The Beth Din also wrote the parties a letter dated June 7, 2017, which stated that the award was stayed until a hearing was held to determine the respondents’ claim.

The application judge heard the appellants’ application to recognize the award at the same time as a motion by the respondents to stay recognition of the award. Ultimately, the application judge dismissed both the appellants’ application and the respondents’ motion, holding that the award was not yet binding on the parties since the respondents were seeking to raise further issues before the arbitral panel and the panel had expressed its willingness to consider those issues.

Issue:

(1) Did the application judge err in dismissing the appellants’ application for the recognition and enforcement of the award?

Holding: Appeal allowed.

Reasoning:  

(1) Yes. The application judge erred in dismissing the appellants’ application for the recognition and enforcement of the award. Specifically, the court held that the application judge erred in law in interpreting the recognition and enforcement provisions of the Model Law and made palpable and override errors in applying the Model Law. Furthermore, the application judge erred in finding that the award had not yet become binding on the parties.

The Recognition and Enforcement of Awards under the Model Law

In making its determination, the court noted that in Ontario, the recognition and enforcement of international commercial arbitration awards is governed by the ICAA. The ICAA states that two (2) international instruments concerning international commercial arbitration have the force of law in Ontario, namely: (i) the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and (ii) the Model Law. Furthermore, the court noted that international and provincial instruments have established a strong “pro-enforcement” legal regime in Ontario for the recognition and enforcement of international commercial arbitration awards. Moreover, the court held that as a general rule the grounds for refusal of enforcement are to be construed narrowly.

With respect to the Model Law, the court noted that article 35, in relevant part, states that an arbitral award, irrespective of the country in which it was made, shall be recognized as binding and shall be enforced subject to article 36. In relevant part tailored to this case, article 36 states that such recognition or enforcement may be refused only at the request of the party against whom it is invoked where the award has not yet become binding on parties or has been set aside or suspended by a court of the country in which, or under the law of which, the award was made. The court further noted that the provisions of the Model Law regarding the recognition and enforcement of awards work together with those in article 34, which specify the grounds upon which a party may have recourse against an arbitral award in the place of arbitration. Specifically, article 34 states that recourse to a court against an arbitral award may be made only by an application for setting aside where that application is brought within three (3) months from receipt of the award or, if a request has been made to correct an award or to have a specific part of the award interpreted, within three (3) months of when the request was disposed of by the tribunal. The court also noted that the grounds for setting aside an award under article 34 mirror those for refusing to recognize and enforce an award pursuant to article 36, with the exception that they do not include that the award has not yet becoming binding on the parties.

The Meaning of Not Yet Binding

In determining the meaning of the terms “not yet binding”, the court considered Born’s treatise, which provides commentary on the origins and possible meanings of the term “binding” used in the Model Law. The court noted that in Born’s view, an award should be considered binding “when the parties’ arbitration agreement provides that it is either final or binding, regardless of the possibility of subsequent judicial challenges of any sort.” The court acknowledged that a number of national courts do not share Born’s view. Instead, they interpret an award as “binding” when it is no longer open to recourse on its merits. Nevertheless, the court noted that the Supreme Court of Canada considered this issue in the decision of Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (“Yugraneft”), where it was held that an award is not binding under article 36 of the Model Law if it is open to being set aside under article 34 of the same, either because the three (3) month period in which to bring a motion to set aside has not expired or the set aside proceedings have not yet come to an end.

Application

The court found that by the terms of the Arbitration Agreement, the arbitral tribunal’s “decision [was] not open for appeal neither in any religious court nor in any secular court.” Moreover, given that JP’s application was disposed of by the order of the Court of Appeal, the court held that the award became binding on the parties on February 18, 2016, for the purposes of recognition under articles 35 and 36 of the Model Law. To this extent, the court held that the application judge made a palpable and overriding error in interpreting the Arbitration Agreement, which specifically precluded any right of appeal from the award. Moreover, the court held that the application judge erred in law by conflating whether the award was binding for the purposes of recognition or enforcement pursuant to the Model Law with whether the Beth Din had jurisdiction under the Arbitration Agreement to accept new claims from a party following the issuance of the award. In this respect, the application judge seemed to reason that if a party approached the arbitral tribunal with a request to consider a new issue some three (3) years after the award had been issued, the award was not binding for the purposes of the Model Law. The court held that on the facts of this case, the potential jurisdiction of the Beth Din to entertain a new issue about post-award events did not affect the binding nature of the award. The award was framed as a final one and the Arbitration Agreement did not permit any review or appeal of the award. As a result, the court held that the award was binding and should be recognized. Accordingly, the court set aside the order of the application judge and substituted an order recognizing and enforcing the award.

CNH Canada Ltd v Chesterman Farm Equipment Ltd, 2018 ONCA 637

[Watt, Benotto and Miller JJ.A.]

Counsel:

Stuart R. Mackay, for the appellant

Eric K. Gillespie and John W. May, for the respondent

Keywords: Contracts, Distribution Agreements, Indefinite Term, Interpretation, Termination, Reasonable Notice, Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, Statutory Interpretation, Standard of Review, Dealership Agreements Regulation, O. Reg. 123/06, Farms Implements Act, R.S.O. 1990, c. F.4, Costs, Proportionality Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Barbour v Bailey, 2016 ONCA 334

Facts:

This appeal concerns a statutory appeal from a decision of the Agriculture, Food and Rural Affairs Tribunal interpreting the renewal provisions of a standard form farm equipment dealership agreement entered into between the parties.

The relevant provisions of the dealership agreement were changed retrospectively, when Ontario adopted O. Reg. 123/06, the Dealership Agreements Regulation, establishing new provisions prescribing a process for renewal and non-renewal that overrode the dealership agreement. When the appellant elected not to renew the dealership agreement, a dispute arose as to the respective rights of the parties, in light of the Regulation. A decision from the Tribunal, in favour of the respondent, was largely upheld by the Divisional Court. The appellant appeals that decision to the Court of Appeal. The respondent cross-appealed.

The appellant, CNH Canada Ltd., is a Canadian farm implement manufacturer and distributor. The respondent, Chesterman Farm Equipment Ltd., is a family-owned business that sells farm implements and other goods. In 1999, New Holland advised Chesterman that it would not be renewing the existing dealership agreement, and offered Chesterman the opportunity to continue as a dealer under a new standard form agreement.

This second agreement (the “Dealership Agreement”), effective January 1, 2000, was structured to provide for an initial term of two years, with automatic one year extensions unless either party gave the other at least 90 days’ notice of its intention not to extend. On September 30, 2006, CNH gave written notice that it would not be extending the Dealership Agreement beyond its expiration date of December 31, 2006.

However, on April 25, 2006 – five months before CNH’s notice was provided – the Dealership Agreements Regulation came into force. The Regulation prescribes mandatory terms to be included in any farm implement dealership agreement, including terms dealing with renewal. Under the Regulation, any provision in a dealer agreement contrary to those prescribed mandatory terms is void: s. 1(3). Notably, s. 3 of the Regulation provides that a dealer under a dealership agreement has the right to renew the agreement, subject to the distributor’s approval, which cannot be “unreasonably withheld”: s. 3(1), (4).

Section 3(6) of the Regulation prescribes a process that must be followed should a distributor intend to refuse the dealer’s renewal, involving the following steps: 1. The distributor must notify the dealer in writing of the reasons for the refusal, within 45 days of receiving the request for approval; 2. If the distributor fails to notify the dealer within the 45-day period, the renewal is deemed to be approved; 3. The dealer is allowed 15 days from receipt of the notice to address the concerns underlying the refusal; and 4. After the 15-day period has passed, the distributor may refuse the renewal. The Regulation is made under the Farms Implements Act, R.S.O. 1990, c. F.4 (the “Farm Implements Act” or the “Act”).

Chesterman initiated proceedings against CNH for improperly ending the Dealership Agreement. The matter proceeded before the Tribunal in two phases. The first phase dealt with warranty and breach of contract issues. It is this second phase of the Tribunal’s proceedings that is the subject of this appeal and cross-appeal. The second phase addressed damages, as well as the matters relating to liability remitted from the first phase.

The Tribunal concluded that CNH’s September 30, 2006 notice of non-renewal could not constitute a written refusal to this deemed notice under the revised Dealership Agreement because CNH’s notice: (1) sought to exercise a right of non-renewal that no longer existed in its original format; (2) failed to set out CNH’s reasons for non-renewal in full; and (3) did not give Chesterman an opportunity to address CNH’s concerns animating the non-renewal. Accordingly, CNH’s non-renewal breached the Regulation and the modified Dealer Agreement.

Issues:

In its appeal, CNH raised four issues:

(1) Did the Tribunal err in law by concluding that the notice of non-renewal was not compliant with the Regulation because it sought to exercise a right that was void?

(2) Did the Tribunal err in law by concluding that the notice of non-renewal was not compliant with the Regulation because it failed to disclose “all” reasons for the refusal to renew?

(3) Did the Tribunal err in law by concluding that Chesterman was not afforded 15 days to address the concerns outlined in the notice of non-renewal?

(4) Did the Tribunal err in law by concluding that CNH failed to act reasonably when it did not renew the Dealership Agreement?

Chesterman’s cross-appeal raised two additional issues:

(5) Did the Divisional Court err in law by failing to consider the purpose of the Regulation in determining damages?

(6) Did the Divisional Court err in law by quashing the Tribunal’s costs award?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court did not agree with CNH’s characterization of the Tribunal’s reasons for concluding the notice of non-renewal was not compliant with the Regulation. It did not reach this conclusion by determining that CNH sought to exercise a right that had been extinguished. The Tribunal merely found that CNH “sought to exercise a right … that no longer existed in its original format” (emphasis added). In other words, CNH still had a right not to renew, but this right was now restricted and conditional. This was found to be a reasonable interpretation open to the Tribunal.

As the Tribunal explained, under the original Dealership Agreement each party had an unrestricted right not to renew, exercisable by giving the other party at least 90 days’ written notice. Section 3(6) of the Regulation, however, replaced this unrestricted right with a regulated approval process for non-renewal. Given that the application of the Regulation was mandatory, and the Dealership Agreement contained a provision allowing for modification of the Agreement to comply with the law, the Tribunal chose to revise the Dealership Agreement to include a regulated renewal approval process consistent with the Regulation. It did not “void” CNH’s right of non-renewal, but modified it to render it consistent with the mandatory terms of the Regulation.

(2) No. Section 3(6)(1) of the Regulation requires a distributor to notify the dealer in writing of “the reasons for the refusal”. The Tribunal incorporated this requirement into the Dealership Agreement by requiring that the notice of non-renewal “se[t] out the Company’s [non-renewal] reasons.” Applying that requirement to this case, it found that CNH’s notice of non-renewal did not accurately or completely set out the reasons behind CNH’s decision not to renew. More specifically, while the notice focused on Chesterman’s purported failure to achieve a reasonable market share as required under the Dealership Agreement, there were several other reasons for the non-renewal that were not stated in the notice. Since CNH had not set out all the reasons for the non-renewal, the Tribunal concluded that the notice was invalid. The Regulation contemplates providing a dealer with the opportunity to address the distributor’s concerns, the dealer must be fully informed of all the reasons for nonrenewal for the process to be meaningful.

(3) No. If CNH breached the Dealership Agreement, as amended by the Regulation, by failing to provide all the reasons for its non-renewal, whether it further breached the Agreement by not affording Chesterman 15 days to address its concerns is inconsequential.

(4) No. Section 3(4) of the Regulation provides in part that a distributor’s approval of a renewal of a dealership agreement “shall not be unreasonably withheld”. The Tribunal incorporated this requirement into the Dealership Agreement by mandating that CNH’s decision not to renew “not be unreasonable in the circumstances.”

CNH advanced two purported legal errors in the Tribunal’s analysis said to give rise to questions of law.

CNH submitted that before the Tribunal could analyze whether the non-renewal was unreasonable, it had to be satisfied that Chesterman had attempted to address CNH’s concerns. Section 3(4) of the Regulation clearly states that a distributor may not “unreasonably with[o]ld” renewal approval. This requirement is separate from a dealer’s right, under s. 3(6)(3), to address concerns underlying the refusal to renew once notified by the distributor. That said, the Tribunal’s conclusion is reasonable.

The second purported error of law CNH identified is in the Tribunal’s conclusion that because CNH did not comply with the Regulation, its non-renewal was unreasonable.

In the courts view, this issue raised a question of mixed law and fact. The Tribunal had to consider whether the evidence supported a conclusion that CNH’s nonrenewal was unreasonable. This was not found to be a question of law and was thus outside the scope of review. In any event, given the conclusions above, there was no merit to this argument.

(5) No. the Tribunal committed no error in assessing damages for lost profits on the basis that the Dealer Agreement could be terminated upon reasonable notice. Although Chesterman also took issue with other aspects of the Tribunal’s damages award – such as how it weighed and considered the expert evidence – these issues did not raise extricable questions of law. The court accordingly dismissed Chesterman’s cross-appeal from the Tribunal’s damages award.

The Tribunal, after reviewing the relevant legislation, reasonably determined that the Dealer Agreement, as amended by the Regulation, did not eliminate a common law right of termination. Some types of contracts – including dealership or distribution agreements – will often naturally give rise to an implied right to terminate on reasonable notice: see e.g., Hillis Oil & Sales v. Wynn’s Canada, [1986] 1 S.C.R. 57, at p. 67;

(6) Yes. Chesterman argued that a fair reading of the Tribunal’s reasons demonstrates that its costs award was fully within its jurisdiction. An appeal from a Tribunal decision under s. 5 of the Farm Implements Act is limited to questions of law. As with all discretionary decisions, the Tribunal’s discretion to award costs must be exercised in accordance with the law: see generally, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

(7) No. Whether the Tribunal failed to make a costs award in accordance with its jurisdiction and the law is a question of law. Finding no reviewable error in the Tribunal’s analysis, however, the court restored the Tribunal’s costs award.

Second, notwithstanding the Tribunal’s musing about the existence of a common law principle that costs follow the event, and that it is “open to debate whether the common law principle of ‘costs following the event’ ha[d] been elevated to a common law ‘right, duty or remedy’”, the Tribunal understood that its decision to award costs was discretionary and had to be made in accordance with statutory requirements.

Third, the Tribunal did not err in law by “failing to take into account” the principle of proportionality when awarding costs. The principle of proportionality is an overarching consideration in determining the appropriate quantum of costs: Barbour v Bailey, 2016 ONCA 334, at para. 9. While the Tribunal’s costs award may be high, in the court’s view it did not err in law by failing to consider proportionality in its reasoning.

Short Civil Decisions

Froom v Ontario (Attorney General), 2018 ONCA 627

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

Counsel:

DF, appearing in person

Sarah Kromkamp, for the respondents

Keywords: Torts, Negligence, Abuse of Process, Misfeasance in Public Office, Invasion of Privacy, Harassment, Breach of Statute, Civil Procedure, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21

Criminal Decisions and Ontario Review Board Decisions

Ellis (Re), 2018 ONCA 616

[Watt, Pepall and Fairburn JJ.A.]

Counsel:

Frank Bernhardt, for the appellant, R.E.

Luke Schwalm, for the respondent, the Attorney General of Ontario

Janice E. Blackburn, for the respondent, the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, NCRMD, Threat to Public Safety, Procedural Fairness, Osawe (Re), 2015 ONCA 280, Least Onerous and Least Restrictive Disposition, R v Conway, 2010 SCC 22

R v JR, 2018 ONCA 615

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

Owen Goddard, for the appellant

Deborah Krick, for the respondent

Keywords: Criminal Law, Publication Ban, Aggravated Assault, Misapprehension of Medical Evidence, R v Kehler, 2004 SCC 11, Evidence, Gatekeeper Function, Burden of Proof, R v Sekhon, 2014 SCC 14, R v Awer, 2017 SCC 2, Criminal Code, s 657.3(3)(b)

R v Rai, 2018 ONCA 623

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

David Locke and Glen Henderson, for the appellant

Davin Michael Garg, for the respondent

Keywords: Criminal Law, Dangerous Driving, Arbitrary Detention, Canadian Charter of Rights and Freedoms, s 9, s 10(a) and 10(b), s 24(2), Grant Factors, Sentencing

R v Schulz, 2018 ONCA 598

[Watt, Brown and Huscroft JJ.A.]

Counsel:

Martin Schulz, acting in person

Grace Choi, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Criminal Code, s 163.1(4), Examination Order, Canadian Charter of Rights and Freedoms, s 8, Fresh Evidence, R v Manasseri, 2016 ONCA 704, Canadian Charter of Rights and Freedoms, s 24(2), R v Cole, 2012 SCC 53, Grant Factors, Sentencing, Probation, Prohibition Orders, Criminal Code, s 161(1)(d), R v Brar, 2016 ONCA 724, R v Perron, 2015 QCCA 601

R v Semple, 2018 ONCA 630

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

KY Tina Yuen and Cate Martell, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Death, Evidence, Fabrication, R v McLellan, 2018 ONCA 510

Hart (Re), 2018 ONCA 624

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

Suzan E. Fraser and Cate Martell, for the appellant

Catherine Weiler, for the respondent Her Majesty the Queen

Janice Blackburn, for the respondent the Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Criminal Law, Publication Ban, Ontario Review Board, Threat to Public Safety, Conditional Discharge

R v Clairoux, 2018 ONCA 629

[Doherty, MacPherson and Rouleau JJ.A.]

Counsel:

Diane Condo, for the appellant

Sandy Thomas, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Evidence, Search Warrants, Canadian Charter of Rights and Freedoms, s 24(2), R v Grant, 2009 SCC 32, R v Smith, 2015 SCC 34

R v Wesley, 2018 ONCA 636

[Sharpe, Brown and Paciocco JJ.A.]

Counsel:

Robert Sinding, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Sentencing, Dangerous Offender, Indeterminate Sentence

R v Jordoin, 2018 ONCA 638

[Watt, Pardu and Roberts JJ.A.]

Counsel:

Colin Wood, for the appellant

Tanit Gilliam and Ruth McGuirl, for the respondent

Keywords: Criminal Law, Possession of Drugs for the Purpose of Trafficking, Search Warrants, Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 11, R v Telus Communications Co, 2013 SCC 16, R v Brand, 2008 BCCA 94

R v MC, 2018 ONCA 634

Counsel:

Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Keywords: Criminal Law, Publication Ban, Interveners, Gladue Principles

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 (JULY 3-6)

Good afternoon.

As expected at this time of year, it was a quiet week at the Court of Appeal for Ontario.

There were only two substantive civil decisions. In Da Silva v Gomes, the motion judge had dismissed, by way of summary judgment, a claim against a soccer club, its representatives, and its governing association for allegedly failing to prevent a player from assaulting another player during a game. The Court of Appeal upheld the lower court’s decision, as there was no evidence to suggest that the assault was reasonably foreseeable. Supervising authorities are not legally responsible for sudden, unexpected events that occur during an acceptable and safe activity.

In Manorgate Estate Inc. v Kirkor Architects and Planners, a builder entered into a design agreement with an architect that contained an entire agreement clause. The builder alleged that it entered into the agreement on the basis of misrepresentations by the architect as to the anticipated costs of the project. The project exceeded budget and the builder sued the architect. The motion judge dismissed the claim by way of summary judgment on the basis of the entire agreement clause, which excluded claims in respect of any representations not contained in the agreement. The Court of Appeal upheld the motion judge’s decision and dismissed the appeal.

There were several criminal decisions released this week, together with an Ontario Review Board decision and a decision quashing an appeal in a child custody case for want of jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com

Table of Contents

Da Silva v Gomes, 2018 ONCA 610

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

For short civil decisions click here

For criminal decisions click here

Da Silva v Gomes, 2018 ONCA 610

[Epstein, Lauwers and van Rensburg JJA]

Counsel:

D D’Urzo, for the appellants

K Kwinter, for the respondents other than BG

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Facts:

In the course of a soccer game, BG punched MDS. BG was criminally convicted for the assault. MDS was injured and he and his family brought their claims under the Family Law Act, RSO 1990, c F 3, against BG, the Hamilton Sparta Sports Club for which BG played, the Ontario Soccer Association Incorporated, under whose auspices the game was played, and several other associated individuals.

The motion judge granted summary judgment dismissing the action against the respondents other than BG. The plaintiffs appealed.

Issues:

(1) Did the motion judge err in finding that the respondents were not negligent in their supervision of the game, and breached several standards of care, including the standard for coaches, for on-field supervision and for player conduct?

(2) Did the motion judge err in finding that the respondents were not liable under the Occupiers Liability Act,RSO 1990, c 02 for failing to ensure that the playing field was safe?

(3) Did the motion judge err in finding that these arguments on the evidence did not raise genuine issues requiring a trial?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellants have not shown that the motion judge made any palpable and overriding errors. The appellants’ case rests on proving the claim that BG’s previous conduct showed a risk that he would commit violence against an opposing player and that his coach, his team and the Association were negligent in permitting him to play. The motion judge rejected this claim at para 74: “Based on the material before the court, there is no evidence that BG acted in a physically aggressive or violent manner during a soccer game prior to the [incident date]”.

On the issue of the standard of care, the motion judge noted that the appellants had not proven their case at para 78: “BG’s evidence was that he knew he was not to punch other players. His evidence was that he assaulted MDS impulsively. Based on BG’s evidence, even if there was a code of conduct and even if he was made aware of it, it would not have prevented him from engaging in behaviour that was so beyond the realm of what is reasonable. He assaulted MDS and was convicted of an offence which resulted in a suspension from the league.”

With respect to the issue of causation, the motion judge found, at para 94:

Based on the evidence, I am unable to conclude that the lack of or improper discipline would have deterred BG such that the assault upon MDS would not have occurred. BG’s evidence was that he knew he could not punch another player but did so anyways. His evidence was that the assault was not premeditated and, in fact, was an unprovoked and impulsive act.

As for the applicable law, the motion judge relied on the school board cases. The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity”: Patrick v St. Clair Catholic District School Board[2013] OJ No 6216, at para 266.

(2) No. The motion judge made no palpable or overriding error in her finding that there was (a) no evidence of “any site safety issues or that the playing field was not safe” and (b) no evidence that the respondents were in breach of any obligation owed under the Act (para. 65).

(3) No. The motion judge made no error in the consideration and application of the test for summary judgment. The appellants’ case foundered on the absence of evidence, that the case was not complex and the key facts were not in dispute, and that there were no credibility issues to resolve.

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

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

Counsel:

Michael Simaan, for the appellants

Charles Simco and Matthew Urback, for the respondent

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review,Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

Facts:

The appellants (“Manorgate”) build residential homes. The respondent (“Kirkor”) is an architectural consulting firm retained by Manorgate to assist with a construction project. Manorgate entered into an agreement (the “First Agreement”) with Kirkor under which Kirkor agreed to provide design services for a project involving the construction of 12 townhouses (the “smaller project”).

After the First Agreement was executed, the City of Toronto advised Manorgate that it would prefer a higher density development at the planned location. The proposed project was then changed to 24 townhomes (the “larger project”). Manorgate’s principal met with a senior partner of Kirkor to discuss this new concept. After this meeting, the parties entered into a design agreement with respect to the larger project (the “Second Agreement”).

Both agreements contained a clause precluding Manorgate from suing Kirkor based on any pre-contractual representations (the “Entire Agreement Clause”).

Manorgate says that at the meeting, Kirkor’s representative represented to Manorgate’s representative that the larger project would cost approximately $130 per square foot (the “Alleged Negligent Misrepresentation”). Manorgate alleges that the actual cost per square foot of the larger project turned out to be significantly higher than $130, such that the larger project was no longer financially viable.

Manorgate claimed that it entered into the Second Agreement in reliance on the Alleged Negligent Misrepresentation. It therefore brought this proceeding based on the Alleged Negligent Misrepresentation for approximately $530,000.

Kirkor denied the representation. In the alternative, Kirkor relied on the Entire Agreement Clause in the Second Agreement to preclude liability for any pre-contractual representations. Kirkor moved for summary judgment.

The motion judge found that it was not necessary to decide whether Kirkor made the Alleged Negligent Misrepresentation. She granted summary judgment dismissing the action, concluding that the Entire Agreement Clause in the Second Agreement operated as a complete defence to Manorgate’s claim.

Issues:

  1. Did the motion judge err in giving effect to the entire agreement clause?

(a)  In that regard, did the motion judge err in determining that the Entire Agreement Clause was broad enough to exclude the Alleged Negligent Misrepresentation?

  1. Did the motion judge err in her interpretation of the provision of the Second Agreement excluding detailed estimates of construction costs from the services provided?
  2. Did the motion judge err in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy?
  3. Did the motion judge err in failing to enforce a duty of good faith between the parties?

Holding: Appeal dismissed.

Reasoning:

  1. The court stated that critical to the motion judge’s conclusion was her finding that the Second Agreement was not a continuation of the First Agreement but an entirely new agreement. It followed that the Entire Agreement Clause contained in the Second Agreement superseded the Alleged Negligent Misrepresentation, with the effect that Manorgate was not entitled to rely on the representation even if it had been made by Kirkor.

The court stated that while correctly identifying the substantive requirements for the formation of a valid contract is an issue of law, applying those requirements to a given fact scenario and interpreting the language of two apparent agreements raises questions of mixed law and fact: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, at paras. 49-51, 53.  The court found that the motion judge’s determination that the First Agreement and Second Agreement were two separate contracts was a finding of mixed law and fact based on the record before her, and that the finding is entitled to deference on appeal.

(a) No.  The court stated that Manorgate’s argument hinged on its position that the two agreements are standard form contracts and therefore the motion judge’s finding is to be reviewed on a standard of correctness. The court found that although the agreements were not amended prior to signature, they were not standard form agreements of the nature contemplated by the Supreme Court of Canada in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37. On Manorgate’s evidence, the agreements were open to being amended prior to signing. The court stated that the motion judge’s interpretation that the Second Agreement, specifically the Entire Agreement Clause, was broad enough to apply to the Alleged Negligent Misrepresentation, is an exercise in contractual interpretation entitled to deference: Ledcor, at para. 21.

  1. The court stated that the motion judge referred to a provision in rejecting the argument made before her that preliminary costing was part of the services Kirkor was to perform. She stated, at para 44: I reject the plaintiff’s argument that the use of the word “detailed” implies that preliminary or high level costing forms part of the contract. Nothing else in the contract supports such an interpretation. The court found no error.
  2. The court stated that the motion judge made no error in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy.
  3. The court rejected Manorgate’s argument concerning the motion judge’s failure to enforce a duty of good faith between the parties, stating that it was not properly raised at first instance on appeal.

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v MP, 2018 ONCA 608

[Watt, Brown and Huscroft JJA]

Counsel:

Jonathan Shime, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Evidence, Admissibility, Criminal Code, s 271, s 686(1)(b)(iii), R v W(D), [1991] 1 SCR 742

R v Sadikov, 2018 ONCA 609

[Lauwers, van Rensberg and Nordheimer JJA]

Counsel:

Dirk Derstine and Karen Heath, for the appellant

Amber Pashuk and Amanda Hauk, for the respondent

Keywords: Criminal Law, Drug Trafficking, Possession of a Firearm, Sentencing, Canadian Charter of Rights and Freedoms, s 8, R v Keinapple, [1975] 1 SCR 729, R v Teskey, 2007 SCC 25, R v Willaroman, 2016 SCC 33

Caron (Re), 2018 ONCA 613

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Ian McCuaig, for the appellant

Joe Hanna, the Attorney General of Ontario

Jacquie Dagher, for the respondent

Keywords: Criminal Law, Ontario Review Board, NCR, Threat to Cause Bodily Harm, Threat to Cause Death, Supervised Access

Short Civil Decisions

Williams v. Young, 2018 ONCA 611

[Feldman, Hourigan and Brown JJA]

Counsel:

Benjamin Nielsen, for the moving party/respondent

Shawn Philbert, for the responding party/appellant

Keywords: Family Law, Custody, Civil Procedure, Appeals, Jurisdiction, Courts of Justice Act, s 21.9.1

R v DA, 2018 ONCA 612

[Sharpe, Brown and Paciocco JJA]

Counsel:

Peter Copeland, for the appellant

Michael Perlin, for the responding respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Criminal Code, s. 271, R v W(D), [1991] 1 SCR 742, R v JJRD(2006), 218 OAC 37

R v Laverdure, 2018 ONCA 614

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Jodie-Lee Primaeu, for the appellant

Elana Middlekamp, for the respondent

Keywords:Criminal Law, Dangerous Driving Causing Death, Actus Reus, Mens Rea, Criminal Code, S. 249, R v Beatty, [2008] 1 SCR 49

R v Richards, 2018 ONCA 618

[Doherty, MacPherson and Rouleau JJA]

Counsel:

Najma Jamaldin, for the appellant

Deborah Krick, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, S. 231(5)(e), Evidence, R v Kimberley(2001), 56 OR (3d) 18 (CA)

COURT OF APPEAL SUMMARIES (JUNE 25 – 29)

Good Morning,

The following are our summaries of this week’s civil decisions of the Ontario Court of Appeal.

First, I’d like to congratulate our very own Eric Golden on successfully representing the moving party receiver in B&M Handelman Investments Limited v Drotos, 2018 ONCA 58. The case dealt with the limited circumstances under which an appeal can be brought, or leave to appeal could be sought, from a sale approval and vesting Order under the Bankruptcy and Insolvency Act, with a focus on whether there was any duty on the Receiver to consult with fulcrum creditors on its marketing and sale processes relating to various types of real estate properties.

Other topics covered this week included the validity of a will of someone with chronic alcoholism, the Court of Appeal’s jurisdiction to hear an appeal from an order dismissing an application for habeas corpus in the immigration law context, zoning bylaw interpretation, easements, summary judgment in the commercial lease context, and family law (termination of support and contempt).

For our readers practicing in criminal law, there were an unusually high number of criminal decisions this week, particularly murder cases.

I hope everyone is enjoying their Canada Day long weekend!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Berg v. Marks, 2018 ONCA 595

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Hutchinson v. Norfolk (County), 2018 ONCA 592

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

McKinnon v. McKinnon, 2018 ONCA 596

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Dujardin v Dujardin, 2018 ONCA 597

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

For short civil decisions click here

For criminal, provincial offences, and Ontario Review Board decisions click here

Civil Decisions

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

[Paciocco, JA (Motion Judge)]

Counsel:

Eric Golden, for the moving party, Rosen Goldberg Inc.

James Zibarras, Leslie Dizgun, and Caitlin Fell, for the responding party World Finance Corporation

David Preger, for the responding party, B&M Handelman Investments Limited

Adam J. Wygodny, for the responding party, Money Gate Investment Corp.

Miranda Spence, for the purchaser, FPK

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Facts:

In three unrelated proceedings, the Court appointed a Receiver over several debtors that owned several properties, including CD, who held title to a vacant home on Birchmount Road in Toronto. The assets of the various debtors included several different properties, including commercial, industrial, vacant lots, an inn, and residential homes in Picton, on the Bridle Path and on the Scarborough Bluffs (the latter being the CD’s property on Birchmount Avenue).

Pursuant to the terms of the Appointment Order (based on the Commercial List Model Order), the Receiver proceeded to list on MLS and sell several of the Properties pursuant to the Appointment Order, including CD’s Birchmount property.  The properties were all sold at prices over, or in the range, of appraisals the Receiver had commissioned for each property from certified appraisers.

The Appointment Order contains the usual Model Order clauses granting the Receiver the power to engage consultants and appraisers, market the property, and negotiate the terms and conditions of sale. The Appointment Order also permits the Receiver to report to, meet with, and discuss with affected Persons (as defined in the Appointment Order) “as the Receiver deems appropriate” and to share information subject to confidentiality terms. It permits the Receiver to sell the property with court approval and to apply for a vesting order to convey the property to a purchaser free and clear of encumbrances.

With respect to the CD matter, the Receiver was appointed on April 13, 2018.  CD’s Birchmount property is a 12,900 square foot house on the Scarborough Bluffs that was vacant, in need of repairs and unfit for occupancy. The Receiver’s appraisal came is at $3.2 million, and after reviewing various listing proposals the Receiver entered into a 90-day listing agreement with a listing broker on April 30, 2018 at a sale price of $3.8 million.  Subject to court approval, the Receiver accepted an offer for $3.45 million made May 8, 2018, which would result in a shortfall to the second mortgagee who was the creditor who moved for the appointment of the receiver.  The sale of CD’s Birchmount property was scheduled to close on June 11, 2018.

On the Receiver’s motion for a sale approval and vesting Order for five of the properties (including CD’s Birchmount property), each involving different debtors and mortgagees (other than the mortgagees who moved to appoint the receiver), the same law firm (Brauti Thorning Zibarras, or “BTZ”) was representing fulcrum creditors with respect to four of the properties being sold (not including CD’s Birchmount property, and was also representing the first mortgagee and third mortgagee (World Finance Corporation) over CD’s Birchmount property. BTZ‘s main position was that the Receiver failed to consult its clients about the sale and marketing process for all five properties, as well as the listing price.

Justice Dunphy issued the requested Order for each property on June 1, 2018 (the “Dunphy Order”), holding that the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.) had been satisfied.

Justice Dunphy held that the Receiver’s business judgment had been applied and informed by the appraisals responsibly sought, and the properties sold for over the appraised value. The Receiver did not act too quickly. The MLS marketing process was designed to obtain offers as soon as reasonably practicable and multiple offers were received. There was no requirement for the Receiver to consult with BTZ’s clients on the marketing process and give them a greater degree of input, as the interests of all of the parties is the same. Their interest is in obtaining the highest and best price reasonably available.

On June 7, 2018, World Finance served and filed a Notice of Appeal seeking to appeal the Dunphy Order to a panel of the Court of Appeal, but only relating to CD’s Birchmount property, on the basis that it could do so as of right pursuant to subsections 193(b) and 193 (c) of the Bankruptcy and Insolvency Act (“BIA”) (and in which case the Dunphy Order would be automatically stayed). If World Finance could not fit its appeal into subsections 193(b) or s. 193(c) of the BIA, it sought as alternate relief in its Notice of Appeal leave to appeal pursuant to s. 193(e) of the BIA, but it did not seek a stay of the Dunphy Order in its Notice of Appeal, or otherwise move for a stay.

World Finance argued that its proposed appeal was prima facie meritorious. It contended that the Receiver failed to consider World Finance’s interests, and that the process used was unfair because the Receiver did not consult with World Finance on the marketing process, or the price at which the Birchmount Property would be listed. Dunphy J. misapplied the Soundair principles in finding otherwise and erred in law (i) when finding that the Receiver had considered World Finance’s interests by assuming that all parties had the same interest, namely, obtaining a higher sale price and (ii) finding the process to have been fair by considering irrelevant or improper explanations for the Receiver’s failure to consult with World Finance about the marketing process and listing price.

World Finance appealed notwithstanding that it stood to not recover anything under its mortgage because the second mortgagee (the moving creditor with respect to the Appointment Order over CD) was already incurring a shortfall.

Given the urgency because of the closing date of the sale of CD’s Birchmount Property (originally June 11, 2018 and extended to June 14, 2018), the Receiver brought a motion for advice and directions before a single judge of the Court of Appeal, taking the position that World Finance required leave to appeal because its appeal did not fall within subsections 193(b) or s. 193(c) of the BIA, that leave should not be granted, that the Closing was not stayed, and seeking to approve the closing on June 14, 2018.  World Finance sought an adjournment, but the Court of Appeal denied the request.

Issues:

1. Whether there was an appeal as of right to the Court of Appeal pursuant to subsection 193(b) of the BIA because the Dunphy Order is likely to affect other cases of a similar nature in the bankruptcy proceedings, and subsection 193 (c) of the BIA because the property involved in the appeal exceeds in value $10,000.00?

2. If not, whether leave to appeal was required and should be granted under section 193(e) of the BIA?

3. Did the Receiver’s sale and marketing process satisfy the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), [1991] O.J. No. 1137?

4. Was there a duty on the Receiver to consult with BTZ’s clients about the sale and marketing process for all five properties, as well as the listing price?

Holding:

There was no appeal as of right under either subsections 193(b) or 193(c) of the BIA. Leave to appeal was required under subsection 195(e) of the BIA, but should not be granted.

Reasoning:

  1. Appeal of as right

There was no appeal as of right. Reliance on subsection 193(c) would not have been tenable given World Finance’s emphasis on process-related errors (2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 54).

Subsection 193(b) should not be interpreted in the expansive manner that World Finance submits.  As per Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, 49 C.B.R. (6th) 173, at para. 20, there is a “clear direction in recent case law in favour of a narrow construal of the rights to appeal in ss. 193(a) to (d) of the BIA”.  This “narrow construal” is incompatible with World Finance’s position, and there are good reasons for it.

Furthermore, in 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 49, Brown J.A. explained that initially the BIA provided only for appeals as of right. The inclusion in 1949 of a leave to appeal provision removed the need for a broad interpretive approach to ss. 193(a) to (d). More importantly, the appeal as of right provisions should be read harmoniously with the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, which requires leave for all appeals from orders made under the statute. Reading s. 193’s appeal as of right subsections narrowly avoids disharmony between the two insolvency regimes.  Also, s. 193(b) applies where there is a real dispute that is likely to affect another case in the same bankruptcy proceedings.  The Order that World Finance proposes to appeal was made in one receivership proceeding and pertains only to that proceeding. The fact that the outcome of the proposed appeal could affect cases involving BTZ’s clients arising out of other receivership proceedings is insufficient to give rise to an appeal as of right. There is no appeal as of right in this case under s. 193(b).

Second, this outcome does not operate to unfairly deny World Finance an opportunity to challenge the Dunphy Order that it says will likely affect other cases it will be involved in. This is because a party whose interests are likely to be affected in another case of a similar nature arising in other bankruptcy proceedings can move to protect those interests by seeking leave to appeal, where an appeal as of right is not available. Where leave is warranted in the circumstances, it will be granted.

  1. Leave to appeal

The granting of leave to appeal under s. 193(e) is discretionary and contextual. The test for leave described by Blair J.A. in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, was adopted by a panel of the Court of Appeal in Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, at para. 3. The proposed appeal must:

  1. a) raise an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this [c]ourt should therefore consider and address;
    b) be prima facie meritorious; and
    c) [not] unduly hinder the progress of the bankruptcy/insolvency proceedings.

As Doherty J.A. noted in Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), 24 C.B.R. (5th) 256, at para. 28, the leave inquiry should begin with some consideration of the merits of the proposed appeal, for if the appeal cannot possibly succeed, “there is no point in granting leave to appeal regardless of how many other factors might support the granting of leave to appeal.”

World Finance’s grounds of appeal are not legitimately arguable points. They do not present a realistic possibility of success and therefore lack prima facie merit.

First, there is no reasonable prospect that fault could be found in Dunphy J.’s conclusion that, in seeking the highest and best price reasonably available, the Receiver was considering the shared interest of all of the parties. World Finance’s argument that, as a fulcrum creditor, it had unique interests in the marketing strategy and list price that were not considered has no traction. Marketing strategy and list price are means to an end, namely, achieving the highest and best price reasonably available, the very thing that Dunphy J. considered.

There was no requirement to consult BTZ’s clients on the marketing and sale process, but even if there was  Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed.  Courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances.

World Finance’s claim that Dunphy J. considered irrelevant and improper explanations for the Receiver’s failure to consult directly with World Finance about the marketing and listing price for the Birchmount Property is also without merit.

World Finance did not present any authority for the proposition that a receiver has a positive obligation to consult with subsequent mortgagees as to a particular sales process and the listing price.

Furthermore, the Appointment Order in this case expressly permits the Receiver to report to, meet with, and discuss with affected Persons “as the Receiver deems appropriate” and to share information subject to confidentiality terms. The Receiver had discretion under the order to proceed as it did.

Moreover, even if a general duty to consult applied in this case, Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed. In this case there was confusion as to the secured creditors’ true identities and who represented their interests. There were also fraud allegations at play, which explained why the Receiver was not more proactive in its dealings with certain creditors. Moreover, those creditors previously showed a low level of interest in seeking to shape the process. In these circumstances, Dunphy J. found that making the appraisals available to those creditors who chose to consult them was sufficient.

None of these factors are irrelevant or improper considerations. Dunphy J. was entitled to consider them. As Blair J.A. pointed out in Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), [2004] O.J. No. 2744, at para. 23, courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances. Moreover, deference is owed to the decision Dunphy J. made.

Finally, World Finance’s proposed appeal lacks merit for the simple reason that even if CD’s Birchmount Property were to sell for the amount World Finance claims it could have achieved, World Finance would still receive nothing. World Finance’s process-based complaint is therefore an idle appeal. There is no material wrong it can complain of.

Even if World Finance’s proposed appeal had prima facie merit, leave to appeal, would still have been denied, as neither of the other two leave to appeal requirements are satisfied.

World Finance’s proposed appeal does not raise an issue that is of general importance to the practice in bankruptcy matters or to the administration of justice as a whole. It is a fact-specific dispute about the propriety of this particular sale transaction.

Granting leave to appeal would also unduly hinder the bankruptcy proceeding. If the sale was delayed, additional interest and costs payable on the first mortgage would have continued to accrue, serving only to further denude the second mortgagee’s position.

Moreover, the agreement of purchase and sale provided specific timelines for the obtaining of court approval and for the closing of the sale. It permitted postponement of the closing date for only 60 days after the original closing date. The sale transaction was originally scheduled to close on June 11, 2018 and was postponed until June 14, 2018. If leave to appeal had been granted, the additional delay required for the disposition of the appeal could have resulted in the loss of this transaction.

Berg v. Marks, 2018 ONCA 595

[Pepall, van Rensburg and Paciocco JJA]

Counsel:

A Rouben, for the appellant

EO Gionet and JA Valler, for the respondents

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Facts:

The appellant and the respondents are neighbours. A laneway runs between the two properties. At the end of the laneway lies a catch basin that connects to a municipal storm sewer.  The catch basin was built in approximately 1980.

The appellant owns the laneway, but the respondents have a right of way “in, over and upon” the laneway. It is undisputed that the respondents have a right of way for ingress and egress to their property. What is in dispute is the extent of the easement.

The parties had been living in a state of peaceful co-existence until 2006, when the appellant’s partner prevented one of the respondents from attempting to repair parts of the catch basin. Things got worse in 2010 when the appellant poured a concrete pad over the catch basin rendering it inoperable. The respondents’ property experienced flooding.

In 2011, the respondents commenced an action against the appellant under the Simplified Procedure seeking a declaration of entitlement to a right in, over, and upon and damages for the cost of reinstating the catch basin, the cost of repair work for the basement apartment, and loss of rental income.

The trial judge found that the appellant intended to make the catch basin inoperable for surface drainage from the respondents’ property and that he substantially interfered with the respondents’ right to use the laneway. She granted a declaration that work be performed to reinstate the catch basin so that the drainage function was restored and a declaration that the appellant not block the laneway. She also awarded $211,491.60 in damages to the respondents. As the action was commenced as a Simplified Procedure action, the damages were limited to $100,000.

Issues:

(1) Did the trial judge err by failing to provide the self-represented appellant with adequate assistance to ensure procedural fairness?

(2) Did the trial judge err in failing to recognize that the criteria for establishment of the right of way was not met?

(3) Should fresh evidence be admitted?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge tried to assist the appellant. The court rejected the appellant’s arguments of procedural unfairness:

(i) The appellant argued that the name of one of the respondent’s witnesses, Mr. F, was omitted from the respondents’ Simplified Procedure form of affidavit of documents, no “will-say” statements were exchanged, and the trial judge relied on Mr. F’s impermissible testimony. The court found that the appellant suffered no prejudice from this omission. The appellant knew Mr. F was a person who might reasonably be expected to have knowledge of the matters in issue, as she had originally included him in her Affidavit of Documents.

The trial judge cannot be faulted for failing to deal with the absence of any will-say statements because this was never mentioned at trial and she did not possess the Master’s order that addressed this issue. There would have been no reason for the trial judge to raise this issue with the appellant, and furthermore, the appellant herself had also not delivered any will-say statements.

The trial judge did not improperly rely on hearsay evidence from Mr. F. The witness testified on his personal observations and discussions in the drafting and registration of the easement; his involvement with the construction of the catch basin; and his personal experience with the laneway.

(ii) The appellant also asserted that the respondents failed to undertake the work ordered by Master Brott, and when the appellant sought to introduce Master Brott’s orders into evidence, the trial judge refused the request and declined to consider them. The appellant complained that the trial judge also declined to permit the appellant to cross-examine the respondent on Master Brott’s orders.

The court rejected these arguments. The trial judge determined that the Master did not have authority to appoint an expert to testify at trial. Even if one accepted that the trial judge ought to have permitted evidence of Master Brott’s orders, they would have had no impact, in that the opinions of the two expert engineers were the same: the optimal solution was to keep the catch basin in the existing location with connection to the Town’s sewer.

On the issue of cross-examination, the trial judge permitted the appellant to conduct extensive cross-examinations of the respondent and the respondents’ experts, but without reference to the specifics of the Master’s orders.

(2) No. The evidentiary record established that, when the right of way was created, the dominant and servient owners differed, contrary to the appellant’s submission. Furthermore, this defence was never pleaded.

(3) No. The tests in Palmer v. R., [1980] 1 S.C.R. 759; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, were not met. The information would have no impact on the outcome of the appeal.

Hutchinson v. Norfolk (County), 2018 ONCA 592

[Simmons, Huscroft and Miller JJ.A.]

Counsel:

Michael Bordin, for the appellant

Mark Abradjian, for the respondent Corporation of Norfolk County

Dennis M Touesnard, for the respondent Debono Greenhouses Ltd

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

Facts:

This is an appeal from the application judge’s order declaring that storing and grinding wood is an accessory use to the commercial greenhouses on the respondent’s property under the Corporation of Norfolk County’s Zoning Bylaw I-Z-2014 (the “Bylaw”).

On application, the appellant homeowner sought a declaration that storing and grinding wood on the neighbouring respondent’s property contravened the Bylaw, which in relevant part provides as follows:

1.4.3 (b) where the main use is wholly situated in one zone, an accessory structure or use may be permitted in any other Zone than the Provincially Significant Wetland Zone (PSW) provided it meets all provisions of section 3.0 except non-residential accessory structures shall not be permitted in residential zones.

2.3 “ACCESSORY USE” shall mean a use naturally and normally incident to, subordinate to and exclusively devoted to a principal use and located on the same lot herewith.

The application judge found that storing and grinding wood was not a permitted use under the Bylaw. Therefore, it was incumbent upon the respondent to establish that it was an “accessory use” of the greenhouse operation within the Bylaw’s meaning. Ultimately, the application judge was satisfied that storing and grinding wood was an accessory use to the respondent’s property. In making this determination, the application judge interpreted the Bylaw as requiring that an accessory use be: (i) naturally and normally incidental to the principal use, (ii) subordinate to the principal use; (iii) exclusively devoted to the principal use; and (iv) located on the same lot as the principal use.

On appeal, the appellant submitted that the application judge failed to consider the plain and ordinary meaning of the terms “naturally and normally incidental”.  Furthermore, the appellant submitted that it meant “customarily incidental” as this was consistent with requirements found in other bylaws. In any case, the appellant contended that both of the above-noted phrases indicated restrictive interpretations of an accessory use. Moreover, the appellant submitted that evidence of customary use was required to establish an accessory use and the application judge erred in concluding there was sufficient evidence.

Issue:

(1) Did the application judge err in concluding that the storage and grinding of wood is an accessory use of the respondent’s property?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge made no error. The court held that in every case the question is simply whether a particular use meets the definition considered in the context of the bylaw as a whole. Accordingly, there was no need to determine whether, or the extent to which, the language in the Bylaw differed from the language found in other bylaws. The court also held that the concept of accessory use is common to zoning bylaws and provides a measure of flexibility in using property. Therefore, while it was not appropriate to give the term an overly expansive interpretation, it was not necessary to give the term a restrictive interpretation as the appellant submitted. The court held that while in some cases evidence may be required to establish an accessory use, no objection to its admissibility was made before the application judge. Consequently, the court held that there was no basis to interfere with the application judge’s findings.

McKinnon v. McKinnon, 2018 ONCA 596

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

Counsel:

Sheila McKinnon, self-represented

Randall McKinnon, self-represented

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Facts:

The appellant S.M and the respondent R.M were married for 28 years. Their separation agreement provided for spousal support for S.M and child support for the youngest of their three children. Support was based on the respondent’s annual income of $91,300.

The respondent brought his first motion to change in 2010 seeking a reduction in child and spousal support based on a material change in circumstances. By order, McGee J. ordered monthly spousal support of $800 and child support of $807, after imputing annual income to the respondent of $91,225, and $10,000 to the appellant.

The respondent’s second motion to change resulted in a temporary order of Hughes J., on consent. The consent order was for monthly child support of $373 and spousal support of $345. By final order, Hughes J. varied her earlier order to provide for monthly child support of $479 and spousal support of $800.

The respondent initiated a third motion to change in seeking to terminate spousal and child support. Again, the respondent did not request an order terminating his life insurance obligation, however in March 2016 the appellant learned that the life insurance had been cancelled in 2015, and she brought a motion for contempt which was heard together with the respondent’s motion to change.

The trial judge made a final order that varied Hughes J.’s order of October 4, 2013 to terminate child support for the youngest child effective July 1, 2014, and to remove the requirement to provide life insurance to cover the support payable for that child. This aspect of his decision is not appealed.

The trial judge dismissed the appellant’s contempt motion. He referred to the requirement that the appellant prove that the respondent deliberately breached an order which was clear and unambiguous.

Issues: 

  1. Did the trial judge err in his spousal support award?
    • Did the trial judge err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward?
    • Did the trial judge err in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years?
    • Did the trial judge err in departing from the Spousal Support Advisory Guidelines (“SSAGs”) in fixing spousal support?
  2. Did the trial judge err in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations?

Held: Appeal allowed.

Reasons:

  1. The trial judge erred in his spousal support award.
    • The trial judge did not err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward. The court stated that in arriving at the figure of $35,000, the trial judge considered the relevant factors of the respondent’s qualifications, his age (60), his employment history, and his relatively good health, that “his best earning opportunity” was as an auto mechanic, and the income actually generated by his most recent period of employment as an auto mechanic.
    • The trial judge erred in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years. The court stated that the trial judge did not explain why he made an order terminating spousal support. The court concluded that even if the trial judge’s criticism of the appellant for refusing to voluntarily terminate child support was warranted, this could not reasonably justify the complete elimination of the respondent’s spousal support obligation for a period of two years.
    • The trial judge erred in departing from the SSAGs in fixing spousal support. The court found that the trial judge’s reasons suggest that he was guided by the parties’ mediated settlement. The court then stated that it was an error for the trial judge to use the parties’ negotiated settlement as a reference point for determining spousal support. The court stated that offers to settle are inadmissible in subsequent family law proceedings except when dealing with costs issues: particularly rule 18(8) of the Family Law Rules. The court found that the same applies to draft minutes of settlement tendered on another party but not signed, citing Parreira v Parreira, 2013 ONSC 6595. The court concluded that this rationale extends to a settlement that was agreed upon but could not be implemented.

Yes. The trial judge erred in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations. The court stated that civil contempt requires that the moving party establish beyond a reasonable doubt that (a) the order alleged to have been breached states clearly and unequivocally what should or should not be done; (b) the alleged contemnor had actual knowledge of the order’s terms; (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required. The court stated that a judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order, citing Carey v Laiken, [2015] 2 S.C.R. 79, at paras. 33-35, 37. In conclusion, the court found that the trial judge’s reasons on the contempt issue were conclusory. The court stated that the trial judge did not explain why he concluded that contempt had not been made out and, on a review of the evidence, the court found that there was no valid reason to refuse a contempt order.

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

[Pepall, van Rensburg and Paciocco JJ.A.]

Counsel:

Jerome R. Morse and David M. Trafford, for the appellant

Alanna P. Brogan, for the respondent

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Facts:

The appellant, Canadian Language Leadership Centre – CLLC Inc. (“CLLC”), sued its commercial landlord, the respondent, 20 Eglinton Commercial Centre Inc. (“20 Eglinton”), for damages arising from water leaks and from a non-functioning gas line. 20 Eglinton sought and obtained summary judgment dismissing CLLC’s action on the basis that it disclosed no genuine issue requiring a trial. CLLC sought, on appeal, to have the summary judgment set aside.

Issues:

(1) Did the motion judge err in finding that the factual disputes did not require a resolution by trial in this case?

(2) Did the motion judge err in finding that the damage claims linked to the gas leak were without merit?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. There were material facts contested between the parties that presented genuine issues requiring a trial. The disputed facts relevant to the application of the clause in question included when CLLC took possession of the premises, and when water leaks caused damage to CLLC. The parties disagreed about whether the premises were insurable in light of the water leaks. This was an important fact given 20 Eglinton’s concession that if the premises were not insurable when CLLC’s obligation to insure arose, then CLLC could not be bound by the clause.

(2) Yes. The motion judge failed to note the difference between the “Premises” and “Building” as defined in the contract, and disregarded Schedule “E” when applying the “as is” clause, committing extricable errors of law in interpreting the contract. Further, the motion judge failed to consider whether the disconnection of the gas line was at the fifth floor, and within the premises, or elsewhere, and arguably outside the premises.

Dujardin v Dujardin, 2018 ONCA 597

[Pepall, Brown and Trotter JJA]

Counsel:

JJ Neal, for the appellant

FE Leitch, QC, for the respondent

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Facts:

This appeal concerns the validity of two wills executed by the late JHD. JHD and his brother N jointly owned a farm property that had been in their family since 1958. In 2009, they executed mirror wills – personal and corporate – leaving their equal interests in the farm to each other as a way to minimize probate fees.

When JHD died, he was married to LJD. He did not provide for her in his 2009 wills. However, he designated her as the sole beneficiary of a Registered Retirement Income Fund (“RRIF”), which was worth about $123,000 at the time of his death. Having been left nothing in the wills, LJD challenged their validity. She contended that, as a result of chronic alcoholism, JHD lacked testamentary capacity. The trial judge dismissed LJD’s claim. She appealed.

Issues:

(1) Did the trial judge err in not allowing a doctor to provide expert testimony to support the appellant’s position that the testator lacked testamentary capacity?

(2) Did the trial judge err in finding that the testator knew and approved of the contents of his will?

(3) Did the trial judge err in finding that the testator had testamentary capacity?

(4) Did the trial judge err in finding that the wills were properly executed?

Holding: Appeal dismissed.

Reasoning:

(1) No. There was no error in the trial judge’s conclusion that the evidence was inadmissible on a cost/benefit analysis, in terms of balancing “relevance, reliability and necessity…against the counterweights of consumption of time, prejudice and confusion”: R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para 47. Dr. J never met the testator. His opinion was based on JHD’s hospital records following his 2007 heart attack, and other documents associated with this litigation (including examination for discovery transcripts). This case was fought and decided on the evidence of those who knew, interacted with, or treated JHD, not on the basis of experts who had never met or examined the man, and who could only offer tentative views on the ultimate issue the trial judge had to decide. Ultimately, the trial judge was best placed to assess the potential value of Dr. J’s evidence. Her conclusion is entitled to deference, especially given that it turned on her role as gatekeeper.

(2) No. On the evidence before the trial judge, there was a sound basis to satisfy the knowledge and approval requirements of testamentary capacity. The trial judge found that JHD was aware that the corporation, in which he held an equal share with N, owned the farmland on which they worked, and the farmhouse where they lived, for their entire adult lives. Understanding that LHD would not benefit under the will, JHD took steps to provide for LHD outside the will by setting up a RRIF.

(3) No. The evidence supports the trial judge’s overall conclusion that, while JHD had his issues with alcohol, and his health suffered because of it, he was of sound mind when he executed his 2009 wills. The trial judge commenced her analysis of testamentary capacity by setting out its constituent elements relying on Lata v. Rush, 2012 ONSC 4543, 219 ACWS (3d) 1008, at para. 32, and Royal Trust Corp. of Canada v. Saunders, [2006] OJ No 2291 (SC), at para. 58:

Testamentary capacity is established where the testator:

  1. understands the nature and effect of the will;
  2. recollects the nature and extent of his or her property;
  3. understands the extent of what he or she is giving under the will;
  4. remembers the people he or she might be expected to benefit under his or her will; and
  5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

The trial judge turned each of these elements into a question and answered all of them in the affirmative. She provided careful reasons. The evidence amply supported her conclusions.

(4) No. The trial judge properly addressed the formal requirements of the validity of the wills under section 4 of the Succession Law Reform Act, RSO 1990, c S 26 (“SLRA”). In accordance with this section, there was ample evidence from lawyer Mr. G, his law clerk NT, and N to support the conclusions that: (1) JHD signed his wills at the end of each document, (2) he signed them in the presence of two witnesses (Mr. G and Ms. T), and (3) the witnesses signed the wills in JHD’s presence. On the day that the wills were executed, Mr. G had no reason to believe that JHD had been drinking. Moreover, the brothers were fully aware of the assets at their disposal, which were principally the shares in the farming business. The trial judge found that N, as propounder of the wills, had the onus of proving compliance with the SLRA. At para 20, the trial judge said, “The formalities have been proven and, therefore, it is presumed JHD knew of and approved the contents of the wills.” There is no basis to disturb this finding, which rests on a very solid evidentiary foundation.

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

[Hourigan, Benotto and Fairburn JJ.A.]

Counsel:

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Andrea Bolieiro, for the Attorney General for Ontario

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

Facts:

This matter arose from an appeal against an order dismissing an application for habeas corpus in an immigration detention case. The appellants are citizens of China and the Dominican Republic. They originally entered Canada on temporary resident visas in 2012. Pursuant to s. 55 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellants were arrested by the Canadian Border Services Agency in 2014 and held in immigration detention. In February 2017, a third application to the Immigration Division to alter the terms of their release order was dismissed.

The appellants did not seek to have that decision judicially reviewed by the Federal Court. Instead, they pursued an application for a writ of habeas corpus in the Superior Court of Justice. Diamond J. dismissed the application for a writ of habeas corpus because he determined that there was no deprivation of liberty.

Issues:

(1) Does this court have jurisdiction to hear an appeal from a Superior Court order dismissing an application for habeas corpus?

(2) Does a finding of no deprivation of liberty trigger the application of s. 8(1) of the Habeas Corpus Act, R.S.O. 1990, c H.1 (HCA)?

Holding: The court has jurisdiction to hear the appeal. The parties should proceed to obtain the earliest date available for the hearing of the appeal.

Reasoning:

(1) Yes. Section 8(1) of the HCA only applies in circumstances where the person appealing was “confined or restrained of his or her liberty” and “brought before a judge upon a writ of habeas corpus ad subjiciendum” and “remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge”. Only where all of these statutory criteria are met, will the appellant be required to appeal the “decision or judgment of the judge to the Divisional Court”. In all other situations, the appeal will lie to the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act (CJA), as a final order of a judge of the Superior Court of Justice.

(2) No. The nature of Diamond J.’s dismissal order rested on his finding that the appellants were not deprived of liberty, the first prong of s. 8(1) is not met. The appellants are not “confined or restrained” of their liberty. Accordingly, there is no need to assess the remaining criteria in s. 8(1). The court concluded that the order appealed falls outside the scope of s. 8(1) of the HCA. Consequently, an appeal lies to the Court of Appeal under s. 6(1)(b) of the CJA.

Short Civil Decisions

Chinese Publications for Canadian Libraries Ltd v Markham (City), 2018 ONCA 586

[Doherty and Pepall, JJA and Gray J (ad hoc)]

Counsel:

Qiang Li Cao, for the plaintiff (appellant)

David G. Boghosian and Magdalena Fish, for the defendants (respondents)

Keywords: Costs, Partial Indemnity

Bertolli v Toronto (City), 2018 ONCA 595

[Simmons, Huscroft, and Miller JJA]

Counsel:

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Keywords: Civil Procedure, Amending Pleadings, Substituting Parties, Rules of Civil Procedure, Rule 26

Boodhoo v Manuel, 2018 ONCA 603

[Simmons, Huscroft, and Miller JJA]

Counsel:

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Keywords: Torts, Nuisance

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v Duncan, 2018 ONCA 574

[Lauwers, Pardu, and Miller, JJA]

Counsel:

AD, self-represented

Nader R. Hasan, appearing as duty counsel

Hannah Freeman, for the respondent

Keywords: Criminal Law, Making False Documents, Criminal Code, s 366(1), Possessing Identity Documents to Commit an Indictable Offence, Criminal Code, s. 402.2(1), Using, Trafficking, or Possessing Forged Documents, Criminal Code, s 368(1), Possession of Property Obtained by Crime, Criminal Code, s 354(1), Trafficking in Another Person’s Identity Information, Criminal Code, s 402.2(2), Sentencing, Conditional Sentence, Immigration Consequences, Criminal Code, s 718, R v McKenzie, 2017 ONCA 128, R v Pham, 2013 SCC 15

R v Figliola, 2018 ONCA 578

[Doherty, Epstein, and Pepall, JJA]

Counsel:

Michael Lacy and Deepa Negandhi, for the appellant

Rosella Cornaviera and Susan L. Reid, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Jury Instructions, R v PJB, 2012 ONCA 730, R v Morales (2006), 81 OR (3d) 161, R v Cairney, 2013 SCC 55, Evidence, Admissibility, Adverse Witnesses, Canada Evidence Act, s 9(1), Prior Inconsistent Statements, R v Soobrian (1994), 21 OR (3d) 603 (CA), R v Figliola, 2011 ONCA 457

R v Fogah, 2018 ONCA 564

[Feldman, Brown, and Fairburn, JJA]

Counsel:

Anil Kapoor and Dana Achtemichuk, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Attempted Murder with a Prohibited Firearm, Criminal Code, s 239(1)(a), Aggravated Assault by Wounding, Criminal Code, s 268(1), Discharging a Firearm with Intent to Wound, Criminal Code, s 244(1), W(D) Instructions, R v W(D), [1991] 1 SCR 742, Evidence, Credibility, Burden of Proof

R v Morillo, 2018 ONCA 582

[Paciocco JA (Motion Judge)]

Counsel:

LM, acting in person

Mark Wiffen, amicus curiae

Arend J. Wakeford, for the responding party

Keywords: Provincial Offences, Speeding, Highway Traffic Act, s 128(1), Leave to Appeal, Question of Law, Special Grounds, Provincial Offences Act, s 139(1), Vaughan (City) v Antorisa Investments Ltd., 2012 ONCA 586, Provincial Offences Act, s. 139(2), Self-Represented Litigants, Evidence, Prior Inconsistent Statements, W(D) Instructions, R v W(D), [1991] 1 SCR 742, Credibility, Statement of Principles on Self-Represented Litigants and Accused Persons

R v Murtaza, 2018 ONCA 579

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Marie Comiskey and Sébastien Lafrance, for the respondent

Keywords: Criminal Law, Importation, Controlled Drugs and Substances Act, s 6(1), Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s 5(2), Possession of Proceeds of Crime, Criminal Code, s 354(1), Jury Instructions, Expert Evidence, Cross-Examination

McFarlane (Re), 2018 ONCA 583

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anita Szigeti, for the appellant

Elena Middelkamp, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Ontario Review Board, Criminal Code, s 672.54, NCR, Conditional Discharge, Form 1, Procedural Fairness, Conway (Re), 2016 ONCA 918, Reasonable Apprehension of Bias, Tolias (Re), 2016 ONCA 463

R v Dacosta, 2018 ONCA 588

[Simmons, Huscroft, and Miller, JJA]

Counsel:

Mark Halfyard, for the appellant

Christine Tier, for the respondent

Keywords: Criminal Law, Assault, Criminal Code, s 265(1), Evidence, Admissibility, Materiality, Hearsay, Opinion

R v Gardner, 2018 ONCA 584

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Jennifer Epstein, for the appellant

Karen Seeley, for the respondent

Keywords: Criminal Law, Summary Conviction, Operation While Impaired, Criminal Code, s 253(1)(b), Standard of Review, Correctness, Housen v Nikolaisen, 2002 SCC 33, Highway Traffic Act, s 48(1), Investigative Detention, Charter of Rights and Freedoms, s 8, s 9, s 10(a), s 10(b), R v Simpson (1993), 12 OR (3d) 182 (CA), R v Roberts, 2018 ONCA 411, R v Orbanski; R v Elias, 2005 SCC 37

R v Garcia, 2018 ONCA 580

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

David M. Humphrey and Naomi M. Lutes, for the appellant

Alexandro Alvaro, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Criminal Code, s 271, Fresh Evidence, Criminal Code, s 683(1), Palmer v The Queen, [1980] 1 SCR 759, R v Truscott, 2007 ONCA 575, Character Evidence

R v Brooks, 2018 ONCA 587

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Dirk Derstine, for the appellant

David Finley, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Evidence, Hearsay, Co-conspirators Exception, R v Tsekouras, 2017 ONCA 290, Jury Instructions, R v Mapara, 2005 SCC 23, R v Simpson, 2007 ONCA 793

R v Burke, 2018 ONCA 594

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Lorna Bolton for the Crown, appellant

Brian Eberdt, for the respondent

Keywords: Criminal Law, Publication Ban, Extradition, Canadian Charter of Rights and Freedoms, s 11(b), R v Cody, 2017 SCC 31, R v Jordan, 2016 SCC 27, Defence Delay, R v MacIntosh, 2011 NSCA 111 aff’d, 2013 SCC 23

R v Imona-Russell, 2018 ONCA 590

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Christopher Hicks and Kristin Bailey, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Sexual Assault, Criminal Code, s 231(5)(b), Predicate Offence, Fraudulent Consent, R v Pare, [1987] 2 SCR 618, Constructive First Degree Murder, Evidence, Cross-Examination, Post-Offence Conduct

R v Sidhu, 2018 ONCA 591

[Watt, Pardu, and Roberts, JJA]

Counsel:

Jeff Marshman, for the appellant

Kathleen Farrell, for the respondent

Keywords: Criminal Law, Sentencing, Global Sentence, Pre-Sentence Custody Credit

R v Zekarias, 2018 ONCA 585

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Michael Dineen, for the appellant

Karen Papadopoulos, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Evidence, Identification, Jury Instructions, Post-Offence Conduct, R v White, [1998] 2 SCR 72, Concoction, R v O’Connor (2002), 62 OR (3s) 263 (CA), Criminal Code, s 686(1)(b)(iii)

R v Crocker, 2018 ONCA 600

[Watt, Pardu, and Roberts, JJA]

Counsel:

John Fennel, for the appellant

Ghazala Zaman, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s. 5(1), Evidence, Admissibility, Prior Consistent Statements, Credibility, Notorious Facts, Sentencing, R v Gladue, [1999] 1 SCR 688, Gladue Principles

R v Dobson, 2018 ONCA 589

[Doherty, Pepall, and Nordheimer, JJA]

Counsel:

James C. Fleming, for the appellant

Eric H. Siebenmorgen and Amy Alyea, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, NCR, Criminal Code, s 16(1), Statutory Interpretation, R v Oommen, [1994] 2 SCR 507, R v Chaulk, [1990] 3 SCR 1303, R v Campione, 2015 ONCA 67,  Criminal Code, s 8(3), R v Gagnon (1993), 84 CCC (3d) 143

Shepherd (Re), 2018 ONCA 593

[Lauwers, Miller, and Fairburn, JJA]

Counsel:

Ken J. Berger, for the appellant

Alexandrea Hrybinsky, for the respondent Attorney General of Ontario

Julia Zambrogna Ballès, for the respondent Southwest Centre for Forensic Mental Health Care

Keywords: Criminal Law, NCR, Detention Orders, Public Safety, Fresh Evidence, Criminal Code, s 672.81, Chaudry (Re), 2015 ONCA 317, Murray (Re), 2017 ONCA 731

R v MC, 2018 ONCA 606

[Strathy CJO (Motion Judge)]

Counsel:

Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Keywords: Criminal Law, Publication Ban, Evidence, Criminal Record, R v Corbett, [1988] 1 SCR 670, R v Gladue, [1999] 1 SCR 688, Gladue Principles, Interveners, R v Seaboyer (1986), 50 CR (3d) 395 (Ont CA), Practice Direction Concerning Criminal Appeals

R v Omar, 2018 ONCA 599

[Feldman and Benotto, JJA and Sachs J (ad hoc)]

Counsel:

Dirk Derstine, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Mr. Big, Contempt of Court, R v Glasner (1994), 19 OR (3d) 739 (CA), Sentencing, Criminal Code, s 719(3), Pre-Trial Custody Acquittal, R v Grant, [1991] 3 SCR 139, Deference,  R v Lacasse, 2015 SCC 64

R v Reyes, 2018 ONCA 607

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Althea Reyes, acting in person

Andrew Hotke, for the respondent

Keywords: Criminal Law, Bench Warrant, Criminal Code, s 800(2), Summary Conviction, Evidence, Relevance, R v Sihota, 2009 ONCA 770, Criminal Appeal Rules, Perfecting Appeals

R v Shulz, 2018 ONCA 598

 [Watt, Brown, and Huscroft, JJA]

Counsel:

Martin Schulz, acting in person

Grace Choi, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Criminal Code, s 163.1(4), Evidence, Admissibility, Solicitor-Client Privilege, Canadian Charter of Rights and Freedoms, s 8, Fresh Evidence, R v Manasseri, 2016 ONCA 704, Canadian Charter of Rights and Freedoms, s 24(2), R v Cole, 2012 SCC 53, Grant Factors, Sentencing, Probation, Prohibition Orders, Criminal Code, s 161(1)(d), R v Brar, 2016 ONCA 724, R v Perron, 2015 QCCA 601

Rogers (Re), 2018 ONCA 602

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

R. Brown, for the appellant, Leonard A. Rogers

C. Elmasry, for the respondent Attorney General of Ontario

J. Blackburn, for the respondent the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, NCR, Detention Orders, Public Safety

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

COURT OF APPEAL SUMMARIES (JUNE 18 – 22)

Good evening.

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

In Canada Life Insurance Company of Canada v Canada (Attorney General), Canada Life and some of its affiliates carried out a series of purely tax-driven transactions. The purpose of the Transactions was to realize a $168 million tax loss (without having suffered an economic loss in that amount) to offset unrealized foreign exchange gains accrued in the same taxation year. This would avoid paying millions of dollars in tax to CRA. The CRA disallowed the claimed loss in a reassessment. Asserting that it had proceeded on the basis of erroneous advice from its tax advisor, Canada Life applied to the Superior Court for an order setting aside the Transactions and replacing them with other steps that would permit it to enjoy the intended tax benefit, retroactive to the date of the original Transaction. The application was opposed by the CRA, represented by the Attorney General. The application judge, Pattillo J., granted the order requested by Canada Life. The Court of Appeal allowed CRA’s appeal and dismissed Canada Life’s cross-appeal for alternative relief. The Court followed the Supreme Court’s decision in Fairmont Hotels, which restated the test for rectification, and this situation did not meet that test, as there was no “agreement” to be rectified. The Court dismissed the alternative relief sought by Canada Life, stating that it will not exercise inherent or equitable jurisdiction to undo tax-driven transactions just because they do not yield the desired tax consequences. It was noted that Canada Life had alternative remedies available, including a tax appeal and possible E&O claim against its tax advisers.

In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), a father sought access to the files of the Children’s Lawyer in relation to its representation of his children in a custody and access case. He sought such files from the Attorney General under Freedom of Information and Protection and Privacy Act. The Privacy Commissioner ordered the files, which were subject to solicitor-client and litigation privilege, disclosed to the father. The Divisional Court had upheld the Privacy Commissioner’s decision, having applied a reasonableness standard of review. The Court of Appeal, applying a correctness standard of review, set aside the Privacy Commissioner’s decision, primarily on the basis that the records were not within the custody of the Attorney General and were therefore not compellable. While the Children’s Lawyer is a branch of the office of the Attorney General, it operates independently of the AG, does not take instructions from, or report to, the AG, and does not provide access to its records to the AG. To provide access to the records would seriously undermine the role of the Children’s Lawyer as advocate for the rights of children.

In Ontario (Finance) v Traders General Insurance (Aviva Traders), the Motor Vehicle Accident Claims Fund paid out a claim to MVA victims and then pursued the insurer of the owner of the vehicle for reimbursement. The insurer had denied coverage, claiming it had validly cancelled the policy for non-payment of premium. The Court of Appeal upheld the trial judge’s decision that had found that the policy had not been cancelled in accordance with the applicable Statutory Condition. It also upheld the trial judge’s decision declining to find that the Fund’s claim was out of time, permitting the Fund to sue by way of unjust enrichment rather than pursuant to the Insurance Act, which provided for a one-year limitation period.

Other topics covered this week included the breach of an agreement of purchase and sale of land,  whether a termination clause in an employment contract violated the Employment Standards Act, and the appeal route when seeking to review an order of a single judge of the Divisional Court (to a panel of that court, not to the Court of Appeal).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

Kennelly v Hashemi, 2018 ONCA 558

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Breach, Deposits, Civil Procedure, Adjournments, Self-Represented Litigants

Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559

Keywords: Administrative Law, Privacy Law, Freedom of Information, Solicitor-Client Privilege, Litigation Privilege, Standard of Review, Issue of Central Importance to Legal System, Correctness, Freedom of Information and Protection of Privacy Act, RSO 1990, c F 31, Family Law, Custody and Access, Children’s Lawyer, Courts of Justice Act, RSO 1990, c C 43, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Dunsmuir v. New Brunswick, 2008 SCC 9

Canada Life Insurance Company of Canada v Canada (Attorney General), 2018 ONCA 562

Keywords: Corporations, Taxation, Tax Planning, Equitable Remedies, Rectification, Rescission, Nunc Pro Tunc, Inherent Jurisdiction, Fairmont Hotels Inc. v Canada (Attorney General), 2016 SCC 56, Canada (Attorney General) v Juliar (2000), 136 OAC 301 (CA), leave to appeal ref’d, [2000] S.C.C.A. No. 621, Jean Coutu Group (PJC) Inc. v Canada (Attorney General), 2016 SCC 55

Ontario (Finance) v Traders General Insurance (Aviva Traders), 2018 ONCA 565

Keywords: Contracts, Automobile Insurance, Termination, Notice, Restitution, Unjust Enrichment, Civil Procedure, Limitation Periods, Statutory Interpretation, Crown Immunity, Evidence, Similar Fact Evidence, Insurance Act, RSO 1990, c I8, ss. 1, 233(3), 258(1), 258(2), Statutory Condition 11(1), Motor Vehicle Accident Claims Act, RSO 1990, c M41, Motor Vehicle Accident Claims Fund, O. Reg. 777/93, Interpretation Act, RSO 1990, c I11, Legislation Act, 2006, SO 2006, c21

Amberber v IBM Canada Ltd, 2018 ONCA 571

Keywords: Employment Law, Contracts of Employment, Interpretation, Termination Without Cause, Statutory Notice Period, Reasonable Notice, Employment Standards Act

Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576

Keywords: Administrative Law, Judicial Review, Motions, Orders, Setting Aside, Appeals, Jurisdiction, Courts of Justice Act, ss. 21(3), 21(5), Judicial Review Procedure Act, ss. 6(1)(a), 6(2)

For criminal and regulatory/review board decisions click here

Civil Decisions

Kennelly v Hashemi, 2018 ONCA 558

[Hoy A.C.J.O., Rouleau and Benotto JJ.A.]

Counsel:

HH, self-represented

Scott W Beattie, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Breach, Deposits, Civil Procedure, Adjournments, Self-Represented Litigants

Facts:

This is an appeal from the judgment of the application judge declaring that the appellant, HH, was in breach of an agreement of purchase and sale of land dated January 26, 2017 (the “Agreement”) and that the respondent, JE, was entitled to the return of the deposit paid under the Agreement.

The Agreement provided that the closing date was February 14, 2017 (the “Original Closing Date”) but that the seller had the option to delay the closing up to two weeks. The seller exercised this option, as she was not in a position to close on the Original Closing Date. The closing date was thus revised to February 23, 2017. However, the parties agreed to further extend the closing time to 2:30 p.m. on February 24, 2017 (the “Closing Time”) after the appellant was assigned the seller’s rights under the Agreement. Nevertheless, the transaction did not close at the Closing Time.

On the day before the appeal was heard, the appellant advised that he would seek a 60-day adjournment of the appeal to obtain transcripts and hire counsel. He renewed this request at the opening of the hearing. However, the respondents opposed his request for an adjournment.

Issues:

(1) Was the appellant entitled to an adjournment?

(2) Did the application judge err in finding that the appellant breached the Agreement?

Holding: Appeal dismissed.

Reasoning:

(1) No. After hearing the parties’ submissions, the court declined to grant the adjournment sought. The court found that the appellant was aware since at least March 14, 2018, that his counsel would seek to be removed from the record if he were not paid forthwith. Moreover, the appeal was originally scheduled to be heard on April 25, 2018. However, before removing himself from the record, the appellant’s counsel secured an adjournment to provide the appellant with time to retain new counsel or prepare to be self-represented. Nevertheless, there was no evidence provided that he took any steps to retain counsel.

(2) No. The court found that while the Agreement gave the seller the option to delay the closing for up to two weeks beyond the Original Closing Date, it did not give the seller the right to extend the closing a number of times within that period at the seller’s discretion. Accordingly, the Agreement provided that time was of the essence and it was clear that the appellant was not ready, willing or able to close at the Closing Time. Moreover, the appellant did not attempt to further extend the closing date before the Closing Time. The court therefore held that the appellant was not entitled to unilaterally extend the closing date under the Agreement after he failed to complete the transaction at the Closing Time. Consequently, the respondents were entitled to the return of their deposit as the respondents ceased to be obligated to complete the transaction.
Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559

[Rouleau, Benotto and Roberts JJ A]

Counsel:

I Ross and S Scott, for the appellant, Children’s Lawyer for Ontario

S Blake and S Kromkamp, for the respondent, Attorney General for Ontario

L Rothstein and J Martin, for the respondent, Information and Privacy Commissioner of Ontario

J Mark and M Birdsell, for the intervener, Justice for Children and Youth

Keywords: Administrative Law, Privacy Law, Freedom of Information, Solicitor-Client Privilege, Litigation Privilege, Standard of Review, Issue of Central Importance to Legal System, Correctness, Freedom of Information and Protection of Privacy Act, RSO 1990, c F 31, Family Law, Custody and Access, Children’s Lawyer, Courts of Justice Act, RSO 1990, c C 43, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Dunsmuir v. New Brunswick, 2008 SCC 9

Facts:

Two children were the subject of a custody and access dispute between their parents. In 2008, when the children were nine and eleven years old, McCartney J appointed the Children’s Lawyer. The Children’s Lawyer determined that she would provide legal representation to the children pursuant to s. 89(3.1) of the Courts of Justice Act, RSO 1990, c C 43 (the “CJA”).

In May, 2010 Warkentin J made a final order terminating the father’s access to the children as well as all forms of verbal communication. On January 23, 2014, the father requested access to information from the Ministry of Attorney General (“MAG”) pursuant to the Freedom of Information and Protection of Privacy Act, RSO 1990, c F 31 (“FIPPA “). He sought records in the Children’s Lawyer’s litigation files, including both privileged and non-privileged reports, notes, and information. MAG advised the father that it does not have custody or control of the records and FIPPA  does not apply because the office of the Children’s Lawyer represents the independent legal interests of children and does not act on behalf of MAG or the Crown.

The father appealed MAG’s decision to the Information and Privacy Commissioner of Ontario (the “IPC”). The Adjudicator concluded that the records at issue are in MAG’s custody or control. She identified two “overriding considerations” leading to this conclusion: “the undisputed fact that the [Children’s Lawyer] is a branch of [MAG]”; and that “the records at issue were generated in the course of the [Children’s Lawyer] fulfilling its core mandate.” The Adjudicator ordered MAG to issue an access decision to the father, which could be made by the Children’s Lawyer.

The Children’s Lawyer, supported by MAG, applied to the Divisional Court for a judicial review of the Adjudicator’s order. The Divisional Court identified reasonableness as the appropriate standard of review. The Divisional Court concluded that the Adjudicator’s decision was reasonable and consistent with the text and scheme of FIPPA.

Issues:

(1) Did the Divisional Court identify the appropriate standard of review?

(2) Did the Divisional Court err in upholding the Adjudicator’s determination that the Children’s Lawyer’s records are in MAG’s custody or control?

Holding: Appeal allowed.

Reasoning:

(1) No. The appropriate standard of review is correctness. First, the cases of City of Ottawa v Ontario, 2010 ONSC 6835 (“City of Ottawa”) and Ontario (Ministry of the Attorney General) v Ontario (Information and Privacy Commissioner), 2011 ONSC 172, cited by the Children’s Lawyer and MAG applied correctness to judicial reviews of the IPC’s interpretation of “in the custody or under the control”.

Second, even if these decisions have not satisfactorily determined the standard of review, the nature of the question at issue attracts correctness under the second stage of the standard of review analysis. The unique role of the Children’s Lawyer is fundamental to the proper functioning of the legal system. It is thus reviewable on the standard of correctness as per Dunsmuir, at para 60:

[C]ourts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”. Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. [Citation omitted.]

Matters fundamental to the functioning of our legal system remain subject to a correctness standard of review post-Dunsmuir. In Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, Cote J emphasized that that the “importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship that has a central importance to the legal system as a whole”.

(2) Yes. The Children’s Lawyer is not a branch of MAG. Accordingly, the records are not under MAG’s custody or control and are therefore not compellable under FIPPA.

The Children’s Lawyer is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court. While the Children’s Lawyer is administratively structured under and has a funding relationship with MAG, when representing children, the Children’s Lawyer operates separate and apart from MAG, does not take direction or obtain input from MAG, does not provide MAG with access to records relating to children and MAG does not have authority to request them.

Since the Children’s Lawyer is not part of MAG, an analysis is required to determine whether the records are under MAG’s custody or control. In Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25(“Minister of National Defence”), the Supreme Court articulated a two-part test for whether records held by bodies that are not part of an institution are under the institution’s control and thus subject to freedom of information requests. Once the relevant test is applied to the child’s records with the Children’s Lawyer, it is clear that MAG does not have control of the records:

1) Do the contents of the requested records relate to a departmental matter?

The answer must be no. MAG plays no part in the records of the Children’s Lawyer. The records do not relate to a departmental matter; MAG has nothing to do with the Children’s Lawyer’s work.

2) Could MAG reasonably expect to obtain a copy of the records upon request?

Again the answer is no. Neither MAG officials nor the Attorney General could reasonably expect to obtain a copy of the requested records.

The Divisional Court in City of Ottawa cited, with approval, ten questions former Commissioner Sidney Linden outlined in IPC Order 120 to be asked when determining whether an institution has custody or control of records. Although the Adjudicator referred to some of these questions, she failed to situate her analysis within the context of the work of the Children’s Lawyer. The Court addressed these ten questions and provided answers based on the context of this particular case:

1) Was the record created by an officer or employee of the institution? 

The records were not created for or on behalf of MAG. The role of the Children’s Lawyer precludes it from acting in the interest of MAG or the Crown in these matters.

2) What use did the creator intend to make of the record?

The records were intended solely for use in litigation on behalf of child clients in custody and access proceedings as ordered by the court. The records were not created for MAG’s use or on behalf of the Crown.

3) Does the institution have possession of the record?

MAG does not have possession of the records. They are exclusively held by the Children’s Lawyer in her legal file.

4) If the institution does not have possession of the record, is it being held by an officer or employee of the institution for the purposes of his or her duties as an officer or employee?

The records are being held by the Children’s Lawyer for the purposes of her independent statutory, legal and fiduciary duties to children, and not as an agent of MAG.

5) Does the institution have a right to possession of the record?  

MAG has no statutory or other right to possess the records. Allowing MAG to have access to, or possession of, the records would violate the duty of the Children’s Lawyer to maintain the confidentiality of her child clients’ records.

6) Does the content of the record relate to the institution’s mandate and functions?

The contents do not relate to MAG’s mandate or functions. The records relate to litigation where the Children’s Lawyer is acting, at the request of the court, independently from MAG in representing child clients who are subjects of custody and access proceedings. These functions are statutorily conferred exclusively on the Children’s Lawyer, and not on MAG or the Attorney General.

7) Does the institution have the authority to regulate the record’s use?

The regulation of the use of these records is within the exclusive authority of the Children’s Lawyer in accordance with her professional obligations to her child clients.

8) To what extent has the record been relied upon by the institution?

MAG has never relied on, or had possession of, these records. The records have only been relied on by the Children’s Lawyer in order to represent the interests of its child clients in litigation.

9) How closely has the record been integrated with the other records held by the institution?

These records have never been integrated with MAG records. The files of the Children’s Lawyer related to legal services provided to children are kept separately from any MAG records. No official or employee outside of the Children’s Lawyer has access to these records.

10) Does the institution have the authority to dispose of the record?

The records are maintained and disposed of in accordance with a records policy established by the Children’s Lawyer in 2006. The Children’s Lawyer does not obtain MAG approval or direction related to its child client records or on its internal policies related to these files.

The Adjudicator’s decision to provide a third party with access to a child’s records would seriously undermine the Children’s Lawyer in her role as advocate for the child. It would also sabotage the child’s heightened privacy rights, eviscerate the work of the Children’s Lawyer and seriously limit the court’s ability to fully address the child’s best interests.

Canada Life Insurance Company of Canada v Canada (Attorney General), 2018 ONCA 562

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

Counsel:

Alexandra Humphrey, Alisa Apostle and Stephanie Hodge, for the appellant/respondent by cross-appeal

Kent Thomson, Stephen Ruby and Sarah Weingarten, for the respondent in appeal/appellant by cross-appeal

Keywords: Corporations, Taxation, Tax Planning, Equitable Remedies, Rectification, Rescission, Nunc Pro Tunc, Inherent Jurisdiction, Fairmont Hotels Inc. v Canada (Attorney General), 2016 SCC 56, Canada (Attorney General) v Juliar (2000), 136 OAC 301 (CA), leave to appeal ref’d, [2000] S.C.C.A. No. 621, Jean Coutu Group (PJC) Inc. v Canada (Attorney General), 2016 SCC 55

Facts:

The Canada Life Insurance Company of Canada (“CLICC”) and certain of its affiliates carried out a series of transactions and events (the “Transaction”) in December 2007. The purpose of the Transaction was to realize a tax loss to offset unrealized foreign exchange gains accrued in the same taxation year. In 2012, the Canada Revenue Agency (“CRA”) disallowed the claimed loss in a reassessment of CLICC’s taxes for 2007. Asserting that it had proceeded on the basis of erroneous advice from its tax advisor, CLICC applied to the Superior Court for an order setting aside the Transaction and replacing it with other steps, retroactive to the date of the original Transaction.

The application was opposed by the CRA, represented by the Attorney General of Canada.

The application judge, Pattillo J., made the order requested by CLICC. Relying on the court’s decisions in Canada (Attorney General) v Juliar (2000), 136 OAC 301 (CA) and Fairmont Hotels Inc. v. Canada (Attorney General), 2016 SCC 56 (“Fairmont Hotels”), the application judge ordered “rectification” of the Transaction, nunc pro tunc.

The Attorney General appealed the decision of Pattillo J. The parties agreed to hold the appeal in abeyance until the Supreme Court released its decision in Fairmont Hotels. The parties now agree that the application judge erred in granting rectification as the recent decision in Fairmont Hotels changed the law on which Pattillo J. relied and restricted the scope of this equitable remedy to the correction of written agreements.

In its cross-appeal, CLICC sought to substitute for the order, made in the court below, a new order that would permit it to achieve the intended tax purpose of the Transaction. CLICC relied on the court’s inherent jurisdiction in equity and equitable rescission, as alternative bases for the relief sought. The cross-appeal was opposed by the Attorney General.

At the heart of the cross-appeal was whether the remedy sought by CLICC is available in the exercise of the court’s jurisdiction in equity to relieve against mistakes in the light of the Supreme Court’s decision in Fairmont Hotels.

Issues:

(1) Is the relief CLICC seeks available under the “inherent jurisdiction of the court” to relieve a party from the effects of a mistake?

(2) Can the order be made through the equitable remedy of rescission?

(3) Should equitable jurisdiction be invoked?

Holding:

Appeal allowed. Cross- appeal dismissed.

Reasons:

(1) No. The relief CLICC sought is not available under the “inherent jurisdiction of the court” to relieve a party from the effects of a mistake.

CLICC asked the court to retroactively alter a corporate transaction that was entered into to achieve a certain tax result and where the result has not been achieved because of a mistake in how the transaction was structured.

The court concluded that CLICC is not entitled to the remedy it is seeking on its cross-appeal, through the exercise of any inherent jurisdiction the court may have to relieve against mistakes. What CLICC is seeking is the same type of intervention, by a different name, that the Supreme Court considered in Fairmont Hotels and Jean Coutu Group (PJC) Inc. v Canada (Attorney General), 2016 SCC 55 (“Jean Coutu”), a companion appeal released on the same day as Fairmont Hotels. The Supreme Court concluded that it is not possible to “rectify” a corporate transaction to retroactively avoid adverse tax consequences. In the court’s view, the remedy CLICC sought, whether characterized as rectification or some other equitable remedy, is precluded by the reasoning in Fairmont Hotels and Jean Coutu.

CLICC relied on 771225 Ontario Inc. v Bramco Holdings Co. (1995), 21 OR (3d) 739 (CA) 47 (“Bramco”) as authority for the court’s general jurisdiction in equity to relieve against mistakes, as separate and independent and having a different meaning from “rectification”, and said that the reasons for rejecting an equitable remedy in Bramco do not apply to its case. The Attorney General argued that Bramco, consistent with Fairmont Hotels, precludes resort to any such equitable jurisdiction to retroactively achieve a tax objective, and in any event would preclude such a remedy where, as here, the applicant has an adequate alternative legal remedy (CLICC has filed a notice of objection to appeal its tax assessment, under s. 23 of the Financial Administration Act, it can apply to the Minister for a remission of tax, and it has a potential legal action against its professional advisor).

The court stated that Fairmont Hotels and Jean Coutu effectively preclude the use of the court’s equitable jurisdiction to refashion a corporate transaction to achieve a specific tax objective, whether or not that was the original intention of the parties to the transaction. The fact that CLICC entered into the Transaction to achieve a particular tax outcome does not remove it from the scope of impermissible retroactive tax planning, which is precluded by these cases.

Whether the court is asked to “rectify” an agreement or to unwind transactions and replace them with other steps because of an error leading to an unplanned tax liability, the objective is to reverse the factual basis of the tax assessment, in order to defeat the tax liability that resulted from the original transaction. As both Fairmont Hotels and Jean Coutu emphasize, tax consequences flow from the transaction the taxpayer undertook, and not from its motivations or objectives. The court cannot substitute one series of transactions for another to avoid an unintended tax result. The relief CLICC seeks is simply rectification by another name.

(2) No. The order cannot be made through the equitable remedy of rescission.

The purpose of rescission is to eliminate a benefit one party has received due to a mistake made by one or both parties to a contract. This is accomplished by cancelling and unwinding the contract and by issuing whatever ancillary orders are necessary to restore the parties to their original rights. Here, however, CLICC sought to have only part of the Transaction rescinded, in order to generate a particular tax outcome. It did not ask the court to rescind the entire Transaction, and to restore it and its affiliates to their original rights, because to do so would not achieve its objective of triggering a loss to set off against its foreign exchange gains.

Accordingly, the court’s decision in Miller Paving Limited v B. Gottardo Construction Ltd., 2007 ONCA 422, governs. It requires the party seeking equitable rescission of a contract to establish that (a) the parties were under a common misapprehension as to the facts or their respective rights; (b) the misapprehension was fundamental; (c) the party seeking to set the contract aside was not itself at fault; and (d) one party will be unjustly enriched at the expense of the other if equitable relief is not granted (at paras. 23, 24, 26 and 31). None of these requirements apply in the present case, nor does CLICC attempt to bring itself within the requirements for equitable rescission of a contract.

(3) No. Equitable jurisdiction should not be invoked.

First, CLICC had adequate alternative remedies to address the adverse tax consequences resulting from the mistake it relied on. As already noted, CLICC had filed a notice of objection to appeal its tax assessment, under s. 23 of the Financial Administration Act. Hence, it could apply to the Minister for a remission of tax, and it had a resultant potential legal action against its professional advisor.

Second, CLICC argued that the requested remedy is required to avoid its own unintended loss, and unjust enrichment to CRA. The court agreed with the Attorney General that, when examined closely, there is nothing that would warrant the intervention of equity as a result of the Transaction carried out by CLICC and its affiliates. CLICC sought to claim a $168 million tax loss without having to trigger a corresponding economic loss. Instead, the Transaction was structured in such a way as to attract the rollover provisions of the Income Tax Act, so that the intended goal was not achieved. This was an error made by CLICC as to the effect of the law. The court stated that there is nothing inequitable about CLICC being taxed on “what it did” rather than on what it intended to achieve. Further, the unjust enrichment that CLICC relied on, including in its amended notice of cross-appeal and argument, is the alleged “windfall gain” to the CRA, which the Supreme Court in Fairmont Hotels explicitly rejected as the basis for equitable relief in such circumstances.

Ontario (Finance) v Traders General Insurance (Aviva Traders), 2018 ONCA 565

[Feldman, MacPherson, and Huscroft, JJA]

Counsel:
Eric K. Grossman for the appellant

Harold W. Sterling and Todd M. Wasserman for the respondent

Keywords: Contracts, Automobile Insurance, Termination, Notice, Restitution, Unjust Enrichment, Civil Procedure, Limitation Periods, Statutory Interpretation, Crown Immunity, Evidence, Similar Fact Evidence, Insurance Act, RSO 1990, c I8, ss. 1, 233(3), 258(1), 258(2), Statutory Condition 11(1), Motor Vehicle Accident Claims Act, RSO 1990, c M41, Motor Vehicle Accident Claims Fund, O. Reg. 777/93, Interpretation Act, RSO 1990, c I11, Legislation Act, 2006, SO 2006, c21

Facts:

In 1999, AL purchased automobile insurance from GAN Canada Insurance (“GAN”). However, AL’s husband PL was the actual registered owner of the vehicle. In 2001, after being unable to withdraw insurance premiums, GAN sent AL a notice of termination of insurance coverage. GAN later terminated the insurance policy and sent AL a refund cheque which she cashed. AL did not inform PL of the cancellation. A few weeks after the policy was cancelled, the friend of PL’s son was operating the vehicle when an accident occurred, killing the driver and injuring the passenger, DB. DB had no automobile insurance or access to family coverage. DB applied to the Motor Vehicle Accident Claims Fund (the “Fund”) for statutory benefits which he later received. He also sued PL but GAN did not defend the action on behalf of PL because it had cancelled the owner’s policy prior to the accident. PL settled the action with DB and DB assigned the judgment to the Respondent Fund pursuant to the Motor Vehicle Accident Claims Act. The Fund paid the amount of the judgment to DB, also pursuant to the Motor Vehicle Accident Claims Act, and began to obtain reimbursement from PL. The Fund also sued GAN for restitution based on unjust enrichment, claiming the insurance policy had not been effectively terminated. GAN was later acquired by the appellant. At trial, the judge found that the notice of termination was not sent to the insured who was, in law, PL and thus the policy remained in force. The trial judge also found the Fund to be entitled to bring a claim for restitution, eliminating a limitation period issue.

Issues:

(1) Did the trial judge err in law by finding that the notice of termination was ineffective because it was not sent to the actual owner of the insured vehicle, when it was sent to the “named insured”?

(2) Did the trial judge err by refusing to admit the proposed similar fact evidence?

(3) Was the Fund required to bring its action under s. 258(1) of the Insurance Act, and if so, is the action-statute barred because it was brought years after the expiry of the one-year limitation period in s. 258(2)?

(4) Did the trial judge err in law by granting the Fund judgment based on unjust enrichment, rather than requiring it to bring its claim under s. 258(1) of the Insurance Act?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant’s theory was that AL misrepresented herself as the owner of the insured vehicle and that it was entitled to rely on her misrepresentations. That theory failed because the trial judge found that AL made no such misrepresentation, and that the GAN representative never asked who the owner of the vehicle was. Nor did GAN obtain a written application for insurance, which would have asked AL to identify the registered owner of the vehicle to be insured. Section 233(3) of the Insurance Act prohibits the use of statements by an applicant in defense unless the statement is in a signed, written application. As there was no written application, there was no misrepresentation. Further, O. Reg. 777/93 defines “insured” as “a person insured by this contract, whether named or not.” Section 1 of the Insurance Act mandates the owner of the vehicle to be deemed to be the insured. Statutory condition 11(1) stipulates that cancellation of a policy requires giving notice to the insured. As the notice of termination was sent to AL and not PL, the notice did not effectively terminate the automobile insurance policy. The judge made no error.

(2) No. In support of its allegation of misrepresentation, the appellant attempted to lead evidence that, after the accident, other insurers had issued policies to AL as the named insured for vehicles owned by PL. The appellant sought to use it to ask the court to infer that, because AL had been named as insured in subsequent owner’s policies, she must have misrepresented to those insurers that she was the owner of the vehicles. The trial judge found the proposed evidence to be minimally relevant to, and not probative of, the factual issue at hand. There was no basis for interfering with the trial judge’s exercise of discretion.

(3) No. The appellant argued that because the Fund had obtained an assignment of DB’s judgment against PL, it was obliged to bring its action against the appellant under s. 258(1) of the Insurance Act. At the time of the accident, s. 258(1) was governed by a one-year limitation period and the appellant argued that, due to this, the Fund was statute-barred from bringing its action. Both the Interpretation Act, RSO 1990, c I11, and its successor, the Legislation Act, 2006, SO 2006, c21, codify the common law principle of Crown immunity, barring specific language to the contrary. There was no such express provision in the Insurance Act that bound the Crown in 2003, when DB obtained judgment against PL and assigned that judgment to the Fund, or in 2008, when this action was commenced.  Nor was the Crown bound by necessary implication. The Crown was not precluded from bringing its action under s. 258(1) of the Insurance Act and had it done so, it would have been bound by the limitation period. Instead, the Fund brought its claim as an action for unjust enrichment, as it was entitled to do.

(4) No. The trial judge found that the appellant was unjustly enriched because its policy was in force at the time. The appellant argues that the trial judge was not entitled to exercise discretion to award a restitutionary remedy when a statutory remedy was available. The trial judge, however, was not exercising discretion to award an equitable remedy. Rather, she was granting the ordinary form of relief for a claim in unjust enrichment. The Fund did not plead an independent legal wrong and seek a restitutionary remedy in relation to that legal wrong. Rather, it pleaded substantive restitution as a stand-alone cause of action and the trial judge found that the Fund’s claim in unjust enrichment was made out. In these circumstances, the trial judge did not err in restoring to the Fund the monetary amount that it was deprived of by the appellant’s corresponding unjust enrichment.

Amberber v IBM Canada Ltd, 2018 ONCA 571

[Doherty and Pepall JJ.A. and Gray J. (ad hoc)]

Counsel:

Jennifer Dolman and Lindsay Rauccio, for the appellant

Paul J. Willetts and Andrew N. Vey, for the respondent

Keywords: Employment Law, Contracts of Employment, Interpretation, Termination Without Cause, Statutory Notice Period, Reasonable Notice, Employment Standards Act

Facts:

The respondent was advised on April 19, 2016, that his employment with the appellant would be terminated, without cause, effective July 8, 2016. The respondent claimed an entitlement to pay in lieu of notice at common law based upon a notice period of 16 months. The appellant brought a motion for summary judgment, contending that the respondent’s claim for damages at common law was precluded by the termination clause in the contract of employment.

While the motion judge held that the termination clause does not violate the minimum requirements of the Employment Standards Act (ESA), she concluded that the termination clause was ambiguous, that it fails to rebut the common law presumption of reasonable notice, and that it did not clearly set out an intention to deprive the respondent of his entitlement to damages at common law. In her reasons, the motion judge referred to the principle that any intention to rebut common law reasonable notice requirements must be clear in order to be enforceable and any ambiguity is to be resolved in favour of the employee. She held the clause to be unenforceable and dismissed the motion. The employer appealed.

Issues:

(1) Did the motion judge err in concluding that the termination clause does not violate the ESA?

(2) Did the motion judge err in concluding that the termination clause was ambiguous and did not clearly exclude an entitlement to damages at common law?

Holding: Appeal allowed.

Reasoning:

(1) No. The respondent argued that the following portion of the termination clause violated the ESA:

In the event that the applicable provincial employment standard legislation provides you with superior entitlements upon termination of employment (“statutory entitlements”) than provided for in this offer of employment, IBM shall provide you with your statutory entitlements in substitution for your rights under this offer of employment.

The court held that the motion judge was correct in holding that this sentence of the clause is effective to ensure that a terminated employee receives what he or she is entitled to under the ESA. The court found that the sentence was not analogous to a severability clause. It did not purport to sever any part of the termination provision. Rather, the court held that it ensures that any portion of the termination clause that falls short of the ESA must be read up so that it complies with the ESA.

(2) Yes. The fundamental error made by the motion judge was that she subdivided the termination clause into what she regarded as its constituent parts and interpreted them individually. In the court’s view, the individual sentences of the clause cannot be interpreted on their own. Rather, the clause must be interpreted as a whole and when read as a whole, there can be no doubt as to the clause’s meaning.

In the court’s view, the motion judge failed to apply well-established principles of construction. She did not interpret the termination clause as a whole. Rather, she strained to find an ambiguity where none reasonably existed. She deviated significantly from the text of the clause. In so doing, she committed extricable errors of law that are reviewable on a correctness standard.

It is clear that the appellant complied with the termination clause, and in so doing also complied with the ESA. The respondent was entitled to nothing more.

Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576

[Lauwers, JJA]

Counsel:
Eric K. Gillepsie for the applicant/appellant

Jon Bradbury for the respondent Ministry of the Environment and Climate Change

Patrick G. Duffy for the respondent WPD White Pines Wind Incorporated

Keywords: Administrative Law, Judicial Review, Motions, Orders, Setting Aside, Appeals, Jurisdiction, Courts of Justice Act, ss. 21(3), 21(5), Judicial Review Procedure Act, ss. 6(1)(a), 6(2)

Facts:

WPD White Pines Wind Incorporated (“WPD”) has an approval from the Ministry of the Environment and Climate Change (the “Ministry”) to construct wind turbines in Prince Edward County, subject to several conditions. In a November 15, 2017 letter, the director of the Environmental Approvals Access and Service Integration Branch of the Ministry stated that the majority of the construction of wind turbines by WPD was going to meet the conditions with one exception which WPD had proven, as required under the Ministry’s conditional approval, to be unavoidable.

The applicant brought a motion under 6(1)(a) of the Judicial Review Procedure Act, pending its application for judicial review, seeking a stay of the operation of the Ministry’s approval on the ground that proceeding with the construction after April 30, 2018 violated the terms of the approval. WPD, supported by the Ministry, brought a cross-motion for an order dismissing the underlying application for judicial review for lack of jurisdiction under the Judicial Review Procedure Act. Justice Conway, who was sitting as a single judge of the Divisional Court hearing the matter as one of urgency, although not under s. 6(2) of the Judicial Review Procedure Act, cited two reasons in dismissing the applicant’s motion for a stay and granting the WPD motion to dismiss the judicial review application. First, the decision in the letter did not reflect a statutory power decision subject to judicial review. Second, the judicial review application was really a disguised attempt to rewrite some of the conditions imposed by the Ministry outside of the appropriate forum to do so.

The applicant moved for an order staying the operation of Renewable Energy Approval No. 2344-9 R6RWR (“REA”), thereby halting construction, pending the court’s decision on whether to grant leave to appeal from the order of Conway J., dated May 23, 2018.

Issues:

(1) Does the Court of Appeal have jurisdiction to hear the appeal from the decision of Conway J?

Holding:

Motion quashed.

Reasoning:

(1) No.

The motion for a stay raises a jurisdictional question arising from the interpretation of s.21 of the Courts of Justice Act, which provides:

(3)     A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court…

(5)     A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

The jurisdictional issue is whether the decision of Conway J. can only be reviewed under s. 21(5) of the Courts of Justice Act or whether, because she dismissed the application for judicial review, an appeal lies to the Court of Appeal, with leave under s. 6(1)(a) of the Courts of Justice Act.

In Overseas Missionary Fellowship v 578369 Ontario Ltd, (1990) 73 OR (2d) 73 (CA), the court found that what is now s. 21(5) of the Courts of Justice Act took precedence over and excluded the general terms of the appeal right in s. 6(1)(a) if the Courts of Justice Act. The structure of the legislation requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal which in this case, required the applicant to bring a motion to a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act.

There was a suggestion that one reason the applicant had come before the Court of Appeal was because the Divisional Court was incapable of constituting a panel on an urgent basis. Urgency cannot confer jurisdiction, and the motion was quashed as a result. The Court commented that it was confident that the Divisional Court could respond to the urgency of the matter with alacrity.

Criminal Decisions

Jackson Re, 2018 ONCA 560

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

Counsel:

Jill Gamble, for the appellant, JJ

Megan Petrie, for the Attorney General of Ontario

James Thomson, for Waypoint Centre

Julia Zamprogna, for Southwest Centre for Forensic Mental Health Centre

Keywords: Criminal Law, Ontario Review Board, NCRMD, Break and Enter, Assault with a Weapon, Uttering Threats, Escaping Lawful Custody, Robbery, Breach of Probation, Conditional Discharge, Substance Abuse, Criminal Code, ss 672.54 and 672.5401

R v Hewitt, 2018 ONCA 561

[Sharpe, Roberts and Trotter JJ.A.]

Counsel:

Robert J. Reynolds, for the appellant

Avene Derwa, for the respondent

Keywords: Criminal Law, Trafficking in Firearms, Constitutional Law, Sentencing, Mandatory Minimum, Parole Eligibility, Pre-Sentence Custody Credit, Criminal Code, s 99(2)(a), Canadian Charter of Rights and Freedoms, s 12, R v Chambers, 2013 ONCA 680

Collins (Re), 2018 ONCA 563

[Doherty, Epstein and Pepall JJ.A.]

Counsel:

Anita Szigeti, for the appellant Avene Derwa, for the respondent

Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, NCRMD, Conditional Discharge, Threat to Public Safety

R v DJB, 2018 ONCA 566

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

Counsel:

Delmar Doucette, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Sexual Touching, Invitation to Sexual Touching, Sentencing, Evidence, Credibility, Fresh Evidence, Criminal Code, s. 715.1

R v AK, 2018 ONCA 567

[Sharpe, Roberts and Trotter JJ.A.]

Counsel:

Najma Jamaldin and Paul Genua, for the appellant

Nancy Dennison, for the respondent

Keywords: Criminal Law, Sexual Assault with a Weapon, Evidence, Burden of Proof, Reasonable Doubt, The Rule in Browne v Dunn (1893), 6 R 67 (HL), Sentencing

R c FR, 2018 ONCA 568.

[Hoy, Rouleau, Benotto JJ.A.]

Counsel:

Christian Deslauriers, for the appellant

Davin M. Garg, for the respondent

Keywords: Criminal Law

R v Barkhadle, 2018 ONCA 569

[Hourigan, Pardu and Nordheimer JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Luke Schwalm, for the respondent

Keywords: Criminal Law, Unlawful Possession of a Firearm, Evidence, R v W(D), [1991] 1 SCR 742

R v Tweneboah-Koduah, 2018 ONCA 570

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

Counsel:

Catriona Verner, for the appellant

Candice Suter, for the respondent

Keywords: Criminal Law, Sexual Assault, Defences, Consent, Evidence, Cross-Examination, Sentencing, R v JA, 2011 SCC 28, R v Esau (1997), 116 CCC (3d) 289 (SCC)

R v Tingle, 2018 ONCA 572

[Sharpe, Roberts and Trotter JJ.A.]

Counsel:

Marianne Salih, for the appellant

Chris Webb, for the respondent

Keywords: Criminal Law, First-Degree Murder, Participating in the Activity of a Criminal Organization, Evidence, Certiorari

R v Mikasinovic, 2018 ONCA 573

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

Counsel:

Michael W. Lacy and Lawrence Gridin, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Assault, Aggravated Assault, Assault Causing Bodily Harm, Sentencing, Probation, Aggravating Factors, R v Luciano, 2011 ONCA 89, R v Wong, [2006] OJ No 2209 (CA)

R v Donnelly, 2018 ONCA 575

[Hourigan, Pardu and Nordheimer JJ.A.]

Counsel:

Uma Kancharla, for the appellant

John A Neander, for the respondent

Keywords: Criminal Law, Sexual Assault, Defences, Mistaken Belief in Consent

Godfrey (Re), 2018 ONCA 577

[Hourigan, Pardu and Nordheimer JJ.A.]

Counsel:

Ken J. Berger, for the appellant

Catherine Weiler, for the Attorney General in right of Ontario

Gavin S. MacKenzie, for the person in Charge at the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, NCRMD, Hybrid Detention Order, Threat to Public Safety, R v Kelly, 2015 ONCA 95, Mental Health Act, RSO 1990, c M 7

 

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.

COURT OF APPEAL SUMMARIES (JUNE 11-15)

Hello again.

Please find below our summaries for this week’s civil decisions of the Ontario Court of Appeal.

In Mancinelli v Royal Bank of Canada, the class plaintiffs had sought to add BMO and TD as party defendants to their claim against other financial institutions for conspiracy and price fixing in the foreign exchange markets. Justice Perrell had dismissed the plaintiffs’ motion, having found that class counsel could have, through “reasonable diligence”, discovered BMO and TD’s possible involvement in the secret conspiracy. He made that finding even though there was apparently no public document referencing BMO and TD’s possible involvement, and the first mention of their involvement was by UBS, one of the co-conspirators, after it had entered into a settlement with the class plaintiffs. The Court reversed Justice Perrell’s decision, finding that he had held class counsel to too high a reasonable diligence standard without a proper evidentiary foundation.

In Thunder Bay (City) v. Canadian National Railway Company, the Court was faced with reviewing the lower court’s interpretation of a contract entered into in 1906 between the Town of Fort William and the Grand Trunk Railway regarding the railway’s obligations to maintain a bridge “in perpetuity” for use by “vehicular traffic”. CN, which inherited the agreement, closed the bridge to cars and trucks (which had used the bridge for a century) and argued that the extensive structural changes needed to reopen the bridge for use by cars and trucks fell outside the definition of “maintenance”. It also argued that the meaning of “vehicular traffic” in 1906 only included streetcars, horses and carts, not cars and trucks. The lower court had found in favour of CN, but the Court of Appeal reversed the decision, finding the application judge’ s interpretation unreasonable. In doing so, the Court held that cars and truck traffic was within the contemplation of the drafters of the agreement in 1906, as the beginning of the age of the automobile was only a few years away.

Other topics covered this week included automobile insurance coverage in the leasing context, family law, limitation periods in the breach of contract context, the need for expert evidence on the standard of care on a summary judgment motion in the professional negligence context, administrative law in the software development tax credit context, and vexatious litigants.

I hope everyone is enjoying the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

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

Table of Contents

Ahmad v Ahmad, 2018 ONCA 536

Keywords: Family Law, Custody and Access, Support, Equalization of Net Family Property

Kowalsky v Asselin-Kowalsky, 2018 ONCA 539

Keywords: Family Law, Support, Equalization, Practice and Procedure, Extension of Time to Appeal, Delay, Incapacity, Fresh Evidence, Sengmueller v Sengmueller, 1994 CarswellOnt 374

Thunder Bay (City) v Canadian National Railway Company, 2018 ONCA 517

Keywords: Contracts, Interpretation, Standard of Review, Extricable Errors of Law, Unreasonableness

Coast Capital Equipment Finance Ltd v Old Republic Insurance Company of Canada, 2018 ONCA 540

Keywords: Contracts, Automobile Insurance, Interpretation, Third Party Liability, Leased Vehicles, Insurance Act, section 5.1, OPCF 25, OPCF 5 Endorsement

Mancinelli v Royal Bank of Canada, 2018 ONCA 544

Keywords: Torts, Conspiracy, Competition Law, Price Fixing, Civil Procedure, Class Actions, Limitation Periods, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, s 5(1)

Davies v Davies Smith Developments Partnership, 2018 ONCA 550

Keywords: Contracts, Partnership Agreements, Breach, Civil Procedure, Limitation Periods, Discoverability, Damages, “Appropriate Means”, Limitations Act, 2002, SO 2002, c 24, Sched B, s.5

McPeake v Cadesky & Associates, 2018 ONCA 554

Keywords: Professional Negligence, Expert Evidence, Summary Judgement, Income Tax Act, s 75(2), Rules of Civil Procedure, rr. 20.04(2.1), (2.2), Connerty v Coles, 2012 ONSC 5218

Pong Marketing and Promotions Inc. v Ontario Media Development Corporation, 2018 ONCA 555

Keywords: Administrative Law, Taxation, Income Tax Credits, Statutory Interpretation, Specialized Tribunals, Standard of Review, Reasonableness, Taxation Act, 2007, S.O. 2007, c. 11, Schedule A, s. 34.

Susin v Susin, 2018 ONCA 549

Keywords: Estates, Civil Procedure, Appeals, Security for Costs, Orders, Setting Aside, Costs, Vexatious Litigants, Frivolous and Vexatious Proceedings, Abuse of Process, Rules of Civil Procedure, Rule 2.1.02(1)

For short civil decisions click here

For criminal and regulatory/ review board decisions click here

Civil Decisions

Ahmad v Ahmad, 2018 ONCA 536

[MacPherson, LaForme, and Roberts, JJA]

Counsel:

NA, acting in person

Robert A. Fernandes, for the respondent

Keywords: Family Law, Custody and Access, Support, Equalization of Net Family Property

Facts:

The appellant and respondent married in 2000 in Pakistan. They had three children and immigrated to Canada in 2013. Days later, the appellant left Canada which the trial judge treated as the day of separation. The appellant returned to Canada in 2015 and commenced family law proceedings seeking divorce, custody, support and equalization of net family property. The respondent commenced claims of her own. The self-represented appellant appeals a trial judgment granting the respondent sole custody of their three children with regular access to the applicant, monthly child support payments to be made by the appellant based on an imputed income, and an equalization payment to be made by the appellant.

Issues:

(1) Did the trial judge err by not including certain hours for religious/festive occasions in his access time?

(2) Did the trial judge err by including the appellant’s Pakistan pension and/or over-valuing this pension?

(3) Did the trial judge err by attributing real property in Pakistan and jewelry for equalization purposes?

(4) Was the trial judge biased in favour of the respondent?

Holding:

Appeal dismissed.

Reasoning:

Overall, the appellant failed to demonstrate that the trial judge committed a palpable or overriding error regarding a material fact. The trial judge’s analysis on all of the issues was thorough, reasonable and grounded in the evidence available to him.

(1) No. The trial judge’s conclusions regarding custody and access were made in the best interests of the children.

(2) No. The trial judge’s imputation of income to the appellant was necessary because the appellant had been less than forthright in his evidence and the trial judge was thus required to use the best evidence available to the court.

(3) No. The trial judge’s equalization findings required third party confirmation due to the appellant’s own lack of credibility.

(4) No. A review of the transcript and record reveals no evidence of bias. The trial judge was careful to ensure that the appellant had every opportunity to present his case. A finding of a lack of credibility does not translate into bias.

Kowalsky v Asselin-Kowalsky, 2018 ONCA 539

[MacPherson, LaForme and Roberts JJ.A.]

Counsel:

Patrick J. Kraemer, Justine A. Dalton and Michael A. van Bodegom, for the appellant

Kim S. Killer and Ainsley Hunter, for the respondent

Keywords: Family Law, Support, Equalization, Practice and Procedure, Extension of Time to Appeal, Delay, Incapacity, Fresh Evidence, Sengmueller v Sengmueller, 1994 CarswellOnt 374

Facts:

This is an appeal from an order determining the issues of equalization, child support and spousal support (“the final trial order”), and from an order dismissing a motion to set aside the final trial order. This appeal involves orders that were granted over ten years ago. It is equally exceptional because the entire passage of time can be explained by the evidence of the appellant’s prolonged history of serious mental health issues, which the court accepted as the basis for granting the appellant an extension of time to appeal in September 2017. The respondent instigated proceedings in 2005 to obtain a divorce and to determine the issue of equalization of the parties’ net family property. The appellant raised claims for child and spousal support. The parties were granted a divorce in 2006. The appellant failed to appear at trial for the remaining issues and the trial proceeded in her absence. Her brother attended and advised that the appellant’s health did not permit her to attend. The appellant’s subsequent motion to set aside the final trial order was dismissed in 2008, when she again failed to attend. The appellant submits that she was unable to attend the trial or her motion because she was physically and mentally incapable of doing so. She maintains that justice requires that the final trial order and the order of the motion judge be set aside.

Issues:

(1) Should the appellant’s fresh evidence be admitted before proceeding with argument on the merits?

(2) Was the appellant incapable of attending the trial and her motion?

(3) Should the decisions under appeal be set aside?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The appellant’s fresh evidence should be admitted because it satisfies all of the criteria for its admission: it could not have been provided before trial; it is credible; and it is conclusive of the main issue on this appeal, namely, whether the justice of the case requires that the orders under appeal be set aside in order to prevent an unjust result: Sengmueller v Sengmueller, 1994 CarswellOnt 374, at para 34.

(2) Yes. A fundamental purpose of the appellant’s fresh evidence was to explain her absence at trial and her motion. To succeed on her appeal, her explanation must be sufficiently cogent that it credibly excuses her absence and that it would be procedurally unfair to allow the trial and motion orders to stand. However, there is no requirement that she prove a certain level of incapacity including one that rises to the definition under the Substitute Decisions Act, SO 1992, C 30 or the Mental Health Act. It was within days of the trial that the appellant was found incapable and involuntarily hospitalized. The appellant lacked the capacity to prepare for and attend at trial and the motion, which resulted in disastrous financial consequences for her. The outcome would likely have been dramatically different had the appellant been present, and had she been given the opportunity to challenge the respondent’s evidence with her own evidence and through cross-examination and submissions.

(3) Yes. In these highly unusual circumstances justice requires that the final trial order and order of the motion judge be set aside. The garnishment order, which flows from these, must also be set aside and the garnished monies in the amount of $248,609 plus interest paid back to the appellant. However, the merits of the family law proceeding must be determined at a new trial. The Court is not in a position to determine the issues of equalization, and child and spousal support, all of which require credibility assessments and finding of fact.

In the result, the appeal was allowed, the final trial order was set aside, the garnishment order was set aside, and an order was made that the issues of equalization and support be determined at a new trial. Given the age of these proceedings, it is in the parties’ best interests that the trial should be case-managed and expedited. The appellant was entitled to partial indemnity costs of this appeal, including the motion for an extension of time and the fresh evidence motion.

Thunder Bay (City) v Canadian National Railway Company, 2018 ONCA 517

[Laskin, MacPherson and Fairburn JJ A]

Counsel:

C Matthews and S Sood, for the appellant

G Pratte, N Effendi and D Ault, for the respondent

Keywords: Contracts, Interpretation, Standard of Review, Extricable Errors of Law, Unreasonableness

Facts:

This appeal concerns the interpretation of an agreement made in 1906 for the construction of a bridge across the Kaministiquia River in Thunder Bay. The parties to the agreement were the Town of Fort William, now amalgamated into the appellant, the City of Thunder Bay, and the Grand Trunk Pacific Railway, now the respondent Canadian National Railway Company (“CN”).

Grand Trunk Pacific built the Bridge, completing it in 1909. The Bridge is a combined railway and roadway bridge. The Bridge remained open for railway trains, cars, trucks, and people for over 100 years. However, in 2013, CN briefly closed the Bridge because of a fire. The fire caused only minor damage and CN reopened the Bridge three days later. But it reopened the Bridge only for railway trains and pedestrians, not for motor vehicles. It claimed that the Bridge could not safely be reopened for motor vehicles because of the risk an “errant” or wayward vehicle would leave the roadway, go across the sidewalk and into the river.

When CN refused to reopen the Bridge for vehicles, Thunder Bay brought an application for a determination of its contractual rights under the 1906 Agreement. Two provisions of this Agreement are central to this appeal: section 3, in which Grand Trunk Pacific agreed to give Fort William “the perpetual right to cross the said bridge for street railway, vehicle and foot traffic”; and section 5, in which CN agreed to “maintain the bridge in perpetuity”.

Before the application judge, Thunder Bay took the position that CN is in breach of its contractual obligation to keep the Bridge open perpetually for vehicles. CN took the position that it could not do so safely without making significant structural changes to the Bridge, which were beyond its obligation to “maintain” under s. 5 of the Agreement. The application judge sided with CN.

On its appeal, Thunder Bay contends that the lower court’s findings are tainted by legal error or are unreasonable. It submits that the parties intended that the citizens of Thunder Bay would have the perpetual right to cross the Bridge by any kind of vehicle and that CN has the obligation to maintain the Bridge in perpetuity. CN contends that the application judge made no legal error, his findings are supported by the evidence, and so appellate intervention is not warranted.

Issues:

(1) Is the application judge’s finding on the parties’ intent tainted by “extricable” errors of law or is it unreasonable?

(2) Did the application judge err in law by holding that Thunder Bay had the onus to give the court a specific and detailed proposal to make the Bridge safe for motor vehicles?

Holding: Appeal allowed.

Reasoning:

(1) Yes, the application judge’s findings were unreasonable and, in addition, were tainted by two extricable errors of law:

(a) Unreasonableness: The application judge’s finding is unreasonable because he failed to give proper effect to the words of the 1906 Agreement or to the context in which the Agreement was made. In this case, the central debate was over the meaning of the words “vehicle traffic” or “vehicular traffic” in the 1906 Agreement, and the parties’ intent in using these words. The application judge interpreted the words narrowly to mean only the vehicle traffic that existed in 1906 – streetcars, horses, and carts. The full context in which the 1906 Agreement was signed unquestionably supports the broad interpretation of vehicle traffic that includes the motorcar. Three contextual considerations are important in interpreting the meaning of vehicle or vehicular traffic in the 1906 Agreement: (i) the purpose of both the 1905 and the 1906 Agreements (to accommodate population growth); (ii) the reasonable expectations of the parties in entering into the 1906 Agreement (that population growth would result in greater transportation needs); and (iii) the coming of the automobile era (back in 1906, the parties can reasonably have been taken to know that soon, not even many years in the future, automobiles would become the predominant mode of road travel).

(b) Error in law #1: In interpreting the 1906 Agreement, the application judge committed an extricable error of law by failing to give any effect to the words “perpetual” and “in perpetuity”. The right to cross the Bridge perpetually, and the obligation to maintain the Bridge in perpetuity, can only mean that the parties intended the Bridge to be open for any kind of vehicle as the word “vehicle” is not defined or limited to any particular kind of vehicle.

CN draws a distinction between maintaining the Bridge and making structural changes to the Bridge. CN contends that making the Bridge safe for cars and trucks would require structural changes to the Bridge, changes that exceed its maintenance obligation under section 5 of the Agreement. But the court viewed the distinction between maintenance and structural changes to be of little practical consequence. As the application judge found, CN consistently took the position that the many repairs and upgrades it has made to the Bridge over the years were matters of maintenance, not structural changes. Yet those repairs and upgrades, all falling within CN’s maintenance obligation, have been sufficient to allow cars and trucks to drive safely across the Bridge. CN’s position is tantamount to relying on the doctrine of frustration of contract to excuse its breach. CN is seeking to show that the 1906 Agreement, at least for vehicle traffic, has become “incapable of being performed”. That argument, however, is not available to it in this proceeding because the application judge made no finding that the 1906 Agreement was at an end, nor could he. He did not even make a finding that CN was incapable of performing its contractual obligation. CN must therefore comply with the 1906 Agreement and reopen the Bridge for cars and trucks after making whatever maintenance repairs and upgrades it thinks necessary to maintain the risk to public safety at an acceptable level.

(c) Error in law #2: The application judge also committed an extricable error of law by taking into account the subsequent conduct of the parties, though the meaning of the 1906 Agreement is not ambiguous. If any relevant ambiguity exists in the meaning of the 1906 Agreement, that ambiguity relates not to the scope of CN’s maintenance obligation, but to the meaning of vehicle traffic. On this question, the subsequent conduct of the parties, especially CN itself, resolves any ambiguity. The subsequent conduct of CN in maintaining the safe operation of the roadways on the Bridge for the exclusive use of cars and trucks supports Thunder Bay’s position that vehicle traffic in the 1906 Agreement was meant to include the advent of motor vehicle traffic.

(2) Yes, the application judge erred in law by placing an onus on Thunder Bay to provide a proposal to make the Bridge safe for motor vehicles. CN has a contractual obligation to maintain the Bridge for motor vehicles in perpetuity, an obligation it has breached. To rectify its breach, CN must reopen the Bridge; it therefore has the onus to determine what maintenance is needed to alleviate any safety concerns associated with the Bridge’s reopening under the Bridge Maintenance Program mandated by the Railway Safety Act, RSC, 1985, c 32 (4th Supp.) and Transport Canada.

Accordingly, the court made the following order:

(a) A declaration that CN has breached the 1906 Agreement.

(b)  Requiring CN to reopen the Bridge for vehicle traffic and maintain the Bridge in accordance with the 1906 Agreement.

Coast Capital Equipment Finance Ltd v Old Republic Insurance Company of Canada, 2018 ONCA 540

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

Counsel:

Caroline Gronke, for the appellant

Patrick Monaghan, for the respondent

Keywords: Contracts, Automobile Insurance, Interpretation, Third Party Liability, Leased Vehicles, Insurance Act, section 5.1, OPCF 25, OPCF 5 Endorsement

Facts:

This appeal concerns a dispute between a lessor of a vehicle, Coast Capital Equipment Finance Ltd. (“Coast Capital”), and an insurer as to whether the lessor is insured for third party liability under a policy of automobile insurance. The appeal turns on the construction of a Certificate of Automobile Insurance and an Ontario Policy Change Form (“OPCF”) 25 Change Form, both issued by the respondent, Old Republic Insurance Company of Canada (“Old Republic”).

An OPCF 23A endorsement provides for payment to a lienholder in the event of damage to the vehicle. An OPCF 5 endorsement expressly allows a lessor to rent or lease a motor vehicle to a lessee who has completed an Ontario Application for Automobile Insurance – Owner’s Form, and also provides coverage to a lessee as if the lessee were the named insured. It is common ground that if that endorsement is part of the policy, both the lessor and the lessee benefit from third party liability insurance.

A trucking company leased two tractors from Coast Capital. Old Republic issued an OPCF 25 Change Form showing the trucking company as the insured, and listing the two tractors. The OPCF 25 Change Form made no mention of either the OPCF 5 or OPCF 23A endorsements. One of the tractors was involved in a motor vehicle accident and it was Old Republic’s position that it was not required to respond to the loss.

The application judge concluded that while the OPCF 23A endorsement was part of the policy, the OPCF 5 endorsement was not and Coast Capital was not entitled to liability coverage. He stated repeatedly that the OPCF 5 endorsement was never part of the Certificate or added by the OPCF 25 Change Form. He did not address the significance of the phrase “AS PER OPCF 5 FORMS” contained in the Certificate.

Issues:

(1) Is the OPCF 5 endorsement part of the Certificate?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The court concluded that the OPCF 5 endorsement is part of the Certificate. No deference is owed to the application judge’s decision as he did not address this additional language in the Certificate upon which this appeal turns.

The court emphasized that section 5.1 of the Insurance Act provides that a certificate issued under subsection (5) is “of the same force and effect as if it were the standard policy, subject to the limits and coverages shown by the insurer on the certificate and any endorsements issued with or subsequently to the certificate.”

Following the hearing, the panel requested that the parties provide copies of the forms approved for use at the relevant times. The material submitted following the hearing demonstrates that the Superintendent approved a form of Certificate of Automobile Insurance for the relevant time, and has also approved a custom form of Certificate of Automobile Insurance submitted for approval by Old Republic (the “Approved Certificate”). The Approved Certificate did not contain the phrase “AS PER OPCF 5 FORMS”. This phrase must have been added to the Certificate by Old Republic. If added for this particular transaction, it leads readily to the inference that the Certificate was intended to provide coverage to both the lessor and the lessee.

The court concluded that the insurer intended to provide liability coverage to both the lessor and lessee. The OPCF 25 Change Form did not delete that coverage, but added new vehicles. Absent deletion of the OPCF 5 coverage, the court concluded that Coast Capital is entitled to the benefit of that coverage. Old Republic’s insertion of the OPCF 5 language into the Certificate accords with the commercial reality of the transaction.

The trucking company leased multiple vehicles, to the knowledge of the insurer. It makes commercial sense for the lessors who were financing the purchase of the vehicles to protect themselves from liability as the owners of those vehicles when they would have no control over the trucking company operations.

Mancinelli v Royal Bank of Canada, 2018 ONCA 544

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

Counsel:

Kirk M Baert, Celeste Poltak and Louis Sokolov, for the appellants

Lara Jackson, Wendy Berman and Christopher Horkins, for the respondents, the Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A., BMO Capital Markets Limited (collectively “BMO”)

Paul Le Vay, Brendan van Niejenhuis and Benjamin Kates, for the respondents, Toronto Dominion Bank, TD Bank, N.A., TD Group Holdings, LLC, TD Bank USA, N.A. and TD Securities Limited (collectively “TD”)

Keywords: Torts, Conspiracy, Competition Law, Price Fixing, Civil Procedure, Class Actions, Limitation Periods, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, s 5(1)

Facts:

This is an appeal from the motion judge’s order dismissing the appellants’ motion to add the respondents, BMO and TD, as defendants in an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The appellant, CS, commenced an action against sixteen (16) groups of financial institutions in September 2015, alleging a price-fixing conspiracy in the foreign exchange or foreign currency market between January 1, 2003 and December 31, 2013. The statement of claim included allegations that the defendants (including the proposed defendants) actively attempted to conceal their participation in the conspiracy by, among other things, engaging in secret communications.

The first group of defendants to settle consisted of UBS AG, UBS Securities LLC and UBS Bank (Canada) (collectively “UBS”). The settlement required UBS to cooperate with the appellants. In fulfilling that obligation, UBS gave an evidentiary proffer on May 24, 2016 (the “Proffer”).

On July 20, 2016, CS brought a motion under r. 5.04(2) and r. 26.01 of the Rules of Civil Procedure to add the respondents to the action. The respondents opposed the motion on the basis that the claim against them was barred by the Limitations Act, 2002, SO 2002, c 24, Sched B (the “Act”) and the Competition Act, RSC 1985, c C-34. The defendants did not file a statement of defence and no discovery had taken place at the time the motion was heard.

Class counsel’s evidence on the motion was that they learned of BMO and TD’s involvement in the alleged conspiracy for the first time at the Proffer. UBS advised class counsel that it reviewed approximately 2,000 collusive chats dating as far back as 2008 and that foreign exchange traders at BMO and TD were among the persons participating in those chats. Additionally, class counsel submitted evidence that from the time prior to the commencement of the action to the date of the Proffer, the appellants conducted their own investigations into the alleged conspiracy. However, there was no public information available that referred to or mentioned BMO or TD as being involved.

In dismissing the appellants’ motion, the motion judge acknowledged that there was no evidence that any public documents identified BMO or TD as being involved in the alleged conspiracy. The motion judge thus accepted that the appellants did not know they had a conspiracy claim against the respondents until the Proffer. Nevertheless, the motion judge found as a fact, at para. 61, that the appellants’ evidence on the motion was “insufficient to establish that they behaved as reasonable person[s] in the same or similar circumstances to identify [the respondents] as conspirators and the evidence rather establishes that their identity could have been established with reasonable diligence before the expiry of the limitation period.”

Issue:

(1) Did the motion judge err in dismissing the appellants’ motion on the basis that their claim against the respondents was statute-barred?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The court held that the motion judge erred in principle by establishing too high an evidentiary threshold on the motion before him. Additionally, the court found that the motion judge further erred by finding that the appellants could have identified the respondents with due diligence in the absence of any evidentiary foundation and by failing to determine with sufficient precision when they ought to have discovered the claim.

The court held that on a motion to add defendants in a class action alleging a secret conspiracy before any statements of defence had been filed or any discoveries had taken place, the motion judge required the appellants to meet too high of an evidentiary threshold. The appellants provided a reasonable explanation as to why they could not have identified the respondents as co-conspirators before July 20, 2014. Moreover, the respondents led no evidence of any further reasonable steps the appellants could have taken before that time.

Additionally, the court held that a plaintiff’s failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time. Rather, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b) of the Act. On the facts, there was no evidentiary foundation for the motion judge’s finding that the respondents’ identities as co-conspirators could have been established with reasonable diligence. Nor did the motion judge determine with sufficient precision when the appellants ought to have discovered that they had a claim.

Consequently, the court held that these issues required consideration on a summary judgment motion or at trial. Accordingly, the motion judge should have permitted the appellants to add the respondents as defendants, and reserved the respondents’ right to plead a limitation defence.

Davies v Davies Smith Developments Partnership, 2018 ONCA 550

[Strathy C.J.O, Feldman and Brown JJ.A.]

Counsel:

John E.F. Gibson and Paul Bates, for the appellant

Evan L. Tingley, for the respondent

Keywords: Contracts, Partnership Agreements, Breach, Civil Procedure, Limitation Periods, Discoverability, Damages, “Appropriate Means”, Limitations Act, 2002, SO 2002, c 24, Sched B, s.5

Facts:

The appellant retired from a partnership. The partners signed an agreement which called for his equity and his share in the profits to be paid to him between June 2005 and June 2008 according to a schedule of payments. The payments were not made at the times set out in the schedule because the respondent did not have sufficient funds to pay. There were also disagreements over the quantification of the appellant’s share of the profits. The appellant commenced litigation in 2012, four years after the date the payments were to be made. The trial judge found that the appellant’s action was time-barred. His claim was “discovered”, within the meaning of s. 5 of the Limitations Act, 2002 when he did not receive the payments. He knew in July 2008 that he had suffered injury, loss or damage; that the damage was caused by the failure of the respondent to make the payments; and that it was legally appropriate to commence an action. The trial judge dismissed the appellant’s action.

Issue:

  1. Did the trial judge err in finding that the limitation period had expired?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge did not err in finding that the limitation period had expired. The appellant made four submissions: (a) the amount owing to the appellant was in dispute; (b) the profits could not be ascertained until the partnership’s projects had been completed; (c) an action was not an “appropriate” means to remedy the appellant’s loss because the respondent had insufficient funds; and (d) there had been forbearance or novation, making it inappropriate to commence an action. The appellant argued that the claim was not discovered until 2011, when he realized that the respondent had made improper charges to his capital account. In regard to the first two submissions, the Court of Appeal found that the appellant confused “damage” with “damages”. The appellant knew by the end of June 2008 that he had suffered damage, even though the amount of his damages was a matter of dispute and had not been quantified. The appellant’s third submission that the respondent did not have the funds to pay did not stop the limitation period from running. The word “appropriate”, as it appears in s 5 of the Limitations Act, means “legally appropriate”. The appellant cannot rely on his own tactical reasons for the delay. In regard to the fourth submission, there is no evidence that the parties agreed to amend the agreement or to replace it with a new agreement. The answer to this submission is: (a) it was not pleaded; (b) because it was not pleaded, no evidence was adduced with respect to it; and (c) the issue was not argued in the court below.

McPeake v Cadesky & Associates, 2018 ONCA 554

[Juriansz, Benotto, and Fairburn, JJA]

Counsel:

Yan David Payne and Karen J Sanchez for the appellant

Sandra E Dawe for the respondent Cadesky & Associates

Alfred J Esterbauer and Sydney Hodge for the respondent BS

Geoffrey D E Adair for the third party

Keywords: Professional Negligence, Expert Evidence, Summary Judgement, Income Tax Act, s 75(2), Rules of Civil Procedure, rr. 20.04(2.1), (2.2), Connerty v Coles, 2012 ONSC 5218

Facts:

In 1999, the appellant and two associates sold their company to Microsoft. Approximately $4.8 million of the proceeds was received by the appellant’s family trust. The Canada Revenue Agency (“CRA”) attributed all the gains in the family trust to the appellant personally, and reassessed him for some $2.4 million in taxes, interest and penalties in accordance with s. 75(2) of the Income Tax Act. The Federal Court of Appeal later ruled that the CRA’s interpretation of s. 75(2) was incorrect, and concluded it did not apply to property acquired by a trust from a beneficiary in a bona fides sale transaction. The appellant’s tax liability was reduced to approximately $57,000.

The appellant commenced an action against the respondent Cadesky & Associates (“Cadesky”) for professional negligence in its accounting services to the appellant’s company. The motion judge dismissed the appellant’s claim against BS as establishing no genuine issue for trial. The motion judge was satisfied there was a genuine issue for trial as to whether Cadesky was retained with regard to the formation of the family trust or the preparation of the family trust deed. However, she was satisfied that she could determine the issue by resorting to the summary judgement fact-finding powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The motion judge found that the parties both failed to file expert evidence regarding the standard of care of an accountant in the circumstances and, in so doing, determined there was no genuine issue for trial because the case did not fall within the exception to this general rule requiring expert evidence to support a claim for professional negligence.

Issues:

(1) Did the motion judge err in requiring the appellant to file expert evidence to support a professional negligence claim on a summary judgement motion?

(2) Did the professional’s conduct fall obviously short of the standard of care and thus meet the general exception to the rule?

(3) Did the motion judge err in finding that the appellant had not filed adequate expert evidence?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant relied on Connerty v Coles, 2012 ONSC 5218 [Connerty] to support his position that a plaintiff need not file expert evidence to support a professional negligence claim when defending a summary judgment motion. In Connerty, the Superior Court had deteremined that the need for expert evidence on summary judgment motions will be a product of the particular factual circumstances in each case. In this case, the motion judge had before her extensive evidence and was able to develop a full appreciation of the facts and so it was appropriate to file expert evidence. The motion judge did not err in her consideration of Connerty.

(2) No. The motion judge recognized the existence of the general rule but found that this was not a case where the professional’s conduct obviously fell below the standard of care. Evidence of the standard of care in the circumstances was required and there is no basis to interfere with the motion judge’s refusal to resort to the exception to the general rule.

(3) No. The evidence to which the appellant points as qualifying as expert evidence was not expert evidence.

Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

Lisa La Horey and Farzin Yousefian, for the appellant

Scott C Hutchinson and Kenneth Grad, for the respondent

Keywords: Administrative Law, Taxation, Income Tax Credits, Statutory Interpretation, Specialized Tribunals, Standard of Review, Reasonableness, Taxation Act, 2007, S.O. 2007, c. 11, Schedule A, s. 34.

Facts:

The Ontario Media Development Corporation (“OMDC”) is an agency of Ontario’s Ministry of Tourism, Culture and Sport. Its purpose is to promote innovation, investment and employment in the cultural media industry in Ontario. Further to that objective, it jointly administers, alongside the Canada Revenue Agency, the Ontario Interactive Digital Media Tax Credit (“DMTC”), a tax credit provided to developers for digital products whose primary purpose is to “educate, inform or entertain the user”.

Pong Marketing and Promotions Inc. (“Pong”) applied to the OMDC for a Certificate of Eligibility for a DMTC of approximately $2 million for its development of 15 digital “sweepstakes” games, which it licenced to third party retailers. The OMDC denied Pong’s application on the basis that the games were not developed for the primary purpose of educating, informing, or entertaining the user, but rather were developed for promoting the sale of long-distance phone cards and related products and services.

Pong brought an application for judicial review, which was successful. The Divisional Court agreed that the OMDC’s decision was inconsistent with the plain meaning of the regulation governing eligibility for the DMTC, and was therefore unreasonable. It also noted that, if the OMDC’s interpretation was reasonable it would have nonetheless applied a residual presumption in favour of the interpretation of the taxpayer, Pong. It remitted the matter back to the OMDC for reconsideration.

The OMDC appealed.

Issues:

(1) Did the Divisional Court err in its interpretation of s. 34(1) of the Taxation Act – specifically, in failing to adequately defer to the OMDC’s interpretation?

(2) Did the Divisional Court err in finding in the alternative that the residual presumption in favour of taxpayers would apply and work in favour of the interpretation advanced by the respondent?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The dispute was over whether Pong’s products had the requisite characteristics as stated in section 34(1) of the Taxation Act 2007, S.O. 2007, c. 11, Schedule A, specifically, that “their primary purpose is to educate, inform or entertain the user.” The Divisional Court argued that the priority of the users’ intention in playing the games was compelled by section 34. It understood the phrase “while they are being operated” as requiring the purpose of the files to be assessed “when the user is playing it; not the moment when it is created or licensed.” From this premise, the Divisional Court concluded “[t]hat the definition requires the [OMDC] to look at the primary purpose of the game from the perspective of the player.” They determined that Pong’s marketing material and licence agreement templates did not shed any light on the users’ purpose in playing the games, but only evidence Pong’s motivation for developing the products.

The Divisional Court accordingly found the OMDC’s decision to be inconsistent with “the plain meaning of the wording of the [Regulation]”, which required “primary purpose” to be assessed as the purpose of a person playing the games. The purpose of a person playing the games was to be entertained, therefore the purpose of the games was to entertain. In support of this conclusion, it further held that because “the legislature intended to use the tax credit to assist high-technology, knowledge-based industries”, the OMDC’s focus on the purpose of the developer in creating the games “undermines legislative intent.”

The Court of Appeal found that all the Regulation directs is that the OMDC ascertain the primary purpose of a product by determining what functions the digital files perform when they are being operated. Nothing in the text directs that the user’s purposes in playing the games must take priority over any other purpose the products serve.

In assessing what it is the digital files do when they are being operated, the OMDC considered the documentation that it received from the respondent, including promotional materials and licencing agreements. These provided some evidence of the purposes of the digital files by providing evidence of what the developer intended for them to do, and how they were to do it, when they were being operated. As these materials clearly stated, the games were marketed to retailers not for the purpose of entertaining users as an end in itself, but to be used, when operated, as a means to a further, more ultimate end of inducing users to purchase phone cards from the retailers.

To succeed on the appeal the OMDC did not need to establish that its interpretation of the Regulation was more plausible than the one identified by the majority. All it needed to do was establish that its interpretation was reasonable, and that its decision flowed from the evidence before it. The court held that OMDC had established that.

(2) Yes. The Court held that where there is generality and vagueness in the context of an administrative scheme, the intention is for the decision-maker to supply a specification. The majority stated that there would often be no uniquely right answer to a question: only determinations, chosen from among equally acceptable alternatives, which could conceivably have been made differently. Where these determinations are reasonable, courts are not permitted to intervene.

In this case, the Regulation required the OMDC to determine a product’s “primary purpose” as well as whether that purpose was to “educate, inform or entertain the user”. These criteria required evaluations of what is primary, and specifications of what it means to educate, inform or entertain. Were the residual presumption to be applied in the manner suggested by Pong, it would eliminate much of the authority conveyed on the OMDC by statute. The court held this would undermine the statutory scheme and be inconsistent with the rationale for, and nature of, a reasonableness standard of review.

Susin v Susin, 2018 ONCA 549

[Strathy C.J.O., Feldman and Brown JJ.A.]

Counsel:

ES, acting in person

Margaret A. Hoy, for the responding party

Keywords: Estates, Civil Procedure, Appeals, Security for Costs, Orders, Setting Aside, Costs, Vexatious Litigants, Frivolous and Vexatious Proceedings, Abuse of Process, Rules of Civil Procedure, Rule 2.1.02(1)

Facts:

This case involves litigation among nine siblings, relating to the estate of their late father, which has been before the Court of Appeal on three prior occasions. The continued misconduct of some of the participants in the proceedings has been the subject of sanctions, notably an order made in 2008 by Quinn J., declaring JS to be a vexatious litigant. The result of the 11-year history of these proceedings is that a relatively modest estate, consisting primarily of the family home, has been dissipated, leaving behind a slew of unpaid costs orders against the appellants.

The matter before the court came by way of a motion in writing to set aside the order of Fairburn J.A., dismissing the appellants’ motion to set aside the order of Gillese J.A., which required that the appellants each pay the sum of $15,000 into court as security for the costs of their appeal.

Issues:

(1) Should the motion be dismissed under Rule 2.1.01(1)?

Holding: Motion to set aside dismissed.

Reasoning:

(1) Yes. Having considered the submissions of the parties, the motion to set aside the order of Fairburn J.A., the endorsement of Fairburn J.A., and the endorsement of Gillese J.A., as well as the history of this litigation, the court was satisfied that the motion was frivolous, vexatious and an abuse of process and, accordingly, it was dismissed pursuant to Rule 2.1.02(1).

The court was satisfied that it is appropriate to make an order pursuant to Rule 2.1.02(3)prohibiting the appellants, or any of them, from making any further motions in this proceeding without leave of a judge of the Court of Appeal. The Court required that any such motion seeking leave must be made in writing and will not be accepted unless proof of service on the respondent’s counsel is provided at the time of filing. Also, before bringing any such motion, the appellants are required to satisfy all outstanding costs orders made against them by judges of both the Court of Appeal and of the Superior Court of Justice, and shall file proof by affidavit that they have done so

Short Civil Decisions

1806700 Ontario Inc. v Dmuchowski, 2018 ONCA 557

[Strathy C.J.O., Feldman and Brown JJ.A.]

Counsel:

Muhammad Aslam Khan, acting in person

Joga Singh Chahal, for the plaintiff

Tim Gleason, for the intervenor Sandeep Singh Johal

Keywords: Civil Procedure, Appeals, Perfection of Appeals, Extension of Time, Security for Costs, Courts of Justice Act, RSO 1990, c C.43, s 7(5)

Criminal and Regulatory/ Review Board Decisions

Krivicic (Re), 2018 ONCA 535

[Feldman, Roberts and Trotter JJ.A]

Counsel:

Jill R. Presser and Jeff Marshman, amici curiae

Elvis Krivicic, acting in person

Megan Petrie, for the respondent, the Attorney General of Ontario

Keywords: Criminal Law, Criminal Harassment, Failing to Comply with a Recognizance, Ontario Review Board, NCR, Public Interest, Fresh Evidence, Criminal Code, s. 672.54, Mental Health Act, RSO 1990, c. M7

R. v Ismail, 2018 ONCA 543

[Pepall, Hourigan and Nordheimer JJ.A.]

Counsel:

Diane Condo, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Firearms Offences, Evidence, Eye Witness Testimony, Burden of Proof, Fresh Evidence, Sentencing, Mandatory Minimum, Criminal Code, s. 244(3), R. v Palmer, [1980] 1 SCR 75, R. v Lacasse, 2015 SCC 64

R. v McClennan, 2018 ONCA 542

[Doherty, Pepall and Nordheimer JJ.A.]

Counsel:

David Friesen, for the appellant

Stephen Menzies, for the respondent

Keywords: Criminal Law, Summary Convictions, Impaired Care or Control of a Motor Vehicle,  Evidence, Breathalyzer, Palpable and Overriding Error, Criminal Code, s. 258(1)(a)

R. v Patel, 2018 ONCA 54

[Doherty, Pepall and Nordheimer JJ.A.]

Counsel:

Jeffrey Rybak, for the appellant

Megan Patric, for the respondent

Keywords: Criminal Law, Fraud, Self Represented Parties, Right to Counsel, Adjournments, Charter of Rights and Freedoms s 10(b), R. v  Hazout (2005), 199 CCC (3d) 474 (Ont. CA)

R. v Noftall (Publication Ban)

[Lauwers, Pardu and Huscroft JJ.A.]

Counsel:

Nader R. Hasan, duty counsel

Edward Noftall, in person

Leslie Paine, for the respondent

Keywords: Criminal Law, Sexual Assault, Honest but Mistaken Belief in Consent, Evidence, Credibility, Demeanor, Prior Inconsistent Statements, R. v Ewanchuk, [1999] 1 SCR 330, R. v Dinardo, 2008 SCC 24, R. v J. (M.A.), 2015 ONCA 725, R. v Warren, 2016 ONCA 104

R.v R.V., 2018 ONCA 547

[MacFarland, Watt and Paciocco JJ.A.]

Counsel:

Jonathan Dawe, for the appellant

Katie Doherty, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Admissibility, Cross-Examination, DNA Evidence, Credibility, Criminal Code, ss. 276, 152,  669.2, R. v M.T., 2012 ONCA 511, R. v Seaboyer, [1991] 2 SCR 577, R. v L.S., 2017 ONCA 685 Canadian Charter of Rights and Freedoms, ss. 7, 11(d)

Simopoulos (Re), 2018 ONCA 546

[MacFarland, Watt and Paciocco JJ.A.]

Counsel:

Anita Szigeti, for the appellant Mason Simopoulos

Elena Middelkamp, for the respondent the Attorney General of Ontario

Keywords: Criminal Law , NCRMD, Ontario Review Board, Criminal Harassment, Failure to Comply With Recognizance, Substance Abuse, Medical Marijuana

R.v Ruthowsky, 2018 ONCA 552 (Publication Ban)

[Paciocco J.A. (Motion Judge)]

Counsel:

Gregory Lafontaine, for the applicant

Michael Perlin, for the respondent

Keywords: Criminal Law, Bribery, Attempt to Obstruct Justice, Breach of Trust, Bail Pending Appeal, Public Interest, Reasonable Apprehension of Bias, Criminal Code, ss 679(3), 679(10), R. v Oland, 2017 SCC 17, R. v Manaserri, 2013 ONCA 647

R. v N.B., 2018 ONCA 556

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

Counsel:

Anthony Moustacalis, for the appellant

Michael Bernstein and Frank Au, for the respondent

Keywords: Criminal Law, First Degree Murder, Forensic Evidence, Youth Criminal Justice Act, S.C. 2002, c.1, s. 146(2), Canadian Charter of Rights and Freedoms, s 10(b), R. v Azzam, 2008 ONCA 467

R. v Klimitz, 2018 ONCA 553

[Lauwers, Pardu and Miller JJ.A.]

Counsel:

David Klimitz, acting in person

Gerald Chan, appearing as duty counsel

Hannah Freeman, for the respondent

Keywords: Criminal Law, Theft, Fraud, Restitution, Evidence, Cross-Examination, Canadian Charter of Rights and Freedoms, s 11(b), R. v Bradshaw, 2017 SCC 35, R. v Khelawon, 2006 SCC 56

R. v Spilman, 2018 ONCA 551

[Rouleau, Watt and Brown JJ.A]

Counsel:

Derek Norman Spilman, acting in person

Amy Ohler, appearing as duty counsel

Lorna Bolton, for the respondent

Keywords: Criminal Law, Assault Causing Bodily Harm, Dangerous Offenders, Sentencing, Serious Personal Injury Offences, Criminal Code, ss 753(1)(a), 810.2, R. v Boutilier, 2017 SCC 64

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 (JUNE 4 – JUNE 8)

Good afternoon.

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

Off the top, I would like to congratulate our very own Thomas Durcan on successfully representing the respondents in Farmer v. 145 King Street West, 2018 ONCA 525, which resulted in a dismissal of the claim against our clients.

The theme of this week was real property. In an important environmental law decision involving the contamination of lands from dry cleaning solvents, Huang v. Fraser Hillary’s Limited, the Court acknowledged an apparent divergence in the law of nuisance between Canada and England, but confirmed that in the absence of any binding Supreme Court of Canada authority to the contrary, foreseeability is not a necessary element of the tort of nuisance in Canada. The lower court’s decision was upheld and the appeals by both sides were dismissed. This case, along with the Court’s recent decision in Sorbam v. Litwack, 2017 ONCA 850, focuses liability on the polluter, rather than landlords and neighbours through whose lands contamination may pass but who were not themselves the source of the contamination.

In Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, the Court was tasked with determining the proper measure of damages for breach of a commercial lease. The tenant repudiated the lease. In mitigation of its damages, the landlord could not quickly re-let the premises, but also could not afford the carrying costs of the property. It was therefore forced to sell the property. The landlord claimed that it was forced to sell at below market value and claimed, and was awarded, these damages from the tenant. The landlord also claimed, and was awarded, damages for the lost capital appreciation of the property that the landlord would have enjoyed during the balance of the term of the lease. The Court of Appeal set aside both these elements of the damages awarded. Damages for lost capital appreciation were found not to meet the second branch of the two-part Hadley v. Baxendale foreseeability of damage test for breach of contract. It was not in the reasonable contemplation of the parties that the tenant would be responsible for lost capital appreciation upon breach. The Court also did not agree that the evidence supported a finding that the property had been sold for less than fair market value, and accordingly reduced the damage award in that regard as well. The damages were ultimately calculated as the lost rents during the balance of the term of the lease, minus any savings the landlord enjoyed by no longer owning the property (like the interest on its mortgage payments).

In Smiles First Corporation v. 2377087 Ontario Limited (International Union of Painters), the Court granted relief against a landlord’s attempt to terminate Smiles First’s tenancy on the basis that the landlord had not consented to an assignment of the head lease to Smiles First (which also had a sublease with the head tenant). Given that the landlord was not enforcing a right of re-entry, the Court held that this was not a case for relief from forfeiture under section 98 of the Courts of Justice Act, RSO 1990, c C43. Nevertheless, the Court found that Smiles First was entitled to possession until the end of the term of the sublease. The Court found that the application judge erred in law when he concluded that the sublease terminated upon the abandonment of the premises by the head tenant. The Court cited Kowalski and Shoota v. Gale, [1947] 1 DLR 354 (Ont CA) for the proposition that where a tenant surrenders a head lease to the landlord, the subleases with the surrendering tenant survive until the end of their stated terms and do not fall away with the head lease.

Other topics covered this week included the test required to establish a right to a prescriptive easement, striking pleadings without leave to amend, summary judgment in the commercial finance context and the prevailing issue of whether an order is final or interlocutory.

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

I hope everyone is enjoying the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

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

Table of Contents

Farmer v. 145 King Street West, 2018 ONCA 525

Keywords: Torts, Negligence, Slip and Fall, Motor Vehicle Accident, Civil Procedure, Dismissal for Delay, Langenecker v. Sauvé, 2011 ONCA 903

Huang v. Fraser Hillary’s Limited, 2018 ONCA 527

Keywords: Torts, Nuisance, Negligence, Trespass, Environmental Law, Contamination, Statutory Liability, Environmental Protection Act, Sections 93 and 99(2), Rylands v. Fletcher, (1868) LR 3 HL 330, Smith v. Inco, 2011 ONCA 628, Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108

Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519

Keywords: Contracts, Real Property, Commercial Leases, Breach of Contract, Repudiation, Damages, Remoteness, Hadley v. Baxendale (1854), 156 ER 145 (UK Ex Ct), Mitigation, Quantification, Fair Market Value, Ticketnet Corp. v. Air Canada (1997), 154 DLR (4th) 271 (CA), Musqueam Indian Band v. Glass, 2000 SCC 52

Smiles First Corporation v. 2377087 Ontario Limited (International Union of Painters), 2018 ONCA 524

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord’s Consent to Assignment, Subleases, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C 43, s 98, Kowalski and Shoota v. Gale, [1947] 1 DLR 354

Esfahani v. Samimi, 2018 ONCA 516

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Enforcement, Fraudulent Conveyances, Summary Judgment, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, RSC 1985, c B-3, Fraudulent Conveyances Act, RSO 1990, c F 29, Assignment and Preferences Act, RSO 1990, c A 33, Rules of Civil Procedure, Rule 20.04(4), Rule 20.05(1), Courts of Justice Act, RSO 1990, c C 43, s 19(1)(b)

Carpenter v. Doull-MacDonald, 2018 ONCA 521

Keywords: Real Property, Prescriptive Easements, Real Property Limitations Act, RSO 1990, c L 15, s 31, Henderson v Volk, [1982] OJ No 3138 (CA), 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91

Brozmanova v. Tarshis, 2018 ONCA 523

Keywords: Torts, Fraud, Civil Procedure, Striking Pleadings, Limitation Periods, No Reasonable Cause of Action, Fresh Step, Limitations Act, SO 2002, c 24, s 5(1), Rules of Civil Procedure, Rules 21.01(1)(a)-(b), Hunt v. Carey Canada Inc., [1990] 2 SCR 959

Rescon Financial Corporation v. New Era Development (2011), 2018 ONCA 530

Keywords: Summary Judgment, Real Property Financing, Fiduciary Duty, Negligence, Reverse Onus, Hodgkinson v. Simms, [1994] 3 SCR 377, Sanzone v. Schechter, 2016 ONCA 566

Sickinger v. Sickinger, 2018 ONCA 526

Keywords: Family Law, Spousal and Child Support, Variation, Calculation of Income, Orders, Disclosure, Roberts v. Roberts, 2015 ONCA 450, Fresh Evidence

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Civil Decisions

Farmer v. 145 King Street West, 2018 ONCA 525

[MacPherson, LaForme and Roberts JJ.A.]

Counsel: 

Antal Bakaity, for the appellant

Thomas Durcan, for the respondents, 145 King Street West and 2748355 Canada Inc.

Jennifer A Reid, for the respondent, JM

Keywords: Torts, Negligence, Slip and Fall, Motor Vehicle Accident, Civil Procedure, Dismissal for Delay, Langenecker v. Sauvé, 2011 ONCA 903

Facts:

This is an appeal from a judgment dismissing the appellants’ action against the respondents. The action arises out of two separate events in 2009 – an alleged slip and fall accident and a motor vehicle accident. After various procedural issues over the years, an order for a timetable was imposed on the parties. There was non-compliance with the timetable, leading the respondents to bring a motion to dismiss the action for delay. The appellant then initiated a motion to amend the timetable. The motions were heard together. The motion judge found that the plaintiff provided no explanation for the delay. The motion judge found that the plaintiff failed to rebut the presumption of prejudice and that there was a substantial risk that there could no longer be a fair trial. The motion judge granted the defendants’ motion to dismiss the action for delay.

Issues:

(1) Did the motion judge err by failing to address first the appellant’s motion to dispense with mediation?

(2) Did the motion judge err by reviewing the entirety of the case as opposed to examining the narrow circumstances of the events subsequent to the imposition of the timetable?

Holding: Appeal dismissed.

Reasoning:

(1) No. It is not clear from the record that the appellant ever made such a motion. In any event, even if it were made and were before the court, the motion judge was entitled to focus on the respondents’ broader motion which also involved consideration of the mediation step in the litigation.

(2) No. The motion judge was obliged to take into account the entire background of the case to put the parties’ motions into their proper context. However, she clearly focussed on the imposition of the timetable in 2015. Indeed, she described it as a “lifeline” that the appellant had failed to grasp.

It was open to the motion judge on this record to conclude that the appellant’s delay was inordinate and inexcusable and that she failed to rebut the presumption of prejudice to the respondents. This gave rise to a substantial risk that a fair trial would not be possible because of the delay: see Langenecker v. Sauvé, 2011 ONCA 903, at paras. 6-7. The motion judge’s findings are entitled to deference. There was no error that would permit appellate intervention.

Huang v. Fraser Hillary’s Limited, 2018 ONCA 527

[Hourigan, Benotto and Fairburn JJ.A.]

Counsel:

Michael S Hebert and Cheryl Gerhardt McLuckie, for the appellant/respondent, EH

Jonathan O’Hara and Michael Rankin, for the appellant/respondent, Fraser Hillary’s Limited

Christopher Reil and Jeremy Rubenstein, for the respondent, DH

Keywords: Torts, Nuisance, Negligence, Trespass, Environmental Law, Contamination, Statutory Liability, Environmental Protection Act, Sections 93 and 99(2), Rylands v. Fletcher, (1868) LR 3 HL 330, Smith v. Inco, 2011 ONCA 628, Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108

Facts:

Fraser Hillary’s Limited (“Fraser”) has operated a dry cleaning business since 1960. DH is the president and sole director of Fraser. DH is also the owner of a residential property that abuts Fraser’s property. EH owns properties directly adjacent to Fraser, but not abutting DH’s residential property.

During the period 1960 to 1974, solvents used in Fraser’s dry cleaning operations spilled onto the ground. Trichloroethylene (“TCE”) was an ingredient in the dry cleaning solution that Fraser used during this time. The environmental danger caused by this chemical was unknown at that time. In 2003, after environmental reports by the Ministry of Environment and Climate Change (MOECC) confirmed the soil and groundwater in EH’s property have a concentration of TCE that exceeds MOECC standards, EH put Fraser on notice about the contamination of his properties. In 2013, the MOECC concluded that it was not receiving significant communications from Fraser and that its remedial efforts to date did not appear to have had a significant impact on the contamination. Consequently, the MOECC issued two Provincial Officer’s Orders requiring Fraser to retain a qualified person and submit a detailed work plan to remediate the contamination. Fraser did not comply with either order and the MOECC initiated enforcement proceedings against Fraser under the Environmental Protection Act (“EPA”).

EH sued Fraser and DH for damages suffered as a result of the contamination of his property. The trial judge held Fraser liable in nuisance and under the EPA for approximately $1.8 million in damages arising from contamination of EH’s land by pollutants from Fraser’s dry cleaning business. The claim against DH in his capacity as landowner of land adjacent to that owned by Fraser was dismissed.

Both Fraser and EH appealed the decision. Fraser submitted that the trial judge erred in finding it liable, both in nuisance and under the EPA, for the remediation costs. EH’s primary submissions were that the trial judge erred in failing to find Fraser negligent, in failing to find DH liable in nuisance or in negligence, and in his assessment of damages.

Issues:

(1) Did the trial judge err in finding Fraser liable in nuisance?

(2) Did the trial judge err in not finding DH liable in nuisance?

(3) Did the trial judge err in finding Fraser liable under s. 99 of the EPA?

(4) Did the trial judge err in not finding Fraser and/or DH negligent?

(5) Did the trial judge err in not finding Fraser liable in trespass?

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

Holding: Appeals dismissed.

Reasoning:

(1) No. Fraser argued that the trial judge erred in law by failing to consider whether the environmental damage was reasonably foreseeable as part of his nuisance analysis. The court outlined and acknowledged the divergence in British law from Canadian law and the fact that the law may be evolving in this country. Reasonable foreseeability of harm has been accepted as part of British law in respect of nuisance and in the Rylands v. Fletcher, (1868) LR 3 HL 330 (strict liability) context. However, there has been mixed acceptance of the reasonable foreseeability requirement in this country. To demonstrate this point, the court cited its own decision in Smith v. Inco, 2011 ONCA 628, as well as the Alberta Court of Appeals decision in Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108.

In Smith v. Inco, the court declined to decide whether foreseeability is a requirement under Rylands v. Fletcher, but did observe that compelling reasons exist to require foreseeability of damage as a necessary element. In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Court followed the Inco decision in upholding the decision to dismiss a class action under the doctrine in Rylands v. Fletcher because the element of foreseeability could not be established. Yet, without discussing whether foreseeability was a necessary element of the nuisance claim, the court permitted certain of the class claimants to pursue their nuisance claims.

The court then noted that the Supreme Court of Canada recently considered the elements of private nuisance in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Nowhere in its analysis did the Court indicate that foreseeability is part of the tort of nuisance. The court concluded that in the absence of any binding Canadian authority, foreseeability is not a necessary part of the tort of nuisance in Canada.  The court stated that “the addition of a foreseeability requirement blurs the distinction between negligence and nuisance.”

(2) No. DH was only sued in his capacity as the owner of the residential property and not as an officer or director of Fraser. The trial judge’s finding that the property in question is not the source of the contaminant is entitled to deference. The court found no error in the trial judge’s conclusion that causation had not been established, and that DH did not subject EH to an unreasonable interference with his use and enjoyment of his properties.

(3) No. The court rejected the argument that the trial judge erred because he retrospectively applied Part X of the EPA. In the court’s view, time does not freeze in 1974 for the purposes of liability under section 99(2) of the EPA. Even if the spills ceased in that year, there was an ongoing obligation under section 93 of the EPA to remediate the damage. That remediation has not been done. Therefore, there is liability under section 99(2)(a)(i) and (ii) because Fraser has not fulfilled a duty imposed on it under Part X of the EPA.

(4) No. The trial judge made a finding of mixed fact and law that Fraser and DH did not breach the standard of care until 2013. He concluded that there had been no appreciable increase in contamination since 2013. The court gave deference to the trial judge’s conclusion that causation had not been established given that there had been no increase in contamination during the relevant time that would have any impact on the requirement for remediation or its associated costs.

(5) No. The trial judge correctly identified that a direct physical intrusion onto EH’s properties was required in order to establish a trespass. He found that the intrusion was not direct because the contaminant entered into the ground, filtered down and was then carried to EH’s properties in the groundwater.

(6) No. The court determined that the trial judge carefully considered the evidence and determined what he felt was the appropriate figure for damages. He was entitled to reject the damages scenarios that he felt were unsuitable in the circumstances. He chose to increase the damages based on evidence about upward adjustments for other similar remediation alternatives in order to compensate EH for the increased costs of remediating to a residential standard. The court saw no palpable or overriding error in his analysis, and accordingly, was not satisfied that there was any basis for appellate interference with the trial judge’s assessment of damages.

Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519

[Pepall, Trotter and Nordheimer JJ.A.]

Counsel:

David R Byers, Patrick G Duffy and Michael Currie, for the appellants

Luisa J Ritacca and Fredrick R Schumann, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Breach of Contract, Repudiation, Damages, Remoteness, Hadley v. Baxendale (1854), 156 ER 145 (UK Ex Ct), Mitigation, Quantification, Fair Market Value, Ticketnet Corp. v. Air Canada (1997), 154 DLR (4th) 271 (CA), Musqueam Indian Band v. Glass, 2000 SCC 52

Facts:

The defendants, Delco Wire and Cable Limited (“Delco”) and IEWC Canada Corp. (“IEWC”) repudiated a commercial lease with respect to a property owned by the plaintiff, Saramia Crescent General Partner Inc. (“Saramia”). Subsequent to the repudiation, Saramia sold the property to mitigate its loss. The issue at trial was what amount of damages, if any, were due to Saramia by Delco and IEWC.

At Trial

The trial judge found that Saramia was forced to sell the property following repudiation, because Saramia could not afford the ongoing maintenance and mortgage expenses absent the rental income. The trial judge also found that the sale was not at fair market value and, as a consequence, did not make Saramia whole for the losses sustained as a result of the repudiation.

The trial judge concluded that Saramia not only would have enjoyed the benefit of the lost rental profits under the lease, but would have also enjoyed the capital appreciation of the property. The trial judge concluded that the sale of the property in 2013 did not account for these benefits, which Saramia would have enjoyed had the lease been honoured.

The trial judge accepted the appraised value at December 31, 2015 as $4,465,000. This value was used in the discounted cash flow (“DCF”) analyses to calculate total damages. For the basis of her damages award, the trial judge adopted the scenario that employed the December 31, 2015, appraised value of the property. In this scenario, this price was then projected forward to 2021 at the same assumed growth rate of 2% per year along with the same 2% discounted rate. The trial judge deducted the mortgage break fee amount that Saramia had to pay from the principal amount available for reinvestment for mitigation purposes. She also awarded an amount of contractual interest owing under the lease.

On appeal, the appellants argued that the sale of the property fully mitigated or avoided any damages, and that damages for lost capital appreciation were too remote.

Issues:

(1) What is the proper measure of damages for breach of a commercial lease?

(2) Were the damages for lost capital appreciation too remote?

(3) Were the damages mitigated?

(4) Does the sale of the Property stop damages from accruing beyond the date of the sale?

(5) Are the damages as calculated by the DCF too uncertain?

(6) Was it an error to award the contractual interest amount as damages?

Holding: Appeal allowed.

Reasoning:

(1) The appellants are liable for the rental payments they did not make, subject to Saramia’s duty to mitigate and the expenses Saramia avoided by selling the property. Any “but for” capital appreciation there may have been in the property going forward is not a proper head of damages for which the appellants are liable through their repudiation.

(2) Yes. The test for remoteness is set out in Hadley v. Baxendale (1854), 156 ER 145 (UK Ex Ct). This test states that damages may be recovered if:

(i) in the usual course of things, they arise fairly, reasonably, and naturally as a result of the breach of contract; or

(ii) they were within the reasonable contemplation of the parties at the time of the contract.

The trial judge conflated the two branches of the test set out in Hadley v Baxendale for remoteness of damages. The test under the first branch is objective. The question is not whether the type of loss was foreseeable as arising naturally in this case, but whether, objectively viewed, lost capital appreciation is a type of loss that foreseeably and naturally arises “according to the usual course of things” from the breach of a commercial lease.

With respect to the second branch of remoteness from Hadley v Baxendale, there was nothing in the evidence that would support a conclusion that the parties contemplated, at the time that they entered into or extended the lease, that capital appreciation of the property would be something for which the tenant would be liable to the landlord if the lease was breached.

Therefore, the claimed damages for lost capital appreciation fell outside of both branches of Hadley v Baxendale and were too remote and not recoverable.

(3) No. First, the Court held that the trial judge erred in her interpretation of fair market value (“FMV”). The definition of FMV is well established as being what a seller is willing to accept and a buyer is willing to pay on the open market in an arm’s length transaction (Musqueam Indian Band v. Glass, 2000 SCC 52). That Saramia was forced to sell the property did not disqualify it as a willing seller. Willing, in this sense, refers to the price offered and accepted. Next, there was no evidence to suggest that Saramia sought a price for the property at anything less than what the property was worth. Despite this, the trial judge found the price to have been below FMV. Opinion evidence that had been offered by Saramia’s Vice-President, which could have been self-serving and which was accepted by the trial judge in making this finding, was contradicted by Saramia’s own property appraisal expert. Further, the evidence established that there were three (3) prospective buyers and that the eventual sale price was comparable to other industrial properties in the market.

Nevertheless, the damages were not fully mitigated. This was because the proceeds from the FMV sale of the property did not compensate Saramia for the lost economic value derived from the lease because the lease had, prior to the sale, been repudiated. Moreover, the Supreme Court held previously held in Musqueam Indian Band v. Glass, 2000 SCC 52, that the FMV of land is the exchange value of the land in fee simple and does not include value derived from a lease.

(4) No. The sale of the property by Saramia was not an independent and inevitable event that occurred regardless of the appellants’ repudiation of the contract. The line of reasoning in Canadian Medical Laboratories Ltd. v. Stabile (1997), 98 OAC 3, is thus distinguishable from the facts of this case. Moreover, it would be anathema to the purpose of the mitigation doctrine to hold that a reasonable action taken by the innocent party intended to mitigate damages could be used by the wrongdoer as a means to escape liability. To the extent that a defendant landlord sells leased premises as a reasonable means of mitigating damages following a tenant’s repudiation of a lease, the sale of the leased premises does not bar the landlord’s claim for lost rental payments after the date of sale.

(5) No. DCF calculations are not purely hypothetical or speculative, but are a sufficiently certain means of quantifying damages where the projections constitute a close approximation of what would have occurred on a balance of probabilities: Ticketnet Corp. v. Air Canada (1997), 154 DLR (4th) 271 (CA), at para. 87. However, the appropriate value to use in the DCF calculations was the 2013 sale price, not the 2015 FMV appraisal. There is no basis to depart from the trial judge’s preference for the KPMG method of calculation. It was appropriate of the trial judge to require that the mortgage break fee be deducted from the proceeds of sale for the purpose of the DCF calculations rather than to treat that amount as a separate head of damages.

(6) Yes. The trial judge’s reasons are unclear as to the legal basis for the award of contractual interest. The reasons show that she could have intended either that the contractual interest was a head of expectation damages resulting from a breached contract, or an amount awarded pursuant to the enforcement of a subsisting contract. In both cases, the award was in error. In the case of expectation damages, the trial judge would have had to rely on a submission from Saramia but the trial judge failed to analyze why she accepted the submission, fatally failing in the process by not linking the “what” and “why.” In the contractual enforcement case, Saramia’s acceptance of the appellants’ repudiation of the Lease terminated the contract and thus the trial judge committed an error in law by awarding contractual interest on the basis of continual rent arrears on a contract which was no longer alive. Interest is instead payable in accordance with the Court of Justice Act.

In the result, the appeal was allowed, and the trial judge’s damages award was set aside, to be replaced by a new damages award calculated in accordance with the court’s reasons.

Smiles First Corporation v. 2377087 Ontario Limited (International Union of Painters), 2018 ONCA 524

[Epstein, van Rensberg and Brown JJ.A.]

Counsel:

Tanya Walker, for the appellants

Arleen Huggins, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord’s Consent to Assignment, Subleases, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C 43, s 98, Kowalski and Shoota v. Gale, [1947] 1 DLR 354

Facts:

The respondent, 2377087 Ontario Limited (the “Landlord”), entered into a head lease with 2445855 Ontario Inc. (“244”) (the “Head Lease”). 244 then subleased the premises to Smiles First by letter of intent (the “Sublease”). Disputes arose under both the Head Lease and the Sublease. Smiles First and 244 advised the Landlord that they had entered into a tentative agreement to resolve their disputes. However, their agreement was “contingent on the Landlord’s approval of assigning 244’s Head Lease to Smiles First and/or the Landlord entering into a new head lease with Smiles First.

Two events then occurred. First, 244 executed an assignment of the Head Lease to Smiles First (the “Head Lease Assignment”). This assignment required the Landlord’s Consent, following which 244 would transfer and assign to Smiles First all of its rights under the Head Lease. Neither Smiles First nor 244 asked the Landlord for consent to the assignment.

Second, the Landlord, 244, and Smiles First embarked on negotiations to revise the leasing arrangements for the Premises. The Landlord wanted to enter into a new head lease directly with Smiles First, and 244 wanted nothing more to do with the premises. The Landlord circulated draft Minutes of Settlement and a new form of head lease with Smiles First. Smiles First refused to sign the Minutes of Settlement, taking the position that it was an “official tenant” pursuant to the Head Lease Assignment. The Landlord responded that it had not consented to the Assignment and expected Smiles First to sign a new head lease directly with it. The Landlord took the position that Smiles First now occupied the Premises as “an occupant subject to a month to month term.”

On March 21, 2017 the Landlord gave Smiles First notice that its tenancy would end on April 30, 2017 (the “Notice of Termination”). Smiles First brought an application of relief from forfeiture, which was dismissed. Smiles First appealed.

Issues:

(1) Did the application judge err in concluding the Landlord was not bound by the Head Lease Assignment?

(2) Did the application judge err in refusing to grant Smiles First relief from forfeiture of its tenancy?

Holding: Appeal allowed.

Reasoning:

(1) No. This issue turned on: (i) the language of the Head Lease Assignment; (ii) the effect of certain correspondence between the parties’ counsel in October and November 2016; and (iii) the acceptance of rent from Smiles First after November 2016.

The application judge held that the Head Lease Assignment did not operate to assign 244’s interest in the Head Lease to Smiles First and was not effective as against the Landlord because neither Smiles First nor 244 obtained the Landlord’s consent to the Head Lease Assignment, as required by the specific terms of the assignment. Further, the correspondence amongst the parties did not constitute actual or constructive notice to the Landlord of the Head Lease agreement. The Court found those findings were based on a reasonable interpretation by the application judge of the terms of the Head Lease Agreement and Head Lease.

Furthermore, the application judge held that the Landlord’s acceptance of rent from Smiles First did not (i) amount to its recognition of an equitable assignment of the Head Lease; (ii) constitute a waiver of its rights; or (iii) estop the Landlord from asserting those rights. The Court held that the evidence showed that the Landlord’s acceptance of the rent was done during the period of time when it had made clear that Smiles First needed to enter into a new head lease directly with it, and saw no reversible error in the application judge’s analysis.

(2) No. This was not a case for relief from forfeiture under s. 98 Courts of Justice Act, RSO 1990, c C43, as the Landlord was not trying to enforce a right of re-entry of forfeiture. However, Smiles First was still entitled to relief against the Landlord’s attempt to terminate its possession of the premises. The application judge found that 244 abandoned the premises as part of its settlement with the Landlord and that this resulted in the termination of the Sublease. As a matter of law, it did not. Where the tenant surrenders a head lease to the landlord, the subleases created by the surrendering tenant survive until the end of their stated terms: Kowalski and Shoota v. Gale, [1947] 1 DLR 354 (Ont CA), at paras. 32-33. Smiles First was entitled to possession of the Premises until the end of the term of the Sublease on the terms and conditions contained in its Sublease.

Esfahani v. Samimi, 2018 ONCA 516

[MacPherson, LaForme and Miller JJ.A.]

Counsel:

A Landry and E Florjancic, for the appellant

A Zweig, for the respondents

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Enforcement, Fraudulent Conveyances, Summary Judgment, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, RSC 1985, c B-3, Fraudulent Conveyances Act, RSO 1990, c F 29, Assignment and Preferences Act, RSO 1990, c A 33, Rules of Civil Procedure, Rule 20.04(4), Rule 20.05(1), Courts of Justice Act, RSO 1990, c C 43, s 19(1)(b)

Facts:

DE obtained a judgment in Germany against KS in 2007 and then a judgment in Ontario recognizing the German judgment and its enforceability in the Superior Court. DE received no payments and brought an action in 2011 claiming damages and pleading that KS fraudulently conveyed properties to evade payment.

In November 2013, KS filed an assignment in bankruptcy. The report of the Trustee in Bankruptcy dated July 3, 2014 was served on DE. He did not file any written opposition to the discharge of KS who was discharged from bankruptcy on August 7, 2014.

Also in 2013, DE brought a summary judgment motion but agreed to proceed with the motion as a mini trial. The mini trial was to address a single issue: whether KS engaged in a series of transactions with the intent to defeat, delay, hinder or prejudice DE from receiving payment for the 2011 judgment. In March 2015 the mini trial judge ruled that KS did engage in the described conduct.

In October 2017, the summary judgment from 2013 continued. DE relied on the Fraudulent Conveyances Act, RSO 1990, c F 29, (“FCA“) and the Assignment and Preferences Act, RSO 1990, c A 33, (“APA”) to recover the proceeds of the fraudulent conveyances. KS argued that because he had been discharged from bankruptcy in 2014, there was no “debt” which can form the basis of a judgment. The motion judge held that DE had failed to follow the correct procedure to realize on the amounts owing under the 2009 enforcement judgment. She dismissed DE’s motion, but noted that “[DE] of course still has the simple and direct option of moving under the Bankruptcy and Insolvency Act to pursue the FCA action.”

Issues:

(1) Is the motion judge’s holding a final order?

(2) What is the correct court jurisdiction for this appeal?

(3) Can the appellant pursue the fraudulent conveyance claim in another forum?

(4) Can the appellant pursue other causes of action previously pleaded?

Holding: Appeal quashed.

Reasoning:

(1) No. The summary judgment order is an interlocutory order, not a final order. In dismissing the summary judgment motion, the motion judge did not invoke Rule 20.04(4) or 20.05(1) to determine the final and substantive rights of the parties.

(2) Divisional Court. An appeal of an interlocutory order properly lies in the Divisional Court with that court’s leave pursuant to section 19(1)(b) of the Courts of Justice Act. The Court of Appeal may only transfer an appeal to the Divisional Court if the appeal does not require leave to appeal to that court.

(3) DE can still pursue his fraudulent conveyance claims in Bankruptcy Court.

(4) To the extent the conspiracy claim can be separated from the fraudulent conveyance claim, DE is free to continue his efforts and carry on with it in the Superior Court.

Carpenter v. Doull-MacDonald, 2018 ONCA 521

[MacPherson, LaForme and Roberts JJ.A.]

Counsel:

Robert Kalanda, for the appellant

Sarah Corman and Hilary Brown, for the respondent

Keywords: Real Property, Prescriptive Easements, Real Property Limitations Act, RSO 1990, c L 15, s 31, Henderson v Volk, [1982] OJ No 3138 (CA), 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91

Facts:

The appellant appeals from the dismissal of her application for a declaration that she holds a permanent easement over part of the respondent’s property.

The appellant and respondent own neighbouring houses. The appellant claims a right of easement over the passageway between the two houses. No easement is registered on title to the appellant’s property. The appellant bases her claim on the historical use exercised by the former owner of the property over the respondent’s property in order to carry out cleaning and repairs.

She submits that the application judge erred in determining that this historical use of the respondent’s property was not “as of right” but was instead granted by permission or licence.

Issue:

(1) Does the appellant have a right of easement over the passageway between the two houses that runs to the backyards?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge concluded that the historical usage of the respondent’s property on which the appellant relies was only “modest, infrequent, and intermittent”, and was permitted by the extension of the former owner’s neighbourly good will.

As noted by the application judge, the threshold for meeting the criteria for establishing an easement is high. The application judge carefully reviewed and applied the correct legal principles, including that a prescriptive easement requires the use of the property over which the easement is claimed to be “a claim of right which is continuous, uninterrupted, open and peaceful for a period of twenty years”: see s. 31 of the Real Property Limitations Act, RSO 1990, c L15; and Henderson v Volk, [1982] OJ No 3138 (CA), at para. 12. Moreover, the use or enjoyment of the easement “must not be permissive but, instead, as if the claimant had the right to the easement”: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at para. 59. The application judge’s characterization of the occasional permissive historical usage of the respondent’s property was open to him on the record.

Brozmanova v. Tarshis, 2018 ONCA 523

[Brown, Huscroft and Trotter JJ.A.]

Counsel:

Richard Parker, for the appellant

Andrew Kalamut, for the respondents

Keywords: Torts, Fraud, Civil Procedure, Striking Pleadings, Limitation Periods, No Reasonable Cause of Action, Fresh Step, Limitations Act, SO 2002, c 24, s 5(1), Rules of Civil Procedure, Rules 21.01(1)(a)-(b), Hunt v. Carey Canada Inc., [1990] 2 SCR 959

Facts:

The appellant appeals an order striking out her statement of claim without leave to amend. In the claim, the appellant sought damages from her former employer of several years. The appellant alleged that the respondent had billed the Ontario Health Insurance Plan (“OHIP”) for treatments of conditions she had never had. OHIP assured her that the entries would be removed but they remained on her record and the appellant has, since before 2010, been unable to obtain health insurance. The motion judge granted the motion to strike on the grounds that the action was commenced outside the applicable limitation period under Rule 21.01(1)(a) of the Rules of Civil Procedure and on the basis that no reasonable cause of action had been disclosed under Rule 21.01(1)(b).

Issue:

(1) Did the motion judge err in striking the statement of claim without leave to amend?

Holding: Appeal dismissed.

Reasoning:

(1) No. Rules 21.01(1)(a) and (b) ask a court to determine a question of law which may dispose of a proceeding. Evidence on such motions is generally prohibited and the pleadings are taken as true (Hunt v. Carey Canada Inc., [1990] 2 SCR. 959). On a Rule 21.01(1)(a) motion, however, the court must ascertain the appropriate day in law on which the claim was discovered under s. 5(1) of the Limitations Act, 2002. Such analysis does not involve a question of law. In some circumstances, allowing a defendant to move under rule 21.01(1)(a) to adjudicate its fact-based defence can be prejudicial to the plaintiff. The respondent’s motion in this case, was, in effect, a motion for summary judgment. That said, the applicant’s counsel did not advance any irregularity in the respondents’ use of rule 21.01(1). The facts pleaded and admissions made by the appellant established that the appellant was statute-barred from advancing the claim. That the damage she discovered in 2009 was not the same damage which she sought recovery for in her action does not matter (Hamilton (City) v Metcalf & Mansfield Capital Corporation). The respondent’s reliance on Rule 21.01(1)(b) (no reasonable cause of action) was misplaced because it had already taken a fresh step by defending the claim and such a motion must be brought before a defence is delivered.

Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530

[MacPherson, LaForme and Roberts JJ.A.]

Counsel:

DK Alderson and A Ottaway, for the appellant

S Crocco and PH Smiley, for the respondents

Keywords: Summary Judgment, Real Property Financing, Fiduciary Duty, Negligence, Reverse Onus, Hodgkinson v. Simms, [1994] 3 SCR 377, Sanzone v. Schechter, 2016 ONCA 566

Facts:

The appellant, New Era Development (2011) Inc. (“New Era”), appeals the summary judgment granted in favour of the respondent Rescon Financial Corporation (“Rescon”) which granted Rescon’s claim and dismissed New Era’s counterclaim against Rescon and its founding principal, EB.

Rescon is a mortgage broker. Rescon claimed $400,000 in fees from New Era for arranging construction financing for a condominium project. New Era denied that it owed fees and submitted on the motion that Rescon failed to perform the terms of the contract between the parties, resulting in $4 million in damages.

In February 2010, RV incorporated New Era which purchased a parcel of land (“the Bristol Lands”) for $2.8 million. In June 2014, RV approached Rescon to arrange about $40 million in financing for the construction and development of the Bristol Lands. On July 8, 2014, RV delivered a signed copy of the retainer agreement between the parties. The parties approached Alterna Savings and Credit Union Limited (“Alterna”) for financing to develop the Bristol Lands. Alterna delivered a Letter of Intent dated September 30, 2014 (the “LOI”), for Construction Financing of the Bristol Project, which was returned with handwritten changes and a cheque for $50,000 payable to Alterna. Rescon obtained a Commitment Letter from Alterna (the “Second Commitment Letter”) proposing a Construction and Development loan of $39 million, as well as a Letter of Credit facility of $1 million on terms that largely reflected the terms found in the Alterna LOI.

After concerns were expressed the Project Monitor regarding the conditions precedent for funding, budget overruns, and mezzanine financing, the relationship between New Era and Rescon began to sour. On June 19, 2015, New Era sent an email to Alterna terminating the Second Commitment Letter. Later that day, Alterna forwarded New Era’s email to Rescon. On July 2, 2015, Rescon sent an email to New Era containing an invoice for $400,000. After further discussions between Rescon and New Era regarding the continuation of their relationship, New Era informed Rescon, via text, that its services were no longer required. New Era refused to pay the $400,000 sought in Rescon’s invoice. Rescon commenced an action. New Era counterclaimed. Rescon’s claim was granted and New Era’s counterclaim was dismissed by way of summary judgment. New Era appealed.

Issues:

(1) Did the motion judge err by finding Alterna’s Second Commitment letter acceptable?

(2) Did the motion judge err by failing to make credibility findings on certain key issues?

(3) Did the motion judge err in rejecting the appellant’s defence of the agent’s breach of duty?

(4) Did the motion judge err in concluding that there was no fiduciary relationship between the parties?

(5) Did the motion judge err in law by determining causation before making findings on the standard of care on the agent’s breach of duty issue and in the absence of any expert evidence filed by the respondents establishing the standard of care?

(6) Did the motion judge err by shifting the onus to the appellant to demonstrate that there was a genuine issue for trial?

(7) Did the motion judge err by dismissing the counterclaim on a summary basis?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is no genuine issue requiring trial regarding whether the Second Alterna Commitment Letter was “an acceptable commitment letter”. New Era had accepted it not only once, but twice.

(2) No. The record before the motion judge discredited RV’s evidence and supported the motion judge’s conclusion.

(3) No. This argument essentially covers the same factual terrain as the first issue and was rejected for the same reasons.

(4) No. The motion judge’s review of the evidence on this issue established clearly that RV was far from being a neophyte shrinking violet in his relationship with EB. Furthermore, the motion judge’s decision on this point was entitled to significant deference: see Hodgkinson v. Simms, [1994] 3 SCR 377, at para. 96.

(5) No. There is no conceivable standard of care analysis that could have made a difference, given that the motion judge correctly found that the respondent did not breach its duty.

(6) No. With the respondents having discharged their evidentiary burden of proving that there was no genuine issue requiring a trial for its resolution, the onus shifted to the appellant to show that the claim had a real chance of success and that there were genuine issues requiring a trial: Sanzone v. Schechter, 2016 ONCA 566, at para. 30. It did not discharge that onus.

(7) No. There was a pronounced overlap between the defence and the counterclaim. The motion judge was not wrong to conclude that the allegations and defences raised in the statement of defence do not raise a genuine issue requiring a trial and so the Counterclaim should be dismissed for the same reason that Rescon’s claim was successful.

Sickinger v. Sickinger, 2018 ONCA 526

[MacPherson, LaForme and Roberts JJ.A.]

Counsel:

Gary S Joseph, for the appellant

Dena N Varah and Katharine Costin, for the respondent

Keywords: Family Law, Spousal and Child Support, Variation, Calculation of Income, Orders, Disclosure, Roberts v. Roberts, 2015 ONCA 450, Fresh Evidence

Facts:

The appellant, RS, appeals the motion judge’s decision dismissing his motion to vary and granting the respondent, PS’ cross-motion. Issues of spousal and child support were decided for RS and PS.

RS brought his first motion to vary to reduce child support and reduce or terminate spousal support. A seven-day trial took place resulting in a final order. He then brought his second motion to vary, which was to be heard on affidavit evidence. It was ordered that RS was to provide current financial disclosure, including his tax returns. Having failed to produce the ordered disclosure, RS sought an adjournment of his second motion to vary. He was in serious default of his obligations to pay support and to make financial disclosure.

RS sought a further adjournment of his second motion to vary. Justice Glustein adjourned the motion and stipulated that no further affidavit material could be filed thereafter. RS did not appeal this order. In spite of this order, RS late-served a financial statement and 13 affidavits on PS. He then brought a Form 14B motion for leave to permit late service of his materials. On a later date, RS purported to serve and file six affidavits, contrary to Justice Glustein’s order that RS did not have a further right of reply. RS then filed a second 14B motion seeking an order that he be permitted the right of reply evidence. The affidavits did not contain RS’ income tax returns.

The motion judge considered the order by Glustein J. She noted the deadline to file any additional materials included his 2015 and 2016 tax returns. She found that RS had not complied with the order. The motion judge denied RS’ 14B motions. She concluded that any materials filed after the deadline would not form part of the motion to vary and would be removed from the court file.

The motion judge dismissed RS’ motion to vary because he had not produced any income tax returns and provided no valid reason for the lack of disclosure. She made further observations and findings.

Regarding an increase in parenting time from 40% to 50%, the motion judge found this was foreseeable at the time and found that there was no material change. The motion judge granted PS’ motion to vary. She found that PS’ financial situation had not changed, but RS’ had.

Issues:

(1) Was RS denied procedural fairness because the motion judge prohibited him from filing his late-filed affidavits?

(2) Was RS denied procedural fairness because the motion judge prohibited him from filing reply evidence?

(3) Did the motion judge err in law when she found that the increase in parenting “was foreseeable” and therefore not a “material change”?

(4) Should RS be granted leave to file his 2015 and 2016 tax returns as fresh evidence on appeal?

Holding: Appeal dismissed.

Reasoning:

(1) No. The record reveals that far from experiencing procedural unfairness, RS has benefitted significantly from several indulgences granted him by the court. The motion judge heard RS’ motion to vary almost three years after he commenced it. At the time, seven different judges dealing with various aspects of the proceeding, including case management, had all ordered RS to produce relevant disclosure.

As the court described it in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-12:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

(2) No. The motion judge made no error in dismissing his motion to file reply evidence late and in non-compliance with a court order. The exercise of her discretion should not be interfered with on appeal, absent an error on her part, which RS did not establish.

(3) No. The motion judge appropriately made her decision based on the record before her. RS has failed to establish any reason for the court to interfere with her comprehensively reasoned decision.

(4) No. The court declined to admit his 2015 and 2016 tax returns as fresh evidence. RS’ income tax returns were not included in any of the affidavits that were served, nor was there any reasonable explanation for their omission. RS ignored disclosure orders for over two years.

Short Civil Decisions

McPeake v. Cadesky & Associates, 2018 ONCA 500

[Juriansz, Benotto and Fairburn JJ.A.]

Counsel:

Geoffrey DE Adair, for the cross-appellant GJ

Sandra E Dawe, for the cross-respondent Cadesky & Associates

Alfred J Esterbauer and Sydney Hodge, for the cross-respondent BS

Yan David Payne and Karen J Sanchez, for BM

Keywords: Endorsement, Appeal Abandoned, Costs

Ontario Review Board Decisions

Beam (Re), 2018 ONCA 532

[Lauwers, Benotto and Miller JJ.A.]

Counsel:

Stephen F Gehl, for the appellant, MB

Logan Crowell, for the respondent, Ontario Shores Centre for Mental Health Sciences

Justin Reid, for the respondent, Attorney General for Ontario

Keywords: Criminal Law, Assault, Assault with Weapon, Not Criminally Responsible, Mental Disorder, Threat to Public Safety, Re Wall, 2017 ONCA 713, Conditional Discharge

Gibson (Re), 2018 ONCA 533

[Lauwers, Benotto and Miller JJ.A.]

Counsel:

Stephen F Gehl, for the appellant, MG

Catherine Weiler, for the respondent, Attorney General for Ontario

Keywords: Criminal Law, Harassment, Not Criminally Responsible, Mental Disorder, Threat to Public Safety, Conditional Discharge

Criminal Decisions

R. v. George-Nurse, 2018 ONCA 515

[MacPherson, Hourigan and Miller JJ.A.]

Counsel:

D George-Nurse, appearing in person

Brian Snell, appearing as duty counsel

Deborah Calderwood, for the respondent

Keywords: Criminal Law, Intentionally Discharging Firearm, Criminal Code, s 244.2(1)(b), Possession of Firearm in Unauthorized Place, Criminal Code, s 94(1), Appeal, Evidence, Circumstantial Evidence, R. v. Villaroman, 2016 SCC 33, Failure to Testify

R. v. Pitamber, 2018 ONCA 518

[Lauwers, Pardu and Huscroft JJ.A.]

Counsel:

Gerald Chan, duty counsel

Leslie Paine, for the respondent

Keywords: Criminal Law, Sentencing, Pre-sentence Custody, No Contact Provision, R. v. Plante, 2018 ONCA 251, Fresh Evidence, Parity Principle

R. v. Biddle, 2018 ONCA 520

[Laskin, Sharpe and Fairburn JJ.A.]

Counsel:

Leo Adler, for the applicant/appellant

Jamie Klukach, for the respondent

Keywords: Criminal Law, Assault, Assault with Weapon, Assault Causing Bodily Harm, Fresh Evidence, Criminal Code, s 696.3(2), R. v. Dixon, [1998] 1 SCR 244

R. v. Boe, 2018 ONCA 531

[Lauwers, Pardu and Miller JJ.A.]

Counsel:

D Boe, appearing in person

Nader R Hasan, appearing as duty counsel

Ian Bell, for the respondent

Keywords: Criminal Law, Possession for Purposes of Trafficking, Possession of Prohibited Weapon, Reasonable and Probable Grounds, Informants

R. v. Hoad, 2018 ONCA 528

[Lauwers, Pardu and Miller JJ.A.]

Counsel:

BJR Hoad, in person

Kevin Wilson, for the respondent

Keywords: Criminal Law, Possession of Marijuana, Seizure and Detention of Property, Jurisdiction, Certiorari

R. v. Turrett, 2018 ONCA 529

[Lauwers, Pardu and Miller JJ.A.]

Counsel:

Gerald Chan, duty counsel

J Turrett, in person

Leslie Paine, for the respondent

Keywords: Criminal Law, Sentencing, Breach of Court Order

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 (MAY 28 – JUNE 1)

Good evening,

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

In a lengthy decision in Tremblay v Ottawa (Police Services Board), the Court set aside an award of damages against the Ottawa police for false arrest, unlawful detention and imprisonment, Charter violations, and negligent investigation. What is noteworthy is that this is a rare example of an appeal being granted mostly as a result of errors of fact rather than errors of law.

Other topics covered this week included whether the deliberations of certain municipal committees were required to be open to the public, municipal liability, spousal support, setting aside default judgments and dismissals for delay, and the age-old problem of determining whether an order is final or interlocutory.

Until next week,

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

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

Table of Contents

Tremblay v Ottawa (Police Services Board), 2018 ONCA 497

Keywords: Torts, Negligent Investigation, False Arrest, False Imprisonment, Breach of Charter Rights, Probable Cause, Intimidation, Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173, [2007] 3 SCR 129, 495793 Ontario Ltd. v Barclay, (2016) 132 O.R. (3d) 241 (CA),R. v Golub, (1997) 34 OR (3d) 743 (CA), Criminal Code, RSC, 1985, C-46, section 495, Canadian Charter of Rights and Freedoms, Sections 7, 8, 9

Ritchie v Ritchie, 2018 ONCA 486

Keywords: Family Law, Spousal Support, Calculation of Income, Business Losses, Personal Expenses, Equalization of Net Family Property, Shares, Valuation Procedure, Costs, Offers to Settle

Prescott & Russell (United Counties) v David S Laflamme Construction Inc., 2018 ONCA 495

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Adding Parties, Final or Interlocutory, Limitations Act, 2002, s.21

Martin v Barrie (City), 2018 ONCA 499

Keywords: Torts, Negligence, Occupier’s Liability, Duty of Care, Standard of Care, Standard of Review, Mixed Fact and Law, Palpable and Overriding Error, Housen v Nikolaisen, 2002 SCC 33

Ontario Ombudsman v Hamilton (City), 2018 ONCA 502

Keywords: Municipal Law, Jurisdiction, Definition, Municipal Act, 2001, SO 2001, c 25, Section 239(1), Ombudsman Act, RSO 1990, c O 6, Section 14.1, Municipal Elections Modernization Act, 2016, SO 2016, c 15, Section 65, Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 31

Prescott v Barbon, 2018 ONCA 504

Keywords: Civil Procedure, Orders, Administrative Dismissals for Delay, Setting Aside, Reid v Dow Corning Corp (2002), 11 CPC (5th) 80 (Ont SC), Rules of Civil Procedure, Rules 48.14, 48.15

Sammut v Sammut, 2018 ONCA 507

Keywords: Civil Procedure,Default Judgments, Setting Aside, Damages

York Region Standard Condominium Corporation No 1039 v Richmond Hill (Town), 2018 ONCA 511

Keywords: Civil Procedure, Orders, Dismissal for Delay, Standard of Review, Palpable and Overriding Error, Error of Fact, Error of Law

For short civil decisions click here

For criminal decisions click here

Civil Decisions

Tremblay v Ottawa (Police Services Board), 2018 ONCA 497

[Strathy CJO, Juriansz and Huscroft JJ A]

Counsel:

JJ Wright, for the appellants

L Greenspon, for the respondents

Keywords: Torts, Negligent Investigation, False Arrest, False Imprisonment, Breach of Charter Rights, Probable Cause, Intimidation, Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173, [2007] 3 SCR 129, 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA), R v Golub, (1997) 34 OR (3d) 743 (CA), Criminal Code, RSC, 1985, C-46, section 495, Canadian Charter of Rights and Freedoms, Sections 7, 8, 9

Facts:

This appeal arises from an action commenced by the respondents, RT and his spouse JM, against the Ottawa Police Services Board (“OPS”), Sergeant JA and other named police officers, for damages for the arrest of RT and the execution of a public safety firearms warrant at the respondents’ home on October 17, 2006. The action alleged negligent investigation, false arrest and false imprisonment, and breach of their rights under ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms.

RT and JM were involved in a dispute with their neighbours, who alleged a drainage pipe RT and JM had installed was causing flooding in their homes. Six neighbours brought a civil suit against RT and JM. Some of the neighbours claimed that Tremblay subsequently engaged in intimidating behaviour toward them and their families.

The OPS arrested RT for intimidation and mischief. Having confirmed that RT had a licence and registration to possess three firearms, the OPS also obtained a public safety firearms warrant. Police entered and searched the respondents’ home, seizing the firearms and ammunition.

At his criminal trial, RT was acquitted of intimidation and of criminal harassment. He was found guilty of mischief.

The trial judge found Sgt. JA, who was the investigating officer, and the OPS, as Sgt. JA’s employer, liable to JT for negligent investigation, false arrest, unlawful detention and unlawful imprisonment and breaches of RT’s rights under ss. 7, 8, and 9 of the Charter. She found Sgt. JA and the OPS liable for breach of JM’s rights under s. 8 of the Charter, relating to the search of the home. She awarded RT and JM over $50,000 in damages. The police appealed.

Issues:

(1) Did the trial judge err by defining the standard of care for negligent investigation in the absence of any evidence?

(2) Did the trial judge impose a standard of care inconsistent with the established jurisprudence?

(3) Did the trial judge err by finding that there were not reasonable and probably grounds to arrest for intimidation under s. 495(1) of the Criminal Code?

(4) Did the trial judge err in finding that the public interest limitation in s. 495(2) applies?

(5) Did the trial judge err in failing to apply s. 495(3)?

Held: Appeal allowed.

Reasons:

(1) Yes. The trial judge erred by defining the standard of care for negligent investigation in the absence of any evidence.

Neither side called expert evidence at trial. After the close of evidence, the respondents brought a motion to reopen their case, so they could tender expert evidence to support their claim against the OPS based on inadequate training and supervision. In refusing the motion, the trial judge observed that without expert evidence as to the standard of care applicable to police services in Ontario in 2006 their “claim in negligence against the OPS Board was doomed to fail”.

The trial judge took a different view with regard to the claim in negligence against Sgt. JA. While recognizing the general rule that expert evidence is required to establish the standard of care in a negligent investigation claim, she concluded this case fell within the exception for actions involving non-technical matters within the knowledge and experience of the trier of fact.

In doing so, she relied on the decision of this court in Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173. However, Meady can be distinguished because the trial judge in that case had a wealth of other evidence available to him with respect to the police policies, procedures and standards that applied at the time; evidence not available in the case at bar. To fill that vacuum, the trial judge drew on two sources to guide her determination of the standard of care, both problematic.

First, the trial judge referred to the “Declaration of Principles” set out in s. 1 of the Police Services Act, RSO 1990, c. P.15 which she described, at para. 65, as “somewhat instructive of the standard for care owed by a police officer to members of the community”. The principle set out in this statutory provision is far too general to serve as the basis for defining the standard of care in a particular investigation. The general principle does not displace a police officer’s authority to make an arrest when grounds to do so exist under s. 495 of the Criminal Code.

Second, the trial judge drew on the actions taken by other officers who had investigated earlier complaints that arose out of the dispute as instructive to how Sgt. JA should have proceeded, including personal interviews with the actors and discussing ways to de-escalate the tension.

Ultimately, the trial judge erred by proceeding to define a standard of care that was without any evidentiary basis, and contrary to the only pertinent evidence before her.

(2) Yes. The trial judge imposed a standard of care inconsistent with the established jurisprudence.

The trial judge held that Sgt. JA had a duty to further investigate the red flags that undermined the reliability of the information he had. The trial judge found that in assessing Sgt. JA’s conduct, she was entitled to consider not only the information that Sgt. JA had, but also “the information that he did not have but which he could have had upon simple inquiry.” To support this proposition, she cited the decision of Doherty J.A. in R v Golub, (1997) 34 OR (3d) 743 (CA), at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.

This passage does not support the proposition for which it was cited. The words “all information available” refers to the information the officer had in his possession – not additional information the officer “could have had upon simple inquiry”.

In 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA) the Court of Appeal reversed a decision that followed an approach similar to that adopted by the trial judge in this case. Notwithstanding the absence of any urgent circumstances, the court pointed out in that case that “the trial judge’s criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused’s version of events.”

By proceeding contrary to this well-established principle, the trial judge erred in finding that Sgt. JA was required to take additional investigative steps in light of the red flags she identified.

(3) Yes. The trial judge erred by finding that there were not reasonable and probable grounds to arrest for intimidation under s. 495(1) of the Criminal Code. Had the trial judge focused on the elements of the offence of intimidation, and on the information that was available, she would have concluded that there were reasonable grounds to arrest RT for intimidation. The statements and timeline from P and H provided Sgt. JA with enough information to meet the reasonable and probable grounds standard with respect to these two elements. The trial judge erred in finding there were no reasonable and probable grounds to arrest for intimidation.

 (4) Yes. The trial judge erred in finding that the public interest limitation in s. 495(2) of the Criminal Code applied. Section 495(2) places a duty on a police officer who has grounds for arrest under s. 495(1) to not arrest where he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person. The phrase “believes on reasonable grounds” is both a subjective and objective test and both components must be satisfied. The trial judge set out the correct test for s. 495(2), citing Collins. However, it is not clear from the record that Sgt. JA believed on reasonable grounds that the public interest could be satisfied without arresting RT. The subjective component of the test was not satisfied and therefore the trial judge erred in finding s. 495(2) was violated.

 (5) Yes. The trial judge erred in failing to apply s. 495(3) of the Criminal Code. Section 495(3)(b) deems an arrest to be lawful notwithstanding s. 495(2) unless the person asserting its application “alleges and establishes”, in the proceedings at issue that the police violated s. 495(2). The appellants submit that s. 495(3)(b) required the respondents to specifically allege a breach of s. 495(2) in their statement of claim. Without such notice they come to trial not knowing the case they have to meet.

The respondents submit that s. 495(3) does not require that they specifically plead noncompliance with s. 495(2), but rather, that it is sufficient if the allegation is canvassed in cross-examination at trial. The court did not agree and held that s. 495(3)(b) requires an alleged violation of s. 495(2) be directly put to the police officer who made the arrest. It was not put to Sgt. JA in this case. As there was no separate allegation that s. 495(2) applied, s. 495(3) operated to deem Sgt. JA was acting lawfully when he decided to have Tremblay arrested. The trial judge erred in law by failing to apply the deeming provision of s. 495(3).

Ritchie v Ritchie, 2018 ONCA 486

[Rouleau, van Rensburg and Pardu, JJ A]

Counsel:

GS Joseph and SP Kirby, for the appellant

H Fogelman and C Paterson, for the respondent

Keywords: Family Law, Spousal Support, Calculation of Income, Business Losses, Personal Expenses, Equalization of Net Family Property, Shares, Valuation Procedure, Costs, Offers to Settle

Facts:

The appellant appeals two trial decisions that determined issues unresolved by the parties pursuant to partial minutes of settlement. The issues for trial were:

(a) Duration and quantum of spousal support;

(b) Child and spousal support arrears;

(c) Amount to be paid by the appellant to the respondent to reflect the post-valuation-day increase in the value of her shares in KDL which the respondent had transferred to the appellant;

(d) Disposition of a recreational property in the United States (the “Allegheny Mountain property”);

(e) Costs.

Issues:

(1) Did the trial judge err by refusing to deduct business losses incurred by a company (KMI) which the appellant’s company (KDL) had a majority interest in, in determining the appellant’s income for the purpose of calculating spousal support?

(2) Did the trial judge err in her assessment of the change in value of KDL’s shares?

(3) Did the trial judge err in her disposition of the Allegheny Mountain property?

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

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge found it impossible to determine the appellant’s true income, given all of the inconsistencies in his evidence as well as a lack of relevant, reliable, and cogent information. The appellant hired an expert in business valuation who provided an opinion as to the appellant’s income for support purposes. The expert’s opinion initially deducted losses generated by KMI and HNDL, another corporation controlled by the appellant. KMI, under the sole direction and control of the appellant, owned a historic building that the appellant, his current spouse, and some of their respective children reside in. KMI had accumulated substantial and ongoing losses which were funded by another of the appellant’s companies. The trial judge reasonably held that the business losses incurred by KMI made no financial sense and that there was no economic or commercial reason for the losses except for the personal benefit of the appellant. The court was not bound to accept the appellant’s “business judgement” and refused to deduct the losses incurred by KMI in calculating the appellant’s income because the losses were incurred entirely and solely for the benefit of the appellant and without the knowledge or consent of the respondent. Cross-examination revealed that the appellant had incorporated another corporation through which to funnel monies that contributed to his income. The trial judge found that it was the responsibility of the appellant to satisfy the court of his real income and relying on an improperly instructed expert report substantially hampered the decision-making process of the court. She also drew an adverse inference from the lack of full and fair disclosure of the appellant’s finances. The determination of the appellant’s income was reasonable in light of the evidence and thus there was no basis to interfere with it.

(2) No. The court agreed with the trial judge’s finding that the losses incurred by KMI should not be factored into the calculation of the change in the value of the KDL shares because KMI could not repay its debt which had continued to escalate from the date of separation and also because the appellant had continued to fund the losses incurred by KMI with income from other corporations. The extent to which a corporation provides personal benefits to a shareholder, which notionally claims losses or a negative value on the balance sheet, can be a relevant factor in the assessment of the value of the shares.

(3) No. The appellant submitted that the trial judge ought to have ordered him to pay $16,557.50 on account of both the Allegheny Mountain trailer and land lease and not just the trailer. The trial judge, however, was not provided with the precise nature of the parties’ agreement with respect to the Allegheny Mountain property. The respondent had not had access to the leased land and did not oppose a change to the judgement to include a release of the lease as well as the trailer and so the judgement was amended accordingly. The appellant was ordered to indemnify the respondent for any income tax consequences flowing from the release of the lease.

(4) No. The trial judge awarded costs of $314,566 to the respondent, who had requested costs of over $450,000 on a full indemnity basis. The appellant submitted that the trial judge erred in her costs decision because there was a partial settlement and he did no worse at trial than he would have had he accepted the offer to settle. The appellant, however, did not articulate any basis upon which to disagree with the trial judge’s assessment of the offers made by the parties. The offer to settle made by the respondent ignored child and spousal support arrears and ongoing spousal support. It also did not realistically consider any increase in the value of the appellant’s interest in KDL and thus her offer was far below what the court ordered. The trial judge also appropriately applied the relevant cost factors as set out in the Family Law Rules. The appellant’s actions contributed to the higher costs of the litigation by failing to properly disclose his financials and failing to engage his expert to prepare an analysis of his 2015 and 2016 income. The appellant’s answers regarding his finances were vague and unclear and the appellant’s conduct was unreasonable. The appellant’s own offer to settle was so unreasonable that the trial became inevitable. The appellant’s concealment of information could amount to bad faith and he ought to have expected substantial cost consequences.

Prescott & Russell (United Counties) v David S Laflamme Construction Inc., 2018 ONCA 495

[Doherty and LaForme JJ A and Himel J (ad hoc)]

Counsel:

MW Malcolm and HB Borlack, for the appellant (non-party) WSP Canada Inc.

AR O’Brien, for the respondent The Corporation of the United Counties of Prescott & Russell

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Adding Parties, Final or Interlocutory, Limitations Act, 2002, s.21

Facts:

The respondent (plaintiff in this action) brought a motion under rule 5.04(2) for an order adding WSP Canada Inc. (“WSP”) as a defendant in an ongoing action arising out of alleged negligence in the rehabilitation of a bridge. The motion judge found that the respondent can add WSP as a party to the litigation, having determined that the claim against it was brought within the limitation period.

WSP appealed claiming that the motion judge erred in concluding that the claim could not reasonably have been discovered at a point beyond the applicable time limit under the Limitations Act, 2002. The respondent argued that the motion judge was correct and also raised a preliminary jurisdictional point that the order under appeal is interlocutory and not final, meaning that any appeal lies with leave to the Divisional Court.

Issues:

(1) Does the court have jurisdiction to hear the appeal?

Holding: Appeal quashed.

Reasoning:

(1) No. The order under appeal is interlocutory. The court had no jurisdiction to hear the appeal.

To determine whether the order is final or interlocutory, one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.

In this case, the order contained no language to suggest that any final determination was made on the Limitations Act, 2002 issue. It simply allowed the respondent to add WSP as a defendant. In her reasons, the motion judge did not purport to decide the issue for any purpose other than the determination of the motion to add WSP as a party.

The court did not accept the contention that because the motion judge was required to make a finding as to the application of the Limitations Act, 2002, her finding must be regarded as binding in the litigation and therefore final. Section 21 of the Limitations Act, 2002 forbids adding a party where the limitation period has expired. It does not foreclose adding a party absent an affirmative finding that the limitation period has not expired.

Having regard to the above factors, the court concluded that the motion judge’s determination that the action was brought within the limitation period was made for the purposes of the motion only. The order was not final and WSP may seek leave to appeal in the Divisional Court, or it may raise the limitations argument at trial. The court made no comments on the merits of the motion judge’s decision.

Martin v Barrie (City), 2018 ONCA 499

[Feldman, MacPherson and Rouleau JJ A]

Counsel:

H Klein, for the appellants

S Zacharias, for the respondents

Keywords: Torts, Negligence, Occupier’s Liability, Duty of Care, Standard of Care, Standard of Review, Mixed Fact and Law, Palpable and Overriding Error, Housen v Nikolaisen, 2002 SCC 33

Facts:

This is an appeal from a judgment dismissing the appellants’ action in negligence against the respondents. In 2011, the appellants attended a Winterfest event hosted by the City of Barrie (the “City”). The appellant, Ms. M, went down a snow slide at the event, when she struck a piece of hardened, protruding ice and suffered an injury. The trial judge found that Ms. M’s injury was caused by the ice. However, the trial judge did not find that the City had breached the appropriate standard of care, and therefore dismissed the action.

Issues:

(1) Did the trial judge make a palpable and overriding error by concluding that the ice chunk that struck Ms. M was “small”?

(2) Did the trial judge err in the inference he drew from the hearsay utterance (“I have to fill this again”) of an on-site City employee that Ms. M heard immediately after she was hurt?

(3) Did the trial judge err in concluding that the City did not breach the standard of care?

Holding: Appeal dismissed.

Reasoning:

(1) No. Ms. M herself testified that she did not see the ice chunk until after she struck it and she described it as about four to six inches in size. The trial judge’s characterization of it as “small” was entirely justified.

(2) No. The utterance of the City’s employee supports the position of the respondents. It demonstrates that the employee stationed at the bottom of the slide in the landing area was paying close attention to the condition of the landing and moved quickly to fill in the gap in the snow as would be expected.

(3) No. The trial judge made no error of any kind – let alone a palpable and overriding error – in his analysis of the evidence and his application of the relevant negligence law principles. He did not ignore the evidence relating to inspection and maintenance. Therefore, there is no error in his finding that the City did not breach the appropriate standard of care.

Ontario Ombudsman v Hamilton (City), 2018 ONCA 502

[Doherty and LaForme JJ A and Himel J (ad hoc)]

Counsel:

RA Centa and D Cooney, for the appellant

B MacNeil, for the respondent

Keywords: Municipal Law, Jurisdiction, Definition, Municipal Act, 2001, SO 2001, c 25, Section 239(1), Ombudsman Act, RSO 1990, c O 6, Section 14.1, Municipal Elections Modernization Act, 2016, SO 2016, c 15, Section 65, Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 31

Facts:

The Ontario Ombudsmen (“Ombudsmen”) appeals the ruling of the Divisional Court that the Ombudsmen did not have jurisdiction under section 14.1 of the Ombudsman Act to investigate the alleged non-compliance with the open meeting requirement of section 239 of the Municipal Act by the Election Compliance Audit Committee (“Audit Committee”) or the Property Standards Committee (“Standards Committee”).

The City of Hamilton cross-appeals that even if the entities in question were “local boards”, the deliberation component of their proceedings did not constitute “meetings” within the meaning of section 239(1) of the Municipal Act, 2001, SO 2001, c 25.

Section 239(1) of the Municipal Act declares that “all meetings shall be open to the public”. Section 239.1(b) of the Municipal Act provides that a person may request an investigation of whether a “municipality or local board” has complied with the public meeting requirement in s. 239. The Ombudsman, under section 239.1(b), may conduct that investigation. Section 14.1 of the Ombudsman Act dovetails with section 239.1(b) of the Municipal Act by empowering the Ombudsman to investigate complaints made with respect to the failure to comply with the public meeting requirement of section 239.

Issues:

(1) Did the Divisional Court err in holding that neither the Audit Committee nor the Standards Committee was a “local board” within the meaning of section 14.1 of the Ombudsman Act, RSO 1990, c O 6?

(2) If the Divisional Court is found to have erred, does the deliberative component of the Audit Committee and the Standards Committee constitute “meetings” within the meaning of section 239(1) of the Municipal Act, 2001, SO 2001, c 25?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

(1) No. Neither the Audit Committee nor the Standards Committee are among the entities specifically identified in the definition provided s. 1(1) of the Municipal Act:

‘Local board’ means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority.

The Ombudsman’s submission would have considerable force if the general language at the end of the definition of “local board” stood alone. It does not. That general language follows the identification of several specific entities as “local boards”. As this court recently observed in Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 313, at para. 52:

Where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items (ejusdem generis).

Applying the maxim of statutory interpretation of ejusdem generis to the definition of “local board”, the Court was satisfied that the general language at the end of the definition does not include entities which cannot be said to carry on the operations of the municipality. The functions of the Audit Committee and the Standards Committee do not fall within that descriptor. They are not local boards.

(2) Given the finding that neither is a “local board”, it was unnecessary to decide this question. However, the Court noted that on April 1, 2018, the Municipal Elections Modernization Act, 2016, section 65 came into force and repealed subsection 88.34 of the Municipal Elections Act. The new provision, which applies to the Audit Committee, reads:

Open Meetings

(9.1) The meetings of the Committee under subsection (9) shall be open to the public, but the Committee may deliberate in private. 2017, section 20, Schedule 10, (section 2).

Prescott v Barbon, 2018 ONCA 504

[Watt, Pepall and Miller JJ A]

Counsel:

WG Scott, for the appellants

D Fulton, for the respondent ERS

DV Abreau and T J Buckley, for the Respondent RB

D Polgar, for the intervenor Economical Insurance Company

Keywords: Civil Procedure, Orders, Administrative Dismissals for Delay, Setting Aside, Reid v Dow Corning Corp (2002), 11 CPC (5th) 80 (Ont SC), Rules of Civil Procedure, Rules 48.14, 48.15

Facts:

On December 28, 2008, the appellants were passengers of a motor vehicle. One of the appellants was driving. The two respondents’ vehicles and appellant driver’s vehicle were involved in a three-car collision. The appellants sued for injuries sustained in the accident. Wawanesa Mutual Insurance Company denied coverage to respondent ERS because he was operating the vehicle without the owner’s consent.

The appellants’ action was administratively dismissed as abandoned in August 2011, pursuant to r. 48.15 of the Rules of Civil Procedure. The appellants’ lawyer failed to inform his clients of the dismissal and only reported the matter to LawPRO over two years later. The appellants served a notice of motion to set aside the dismissal in February 2014, two years and six months after the dismissal order. Master Hawkins heard the motion and overturned the registrar’s administrative dismissal. The respondents appealed the Master’s decision. The appeal judge allowed the appeal and overturned the Master’s decision, reinstating the administrative dismissal. The appellants appeal from that decision and the respondents seek leave to appeal the appeal judge’s costs award.

Issues:

(1) Was interference with the Master’s decision justified?

(2) Did the Master err in failing to consider the entire statutory scheme relating to administrative dismissals in his contextual analysis?

(3) Did the Master err in finding the respondents partially responsible for the administrative dismissal?

(4) Did the Master err in his approach to the factors set out in Reid v Dow Corning Corp (2002), 11 CPC (5th) 80 (Ont SC), particularly on his failure to consider the principle of finality in his prejudice analysis?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. While the decision of a Master granting or refusing to set aside an administrative dismissal is discretionary and entitled to deference, interference with the Master’s decision was justified. A Master’s decision may be set aside only if made on an erroneous legal principle or infected by palpable and overriding error of fact.

(2) Yes. While the Master was correct in some of his contextual analysis and interpretation of the rules, he incorrectly described the changes to rr. 48.14 and 48.15 and the statutory scheme at para. 19, as he noted that: “What now constitutes an acceptable level of diligence in the prosecution of an action is a much easier test to meet than was the case in the past.” He stated that the repeal of r. 48.15 “may … be considered as part of the context in which this motion […] was argued.” Rule 48.15 was in force when the registrar dismissed the action as abandoned, but by the time the motion was argued, it had been repealed. As such, it could not form part of the applicable context, and it was an error for the Master to make this statement.

(3) Yes. The Master erred in finding the respondents partially responsible for the administrative dismissal. The appeal judge took issue with this finding. She stated that the party who commences the proceeding bears the primary responsibility for its progress, and the Master erred in law in concluding that the respondents were at fault for not filing a defence. The rule governing administrative dismissals places no obligation on defendants to file a defence to prevent a registrar’s dismissal. Therefore, the Master’s approach in treating the respondents as blameworthy created a categorization that does not exist under the Rules of Civil Procedure. The appeal judge’s conclusion is correct.

In addition, there was another fundamental problem embedded in the Master’s consideration of the first and second criteria of the Reid test. There was no evidence filed by the appellants that it had always been their intention to proceed with the action. This was inadequate particularly given that there was no evidence or reference of any contact with any of the respondents between January 3, 2012 and February, 2014. The Master’s finding that the respondents intended to prosecute their claim was unreasonable in light of the full factual context.

(4) Yes. The Master erred in his approach to the factors set out in Reid, particularly on his failure to consider the principle of finality in his prejudice analysis. In considering the fourth Reid factor, the Master was required to address: (i) did the appellant satisfy their onus to establish no significant actual prejudice to the respondents’ ability to defend the action due to the appellants’ delay; and (ii) whether in light of the delay, the principle of finality and the respondents’ reliance on the security of its position should nevertheless prevail. There is no need to resort to presumptions or inferences of prejudice. The question is simply whether the interest in finality must trump the opposite party’s pleas for an indulgence. The appeal judge acknowledged in her reasons that the Master addressed the issue of prejudice but maintained that the Master erred in failing to consider the finality principle. This assessment was correct.

The appeal judge was correct in setting aside the Master’s decision and considering the merits of the motion anew. There was no reason to interfere with the costs order made by the appeal judge, and leave to appeal that order was denied.

Sammut v Sammut, 2018 ONCA 507

[Feldman, MacPherson and Rouleau JJ A]

Counsel:

DN Magisano and C Shorey, for the appellant

MA Ross, for the respondent

Keywords: Civil Procedure, Default Judgments, Setting Aside, Damages

Facts:

The respondent brought action in the Superior Court of Justice against the appellant alleging that she began to divert and steal money from him. At the time, the appellant’s whereabouts were unknown and she was noted in default. Pursuant to noting in default, the appellant was deemed to admit truth of all allegations of fact made in the statement of claim. On the basis of unchallenged evidence, the respondent established that the appellant used fraud and theft to obtain funds. Woollcombe J of the Superior Court of Justice granted default judgment against the appellant for $466,420.22, plus interest and costs of $5,000.

The appellant moved to set aside the order on the basis that she was not served with the respondent’s Statement of Claim and, therefore, did not have an opportunity to defend the case against her. The appellant’s home address and email address had been incorporated into a previous court order. However, at some point the appellant moved to a new address and there was a one letter error in the email address.

Wein J of the Superior Court of Justice rejected this argument, concluding that while there was an error in recording her email address, she was served at the mail address she had given, and there were ample indications that she was aware of the action against her.

The appellant appeals from the order of Wein J denying the appellant’s motion to set aside the order of Woollcombe J.

Issues:

(1) Did the motion judge err in refusing to set aside the default judgment as of right?

(2) Did the motion judge fail to properly consider and apply the test for setting aside a default judgment?

(3) Did the motion judge fail to properly review the quantification of damages arrived at by the judge who granted the default judgment?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. A motion judge’s decision concerning setting aside a default judgment is discretionary.

(2) No. The appellant did not establish that the motion judge made an error in principle, a palpable and overriding error of fact, or that the decision is so clearly wrong as to amount to an injustice. The appellant had a clear obligation to advise the respondent of a change in her mailing address. She did not do this. The initial one letter error in her email address was of no moment; it is clear that the appellant received the relevant legal documents throughout the litigation.

(3) Yes. The court agreed that the motion judge erred on two points. First, by saying that “[the appellant] has not provided any evidence that would undermine the conclusion that a substantial amount of money was owing to [the respondent].” Second, by concluding that “[i]t is simply too late now to bring forward arguments concerning the quantification of the amount owing”.

Unlike the default judgment motion, the appellant was represented by counsel at the motion to set aside and filed extensive material, including a comprehensive affidavit. In the court’s view, it was not “too late” for the appellant to challenge the quantification in the default judgment.

Having reviewed the record and read and heard extensive submissions, the court was of the view that the global damages award must be reduced to $289,740.39.

York Region Standard Condominium Corporation No 1039 v Richmond Hill (Town), 2018 ONCA 511

[Feldman, MacPherson and Rouleau JJ A]

Counsel:

P Di Monte, for the appellant

K Sherkin and R Wozniak, for the respondents

Keywords: Civil Procedure, Orders, Dismissal for Delay, Standard of Review, Palpable and Overriding Error, Error of Fact, Error of Law

Facts:

This appeal is from an order dismissing the appellant’s claim against the respondents for delay. The claim involved allegations of negligence in the construction of a condominium built in 2004, resulting in defects that were discovered on August 5, 2012.

The claim was issued on August 1, 2014. However, it was not served on the defendants within the six months provided in the Rules of Civil Procedure. Consequently, some of the defendants – the respondents in this appeal – brought a motion for dismissal of the claim against them for delay.

The appellant explained that it encountered problems locating and serving the respondents due to inaccurate information filed in the respondents’ corporation profile records. In support of the motion, the respondents filed an affidavit to the effect that the documents relating to the condominium project were purged in the normal course of business and that this documentation was no longer available as a result. The respondents’ affidavit, however, did not specify when the documents were destroyed. Nevertheless, the master found that the appellant’s documents were available and that the documents of the institutional defendants (Tarion and Richmond Hill) had been preserved. Consequently, the master dismissed the motion on the basis that the appellant had an adequate explanation for the delay and established that the respondents suffered no prejudice.

On appeal to the Superior Court, the judge allowed the appeal and dismissed the claim as against the respondents. The judge held that the master had made palpable and overriding errors of fact and errors of law.

Issue:

(1) Did the master make palpable and overriding errors of fact?

(2) Did the master make palpable and overriding errors of law?

Holding: Appeal allowed.

Reasoning:

(1) No. The master did not make palpable and overriding errors of fact. The error was contained in the typed version of the master’s handwritten reasons which were presented to and relied upon by the appeal judge. More specifically, the central error of fact identified by the appeal judge was the master’s finding that the “documents of the individual Defendants have been preserved”. However, the typed version incorrectly transcribed “institutional” as “individual”. Consequently, the court held that there was no inconsistency in the master’s findings.

(2) No. The master correctly stated that the onus was on the appellant to explain the delay and establish that the respondents had suffered no prejudice. Moreover, the court held that it was open to the master to infer that the respondents’ documents were destroyed well before the claim was issued, such that the delay in service of the claim engendered little or no prejudice. As a result, the court held that the master’s decision was entitled to deference and ought to be restored.

Short Civil Decisions

Giffen v Thomson, 2018 ONCA 490

[Juriansz, Benotto and Fairburn JJ A]

Counsel:

No one appearing for the appellants

M Robertson, for the respondent

Keywords: Appeal Abandoned, Trust Funds, Costs

Perry v D’Souza, 2018 ONCA 491

[Doherty and LaForme JJ A and Himel J (ad hoc)]

Counsel:

A Moustacalis, for the appellant

J Figliomeni, for the respondent

Keywords: Summary Judgment, Evidence, Costs

Kowalsky v Asselin-Kowalsky, 2018 ONCA 492

[Doherty and LaForme JJ A and Himel J (ad hoc)]

Counsel:

K Kieller and A Hunter, for the moving party, MK

P Kraemer, for the responding party, D A-K

Keywords: Jurisdiction, Costs

Loken v St Peter’s Court Apartments, 2018 ONCA 501

[Pepall, van Rensburg and Paciocco JJ A]

Counsel:

J Morton, for the appellant

J Schmidt, for the respondent

Keywords: Real Property, Adverse Possession, Costs

Walderman v Investia Services Financiers Inc., 2018 ONCA 505

[Feldman, MacPherson and Rouleau JJ A]

Counsel:

J Binavince, for the appellant

J Hamilton, for the respondent TR

S Robinson, for the respondent AC

M Doherty, for the respondents Investia Financial Services Inc. and CMC Markets Inc.

Keywords: Civil Procedure, Appeals, Administrative Dismissal for Delay

Wachsberg v Wachsberg, 2018 ONCA 508

[Juriansz, Benotto and Fairburn JJ A]

Counsel:

G Karahotzitis and PD Schmidt, for the appellant

H Niman and K Normandin, for the respondent

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Separation Agreements, Disclosure, Hendrickson v Kallio, [1932] OR 675

Carr v Condon, 2018 ONCA 509

[Juriansz, Benotto and Fairburn JJ A]

Counsel:

Aaron Franks and Michael Zalev, for the appellant

Kirsten Hughes, Larissa Bazaan and Stephen Grant, for the respondent

Keywords: Family Law, Spousal Support, Compensatory Support,  Spousal Support Advisory Guidelines, Moge v Moge, [1992] 3 S.C.R. 813, Divorce Act, RSC 1985, c 3, section 17(7), Standard of Review, Hickey v Hickey, [1999] 2 SCR 518

Abrahamovitz v Berens, 2018 ONCA 512

[Laskin, Feldman and Miller JJ A]

Counsel:

SS Marr and Z Silverberg, for the appellant, the Estate of GZ

DP Jacobs, for the respondents

Keywords: Estates, Costs

Arrocha v Harrison, 2018 ONCA 513

[Watt, Huscroft and Trotter JJ A]

Counsel:

P Harrison, in person

I Frisch, for LA

C Smith and A Pachai, for the City of Toronto

Keywords: Family Law,Support, Fraud, Orders, Costs, Failure to Comply, Family Law Rules, Rule 1(8)(b)

Foisey v Green Estate, 2018 ONCA 514

[Watt, Huscroft and Trotter JJ A]

Counsel:

BN Radnoff, for the appellant

J Lester, for the respondent

Keywords: Estates, Appeals, Jurisdiction, Interlocutory Orders, Durbin v Brant, 2017 ONCA 463

Criminal and Regulatory Offences

R v Jurkus (Publication Ban), 2018 ONCA 489

[Sharpe, Pepall and Fairburn JJ A]

Counsel:

M Fawcett, for the appellant

P Ducharme, for the respondent, SJ

J Presser and J Marshman, for the respondent, LL

Keywords: Criminal Law, Stay of Proceedings, Unreasonable Delay, R v Jordan, 2016 SCC 27, Canadian Charter of Rights and Freedoms, Section 11(b)

R v Peters, 2018 ONCA 493

[Strathy CJO, Juriansz and Roberts JJ A]

Counsel:

N Jamaldin and P Genua, for the appellant

C Walsh, for the respondent

Keywords: Criminal Law, Smuggling, Narcotics, Sentencing, Canadian Charter of Rights and Freedoms, Sections 7 & 10(a), (b)

R v Ajise, 2018 ONCA 494

[Sharpe, Pardu and Fairburn JJ A]

Counsel:

RC Bottomley, for the appellant

X Proestos, for the respondent

Keywords: Criminal Law, Fraud, Evidence, Opinion, Prior Inconsistent Statements, Dissent

R v Ahmaddy, 2018 ONCA 496

[Watt, Huscroft and Trotter JJ A]

Counsel:

F Mirza, for the appellant

JDM Clarke, for the respondent

Keywords: Criminal Law, Trafficking, Evidence, Credibility, Controlled Drugs and Substances Act, S.C. 1996, c 19, Section 5(3)(a)

R v Allen, 2018 ONCA 498

[Watt, Hourigan and Miller JJ A]

Counsel:

P Campbell, for the appellant, JR

M Bojanowska, for the appellant, MDA

J Kerbel, for the appellant, ZD

J Patton, for the respondent

Keywords: Criminal Law, First Degree Murder, Fresh Evidence, Supreme Court Act, RSC 1985, c S-26, Section 43(1.1), Criminal Code, RSC 1985, c C-46, Section 683(1)(d)

R v AHM (Publication Ban), 2018 ONCA 503

[Strathy CJO, Juriansz and Hourigan JJ A]

Counsel:

MM Dwyer, for the appellant

A Cappell, for the respondent

Keywords: Criminal Law, Sexual Assault, Common Assault, Corroborative Evidence, R v W(D), [1991] 1 SCR 742

R v Singh, 2018 ONCA 506

[Feldman, MacPherson and Rouleau JJ A]

Counsel:

Arjun Vishwanth, for the appellant

Katie Doherty, for the respondent

Keywords: Provincial Offences, Jurisdiction, Certiorari, Provincial Offences Act, RSO 1990, c P 33, Sections 34, 36, 141(4)

R v McLellan, 2018 ONCA 510

[Doherty, Rouleau and Miller JJ A]

Counsel:

B Greenspan and N Lutes, for the appellant Kyle M

MR Gourlay, for the appellant Kristopher M

J Klukach and K Shai, for the respondent Her Majesty the Queen

Keywords: Criminal Law, First Degree Murder, Jury Instructions, Criminal Code, RSC 1985, c C-46, Section 21(2)

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.