COURT OF APPEAL SUMMARIES (July 19-23)

By John Polyzogopoulos on July 24, 2021

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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of July 19, 2021.

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In Florence v Benzaguen, the Court grappled with the issue of whether it is settled law in Ontario that doctors do not owe a duty of care to an unborn child pre-conception. After their mother was prescribed a fertility drug that was allegedly contraindicated, the Appellant triplets were born prematurely and have serious disabilities. The majority struck the Appellants’ claim of negligence, holding that no duty of care is not recognized at law. The relationship between a doctor and an unborn child pre-conception lacks the necessary proximity to create a duty of care. The majority also adopted the recognized public policy concern of the conflict of interest that would be created if a doctor owed a concurrent duty of care to the patient and their future child. In dissent, Fairburn A.C.J.O. held that this issue was not settled law and ought to be decided at trial. I suspect this may not be the last word on the issue.

In Canadian Union of Postal Workers v. B’nai Brith Canada, the Court of Appeal dismissed B’nai Brith’s appeal from an order dismissing its anti-SLAPP motion. The Canadian Postal Workers’ Union had sued B’nai Brith in defamation arising out of public allegations that the Union supported terrorism.

Other topics covered this week included breach of contract in a sports dispute, negligent investigation and malicious prosecution, a mortgage action, the interpretation of election by-laws of a non-share capital corporation, and the presumption of resulting trust.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Flood v. Boutette, 2021 ONCA 515

Keywords: Torts, Liability of Public Authorities, Negligent Investigation, Malicious Prosecution, Misfeasance in Public Office, Harassment, Intentional Infliction of Emotional Distress, Fire Code, O. Reg. 213/07, Section 9.3, Building Code, O. Reg 332/12 s. 1.4.1.2, Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Sections 21, 28, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Municipal Act, 2001, S.O. 2001, c. 25, s. 450, Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.), aff’d 72 O.R. (3d) 719 (C.A.), R. v. Shepherd, 2009 SCC 35, FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, Payne v. Mak, 2018 ONCA 622, City of Ottawa v. Bentolila, 2006 ONCJ 541, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Miazga v. Kvello Estate, 2009 SCC 51, Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, Merrifield v. Canada (Attorney General), 2019 ONCA 205

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

Keywords: Torts, Negligence, Intentional Interference with Economic Relations, Civil Procedure, Default Judgments, Trials, Bifurcation, Deemed Admissions, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Costs, Rules of Civil Procedure, Rules 6.1.01 and 19.05(1), OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, aff’d. 2020 ONCA 659, OZ Merchandising Inc. v. Canadian Professional Soccer League, 2018 ONSC 7468, Correia v. Canac Kitchens, 2008 ONCA 506, R. v. C.(P.), 2015 ONCA 30, D.W. v. White, 2004 CanLII 22543 (ON CA), S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243 (C.A.)

MacIntyre v. Winter,, 2021 ONCA 516

Keywords: Family Law, Property, Resulting Trust, Gifts, Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10, F.H. v. McDougall, 2008 SCC 53, Bergen v. Bergen, 2013 BCCA 492, Christopher v. Freitas, 2019 ONCA 84, Chao v. Chao, 2017 ONCA 701, McNamee v. McNamee, 2011 ONCA 533, M. Gillen, L. Smith & D. W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012)

Chandrasegaram v. Canadian Tamil Medical Association, 2021 ONCA 526

Keywords: Voluntary Associations, Non-Share Capital Corporations, Bylaws, Interpretation, Officers and Directors, Elections, Annual General Meetings

Florence v. Benzaquen, 2021 ONCA 523

Keywords: Torts, Negligence, Wrongful Life, Duty of Care, Proximity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Family Law Act, R.S.O. 1990, c. F.3, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital, 2010 ONCA 450, Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, 688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), aff’d (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), X and Y (By Her Tutor X) v. Pal, [1991] NSWCA 302

Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529

Keywords: Torts, Defamation, Anti-SLAPP, Defences, Truth, Justification, Fair Comment, Responsible Communication, Malice, Courts of Justice Act, R.S.O. 1990, c. C.43., s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Bent v. Platnick, 2020 SCC 23, WIC Radio Ltd. v. Simpson, 2008 SCC 40, Grant v. Torstar Corp., 2009 SCC 61, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130

Eisen v. 2293398 Ontario Inc., 2021 ONCA 537

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Default Judgment, Remedies, Possession, Appeals, Stay Pending Appeal, Zafar v. Saiyid, 2017 ONCA 919, Circuit World Corp. v. Lesperance, 33 O.R. (3d) 674, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Short Civil Decisions

Amrane c. Abraham, 2021 ONCA 536

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Canadian Charter of Rights and Freedoms, City of Toronto Act , 2006, SO 2006, vs. 11, Schedule A, Ontario Works Act , 1997, SO 1997, c. 25 Appendix A, Vancouver (City) v. Ward , 2010 SCC 27

CIVIL DECISIONS

Flood v. Boutette, 2021 ONCA 515

[Pepall, Roberts and Thorburn JJ.A.]

Counsel:

A. James and J. Greenberg, for the appellants, K.F. and A.M.L.

S. Pickard, for the appellants, J.P and S.P.

S.C. Handler, for the respondents

facts:

The Appellants, the Fs and the Ps, are residential landlords who own properties around the University of Windsor and rent them to university students. In 2006, a report from the Respondent, MS, the City’s Chief Building Official, contained a retrofit enforcement strategy that recommended that the Fire Department look at suspected non-compliant lodging houses, as per the Fire Code; which was approved by various City departments. As part of this inspection, the Respondent, SB, a city fire-prevention officer, classified the Appellants’ properties as lodging houses and charged them with Fire Code violations.

The trial judge hearing the Fire Code offences dismissed them, having held that the F Appellants’ properties were not lodging houses within the meaning of the Fire Code and did not require a retrofit. Shortly after, the charges against the P Appellants were withdrawn.

The F and P Appellants sued the Respondents, SB, RM, LT, MS, MM, Windsor Fire and Rescue Services Department, and the Corporation of the City of Windsor (“the City”) seeking damages for, among other things, negligent investigation, malicious prosecution, Charter violations and bad faith. The Appellants withdrew their claims against RM, MS, and MM before trial and the trial judge dismissed the remaining claims holding that (i) the Respondents had reasonable grounds to believe the properties were lodging houses prior to the laying charges, (ii) SB did not conduct a negligent investigation, and (iii) neither the investigation nor laying charges was motivated by malice.

The Appellants argued that the trial judge should not have dismissed the claims as (i) SB knew or ought to have known the buildings were not lodging houses and there were therefore no reasonable or probable grounds to lay the charges, (ii) SB conducted a negligent investigation, and (iii) the Respondents acted in bad faith as their motive was to reduce student housing in Windsor. The P Appellants also submitted that the trial judge ignored their claim of undue delay and abuse of authority and sought to remit that claim to the Superior Court for determination.

issues:

(1) Did the trial judge err in concluding that SB had reasonable and probable grounds to lay charges against the Appellants?

(2) Did SB conduct an otherwise negligent investigation?

(3) Were the appellants maliciously prosecuted?

(4) Should the P Appellants’ unresolved claims be remitted to the Superior Court for determination?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that SB had reasonable and probable grounds to lay the charges. First, the Court rejected the P Appellants’ argument that the trial judge failed to assess the charges against them independently of the charges laid against the F Appellants as the P Appellants failed to provide evidence of how the investigation against them differed. The trial judge was presented with the argument that SB conducted investigations in both cases because he knew, or ought to have known, that the residences in question were not boarding houses such that the requirements of the Fire Code were inapplicable and thus he lacked reasonable and probable grounds to lay charges. Thus, the Court held the trial judge was entitled to jointly consider this issue.

The Court then rejected the Appellants’ claim that the trial judge applied the wrong standard of review. The Court held that the trial judge correctly found that SB objectively had reasonable and probable grounds to lay the charges. Investigators owe a duty of care to those they investigate, and SB owed a standard of care of a reasonable fire safety inspector in similar circumstances. The Court relied on Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, where the Supreme Court of Canada held that this duty is to exercise discretion in a manner that falls within the range of reasonable decisions available at the time of the decision. The Court held that the standard of care is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty. Further, an investigator does not need to evaluate evidence to a legal standard or make legal judgments to determine whether there are reasonable and probable grounds to lay charges.

The Court also rejected the Appellants’ argument that the effect of withdrawing charges or the absence of a conviction meant that reasonable and probable grounds did not exist. The Court held that reasonable grounds may still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The Court held that it is required that the information be reliable at the time the decision was made to lay charges: Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.).

The Court held that given the evidence, SB did not breach the standard of care. As the definition of boarding, lodging and rooming houses are not defined in the Fire Code, SB was entitled to believe that the Appellants’ properties were lodging houses as they met the criteria outlined in s. 9.3.1.1 of the Fire Code. The Court upheld the trial judge’s finding that there were reasonable and probable grounds to believe an offence had been committed. The judge did not err in her standard of care analysis.

(2) No.

The Court reiterated that the law distinguishes between unreasonable mistakes that breach the standard of care and errors in judgment which a reasonable professional might make. SB’s role was to investigate incidents that might breach the Fire Code, and determine whether charges should be laid, and present the facts to the prosecutor. SB was not required to canvass all possible avenues of investigation, interview all potential witnesses, evaluate evidence according to legal standards, or draw correct legal conclusions: 495793 Ontario Ltd. (Central Auto Parts). The Court stated that SB attended each of the premises at least once to investigate, sought the opinion of several people who had dealt with similar issues, and consulted with the Fire Marshal and Crown Attorney. The Court found he received little help from the Appellants to obtain further information about the properties. For these reasons, the Court upheld the trial judge’s decision on this issue.

(3) No.

Applying Miazga v. Kvello Estate, 2009 SCC 51, the Court held that malicious prosecution did not arise in this case as SB acted with reasonable and probable grounds. The trial judge fairly concluded there was no malice on the part of SB as he conducted a protracted investigation of the facts and demonstrated some concern for the appropriateness of the charges ultimately brought. The Court concluded that the trial judge’s decision was amply supported by the evidence and did not ignore the evidence of the difficult relationship between SB and the Appellants during the investigation.
The Court rejected the Appellants’ argument that the City Council maliciously prosecuted them, and that it was vicariously liable for SB’s malice. The Court upheld the trial judge’s decision and found that SB was not at City Council meetings and the City’s conduct did not affect SB’s investigations.

(4) No.

The P Appellants requested that the Court determine their unaddressed issues in accordance with its discretion under s. 134 of the Courts of Justice Act. In 2007, the P Appellants were denied the requested variance to their property by the City’s Committee of Adjustment (“Committee”) on the basis that: (i) it was not a minor variance, (ii) the variance was not desirable for the appropriate development of the land, and (iii) the granting of the application would depart from the purpose of the zoning bylaw and the City’s Official Plan. The Ps successfully appealed the Committee’s decision to the Ontario Municipal Board (“OMB”), but a City solicitor believed a site plan control process was required. In 2009, the Ps underwent the site plan control process and a vote was held to approve the P’s application, resulting in a tie. The Ps appealed and were approved.

The Court held that there was a lack of evidence to find that the City solicitor acted negligently or with malice. Regarding the delays caused by the Committee, the Court held that the City would not be liable for these delays as they were a result of policy decisions, made in good faith, and there was no legal liability in tort under the Municipal Act, 2001, S.O. 2001, c. 25, s. 450.

The Court further held that the P Appellants pleading of harassment and intentional infliction of emotional distress was unfounded. Harassment is not yet recognized as a common law tort, and this case did not warrant its recognition: Merrifield v. Canada (Attorney General), 2019 ONCA 205. Additionally, the Court held that the claim of intentional infliction of emotional distress was flawed, as there was no conduct at issue that was flagrant, outrageous, or calculated to harm the P Appellants. The Court also stated that the claim for misfeasance in public office failed as the City councilors did not act unlawfully or in bad faith when they elected to vote. For these reasons, the Court dismissed the P Appellants’ appeal.

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

N. Karnis and R. Prasad, for the Appellant

J. Goldblatt and J. Howell, for the Respondents, Eastern Ontario District Soccer Association, The Ontario Soccer Association

A. K. Lee, for the Respondent, Canadian Soccer Association

facts:

The appellant appealed the dismissal of its action against the respondents and sought leave to appeal the costs order made by the trial judge, in the event the main appeal failed. The action began in 2004 but only proceeded to trial in 2019; by then, only one plaintiff, the appellant, and three defendants remained.

The Ottawa Wizards were a soccer club in the Canadian Professional Soccer League (“CPSL”) from 2001 to 2003. In 2003, three events occurred. First, in September, the Ottawa Wizards applied to the OSA to host the OZ Optics Invitational Tournament; the application was denied, and the tournament was not held. Second, in November, the CSA issued International Transfer Certificates (“ITCs”) for two Ottawa Wizards players, which resulted in their return to Malawi. Third, in December, the EODSA publicized that OZ Dome Sports Club had not applied to operate an indoor league during the 2003-2004 season and described the potential consequences of participating in “unsanctioned competition” at the OZ Dome facilities.

The appellant claimed against each respondent, alleging negligence and intentional interference with the economic interests of the appellant (referred to by the trial judge as the “unlawful means” claim). The trial judge dismissed the negligence and unlawful means claims as against each respondent.

The trial judge concluded the appellant had failed to establish any of the essential elements necessary to prove either of the claims it advanced against the respondents. To the extent the appeal turned on alleged errors made by the trial judge in her analysis of the claims, the appellant could only succeed if it demonstrated errors in respect of all three elements of the negligence claim, or all three elements of the “unlawful means” claim.

issues:

(1) Did the trial judge make palpable and overriding errors of fact and law in respect of the negligence claim?

(2) Did the trial judge make evidentiary and procedural errors that rendered the trial unfair?

(3) Was there ineffective assistance of counsel?

(4) Was the trial judge biased against the appellant?

(5) Should leave to appeal the costs order be granted and should the costs awarded against the appellants be set aside?

holding:

Appeal dismissed.

reasoning:

(1) No

The Court found there was no error in the trial judge’s fact finding. She considered the evidence and the arguments relating to the ownership of the Wizards. The trial judge emphasized the 2000 application for membership in the Canadian Professional Soccer League but also relied on all the evidence presented. The trial judge has discretion to assign weight to the evidence, which can only be overturned on appeal if there is a palpable and overriding error. The Court did not accept the appellants argument that the trial judge limited her consideration to the purely legal relationships between the appellant and the respondents.

(2) No

The Court found the rulings did not prejudice the appellant and that the trial judge’s rulings accorded with the applicable procedural and evidentiary rules. Rule 19.05(1) of the Rules of Civil Procedure expressly contemplates a plaintiff moving for judgment against a defaulting defendant “before a judge”. The Rule also provides that the judge may “order that the action proceed to trial”. These rules give a judge the discretion to hear a motion for judgment, and discretion to order the matter to trial. Neither entitles a plaintiff to put the motion before a jury. The discretion as to how, and in what forum, the matter will proceed is left to the judge.

The appellant submitted the trial judge bifurcated the trial contrary to the provisions in Rule 6.1.01. The Court found there was no bifurcation of the trial. The trial judge correctly held the default proceedings were a separate proceeding from the trial. The trial judge’s holding, that evidence not relevant to the claims as pleaded against the respondents would not be heard by the jury, was not a bifurcation of the issues properly before the jury, but an application of the universal rule limiting admissibility to evidence relevant to the issues to be decided by the jury. The Court also found that the trial judge was correct in rejecting the appellant’s numerous attempts to expand the scope of the trial beyond the boundaries of the pleadings.

The appellant argued it was entitled to refer to the contents of the FIFA rules in support of its negligence claim, especially as it related to the transfer of the contracts of the two Ottawa Wizards players. The Court agreed with the respondents that the issue was not the admissibility of the FIFA rules. The trial judge concluded that she had no evidence as to how, if at all, the rules applied in the specific circumstances of the two Ottawa Wizards players. Absent evidence, the trial judge was not prepared to accept, as valid, the appellant’s interpretation of the relevant rules. In the absence of evidence, the trial judge made no error in refusing to act on the appellant’s submissions as to the meaning of the rules.

(3) No.

The only evidence in support of the claim of ineffective assistance came from an affidavit of the appellant’s representative. Although one section of that affidavit was headed “Ineffective Assistance of Counsel”, many complaints were directed primarily at the trial judge. The Court found none of the portions of the affidavit referring to the competence of trial counsel met the criteria for the admissibility of fresh evidence. The Court found the opinion in the affidavit to be inadmissible as the appellant’s representative was not qualified to give an opinion as to the competence of counsel. Even if the affidavit was admissible, it was wrong. The Court commented that it was remarkable that the appellant had made this submission given that counsel who the appellant claimed was incompetent at trial also appeared as co-counsel for the appellant on the appeal.

(4) No.

The Court found none of the events referred to by the appellant offered any basis upon which a reasonable person could have perceived institutional bias among the Ottawa judiciary toward the appellant’s representative and found his allegations to be baseless.

The Court stated that although the appellant claimed the trial judge’s ruling striking the jury notice demonstrated the trial judge’s bias, the appellant did not challenge the correctness of that ruling in its factum. The Court found the bias allegations assumed the trial judge made serious and repeated errors during the trial. If those assumptions had merit, the appellant would have succeeded on the appeal by virtue of having demonstrated the serious errors without recourse to any bias allegation.

Further, the Court found the appellant’s allegations that the trial judge’s facial expressions and body language also indicated bias to be vague, and absent any evidence, these kinds of allegations alone cannot rebut the strong presumption in favour of judicial impartiality. The Court found there was nothing in the record to support the suggestion that the ethnic background of the appellant’s representative had anything to do with the trial judge’s rulings or conduct of the trial.

(5) No.

The Court found no error in the amount of costs awarded against the appellant. The litigation was lengthy, convoluted and hard fought. On the findings of the trial judge, the actions of the appellant, particularly the repeated re-litigation of issues previously decided, unnecessarily prolonged the litigation. The Court found the trial judge also properly considered the amount of costs claimed by the appellant.

The Court agreed with the trial judge that the appellant’s representative assumed personal control over the conduct of the litigation. His attempts to excuse or even justify his conduct based on his temperament and the inexperience of his counsel should carry no weight when deciding whether he should be personally responsible for some part of the costs. The Court found no error in the trial judge’s quantification of the extent of his personal responsibility. The Court granted leave to appeal the costs order but dismissed the costs appeal.

MacIntyre v. Winter, 2021 ONCA 516

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

C. Craig and I. Marcovitch, for the Appellant

M.D. Blais, for the Respondent

facts:

The Appellant and Respondent started a relationship in 1994. They never married and did not have children. In 1999, the parties purchased their first home as joint tenants. $100,000 was provided by the Appellant’s mother toward the purchase price. The Respondent was responsible for mortgage payments. The Appellant made the down payment and was responsible for all other expenses associated with the home.

In 2005, the parties purchased a more expensive home. The purchase of the residence was financed through a mortgage, the proceeds of sale of the first home, and additional monies contributed by the Appellant. However, the parties were victim to harassment in the neighbourhood because they were a same-sex couple. This harassment had a negative impact on the parties’ mental health and put a strain on the relationship. They separated on February 5, 2017.

The trial judge ordered the Appellant to pay the Respondent spousal support of $269 per month on an indefinite basis, subject to a material change in circumstances. The trial judge further ordered that the Appellant designate the Respondent as the irrevocable beneficiary of a life insurance policy with a minimum amount of $50,000 for so long as he has an obligation to pay spousal support. Furthermore, despite the Appellant seeking the first $480,248.82 of the net proceeds of the sale of the home for his contributions, the trial judge ordered equal division.

issues:

(1) Did the trial judge err in deciding that the Appellant gifted the down payments?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The presumption of resulting trust is a rebuttable presumption of law and a general rule that applies to gratuitous transfers. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended because equity presumes bargains, not gifts: Pecore v. Pecore, 2007 SCC 17, at para. 24. The trial judge weighed the conflicting evidence and appeared to make a determination based on credibility. However, the onus was on the Respondent to establish, on a balance of probabilities, that it was the Appellant’s intention to gift the money: Pecore, at para. 43.

The trial judge pointed to several factors that displayed the Appellant’s intent to gift the money. Many of these factors were not relevant to the analysis. One of the factors was the fact that the home was put in joint tenancy because the parties wanted to avoid litigation and third-party involvement. However, the trial judge did not recognize that survivorship could be separated from the intent to gift. A right of survivorship alone is not sufficient to rebut the presumption of a resulting trust: M. Gillen, L. Smith & D. W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012), at § 10.II.B.2 (WL). Again, the trial judge failed to place the onus on the Respondent to rebut this presumption thorough evidence to support his claim: Bergen v. Bergen, 2013 BCCA 492, at para. 42.

Furthermore, the trial judge relied on the fact that the proceeds of the sale of the first home were paid into the parties’ joint bank account to conclude that the Appellant did not intend to be repaid the monies he had advanced. This conclusion ignored the fact that the purchase of that new home was being financed, in part, by the proceeds of sale from the first home. The Appellant requesting his money back at this time would be inconsistent with the parties’ intention to buy a new home.

The trial judge also found that it was not credible that the Appellant would invest $100,000 and not secure repayment through a written document. This conclusion was inconsistent with the finding that the Appellant had also loaned $250,000 to the Respondent in a separate arrangement without having put it in writing. The absence of documentation is not determinative of an intention to gift: Chao v. Chao, 2017 ONCA 701, at para. 54. In the absence of clear, convincing, and cogent evidence to the contrary, the Respondent, who had the burden of rebutting the presumption of a resulting trust, could not succeed.

Chandrasegaram v. Canadian Tamil Medical Association, 2021 ONCA 526

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

M. Donald, for the appellant

J. Aruldason, for the respondents

Keywords: Voluntary Associations, Non-Share Capital Corporations, Bylaws, Interpretation, Officers and Directors, Elections, Annual General Meetings

facts:

The appellant had been elected to serve as Vice-Chair of the Board of the respondent for a six-year term and was under the impression he would become the next Chair of the Board and not have to be re-elected each year under Article 6 of the Association’s Bylaws (the “Bylaws”). At the February 8, 2020, annual general meeting, Dr. R was elected Chair of the Association.

The appellant appealed the decision of the application judge which upheld the election of the directors and officers of the respondent. The appellant first argued that Article 6 of the Bylaws, read as a whole, provided for the entitlement for the incumbent Vice-Chair to become the next Chair of the organization. The appellant’s second argument was that Dr. R’s nomination was irregular as she submitted her nomination form less than 28 days prior to the annual general meeting, as required under section 6.6 of the Bylaws.

issues:

(1) Did the application judge err in interpreting Article 6 of the Association’s Bylaws as a whole?

(2) Did the application judge err by failing to find that Dr. R’s candidacy was irregular?

(3) Was the election irregular because eight new members were admitted to the Association at the annual general meeting without prior vetting or approval by the incumbent Board?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge found that the failure to automatically elevate the appellant to Chairman was not an irregularity. The bylaw providing for re-election of “all officers” was clear that all officers are to be re-elected annually and the respondent acted in accordance with its Bylaws.

(2) No.

Any inconsistency between section 6.6 and the manner in which Dr. R was nominated for the Chairman position did not render the election irregular.
Section 6.6 requires the Board of Directors to strike a nomination committee to send nomination forms to all members at least 28 days before the annual general meeting. As a matter of historical practice, the respondent did not follow that process and usually dealt with nominations on the day of the annual general meeting. In the present case, the appellant, as Chair Person Elect, did not strike a nomination committee at least 28 days before the annual general meeting. Further, it would not be appropriate for a candidate to a contested office to be a part of the nomination committee that proposed the candidate for that office.

(3) No.

To the extent there were irregularities, they did not go to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority of the members of the organization.
The respondent’s common practice was to admit new members at the annual general meeting without prior vetting. In any event, it was not necessary to consider the appellant’s argument regarding the new members because the number of new members admitted were too few to have impacted the election.

Florence v. Benzaquen, 2021 ONCA 523

[Fairburn A.C.J.O., MacPherson and Gillese JJ.A.]

Counsel:

D. Embury and D.M. Pacheco, for the appellants

J.T. Curry, B.F. Morrison and S.M. Blakeley, for the respondent

facts:

DF started taking Serophene, a fertility drug, in early July 2007. She had been attempting to conceive for only a few weeks. She became pregnant with triplets in late July 2007 and gave birth prematurely at 26 weeks. The Appellants, the three children, have serious disabilities. The Respondent was DF’s gynecologist from 2004 to 2007 and had prescribed the Serophene. A claim was brought by the Appellants against the Respondent in negligence.

The Respondent moved to the strike the claim of the Appellants under Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it disclosed no reasonable cause of action. The motion judge struck the Appellants’ claim because it was not recognized at law; specifically, that doctors did not owe a duty of care to a future child for negligence that occurred pre-conception.

issues:

(1) Did the motion judge fail to apply the Anns test to the scope of the claim?

(2) Did the motion judge fail in her application of Bovingdon and Paxton?

(3) Did the motion judge fail to characterize the claims as ones for wrongful life and categorically denying them?

(4) Should the Appellants be afforded the opportunity to present a full factual and evidentiary record at trial before the court decides whether their claims should be recognized at law?

holding:

Appeal dismissed, Fairburn A.C.J.O. dissenting.

reasoning:

(1) No.

The Appellants argued that the motion judge mischaracterized their claim and that the correct characterization of the proposed duty of care was that the Respondent owed the Appellants a duty of care to not prescribe a clinically contraindicated fertility drug to DF. The Appellants conflated the standard of care owed by the Respondent to DF with a novel duty owed to themselves pre-conception. The Court held that the Anns analysis conducted by the motion judge correctly demonstrated that an alleged breach of the standard of care owed to DF was not relevant in analyzing the duty of care owed to the Appellants.

(2) No.

The Appellants argued that there was a factual distinction between their claim and the relevant case law. The Court agreed with the motion judge that the Appellants’ claim was factually similar to Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2 and Paxton v. Ramji, 2008 ONCA 697 for the purpose of the Anns test. In Bovingdon, a doctor prescribed a fertility drug that resulted in twins being born premature and disabled. The Court in that case stated that the doctor did not owe a duty of care to the twins. In Paxton, a doctor prescribed an acne medication with the understanding that the patient’s partner had a vasectomy. Again, this Court held that the doctor did not owe a duty of care to the future child. In each of these cases, the proposed duty was the same as in the case at bar. The motion judge did not err in relying on the reasoning in Bovingdon and Paxton as she was required by the principle of stare decisis to adhere to legal principles established in the relevant case law.

The Court held that from a proper review of the case law, the motion judge conducted a meaningful Anns analysis. She found that doctors who prescribe fertility medication should reasonably have the mother’s unconceived children in their contemplation. However, to raise a prima facie duty of care, the relationship between the Respondent and the Appellants, as unconceived babies, must also be sufficiently proximate. The relationship lacked sufficient proximity because the doctor cannot take instruction from nor advise the unconceived child: Paxton, at para. 75. The motion judge also noted that there were policy considerations at stage one of the Anns test. Namely, finding that a doctor owes a duty of care to an unconceived child could create a conflict of interest in terms of the treatment offered to the patient: Paxton, at para. 76. Accordingly, the Court held that the motion judge did not err in adopting that reasoning.

(3) No.

The Court rejected the Appellants’ argument that the motion judge struck their claim simply because they were wrongful life claims. The motion judge explicitly acknowledged that it was undecided whether the courts would necessarily dismiss every claim for wrongful life: Bovingdon, at para. 73. The claim was not struck because they were labelled as wrongful life claims. After conducting the Anns analysis, the motion judge correctly found that it was plain and obvious that the claims were not viable in law.

(4) No.

Striking claims with no reasonable chance of success under Rule 21 is essential to effective and fair litigation: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 19. The Appellants argued that a trial was required to have the court properly address the policy issue of whether a doctor should owe a duty of care to an unconceived child. However, the Court stated that it was settled law in Ontario that there was no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to conception: Liebig v. Guelph General Hospital, 2010 ONCA 450, at para. 11. The motion judge confirmed this through her Anns analysis. Therefore, the Court dismissed the Appellants’ argument.

reasoning of the dissent (Fairburn A.C.J.O.):

(1) Not considered.

(2) Yes.

Fairburn A.C.J.O. disagreed with the majority’s interpretation of Bovingdon and Paxton. The factual distinction between these cases and the one at bar was that the prescribed drug was contraindicated, meaning that, in the circumstances, no non-negligent doctor would have prescribed the drug. In Bovingdon, the doctor met the standard of care if the patient understood the risk of taking the prescribed drug. Therefore, the drug was not contraindicated: Bovingdon, at para. 59. In Paxton, before prescribing the drug, the doctor took all reasonable steps to ensure that the patient was not going to get pregnant. Therefore, the drug was also not contraindicated.

(3) No.

Fairburn A.C.J.O. agreed with the majority that the motion judge did not characterize the Appellants’ claim as one of wrongful life.

(4) Yes.

Fairburn A.C.J.O. disagreed with the majority’s conclusion that it was settled law that a doctor does not owe a duty of care to a future child pre-conception. In Bovingdon, the Court explicitly left open whether such a duty may exist in different circumstances: Bovingdon, at para. 74. Therefore, a trial was necessary to determine if such a duty was owed when a contraindicated drug was prescribed. If it turned out that no non-negligent doctor would have prescribed Serophene, then there would be no conflict of interest between the mother and future child because the mother’s “choice” was not relevant as there was no choice at all. Expert evidence at trial was required to make this determination.

Furthermore, Paxton left open the question of whether a doctor can be in a proximate relationship with a future child pre-conception: Paxton, at para. 53. The majority stated that Liebig settled this question. Fairburn A.C.J.O. disagreed, as the statements made in Liebig need to be read considering the specific issues being decided. Liebig was about a claim in negligence for conduct during the labour and delivery process. As Liebig was decided with respect to a different duty, it could not be interpreted to have answered the question that Bovingdon and Paxton explicitly left open. The Court specifically went on to state that a court should be cautious about laying down principles that are not required to be decided in the case at hand: Liebig, at para. 19.

Lastly, Fairburn A.C.J.O. disagreed with the motion judge’s proximity analysis. Proximity was not necessarily broken because the doctor could not take instructions from or advise the future child. This proposition would make Liebig wrongly decided because a doctor cannot advise or seek instructions from a baby during the delivery process either. For these reasons, the issue at bar is not settled law, and and the claim should not be struck under Rule 21 at the pleadings stage.

Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

D. Elmaleh and A. Rosenberg, for the appellants

D. Migicovsky and K.M. Pagé, for the respondent

facts:

The Respondent is a public sector union. The Respondent supported a boycott of Israeli products. The Appellant is a charitable organization representing the Canadian Jewish community. The Appellants authored press releases that the Respondent alleged were defamatory.

A member of the Respondent had complained to the Appellants about the Respondent’s support of the boycott. The Appellants then discovered that the Respondent had worked on a joint project with the Palestinian Postal Service Workers Union (“PPSWU”). The Appellants then found a Facebook page run by a PPSWU member which praised terroristic and anti-Israel activities.

The Appellants emailed the Respondent and asked for comments on its affiliation with the PPSWU. The Appellants asked for a response by the next day. The Respondent did not respond. The Appellants published two press releases that became the basis the defamation action. The releases stated that the PPSWU glorified terrorism and that the Respondent had aligned itself with extremism. Further, that the Respondent had refused to comment on this and that the Respondent’s union dues may be used to support organizations that want to see Jewish and Israeli members killed.

The Respondent alleged that the publications claimed that it supported terrorism and was anti-Semitic. The Appellants responded by filing a statement of defence and, subsequently, bringing an Anti-SLAPP motion to have the action dismissed under s. 137.1 of the Courts of Justice Act.

The motion judge dismissed the Appellants’ motion. He found that the matter was of public interest, the Respondent had a “solid case” for defamation, and that there were serious flaws in the Appellants’ defence.

issues:

(1) Did the motion judge err in law and fact in the s. 137.1(4)(a)(ii) analysis relating to the Appellants’ defences to the alleged defamation?
(2) Did the motion judge err by failing to undertake the balancing required under s. 137.1(4)(b)?

holding:

Appeal dismissed.

reasoning:

(1) No

Subsections 137.1(3) and (4) of the Courts of Justice Act provide the following test on an anti-SLAPP motion:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

First, the Appellants claimed that the motion judge applied the wrong legal test under s. 137.1(4)(a)(ii) when he noted that “[t]he defences which have been raised by [the Appellants] are not certain to be successful”.

The Court held that the motion judge did not err in stating the test. The motion judge’s statement instead reflected the finding that there were grounds to believe that there was no valid defence. The motion judge articulated and applied the correct test, consistent with the Supreme Court’s articulation of it in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. The motion judge stated that the Respondent had to satisfy him that there are grounds to believe that the Appellants had no valid defence, which he explained means that “a reasonable trier of fact could conclude that none of the pleaded defences would succeed at trial”. It was not necessary to answer that question conclusively at that preliminary state of litigation.

Second, the Appellants asserted that in applying s. 137.1(4)(a)(ii) the motion judge made several findings unavailable to him on the record, and that he erred in evaluating the defences of justification, fair comment, and responsible communication and in finding that the appellants may have acted with malice.

The Court stated it found no reviewable error in the motion judge’s findings. The motion judge was thus entitled to find that there were grounds to believe that the defence of justification would fail, as the Appellant’s statements rested on problematic source material. Further, the motion judge’s findings that the defences of fair comment and responsible communication were likely to fail were grounded in the record.

Finally, the Appellants asserted that the motion judge erred in stating that malice may undermine the Appellants’ defences. Malice may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. The motion judge stated that he was “not … making a finding of malice”. He merely concluded that there was evidence before him that “may support such a finding”. Therefore, the Court found that there was no error in the motion judge’s approach or conclusion.

(2) No

The Court did not accept the Appellant’s submissions on this matter. It was not disputed that the motion judge set out the correct balancing test under s. 137.1(4)(b). The motion judge explained that the balancing under s. 137.1(4)(b) “asks the court to consider if the harm potentially suffered by the plaintiff is trivial or not and if it is serious to consider whether it is in the public interest to deny the plaintiff a remedy in the name of freedom of speech.”

The motion judge considered the harm suffered by the Respondent to be significant. The motion judge cited Lascaris v. B’nai Brith Canada, 2019 ONCA 163, which found that accusations of supporting terrorism are highly damaging and serious. Accordingly, the Court was satisfied that the motion judge considered the harm to the Respondent from the Appellant’s defamation to be serious.

The Court was also satisfied that the motion judge correctly weighed the potential harm suffered by the Respondent with, in the name of freedom of speech, the public interest in denying the Respondent’s ability to seek a remedy. There was also no basis to conclude that the Appellants’ speech had indicia of a SLAPP sufficient to materially affect the outcome of the weighing exercise.

Eisen v. 2293398 Ontario Inc, 2021 ONCA 537

[Thorburn J.A. (Motions Judge)]

Counsel:

S. D. Hwang, for the moving party

J. A. Riewald, for the responding party

facts:

The respondent holds a mortgage against a property registered to the appellant/ moving party. The appellant brought an urgent motion for an order:

1. staying the decision of the motion judge on March 15, 2021, refusing to set aside the default judgment signed on January 21, 2021, pending appeal;
2. staying the writ of possession, dated March 17, 2021, and the enforcement of the order to vacate the premises, dated July 13, 2021, pending appeal; and
3. allowing the appellant to repossess the property pending appeal.

The appellant has since been evicted and is living elsewhere. The only remaining issue is the request for an order for repossession of the property.

The appellant charged the property in question in 2012 for two years and secured the sum of $1.6 million at 8.5% interest. By 2019, significant municipal tax arrears had accumulated against the property and the appellant and respondent entered into an agreement to extend the charge for one year from May 15, 2019 to May 16, 2020. The appellant made several payments in accordance with the agreement but on May 15, 2020, the charge matured and principal, interest, and expenses had not been paid. On November 13, 2020, the respondent sent the appellant a notice of sale and a statement of claim for possession, The appellant served a notice of intent to defend but no statement of defence was served. On January 15, 2021, respondent’s counsel requested a defence, but no statement of defence was filed. On January 21, 2021, default judgment was obtained and served on the appellant on February 3, 2021. In February the appellant advised that it would move to set aside default judgment, which was then dismissed on March 15, 2021. On April 20, 2021, the appellant filed a Notice of Appeal of Koke J.’s decision refusing to set aside default judgment and the appellant was evicted on July 13, 2021.

issues:

(1) Did the motion judge err by refusing to set aside the default judgment?

holding:

Motion dismissed.

reasoning:

(1) No.

It was not in the interests of justice for the appellant to retake possession of the property. When considering whether to grant a stay or interlocutory injunction pending appeal, the overarching consideration is whether it would be in the interests of justice. This is determined by considering three factors: (1) the merits of the case and whether there is a serious question to be tried; (2) whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment of which of the parties would suffer greater harm on the balance of convenience.

The Court found that: (1) although the threshold is low, the appellant’s case on the merits was not strong; (2) on the evidence, the appellant had not demonstrated irreparable harm; and (3) the balance of convenience favoured the respondent, as the respondent was at risk of losing their security due to the long history of arrears.

SHORT CIVIL DECISIONS

Amrane c. Abraham, 2021 ONCA 536

[Thorburn J.A (motion judge)]

Counsel:

T. A., in person

N. Rolfe, for the respondent

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Canadian Charter of Rights and Freedoms, City of Toronto Act , 2006, SO 2006, vs. 11, Schedule A, Ontario Works Act , 1997, SO 1997, c. 25 Appendix A, Vancouver (City) v. Ward , 2010 SCC 27

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 (JULY 12-16)

By John Polyzogopoulos on July 17, 2021

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of July 16, 2021.

Continue Reading

Topics covered this week included several family law decisions relating to custody and access, relocation and spousal support and labour law (duty to bargain in good faith).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Society of United Professionals v. New Horizon System Solutions, 2021 ONCA 503

Keywords: Labour Law, Administrative Law, Judicial Review, Reasonableness, Collective Bargaining, Duty to Bargain in Good Faith, Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 17 and 70, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.), Bernard v. Canada (Attorney General), 2014 SCC 13, C.U.P.E., Local 2424 v. Carleton University, 1998 CarswellOnt 2648 (Ont. L.R.B.) Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), Royal Conservatory of Music Faculty Assn. v. University of Toronto (Royal Conservatory of Music), 1985 CanLII 1085 (Ont. L.R.B.)

Moreton v. Inthavixay , 2021 ONCA 501

Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Trials, Bifurcation, Adjournments, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14, Bourke v. Davis, 2021 ONCA 97, Gordon v. Goertz, [1996] S.C.R. 27, Porter v. Bryan, 2017 ONCA 677, Decaen v. Decaen, 2013 ONCA 218

Bors v. Bors , 2021 ONCA 513

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Standard of Review, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. Palmer, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

Boudreau v. Jakobsen , 2021 ONCA 511

Keywords: Family Law, Spouse, Definition, Spousal Support, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8) and (9), Divorce Act, R.S.C., 1985, c. 3, s. 15.2(6), Spousal Support Advisory Guidelines, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), M. v. H., [1999] 2 S.C.R. 3, Climans v. Latner¸ 2020 ONCA 554, Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), Ballanger v. Ballanger, 2020 ONCA 626, Rioux v. Rioux, 2009 ONCA 569, Fisher v. Fisher, 2008 ONCA 11, Chutter v. Chutter, 2008 BCCA 507, Fong v. Chan (1990), 181 D.L.R. (4th) 614

Short Civil Decisions

Ontario College of Teachers v. Bouragba , 2021 ONCA 508

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 512

Keywords: Damages, Costs

CIVIL DECISIONS

Society of United Professionals v. New Horizon System Solutions , 2021 ONCA 503

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

Counsel:

J.M. Andrew and B. Dosanjh, for the Appellant

D.M. Jeffries and A. Jamieson, for the Respondent, New Horizon System Solutions

L. Lawrence and A. Hart, for the respondent, Ontario Labour Relations Board

facts:

Information technology (“IT”) employees at Ontario Power Generation (“OPG”) were transferred to the Respondent company. The Appellant is the bargaining agent for these employees. As per the most recent Master Services Agreement (“MSA”), the Respondent provided IT services to OPG. The Appellant is not a party to the MSA. The collective agreement between the Appellant and Respondent has a voluntary separation program (“VSP”), which provides employees who accept termination with options for dealing with their pension. After seven positions were terminated in 2018, the Appellant requested disclosure of the MSA to best represent the affected employees. This request was denied. The Respondent then advised the Appellant that the pension plan was being wound up, and that the benefits would be worth about 70% of their currently calculated value.

The Appellant brought an application to the Ontario Labour Relations Board (the “Board”) alleging that the Respondent violated ss. 17 and 70 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“LRA”) because it failed to negotiate in good faith and interfered with the Appellant’s representation of employees in the bargaining process. The allegations were based on the Respondent’s refusal to disclose the unredacted copy of the MSA.

In a series of three decisions, the Board held that the Respondent 1) did not violate s. 70 of the LRA, 2) did violate the duty in s. 17 of the LRA and was ordered to make partial disclosure of the MSA, and 3) was not required to disclose a further provision of the MSA as requested by the Appellant. The Divisional Court dismissed the application in judicial review, holding that the decisions of the Board were reasonable.

issues:

(1) Was the Board’s interpretation of s. 70 of the LRA unreasonable?

(2) Was the Board’s decision to order partial disclosure of the MSA unreasonable?

(3) Was the decision to deny further disclosure of the MSA unreasonable?

holding:

Appeal dismissed.

reasoning:

(1) No.

S. 70 of the LRA prohibits an employer from interfering with the representation of employees by a union. The Board held that the Appellant is not mentioned in the MSA, nor is the MSA mentioned in the collective agreement. Therefore, the Appellant is not sufficiently connected to the MSA, as required for a violation of s. 70. Furthermore, the Board was reasonable in concluding that denying the Appellant’s request for the MSA lacked interference because it was not necessary to carry out its representational duties, which is consistent with the Board’s decision in Hotel & Restaurant Employee CAW Local 448 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.).

The Board’s finding that the MSA was a commercial services contract that was ancillary to the Appellant’s representation of the employees was also reasonable. In addition to the fact that the Appellant was not a party to the MSA, the record showed that there had been previous VSP cycles, and the Appellant had never sought to obtain an unredacted copy of the MSA.

Furthermore, the Board did not fail to balance the conflicting interests of the Appellant and Respondent with respect to disclosure of the MSA. The Board distinguished the balancing approach applied in Canadian Paper Workers Union, Local 305 v. International Wallcoverings, 1983 CanLII 764 (Ont. L.R.B.), which was about interference in the context of discharging employees, not disclosing information. In a case of non-disclosure of information, the balancing approach is only applied where interference by the employer has already been established: Millcroft, at para. 17. The Board found no interference so there was no need to apply the balancing approach, which was consistent with the case law and therefore reasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 131.

(2) No.

S. 17 of the LRA encourages bargaining in good faith and states that parties shall make every reasonable effort to make a collective agreement. One of the functions of the duty to bargain in good faith is to foster rational, informed discussion thereby minimizing the potential for ‘unnecessary’ industrial conflict: United Electrical, Radio and Machine Workers of America v. DeVilbiss Canada Ltd., 1976 CarswellOnt 592 (Ont. L.R.B.), at para. 15.

The content of what an employer is required to disclose is dependant on proposals made in the bargaining process. As there were no bargaining proposals made, the Board determined that the Appellant should only be granted unredacted provisions of the MSA that were necessary for it to able to reasonably assess the bona fides of the Respondent’s bargaining positions. The Divisional Court held that the Board’s interpretation of the duty to bargain in good faith was reasonable and consistent with the jurisprudence. The Court agreed with the Divisional Court.

(3) No.

The Appellant requested to have a further provision disclosed in an urgent request. The Divisional Court held that the Board’s decision to deny this request was reasonable. The Appellant argued that the Board accepted the evidence provided by counsel for the Respondent as to why this provision was outside of the scope of information that required disclosure and the source of the information was shielded from cross-examination. In assessing the reasonableness of the decision, the court must be alert to the history and context of the proceedings: Vavilov, at para. 94. Considering all evidence before the Board from past proceedings, the Appellant did not meet its burden of showing that the decision was unreasonable.

Moreton v. Inthavixay , 2021 ONCA 501

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

M.H. Tweyman and A. Waye, for the appellant

C.M., acting in person

C.E. Tempesta and J. Hyndman, for the Office of the Children’s Lawyer

Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Trials, Bifurcation, Adjournments, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14, Bourke v. Davis, 2021 ONCA 97, Gordon v. Goertz, [1996] S.C.R. 27, Porter v. Bryan, 2017 ONCA 677, Decaen v. Decaen, 2013 ONCA 218

facts:

The appellant mother appeals the final order that the parties’ children primarily reside with their father, the respondent, in Lindsay, Ontario, with substantial parenting time to the appellant (the “Relocation Order”).

The respondent father moved to Lindsay, Ontario in late September 2020 for financial reasons, the children moved with him and have been enrolled in a school that is a five-minute walk away from the home. The Relocation Order varied the previous order that the children’s primary residence was to be with the respondent in Toronto, with access granted to the appellant. The September 1, 2020 order bifurcated the trial with the relocation and residential schedule of the children being determined first, in September, and the custody and financial matters being determined in December 2020. During the first trial, the judge dismissed the appellant’s requests to proceed with a long motion on the issues of relocation and the children’s residential schedule and to hear these issues in December 2020. The appellant’s motion for an adjournment of the trial was dismissed on September 16, 2020, and the appellant’s leave to appeal the bifurcation of the trial was dismissed on September 22, 2020. The relocation order, granted on October 22, 2020, was the subject of this appeal.

issues:

(1) Did the trial judge err by determining the question of the children’s relocation to Lindsay before deciding the issue of custody?

(2) Did the trial judge err in his application of the law on relocation to the facts of this case?

(3) Did the trial proceed in an unfair manner to the appellant, whose adjournment and accommodation requests because of her disability went unheeded, such that a new hearing was required?

holding:

Appeal dismissed.

reasoning:

(1) No.

The rule in Bjornson does not require that the issue of custody be decided before the issue of relocation, but rather that the sequence of events reflects the best interests of the children. The appellant’s submission that the trial judge erred by determining the question of relocation before custody was not accepted as it was not contrary to Bjornson. Here, the bifurcation order correctly determined the sequence of events in line with the best interests of the children.

(2) No.

The trial judge did not err in his determination that it was in the best interests of the children for their primary residence to be in Lindsay with their father, the respondent. Further, the trial judge’s determination on this issue was entitled to significant deference. Among other factors, the trial judge considered that the children themselves wished to relocate to Lindsay with their father while continuing to maintain a relationship and parenting time with their mother, the appellant. There was no basis for intervention with this determination on appeal.

(3) No.

There was ample evidence supporting the trial judge’s dismissal of the appellant’s request for an adjournment of the bifurcated trial. The record revealed that the appellant was given accommodations and participated meaningfully in the trial of the issues of the children’s primary residence and parenting time. Accordingly, there was no indication of prejudice to the appellant warranting appellate intervention.

Bors v. Bors, 2021 ONCA 513

[Feldman, van Rensburg and Sossin JJ.A.]

Counsel:

T.A. Frederick and G.E. Ichim, for the Appellant

B. Ludmer, for the Respondent

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Standard of Review, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. Palmer, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

facts:

The parties are former spouses and have two children together, M and C. The parties separated in 2012 and a custody and access investigation was undertaken by the Office of the Children’s Lawyer (“OCL”). The OCL recommended that the appellant have custody and the respondent have access to the children every other weekend and one night a week. Shortly before trial, the parties reached an agreement, which was incorporated into the consent final order in 2015. The order provided that the appellant have custody and the respondent have access to the children on alternate weekends.

The respondent later brought multiple motions to address problems with his access, resulting in a final order in 2017; increasing his access time and for transitions to occur at the children’s school. The OCL issued an updated report in 2018, reporting concerns about the respondent’s lack of access to his children and recommended that the appellant engage in counselling support to foster a positive relationship between the children and the respondent and if this could not be achieved, consideration should be given to a change in custody. In June 2018, after the children were refusing to transition to the respondent’s care, he brought an interim motion for access. The motion judge made an order increasing the respondent’s parenting time and ordered a motion to proceed to trial.

The trial judge concluded that the children were alienated from their father and the mother was responsible. The trial judge held that the children’s best interests required the respondent to have custody of the children and that the appellant would have limited contact with M and no contact with C for an initial period of time. The order required the parties and children to attend therapy and provide reports to the court.

The appellant argued that the trial judge erred in finding that she had alienated the children from the respondent and that the order was not in the children’s best interests. The appellant further argued that some other order short of changing custody and restricting her access would have sufficed. Finally, the appellant submitted that she was deprived of a fair trial because she was ineffectively represented by her counsel and the trial judge demonstrated bias.

The respondent argued that there lacked any reversible errors and sought to rely on fresh evidence, consisting of his own affidavit which included a report from the family’s therapist.

issues:

(1) Did the trial judge make a palpable and overriding error when she (i) concluded that the children’s unwillingness to have access with the respondent resulted from parental alienation; and (ii) when she ignored evidence of domestic abuse?

(2) Did the trial judge err in making the order, changing custody, and restricting the children’s access with the appellant, (i) when the respondent had only asked for joint custody; and (ii) when a less restrictive order could have been made to enforce the respondent’s right of access?

(3) Was the appellant deprived of a fair trial by the ineffective assistance of her trial counsel and the trial judge’s bias?

(4) Can the respondent file fresh evidence on appeal?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court applied the standard of review for an appeal of an order reversing custody after finding a parental alienation from A.M. v. C.H., 2019 ONCA 764: each case must be determined based on its facts and if there is no error in law, no palpable and overriding error of fact, and no misapprehension of evidence, appeal courts should not interfere.

The Court held that the trial judge provided sound reasoning for her conclusion firmly based in the evidence before the court. The trial judge heard evidence from both parties and several professionals, and the Court upheld the trial judge’s finding that the mother’s actions were consistent with alienation. The Court held that once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. The Court restated the long-standing rule that a parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568. The Court held that the appellant had been repeatedly advised to encourage the children’s relationship with the respondent and that alienation could be highly damaging. The appellant did not do this, resulting in the children and respondent’s relationship to deteriorate. Further, the Court rejected the appellant’s argument that her failure to support and assist in the respondent’s access was a result of her being a victim of domestic abuse.

(2) No.

At the outset of the trial, the respondent preferred an order for joint custody but by the end of trial it was clear that joint custody would not address the ongoing parental alienation. The respondent’s request for joint custody as one alternative did not prevent the trial judge from making the order as it was clear even before the trial started that an order reversing custody might be required.

The Court noted that the repeated attempts to solve issues between the parties regarding access had not succeeded. Although the appellant had asked for an order for reunification therapy at trial, she had not complied with earlier directions for therapy nor followed the OCL’s recommendations for individual therapy. Given the history and the facts at bar, the trial judge was reasonable in concluding that the family reconciliation therapy was best supported by a reversal of custody and restriction of the appellant’s access to the children for a period of time. The Court held that the reversal of custody was needed for the appellant mother to comply with the order and improve the respondent’s relationship with his children.

(3) No.

The Court held that the case was presented effectively by the appellant’s trial counsel and the trial judge did not demonstrate bias. The Court held that in order for the appellant to establish ineffective assistance of counsel as a ground of appeal, she must satisfy, on a balance of probabilities, that her trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice which occurs when the ineffective representation undermines the appearance of a fair trial or the reliabilities of the result: R. v. Archer (2005), 203 O.A.C. 56 (C.A.). The Court held that the appellant had not provided any evidence in this regard and the evidence before the trial judge did not suggest her counsel were ineffective. The Court held that the trial counsel advocated for the appellant in a way that was not ineffective or incompetent.

The Court then turned to whether the trial judge demonstrated bias and held that the appellant did not meet the threshold for showing such bias had occurred. The standard for showing bias is objective and the test is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial judge would not decide the matter fairly: McGregor v. Pitawanakwat, 2017 ONCA 77, citing Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. After a review of the evidence that the appellant submitted regarding bias, the Court held that nothing the trial judge said would suggest to a reasonable person that she was biased, or that she had prejudged the issue of parental alienation. The trial judge’s comments were fair and appropriate on the evidence before the court.

(4) No, except for the therapist’s report.

The Court held that the respondent could not file his lengthy affidavit but could file the family therapist’s report. The Court reiterated the test for admitting fresh evidence on appeal outlined in R. v. Palmer, [1980] 1 S.C.R. 759, and held that the respondent’s evidence did not meet this test even when it was flexibly applied. The Court held that the proposed fresh evidence was essentially a new record with a contextualized narrative that expanded on trial issues.

The respondent could file the therapist’s report, as per the Court’s decision in Fiorito v. Wiggins, 2015 ONCA 729. In this case, the therapist’s report provided some comfort that the measures that were ordered were underway and have gone a considerable distance to restoring the children’s relationship with the respondent. The report also provided evidence that there were problems with the appellant’s engagement in reconciliation therapy, partially because of her pursuit of this appeal. The Court expected that now that the appeal had been determined, the appellant will comply with the terms of the order.

Boudreau v. Jakobsen , 2021 ONCA 511

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

M. Stangarone and S. Kirby, for the Appellant

J. Beaton and J. Grys, for the Respondent

Keywords: Family Law, Spouse, Definition, Spousal Support, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8) and (9), Divorce Act, R.S.C., 1985, c. 3, s. 15.2(6), Spousal Support Advisory Guidelines, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), M. v. H., [1999] 2 S.C.R. 3, Climans v. Latner¸ 2020 ONCA 554, Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), Ballanger v. Ballanger, 2020 ONCA 626, Rioux v. Rioux, 2009 ONCA 569, Fisher v. Fisher, 2008 ONCA 11, Chutter v. Chutter, 2008 BCCA 507, Fong v. Chan (1990), 181 D.L.R. (4th) 614

facts:

The appellant appealed from the trial judge’s order requiring her to pay spousal support to the respondent. The trial judge found that the respondent and the appellant were common law spouses. The parties never married and have no children. They lived together since 1997. The appellant financially supported the respondent. The appellant purchased the house in which they both resided since 2008. The respondent had access to the appellant’s bank account, credit cards, as well as a joint bank account. The respondent suffers from mental health issues and has been mostly unemployed, earning no more than $10,000 in any of the few years he worked. The appellant and the respondent presented to the public as a couple. The relationship ended on April 7, 2018, when the respondent was charged with assaulting the appellant. The appellant was 49 and the respondent was 52 years old at the time of separation. The parties were self represented at trial.

The trial judge found that the respondent was intentionally underemployed and financially advantaged by living with the appellant. The trial judge imputed to the respondent a yearly income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. The trial judge ordered the appellant to pay the respondent retroactive and ongoing spousal support in an amount below the lowest end of the Spousal Support Advisory Guidelines (“SSAG”) from May 1, 2018, subject to review on December 31, 2025 at the latest, unless a material change in circumstances justified an earlier review.

issues:

(1) Did the trial judge err in finding that parties were spouses?

(2) Did the trial judge err in awarding retroactive and ongoing spousal support to the respondent?

(3) Did the trial judge err in failing to allow parties to make submissions as to costs and in failing to make any provision for costs in her decision?

holding:

Appeal dismissed.

reasoning:

(1) No

The Court saw no error in the trial judge’s analysis on this issue that warranted appellate intervention. There was significant evidentiary support for the trial judge’s conclusion that the parties lived together in a conjugal relationship and, therefore, were common law spouses.

The Court did not accept the appellant’s argument that the trial judge based her findings on a narrow review of select documentary evidence. The Court stated that the trial judge demonstrated a careful review of all relevant evidence in her reasons. The trial judge reviewed the applicable definition of “spouse” under s. 29 of the Family Law Act and correctly instructed herself that the question to be answered was whether the parties were in a conjugal relationship under this definition. In determining whether the parties were in a conjugal relationship the trial judge carefully reviewed the relevant evidence in accordance with the well-established factors set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).

The Court found that it was reasonable and necessary for the trial judge to turn to documentary evidence to assist her in determining the issue, as the parties and their witnesses had serious credibility and reliability issues. Documentary evidence such as the appellant’s will, powers of attorney, life insurance policy, pension plan, group retirement savings plan and extended medical and health insurance, consistently named the respondent as her common law spouse and beneficiary. On cross-examination, the appellant admitted that she indicated that the respondent was her common law spouse in her will and powers of attorney because she felt that he was.

(2) No

The Court found no basis for interference with the trial judge’s award. The Court noted that significant deference is accorded to decisions of trial judges relating to support orders: Ballanger v. Ballanger, 2020 ONCA 626. The trial judge’s award was not so high that it warranted intervention. Rather it was at the lowest end of the range of the SSAG. Given the finding that the parties had cohabited for 21 years and the respondent was 52 at the time of separation, the trial judge could have awarded time-unlimited support in accordance with the Rule of 65 under the SSAGs. However, the trial judge was alive to the respondent’s deliberate failure to become economically self-sufficient and implicitly imposed a time-limited award by ordering a mandatory review of her support order no later than 2025.

The Court found that the trial judge made an error in determining the respondent’s entitlement to spousal support. However, the Court stated that the error was not so material that it wholly undermined the trial judge’s decision. The trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. However, the Court stated that there was significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self-sufficiency within a reasonable period of time figures prominently in both statutes. The Court noted that economic self-sufficiency does not mean mere subsistence but is a relative concept tied to the achievement of a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship and the time needed to reach the goal of self-sufficiency: Rioux v. Rioux, 2009 ONCA 569, at paras. 42- 44; Fisher v. Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59; Chutter v. Chutter, 2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61. There was ample evidence to support the respondent’s economic dependence on the appellant during their relationship and his need for financial support following separation.

(3) No

The Court declined to make any order respecting the trial costs and concluded that the trial judge did not err in failing to allow the parties to make submissions as to costs and in failing to make any provision for costs in her decision. As the parties were unrepresented at trial, to obtain an award of costs, it was incumbent on the appellant to demonstrate that she forewent income or incurred disbursements in relation to the trial: Fong v. Chan (1990), 181 D.L.R. (4th) 614, at para. 26. There was no evidence in the record to support the appellant’s claim for any trial costs.

SHORT CIVIL DECISIONS

Ontario College of Teachers v. Bouragba , 2021 ONCA 508

[Brown, Roberts and Zarnett JJ.A]

Counsel:

A. B., acting in person

C. Malischewski, for the responding party

Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 512

[Roberts, Zarnett, and Sossin JJ.A]

Counsel:

K. G. Ferreira and A. A. Moten, for the Appellant

R. C. Dunford and S. Wouters, for the Respondent

Keywords: Damages, Costs

COURT OF APPEAL SUMMARIES (JULY 2-9)

By John Polyzogopoulos on July 10, 2021

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of July 5, 2021.

Continue Reading

Topics covered this week included civil forfeiture of proceeds of unlawful activity, regulated professions, family law, breach of fiduciary duty in a partnership context, and stay pending appeal to the Supreme Court of Canada.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Mahtani v. Mistry, 2021 ONCA 492

Keywords: Family Law, Spousal Support, Child Support, Income for Support Purposes, Imputing Income, Underemployment, Equalization of Net Family Property, Civil Procedure, Evidence, Expert Witnesses, Costs, Federal Child Support Guidelines S.O.R./97-175, s. 19

Tanase v. College of Dental Hygienists of Ontario , 2021 ONCA 482

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22, Ontario Regulation 565/20, Regulated Health Professionals Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2, Health Professionals Procedural Code, O. Reg. 260/12, subsection 1 (6), section 1.2, Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, Mussani v. College of Physicians and Surgeons of Ontario, (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), R v Schmidt, 2014 ONCA 188, leave to appeal refused, [2014] SCCA No. 208, New Brunswick (Minister of Health and Community Services) v G.(J.), [1993] 3 SCR 46, Walker v. Prince Edward Island, [1995] 2 SCR 407, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Green v. Law Society of Manitoba, 2017 SCC 20, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Carter v. Canada (Attorney General), 2015 SCC 5, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72

Weisberg v. Dixon, 2021 ONCA 491

Keywords: Partnerships, Corporations, Breach of Fiduciary Duty, Unjust Enrichment, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493

Keywords: Criminal Law, Proceeds and Instruments of Unlawful Activity, Property, Proceedings In Rem, Civil Remedies, Forfeiture, Settlements, Statutory Interpretation, Civil Remedies Act, 2001, S.O. 2001, c. 28, s. 1, s.2, s. 3, s. 6, s.7(1), ss. 8, s. 11, s. 15.6(1), s. 16, s. 18.1, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 17, Criminal Code, R.S.C. 1985, c. C-46, ss. 462.38(2) and 490(9), Sullivan on the Construction of Statutes, 6th ed., Ruth Sullivan, R. v. Norwood, 2016 ONSC 6207, Chatterjee v. Ontario (Attorney General), 2009 SCC 19, Ontario (Attorney General) v. $29,900 in Canadian Currency (in rem), 2017 ONSC 2003, AGO v. $80 Cdn., et al., 2021 ONSC 988, Ontario (Attorney General) v. 269 Weldrick Road West (in rem), 2020 ONSC 4605, R. v. Stipo, 2019 ONCA 3, R v. Proulx, 2000 SCC 5, Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, Harrison v. Carswell, [1976] 2 S.C.R. 200, Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64

Wiseau Studio, LLC v. Harper, 2021 ONCA 504

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Security of Costs, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.01(1), Rules of Civil Procedure, Rule 61.06(1), Wiseau Studio, LLC v. Harper, 2021 ONCA 31, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Zia v. Ahmad, 2021 ONCA 495

Keywords: Family Law, Spousal Support, Civil Procedure, Arbitration, Default Proceedings, Orders, Enforcement, Res Judicata, Family Law Act, R.S.O. 1990, c. F.3, Sections 59.2(1)(b) and 59.4, Arbitration Act, 1991, S.O. 1991, c. 17, Section 7, Family Law Rules, O. Reg. 114/99, Rule 25(19), Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA)

Short Civil Decisions

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 488

Keywords: Civil Procedure, Appeals, Reconsideration, Finality

7084421 Canada Ltd. v. Vinczer, 2021 ONCA 497

Keywords: Civil Procedure, Jurisdiction, Rules of Civil Procedure, Rules 61.13(3.1), 61.16(5)

Fort Erie (Town) v. 2312810 Ontario Inc, 2021 ONCA 500

Keywords: Provincial Offences, Appeals, Jurisdiction, Leave to Appeal, Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 131(1)-131(3), Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (Ont. C.A.)

CIVIL DECISIONS

Mahtani v. Mistry, 2021 ONCA 492

[Tulloch, Roberts and Thorburn JJ.A.]

Counsel:

S.P. Kirby, for the appellant
R.A. Fernandes, for the respondent

facts:

The Appellant husband appealed from the order for spousal and child support, as well as for equalization of property granted to the Respondent wife. The issues at trial were the questions of the amount of income to be imputed to the Appellant under s. 19 of the Federal Child Support Guidelines S.O.R./97-175, and the valuation of his 50% interest in his business, VAMS Canada Inc., for the purposes of determining support and equalization of property.

issues:

(1) Did the trial judge err in accepting the evidence of the respondent’s expert to impute income to the Appellant?
(2) Did the trial judge make inconsistent findings with respect to the valuation of VAMS Canada Inc. as at the dates of separation and marriage for the purpose of the equalization calculation?

holding:

Appeal dismissed.

reasoning:

(1) No
The trial judge did not base his conclusion on the figures in the expert reports but looked at all the evidence. He found that the Appellant was deliberately underemployed, did not make full financial disclosure, and intentionally diverted business from VAMS Canada Inc. to VAKA Trading Inc., a company incorporated by his family roughly two weeks after his separation, the timing of which the trial judge found to be suspicious.
It was open to the trial judge to accept the opinion of the Respondent’s expert that, based on several indicators, additional income should be imputed to the appellant. These indicators included census tract data, borrowing costs, and evidence of the Appellant’s lifestyle and expenses, from which the trial judge, reasonably in the Court’s view, inferred that the Appellant was receiving a higher income than he reported.

(2) No
The Court saw no basis to interfere with the trial judge’s determination of the value of the Appellant’s interest in VAMS Canada Inc. The Appellant’s arguments failed to consider the trial judge’s findings concerning the deficiencies in the evidence and the lack of credible financial disclosure and documentation. The Appellant had failed to produce court-ordered evidence demonstrating the existence of the loans allegedly made by him.

The trial judge therefore concluded that the Appellant had not proven that the shareholder loans were from him or owed to him, either at the date of marriage or at the date of separation. This conclusion was amply supported by the evidence that the trial judge was entitled to accept.
Further, the trial judge’s decision to adopt different methodologies for the valuation of VAMS Canada Inc. at the date of marriage and the date of separation did not give rise to an inconsistency necessitating appellate intervention. There was expert evidence before the trial judge that changing circumstances could necessitate changing methods of valuation.

Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482

[Feldman, MacPherson, Juriansz, Huscroft and Jamal JJ.A.]

Counsel:

S.P. Weinstein and M.M. Biddulph, for the appellant
J. Maciura and E. Richler, for the respondent
S.Z. Green, for the intervener Attorney General of Ontario

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22, Ontario Regulation 565/20, Regulated Health Professionals Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2, Health Professionals Procedural Code, O. Reg. 260/12, subsection 1 (6), section 1.2, Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, Mussani v. College of Physicians and Surgeons of Ontario, (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), R v Schmidt, 2014 ONCA 188, leave to appeal refused, [2014] SCCA No. 208, New Brunswick (Minister of Health and Community Services) v G.(J.), [1993] 3 SCR 46, Walker v. Prince Edward Island, [1995] 2 SCR 407, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Green v. Law Society of Manitoba, 2017 SCC 20, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Carter v. Canada (Attorney General), 2015 SCC 5, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72

facts:

Sexual abuse, as defined by the regulated Health Professionals Act, includes sexual intercourse or other forms of physical sexual relations between the member and the patient regardless of whether the relationship is consensual. Sexual relations between members and patients is categorically prohibited.

The appellant is a dental hygienist who entered into a sexual relationship with S.M., a woman he was treating. The two eventually married and the appellant continued to treat his now spouse following their marriage. The appellant first met S.M. in 2012 and developed a platonic relationship, in 2013, the appellant provided dental hygiene treatment to S.M. at his workplace. In 2014, the appellant and S.M. began a sexual relationship and the appellant stopped treating S.M. because he understood he was not permitted to continue to treat her. In 2015, a colleague told the appellant of a change in the rules allowing hygienists to treat their spouses. The advice was incorrect, but the appellant made no attempts to confirm it; he began treating S.M. again in 2015 and provided her with seven treatments, three of which were after the two were married in January of 2016. The College’s Spousal Exception was submitted to the Ontario government in October 2015 and came into force on October 8, 2020.

In 2016, a complaint was made to the College of Dental Hygienists of Ontario (the “College”) and the appellant was found guilty of professional misconduct by the Discipline Committee, and he was issued a reprimand and revocation of his certificate of registration. The Divisional Court dismissed the appellant’s appeal of the Discipline Committee’s decision. The appellant described the revocation of his registration as an absurdity and asked the court to revisit its caselaw.

issues:

(1) Was the Court’s decision in Leering correct?
(2) Was this Court’s decision in Mussani correct?
(3) Was the revocation of the appellant’s registration inconsistent with the principles of fundamental justice?
(4) Were the rights of the spouse engaged?
(5) Should the fresh evidence be admitted?
(6) Did the revocation of the appellant’s registration infringe section 12 of the Charter?

holding:

Appeal dismissed.

reasoning:

(1) Yes.
Leering remains good law and the Committee’s decision that the appellant violated the Code, based on Leering, was correct.
The appellant argued that the Court should revisit Leering to give effect to the Legislature’s intent in the Code’s zero-tolerance scheme of prohibiting the sexual abuse of patients while permitting health professionals to treat their spouses where abuse is not present. In Leering, the Court found that the Divisional Court erred by imposing a duty on the Disciplinary Committee to inquire into the nature of the parties’ sexual relationship.

The appellant further argued that the rule was not intended to prevent a member from treating their spouse or romantic partner where the relationship preceded the treatment. This argument was rejected on the basis that it goes against the nature of the bright-line rule and, if accepted, would convert it to a standard requiring the analysis of the sexual relationship. The Code is clear when it comes to sexual relationships between members and patients – they are not allowed. The Legislature expressly prohibited sexual relationships, not sexual abuse, so the argument that the Legislature’s intent was to prohibit abusive relationships must and does fail.

(2) Yes.
Mussani remains good law and the Committee’s decision that the appellant violated the Code, based on Mussani, was correct.
Revocation of the appellant’s right to practice a profession does not infringe the appellant’s constitutional rights. In Mussani the Court found that economic interests protected by section 7 and section 12 rights were not engaged by a penalty of mandatory revocation of a health professional’s certificate of registration. The appellant argued that Mussani is based on case law that predates the significant expansion of the liberty interest in section 7 and focused on security of the person. The appellant further argued that psychological stress flows directly from the revocation of registration and engages his section 7 rights under security of the person. The Court rejected this argument because the Supreme Court has held, in several cases, that section 7 of the Charter does not protect the right to practice a profession or occupation, or pure economic interests generally.

(3) No.
The appellant argued that the impugned provisions are overbroad. The test for overbreadth is whether “the law goes too far and interferes with some conduct that bears no connection to its objective” (citing Canada v. Bedford at para 101). This test is not met in this case and the impugned provisions are not overbroad because the law does not interfere with conduct that bears no connection to its objective. The conduct, sexual relationships of any nature, is prohibited to assure patients that relationships with health care providers will not become sexualized. This is within the mischief contemplated by the Legislature and does not constitute overbreadth within the meaning of section 7.

(4) No.
There was no merit to the appellant’s argument that the Code engages the rights of spouses by forcing them to choose between their spousal relationship and their place of residence and by requiring them to seek treatment by others rather than their health practitioner spouses.

(5) No.
In light of the rejection of the appellant’s section 7 argument, the fresh evidence the respondent sought to introduce would not have an impact on the result in the case.

(6) No.
Professional regulation does not constitute “treatment” under section 12. The appellant’s argument that mandatory revocation of registration and the permanent notation on the public register constituted cruel and unusual treatment was not accepted, as there was no treatment that could be considered cruel or unusual.

Weisberg v. Dixon, 2021 ONCA 491

[Fairburn A.C.J.O., Lauwers and Harvison Young JJ.A.]

Counsel:

A.Yallen and J. Lawson, for the Appellants
K. O’Brien, L. Harper, and M. Dick, for the Respondents

Keywords: Partnerships, Corporations, Breach of Fiduciary Duty, Unjust Enrichment, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

facts:

Dr. W and Dr. D were fertility doctors who practised together for a number of years. Dr. D incorporated a numbered company as a new fertility clinic called Anova Fertility & Reproductive Health. Dr. W declined an offer to be a minority shareholder. However, a Senior Associate Agreement was formed which stated that Dr. D was the principal of the new clinic and Dr. W was an associate.

Dr. D completed and submitted a funding application to obtain lucrative government funding for fertility treatments. Dr. D referred to Dr. W’s experience and Electronic Medical Records data. Dr. W claimed that Dr. D filed the application without her knowledge. Dr. W alleged that this was a breach of fiduciary duty because it deprived her of the funding. She also alleged that it unjustly enriched Dr. D. In lengthy and considered reasons, rooted squarely in factual findings linked to credibility assessments, the trial judge rejected Dr. W’s arguments and dismissed the action.

issues:

(1) Did the trial judge err in his findings of fact?

(2) Did the trial judge err in finding that Dr. D did not owe Dr. W a fiduciary duty?

(3) Did the trial judge err in finding a juristic reason for Dr. D’s enrichment?

holding:

Appeal dismissed.

reasoning:

(1) No.
The trial judge’s factual findings were grounded in the evidence. Further, the finding that Dr. W was not a credible witness was based on a solid assessment. It was not for the Court on appeal to revisit those conclusions, as there was no palpable and overriding error.

(2) No.
The trial judge correctly concluded that Dr. D did not undertake to act in the best interest of Dr. W, which is a fundamental element of a fiduciary relationship: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 36. On the evidence, the absence of such an undertaking was fatal to the claim. Even if a such a duty existed, Dr. D acted honestly and did what the parties had agreed to do.

(3) No.
At the time the funding application was filed, Dr. W had agreed to work at the new clinic. She would have benefitted from the funding had she not made the decision not to join the clinic or become a shareholder.

Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493

[Huscroft, Paciocco and Jamal JJ.A.]

Counsel:

G. Adair, A. Brass and E. Tanny, for the appellants
A.I. Pribetic and Paul Kim, for the respondent
R. Meagher, for the interested party
J.L. Kuredjian and R. Sniderman, for the intervener Canadian Constitution Foundation

Keywords: Criminal Law, Proceeds and Instruments of Unlawful Activity, Property, Proceedings In Rem, Civil Remedies, Forfeiture, Settlements, Statutory Interpretation, Civil Remedies Act, 2001, S.O. 2001, c. 28, s. 1, s.2, s. 3, s. 6, s.7(1), ss. 8, s. 11, s. 15.6(1), s. 16, s. 18.1, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 17, Criminal Code, R.S.C. 1985, c. C-46, ss. 462.38(2) and 490(9), Sullivan on the Construction of Statutes, 6th ed., Ruth Sullivan, R. v. Norwood, 2016 ONSC 6207, Chatterjee v. Ontario (Attorney General), 2009 SCC 19, Ontario (Attorney General) v. $29,900 in Canadian Currency (in rem), 2017 ONSC 2003, AGO v. $80 Cdn., et al., 2021 ONSC 988, Ontario (Attorney General) v. 269 Weldrick Road West (in rem), 2020 ONSC 4605, R. v. Stipo, 2019 ONCA 3, R v. Proulx, 2000 SCC 5, Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, Harrison v. Carswell, [1976] 2 S.C.R. 200, Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64

facts:

M.N faced narcotics-related criminal charges, but died before he could stand trial. The Attorney General of Canada (“Canada”) seized M.N’s home (the “Property”) and commenced proceedings to secure its forfeiture. Pending the forfeiture, the Property was sold on consent, and the proceeds paid into Canada’s Seized Property Management Directorate.

After M.N’s death, Canada terminated its forfeiture proceedings. Before the proceeds of the sale could be returned to M.N’s Estate, the Respondent, Attorney General of Ontario, commenced proceedings under the Civil Remedies Act, 2001, S.O 2001, c.28 (“the Act”), seeking its own forfeiture order. The proceeds of the sale of the Property were paid into court.

M.N’s mother, R.N, notified the Respondent of her claim to an interest in the Property. Prior to the resolution of the Respondent’s forfeiture claim, the Respondent agreed with R.N that she should receive $120,000 from the sale proceeds. The Appellants, the M.N’s Estate and a company controlled by M.N before his death, rejected this offer.

Pursuant to s.18.1 of the Act, the Respondent moved for approval of the proposed “settlement”. This was opposed by the Appellants on the grounds that there had not been a judicial determination on whether the proceeds from the sale of the Property were the proceeds and/or instruments of unlawful activity. The Appellants contended that by hearing the settlement motion before the Appellants could challenge the forfeiture proceedings, the court would deprive the Appellants of a defence in those proceedings.

Despite this, the motion judge granted an order approving of the “settlement” between R.N and the Respondent. The motion judge rejected the Appellants arguments on the grounds that s.18.1 of the Act conferred broad powers on the courts to approve settlements.

issues:

(1) Did the motion judge err in law in determining that the approval of a settlement under s. 18.1 of the Civil Remedies Act did not require a prior determination that the funds seized were the proceeds of unlawful activity?
(2) Is R.N a “legitimate owner” or “responsible owner” of the Property, for the purposes of the Act?
(3) Did the motion judge err in deciding the approval motion based on hearsay evidence from a lawyer about the nature of the agreement between R.N and M.N?

holding:

Appeal allowed.

reasoning:

(1) Yes
Section 18.1(1) of the Civil Remedies Act authorizes a court to approve a “settlement in relation to a proceeding under this Act”. The Court held that the agreement between Ontario and Rosa was not a “settlement in relation to a proceeding” under the Civil Remedies Act and therefore not properly subject to judicial approval.

Section 18.1 of the Act, the provision authorizing court approval of settlements which was the primary focus of this appeal, provides as follows:
(1) Despite anything to the contrary in this Act, the court may approve a settlement in relation to a proceeding under this Act, on the motion of the Attorney General or of any other party to the proceeding with the Attorney General’s consent.
(2) For greater certainty, the power to approve a settlement under subsection (1) includes a power to approve a settlement that provides for the full or partial forfeiture of the property that is the subject of the proceeding.
(3) For greater certainty, the power to approve a settlement under subsection (1) includes a power to approve a settlement that provides for payment of a monetary amount instead of the full or partial forfeiture of property that is the subject of the proceeding.

The Respondent argued that any agreement between the Attorney General and a party to forfeiture proceedings constituted a settlement within the meaning of s. 18.1. The Court rejected this, and instead found that s. 18.1 authorized courts to approve settlements that related to the in rem interests in property subject to forfeiture proceedings. Before the Attorney General can achieve an agreement that settled the in rem interests in a subject property, it must first secure a finding that the required link between the property and unlawful activity existed.
The required finding in the present case was that the proceeds of the Property were the proceeds of and or instruments of unlawful activity. As this finding had not been made, the motion judge erred in granting the order under appeal.

The governing legal principles in interpreting s. 18.1
In reaching its conclusion, the Court made several key rulings on the interpretation of s. 18.1 of the Act. The Respondent made three arguments in support of its interpretation of s. 18.1. First, that the ordinary and grammatical meaning of s. 18.1(1) gave the courts broad discretion to approve settlements without a finding of unlawful activity. Second, that this broad interpretation aligned with the object and purpose of the Act and the intention of Parliament. Finally, that the wide authority of this interpretation would be confined by the Attorney General’s obligation to act in the public interest and by the proper bounds of judicial discretion.

The Court rejected each of these arguments. Regarding the first, the Court stated that the words of the Act are to be read in their entire context. Section 18.1(1) allows the court to approve a settlement in relation to a proceeding under the Act. A proceeding under the applicable parts of the Act is an in rem proceeding engaged to settle title to property that is allegedly linked to unlawful activity.

To constitute a “settlement” relating to the in rem interests in the property, an agreement must resolve the in rem rights in the subject property. The agreement between the Respondent and R.N did not resolve the in rem rights to the Property. The Appellants had claimed an interest in the proceeds of the Property that had not been displaced by any forfeiture order. The agreement was therefore incapable of settling the Appellants’ in rem rights, and therefore could not be a “settlement in relation to a proceeding under this Act”. Therefore, the motion judge did not have the authority to approve the settlement. Once the Respondent established the requisite link between the subject property and unlawful activity to support forfeiture, the broad language of s. 18.1 empowers courts to approve any settlement that the Respondent enters.

The second argument by the Respondent was also rejected. The Court found that its in rem interpretation was consistent with the object and purpose of the Act. The object of the Act is to provide civil remedies to address harms from “unlawful activities”. The Respondent’s interpretation would not require “unlawful activities” for the application of s.18.1 of the Act, while the in rem interpretation would.

The Respondent’s interpretation would have also gone against the scheme of the Act. Absent a determination that the subject property was the proceeds or instruments of unlawful activity, there would be a risk that a settlement eradicating the interest of others would deprive a legitimate owner of their property.

Further, the Respondent’s interpretation would go beyond the legislature’s intent, and import absurd consequences to the application of the Act. The “absurd principle” holds that if an interpretation would lead to an absurdity, a court may reject it in favour of a plausible alternative: Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031. The Court found the Respondent’s interpretation would lead to illogical, incoherent, and inequitable outcomes.

Finally, the Court rejected the Respondent’s third argument. The fact that the Attorney General is also the Minister of Justice and therefore bound to act reasonably and responsibly was irrelevant to the proper interpretation of s. 18.1.

(2) Not Considered.

(3) Not Considered.

Wiseau Studio, LLC v. Harper, 2021 ONCA 504

Fairburn A.C.J.O. (Motions Judge)

Counsel:

D. Brinza, for the moving parties
M. Bacal and M. Diskin, for the responding parties

facts:

Wiseau brought a motion pursuant to s. 65.1(1) of the Supreme Court Act (“SCA”) to stay the Court’s previous order for security for costs of the trial and appeal pending leave to appeal to the Supreme Court of Canada.

issues:

(1) Did the moving party raise a serious issue to be tried on the stay application?

(2) Will the moving party suffer irreparable harm if the stay is not imposed?

(3) Does the balance of convenience favour a stay?

holding:

Motion dismissed.

reasoning:

(1) No.
There were no serious issues raised by Wiseau. Wiseau failed to demonstrate that there is an issue of public or national importance raised in the Notice of Application for Leave to Appeal to the Supreme Court of Canada that met the stringent requirements of s. 40(1) of the SCA: Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, para. 7. These decisions are owed deference on review, especially when they are heavily predicated on fact-finding: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, at para. 20.

(2) No.
No specifics were provided in the evidence as to why Wiseau could not obtain the funds on short notice. Furthermore, the respondent mitigated the harm that may be suffered by Wiseau through an undertaking to hold all cost awards and judgments in trust until the matter before the Supreme Court of Canada was resolved.

(3) No.
There was evidence that the responding parties would suffer prejudice if the order for security for costs is not granted (and therefore if it is stayed). This included the fact that Wiseau has made several tactical attempts to delay and obstruct the release of the content in question at trial. Conversely, there was no compelling evidence of harm to Wiseau.

Zia v. Ahmad, 2021 ONCA 495

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

G. S. Joseph, for the appellant
M.H. Tweyman, for the respondent

Keywords: Family Law, Spousal Support, Civil Procedure, Arbitration, Default Proceedings, Orders, Enforcement, Res Judicata, Family Law Act, R.S.O. 1990, c. F.3, Sections 59.2(1)(b) and 59.4, Arbitration Act, 1991, S.O. 1991, c. 17, Section 7, Family Law Rules, O. Reg. 114/99, Rule 25(19), Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA)

facts:

The parties were married in 2009 and separated in 2015. In 2016, they participated in an arbitration and an award was made (“the Award”) which stated that it was addressing four issues: divorce and habitation rights, dower money, possession of certain household items, and possession of certain jewellery. None of these issues were described as equalization of net family property or as support. An issue regarding the matrimonial home was not resolved and the Award instead advised the parties to “consult court because of legal implications of subject matter.” The responded commenced her action for support and an equalization payment in 2018 which the appellant did not respond to and was noted in default in February 2019. The appellant made no steps up to and including the making of the default order.

The appellant appealed the dismissal of his motion under Rule 25(19) of the Family Law Rules, O. Reg 114/99, to set aside a default order which directed the appellant to pay spousal support to the respondent, that he designated the respondent as a beneficiary on his life insurance for as long as he was obligated to pay spousal support, and that he makes an equalization payment to the respondent.

The appellant argued that the motion judge erred by failing to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration, or in failing to appreciate that the Award gave rise to a res judicata defence to the respondent’s claims.

issues:

(1) Did the motion judge err in failing to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration?
(2) Did the motion judge err in failing to appreciate that the Award gave rise to a res judicata defence to the respondent’s claims?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court rejected the appellant’s argument that the motion judge failed to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration. The Court held that the arbitration did not cause the default order to be made without jurisdiction. The appellant did not bring forth any evidence that the parties had agreed that they would submit to arbitration, claims for support, insurance to secure spousal support, or equalization. The appellant also did not identify any evidence that the parties made that agreement after their dispute arose or that the arbitration was to be conducted exclusively under Canadian law which are preconditions to any agreement being valid or having any such arbitration having legal effect: Family Law Act, R.S.O. 1990, c. F.3, ss. 59.2(1)(b) and 59.4.

The Court held that in any event, an arbitration agreement does not prevent the court from exercising jurisdiction if a motion to stay the court proceeding has not been brought and granted, which did not happen in this case: Arbitration Act, 1991, S.O. 1991, c. 17, s. 7.

(2) No.
The Court stated that for the doctrine of res judicata to apply, the issues that were, or could have been, dealt with in the arbitration would have to be the same as those that were the subject of the court proceeding: Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA), at para. 5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Court held that the Award did not deal with equalization, support, or insurance to secure support, nor was there any evidence that it could, with legal effect, have dealt with those issues.

The Court rejected the appellant’s argument that the motion judge failed to consider that he was self-represented or consider his evidence about his ability to make support payments or the net family property calculations and that the motion judge should not have come to a decision without viva voca evidence. The Court held the motion judge was aware the appellant was self represented and considered his submissions and the evidence put forward. The Court further held that the motion judge’s findings of fact were entitled to deference, as was her exercise of discretion as to whether to set aside the default order. The Court held that the motion judge’s reasoning was sound and she was not required to conduct a viva voce hearing as the appellant failed to provide an adequate explanation for his failure to respond to the application for more than 18 months after he was served, did no establish an arguable case on the merits, provided no financial disclosure, and lacked clean hands.

SHORT CIVIL DECISIONS

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 488

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

D.G. Boghosian and S.S. Taylor, for the Respondents
M.B. Snowden and S.A. Kamayah, for the Appellant

Keywords: Civil Procedure, Appeals, Reconsideration, Finality

7084421 Canada Ltd. v. Vinczer, 2021 ONCA 497

[Huscroft, Roberts and Zarnett JJ.A.]

Counsel:

A. Vinczer, acting in person, on behalf of the Appellants
G. Anthony, for the Respondent

Keywords: Civil Procedure, Jurisdiction, Rules of Civil Procedure, Rules 61.13(3.1), 61.16(5)

Fort Erie (Town) v. 2312810 Ontario Inc, 2021 ONCA 500

[Watt, Pardu and Trotter JJ.A.]

Counsel:

S. DiGiuseppe and K. Heath, for the Appellants
T.H. Hill, for the Respondent

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email